                                  Illinois Official Reports

                                          Appellate Court



                             Crouch v. Smick, 2014 IL App (5th) 140382



Appellate Court              LESLIE N. CROUCH, f/k/a Leslie N. Smick, Petitioner-Appellee, v.
Caption                      GABRIEL B. SMICK, Respondent-Appellant.


District & No.               Fifth District
                             Docket No. 5-14-0382


Filed                        December 23, 2014


Held                         In proceedings under the Uniform Child-Custody Jurisdiction and
(Note: This syllabus         Enforcement Act arising from a situation in which the mother of two
constitutes no part of the   children and her new husband moved to California following the
opinion of the court but     dissolution of her marriage to respondent, the children’s father, in
has been prepared by the     Illinois after he suffered a series of strokes that left him in a wheelchair
Reporter of Decisions        and unable to communicate and she then filed a petition in California
for the convenience of       to declare the children free from the custody and control of their
the reader.)                 father, her new husband filed a petition to adopt the children and
                             respondent filed a motion in Illinois to clarify and retain jurisdiction,
                             the case was transferred to Illinois when the Illinois judge, in
                             consultation with the California judge, issued an order declaring that
                             Illinois would retain jurisdiction of the parties and subject matter and
                             that the mother’s petition would be decided according to California
                             law, but the appellate court reversed and remanded the cause to allow
                             the mother to file a petition to terminate respondent’s parental rights
                             under Illinois law and order a new hearing under Illinois law, since
                             Illinois was the home state under the UCCJEA.


Decision Under               Appeal from the Circuit Court of Madison County, No. 09-D-544; the
Review                       Hon. Keith Jensen and the Hon. Dean E. Sweet, Judges, presiding.
     Judgment                  Reversed and remanded.



     Counsel on                Tim Kalinowski, of Glen Carbon, for appellant.
     Appeal
                               Frederick M. Steiger, of Steiger Law Offices, of Edwardsville, and
                               Sara R. Neumann, of San Diego, California, for appellee.



     Panel                     JUSTICE STEWART delivered the judgment of the court, with
                               opinion.
                               Justices Goldenhersh and Schwarm concurred in the judgment and
                               opinion.




                                                 OPINION


¶1         Leslie Crouch and Daniel Crouch, her husband, filed a petition in the superior court of the
       State of California to declare Leslie’s minor children free from the custody and control of their
       father, Gabriel Smick. Daniel filed a companion petition for adoption of the children. Gabriel
       filed a statement in opposition to the petition. He then filed a motion in Illinois to clarify and
       retain jurisdiction. Following consideration of arguments, briefs, and consultation between the
       presiding judge in Madison County, Illinois, and the presiding judge in San Diego County,
       California, the court in Illinois issued an order declaring that Illinois would retain jurisdiction
       over the parties and subject matter and that the petition to free the minor children from the
       custody and control of Gabriel would be decided in accordance with California law. The same
       day, the court in California entered an order deferring to the Illinois court to hear Leslie’s
       petition to declare the minors free from Gabriel’s custody and control and transferring the
       California case to Illinois.
¶2         After a hearing, the trial court granted the petition to free the minor children from Gabriel’s
       custody and control. Gabriel filed a motion to reconsider. Leslie and Daniel filed a response to
       the motion to reconsider. The motion to reconsider was denied. Gabriel filed a timely notice of
       appeal.
¶3         Gabriel raises numerous issues regarding the termination of his parental rights. First, he
       asserts that the trial court erred in applying California law. We find this issue to be dispositive.
       The issue of which state’s law applies in child custody proceedings under the Uniform
       Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/101 et seq. (West
       2012)), once Illinois is determined to have jurisdiction as the home state, appears to be a
       question of first impression. We hold that once Illinois is determined to be the home state

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       under the UCCJEA, Illinois law applies. Since the trial court erred in applying California law
       in these proceedings, the judgment must be reversed and this cause remanded for further
       proceedings applying Illinois law.

