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Robinson v. Reif

Court of Appeals of Illinois, Fourth District

November 24, 2014

PAUL W. ROBINSON and LINETTE R. ROBINSON, Plaintiffs-Appellees,
v.
ANDREW REIF, Defendant-Appellant

Appeal from Circuit Court of Macon County. No. 11F427. Honorable James R. Coryell, Judge Presiding.

Affirmed.

SYLLABUS

In proceedings under the grandparent visitation statute arising from the death of the mother of two children and the severe injury of their father in an automobile accident and the father's 18-month rehabilitation while the children lived with plaintiffs, the children's maternal grandparents, the trial court's decision granting plaintiffs visitation was affirmed, since plaintiffs raised the children during their father's rehabilitation, and even though the subsequent contentious court battle to retain custody soured the relationship between plaintiffs and the children's father and his new wife and confused the children, the evidence supported the trial court's finding that plaintiffs demonstrated that the children's mental, physical, or emotional health was harmed by their father's actions and decisions as to visitation times and that any harm that might result from regular visitation with plaintiffs was overcome by the harm that would result from terminating the bond that was created while the children lived with plaintiffs.

Andrew D. Bourey, of Bourey Law Offices, of Decatur, for appellant.

Michael K. Goldberg and Elizabeth E. Stubbins, both of Goldberg Law Group, LLC, of Chicago, for appellees.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Turner concurred in the judgment and opinion.

OPINION

Page 788

STEIGMANN, JUSTICE

[¶1] In March 2010, a car accident killed 22-year-old Casey Robinson-Reif and left her husband, defendant, Andrew Reif, severely injured and in need of prolonged hospitalization and rehabilitation. For 18 months thereafter, the couple's minor children, G.R. (born October 10, 2007) and E.R. (born August 5, 2009), lived with their maternal grandparents, Paul W. Robinson and Linette R. Robinson (collectively, plaintiffs). In August 2011, defendant--now recovered and remarried--successfully regained custody of his children after a contentious court battle. Defendant and his new wife moved with the children to New Mexico, cutting off all contact with plaintiffs.

[¶2] In September 2011, plaintiffs filed a verified petition for permanent and temporary grandparent visitation pursuant to section 607(a-5) of the Illinois Marriage and Dissolution of Marriage Act (commonly known as the grandparent visitation

Page 789

statute) (750 ILCS 5/607(a-5) (West 2010)). In March 2014, following a November 2013 hearing, the trial court granted plaintiffs' petition and set a visitation schedule.

[¶3] Defendant appeals, arguing that (1) plaintiffs lacked standing under section 607(a-5)(1) of the Act (750 ILCS 5/607(a-5)(1) (West 2010)) because defendant did not unreasonably deny visitation and (2) the trial court's judgment was against the manifest weight of the evidence because plaintiffs failed to rebut the statutory presumption that defendant's actions and decisions regarding grandparent visitation were not harmful to the children's mental, physical, or emotional health. We disagree and affirm.

[¶4] I. BACKGROUND

[¶5] The following facts were gleaned from the parties' pleadings and other supporting documents filed with the trial court, as well as the evidence presented at the November 2013 hearing on plaintiffs' petition.

[¶6] A. Events Preceding Plaintiffs' Petition

[¶7] In December 2006, defendant and Casey married in Decatur. In February 2007, Casey moved to El Paso, Texas, to live with defendant, who was stationed at the Army base at Fort Bliss. G.R. and E.R. were both born on the base. In March 2010, the family decided that Casey and the two children would move back to Illinois. During the drive to Illinois, the family's car--driven by defendant--was involved in a rollover accident, which resulted in Casey's death and severe injuries to defendant. The children, who were uninjured, lived the next 18 months with plaintiffs in Decatur while defendant recovered. After defendant recovered and remarried, plaintiffs sought to keep custody of the children. The court battle for custody, which defendant ultimately won, caused seemingly irreparable damage to plaintiffs' relationship with defendant. Once defendant settled in New Mexico with his new wife and the children, he ignored plaintiffs' repeated attempts to contact him, eventually changing his phone number.

