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In Re Estate of H.B v. Courtney B

November 28, 2012

IN RE ESTATE OF H.B.,
MINOR,
(MARIA B. AND DARRELL B., PETITIONERS-APPELLEES,
v.
COURTNEY B.,
PAULA A. GOMORA, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois Circuit No. 10-P-875 Honorable Judge, Presiding.

The opinion of the court was delivered by: Justice Wright

JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices McDade and O'Brien concurred in the judgment and opinion.

OPINION

¶ 1 Courtney B. (Courtney), mother of the minor H.B., appeals the trial court's order of November 19, 2010, awarding "temporary" guardianship of H.B. to Maria B. (Maria), H.B.'s maternal grandmother, without Courtney's consent, pursuant to the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2010)) (the Probate Act). She also appeals the order of March 2, 2012, granting the maternal grandparents, Maria and Darrell B. (Darrell), joint guardianship of H.B. over Courtney's objection, also under the Probate Act. For the reasons that follow, we reverse the 2010 order, vacate the 2012 order, and remand the case for further findings based on the evidence presented.

¶ 2 FACTS

¶ 3 Courtney B. is the mother of the minor H.B, who was born out of wedlock on April 25, 2005. Mitchell T. is the biological father of H.B., and, according to the record in this case, he exercised his right to visit H.B. every other weekend. Maria and Darrell are H.B.'s maternal grandparents.

¶ 4 On November 16, 2010, Maria filed a petition for guardianship titled "Emergency Petition for the Appointment of Temporary Guardian" (the first petition) pursuant to section 11-8 of the Probate Act. 755 ILCS 5/11-8 (West 2010). The first petition alleged Courtney was incapable of caring for H.B. and requested guardianship of H.B. on a short-term basis. The first petition stated that, in October 2010, Courtney forced H.B. to engage in the "cinnamon challenge" by having H.B., age five at the time, swallow a teaspoon of cinnamon, causing H.B. to gag and vomit. The petition further alleged that this matter was an emergency because, without court intervention, Courtney could remove H.B. from her grandparents' "possession" and "custody." The petition claimed it would be in the "best interest" of H.B. to "protect the minor from her mother."

¶ 5 On the same date, November 16, 2010, Maria and Darrell simultaneously filed a separate joint petition for guardianship (the second petition). The second petition was signed only by Maria and did not refer to the cinnamon challenge, but it generally alleged that the grandparents had "custody" of H.B. The second petition also contended Courtney had a history of mental illness and was abusive and neglectful toward H.B. In addition, the second petition alleged H.B.'s father had inadequate housing and that the environment was unsuitable for H.B. The second petition also claimed the grandparents had been H.B.'s primary caretakers during her life and requested guardianship of H.B. on a more permanent basis.

¶ 6 The grandparents filed a proof of service with the court indicating both the first and second guardianship petitions were mailed to Courtney on November 16, 2010, by regular mail. It is unclear from the record whether Courtney received actual notice of the emergency proceedings scheduled for November 19, 2010. The first order entered on November 19, 2010, indicated notice to Courtney was both "given" and "waived."

¶ 7 On November 19, 2010, the record shows Courtney was not present in court, but Maria was present and represented by counsel. On that date, the court appointed a guardian ad litem (GAL), who was also present in court. The GAL recommended to the court that, based on the video of the cinnamon challenge, "[t]emporary [g]uardianship" of H.B. should be granted to Maria. The court did not receive the sworn testimony of any witness on this date, and the court did not watch the video recording of the cinnamon challenge. Without addressing the issue of standing or the best interest of the minor, the trial court followed the GAL's recommendation and the court awarded "temporary" guardianship to Maria on November 19, 2010.

¶ 8 The first order of guardianship restricted Courtney's contact with her biological daughter to supervised visitation and prohibited Pablo Rivera (Pablo), Courtney's alleged paramour, from having any contact with H.B. The court set the matter for a hearing on the second petition for guardianship to take place two months later, on January 21, 2011.

¶ 9 Five days later, on November 24, 2010, Courtney, appearing pro se, answered both petitions for guardianship in writing. Her answer to the petitions asserted she was both willing and able to provide for H.B., and she denied abusing or neglecting H.B. In addition, Courtney asked the court to immediately return H.B. to Courtney's custody and schedule the hearing on the second petition for joint guardianship in an expedited manner.

¶ 10 On December 1, 2010, after the parties appeared in court, the court denied Courtney's written request for an expedited hearing. The trial court did not set aside the November 19, 2010, order as Courtney requested. The hearing on the second petition for guardianship did not occur on January 21, 2011, as originally scheduled, but began approximately one year later, on September 23, 2011.*fn1

¶ 11 On September 23, 2011, Maria testified before the court for the first time. She testified that she initially had no concerns about Courtney's ability to take care of H.B. from the date of H.B.'s birth in 2005 until approximately September 2006, when Maria would help H.B. get ready for day care in the morning. In May 2007, Courtney took family leave from her job at Argonne National Laboratory for mental health reasons. Thereafter, Courtney married Paul Hodges (Paul) in September 2007. Paul was not the biological father of H.B. According to Maria, Paul approached Maria to express his concern that Courtney was spending too much time online and was not spending her time caring for H.B. Maria indicated that Courtney was hospitalized in 2007 for taking more than 20 Xanax pills, and in 2008 and 2009 for psychiatric problems. Courtney was eventually diagnosed with bipolar disorder.

¶ 12 According to Maria, from early 2008 to early 2010, Courtney, Courtney's maternal aunt and uncle, Vivian Kay Johnson (Kay)*fn2 and George Lawhorn, together with H.B.'s maternal grandparents all shared the responsibility of caring for H.B. During this time frame, Maria described Courtney's home as unclean. When asked why she allowed H.B. to stay with Courtney without first contacting DCFS, Maria replied she did not want "to involve DCFS because we feared that [H.B.] would be taken and put with someone else. And as long as we could manipulate the situation to where that [sic] [H.B.] was safe and with her family, that's what we did."

¶ 13 Maria explained that in April 2010, Courtney executed a form allowing Maria to exercise short-term guardianship of H.B. for educational purposes. This decision allowed H.B. to attend the elementary school in her maternal grandparents' school district. However, Courtney informed Maria that she still wanted to have H.B. whenever she wanted her, and she wanted to be H.B.'s mother.

¶ 14 Courtney and Paul divorced in June 2010. That same month, Courtney moved out of the home she shared with Paul and moved in with Pablo. Courtney showed Maria the video of the cinnamon challenge on October 10, 2010. A month later, on November 16, 2010, Maria filed an "Emergency Petition for the Appointment of Temporary Guardian" under the Probate Act, and both maternal grandparents filed a second, but joint, petition seeking guardianship on a more permanent basis.

¶ 15 According to Maria's testimony, after Courtney received the first court order by mail, Courtney called the police, and requested the police to arrest the grandparents for kidnapping H.B. Maria explained that, instead, the police charged Courtney with child endangerment based on the video of the cinnamon challenge. The police also notified DCFS of the cinnamon challenge. Following an investigation, DCFS made a preliminary finding of abuse or neglect against Courtney.*fn ...

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