Struck v. Cook County Public Guardian

THIRD DIVISION
December 17,
2008
1-07-1865, 1-07-1916 and 1-08-0700 (Consolidated)
JAMES T. STRUCK, ) Appeal from
) the Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. ) No. 86 P 4029)
COOK COUNTY PUBLIC GUARDIAN, ) Honorable
) Maureen E. Connors,
Defendant-Appellee. ) Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
Plaintiff, James T. Struck, appeals pro se from orders of the circuit court of Cook County
appointing the Cook County Public Guardian Robert F. Harris (Public Guardian) as the successor
plenary guardian of the person and estate of Janie F. Back Struck, James’ mother, and denying
James’ petition for Janie’s restoration. James also appeals from orders of the circuit court
restricting or denying him visitation with Janie. For the following reasons, we dismiss James’
appeal pertaining to the appointment of the Public Guardian for lack of jurisdiction and we
dismiss James’ appeals pertaining to visitation for a lack of standing.
In 1986, Janie was adjudicated a disabled adult by the circuit court pursuant to the Probate
Act of 1975 (Probate Act) (755 ILCS 5/11a-3(b) (West 2006)). From 1986 until 2006, Janie’s
1-07-1865, 1-07-1916 and 1-08-0700 (Consolidated)
oldest son, Daniel Struck, served as plenary guardian of Janie’s estate and person. Janie is 72
years old and has a history of mental illness, including diagnoses of schizophrenia, schizoaffective
disorder, and bipolar manic disorder. Janie also suffers from hypertension, hypothyroidism,
diabetes, anemia, multiple gastric ulcers and heart problems.
On January 3, 2006, James filed a petition to be appointed guardian of Janie’s estate.
James’ petition asked for reimbursement of expenses for storing furniture, paying for Janie’s
groceries, transportation and trips to the doctor.
On January 6, 2006, Daniel filed a petition for leave to resign as Janie’s guardian and the
Public Guardian filed a petition for successor guardianship. In his petition, Daniel stated that he
was no longer able to serve as guardian due to work and family obligations. Daniel also suffered
a mild to moderate heart attack and was told to avoid stress. Daniel stated that during his
guardianship, his mother had lived in the community but difficulties arose and Janie was
hospitalized, then placed in a nursing home. After repeated requests, the circuit court allowed
Janie to live with James in the community with an expense-sharing arrangement. Daniel stated
that the experiment of Janie living with James and sharing expenses was not working well. Daniel
stated that since “the experiment at Residential Living of my mother with my brother [James], I
have been faced with a series of pro se petitions filed by my brother, suggestions from him of his
intention to complain about me to one governing body or another, resistance to supervision by my
mother, and abundant supplies of stress.” The circuit court allowed Daniel’s petition to resign
conditioned on a final accounting and the appointment of a successor guardian.
Following Daniel’s resignation as guardian, Janie was hospitalized, then placed in a
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nursing home. On March 5, 2006, James filed a cross-petition for successor guardianship. In his
petition, James stated that Janie was a disabled person due to “hypertension and overreaction to
past discrimination.” On March 22, 2006, James filed a notice of motion asking for Janie to leave
the nursing home
On March 27, 2006, Janie’s guardian ad litem (GAL) filed a motion to dismiss James’
cross-petition for successor guardianship. In the motion to dismiss, the GAL stated that James
was not qualified to act as Janie’s guardian where he could not post a surety bond because he was
unwilling to obtain an attorney to represent him. The GAL also stated that James did not
acknowledge or accept Janie’s mental illness where James’ cross-petition stated that Janie’s
disability was due to “hypertension and overreaction to past discrimination.” In support of her
motion to dismiss, the GAL attached the report of a psychiatric evaluation of Janie conducted by
Dr. Mark A. Amdur on July 3, 2004. James was present during Dr. Amdur’s evaluation of Janie,
and Dr. Amdur conducted a telephone interview with Daniel. In his report, Dr. Amdur diagnosed
Janie with schizoaffective disorder and anosognosia, which is the failure to appreciate one’s own
illness. Consistent with anosognosia, Janie saw no need for antipsychotic medications and was
currently refusing to take her medications. In addition, Janie minimized the nature and severity of
her symptoms. Janie demonstrated bursts of anger and Daniel reported that Janie has been
physically and verbally assaultive. Dr. Amdur reported that James did not think that Janie needed
to take antipsychotic medications. Dr. Amdur concluded that long-acting injectable antipsychotic
medication was the only way to provide reliable medication to Janie and recommended continued
placement at a nursing home facility to ensure Janie received her medication. Dr. Amdur
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concluded that, in his opinion, without the benefit of antipsychotic medication, if Janie were
returned to the community, within a few months she would relapse to a condition where she
would be unable to care for herself and would pose a potential danger to others.
