                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




             In re Guardianship Estate of Tatyanna T., 2012 IL App (1st) 112957




Appellate Court            In re THE GUARDIANSHIP ESTATE OF TATYANNA T., a Minor
Caption                    (Cary T. and Frances T., Petitioners-Appellants, v. Francine Barnes,
                           Respondent-Appellee).



District & No.             First District, Fifth Division
                           Docket No. 1-11-2957


Filed                      August 10, 2012


Held                       The dismissal of a petition for plenary guardianship of respondent’s child
(Note: This syllabus       was upheld where petitioners failed to present evidence that respondent
constitutes no part of     knowingly waived or abandoned her right to custody of the child or
the opinion of the court   relinquished physical custody to petitioners, despite the fact that
but has been prepared      respondent allowed the child to live with petitioners from the time she
by the Reporter of         was born until she was seven, since there was no formal designation of
Decisions for the          petitioners as guardians, respondent’s parental rights were not terminated,
convenience of the         and the testimony that respondent’s arrangement with petitioners was
reader.)
                           temporary was not refuted.


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-P-302; the Hon.
Review                     Kathleen H. McGury, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michelle Broughton-Fountain, of Flossmoor, for appellants.
Appeal
                           No brief filed for appellee.


Panel                      JUSTICE McBRIDE delivered the judgment of the court.
                           Presiding Justice Epstein and Justice Howse concurred in the judgment
                           and opinion.



                                              OPINION

¶1          Pursuant to an oral agreement between the parties, petitioners Cary T. and her daughter,
        Frances T., cared for Tatyanna T., respondent’s biological daughter, in their home from the
        time Tatyanna was born until she was seven years old, at which point she began living with
        respondent. Petitioners thereafter filed a petition for guardianship over Tatyanna, arguing that
        respondent had voluntarily relinquished custody of Tatyanna to them. Respondent filed a
        motion to dismiss that petition, which the trial court granted. This appeal followed.


¶2                                       I. BACKGROUND
¶3          On January 14, 2011, petitioners filed a petition for guardianship over Tatyanna. That
        petition indicated that Tatyanna was born on July 10, 2003 to Tatyanna’s biological mother,
        respondent, and an unknown father. Two days after her birth, Tatyanna’s mother gave
        Tatyanna to petitioners, who raised her in their home for approximately seven years. On
        November 19, 2010, respondent requested that petitioners return Tatyanna to her, which they
        did. Petitioners argued that because respondent had minimal contact with Tatyanna during
        her time living with them, and because Tatyanna was unhappy living with respondent, it was
        in the best interest of Tatyanna that they be appointed her plenary guardians.
¶4          On February 9, 2011, respondent filed a pro se response to the petition. In that response,
        respondent alleged that she had entered into a verbal agreement with Cary following
        Tatyanna’s birth, pursuant to which Cary “would help [respondent] take care of Tatyanna
        [T.] till [sic] [she] got on [her] feet.” Her response further indicated that Tatyanna was
        currently living with respondent and that it was in Tatyanna’s best interest that respondent
        remain plenary guardian of her. Her response also indicated that Tatyanna was “ok and
        happy” and “comfortable” living with respondent, as well as respondent’s mother and other
        daughter, Tatyanna’s sister. Respondent acknowledged that petitioners provided financial
        support and education to Tatyanna for most of her life and that Tatyanna remained in contact
        with petitioners while living in her home.
¶5         On May 24, 2011, petitioners moved for temporary custody of Tatyanna, which the trial