[¶8] B. Plaintiffs' September 2011 Petition

[¶9] In September 2011, plaintiffs filed their petition for grandparent visitation pursuant to section 607(a-5) of the Act, seeking a permanent visitation order. The petition alleged, in pertinent part, that (1) defendant cut off contact with plaintiffs and unreasonably denied plaintiffs visitation with the children; (2) the children developed significant mental and emotional bonds with plaintiffs; (3) defendant's termination of plaintiffs' relationship with the children was not in good faith; and (4) the termination of plaintiffs' relationship with the children had caused, and will continue to cause, the children to suffer mentally and emotionally. Plaintiffs' petition set forth 25 specific factual allegations to illustrate the bonds that had formed between plaintiffs and the children. (For example, plaintiffs alleged that " [t]he minor children enjoyed riding their bikes and planting flowers with [plaintiffs,]" and " [E.R.] sometimes called Grandmother, 'Mommy.'" )

[¶10] While plaintiffs' petition was pending, the trial court allowed (1) weekly phone calls between plaintiffs and the children, (2) three personal visits in the Texas/New Mexico area, and (3) one personal visit in Decatur, which required plaintiffs to make two round-trip flights to El Paso to retrieve and drop off the children.

[¶11] C. The November 2013 Hearing on Plaintiffs' Petition

[¶12] In November 2013, after more than two years of continuances, the trial court

Page 790

held a hearing on plaintiffs' petition, at which the parties presented the following evidence.

[¶13] 1. Plaintiffs' Evidence

[¶14] a. Linette's Testimony

[¶15] Linette (born August 1969) testified that she and Paul (born June 1971) had been married for 20 years. Linette is employed as a clinical pharmacy technician and Paul is a trucking supervisor for Archer Daniels Midland Company. Prior to Casey's death, plaintiffs were very close with defendant and the children. The parties would visit each other in El Paso and Decatur and make regular phone calls on holidays and birthdays.

[¶16] At 4:45 a.m. on March 12, 2010, police called plaintiffs' home to inform them that defendant, Casey, and the children had been in a rollover accident on Interstate 40 near Tucumcari, New Mexico. After plaintiffs pleaded for more information, the officer revealed that Casey had died. The children were fine, but defendant had been airlifted in critical condition to Amarillo, Texas, and the local authorities would be placing the children in foster care for the time being. Within a half hour, plaintiffs were on the road making the 15-hour drive from Decatur to Amarillo to retrieve the children. Plaintiffs spent three days in Texas before returning to Decatur. During that time, they visited defendant in the hospital and purchased baby formula for E.R., who had until then been nursing from Casey.

[¶17] Defendant suffered serious brain injuries in the accident, which required him to be placed in a medically induced coma for two weeks. For the next several months, while defendant was hospitalized in Amarillo and Chicago, G.R. would regularly ask plaintiffs where his mother was. Plaintiffs would explain that she had gone to heaven and that they missed her too. Plaintiffs traveled with the children to the hospital in Amarillo to visit defendant for Easter, then to the hospital in Chicago several times to visit defendant while he was in rehabilitation. Following his hospitalization in Chicago, defendant spent May and June living in plaintiffs' home. At the end of June, the Army recalled defendant to Fort Bliss. According to Linette, defendant wanted the children to remain in Decatur with plaintiffs because plaintiffs " were doing a great job with [the children] and [defendant] felt comfortable to leave them."

[¶18] Plaintiffs assumed complete care and parenting responsibilities for the children during the 18 months following the car accident. This included feeding, toilet training, arranging day care, throwing birthday parties, traveling to visit extended family, and taking the children to activities such as pottery classes, festivals, children's museums, and the zoo.

