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In Re Anaya R., A Minor v. Vanessa M. R

August 31, 2012


Appeal from the Circuit Court of Cook County. No. 11 P 3148 Honorable John P. Callahan, Jr., Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Gordon

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Garcia and Lampkin concurred in the judgment and opinion.


¶ 1 The instant case arises from petitioner Mildred M.'s appeal of the trial court's order denying her petition for visitation with her five-year-old granddaughter, Anaya R. (the child). Mildred is the paternal grandmother of the child, and Vanessa M. R. is the child's mother; the child's father Mauricio, Mildred's son, was deported to Ecuador in 2008. On appeal, Mildred claims that the trial court failed to properly consider the factors listed in section 607(a-5) of the Illinois Marriage and Dissolution of Marriage Act, commonly referred to as the grandparent visitation statute (750 ILCS 5/607(a-5) (West 2010)), and that she presented sufficient evidence to demonstrate that a denial of visitation would harm the child. We affirm.


¶ 3 On May 27, 2011, Mildred filed a petition for guardianship of the child, stating that she was "[t]he person having custody of the minor" and that it was in the child's best interest that a guardian be appointed because "Father is out of the country; Mother is unwilling to care for child." Consequently, Mildred asked that she be appointed guardian of the child's person. On the same day, Mildred's application to sue as an indigent person was granted, and an order for service on Vanessa by publication was entered since Mildred had listed Vanessa's address on the petition as "Unknown." On May 31, 2011, Mildred was appointed temporary guardian of the child.

¶ 4 On June 2, 2011, Judge Kathleen M. McGury issued an order finding: "Misrepresentations were made to Judge [Gregory] O'Brien*fn1 as an inducement for him to enter a Temporary Guardianship on 5/31/11." The order suspended the enforcement of the temporary guardianship order entered on May 31, ordered that the status quo be maintained until the next court date on July 11, 2011, and returned the child to Vanessa until the July 11 court date. On the same day, the court appointed Chicago Volunteer Legal Services (CVLS) as guardian ad litem (GAL) of the child, asking it to conduct an investigation of the child's best interest and to make a recommendation to the court.

¶ 5 On July 12, 2011, Mildred filed a petition for visitation and amended petition for guardianship. In her petition, she stated that she was the paternal grandmother of the child and that she "took care of" Vanessa while she was pregnant, buying her food and taking her to doctors' appointments. She claimed that she had been a consistent part of the child's life since the child was born and provided the child with food, clothing, shelter, and medicine, "even sending these items home with the child to be used for the child's welfare when with [Vanessa]."

Mildred further claimed that she scheduled "substantially all" of the child's doctors' appointments and took her to the majority of them; the child needed to visit a number of specialists for her "many medical issues," including a dermatologist, a respiratory therapist, and an endocrinologist.*fn2

¶ 6 Mildred claimed that "the minor child's mother has only been in the child's life sporadically since birth and when the child was not with [Mildred] the minor child was taken care of by her great grandmother" and that "the minor child's mother has left the minor child in [Mildred's] care for weeks at a time with out [sic] so much as picking up the phone to check on her well being." Mildred also claimed that Vanessa once "looked to be on drugs" when she came to pick up the child and that Vanessa "admittedly drinks heavily."

¶ 7 Mildred also claimed that Vanessa practices the religion of Santeria and that, as a result of her religious practices, Vanessa had refused to give the child medicine on several occasions and had missed doctors' appointments; this refusal to give the child medicine once resulted in a severe urinary tract infection. Mildred further claimed that Vanessa smoked around the child despite the child's asthma and that Vanessa has smoked marijuana with the child present in the room. Mildred claimed that "the minor child was living with [Mildred] from June 2009 up to about 6 weeks ago with the mother visiting sporadically [and] sometimes no visits occurred for several weeks." Mildred also claimed that she had not been permitted to visit the child for six weeks for no reason, which was not in the child's best interest.

