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Young v. Herman

Court of Appeals of Illinois, Fourth District

January 3, 2018

CRYSTAL YOUNG and MICHAEL YOUNG, Petitioners-Appellees,
KOURTNEY HERMAN and DAVID HERRON, Respondents (Kourtney Herman, Respondent-Appellant).

         Appeal from Circuit Court of McLean County No. 15F370 Honorable William A. Yoder, Judge Presiding.

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



         ¶ 1 In December 2015, petitioners, Crystal Young and her husband Michael Young, filed a "petition to establish custody" of Crystal's granddaughter, J.H. (born November 20, 2006), pursuant to section 601 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/601 (West 2014) (recodified as amended by Pub. Act 99-90 (eff. Jan. 1, 2016) at 750 ILCS 5/601.2). In their petition, the Youngs alleged that they had cared for and made decisions on behalf of J.H. since she was an infant, in cooperation with J.H.'s mother, respondent Kourtney Herman. Kourtney claimed that the Youngs lacked standing to bring their petition and that it was not in J.H.'s best interests for the Youngs to have custody.

         ¶ 2 Over a series of hearings in July, August, September, and October 2016, the trial court heard evidence. In October 2016, the court determined that the Youngs had standing and that it was in J.H.'s best interests to award the Youngs primary parental decision-making responsibility for J.H. This appeal followed.

         ¶ 3 I. BACKGROUND

         ¶ 4 A. The Youngs' Petition to Establish Custody

         ¶ 5 In December 2015, the Youngs filed a petition to establish custody of J.H. pursuant to section 601 of the Dissolution Act (750 ILCS 5/601 (West 2014)). The petition alleged that Crystal was J.H.'s paternal grandmother and that Michael was her husband. The Youngs claimed that J.H. had been in their "physical care, custody, and control" since she was two months old. The Youngs further claimed that J.H.'s mother, Kourtney, had recently removed J.H. from the Youngs' care. The Youngs argued that it was in J.H.'s best interests that the trial court award them custody of J.H. The Youngs requested that the court (1) award the Youngs the "primary care, control and education of [J.H.]" and (2) adjudicate parenting time between the Youngs and Kourtney.

         ¶ 6 Two days later, the Youngs filed a petition for an emergency order of protection, requesting that J.H. be returned to their care. Shortly thereafter, the trial court entered an emergency order of protection, ordering Kourtney to return J.H. to the physical care of the Youngs. The court later modified the emergency order to allow Kourtney visitation time with J.H. twice a week. (The emergency order of protection was subsequently extended several times by the court.)

         ¶ 7 B. Kourtney's Motion to Dismiss

         ¶ 8 In June 2016, Kourtney filed a combined motion to dismiss the Youngs' petition to establish custody under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2- 619.1 (West 2016)).

         ¶ 9 Kourtney argued that the Youngs' petition should be dismissed under section 2- 615 of the Code (id. § 2-615) because the petition failed to state a cause of action upon which relief could be granted. Kourtney argued that a nonparent could file a petition for custody only if the child in question was not in the "physical custody" of either of the child's parents. 750 ILCS 5/601(b)(2) (West 2014). Kourtney reasoned that, when the Youngs filed their petition, J.H. was in Kourtney's custody and, therefore, the Youngs' petition failed to state a cause of action.

         ¶ 10 Kourtney argued further that the Youngs' petition should be dismissed pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2016)) because the claim was barred by other affirmative matter. Specifically, Kourtney argued that the Youngs lacked standing to bring their claim because J.H. was in the physical custody of Kourtney when the Youngs filed their petition.

         ¶ 11 The trial court declined to immediately rule on the motion to dismiss and, instead, scheduled a trial, after which the court would decide both the motion to dismiss and best-interests issues.

         ¶ 12 C. The Guardian Ad Litem Report

         ¶ 13 In July 2016, the guardian ad litem, Helen Ogar, filed a report containing her observations and recommendations concerning J.H. Ogar observed J.H. in Kourtney's home and in the Youngs' home. Ogar stated that both homes showed J.H. a lot of love. When Ogar asked J.H. how much time she spent at each home, J.H. was unable to answer because she did not see a distinction between the two homes. J.H. considered her different family members "one big family." Ogar could not determine whose custody J.H. had been in, as Ogar learned that J.H. spent considerable time with both parties.

         ¶ 14 Ogar recommended that both Kourtney and the Youngs be involved in J.H.'s life. The Youngs provided a "stability" that J.H. otherwise lacked. Ogar recommended that decision- making should be split evenly between Kourtney and the Youngs, who had been contributing to the decision-making.

         ¶ 15 D. Evidentiary Hearings in July, August, September, and October 2016

         ¶ 16 In July, August, September, and October 2016, the trial court conducted six evidentiary hearings to resolve Kourtney's motion to dismiss and the Youngs' petition to establish custody. The following pertinent evidence was presented at those hearings.