On April 3, 2006, James filed a reply to the GAL’s motion to dismiss his cross-petition for
successor guardianship. In his reply, James disputed Dr. Amdur’s diagnosis of schizoaffective
disorder and stated that Janie suffered from posttraumatic stress and an “overreaction to
discrimination.” Also on April 6, 2006, James filed a petition for “the termination or modification
of adjudication of disability” on Janie’s behalf. In that petition, James stated that Janie was able to
care for herself and that “several doctors” indicated that Janie would be better off living in a “less
restrictive environment outside of a nursing home.”
On May 3, 2006, the circuit court conducted a hearing on the Public Guardian’s petition
for successor guardianship and the GAL’s motion to dismiss James’ cross-petition for successor
guardianship. In support of her motion to dismiss, the GAL argued that James refused to
acknowledge Janie’s diagnosed mental condition and James, therefore, would be unable to
provide a care plan for Janie. The GAL also noted that in the previous year James took Janie out
of the nursing home and lived with Janie, then Janie had to return to the facility. James was
represented by an attorney at the hearing. James’ attorney argued that James accepted that Janie
suffered from manic depression or posttraumatic stress and James agreed to take Janie to a mental
health center for treatment and medication. James’ attorney explained that when James lived with
Janie, problems occurred because Daniel, Janie’s guardian at the time, did not pay funds in the
manner Janie requested. James’ attorney argued that James could live with Janie and that Janie
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was capable of caring for herself.
Following the parties’ arguments, the circuit court indicated that in the past James
persuaded the court to allow Janie to live with him. The court stated that as a result of Janie
living in the community with James, Janie was involuntarily committed. The circuit court
concluded that James’ past behavior and behavior during the hearing did not demonstrate an
“ability to provide a suitable role of guardian.” The circuit court granted the GAL’s motion to
dismiss James’ cross-petition for successor guardian and appointed the Public Guardian as
successor plenary guardian of Janie’s estate and person.
On September 13, 2006, the circuit court conducted a hearing on James’ petition for
restoration or modification of the adjudication of disability. The circuit court found that James
failed to provide clear and convincing evidence in support of the petition. Based on testimony
during the hearing regarding Janie’s worsening condition, her belligerence, and the court’s
observation of Janie’s delusional behavior during the hearing, the court denied the petition for
restoration or modification of the adjudication of disability.
On September 21, 2006, James filed a document stating that he would discuss “petitions
for reimbursement” and “clarify issues [at the] modification hearing.” On October 20, 2006,
James filed a notice of appeal from the circuit court’s orders of May 3, 2006, and September 13,
2006. In his notice of appeal, James also requested that this court award him $6,600 for expenses
he spent on caring for Janie.
On June 26, 2007, the Public Guardian filed a motion to dismiss James’ appeal for lack of
jurisdiction because James’ notice of appeal was not filed within 30 days of either order, as
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required by Supreme Court Rule 303 (210 Ill. 2d R. 303). On July 9, 2007, this court granted the
Public Guardian’s motion and dismissed James’ appeal (No. 1-06-2996 (July 9, 2007)
(unpublished order pursuant to Supreme Court Rule 23)).
On May 14, 2007, the circuit court conducted a hearing on James’ motion for visitation
with Janie. The Public Guardian informed the court that visitation between James and Janie had
been suspended for the previous week and asked to suspend visitation for two more weeks. The
Public Guardian informed the court that Janie was currently in a nursing home and had been there
for a week. The nursing home administrator reported that Janie was socializing with other
residents and was not asking to leave the nursing home. The Public Guardian stated that James
had a history of agitating his mother and interfering with the Public Guardian’s care plan for Janie.
