                        Illinois Official Reports

                                Appellate Court



                  In re Estate of B.R.S., 2015 IL App (3d) 150038



Appellate Court    In re ESTATE OF B.R.S. a Minor (Jamie R. Lawson, Petitioner-
Caption            Appellee, v. Conaley Michael Aaron and Jessica Erin Aaron,
                   Respondents-Appellants).




District & No.     Third District
                   Docket No. 3-15-0038




Filed              June 12, 2015




Decision Under     Appeal from the Circuit Court of Tazewell County, No. 14-P-346; the
Review             Hon. Michael D. Risinger, Judge, presiding.




Judgment           Vacated and remanded.




Counsel on         Robert R. Parker, of Parker & Parker, of Peoria, for appellants.
Appeal
                   Betty K. Cassidy, of Cassidy Law Office, of Pekin, for appellee.
     Panel                     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 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

             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 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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       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 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).
¶ 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.


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                    “(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).
                “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.
¶ 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

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       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 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.
¶ 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

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       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.
¶ 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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