Rule 23 order filed                    NO. 5-10-0353
December 10, 2010;
Motion to publish granted                  IN THE
January 6, 2011.
                            APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

In re GUARDIANSHIP OF A.G.G., a Minor  ) Appeal from the
                                       ) Circuit Court of
(Victor Eck,                           ) Jackson County.
                                       )
       Petitioner-Appellant,           )
                                       )
v.                                     ) No. 10-P-49
                                       )
Jennifer Greer,                        ) Honorable
                                       ) W. Charles Grace,
       Respondent-Appellee).           ) Judge, presiding.
________________________________________________________________________

       JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
       Justices Welch and Stewart concurred in the judgment and opinion.

                                       OPINION

       Victor Eck filed a petition for the guardianship of a minor, A.G.G., under the Probate

Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 2008)) in the circuit court of Jackson

County. After a hearing, the circuit court denied the petition. On appeal, Victor raises issues

regarding whether the circuit court erred by denying the petition on the grounds of standing,

without holding an evidentiary hearing on the issue. We reverse and remand with directions.

                                           FACTS

       On April 27, 2010, Victor filed a petition under the Probate Act, seeking the

guardianship of A.G.G., a minor, born in 2007. See 755 ILCS 5/11-5 (West 2008). Victor

stated that he had been caring for A.G.G. for the previous three years. Victor alleged that

A.G.G.'s mother, Jennifer Greer, has been unable and unwilling to care for her and had

relinquished that responsibility to him. Victor further alleged that A.G.G.'s biological father

was unable and unwilling to care for her, as evidenced by the lack of any involvement in

                                              1
A.G.G .'s life since her birth. At the same time, Victor filed a motion to enter an interim

order and appoint a guardian ad litem.

       The following day the court made a docket entry and entered a separate written order.

In the docket entry, the court stated that the petition did not contain any detail on the

relationship of Victor to A.G.G. and did not set forth all the allegations required by the

Probate Act (755 ILCS 5/11-3 (West 2008)). The docket entry stated that Victor had 14 days

to comply and that attorney Eugenia Hunter was appointed as the guardian ad litem. The

written order of that date also stated that Hunter was appointed as the guardian ad litem. On

May 11, 2010, Victor filed an amended petition for guardianship, in which he alleged that

he was not the biological father of A.G.G. but was the only father figure A.G.G. has ever

known.

       On June 2, 2010, the court entered an interim order stating that the cause had been

heard on the pending petition for a guardianship and a motion to enter an interim order. The

order appointed Hunter as the guardian ad litem and authorized her to appoint Victor as the

guardian if she deemed it to be in A.G.G.'s best interests. The order granted custody to

Victor for the pendency of the proceedings.

       On June 7, 2010, Jennifer filed a motion to dismiss the amended petition for a

guardianship. Jennifer asserted that the allegations in the amended petition did not overcome

the presumption that she is willing and able to carry out day-to-day child care decisions for

A.G.G. Jennifer asserted that, thus, the trial court lacked jurisdiction to proceed on the

petition. See 755 ILCS 5/11-5(b) (West 2008). Jennifer also filed a motion to vacate the

interim order.

       On June 7, 2010, the court entered several docket entries and a written order. In one

of the docket entries, the court stated: "Court hears motion to vacate 6/2/10 Interim Order.

Court continues Mot/Vacate, Motion to Dismiss." In the written order, the court set "[a]ll


                                              2
pending" matters for June 21, 2010. On June 18, 2010, Victor filed a response to the motion

to dismiss.

       On June 21, 2010, the guardian ad litem submitted a report outlining her interviews

of Jennifer, Victor, and A.G.G. The guardian ad litem stated that Jennifer "has difficulty

with the truth or an exceptionally faulty memory." The guardian ad litem also noted that

despite being educated, Jennifer had a sporadic work record and did not have the ability to

support herself. The guardian ad litem reported that Jennifer had lived in approximately nine

locations in the previous five years and was homeless at the time of the report. The guardian

ad litem concluded as follows:

       "If this were a custody case in which 'best interest' was the legal issue, I would have

       no hesitancy in recommending that the best interests of [A.G.G.] were with Victor

       Eck. This is, however, a guardianship case in which the standard is different and

       more complex. For this reason, I would prefer to withhold a recommendation until

       the evidence and testimony are presented."

       On June 21, 2010, the court called the case for a hearing. The court began by

discussing Jennifer's motion to dismiss for a lack of standing. Upon direct questioning by

the court, the guardian ad litem responded that she thought Jennifer was entitled to an

evidentiary hearing on the issue of standing. At that point, counsel for Jennifer stated that

Victor had to meet the threshold of standing before the best interests of the child could be

considered and that the guardian ad litem's opinion should be limited to the issue of best

interests. The court responded, "[The report of the guardian ad litem] has raised some

concerns that the Court had and I think that this Court does have the inherent power, whether

or not we get past that initial step, to look out for the best interest of the child; and I have

some real concerns that have been raised by the guardian ad litem's report and we're going

to have evidence today and I'm going to make a determination."