The Public Guardian reminded the court that in 2006, James purchased and administered
medications to Janie while Janie received medication at the nursing home. The Public Guardian
explained that prior to her current placement in the nursing home, Janie was hospitalized on April
25, 2006, for two days and was then transferred to the psychiatric unit at the hospital. At that
time Janie was living with James and they were in the process of being evicted from their
apartment. The Public Guardian reported that James directed Janie not to cooperate with a blood
draw while Janie was at the hospital. After Janie was transferred to the psychiatric unit, James
told a social worker that he had a power of attorney to direct Janie’s medical care. The Public
Guardian stated that during James’ last visit to the nursing home, he became disruptive and had to
be escorted out of the building. The Public Guardian also reported that James made verbal threats
to his office.
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Janie’s GAL reported that when Janie was living with James in an apartment, Janie
sometimes would not let James into the apartment and James would sleep somewhere else in the
apartment building. The GAL agreed with the two-week suspension of visitation and that once
visitation resumed, it be supervised. The attorney for Daniel, Janie’s former guardian, indicated
that the circuit court and everyone else has been patient with James, but his actions have been
harmful to Janie. Daniel’s attorney stated that James has interfered with Janie’s medication and
ignored the benefits of medication. Daniel’s attorney indicated that Janie was doing well at the
previous nursing home and the experiment of James and Janie living together was a failure. James
denied interfering with any blood tests and indicated that the incident at the hospital was
politically motivated. James also denied threatening the Public Guardian.
Following the hearing, the circuit court ordered that the “Public Guardian is authorized to
continue its restriction of visitation between [James] and Janie Struck until further order of court”
and “[t]he court will review the restriction of visitation on May 30, 2007.” On May 30, 2007,
James filed a notice of appeal from the circuit court’s May 14, 2007 order (No. 1-07-1865).
On June 7, 2007, the circuit court entered an order that precluded James from filing any
documents prior to the next scheduled court date of June 19, 2007. The circuit court’s order also
granted Daniel’s request for a restraining order against James.
On June 20, 2007, James filed a motion for visitation with Janie. On June 25, 2007, the
circuit court conducted a hearing on James’ motion for visitation. The Public Guardian asked to
continue the restriction on James’ visitation at that time. The Public Guardian reported that while
in the nursing home, Janie was accepting her shots, socializing with peers and doing well. The
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Public Guardian stated that James continually calls the Public Guardian’s office and states that his
mother wants to come home. During his argument, James stated that “this is an area that Cook
County benefits financially from *** missile sales” and that is why his mother is given shots.
James argued that his visitation rights were restricted because Cook County profits from
individuals’ deaths. James stated that Janie wrote him a letter asking him to visit and that she
would be harmed if his visitation were limited.
In denying James’ motion for visitation, the circuit court noted that James’ argument was
“tangential, repetitive, and sometimes, nonsensical.” The court stated, “There has been adequate
proof here on prior occasions that you have caused substantial harm to your mother while she was
in your care. Visitation again will be denied. We keep hearing the same argument.” In its order,
the circuit court made a finding that the order was final and appealable. On July 12, 2007, James
filed a notice of appeal from the circuit court’s June 25, 2007, order (No. 1-07-1916).
On January 4, 2008, this court denied the Public Guardian’s motion to strike James’ brief
and dismiss his appeal (No. 1-07-1916). James’ appellate brief contains nonsensical arguments
pertaining to the risks of secondhand smoke and pneumonia in nursing home facilities, alleged that
Cook County profits from taxing corporations involved in the sale of alcohol, tobacco, and
weapons, and equated guardianship to slavery. Based on the deficiencies of James’ brief, this
court directed the Public Guardian to file a consolidated brief addressing the following issues: (1)
whether James Struck has standing before the circuit court and before this court; (2) whether the
circuit court’s order appointing a guardian for Janie B. Struck should be affirmed; (3) what the
limitations are that have been placed upon the contact between Janie and James, and whether
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these limitations are appropriate; and (4) whether the circuit court’s order regarding James’
request for reimbursement for purported expenditures should be affirmed. This court also
ordered that case numbers 1-07-1865 and 1-07-1916 be consolidated. We find that the Public
Guardian’s brief and the record in this case are sufficient to allow us to evaluate James’ appeal.