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       court denied. The court further granted respondent a continuance to obtain counsel, which
       she did.
¶6         On September 12, 2011, through the aid of counsel, respondent filed a motion to dismiss
       the petition for guardianship, arguing that because she was willing and able to care for
       Tatyanna, because she never relinquished custody, and because she remained involved in
       Tatyanna’s life, the trial court lacked jurisdiction to entertain petitioners’ request to become
       Tatyanna’s plenary guardian.
¶7         On September 12, 2011, evidence was presented and oral arguments were heard on
       respondent’s motion. Respondent testified first on her own behalf. She acknowledged that
       she was 16 when Tatyanna was born and that she entered into a verbal agreement with Cary,
       her brother’s stepmother, under which Cary “would help [respondent] until [she] was able
       to become an old enough person to take care of [Tatyanna] and get [herself] together as far
       as getting a high school diploma and finishing school, which [she] did.” Respondent stated
       that Tatyanna had lived with petitioners since shortly after she was born, but that she would
       see Tatyanna on holidays, birthdays, “get-togethers,” and “every weekend.” Respondent also
       testified that Tatyanna would stay with her every other summer for two or three weeks at a
       time.
¶8         Respondent next called Frances. Frances testified that respondent gave Tatyanna to
       Frances and Cary once respondent and her daughter were released from the hospital. Frances
       indicated that at that time, she was worried that respondent was going to “come back for
       [Tatyanna] later.” Frances also said that she and Cary had wanted to become guardians over
       Tatyanna but despite their requests, respondent refused to sign papers granting them
       guardianship of Tatyanna on several occasions. Frances admitted that on several occasions,
       she took Tatyanna to respondent’s home.
¶9         Respondent called Cary as her last witness. Cary testified that she began caring for
       Tatyanna soon after her birth. She stated that respondent did not see Tatyanna “very often,”
       and that she and Frances took Tatyanna to most of her doctor’s appointments, but admitted
       that respondent also took her “a few times.” Cary testified that respondent would not see
       Tatyanna every year and that respondent saw Tatyanna approximately six times in 2003,
       three times in 2004, and four times in 2005. Overall, she stated, Tatyanna stayed with
       respondent for approximately eight weekends during the seven years Tatyanna lived with
       Cary and Frances.
¶ 10       Following Cary’s testimony, petitioners moved for the appointment of a guardian ad
       litem due to the significant factual differences in the testimony between respondent and
       petitioners. The trial court denied that motion, concluding that the hearing was limited to
       respondent’s motion to dismiss the petition, and the appointment of a guardian ad litem was
       inappropriate because the only issue before it was “whether or not there is a parent who’s
       willing and able to make the day-to-day decisions.”
¶ 11       Petitioners then proceeded with their case, calling Cary as their first witness. Cary
       testified that she had concerns about respondent’s ability to carry out the day-to-day child-


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       care decisions for Tatyanna, including respondent’s ability to feed and clothe her. Cary,
       however, indicated that she told Tatyanna over the phone that she was keeping Tatyanna’s
       clothing and toys she had received for Christmas “until she come[s] home.”
¶ 12       Frances testified next on her own behalf, and her testimony was similar to Cary’s, further
       indicating that she shared Cary’s concerns about respondent’s ability to care for Tatyanna.
¶ 13       Following arguments, the trial court stated that while there were “definitely discrepancies
       in the facts,” the situation “was amicable between the parties; and it seemed to work for the
       child.” The court then held that petitioners failed to rebut the presumption that respondent
       was able to care for Tatyannna, stating that “where parents are involved, they do have
       superior rights. And the only way they can be compromised *** is a very formal written
       consent, or in adoption cases where they have the [sic] surrender. The law protects parents,
       and that’s why they have that advantage.”
¶ 14       The court then granted respondent’s motion to dismiss petitioners’ petition and
       petitioners timely appealed. Although respondent has not filed an appellee’s brief, we may
       nevertheless consider this appeal pursuant to the principles set forth in First Capitol
       Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33, 345 N.E.2d 493
       (1976).