¶ 8 Mildred claimed that she had "fulfilled the child's needs as guardian for many years and would like to continue to do so as it is in the best interest of the minor child." Mildred also claimed that Vanessa had threatened her life when she filed for guardianship and that Vanessa had informed Mildred that she wished to kill her (Vanessa's) mother. Mildred further claimed that she had spent all Christmases and birthdays with the child and that she was with the child for her first day of school and other school events. Mildred requested temporary and permanent guardianship of the child, that she be granted reasonable visitation until guardianship is decided, including a Disney trip, and that Vanessa be ordered to undergo drug testing and a psychological evaluation.

¶ 9 On August 17, 2011, the GAL, Robert H. Purcell of CVLS, filed a report with the court. In the report, Purcell stated that his investigation included home visits and interviews with Mildred, Vanessa, the child, Vanessa's boyfriend, and Ana C., the child's maternal great-grandmother. The report noted that Mildred's claims that the child was living with Mildred from June 2009 until approximately June 1, 2011, and that since then, Vanessa had not permitted Mildred to visit the child were "critically important because the Court *** has jurisdiction to make a child custody determination when the proceeding is commenced by a person other than a parent, but only if the minor is not in the physical custody of one of his parents" (emphasis in original), citing section 601 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/601 (West 2010)).

¶ 10 Based on his investigation, Purcell found that Vanessa "jealously guarded her authority to decide who would care for her daughter," and her actions demonstrated that she did not transfer or abandon that authority. Purcell further found that Vanessa "received substantial help with child care, but stayed in control of the process." Additionally, Purcell noted that there was a factual inconsistency between Mildred claiming she had physical custody of the child and asking for visitation because she was not permitted to visit the child. The GAL recommended that the petition for guardianship be denied for want of jurisdiction because Vanessa had physical custody of the child.

¶ 11 In regard to the request for visitation, the GAL stated that Vanessa was worried that Mildred would take action to harm the relationship between Vanessa and the child and worried that Mildred would attempt to take the child from Vanessa's care. The GAL noted that Vanessa recognized that Mildred had been an important part of the child's life and would be in favor of supervised visitation. The GAL found that many of Vanessa's concerns were reasonable and "encourage[d] [Mildred] to seek ways to constructively address them." The GAL recommended that the question of visitation be set for mediation.

¶ 12 On August 17, 2011, the court entered an order withdrawing the petition for guardianship, ordering visitation that was to be supervised by Ana C., and continuing the matter. On the same day, the court entered an order stating that "all parties shall participate in mediation through the Center for Conflict Resolution. Failure to cooperate with the mediation process may lead to dismissal of petition or a finding against the non-cooperating party." The record contains a fax from the Center for Conflict Resolution to the court that stated: "Initiator [Vanessa] did not show up to mediation. Respondent [Mildred] was present at mediation."

¶ 13 On October 3, 2011, Mildred filed a petition for rule to show cause, claiming that Vanessa did not attend mediation and was often late for the supervised visits ordered by the court. Mildred requested an expanded visitation schedule that was no longer supervised and asked for Vanessa to be admonished by the court. On October 18, 2011, the court entered an order stating that the child should receive counseling "as soon as possible," ordering "[n]o visitation at this time," and continuing the matter until November 22, 2011. On November 22, 2011, the court ordered the child to continue in counseling, repeated that there was no visitation, and set the matter for hearing on January 18, 2012.

¶ 14 On the same day, the GAL filed a supplemental report with the court. In reciting the history of the case, the supplemental report noted that "[t]he Mother failed to attend the Mediation appointment. The Mother apologized and explained to the Court her failure to do so." The supplemental report stated that the GAL requested The Chicago School Forensic Center (the Center) to conduct a psychological evaluation of the child "for stress related to the visitations with the paternal grandmother and the conflict between her mother and her paternal grandmother" and also requested the counselor's professional judgment about any need for ongoing counseling.