See Chicagoland Chamber of Commerce v. Pappas, 378 Ill. App. 3d 334, 347 (2007) (appeal not
dismissed despite appellants’ multiple failures to comply with supreme court rules in their briefs,
where issues were of public interest and the record was sufficient to permit review).
While James’ consolidated appeals were pending, on August 21, 2007, the circuit court
entered an agreed order for supervised visitation between James and Janie. The agreed order
required that James not speak to Janie about her treatment plan or medication if it causes her
distress. The order also barred James from speaking to Janie about leaving the nursing home.
The agreed order provided that if James became disruptive or failed to comply with the visitation
protocol, the Public Guardian retained the authority to restrict visitation. The agreed order
further provided that James was required to leaving the nursing home if the Public Guardian case
manager or nursing home staff terminated a visit.
On January 11, 2008, the Public Guardian filed a report to the circuit court and petition
for court direction related to visitation. On January 18, 2008, the circuit court conducted a
hearing on the Public Guardian’s petition. The Public Guardian reported that James repeatedly
violated the agreed visitation order. Although the visits were to be supervised, James repeatedly
appeared at the nursing home for a visit when none was scheduled. During supervised visits,
James twice demanded that Janie write letters stating that she wanted to leave the nursing home,
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even when she said that she did not want to. The nursing home administrator informed the Public
Guardian that James was so disruptive that he did not want James back in the building. The
nursing home administrator indicated that if James continued to visit, Janie would have to leave
the nursing home. The Public Guardian stated that since James was jeopardizing the best
placement that Janie had had in a year and a half, the Public Guardian had no choice but to
suspend visitation. The Public Guardian proposed suspending visitation for six months, then
revisiting the issue on July 18, 2008.
Daniel’s attorney stated that he had been involved with the case for 22 years and agreed
with the Public Guardian’s request regarding visitation. The GAL indicated that she also agreed
with the Public Guardian’s request regarding visitation. The GAL reported that Janie only asks to
leave the nursing home after a visit from James. The GAL stated that “Jane’s need for a safe
placement trumps [James’] visitation rights. ***. If he could conform his behavior, those two
rights wouldn’t have to be head to head. But they are.”
Following the hearing, the circuit court vacated the agreed visitation order and prohibited
James from visiting Janie until July 18, 2008. In denying visitation, the circuit court found that
James had been very disruptive to nursing home staff, that he had failed to follow the conditions
of the agreed visitation order, and that there was no therapeutic value to visitation between James
and Janie. In its order, the circuit court also precluded James from filing any requests for
visitation, phone contact, return home or restoration relating to Janie until July 18, 2008.1
1
While James does not raise the propriety of the circuit court’s order prohibiting him from
repeatedly filing such requests between court dates, we note that it is well established that trial
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On March 14, 2008, after the circuit court denied James’ motion to reconsider, James filed
a notice of appeal from the circuit court’s January 18, 2008, order (No. 1-08-0700). On April 24,
2008, this court allowed the Public Guardian’s motion to consolidate appeal No. 1-08-0700 with
appeal Nos. 1-07-1865, 1-07-1916.
On appeal, the Public Guardian, citing In re Estate of Steinfeld, 158 Ill. 2d 1 (1994) and In
re Estate of Hayden, 105 Ill. App. 3d 60 (1982), concedes that James has “limited standing” to
appeal the denial of his cross-petition for successor guardianship, the appointment of the Public
Guardian as successor guardian, and the denial of James’ petition for restoration or modification
of the adjudication of disability.
