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In re Custody of R.W.

Court of Appeals of Illinois, Fifth District

February 28, 2018

In re CUSTODY OF R.W. Susan Gregory, Petitioner-Appellee,
Travia B. and Alvernon W., Respondents Alvernon W., Respondent-Appellant; Raphael Hall, Intervenor.

         Appeal from the Circuit Court of St. Clair County. No. 16-F-500 Honorable Patricia H. Kievlan, Judge, presiding.

          Attorney for Appellant Andrew Mossman, Cordell & Cordell, P.C.

          Attorney for Appellee Attorney Heather Wescoat Dabler, The Law Offices of Susan Parnell Wilson.

          Justices: Honorable Melissa A. Chapman, J. Honorable Richard P. Goldenhersh, J., and Honorable Judy L. Cates, J., Concur

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



         ¶ 1 For most of her life, R.W., the six-year-old child at the center of this dispute, was cared for by two individuals other than her biological parents-her biological uncle, Raphael Hall, and an unrelated individual, Susan Gregory. Her biological mother, Travia B., spent time with R.W., but she allowed Susan and Raphael to take on the responsibility of caring for her. When R.W. was an infant, Travia told her biological father, Alvernon W., that he was not the father. After that, Alvernon had no involvement in R.W.'s life until a petition to establish parentage was filed in Missouri. After it was determined that Alvernon was, in fact, R.W.'s biological father, he sought to become more involved in her life.

         ¶ 2 Susan filed a petition for the allocation of parental responsibility and parenting time. The court found that Susan had overcome the presumption of a parent's superior right to custody but did not find that either parent was unfit. It allocated parenting time to all four of the parties, but it gave Susan sole decision-making responsibility and the majority of parenting time. After Alvernon filed a motion to set aside the parenting order, the court entered an order finding both parents to be unfit and a separate order denying Alvernon's motion. Alvernon appeals, arguing that (1) the court erred in finding him to be an unfit parent because no party alleged that he was unfit, (2) the court's finding of unfitness was against the manifest weight of the evidence, and (3) the court failed to consider his fundamental constitutional rights as a parent in its parenting order. Susan filed a motion to strike the portions of Alvernon's brief addressing the findings of unfitness, arguing that his notice of appeal does not identify the order containing those findings. We deny Susan's motion to strike, vacate the order finding Alvernon and Travia to be unfit, and affirm the court's parenting order.

         ¶ 3 R.W. was born on July 3, 2011. Alvernon was not at the hospital when Travia gave birth, but she called him a few hours later, and he arrived within half an hour. At that time, Alvernon was 20 years old and had no other children. Travia was in her mid-20s and had five other children. According to Alvernon, he asked Travia if the baby was his, and she told him there was a possibility that he was not the baby's father. This angered him, and he left the hospital.

         ¶ 4 A week later, however, Travia and Alvernon began to share in the responsibility of caring for R.W. According to Alvernon, he cared for R.W. Mondays through Fridays, and Travia cared for her on the weekends. According to Travia, she and Alvernon each cared for R.W. 3½ days per week. This arrangement continued until R.W. was three months old, when Travia arrived at Alvernon's home with the police. According to Travia, she called the police that day because when she arrived to pick up R.W., no one answered the door. She testified that she thought Alvernon and his family could not hear her knocking on the door. Alvernon testified that, at the time, he thought Travia called the police because he was not R.W.'s father. In any case, an officer took R.W. from Alvernon and handed her to Travia, and Alvernon did not see R.W. again for six months.

         ¶ 5 Within days after this incident occurred, Travia brought R.W. to the home of her brother, Raphael, and asked Raphael to take care of her. Travia testified at the hearing that she did so because she was evicted from her apartment, forcing her and her children to move in with her grandmother. Her grandmother suggested asking Raphael to care for R.W. At that time, Raphael lived with his mother, his long-term partner, Chuck, and his best friend, Candice. At the time of the hearing, Raphael was still living with Chuck and Candice. Chuck's teenage daughter also stayed with them every other weekend.

         ¶ 6 Raphael originally rented property in St. Louis from Susan's parents; however, after Susan's father was diagnosed with ALS in 2007, Susan took over management of her parents' rental properties. She became friendly with Raphael. She knew that Raphael suffered from sickle cell disease and that he did not have a vehicle or driver's license. She offered to help him out when she could, including by driving him to doctor's appointments. In October 2011, when Susan learned that Raphael was caring for a baby, she offered to help. Initially, Susan cared for R.W. at her home in Belleville, Illinois, on weekends, and Raphael cared for her each week from Monday morning to Friday afternoon. Over time, however, the amount of time Susan spent caring for R.W. increased due to various factors, including Raphael's health, R.W.'s medical needs, and R.W.'s schooling.

         ¶ 7 In 2012, R.W. was diagnosed with cancer. Susan's mother, Pat, who is a retired nurse, explained at the hearing that doctors believed R.W. was likely born with cancerous cells in her fallopian tubes. However, there were no outward signs of the disease until R.W. suddenly fell ill at nine months old. Pat explained that the cells grew into a tumor, which attached itself to a blood vessel near R.W.'s ovary. The tumor was thus able to nourish itself and grow very quickly. Susan and Pat took R.W. to the emergency room on a Friday night. She had a high fever and had to be stabilized before she could undergo surgery to remove the tumor the following Monday.

         ¶ 8 All four of the parties spent much of that weekend at the hospital with R.W., as did Susan's mother, Pat, and Raphael's partner, Chuck. Both Travia and Alvernon testified that they had a discussion outside the hospital during which Alvernon asked Travia whether he was R.W.'s father. Travia told him he was not R.W.'s father. Alvernon testified that he was disappointed by this news but had no reason to disbelieve Travia. He soon moved to Kansas City with his girlfriend, Mia Sutton. At the time of the hearing, Alvernon and Mia were still together.

