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12/26/96 ESTATE ANTHONY TERRELL WEBB v. MARGARET

December 26, 1996

IN RE ESTATE OF ANTHONY TERRELL WEBB, LISA WEBB, AND BALLARD LAMAR WEBB, (ROSE CARTER A/K/A ROSE CARTER WEBB), PETITIONER-APPELLANT,
v.
MARGARET WEBB, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable George W. Cole, Judge Presiding.

Released for Publication February 13, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Tully, P.j., and Greiman, J., concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Petitioner, Rose Carter, also known as Rose Carter Webb, appeals from a judgment in favor of respondent, Margaret Webb, in petitioner's action to terminate respondent's guardianship of petitioner's minor children Anthony Terrell Webb and Ballard Lamar Webb. Margaret Webb is the grandmother of the minor children.

I. Facts

On June 9, 1986, respondent, Margaret Webb, filed a petition in the probate division of the circuit court of Cook County seeking to be appointed guardian of the minor children of petitioner, Rose Carter, and Lamar Webb, who was respondent's son: Anthony Terrell Webb, who was born October 23, 1983; Lisa Rose Webb, who was born on November 26, 1984; and Ballard Lamar Webb, who was born on January 7, 1986. The petition alleged that the children and petitioner lived with respondent and that respondent needed guardianship in order to receive additional public assistance and medical care and to enroll the children in school.

Petitioner and the children's father consented to the appointment of respondent as guardian of the person of the minors, which was ordered by the court on June 9, 1986.

On March 3, 1989, petitioner petitioned to discharge respondent as guardian. The petition to discharge was granted on December 4, 1990, only with respect to Lisa. Seven years after the appointment, on June 1, 1993, petitioner filed a second petition to discharge the guardian. The petition was amended on November 3, 1994.

Petitioner submitted a brief to the trial court in which she argued that the court should make a ruling at the outset that the burden of proof was on respondent to rebut a presumption that it was in the children's best interests to be in the custody of their mother. The trial court refused and instead ruled that "the burden of proof and to proceed first regarding the best interests of the children" was on petitioner, the mother.

On May 12, 1995, after a hearing, the trial court denied the petition to discharge respondent as guardian. The trial court found that it was in the best interest and welfare of the children to have the guardianship continue with Margaret Webb.

II. Discussion

Petitioner argues on appeal that the trial court erred in placing the burden of proof on her and in not placing the burden of proof on respondent to overturn the presumption that the natural parent has superior rights over third parties to her children.

Section 23--2 of the Probate Act of 1975 (the Probate Act) provides for several causes for which a court may remove a guardian, including good cause. 755 ILCS 5/23--2(a)(10) (West 1994). The Act does not ...


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