                                         2015 IL App (3d) 150038

                                 Opinion filed June 12, 2015
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                A.D., 2015

     In re Estate of B.R.S.                  )    Appeal from the Circuit Court
                                             )    of the 10th Judicial Circuit,
             a Minor                         )    Tazewell County, Illinois,
                                             )
     (Jamie R. Lawson,                       )
                                             )    Appeal No. 3-15-0038
                    Petitioner-Appellee,     )    Circuit No. 14 P 346
             v.                              )
                                             )
     Conaley Michael Aaron and               )    The Honorable
     Jessica Erin Aaron,                     )    Michael D. Risinger,
                                             )    Judge, Presiding.
                    Respondents-Appellants). )
                                             )
     _____________________________________________________________________________

           PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justices Holdridge and Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION


¶1          Respondents, Conaley and Jessica Aaron (the Aarons), appeal the trial court's denial of

     their petition to vacate the order granting Jamie Lawson plenary guardianship of the minor,

     B.R.S. Their arguments focus primarily on Lawson's failure to (1) list them as the minor's nearest

     kin and her custodians in the petition for guardianship and (2) provide them notice of the

     hearing. They assert that these failures were part of a fraud perpetrated by Lawson upon the court
     in pursuit of custody of the minor. They contend that the omissions render the order voidable and

     require the court to conduct a more in-depth review to ascertain whose appointment as guardian

     would serve the best interest of the minor. Additionally, the Aarons take issue with section 11-8

     of the Probate Act of 1975 (755 ILCS 5/11-8 (West 2014)) and challenge its constitutionality.

     They argue that on its face this section thwarts their fundamental right to due process as it

     confers an interest in the proceeding but retracts the need for notice allowing them to participate

     in the disposition of the case. Lastly, they claim that Lawson should be estopped from

     guardianship as a matter of law as her parental rights were relinquished in the adoption of the

     minor by the newly deceased parent. We agree that the trial court erred in denying the Aarons'

     motion to vacate. We remand the case for proceedings in accord with this opinion.

¶2                                                         FACTS

¶3           B.R.S. was born to Jamie Lawson and Justin Shannon in 2005. In 2009, both parents

     relinquished their parental rights and their daughter was adopted by her paternal grandmother,

     Cindy Fincham. On October 31, 2014, Cindy passed away.

¶4           On November 7, 2014, Lawson petitioned the court for emergency and temporary

     guardianship of the minor. In the petition she acknowledged the relinquishment of her parental

     rights but claimed that the minor was now "without a guardian or any person who [could]

     provide for the child's care." She listed how her circumstances had changed, alleged that Justin's

     had not changed, and argued that her guardianship would be in the best interest of the minor.

¶5           At the hearing on the matter, Lawson testified to her current personal status, including her

     marriage, residence, income, and other household members. 1 She told the court she had regular


             1
                 The record on appeal does not include a transcript of the November 7, 2014 hearing on Lawson's petition

     for temporary guardianship. Statements from Lawson's testimony at that hearing are gleaned from the transcript of


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     contact with the minor and again informed the court that the minor was now "without a guardian

     or any person who can provide for the child's care including medical care." Lawson stated that at

     the present time the minor was with Justin. However, Jamie did not note this in her petition or

     include the address of the minor. Despite the fact that the petition was styled as a request for

     temporary guardianship, the court granted Lawson plenary guardianship. Accompanied by

     police, Lawson promptly went to forcibly retrieve the child from Justin, the Aarons, and several

     other relatives who were attending the funeral service for Cindy. She was prevailed upon to let

     the child remain for Cindy's funeral.

¶6            On November 14, the Aarons motioned for the court to vacate its ex parte order granting

     plenary guardianship to Lawson. At the motion hearing, the Aarons enumerated significant

     omissions from Lawson's petition for guardianship of information mandated by section 11-8 of

     the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-8 (West 2014)). They stated the petition

     was missing the correct address of the minor, the names and addresses of the minor's nearest

     relatives, including the Aarons, and the name and address of the person having custody of the

     minor. They also noted the omission of the approximate value of the minor's personal estate and

     the fact that the minor's gross income and receipts from social security would be approximately

     $1,800 per month. Lawson also omitted her occupation as a stripper at Club Cabaret. Lastly,

     they submitted proof that the minor had not been covered on health insurance presumably by

     Lawson even though providing medical care was one of the several purposes Lawson petitioned

     for the award of guardianship. The Aarons alleged that collectively the defects amounted to fraud




     the hearing on the Aarons' motion to vacate, which is in the record, where recounts of the petition hearing are

     discussed, as well as Lawson's appellate brief.


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       and that proper notice of the petition should have been given to them. It is, they argued, thus

       void.

¶7               Lawson contended that notice is not mandatory and failure to provide such would leave

       the order of the court only voidable. Additionally, she, and the court, asserted that they simply

       did not think about other relatives, including brothers, sisters, aunts, and uncles, requiring notice

       under the Probate Act. The court also stated it did not find notice to Justin required, even though

       legally he is the minor's brother, as he was "not related anymore" pursuant to the relinquishment

       of his parental rights.