¶ 15 The report stated that Vanessa acknowledged that Mildred "has been an important part of [the child's] life," but that Vanessa was no longer willing to permit visitation because Mildred " 'over-steps her boundaries[,]' " "undermines the child's relationship" with Vanessa and "tries to take [the child] away" from Vanessa. The report then contained six statements that appear to provide examples of Vanessa's concerns. The first stated that the original petition for guardianship was filed without notice to Vanessa and stated that Vanessa's whereabouts were unknown, which was not true. The second stated that the original petition for guardianship stated that Vanessa was not willing to care for the child, which was not true. The third stated that Mildred made two reports to the Department of Children and Family Services (DCFS), which DCFS determined to be unfounded. The fourth stated that Vanessa "has felt the need to obtain the help of the police to pick up" the child from Mildred. The fifth stated that Vanessa believed that Mildred would tell the child things that were untrue and would be confusing to her, which would undermine the child's relationship with Vanessa. The sixth stated that Vanessa "feels [Mildred] is domineering and controlling. [Vanessa] feels dealing with [Mildred] will continue to cause a great deal of stress that is harmful." The GAL found that Vanessa's concerns were reasonable and, accordingly, Vanessa's denial of visitation was not unreasonable. Therefore, the GAL recommended that the petition for visitation be denied.

¶ 16 On January 18, 2012, the GAL filed a second supplemental report, which stated that the therapist who examined the child "did not reach a Judgment that visitations with her paternal grandmother would be helpful or harmful to the [child], nor would the lack of visitation be helpful or harmful." The report further stated that the Center recommended ongoing therapy for the child, and attached the report issued by the Center. The one-page report from the Center was signed by Kathleen Menges, "Therapist," and Laurie Benton, PsyD, "Supervisor." It stated that the child and Vanessa had attended therapy sessions beginning on November 15, 2011, and that they had attended all scheduled sessions. The report concluded, "At this time, it is recommended that [they] continue."

¶ 17 On January 18, 2012, the court held a hearing concerning Mildred's petition for visitation.*fn3 Twelve witnesses testified on Mildred's behalf and two testified on Vanessa's behalf. The first witness to testify on Mildred's behalf was Catherine Evans, an employee of the Guardianship Assistance Desk for Minors in Cook County, who testified that she assisted Mildred with filing her petition for guardianship, that Mildred was unaware of the whereabouts of Vanessa, and that Mildred had listed Vanessa's address as unknown on the petition.

¶ 18 The next witness to testify on Mildred's behalf was Gladys B.,*fn4 who testified that she was a teacher at Casa Central daycare, which the child attended. Gladys testified that in order to enroll the child in daycare, Gladys was required to visit the child at her home address. Gladys testified that the address on file at the daycare center was Mildred's address and that she visited the child at that address on three occasions; Vanessa was present for two of the visits. Gladys testified that both Vanessa and Mildred dropped off and picked up the child from daycare, but that "most of the time," Mildred did so. Gladys further testified that Mildred accompanied the child on field trips, attended parent meetings, and was the only person present on the child's behalf at the child's graduation from daycare.

¶ 19 Five of Mildred's friends also testified on her behalf. Leidy A.*fn5 testified that she had a child who attended the daycare with Vanessa's child and that the two children were friends. Leidy further testified that she observed Mildred picking up the child from daycare every day and that she and Mildred would make plans for the children to spend time together, including going to the movies, McDonald's, and Chuck E. Cheese. Leidy also testified that the children would often have "sleepovers" at Mildred's home.

¶ 20 Josefa V. testified that she observed Mildred with the child "a lot" and that Mildred would usually bring the child when she visited Josefa. Josefa also testified that when Mildred visited Josefa with the child, the child would watch television and draw.

ΒΆ 21 Elizabeth C. testified that the child was always present at Mildred's home when Elizabeth visited and that the child had her own bedroom in Mildred's home. Elizabeth also testified that sometimes Mildred and the child would come to ...

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