¶4                                            BACKGROUND
¶5          Leslie and Gabriel were married on June 4, 2005. Two children were born of the marriage:
       Xander Y. Smick, born August 30, 2006, and Wilhemina Smick, born July 9, 2008. In April
       2009, Gabriel suffered a series of strokes that left him wheelchair-bound and unable to
       communicate.
¶6          On June 1, 2009, Leslie filed a petition for dissolution of marriage in the circuit court of
       Madison County, Illinois. Gabriel filed a counterpetition for dissolution of marriage. On July
       8, 2010, the circuit court of Madison County entered a judgment of dissolution of marriage.
       Leslie was awarded legal, physical, and residential custody of the minor children. Gabriel was
       granted rights of visitation.
¶7          On December 22, 2010, Leslie filed a motion to divest jurisdiction pursuant to the
       UCCJEA. She alleged that she and the children relocated to Missouri to be closer to her job,
       that due to Gabriel’s disability he was not actively involved in the children’s lives, that
       substantially all of the evidence concerning the children’s care, protection, training, and
       personal relationships was in Missouri, and that she and the children no longer had any
       significant connection with the State of Illinois. Gabriel filed an objection to the motion to
       divest jurisdiction. On April 13, 2011, the court denied the motion.
¶8          On August 1, 2011, the court entered a consent order granting Leslie the right to remove
       the children to California and modifying the visitation order. In November 2011, Leslie
       married Daniel Crouch.
¶9          On February 27, 2013, Leslie and Daniel filed a petition in San Diego County, California,
       to free the children from Gabriel’s custody and control. Under California law, this petition was
       the equivalent of a petition to terminate Gabriel’s parental rights. Daniel filed a companion
       petition for adoption. On April 15, 2013, Gabriel filed a motion in Madison County to clarify
       and retain jurisdiction in Illinois. Pursuant to the UCCJEA, the trial court in Illinois contacted
       the court in California and arranged communication between the two courts and the parties. On
       June 28, 2013, there was a conference call between the San Diego superior court and the trial
       court in Illinois. The parties’ attorneys were each present, along with the attorney for the
       children appointed in San Diego and a San Diego court-appointed social worker. Everyone
       except the social worker provided input. The parties were ordered to file briefs.
¶ 10        On September 20, 2013, the Illinois trial court entered an order finding that the court had
       exclusive jurisdiction over the parties and subject matter concerning the custody of the
       children. It found that it had no jurisdiction to hear the petition for stepparent adoption filed by
       Daniel in California. The court found that the issues raised in the petition to free the minor
       children from Gabriel’s custody and control are similar to the issues required in phase one of a
       contested adoption. The court determined that the petition to free the minor children from
       Gabriel’s custody and control would be decided in accordance with the laws of California. The
       court requested that the superior court of California consent or transfer the pending petition to
       free the minor children from Gabriel’s custody and control to the Illinois court.



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¶ 11        The court in California also entered an order on September 20, 2013. The court held that
       Illinois remained the home state because Gabriel still resided there. The court found that “not
       only is Illinois the lawful forum, it is the better forum.” The court found that Leslie’s petition to
       free the children from Gabriel’s custody and control principally alleged abandonment,
       disability due to drug addiction, developmental disability or mental illness, and permanent
       mental disability, and that “[m]ost (if not all) the evidence on these issues is in Illinois.” Finally
       the court found: “Because Illinois remains the home state, Leslie’s petition to terminate
       Gabriel’s parental rights must be heard in the Madison County Circuit Court, unless it cedes
       jurisdiction to California, which it has not. Judge Sweet has determined he will hear the matter,
       and has further determined he will apply California law in reaching his decision.”
¶ 12        During the pendency of the matter Judge Sweet retired, and the case was reassigned to
       another judge. The case was tried on May 5 and 6, 2014. During the trial, the court applied
       California substantive law.
¶ 13        On June 2, 2014, the Illinois court entered an order declaring the children free from the
       custody and control of Gabriel. The court found that Gabriel was in a medical state that made
       communication extremely difficult if not impossible. It found that Gabriel could not
       “converse, care for, offer advice, or physically connect with the minor children.” It further
       found that the testimony of Gabriel’s witnesses was not credible and seemed to be “wishful
       thinking on some accounts.” The court found that without his support group, Gabriel would not
       be able to continue visits with the children. It found that Gabriel was unable to provide
       financial support for the children except for the social security disability derivative payments
       they received. The court held that Leslie and Daniel proved by clear and convincing evidence
       that under California Family Code section 7826 (Cal. Fam. Code § 7826 (West 2012)), Gabriel
       had been determined to be developmentally and physically disabled, or mentally impaired, and
       was not capable of supporting or controlling the minor children in a proper manner. It further
       found that Leslie and Daniel proved by clear and convincing evidence that under the statutory
       requirement of California Family Code section 7827 (Cal. Fam. Code § 7827 (West 2012)),
       Gabriel was mentally disabled in that he suffered a mental incapacity or disorder that rendered
       him unable to care for and control the minor children adequately. The court found that
       termination of Gabriel’s rights was in the children’s best interests and that adoption would
       provide stability in their lives. The court found that Daniel had provided support, love, care,
       and attention, and was a parent for the children on a regular basis, and through his efforts had
       provided stability for the children.
¶ 14        On June 9, 2014, Gabriel filed a motion to reconsider. On July 3, 2014, Leslie filed a
       response to the motion to reconsider. On July 7, 2014, the motion to reconsider was denied.
       Gabriel filed a timely notice of appeal.

