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In Re A.M., A.M. and A.M v. D.M

March 20, 2013

IN RE A.M., A.M. AND A.M.,

Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Circuit Nos. 11-P-326 11-P-376 11-P-377 11-OP-212 Honorable Kevin Lyons, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and Lytton concurred in the judgment and opinion.


¶ 1 The petitioner, A.L., petitioned for guardianship of the three minor children, Ad. M., Al.

M. and Ab. M., in the circuit court of Tazewell County. Respondent moved to dismiss the petition on the basis that she was willing and able to properly care for her children. The trial court denied the motion. Following a hearing, the trial court found that petitioner had rebutted the presumption that respondent, D.M., was a parent willing and able to make day-to-day child care decisions concerning the minors, and that it was in the minors' best interests that petitioner be awarded guardianship.

¶ 2 Respondent appeals, claiming, inter alia, that the trial court lacked jurisdiction to proceed on the merits of the guardianship petition under section 11-5(b) of the Probate Act of 1975 (the Probate Act) (755 ILCS 5/11-5(b) (West 2010)). We agree and reverse.


¶ 4 Following the termination of the biological mother's parental rights, respondent, the biological maternal grandmother, adopted Ad. M. (Dree), Al. M. (Lexi), and Ab. M. (Abi). Petitioner is the adoptive sister and biological maternal aunt of the minor children.

¶ 5 Dree, the oldest child, began showing symptoms of mental illness at a very young age. Dree's first psychiatric hospitalization occurred in January of 2006 after she experienced hallucinations. Following that hospitalization, Dree was evaluated by Children's Home Association of Illinois (Children's Home) and began counseling services. She continues to have regular follow-up visits with a psychiatrist.

¶ 6 Respondent explained that when Dree's mental health deteriorates, she becomes depressed and refuses to go into her bedroom by herself. She will not sleep by herself, she refuses to bathe, and has outbursts of rage directed at all of the family members. Dree has attacked her younger sisters and torn up the house on more than one occasion. According to respondent, a number of these outbursts occurred after she told Dree that she could not do something; Dree would "never take no as an answer." When the outbursts were severe, emergency response services were called and often resulted in Dree being psychiatrically hospitalized.

¶ 7 In the spring of 2008, Dree was admitted to the Larkin Center, a residential treatment center for children. She returned home in August 2009 and did well with the help of community support services from Children's Home. In February 2011, Dree was hospitalized after respondent found her in the bathtub with a hose around her neck. Dree was hospitalized again in March 2011, following an outburst in respondent's vehicle. All three girls were in the vehicle at the time. Dree and respondent began arguing. Dree became upset, grabbed the steering wheel and attacked everyone in the vehicle. Respondent was forced to pull the car over into a grocery store parking lot and called the police. At that point, Dree began banging her head on the dashboard of the car and screaming. By the time police arrived on the scene, Dree was calm enough to be transported by respondent to the local hospital. Children's Home evaluated her at the hospital. Dree was later admitted to Streamwood Behavioral Health Center, a children's psychiatric hospital.

¶ 8 While at Streamwood, respondent and Children's Home workers discussed placement for Dree at Cunningham Children's Home in Urbana, Illinois. Initially, Dree seemed fine with the idea of placement, but following a phone call with petitioner, she became agitated and upset. Dree began kicking the walls and "threw a fit." As a result, respondent restricted phone calls while Dree was still at Streamwood so as not to undo any of the progress the doctors and counselors were making with her. Thereafter, Dree was scheduled to go to Cunningham on March 30, 2011.

¶ 9 On March 28, 2011, just days prior to Dree's scheduled admission into Cunningham, petitioner filed a verified petition for order of protection seeking emergency relief. The petition alleged, among other things, that respondent's home was cluttered, there was evidence of feces in the bathroom, there was cat litter and food on the floor, and Abi's bed smelled of urine. The petition further alleged that the girls' hygiene needs were not appropriately tended to, and that respondent was unable to physically, mentally and financially care for the three girls. The emergency order of protection was granted ex parte on the same day, and petitioner received physical care of the minor children. Dree was discharged from Streamwood into petitioner's care and was not admitted to Cunningham Children's Home as previously scheduled.

¶ 10 Following an extension of the emergency order of protection, a guardian ad litem was appointed to the case, the parties agreed to participate in family counseling, and respondent was granted visitation with the girls. Petitioner then filed a petition for temporary and permanent guardianship of the minor children. The emergency order was subsequently extended at least five additional times.

¶ 11 At the outset of the trial, respondent's attorney filed a motion to dismiss petitioner's petition for guardianship, arguing that before the court could proceed with a determination on the guardianship petition, it had to determine whether respondent was willing and able to carry out decision-making responsibilities for the minor children. The court, without conducting an evidentiary hearing, denied the motion to dismiss and proceeded on the hearing to establish guardianship.

¶ 12 Respondent was called as an adverse witness by petitioner's attorney. Respondent testified that her monthly income was $2,113-$674 in social security disability benefits and a $1,439 monthly adoption subsidy. The subsidy is provided by the Illinois Department of Children and Family Services (DCFS) because the children's biological parents rights were terminated pursuant to a child welfare investigation.

¶ 13 Respondent suffers from diabetes and tubular aggregates myopathy, as well as blockages in her heart that required the insertion of four stints. She testified that these conditions are under control with medication, that her heart is strong and she is in good health. While her muscle condition limits her at times, it does not cripple her. On cross-examination by the guardian ad litem, respondent testified that she was in good health, but stated she was on disability for her various conditions. Respondent could not articulate a way in which her day-to-day activities were hindered by her muscle condition, other than the fact that it at times makes her restless and she needs her sleep to have a good day the following day.

¶ 14 The three girls resided with respondent in a rented three bedroom home prior to their placement with petitioner. There were allegations relating to the cleanliness of respondent's home. Respondent testified that her home was clean and free of rodents and bugs. While she did have some clothes that were stored in the home, she stated they were neatly folded and in piles. DCFS did investigate respondent based on the allegations alleged in petitioner's original order of protection, but found such allegations unfounded.

¶ 15 The guardian ad litem indicated that she visited respondent's home in May of 2011, stating that while it was cluttered, she "didn't see anything terribly wrong." The guardian ad litem qualified this statement, however, by indicating that she did not do a walk through of the entire house-she walked through the front door, sat at the kitchen table, and saw the living room and kitchen areas. She also testified that this initial visit was originally to be a surprise visit, but that respondent's attorney would not allow it. She also stated that the garage was "absolutely filled to the gills." This report from the guardian ad litem was made verbally on the record at the conclusion of the proceedings. The written guardian ad litem report, if one exists, was not included in the record on appeal.

ΒΆ 16 Due to Dree's significant mental health issues, which include a diagnosis of bipolar disorder and oppositional defiance disorder, a number of different healthcare and social workers were assigned to this case. Amy Dennison, a social worker employed by Children's Home, worked with Dree for more than two years as a therapeutic stabilization worker. Amy was in respondent's ...

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