¶ 15                                      II. ANALYSIS
¶ 16       On appeal, petitioners argue that because respondent conveyed a “constructive
       guardianship” over Tatyanna to them, the trial court erred in dismissing their petition for lack
       of jurisdiction. Specifically, they assert that respondent “relinquished physical custody of
       [Tatyanna]” to them, thus granting the trial court jurisdiction to entertain their petition
       pursuant to the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2008)). We disagree.
¶ 17       Before addressing the merits of petitioners’ claims, we must note that their brief fails to
       comply with several of the requirements of Illinois Supreme Court Rule 341. Ill. S. Ct. R.
       341 (eff. Mar. 16, 2007). That rule provides that all briefs should contain a statement of
       compliance (Ill. S. Ct. R. 341(c)), a statement containing “the facts necessary to an
       understanding of the case, stated accurately and fairly” (Ill. S. Ct. R. 341(h)(6)), and an
       argument “which shall contain the contentions of the appellant and the reasons therefor, with
       citation of the authorities *** relied on” (Ill. S. Ct. R. 341(h)(7)). This court has the
       discretion to strike an appellant’s brief and dismiss an appeal for failure to comply with this
       rule. Alderson v. Southern Co., 321 Ill. App. 3d 832, 845 (2001).
¶ 18       Petitioners’ brief contains a statement of facts that is only two sentences in length and
       indicates little more than a statement that a petition for guardianship was filed and that
       respondent filed a pro se response. Moreover, the argument section of petitioners’ brief cites
       only one case–incorrectly–for their proposed standard of review. It fails to point us to any
       authority to support petitioners’ contentions. While these deficiencies render petitioners’
       brief inadequate, and provide this court with ample grounds to dismiss petitioners’ appeal,


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       because of the important nature of this case, we will nevertheless address the merits of their
       claims. See Alderson, 321 Ill. App. 3d at 845 (addressing an appeal on the merits, despite
       appellant’s “grossly inadequate” statement of facts, because the interests of justice so
       required).
¶ 19       When a court grants a motion to dismiss following an evidentiary hearing, “ ‘the
       reviewing court must review not only the law but also the facts, and may reverse the trial
       court order if it is incorrect in law or against the manifest weight of the evidence.’ ”
       Hernandez v. New Rogers Pontiac, Inc., 332 Ill. App. 3d 461, 464 (2002) (quoting Kirby v.
       Jarrett, 190 Ill. App. 3d 8, 13 (1989)). “A trial court’s ruling is against the manifest weight
       of the evidence only if it is unreasonable, arbitrary and not based on the evidence, or when
       the opposite conclusion is clearly evident from the record.” In re Estate of Michalak, 404 Ill.
       App. 3d 75, 96 (2010). “In reviewing a probate court’s determination, all reasonable
       presumptions are made in favor of the trial court, the appellant has the burden to
       affirmatively show the errors alleged, and the judgment will not be reversed unless the
       findings are clearly and palpably contrary to the manifest weight of the evidence.” In re
       Estate of Vail, 309 Ill. App. 3d 435, 438 (1999). In any event, “we may affirm on any basis
       appearing in the record, whether or not the trial court relied on that basis.” Mitsias v. I-Flow
       Corp., 2011 IL App (1st) 101126, ¶ 47.
¶ 20       Generally, under the Probate Act, once a petition for guardianship is filed, “the court may
       appoint a guardian *** of a minor *** as the court finds to be in the best interest of the
       minor.” 755 ILCS 5/11-5(a) (West 2008). However, the court lacks jurisdiction to hear a
       petition for the appointment of a guardian of a minor when:
          “(i) the minor has a living parent *** whose parental rights have not been terminated,
          whose whereabouts are known, and who is willing and able to make and carry out day-to-
          day child care decisions concerning the minor, unless: (1) the parent or parents
          voluntarily relinquished physical custody of the minor; (2) after receiving notice of the
          hearing under Section 11-10.1, the parent or parents fail to object to the appointment at
          the hearing on the petition; or (3) the parent or parents consent to the appointment as
          evidenced by a written document that has been notarized and dated, or by a personal
          appearance and consent in open court; or (ii) there is a guardian for the minor
          appointed by a court of competent jurisdiction. There shall be a rebuttable presumption
          that a parent of a minor is willing and able to make and carry out day-to-day child care
          decisions concerning the minor, but the presumption may be rebutted by a preponderance
          of the evidence.” (Emphasis added.) 755 ILCS 5/11-5(b) (West 2010).
¶ 21       “[T]he standing requirement contained in paragraph (b) protects the superior rights of
       parents and ensures that guardianship proceedings pass constitutional muster.” In re
       Guardianship of A.G.G., 406 Ill. App. 3d 389, 394 (2011). That section establishes the
       threshold statutory requirement that a petitioner must meet before the court can proceed to
       a determination of the best interests of a child. In re R.L.S., 218 Ill. 2d 428, 436 (2006).
¶ 22      Paragraph (b) was recently amended, effective January 1, 2011, to include language
       granting standing to petitioners when a parent who is otherwise alive and willing and able