¶8               Although conceding a lot of things could have been done differently, the court denied the

       Aarons' petition despite their other evidence of the significance and closeness of their

       relationship with the child. The judge stated that the minor needed "a guardian. And I can't do a

       temporary guardianship, so what was left --- was a plenary guardianship. That's what I ordered."

       The court declined to find that there had been fraud with respect to the defects in Lawson's

       petition and held that the lack of notice had no effect on his jurisdiction to rule on the case. The

       court did express its frustration with the structure of the statute noting that "[the legislature] put

       down that you have got to give notice to any relative named in the petition, so how do you get

       around that? Just don't name them."

¶9               The Aarons timely appealed.

¶ 10                                               ANALYSIS

¶ 11             We review the denial of a motion to vacate for an abuse of discretion. Berg v. Mid-

       America Industrial, Inc., 293 Ill. App. 3d 731, 734 (1997). Where our decision requires

       construction of the statute, our review is de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 267

       (2003).


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¶ 12           The court in this case denied the Aarons' motion to vacate its order granting Lawson

       plenary guardianship of the minor. Sections 11-8 and 11-10.1 of the Probate Act are pertinent to

       the issues raised in this appeal.

                               "(a) The petition for appointment of a guardian *** of both

                       the person and estate, of a minor *** must state, if known: (1) the

                       name, date of birth and residence of the minor; (2) the names and

                       post office addresses of the nearest relatives of the minor in the

                       following order: (i) the spouse, if any; if none, (ii) the parents,

                       adult brothers and sisters, and the short-term guardian, if any; if

                       none, (iii) the nearest adult kindred; (3) the name and post office

                       address of the person having the custody of the minor; (4) the

                       approximate value of the personal estate; (5) the amount of the

                       anticipated gross annual income and other receipts; (6) the name,

                       post office address and, in case of an individual, the age and

                       occupation of the proposed guardian; (7) the facts concerning the

                       execution or admission to probate of the written designation of the

                       guardian, if any, a copy of which shall be attached to or filed with

                       the petition; and (8) the facts concerning any juvenile, adoption,

                       parentage, dissolution, or guardianship court actions pending

                       concerning the minor or the parents of the minor and whether any

                       guardian is currently acting for the minor." (Emphasis added.) 755

                       ILCS 5/11-8 (West 2014).




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                      "Unless excused by the court for good cause shown, it is the duty

                      of the petitioner to give notice of the time and place of the hearing

                      on the petition, in person or by mail *** to the relatives *** whose

                      names and addresses are stated in the petition *** but failure to

                      give notice to any relative is not jurisdictional." (Emphasis added.)

                      755 ILCS 5/11-10.1 (West 2014).

¶ 13          The plain language of the statute evidences a clear legislative intent that all the

       information it deemed necessary for the court’s determination of the best interest of the child

       who is the subject of the guardianship proceeding must be provided to the court. Some of that

       information is required to be set out in the petition for guardianship itself. Other information is

       to be presented at a hearing of which all immediate relatives and current custodians or short-term

       guardians of the child have notice and in which they can be heard in support of or opposition to

       the appointment of the petitioner as guardian. Most of the information required by the statute for

       a meaningful best interest determination was omitted by Lawson from her petition.

¶ 14          We find that Lawson’s petition for guardianship provided to and accepted by the court

       was evasive, duplicitous and plainly noncompliant with the statute. The petition submitted by

       Lawson is devoid of such basic information as: the current whereabouts and custodian of the

       child, the identification and location of her closest relatives, any estate and income of the child,

       and even, as the person seeking guardianship, her own occupation. This petition would be

       glaringly deficient even if prepared by Lawson herself. It is exceedingly troubling that it was

       prepared and submitted by a licensed attorney, who is presumed to know the applicable law and

       has been trained to comply with legal requirements.




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¶ 15          Despite the deficiencies in the petition, the trial court awarded permanent or plenary

       guardianship to Lawson. Even after being made aware of the identification of close adult

       relatives and of other salient information omitted from Lawson’s petition, the court refused to

       vacate the challenged order.

¶ 16          We consider the three conclusions reached by the trial court to justify its refusal to vacate

       its order awarding Lawson guardianship of the minor child.

¶ 17          First, concerning the fundamental issue of its jurisdiction, there is no dispute that the

       court had subject matter jurisdiction to consider and determine the issues presented by Lawson’s

       petition for guardianship and the Aarons’ motion to vacate the guardianship. According to the

       plain language of the statute, the petitioner’s failure to provide notice to proper parties does not

       divest the court of this jurisdiction. 755 ILCS 5/11-10.1 (West 2014) ("failure to give notice to

       any relative is not jurisdictional"). See In re Estate of Neuf, 85 Ill. App. 3d 468, 470 (1980)

       (court denied petition as notice was not required and had a guardian ad litem assess the

       petitioner's ability to care for the stroke victim/relative). The significance of this fact is that a

       judgment entered by the court in the absence of such notice is not void from its inception. It is,

       however, voidable and errors relative to the judgment can and should be corrected. See People v.