Pursuant to Article 11a of the Probate Act, guardianships are utilized “to promote the
well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to
encourage development of his maximum self-reliance and independence.” 755 ILCS 5/11a-3(b)
(West 2006). In furtherance of these goals, where, as here, a plenary guardian of the person has
been appointed, that guardian must make decisions on behalf of the ward that conform “ ‘as
closely as possible to what the ward, if competent, would have done or intended under the
circumstances.’ ” In re Mark W., 228 Ill. 2d 365, 374 (2008), quoting 755 ILCS 5/11a-17(e)
(West 2000). If the preferences of the ward are unknown and remain unknown after reasonable
courts have the inherent authority to control their docket and the course of litigation, including
the authority to prevent undue delays in the disposition of cases caused by abuses of the litigation
process. See J.S.A. v. M.H., 224 Ill. 2d 182, 196 (2007); Redelmann v. K.A. Steel Chemicals,
Inc., 377 Ill. App. 3d 971, 976 (2007).
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efforts to discern them, decisions shall be made on the basis of the ward’s best interest as
determined by the guardian. In re Estate of K.E.J., 382 Ill. App. 3d 401, 417-18 (2008), citing
755 ILCS 5/11a-17(e) (West 2006). In making such decisions that affect the ward, the guardian
is to consider only the ward’s best interest, and not the interests of the ward’s family, of society,
or of the guardian himself. See, e.g., K.E.J., 382 Ill. App. 3d at 415.
With respect to James’ standing to challenge the order of guardianship and denial of
restoration or modification, Article 11a of the Probate Act states that the circuit court may
adjudge an individual a disabled person “[u]pon the filing of a petition by a reputable person” (755
ILCS 5/11a-3(a) (West 2006)); that the petition must state the names and post office addresses of
the allegedly disabled person’s nearest relatives, including adult children (755 ILCS 5/11a-8(e)
(West 2006)); and that notice of the proceedings must be given to those persons named in the
petition (755 ILCS 5/11a-10(f) (West 2006)). In addition, section 11a-20 of the Probate Act
expressly provides that “[u]pon the filing of a petition by or on behalf of a disabled person or on
its own motion, the court may terminate the adjudication of disability of the ward, revoke the
letters of guardianship of the estate or person, or both.” 755 ILCS 5/11a-20(a) (West 2006).
Section 11a-20 also explains that such a request for termination of the adjudication of disability,
revocation of letters, or modification may be made “by the ward or any other person on the
ward’s behalf.” 755 ILCS 5/11a-20(b) (West 2006).
Accordingly, under sections 11a-10 and 11a-20 of the Probate Act, James had standing to
challenge the order of guardianship and to petition the circuit court to terminate the adjudication
of Janie’s disability, to revoke the letters of guardianship, or to modify the duties of the guardian.
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See In re Estate of Steinfeld, 158 Ill. 2d 1, 9-10 (1994) (brother of individual adjudicated as a
disabled adult had standing under sections 11a-10 and 11a-20 of the Probate Act to file a motion
to contest the original disability and guardianship order and to appeal from denial of that motion);
see also In re Estate of Hayden, 105 Ill. App. 3d 60, 63 (1982) (grandson of a ward had standing
under section 11a-20 of the Probate Act to petition for the revocation of the original order of
conservatorship).
While James clearly had standing to challenge the original order of guardianship and to
petition for Janie’s restoration and the revocation or modification of the duties of the guardian,
we find that this court lacks jurisdiction to consider James’ appeal from these orders. The record
shows that the circuit court entered an order on May 3, 2006, appointing the Public Guardian as
successor plenary guardian and denying James’ cross-petition for successor guardianship. On
September 13, 2006, the circuit court entered an order denying the petition for restoration or
modification of the adjudication of disability. These orders pertaining to guardianship were
immediately appealable pursuant to Supreme Court Rule 304(b)(1) (210 Ill. 2d R. 304(b)(1)).
However, under Supreme Court Rule 303(a), a party must file an appeal within 30 days after
entry of the final judgment appealed from or within 30 days after the entry of an order disposing
of a timely postjudgment motion directed against the judgment. 210 Ill. 2d R. 303(a).
Supreme Court Rule 303(d) allows this court to grant a party’s motion to amend its notice of
appeal if, within 30 days after the notice of appeal was due, the party files a “motion supported by
a showing of reasonable excuse for failure to file a notice of appeal on time.” 210 Ill. 2d R.
303(d). Here, James filed his notice of appeal on October 20, 2006, more than 30 days after the
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entry of the circuit court’s orders. James did not seek an extension of the 30-day time limit under
Supreme Court Rule 303(d) (210 Ill. 2d R. 303(d)). James’ appeal from the court's orders of
May 3, 2006, and September 13, 2006, was therefore untimely, and we must dismiss it.