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       to care for the child has “voluntarily relinquished physical custody of the minor.” 755 ILCS
       5/11-5(b) (West 2010). In the instant case, the arrangement of Tatyanna’s care took place and
       was terminated before this amendment took effect.
¶ 23       Here, there is no dispute that respondent, the biological mother, is alive, that her parental
       rights have not been formally terminated, and that her whereabouts are known. While there
       was disagreement below as to whether she was willing and able to make decisions regarding
       Tatyanna’s care, petitioners appear to maintain that this is irrelevant because, they assert,
       respondent voluntarily relinquished physical custody of Tatyanna, thus granting them
       standing under paragraph (b), as amended.
¶ 24       As pointed out above, paragraph (b), as it now exists, was not in effect when respondent
       entered into the arrangement of Tatyanna’s care with petitioners or when Tatyanna was
       returned to respondent in November 2010. We note that prior to 1986, the Probate Act
       contained no standing requirement for nonparents seeking guardianship over a minor. In
       response to this, our courts turned to the language of the Illinois Marriage and Dissolution
       of Marriage Act (the Marriage Act) (now see 750 ILCS 5/101 et seq. (West 2008)) for
       guidance. In In re Person & Estate of Newsome, 173 Ill. App. 3d 376 (1986), the appellate
       court, seeking to protect the superior rights of parents, adopted the Marriage Act’s standing
       requirement and held that in order to have standing, a nonparent seeking custody under the
       Probate Act had to first establish that the child was not in the physical custody of one of his
       biological parents. See Newsome, 173 Ill. App. 3d at 379. In response to Newsome, the
       Probate Act was amended to require a nonparent seeking guardianship to establish that the
       child did not have a parent “whose parental rights have not been terminated, whose
       whereabouts are known, and who is willing and able to make and carry out day-to-day child
       care decisions concerning the minor, unless the parent *** consent[s] to the appointment.”
       755 ILCS 5/11-5(b) (West 2004). These amendments eliminated the Marriage Act’s
       “physical custody” requirement for standing applied to the Probate Act through Newsome
       and its progeny. In 2006, our supreme court overruled Newsome and held that courts should
       only apply the Probate Act’s “willing and able” standard when making standing decisions,
       rather than the “physical custody” standard. In re R.L.S., 218 Ill. 2d 428 (2006). Thus, after
       R.L.S. was decided, Illinois courts were effectively prohibited from denying standing to a
       nonparent seeking guardianship over a minor, even if that minor was in the physical custody
       of his biological parent, so long as that petitioner could establish that the parent is not
       “willing and able to make and carry out day-to-day child care decisions concerning the
       minor.” 755 ILCS 5/11-5(b) (West 2004).
¶ 25       It appears that in response to R.L.S., our legislature again amended paragraph (b) in 2011,
       codifying Newsome’s and the Marriage Act’s “physical custody” standard, thus allowing a
       nonparent petitioning for guardianship to have standing, even if the biological parent is
       otherwise able to care for the child, if the parent’s custody has been voluntarily relinquished.
       In our opinion, this recent amendment to paragraph (b) represents a substantive change in the
       law which cannot be applied retroactively to respondent. See Doe A. v. Diocese of Dallas,
       234 Ill. 2d 393, 406 (2009); Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d
       439, 443 (2005) (“a substantive change in law establishes, creates, or defines rights”); People