¶ 15                                           ANALYSIS
¶ 16       Gabriel argues that the trial court erred in applying California substantive law after it
       determined that Illinois retained jurisdiction. Section 202 of the UCCJEA (750 ILCS 36/202
       (West 2012)) governs continuing jurisdiction in child custody cases. It provides that the court
       of the state which has made a child custody determination “has exclusive, continuing
       jurisdiction over the determination until: (1) a court of this State determines that neither the
       child, the child’s parents, and any person acting as a parent do not have a significant
       connection with this State and that substantial evidence is no longer available in this State

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       concerning the child’s care, protection, training, and personal relationships; or (2) a court of
       this State or a court of another state determines that the child, the child’s parents, and any
       person acting as a parent do not presently reside in this State.” 750 ILCS 36/202(a) (West
       2012). Professor Robert G. Spector, the reporter for the committee which drafted the UCCJEA,
       explained: “So long as one parent, or person acting as a parent, remains in the state that made
       the original custody determination, only that state can determine when the relationship
       between the child and the left-behind parent has deteriorated sufficiently so that jurisdiction is
       lost.” Robert G. Spector, Uniform Child-Custody Jurisdiction and Enforcement Act (With
       Prefatory Note and Comments), 32 Fam. L.Q. 301, 340 n.81 (1998). California also recognizes
       this and California courts have interpreted this section of the UCCJEA to mean that if the
       remaining parent continues to assert and exercise his visitation rights, then the parent-child
       relationship has not deteriorated sufficiently to terminate jurisdiction. Grahm v. Superior
       Court, 34 Cal. Rptr. 3d 270, 274 (Cal. Ct. App. 2005). Gabriel resides in Illinois; therefore,
       neither of the exceptions to section 202(a) applies and the Illinois court properly retained
       jurisdiction.
¶ 17        Illinois courts have not specifically addressed whether Illinois law should be applied in
       cases where Illinois has jurisdiction of a child custody matter under the UCCJEA. Issues of
       statutory interpretation are questions of law and are subject to de novo review. People v.
       Hughes, 2011 IL App (4th) 100687, ¶ 7, 962 N.E.2d 969. An examination of the purpose of the
       UCCJEA guides our analysis of this issue.
¶ 18        To understand the purpose of the UCCJEA, it is important to understand its history. Prior
       to the enactment of laws attempting to create uniformity in child custody matters, losing a
       custody battle was not the end of the fight for some parents. Kevin Wessel, Home Is Where the
       Court Is: Determining Residence for Child Custody Matters Under the UCCJEA, 79 U. Chi. L.
       Rev. 1141, 1144 (2012). The losing party would sometimes take his or her child to another
       state and ask a new court to relitigate the custody case. Id. The “rule of seize and run” was
       widespread, and the new court often overturned the first state’s ruling. Id. Because forum
       shopping is a problem especially when children are used as a pawn in a battle for a new, more
       favorable ruling, legislators sought to prevent it through jurisdictional conformity. Id.
¶ 19        In 1968, the National Conference of Commissioners on Uniform State Laws (NCCUSL)
       promulgated the Uniform Child Custody Jurisdiction Act (UCCJA) in an attempt to provide
       uniform rules of subject matter jurisdiction in child custody cases. Robert G. Spector & Cara
       N. Rodriguez, Jurisdiction Over Children in Interstate Placement: The UCCJEA, Not the
       ICPC, Is the Answer, 41 Fam. L.Q. 145, 148 (2007). The UCCJA sought to avoid jurisdictional
       conflicts and competition between states, to protect children’s best interests, and to discourage
       forum shopping. In re Marriage of Kneitz, 341 Ill. App. 3d 299, 304, 793 N.E.2d 988, 993
       (2003). Jurisdictional and enforcement problems continued to plague interstate custody after
       the UCCJA, so in 1980, the federal government enacted the Parental Kidnapping Prevention
       Act (PKPA). Spector & Rodriguez, supra at 149. “As documented in an extensive study by the
       American Bar Association’s Center on Children and the Law, inconsistent interpretation of the
       UCCJA and the technicalities of applying the PKPA resulted in a loss of uniformity to child
       custody adjudication among the states.” Id. at 150. As a result, the NCCUSL revised the
       UCCJA and, in 1997, the UCCJEA was promulgated. Id. The UCCJEA became effective in
       Illinois on January 1, 2004. In re Joseph V.D., 373 Ill. App. 3d 559, 561, 868 N.E.2d 1076,
       1077 (2007). The UCCJEA “was promulgated to end custody jurisdictional disputes between