We next consider James’ appeal from the circuit court’s orders pertaining to visitation.
While the Public Guardian takes the position that James has standing to appeal orders denying or
restricting visitation with his mother, we find no authority in the Probate Act providing James
with standing to assert a right to visit with Janie and to challenge the guardian’s decisions on this
point.
As previously discussed, Article 11a of the Probate Act provided James with a means to
challenge the original guardianship order and to seek revocation or modification of that order.
However, Article 11a does not contain any provision providing that relatives can request
visitation with the ward or challenge the guardian’s individual decisions regarding visitation or
other matters concerning the ward. 755 ILCS 5/11a-1 through 11a-22 (West 2006).
Accordingly, James lacked standing to assert a right to visit with his mother and to challenge the
guardian’s decisions regarding visitation.
In addition, this court has previously determined that an individual who is not the ward’s
guardian does not have standing to appeal a decision of the circuit court on behalf of the ward.
See In re Guardianship of Austin, 245 Ill. App. 3d 1042, 1047 (1993) (where the office of the
State Guardian was not the guardian for certain wards, it did not have standing to appeal circuit
court orders on behalf of those wards). Therefore, to the extent that James is attempting to
appeal the circuit court’s orders regarding visitation on Janie’s behalf, he does not have standing
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to do so.
To the extent that James argues that the guardian’s decisions are causing harm to Janie,
we note that the circuit court has a duty to protect a ward from such alleged harm. In In re Mark
W., 228 Ill. 2d 365, 374-75 (2008), our supreme court explained that an individual who has been
adjudicated disabled under the Probate Act is viewed as “ ‘a favored person in the eyes of the
law’ ” and is entitled to vigilant protection. Mark W., 228 Ill. 2d at 374-75, quoting In re Estate
of Wellman, 174 Ill. 2d 335, 348 (1996). Our supreme court stated that once a person is
adjudicated disabled, that person remains under the jurisdiction of the court, even when a plenary
guardian of the person has been appointed. Mark W., 228 Ill. App. 3d at 375. The court
therefore has “a duty to judicially interfere and protect the ward if the guardian is about to do
anything that would cause harm.” Mark W., 228 Ill. App. 3d at 375. To fulfill this duty, the
court’s authority is not limited to express statutory terms. Mark W., 228 Ill. App. 3d at 375,
citing In re Estate of Nelson, 250 Ill. App. 3d 282, 287-88 (1993) (recognizing the authority of
the circuit court to appoint a guardian ad litem to investigate an allegation that a ward was
neglected). Our supreme court concluded that, in accordance with these principles, a circuit court
has the authority to appoint a guardian ad litem to protect the interests of a disabled individual
even though that individual already had a plenary guardian of the person. Mark W., 228 Ill. 2d at
375.
Pursuant to Mark W., the circuit court here had a duty to judicially intervene if the
guardian was about to do anything that would cause harm to Jamie. While an individual, such as
James in this case, may alert the circuit court to potential harm and ask the court to intervene, this
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does not confer standing on that individual to challenge the guardian’s decisions. Rather, it is the
circuit court that retains jurisdiction over the ward and is charged with the duty to intervene and
protect the ward from harm stemming from the guardian’s decisions. Mark W., 228 Ill. 2d at
375. Indeed, as previously discussed, if an individual seeks to challenge the decisions of the
guardian, the Probate Act provides standing for the limited purpose of challenging the order of
guardianship (755 ILCS 5/11a-8(e), 10(f) (West 2006)) or to petition the circuit court to
terminate the adjudication of disability, revoke the letters of guardianship, or modify the duties of
the guardian (755 ILCS 5/11a-20 (West 2006)). Upon the filing of a petition under section 11a-
20 of the Probate Act, the circuit court may terminate the guardianship or modify the guardian’s
duties based on “clear and convincing evidence” of the ward’s capacity to perform the tasks
necessary for the care of her person or the management of her estate. 755 ILCS 5/11a-20(a)
(West 2006). As previously explained, James failed to timely appeal the circuit court’s orders
regarding guardianship.