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       v. Kilpatrick, 293 Ill. App. 3d 446, 448 (1997) (declining to apply a law retroactively because
       doing so would deprive a defendant of an existing right). Because the amendment to
       paragraph (b) provides an additional avenue for a nonparent to obtain standing under the
       Probate Act, we are unwilling to accept petitioners’ argument and subject respondent to the
       amended version of paragraph (b) that was neither in effect when, at the age of 16, she placed
       her newborn second child in the care of petitioners on, what appears from the record to be,
       a limited and temporary basis, nor when Tatyanna returned to live with her. Moreover, when
       applying the prior version of paragraph (b), we can see nothing in the record which would
       tend to support the conclusion that respondent “consent[ed] to the appointment” of
       petitioners as Tatyanna’s guardians.
¶ 26       The prior version of paragraph (b), which is applicable here, granted standing to
       petitioners only in limited situations where the child’s parent consented to the guardianship
       or the child had no living parent who was able care for the child. 755 ILCS 5/11-5(b) (West
       2008). “This limitation exists to protect the parent’s superior rights to the custody and care
       of her child.” In re T.P.S., 2011 IL App (5th) 100617, ¶ 14. “[I]n child-custody disputes it
       is an accepted presumption that the right or interest of a natural parent in the care, custody
       and control of a child is superior to the claim of a third person.” (Internal quotation marks
       omitted.) In re Custody of Peterson, 112 Ill. 2d 48, 51 (1986). The language of the Probate
       Act in effect at that time indicated that a biological parent could designate a person to be
       appointed guardian of her child only if certain conditions were met. Such a designation had
       to be in writing and “witnessed by 2 or more credible witnesses at least 18 years of age,
       neither of whom is the person designated as the guardian.” 755 ILCS 5/11-5(a-1) (West
       2008). We are unable to find anything in the Probate Act, or in our case law, which would
       suggest that a parent could, in an out-of-court context, orally consent to the appointment of
       a guardian over her child, and petitioners have provided us with no compelling reason to
       persuade us otherwise.
¶ 27       The record indicates that no such written designation was ever made, let alone witnessed
       by two disinterested individuals, as envisioned by the Probate Act. In fact, the record clearly
       shows that respondent explicitly refused, on several occasions, petitioners’ requests to
       execute such documentation, making them guardians over Tatyanna. Nor is there anything
       in the record suggesting that the trial court, on its own motion, ever appointed a guardian
       over Tatyanna. See 755 ILCS 5/11-5(a) (West 2008). Instead, the unrebutted testimony of
       respondent indicates that the arrangement of care between her and petitioners was temporary
       in nature and was never intended to represent her consent to them being appointed guardians.
¶ 28       Accordingly, because petitioners have failed to provide any evidence to support a finding
       that respondent consented to the appointment of a guardian, pursuant to the prior version of
       paragraph (b), the trial court did not err when it dismissed petitioners’ petition for
       guardianship over Tatyanna for want of jurisdiction.
¶ 29       Assuming arguendo we were to apply the amended version of paragraph (b) to the facts
       of this case, our decision would be the same because the record indicates that respondent
       never voluntarily relinquished physical custody over Tatyanna. Given the recent adoption of