         ¶ 9 After the surgery, Travia signed a document permitting R.W. to be released to Susan's care. The document indicated that Susan's relationship to R.W. was that of a family friend and godmother. According to Raphael, one of the reasons for this arrangement was the fact that Pat, as a nurse, would be best able to administer medications to R.W. After an initial recuperation period, Susan and Raphael returned to sharing the responsibility of caring for R.W. However, as mentioned earlier, Susan began taking on a larger share of the responsibility. When R.W. was released from the hospital, she had to return each Tuesday for blood draws and checkups with her oncologist. Because Raphael could not drive her to these appointments, Susan began bringing R.W. back to his house after her Tuesday appointments instead of on Monday mornings, as she had done previously. Many weeks, R.W. arrived at Susan's home on Thursday rather than on Friday.

         ¶ 10 Periodically, Raphael was hospitalized as a result of complications from sickle cell disease. During these periods, Susan cared for R.W. full time. At one point, Raphael underwent two hip replacement surgeries, the second of which was performed eight weeks after the first. During his recuperation period, Susan cared for R.W. full time. After he recovered, Raphael and Susan once again shared the responsibility of caring for R.W.

         ¶ 11 When R.W. was old enough to begin preschool, Susan looked at preschools near her home in Illinois. When she discussed the matter with Raphael, he told her that he wanted R.W. to attend a preschool in St. Louis, near his home. Together, Susan and Raphael visited three preschools in St. Louis. They decided jointly to enroll her in one of those schools. On the registration paperwork, Raphael was listed as R.W.'s father and Susan was listed as her mother.

         ¶ 12 When R.W. entered elementary school, Susan enrolled her at Zion Lutheran, a private school in Belleville. Susan also enrolled R.W. in several different activities-swimming lessons, dance classes, Daisies, horseback riding lessons, and Center of Creative Arts, a theater company in St. Louis. At Raphael's request, Susan scheduled these activities so they would take place during her time with R.W. Although Raphael attended many of R.W.'s school events, dance recitals, and other events, Travia and Alvernon did not.

         ¶ 13 In 2014, the Missouri Department of Public Aid filed a petition to establish parentage in a Missouri court. At the hearing in this matter, Travia denied that the petition was filed because she applied for public assistance on behalf of R.W. She testified that she wanted to establish paternity in order to "gain full custody from Alvernon." She claimed that this was because she wanted to avoid complications that sometimes arose when she encountered paperwork requiring the signatures of two parents-for example, when she applied for a passport for R.W. Travia acknowledged that she listed R.W. as a dependant for purposes of Medicaid.

         ¶ 14 Alvernon testified that he was unaware of the Missouri parentage case until May 2016, when he received a notice directing him to submit to DNA testing because he had been named as the father of R.W. Alvernon was determined to be the father, and he was ordered to pay Travia $119 per month in child support. Both Travia and Alvernon testified that Alvernon paid more than this amount. According to Alvernon, he was unaware that R.W. was not living with Travia.

         ¶ 15 Although Travia did not live with R.W. or take responsibility for her care, she did visit with her, including occasional overnight visits. Early in the summer of 2016, Alvernon arranged with Travia to visit with R.W. Raphael and Susan were not happy that Travia arranged this visit without consulting with them. Susan was afraid that Alvernon might take R.W. back to Kansas City with him.

         ¶ 16 On July 19, 2016, Susan filed a petition for allocation of parenting time and parental responsibilities. She alleged that R.W. had been in her physical custody since approximately October 2011 and that Travia had failed to show a reasonable degree of care, concern, or interest in R.W. since that time. Susan further alleged that, "On information and belief, " Alvernon had no contact with R.W. before the summer of 2016 and that neither parent showed any interest in R.W.'s education, extracurricular activities, or medical care. She alleged that, "On information and belief, a support case was opened in St. Louis, Missouri, by the Department of Public Aid, and an order finding ALVERNON [W.] to be the biological father and to pay child support in the amount of $119 per month was entered by the Court." Susan requested that she be given sole authority to make decisions concerning significant parenting responsibilities and the majority of parenting time. She requested that parenting time be awarded to both Travia and Alvernon, but she asked that this time be limited to daytime visits at scheduled times. Susan named Travia and Alvernon as respondents, but she did not name Raphael as a respondent or request that parenting time be allocated to him. Along with her petition, Susan filed a motion seeking a restraining order enjoining Alvernon and Travia from removing R.W. from her care or from the State of Illinois. Susan did not consult with Raphael or Travia before filing the petition, which led to a breakdown in her previously cordial relationship with Raphael. The court entered an ex parte temporary restraining order on July 21, and it entered an injunction on July 28.

         ¶ 17 On August 25, 2016, Travia filed a response to the petition. She requested that she be given sole decision-making authority for parental responsibility and the majority of parenting time. She also asked that Susan's petition be dismissed.

         ¶ 18 On September 1, 2016, Raphael filed a petition to intervene and for allocation of parental responsibility and parenting time. He alleged that R.W. was not in the physical custody of either of her parents. He alleged that she was in Raphael's physical custody from approximately October 2011 until July 28, 2016, when Susan was granted sole custody pursuant to a court order. He repeated the allegations in Susan's petition concerning Travia and Alvernon. Raphael requested that he be given sole authority to make decisions concerning significant parental responsibilities and the majority of parenting time. However, he ...

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