[¶19] When defendant was living with plaintiffs during his recovery, he contributed little to basic parenting duties, such as changing diapers or feeding the children. Linette stated that defendant would " come and go all hours of the day and night," and " he didn't interact with [the children] a whole lot." In late 2010 and the early months of 2011, after defendant had returned to Fort Bliss, Linette noticed a change in defendant's mood. Specifically, defendant became " threatening" to plaintiffs and showed signs of depression, hallucinations, forgetfulness, and suicidal thoughts. (Linette gleaned much of this information from defendant's Facebook page.) In late January 2011, defendant told plaintiffs that he was in a relationship and he intended to take the children with him to Texas. Linette told defendant, who was living in the Fort Bliss barracks at the time, that she was not comfortable giving the children to him.

Page 791

[¶20] In February 2011, defendant married his second wife, Tiffany. Shortly thereafter, plaintiffs filed for an emergency order of protection against defendant, which the trial court granted. However, plaintiffs soon dropped the emergency order of protection and instead filed a renewed petition for temporary guardianship, which the court also granted. (The record before us does not contain any pleadings or other court documents from the proceedings on the emergency order of protection or the petitions for temporary guardianship.)

[¶21] After the trial court granted plaintiffs' renewed petition for temporary guardianship in March 2011, the litigation over custody of the children continued, with plaintiffs taking the position that defendant was not competent to care for the children. In August 2011, after defendant took a court-ordered mental evaluation, the trial court returned the children to defendant's custody. Linette testified that the children were upset and crying when they learned that they would be returned to defendant. After defendant took custody of the children, all his communication with plaintiffs ceased.

[¶22] At the four visits during the pendency of plaintiffs' petition for grandparent visitation, the children were very excited to see plaintiffs. During the Decatur visit in May 2012, defendant's parents (who also lived in Decatur) came to plaintiffs' home to visit with the children. The children slept in their old bedrooms, which plaintiffs had preserved for them. The children were upset when it came time to return to El Paso.

[¶23] At the conclusion of Linette's testimony, the trial court admitted several pages of photos showing the children interacting with plaintiffs. (The photos, which appear to have been taken between G.R.'s infancy and the May 2012 visit, generally show the children appearing happy and content.)

[¶24] b. Mary McMillan's Testimony

[¶25] Mary McMillan, who had been best friends with Casey, visited plaintiffs' home almost daily after Casey's death. McMillan testified that during the 18 months following Casey's death, " [plaintiffs] were, for all intents and purposes, the parents." The children were very close with plaintiffs, and they would run to the window whenever they saw Linette or Paul arrive home. According to McMillan, when the children visited plaintiffs' home in May 2012 after being away since August 2011, " they loved being there. It was as if they never left." McMillan never heard plaintiffs talk poorly about defendant in front of the children.

[¶26] c. Shirley Cooper's Testimony

[¶27] Shirley Cooper, Linette's mother, was present for the August 2011 transfer of the children from plaintiffs' custody to defendant's custody. Both children were crying and screaming as defendant and Tiffany strapped them into their car seats.

[¶28] d. Defendant's Testimony

[¶29] Defendant, testifying as an adverse witness, stated that he was 26 years old and lived in Las Cruces, New Mexico. Defendant acknowledged that plaintiffs and the children love each other. However, when asked if he would allow plaintiffs to visit the children if they dismissed their petition for grandparent visitation, defendant stated, " we're in court right now, so I can't answer that question. I have no idea."

[¶30] On cross-examination by his own counsel, defendant testified that in August 2011, after he regained custody of the children, he sent an e-mail to plaintiffs informing them that he had changed his phone number and was discontinuing all contact

Page 792

between his family and plaintiffs " for the time being."

[¶31] Defendant also noted that when he and Tiffany retrieved the children after the December 2011 visit, G.R. was wearing a diaper, despite being completely toilet trained. Following that visitation, G.R. began having nightmares and wetting the bed. G.R. would also become scared and have nightmares after the weekly phone calls with plaintiffs. Before the children visited plaintiffs, defendant would attempt to " hype up" the children and get them ...


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