James also asserts a constitutionally protected right to a relationship with his mother as a
basis to request visitation with Janie and to challenge the guardian’s visitation decisions. The
United States Courts of Appeal across the country are split over whether there is a
constitutionally protected right to a relationship between a parent and an adult child. Robertson
v. Hecksel, 420 F.3d 1254, 1259 (11th Cir. 2005) (finding no interest); Russ v. Watts, 414 F.3d
783, 790 (7th Cir. 2005) (overruling its prior position and finding no interest); McCurdy v. Dodd,
352 F.3d 820, 830 (3d Cir. 2003) (finding no interest); Butera v. District of Columbia, 235 F.3d
637, 656 (D.C. Cir. 2001) (finding no interest); Smith v. City of Fontana, 818 F.2d 1411, 1418
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(9th Cir. 1987) (finding an interest); Valdivieso Ortiz v. Burgos, 807 F.2d 6, 10 (1st Cir. 1986)
(finding no interest); Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1189 (10th Cir.
1985) (recognizing an interest where there has been a direct effort to interfere with the
relationship).
The United States Supreme Court has yet to address the issue. However, “[t]he Supreme
Court has ‘always been reluctant to expand the concept of substantive due process because
guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.’ ”
Russ, 414 F.3d at 789, quoting Washington v. Glucksberg, 521 U.S. 702, 720, 138 L. Ed. 2d
772, 787, 117 S. Ct. 2258, 2267 (1997). The Supreme Court has cautioned that courts must “
‘exercise the utmost care’ in extending constitutional protection to an asserted right or liberty
interest because, in doing so, we ‘place the matter outside the arena of public debate and
legislative action.’ ” Russ, 414 F.3d at 789, quoting Glucksberg, 521 U.S. at 720, 138 L. Ed. 2d
at 787, 117 S. Ct. at 2267-68. Consistent with these principles, the majority of courts that have
considered this issue, and all of the more recent cases, decline to find a protected interest. See,
e.g., Russ, 414 F.3d at 790 (Seventh Circuit criticized its prior holding in Bell v. City of
Milwaukee, 746 F.2d 1205 (7th Cir. 1984) and overruled it to find no protected interest).
Accordingly, we decline to find a substantive due process right to a relationship between an adult
child and a parent to provide James standing to request visitation with Janie and to challenge the
guardian’s visitation decisions.
For the above reasons, we dismiss James’ appeal pertaining to the appointment of the
Public Guardian for lack of jurisdiction and we dismiss James’ appeals pertaining to visitation for
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a lack of standing.
Appeal dismissed.
COLEMAN, J., concurs.
THEIS, J., specially concurring.
JUSTICE THEIS, specially concurring:
I agree with the majority’s conclusion that James lacks standing to challenge the visitation
orders. However, I write separately to point out that this court also lacks jurisdiction over those
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orders.
As the majority explained, James filed notices of appeal from three orders entered by the
circuit court. First, he filed a notice of appeal from the circuit court’s May 14, 2007, order
authorizing the Public Guardian to restrict his visitation with Janie. That order specifically
provided that the circuit court would review the restriction on visitation on a later date. That
order is the basis of appeal number 1-07-1865. Second, James filed a notice of appeal from the
circuit court’s June 25, 2007, order denying him visitation with Janie “at this time.” The circuit
court specifically found the order immediately final and appealable. That order is the basis of
appeal number 1-07-1916. Roughly one month later, on August 21, 2007, the circuit court
entered an agreed order permitting James to have supervised visits with Janie. The third and final
order from which James filed a notice of appeal was the circuit court’s January 18, 2008, order
suspending visitation. The order indicated that the circuit court would revisit the issue six months
later. That order is the basis of appeal number 1-08-0700. Each of these three orders from which
James seeks to appeal indicates that the court would, and as the record shows did, revisit the issue
of visitation at a later date.
Generally, appellate jurisdiction exists only to review final orders. Niccum v. Botti,
Marinaccio, DeSalvo & Tameling, Ltd., 182 Ill. 2d 6, 7, 694 N.E.2d 562, 563 (1998); Weiss v.