         ¶ 17 Autymne Huerta testified that she lived in the same apartment complex as Kourtney and J.H. from August 2011 through July 2015. During that time, Huerta saw Kourtney bring J.H. to the bus stop every morning. Every time Huerta saw Kourtney, J.H. was with her. However, Huerta also testified that she occasionally saw Crystal dropping off J.H. and picking her up from the school bus.

         ¶ 18 Derek Riebe testified that he was Kourtney's next-door neighbor from 2010 to 2014. During that time he saw J.H. with Kourtney nearly every day. J.H. and Riebe's daughter played together almost every day after school. Riebe saw Crystal picking J.H. up from school and dropping her off at the bus stop, which he believed she did every day. On most of the occasions when Riebe saw J.H., she was with Kourtney, but the Youngs "were very active grandparents." Riebe believed that Kourtney's mom and sister lived in the apartment with her and J.H. Riebe assumed he saw Crystal more than Kourtney because Crystal was J.H.'s ride to and from preschool.

         ¶ 19 Crystal testified that she lived with her husband, Michael, and her granddaughter, J.H., who was the daughter of Crystal's son, David Herron, who was no longer involved in the child's life. In December 2006, David told Crystal that Kourtney had given birth to his child, J.H. That month, Crystal visited Kourtney's home between three and six times. In January 2007, Kourtney agreed to have parentage testing conducted, which showed that David was J.H.'s biological father.

         ¶ 20 Crystal testified further that beginning in February 2007, Kourtney allowed J.H. to spend the night at Crystal's home anywhere from two to four times per week. Meanwhile, Crystal was supplying J.H. with necessities such as diapers, clothing, and milk. In March or April 2007, after Kourtney had a disagreement with David, she told Crystal that she wanted nothing to do with David and asked Crystal to coparent J.H. with her. From that time until mid-2008, J.H. spent four nights a week at Crystal's home and three nights at Kourtney's. From mid-2008 through October 2015, J.H. spent five or six nights a week at Crystal's home.

         ¶ 21 Crystal testified further that it was her idea for J.H. to attend preschool, starting when J.H. was 18 months old, which Crystal arranged and paid for. Kourtney accompanied Crystal to appointments with different learning centers during the selection process. Crystal arranged for J.H. to have her first immunizations so that she could start preschool. After preschool started, Crystal took J.H. to and from preschool and bought her supplies. In addition, Crystal located tutoring programs and extracurricular activities for J.H. Crystal scheduled almost all of J.H.'s medical appointments, which both Kourtney and Crystal attended. From 2007 to 2015, Crystal provided Kourtney with transportation because Kourtney's driver's license was revoked, and Crystal also paid some of Kourtney's bills. Crystal also took J.H. on several trips and regularly took her to church. Crystal was concerned because Kourtney smoked cigarettes in her home and sometimes drank alcohol in excess.

         ¶ 22 Crystal also testified that one afternoon in October 2015, she and Kourtney had a confrontation while waiting for J.H. at the bus stop. Kourtney approached Crystal's car and threatened to physically hurt Crystal because she was "so messy." When the bus dropped off J.H., Kourtney told Crystal that she would never see J.H. again. Kourtney stood nose-to-nose with Crystal and called her profane names. Crystal responded by using a profane insult toward Kourtney. Kourtney took J.H. to Kourtney's home and allowed Crystal only minimal contact with her since.

         ¶ 23 Henry Guenther testified that he had been the Youngs' next-door neighbor since 2010. Guenther frequently saw J.H. at the Youngs' home. He could see the Youngs' television playing cartoons almost every weekend. In addition, Guenther worked in his yard between three and five times a week and would notice J.H. playing outside.

         ¶ 24 Michael Young testified that from the time J.H. was a baby, she spent four to five nights per week with the Youngs. Michael was a physician and helped arrange J.H.'s medical care. He and Crystal arranged and paid for J.H.'s day care, preschool, extracurricular activities, and tutoring. Every time Michael visited Kourtney's home, the windows were shut, and the home "reeked" of cigarette smoke. Once in 2011 and once in 2012, Michael received a call from J.H. stating that Kourtney was asleep and would not wake up. When Michael went to Kourtney's home to investigate, he discovered that Kourtney was intoxicated.

         ¶ 25 Kourtney testified that her driver's license was suspended after a January 2006 conviction for driving under the influence of alcohol. Kourtney testified that at the time of her testimony, her license remained suspended. Kourtney did not work from 2006 through 2013. Since 2013 she has worked as a certified nursing assistant for Aperion Care. Kourtney stated that she planned to move to Florida but that nothing was "set in stone" ...

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