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       states, to promote cooperation between states in determining custody issues, and to enhance
       the ability of states to enforce custody orders expeditiously.” Id. To solve forum shopping by
       parents, legislators through the PKPA and the UCCJEA gave a state exclusive, continuing
       jurisdiction once a state made an initial child custody determination. Wessel, supra at 1145.
¶ 20        Because the UCCJEA and its predecessor the UCCJA were promulgated to avoid
       jurisdictional conflicts and discourage forum shopping, it seems apparent that the forum with
       jurisdiction should apply the law of its state. To hold otherwise would thwart the purpose of the
       UCCJEA and render section 202, the provision for exclusive continuing jurisdiction,
       meaningless.
¶ 21        There has been very little written in any state about whether the state that retains
       jurisdiction over child custody matters should apply its own law. In Stubbs v. Weathersby, 892
       P.2d 991 (Or. 1995), the Oregon Supreme Court held that because the UCCJA was intended to
       prevent forum shopping, it followed that “when a state has jurisdiction in a child custody
       matter, the UCCJA guarantees that the forum state has an interest in applying its own law to the
       case.” Id. at 998.
¶ 22        The court in Utah adopted a choice-of-law analysis in a proceeding to terminate parental
       rights. In State ex rel. S.O. v. State, 2005 UT App 393, 122 P.3d 686 (per curiam), the father
       appealed an order terminating his parental rights arguing that the court erred by applying Utah
       law to his acts that occurred in Arizona. Id. ¶ 2. The court held that proceedings to terminate
       parental rights are status adjudications because they involve the status of the child vis-à-vis his
       or her parents. Id. ¶ 4. The court found that Utah had adopted the “most significant
       relationship” approach to the choice-of-law analysis as described in the Restatement (Second)
       of Conflict of Laws. Id. ¶ 3. The court held that once the Utah court determined that it had
       jurisdiction, the Utah court “necessarily determined that Utah [was] the state with the ‘most
       significant relationship’ for choice of law purposes.” Id. ¶ 4. We agree with this observation.
¶ 23        In determining which court has jurisdiction in custody matters under the UCCJEA, the
       court applies a similar analysis to that applied for choice of law. Illinois follows the
       Restatement (Second) of Conflict of Laws in making choice-of-law decisions. Safeco
       Insurance Co. v. Jelen, 381 Ill. App. 3d 576, 579, 886 N.E.2d 555, 558 (2008). Subject to
       constitutional limitations, the forum court applies the choice-of-law rules of its own state.
       Townsend v. Sears, Roebuck & Co., 227 Ill. 2d 147, 155, 879 N.E.2d 893, 898 (2007). If an
       Illinois court is determined to be the home state for jurisdiction, it is necessarily the state with
       the most significant relationship for choice-of-law purposes and Illinois law applies.
¶ 24        A proceeding to involuntarily terminate parental rights is a drastic measure which
       determines whether a person should continue to hold the legal status of a parent or have his
       custodial or noncustodial rights removed forever. In re D.D., 196 Ill. 2d 405, 417, 752 N.E.2d
       1112, 1118 (2001). “[W]hen a petition for adoption alleges that a parent is unfit, abrogating the
       need for that parent’s consent to the adoption, the trial court is initially to determine the
       parental unfitness, basing that determination on any evidence relevant to the particular grounds
       of unfitness alleged.” In re Adoption of Syck, 138 Ill. 2d 255, 277, 562 N.E.2d 174, 184 (1990).
       When terminating parental rights, the best interests of the child can only be considered if the
       court finds by clear evidence that the parent is unfit or consents to the termination. Id.
¶ 25        Leslie asserts that Gabriel is an unfit parent. In an order entered by the California court on
       September 20, 2013, the court found:


