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In Re the Guardianship Estate of Tatyanna T., A Minor v. Francine Barnes

August 10, 2012

IN RE THE GUARDIANSHIP ESTATE OF TATYANNA T., A MINOR
(CARY THOMAS AND FRANCES THOMAS, )
PETITIONERS-APPELLANTS,
v.
FRANCINE BARNES, RESPONDENT-APPELLEE).



Appeal from the Circuit Court of Cook County, Probate Division No. 08 CH 7870 Honorable Kathleen H. McGury, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

JUSTICE McBRIDE delivered the judgment of the court.

Presiding Justice Epstein and Justice Howse concurred in the judgment and opinion.

OPINION

¶ 1 Pursuant to an oral agreement between the parties, petitioners Cary Thomas and her daughter, Frances Thomas, cared for Tatyanna T., respondent's biological daughter, in their home from the time Tatyanna was born until she was seven years old, at which point she began living with respondent. Petitioners thereafter filed a petition for guardianship over Tatyanna, arguing that respondent had voluntarily relinquished custody of Tatyanna to them. Respondent filed a motion to dismiss that petition, which the trial court granted. This appeal followed

¶ 2 I. BACKGROUND

¶ 3 On January 14, 2011, petitioners filed a petition for guardianship over Tatyanna. That petition indicated that Tatyanna was born on July 10, 2003 to Tatyanna's biological mother, respondent, and an unknown father. Two days after her birth, Tatyanna's mother gave Tatyanna to petitioners, who raised her in their home for approximately seven years. On November 19, 2010, respondent requested that petitioners return Tatyanna to her, which they did. Petitioners argued that because respondent had minimal contact with Tatyanna during her time living with them, and because Tatyanna was unhappy living with respondent, it was in the best interest of Tatyanna that they be appointed her plenary guardians.

¶ 4 On February 9, 2011, respondent filed a pro se response to the petition. In that response, respondent alleged that she had entered into a verbal agreement with Cary following Tatyanna's birth, pursuant to which Cary "would help [respondent] take care of Tatyanna Thomas till [sic] [she] got on [her] feet." Her response further indicated that Tatyanna was currently living with respondent, and that it was in Tatyanna's best interest that respondent remain plenary guardian of her. Her response also indicated that Tatyanna was "ok and happy" and "comfortable" living with respondent, as well as respondent's mother and other daughter, Tatyanna's sister. Respondent acknowledged that petitioners provided financial support and education to Tatyanna for most of her life and that Tatyanna remained in contact with petitioners while living in her home.

¶ 5 On May 24, 2011, petitioners moved for temporary custody of Tatyanna, which the trial court denied. The court further granted respondent a continuance to obtain counsel, which she did.

¶ 6 On September 12, 2011, through the aid of counsel, respondent filed a motion to dismiss the petition for guardianship, arguing that because she was willing and able to care for Tatyanna, because she never relinquished custody, and because she remained involved in Tatyanna's life, the trial court lacked jurisdiction to entertain petitioners' request to become Tatyanna's plenary guardian.

¶ 7 On September 12, 2011, evidence was presented and oral arguments were heard on respondent's motion. Respondent testified first on her own behalf. She acknowledged that she was 16 when Tatyanna was born and that she entered into a verbal agreement with Cary, her brother's stepmother, under which Cary "would help [respondent] until [she] was able to become an old enough person to take care of [Tatyanna] and get [herself] together as far as getting a high school diploma and finishing school, which [she] did." Respondent stated that Tatyanna had lived with petitioners since shortly after she was born, but that she would see Tatyanna on holidays, birthdays, "get-togethers," and "every weekend." Respondent also testified that Tatyanna would stay with her every other summer for two or three weeks at a time.

¶ 8 Respondent next called Frances. Frances testified that respondent gave Tatyanna to Frances and Cary once respondent and her daughter were released from the hospital. Frances indicated that at that time, she was worried that respondent was going to "come back for [Tatyanna] later." Frances also said that she and Cary had wanted to become guardians over Tatyanna but despite their requests, respondent refused to sign papers granting them guardianship of Tatyanna on several occasions. Frances admitted that on several occasions, she took Tatyanna to respondent's home.

¶ 9 Respondent called Cary as her last witness. Cary testified that she began caring for Tatyanna soon after her birth. She stated that respondent did not see Tatyanna "very often," and that she and her Frances took Tatyanna to most of her doctor's appointments, but admitted that respondent also took her "a few times." Cary testified that respondent would not see Tatyanna every year and that respondent saw Tatyanna approximately six times in 2003, three times in 2004, and four times in 2005. Overall, she stated, Tatyanna stayed with respondent for approximately eight weekends during the seven years Tatyanna lived with Cary and Frances.

ΒΆ 10 Following Cary's testimony, petitioners moved for the appointment of a guardian ad litem due to the significant factual differences in the testimony between respondent and petitioners. The trial court denied that motion, concluding that the hearing was limited to respondent's motion to dismiss the petition, and the appointment of a guardian ad litem was inappropriate because the only issue ...


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