Waterhouse Securities, Inc., 335 Ill. App. 3d 875, 880, 781 N.E.2d 1105, 1109 (2002). An order
is said to be final if it “ ‘ “disposes of the rights of the parties, either upon the entire controversy
or upon some definite and separate part thereof,” ’ ” such as a claim in a civil case. In re Estate of
French, 166 Ill. 2d 95, 101, 651 N.E.2d 1125, 1128 (1995), quoting Treece v. Shawnee
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Community Unit School District No. 84, 39 Ill. 2d 136, 139, 233 N.E.2d 549, 551 (1968),
quoting Village of Niles v. Szczesny, 13 Ill. 2d 45, 48, 147 N.E.2d 371, 372 (1958). The mere
fact that an order resolves important issues does not render it final. In re Curtis B., 203 Ill. 2d 53,
59, 784 N.E.2d 219, 223 (2002). An order is final for purposes of appeal if it terminates the
litigation between the parties so that, if affirmed, the trial court only has to proceed with the
execution of the judgment. In re Guardianship of J.D., 376 Ill. App. 3d 673, 676, 878 N.E.2d
141, 143 (2007). Thus, a final order finally determines, fixes, and disposes of the issues in the
case as a matter of law. J.D., 376 Ill. App. 3d at 676, 878 N.E.2d at 143.
It is axiomatic that where a matter remains pending, it cannot be said to be final and
appealable. See, e.g., Cannon v. William Chevrolet/Geo, Inc., 341 Ill. App. 3d 674, 680, 794
N.E.2d 843, 848 (2003) (matter not final where a claim remained pending). For example, in In re
Guardianship of J.D., 376 Ill. App. 3d at 677, 878 N.E.2d at 144, this court held that a temporary
order entered in a guardianship proceeding was not a final appealable order. The court explained
that because the order was only temporary and would be reviewed and reevaluated by the circuit
court at a later date, there was no question that it did not “ ‘finally determine, fix and dispose of
the parties’ rights.’ ” J.D., 376 Ill. App. 3d at 677, 878 N.E.2d at 144, quoting Lubben v. Lubben,
135 Ill. App. 3d 302, 305, 481 N.E.2d 856, 858 (1985). Therefore, the temporary order
removing the guardian was not final for purposes of appeal. J.D., 376 Ill. App. 3d at 677, 878
N.E.2d at 144; see also Curtis B., 203 Ill. 2d at 59-60, 784 N.E.2d at 223 (explaining that a
permanency planning goal established in a child abuse and neglect proceeding under the Juvenile
Court Act of 1987 cannot be said to be final because it will be reevaluated by the circuit court
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every six months).
Here, as in J.D., the orders regarding visitation were only temporary. Each of the orders
specified that it would be reviewed at a later time. Therefore, the visitation orders were not final
and appealable. See J.D., 376 Ill. App. 3d at 677, 878 N.E.2d at 144.
I must further note that the circuit court’s finding that the order was “final and appealable”
was insufficient to confer appellate jurisdiction under Supreme Court Rule 304(a) (210 ILL. 2d R.
304(a)). As this court also explained in J.D., the inclusion of a Rule 304(a) finding in an order
does not transform a nonfinal order into a final and appealable one. J.D., 376 Ill. App. 3d at 677,
878 N.E.2d at 144-45. Rule 304(a) language is only applicable to cases involving multiple claims
and/or multiple parties, and in those cases, it can be used to sever a final claim as to one party
from other non-final claims and/or other parties. 210 Ill. 2d R. 304(a); F.H. Prince & Co. v.
Towers Financial Corp., 266 Ill. App. 3d 977, 982-83, 640 N.E.2d 1313, 1316-17 (1994). Rule
304(a) does not affect finality. See F.H. Prince, 266 Ill. App. 3d at 982, 640 N.E.2d at 1316.
The present case does not involve multiple claims or parties, and, as explained above, the
visitation orders were not final. Therefore, the Rule 304(a) finding is completely superfluous.
See J.D., 376 Ill. App. 3d at 677, 878 N.E.2d at 144-45.
In summary, we lack jurisdiction to entertain James’ appeal from the visitation orders, and
this appeal should be dismissed. Accordingly, I specially concur with the majority’s judgment.
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