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       the amendments to paragraph (b), our case law is silent as to what must occur for a parent
       to voluntarily relinquish physical custody in proceedings under the Probate Act. While
       petitioners’ brief fails to cite a single authority providing guidance on the subject, we note
       that our courts have defined “voluntary relinquishment” as the affirmative act of waiving or
       abandoning a known right. See Buenz v. Frontline Transportation Co., 227 Ill. 2d 302, 321
       (2008); Nowak v. St. Rita High School, 197 Ill. 2d 381, 397 (2001); Maniez v. Citibank,
       F.S.B., 404 Ill. App. 3d 941, 947 (2010).
¶ 30       We further note that a provision similar to paragraph (b) in the Marriage Act provides us
       with some guidance on this issue. See 750 ILCS 5/601 (West 2008); see also Guardianship
       of A.G.G., 406 Ill. App. 3d at 393 (stating that Illinois courts have historically found
       guidance in the Marriage Act when making determinations of custody under the Probate
       Act). In light of the recent amendments to this section, which, as noted above, incorporate
       the Marriage Act’s “physical custody” standard, we will rely on the body of case law
       regarding “physical custody” when interpreting paragraph (b).
¶ 31        Under section 601(b)(2) of the Marriage Act, a nonparent may commence custody
       proceedings for a child “only if he is not in the physical custody of one of his parents.” 750
       ILCS 5/601(b)(2) (West 2008). Our supreme court has held that a determination under
       section 601(b)(2) “should not turn on who is in physical possession, so to speak, of the child
       at the moment of filing the petition for custody.” In re Custody of Peterson, 112 Ill. 2d 48,
       53-54 (1986). In fact, a determination of physical custody under the Marriage Act “turns not
       on possession; rather, it requires that that parent somehow has voluntarily and indefinitely
       relinquished custody of the child.” In re Marriage of Rudsell, 291 Ill. App. 3d 626, 632
       (1997). Instead, our courts have held that “not every voluntary turnover of a child will
       deprive the parent of physical custody. Rather, the court must consider such factors as (1)
       who was responsible for the care and welfare of the child prior to the initiation of custody
       proceedings; (2) the manner in which physical possession of a child was acquired; and (3)
       the nature and duration of the possession.” In re A.W.J., 316 Ill. App. 3d 91, 96 (2000).
¶ 32       Here, petitioners have failed to address any of the aforementioned factors and instead
       resort to restating the factual arguments they made before the trial court, namely, that
       respondent “did not help care for Tatyanna, *** did not take her to doctor appointments,
       rarely spen[t] her birthdays and holidays with her, did not assist with her homework, and did
       not have weekend visitations with her.”
¶ 33       Petitioners have provided no evidence that respondent knowingly waived or abandoned
       her right to custody of Tatyanna or relinquished physical custody of her. As mentioned
       above, there was never any formal designation of petitioners as guardians over Tatyanna, nor
       were respondent’s parental rights ever terminated. Moreover, petitioners cite nothing in the
       record, nor can we find anything, which refutes the uncontradicted testimony of respondent
       that her arrangement with petitioners was temporary in nature. Neither Frances nor Cary
       provided any evidence suggesting that respondent waived or voluntarily relinquished her
       rights and granted petitioners custody over Tatyanna. Moreover, they have failed to cite a
       single case in support of their proposition that respondent conveyed a “constructive


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       guardianship” over Tatyanna to them. Not only do they fail to point to anything in the record
       which would indicate that a “constructive guardianship” was ever conveyed, a review of state
       and federal cases in all 50 states fails to yield even a single case recognizing or accepting the
       existence of a “constructive guardianship” over a minor.
¶ 34       Moreover, petitioners have failed to offer any compelling evidence that respondent
       granted them physical custody over Tatyanna. Applying the factors laid out in In re A.W.J.,
       we find sufficient evidence to support the trial court’s decision. First, the record indicates
       that respondent presented evidence that she was involved in many aspects of Tatyanna’s care
       and welfare prior to the initiation of custody proceedings, including being present for
       birthdays and holidays, and having Tatyanna stay with her on numerous occasions. Second,
       it is undisputed that in November 2010, Frances voluntarily brought Tatyanna to
       respondent’s home upon her request. It is also noteworthy that respondent repeatedly rejected
       petitioners’ requests to grant them custody of Tatyanna in a written document. Additionally,
       respondent presented evidence that the arrangement she made with petitioners was inherently
       temporary in nature and that respondent always intended to retain custody of Tatyanna once
       respondent “got on [her] feet.” We finally note that at the time of the hearing, Tatyanna had
       been living with respondent for close to a year and petitioners failed to produce any
       competent evidence indicating that respondent was either unwilling or unable to carry out
       the day-to-day child-care decisions.
¶ 35        While, as the trial court correctly noted, there were “definitely discrepancies in the facts,”
       these factual findings are nevertheless entitled to great deference on review because only the
       trial court “is in the best position to observe the conduct and demeanor of the parties and the
       witnesses.” Estate of Michalak, 404 Ill. App. 3d at 96. This court may not “substitute its
       judgment for that of the trial court regarding the credibility of witnesses, the weight to be
       given to the evidence, or the inferences to be drawn.” In re D.F., 201 Ill. 2d 476, 499 (2002).
       Consequently, despite the discrepancies in the facts, we are unwilling to say that the trial
       court’s ruling that petitioners’ petition failed to overcome the presumption in favor of
       respondent’s rights as Tatyanna’s biological mother was against the manifest weight of the
       evidence.


¶ 36                                     III. CONCLUSION
¶ 37      For the foregoing reasons, the decision of the trial court granting respondent’s motion to
       dismiss petitioners’ petition for plenary guardianship over Tatyanna is affirmed.


¶ 38       Affirmed.




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