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In re Estate of Andre T.

Court of Appeals of Illinois, First District, Fourth Division

April 19, 2018

In re ESTATE of ANDRE T., a Minor
Andre T., Respondent-Appellee. Lillian M. Petitioner-Appellant,

          Appeal from the Circuit Court of Cook County. No. 16 P 6849 Honorable Susan Kennedy Sullivan, Judge Presiding.

          McBRIDE JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.



         ¶ 1 Petitioner Lillian M. is the biological mother of minor Andre T., who was born January 15, 2003. In November 2016, Lorenzo S. and Patricia S., Andre T.'s paternal uncle and aunt, filed a petition for guardianship of Andre T. In March 2017, the trial court granted the petition over Lillian M.'s objection, and appointed Lorenzo S. and Patricia S. as guardians for Andre T. (hereinafter, the Guardians). In June 2017, Lillian M., now represented by counsel, filed a motion to dismiss the order of guardianship. Lillian M. subsequently withdrew her motion to dismiss and filed a petition to discharge guardianship under section 11-14.1(b) of the Probate Act of 1975 (755 ILCS 5/11-14.1(b) (West 2016)). Prior to the evidentiary hearing on the petition, a guardian ad litem (GAL) was appointed to represent Andre T., and the GAL filed a motion in limine to clarify the issues to be raised at the hearing to those related to the petition for discharge and exclude Lillian M.'s arguments related to the entry of guardianship. The trial court granted the GAL's motion. At the evidentiary hearing, the trial court granted the GAL's motion for a directed finding following Lillian M.'s case and denied petitioner's petition to discharge guardianship.

         ¶ 2 Lillian M. appeals, arguing that the trial court erred by (1) granting the GAL's motion in limine limiting the issues for the evidentiary hearing, (2) admitting the GAL's supplemental report on the day of the evidentiary hearing, and (3) granting the GAL's motion for a directed finding and denying the petition to discharge guardianship.

         ¶ 3 Andre T. was a foster child from January 23, 2003, through May 21, 2008, when the juvenile court returned him to the care of Lillian M. In 2008, Lillian M. agreed to relinquish custody of Andre T. to the Guardians. Since 2008, the Guardians have been the primary caretakers of Andre T. The Guardians have stated that from 2008 to approximately 2011, Lillian M. had little or no contact with Andre T. From approximately 2011 until the filing of the petition for guardianship, Lillian M. has had regular contact and visitation with Andre T. while he lives with the Guardians.

         ¶ 4 In November 2016, the Guardians filed their initial petition for guardianship of Andre T. in the trial court. In their petition, the Guardians indicated that they were Andre T.'s paternal grandparents and that both parents' addresses were unknown. Andre T. nominated the Guardians as guardian of his person, but was 13 years old at the time of filing. An amended petition was filed in February 2017, at which time Andre T. was 14 and able to sign the nomination. The amended petition also correctly identified the Guardians as Andre T.'s paternal aunt and uncle and listed Lillian M.'s address. Lillian M. appeared pro se in the proceedings on the petition for guardianship and objected to its entry. In December 2016, the GAL was appointed for Andre T. and was ordered to conduct an investigation into Andre T.'s best interest and make a recommendation.

         ¶ 5 On March 24, 2017, the GAL filed a report. The GAL stated that Lillian M. and the Guardians differ in their accounts on visitation. Lillian M. stated that she saw Andre T. "nearly every weekend during the school year" and that Andre T. "spends summers primarily" with Lillian M. The Guardians stated that Andre T. spends two weekends per month with Lillian M. and spends the summer with the Guardians. The GAL noted that visitation and communication between Lillian M. and the Guardians had broken down.

         ¶ 6 The GAL interviewed Lillian M., the Guardians, and Andre T. Lillian M. was 52 years old and resided in the North Lawndale neighborhood in Chicago. Lillian M. has five children in addition to Andre T., but all other children are over 21 years old and reside outside of Lillian M.'s apartment. She has a two-bedroom apartment with rent "partially subsidized through the Department of Housing and Human [sic] Development." Lillian M. was employed at UPS, working 4 to 5 hours per day. She also receives social security disability benefits and SNAP benefits. Lillian M. has a history of drug abuse and criminal activity. Her last arrest occurred in May 2011, and her last drug-related arrest occurred in February 2010. Lillian M. stated she has been sober for six or seven years. The GAL had recommended a drug test for Lillian M., and the results were negative.

         ¶ 7 The Guardians are the paternal aunt and uncle of Andre T. Patricia S. is the sister of Andre T.'s father. Patricia has been a homemaker for 20 years, and Lorenzo was employed by the Chicago Fire Department for 23 years, but has now retired. Criminal background checks showed neither had a criminal history. They own a four-bedroom condo in the Woodlawn neighborhood and reside there with Andre T. and their 26-year-old son. The Guardians have four other children, but all are over 21 years old and reside outside of their home. Andre T.'s father is not a party to the case. The father visits Andre T. at the Guardians' home on an occasional basis, but no visits occur when Andre T. is with Lillian M. The GAL acknowledged the errors in the Guardians' initial petition and observed that the Guardians stated the errors were mistakes in filling out the form with the assistance of the Chicago Child Care Society.

         ¶ 8 The GAL interviewed Andre T., who was polite and cooperative, but seemed intimidated and apprehensive about the interview. The GAL informed Andre T. that the final decision of who he lived with was up the trial court and there was "no pressure." When asked for his thoughts on the topic, Andre T. "put his head down and declined to answer the question at all."

         ¶ 9 The GAL offered the following analysis:

"[Andre T.] is currently in the middle of two competing parties that each, in their own way, genuinely want the best for him and for his future. [The Guardians] have cared for [Andre T.] since he was a small child and, by all accounts, provide a safe and stable environment for [Andre T.] On the other hand, [Lillian M.] wants to regain custody of her son after dealing with her own troubled past. While her past behavior and criminal activity made her unfit to care for a child at the time, it has been almost six years since her last arrest.
[Lillian M.] should be commended on the positive direction that her life has taken over the past six or seven years and her desire to play a more active role in [Andre T.'s] life. A more important consideration, in the GAL's view, is the fact that [Andre T.] has spent his entire childhood in the care of [the Guardians]. [The Guardians] provide a safe and stable environment for [Andre T.] The GAL fears that completely disrupting the status quo by asking [Andre T.] to live with [Lillian M.] full time would be detrimental to [Andre T.] in the months before he starts high school."

         ¶ 10 The GAL recommended that a resolution of the matter would be in Andre T.'s best interest. The recommendation was for the Guardians to be granted guardianship, but with the stipulation that the Guardians and Lillian M. work together in good faith to provide Lillian M. with visitation on a consistent basis, at least two weekends per month.

         ¶ 11 On March 24, 2017, the trial court appointed the Guardians as guardians of Andre T. "over the objection of Lillian M. who may file a subsequent motion." The order further required that Lillian M. have visitation at least two weekends per month and that she be permitted to speak to Andre T. on the phone at reasonable times. The order also stated, "The GAL can untangle issues that arise regarding communication and visitation." Finally, the order stated, "The court wishes the adult cooperation that existed for years can be restored!" The case was taken off call.

         ¶ 12 On June 22, 2017, Lillian M., now represented by counsel, filed a motion to dismiss the case for lack of subject matter jurisdiction pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(1) (West 2016)) and section 11-5(b) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5(b) (West 2016)). The motion asserted that the trial court lacked subject matter jurisdiction to proceed on the guardianship petition filed by the Guardians, the Guardians lacked ...

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