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                “Leslie’s petition to free the children from Gabriel’s custody and control principally
                alleges abandonment (FC § 7822(a)(3) & (b)), disability due to drug addiction (FC
                § 7824), developmental disability or mental illness (FC § 7826) and permanent mental
                disability (FC § 7827). Most (if not all) the evidence on these issues is in Illinois.
                Moreover, [Gabriel] apparently could not travel easily to California to attend a hearing
                on the termination of his parental rights. While the court has not asked him, it assumes
                he would want to.
                     Finally, the Family Code itself suggests Illinois is an appropriate location to hear
                Leslie’s petition–if California were the home state (which it is not), most of the factors
                listed in FC § 3427(b) point to Illinois as the more convenient forum.”
¶ 26        The California court acknowledged that Illinois has the most significant relationship to
       Gabriel’s status as a fit parent. Gabriel has received his medical care in Illinois or in St. Louis,
       which is in close proximity to his home in Illinois. Gabriel is wheelchair-bound and has very
       limited ability to communicate. He resides with his father and stepmother. His visits with his
       children have all taken place in Illinois. His communication with his children takes place with
       the assistance of his family who reside in Illinois. The evidence regarding Gabriel’s medical
       condition, his abilities, and his interaction with his children is found in Illinois. Illinois has the
       most significant relationship to Gabriel’s fitness as a parent.
¶ 27        Leslie argues that Gabriel waived his right to appeal the Illinois court’s decision to apply
       California law because he failed to pursue an interlocutory appeal under either Illinois
       Supreme Court Rule 306(a)(5) (eff. Feb. 26, 2010) or Illinois Supreme Court Rule 308(a) (eff.
       Feb. 26, 2010). Both of the rules cited by Leslie provide only for permissive interlocutory
       appeals. Rule 306(a)(5) allows an aggrieved party to petition for leave to appeal from an
       interlocutory order “affecting the care and custody of unemancipated minors.” Ill. S. Ct. R.
       306(a)(5) (eff. Feb. 26, 2010). The trial court’s initial order determining that California law
       would be applied in this proceeding was not an order affecting the custody of the parties’
       children and was not appealable under Rule 306(a)(5). Regardless, a decision to forego an
       interlocutory appeal of an issue under Rule 306(a) does not waive the issue after judgment.
       Brdar v. Cottrell, Inc., 372 Ill. App. 3d 690, 707, 867 N.E.2d 1085, 1101 (2007). Likewise, a
       request for an interlocutory appeal under Rule 308 is entirely optional, and “nothing in Rule
       308 or in case law states that failure to assert one’s rights under the rule amounts to waiver of
       the issue.” Prosen v. Chowaniec, 271 Ill. App. 3d 65, 68, 646 N.E.2d 1311, 1313 (1995). A
       litigant is not required to pursue a permissive interlocutory appeal. Gabriel’s decision not to
       pursue a permissive interlocutory appeal did not waive his right to appeal the Illinois court’s
       decision to apply California law.
¶ 28        The trial court erred in applying California law. The UCCJEA was promulgated in part to
       prevent forum shopping. In keeping with the purpose of the UCCJEA, the state with
       jurisdiction should apply its own law. If Illinois has been found to be the home state under the
       UCCJEA, the court has necessarily found that Illinois has the most significant contacts for
       custody decisions and Illinois law applies. The trial court erred in holding a trial based on
       California pleadings and California law. Because the trial court erred in applying California
       law, we need not address the other issues raised in this appeal. The judgment of the trial court is
       reversed and this cause is remanded to give Leslie the opportunity to file a petition to terminate
       parental rights under Illinois law, and for a new hearing in which the law of the State of Illinois
       shall be applied.

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¶ 29                                        CONCLUSION
¶ 30      For the reasons stated, we reverse the judgment of the circuit court of Madison County and
       remand for further proceedings applying the law of the State of Illinois.

¶ 31      Reversed and remanded.




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