       Mescall, 379 Ill. App. 3d 670, 673 (2008).

¶ 18          Second, the fact that a failure to give notice is not jurisdictional is not tantamount to a

       finding that notice is not mandatory. To the extent that In re Marriage of Frazier, 205 Ill. App.

       3d 621, 623 (1990), holds otherwise, we believe it was wrongly decided. Again, the plain

       language of the statute clearly demonstrates the mandatory nature of the notice to the Aarons and

       to Justin of a hearing on Lawson’s guardianship petition. Section 11-8 of the Probate Act says

       the petition "must state, if known *** (2) the names and post office addresses of the nearest


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       relatives of the minor in the following order *** (ii) the parents, adult brothers and sisters, and

       the short-term guardian, if any; if none, (iii) the nearest adult kindred." 755 ILCS 5/11-8 (West

       2014).

¶ 19            Lawson attempted to explain the omission of the Aarons and Justin by claiming that she

       “didn’t think about” them. There is, however, no dispute that they were known to her. We find

       her claim undercut, first, by the fact that, in preparing the petition, competent counsel would

       have sought the specific information required by the statute from the client, triggering her

       recollection of the existence of the child's relatives, and, second, by the additional fact that

       immediately upon receiving the order, Lawson went, accompanied by the police, to forcibly

       wrest the child from the custody of the very persons she failed to acknowledge or identify in the

       petition. It is without consequence that the trial judge also did not think about them. He was not

       under a statutory obligation to do so.

¶ 20            Further regarding whether providing notice was mandatory, section 11-10.1 tells us that

       unless the court has found good cause to excuse the notice—which the court indicated it had

       not—"it is the duty of the petitioner to give notice of the time and place of the hearing *** to the

       relatives *** whose names and addresses are stated in the petition." 755 ILCS 5/11-10.1 (West

       2014).

¶ 21            It is the petitioner’s statutory obligation to provide, inter alia, the names of the minor’s

       nearest relatives and adult kin in her petition and her statutory duty to give notice of the hearing

       to those persons so named. By failing to identify close relatives and to provide such relatives

       with notice of the hearing on guardianship, Lawson deprived the court of its ability to make a full

       and fair assessment of all pertinent circumstances and reach an informed decision on

       guardianship that was in the best interest of this child.


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¶ 22          Third, we consider the trial court’s conclusions that it had no authority under the statute

       to grant the temporary guardianship requested in Lawson’s petition and that its order awarding

       permanent guardianship could not or should not be vacated. While the trial court is correct that

       the Probate Act makes no provision for an award of an emergency or temporary guardianship, its

       decision to award permanent guardianship in this case without the information explicitly required

       by the statute is incorrect and improvident.

¶ 23          Section 11-5.4 of the Probate Act does provide for the adoptive parent's appointment, in

       writing, of a short-term guardian. 755 ILCS 5/11-5.4(a) (West 2014) Section 11-5.3 allows the

       written appointment to be made "in any writing, including a will." 755 ILCS 5/11-5.3(a) (West

       2014). The record in this case contains no transcript of the ex parte hearing nor otherwise

       discloses whether the trial court inquired about the possibility of such an appointment, whether

       there was a will, or even if there was verification of the adoptive parent's death. The petition was

       filed and the hearing held mere days after Cindy's passing and the record here on appeal does not

       show that anything was provided to the trial court other than the petition itself.

¶ 24          By its omissions, Lawson's petition created the false specter of a 10-year-old girl,

       orphaned, homeless, fending for herself "without any person who can provide for the child's care

       including medical care." This was not a situation where the petitioner provided false information

       under oath, where the court could be justified in accepting it at face value; Lawson provided no

       responses to critical questions. The court should have stricken her petition and required her to

       refile one actually in compliance with the requirements of the statute. Maybe then she would

       have also recalled and listed in her petition the relatives she "didn't think of" in the original

       petition. In the interim, appointment of a guardian ad litem by the court would have ensured that

       proper care was being provided to the child, pending an informed guardianship determination.


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¶ 25          We find the trial court (1) erred in awarding Lawson guardianship on the basis of her

       deficient petition and (2) abused its discretion by (a) ignoring the material facts of which it had

       newly been made aware and which had been omitted from Jamie's petition; (b) denying the

       Aarons' petition to vacate its order; and (c) failing to conduct an evidentiary hearing to determine

       whose guardianship was in the best interest of the minor. The order is vacated and the matter

       remanded for the court to reconsider guardianship in light of all of the known facts and with the

       opportunity for involvement of all of the parties designated by the statute.            Having so

       determined, we need not reach the Aarons' other issues here on appeal.

¶ 26                                            CONCLUSION

¶ 27          The judgment of the circuit court of Tazewell County is vacated and the matter remanded

       for proceedings in accord with this opinion.

¶ 28          Vacated and remanded.




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