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In re Guardianship of Jordan M. C.-M.

August 11, 2004

IN RE: THE GUARDIANSHIP OF JORDAN M. C.-M., A MINOR,
CATHERINE MARSH, PETITIONER-APPELLANT,
v.
IRENE CULLERS, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Sangamon County. No. 00P637. Honorable Dennis L. Schwartz, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

PUBLISHED

Petitioner, Catherine Marsh, appeals from the trial court's denial of her motion to vacate guardianship and to dismiss a January 1, 2002, order that she contends granted respondent, Irene Cullers, Marsh's adoptive mother, custody over the minor child, Jordan M. C.-M. Marsh argues (1) the court erred as a matter of law in denying her motion to dismiss because the order was entered without proper pleading and notice to her; (2) Cullers lacked standing to seek custody of Jordan; (3) the court erred as a matter of law by stating that Marsh bears the burden of proving her fitness; and (4) the court erred in determining that Marsh's fitness and the best interests of the child would be decided simultaneously. We affirm.

I. BACKGROUND

On March 15, 2000, Marsh gave birth to Jordan. At the time of Jordan's birth, he and Marsh resided with Cullers. Sometime later, Marsh and Jordan moved in with Mark Allen Nelson, Jordan's putative father.

On September 28, 2000, Cullers filed a petition for guardianship of Jordan. Shortly after filing this petition, Cullers filed a petition for temporary guardianship over Marsh. The date of this petition is not available in the record. Marsh and Jordan then moved back in with Cullers. Marsh consented to the guardianships. On November 15, 2000, the trial court entered two guardianship orders. The first was an agreed order appointing Cullers as temporary disabled adult guardian for the estate and person of Marsh for reason of her manic-depressive disorder. The second order (guardianship order) appointed Cullers as guardian over the estate and person of Jordan. The letters of the office also filed that day stated that "[Cullers] [had] been appointed plenary guardian of the estate and person of [Jordan], a minor, and [was] authorized to have under the direction of the court *** the custody of the ward, and to do all acts required of her by law."

On November 30, 2000, Nelson filed a petition to revoke Cullers' guardianship over Jordan. On January 25, 2001, the trial court entered an order allowing Cullers to voluntarily withdraw her petition for temporary guardianship over Marsh and revoked the guardianship. The court issued a second order in Jordan's case that denied Nelson's petition to revoke Cullers' guardianship over Jordan, revoked Cullers' temporary guardianship over Marsh, and granted Nelson supervised visitation with Jordan upon proof of paternity. Marsh and Jordan continued to reside with Cullers.

On February 2, 2001, Nelson filed a second petition to revoke guardianship. On March 7, 2001, Nelson failed to appear at the hearing on the petition and the trial court denied the petition to revoke.

On January 22, 2002, the trial court amended the guardianship order (amended order) and added the language that Cullers "shall be recognized as the custodial caregiver of the minor." No motion was filed seeking custody, and Marsh received neither notice seeking the entry of the order nor proof of service showing that the order was served on her. Sometime thereafter, Cullers and her husband separated. Marsh continued to live with her father, Cullers' husband, while Cullers moved with Jordan to another residence.

On March 1, 2002, Marsh filed a petition to revoke guardianship. On May 23, 2002, the court appointed Allen Oehlert guardian ad litem for Jordan. On November 6, 2003, Marsh filed a motion to dismiss pursuant to sections 2-619(a)(1) and (a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(1), (a)(9) (West 2002)) to vacate Cullers' guardianship and the amended order. On January 28, 2004, the trial court denied Marsh's motion. During the hearing, the trial judge stated that Marsh bears the burden of proof in proceedings relating to Jordan's custody, including her own fitness. To facilitate this appeal, Marsh then withdrew her petition to revoke guardianship. This appeal followed.

II. ANALYSIS

Initially, we grant Marsh's motion to supplement the record on review with the November 15, 2000, order granting Cullers temporary guardianship over the estate and person of Marsh.

Marsh argues that the January 2002 amended order granted Cullers custody of Jordan and that it was obtained without a petition seeking to modify the guardianship being filed, without written consent or stipulation, and without notice to her. To aid in our review of this case, we ...


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