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In re A.W.

Court of Appeals of Illinois, Fifth District

August 30, 2013

In re A.W., a Minor Kristen W., Petitioner-Appellant, and Emily R., Respondent-Appellee A.W., Intervening Petitioner-Appellant

Rule 23 order filed July 25, 2013.

Motion to publish granted August 30, 2013.

Appeal from the Circuit Court of Madison County. Nos. 12-P-509, 01-F-443, Honorable David Grounds, Judge, presiding.

Attorneys for Appellants: Margaret J. Walsh, Amanda Bradley Verett.

Attorneys for Appellee: Christine S.P. Kovach, Kovach Law, PC.

JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Goldenhersh and Cates concurred in the judgment and opinion.

OPINION

WEXSTTEN, JUSTICE

¶ 1 The petitioner, Kristen W., and the intervening petitioner, A.W., appeal the circuit court's dismissal of Kristen's petition for guardianship of A.W. and the circuit court's order awarding custody of A.W. to the respondent, Emily R. We reverse and remand.

¶ 3 FACTS

¶ 4 A.W., born on December 11, 2000, is the 12-year-old daughter of James W., who is deceased, and Emily, both of whom were minors when A.W. was born. On January 31, 2001, the circuit court granted a petition for coguardianship of A.W., filed by Rebecca and William Schooley, Emily's mother and stepfather. On November 19, 2002, this guardianship was terminated.

¶ 5 In a March 26, 2008, petition for custody, James asserted that he had, "for years, maintained a stable home for" A.W., that Emily "was and is incapable of and uninterested in full[-]time parenting, " and that Emily had "at all times required the assistance of relatives to maintain even basic care for" A.W. Accordingly, on March 28, 2008, the circuit court transferred physical possession of A.W. to James. Over two years later, on October 14, 2010, the circuit court entered a permanent order for custody, awarding legal and physical custody to James. In its order, the circuit court noted that "[a]s a result of various life circumstances, the physical custody of [A.W.] has not been primarily with" Emily and that A.W. had lived in the custody of James "for a period of time in excess of five years."

¶ 6 On October 3, 2012, James died. He had last resided with A.W. and his wife, Kristen. Prior to his death, he executed a last will and testament, designating Kristen as guardian of the person and estate of A.W. From the time of his death until March 2013, A.W. remained in Kristen's home, and Kristen shared visitation with Emily.

¶ 7 On October 10, 2012, in circuit court case number 12-P-509, Kristen filed a petition for guardianship of A.W. under the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 2012)). In her petition, she alleged that Emily was unable to make or carry out day-today decisions concerning A.W. Kristen asserted that Emily's history demonstrated that she was wholly unfit to care for A.W. and that she had relinquished that responsibility first to her parents, who were awarded guardianship, and then to James, who was awarded custody and with whom A.W. and Kristen lived before he died.

ΒΆ 8 On November 9, 2012, Emily filed a motion to dismiss Kristen's petition for guardianship, arguing that the court lacked jurisdiction to proceed on the petition because Emily was willing and able to carry out day-to-day child-care decisions concerning A.W. Emily attached to her petition an affidavit attesting that she maintained a close and continuing relationship with A.W. and ...


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