                                               3
       Jennifer's counsel responded by asking the court whether this meant that the motion

to dismiss had been denied. The court responded by asking if Jennifer's counsel would like

to make an argument or statement for the record. The colloquy continued:

              "[Counsel for Jennifer:] Certainly, your Honor. Then I would just like to state

       for the record that it is my understanding that the motion to dismiss this petition for

       guardianship has actually been based on a best standards or best interest of the child's

       standard and not on the statute under the Probate Act?

              THE COURT: Are you asking the Court a question, Ms. Coward?

              [Counsel for Jennifer:] I–originally, your Honor, I asked if the motion to

       dismiss had been denied.

              THE COURT: Well I'll deny the motion to dismiss.

              [Counsel for Jennifer:] Okay, and just for clarification, your Honor, it's being

       denied based on best interest of the child standard, is that correct?

              THE COURT: You don't wish to argue your motion?

              [Counsel for Jennifer:] No. That's a question, your Honor.

              THE COURT: No, it's not being denied under the best interest of the child.

       This Court has inherent authority to look out for the best interest of the child and

       that's why we're proceeding on the amended petition today."

       The court made the following docket entry: "6/21/10 Case called[;] parties, counsel,

GA all present. Ct Denies Mot/D, proceeds to hearing on A.Pet." The court noted that after

denying the motion to dismiss, it conducted a hearing over two days, at which both Victor

and Jennifer presented testimony from several witnesses. The docket entry concluded,

"Court finds that [Victor] has not proved by a preponderance of evidence that [Jennifer] as

natural mother is not willing and able to make and carry out day-to-day child care decisions

concerning the minor as per 5/11-5(b)." On June 28, 2010, the court entered a written order


                                              4
denying the petition on the grounds that Victor had failed to rebut the presumption that

Jennifer is willing and able to carry out day-to-day child care decisions.

         Victor appeals.

                                          ANALYSIS

         The results of the procedure used by the trial court are inherently unreliable. At the

beginning of the proceedings of June 21, 2010, the trial court denied Jennifer's request to

conduct an evidentiary hearing on the issue of standing. The court then proceeded to

entertain evidence seemingly on the best interests of the minor. At the conclusion of the

hearing, the court denied the petition, applying the standard for standing. The failure of the

court to entertain a hearing on the standard on which it denied the petition undermines the

credibility of its ruling and mandates a reversal.

         Section 11-5 of the Probate Act dictates the grounds for the appointment of a

guardian. 755 ILCS 5/11-5 (West 2008). In order to grant a petition for a guardianship, a

trial court must make two evidentiary findings. Paragraph (a) provides that upon the filing

of a petition the court may appoint a guardian as "the court finds to be in the best interest of

the minor." 755 ILCS 5/11-5(a) (West 2008). Paragraph (b) provides that a court lacks

jurisdiction to proceed on a petition if the minor has 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." 755 ILCS 5/11-5(b) (West

2008).

         The standards of the best interests of the minor, in paragraph (a), and a parent who

is "willing and able," in paragraph (b), are separate questions of fact. Historically, Illinois

courts have found guidance in the Illinois Marriage and Dissolution of Marriage Act

(Marriage Act) when determining the best interests of a minor in guardianship proceedings.

750 ILCS 5/602(a) (W est 2008); In re M arriage of Russell, 169 Ill. App. 3d 97, 102, 523


                                               5
N.E.2d 193, 197 (1988); In re Estate of Suggs, 149 Ill. App. 3d 793, 799, 501 N.E.2d 307,

310 (1986).     After the recent amendment to the provision for the revocation of a

guardianship, effective January 1, 2011, the Probate Act lists factors for determining best

interests, including the interaction with the parent, the ability of the parent to provide a

nurturing environment, and the stability of the parties. Pub. Act 96-1338 (eff. Jan. 1, 2011)

(amending 755 ILCS 5/11-14.1 (West 2008)).

        The question of whether a parent meets the willing-and-able standard set forth in

paragraph (b) is a separate test from the best-interests-of-the-minor standard. Paragraph (b)

sets forth a threshold for standing under the Probate Act that replaces a previous interpretation

derived from the Marriage Act. In re R.L.S., 218 Ill. 2d 428, 436, 844 N.E.2d 22, 28 (2006),

abrogating In re Person & Estate of Newsome, 173 Ill. App. 3d 376, 379, 527 N.E.2d 524,

525 (1988); In re Marriage of Haslett, 257 Ill. App. 3d 999, 1006, 629 N.E.2d 182, 186

(1994); In re Person & Estate of Barnhart, 232 Ill. App. 3d 317, 320, 597 N.E.2d 1238, 1240

(1992). Paragraph (b) states, "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." 755 ILCS

5/11-5(b) (W est 2008).

        The seminal case instructing on the appointments of guardians under the Probate Act

is In re R.L.S., 218 Ill. 2d 428, 436, 844 N.E.2d 22, 28 (2006). In re R.L.S. held that the

standing requirement contained in paragraph (b) protects the superior rights of parents and

ensures that guardianship proceedings pass constitutional muster. In re R.L.S., 218 Ill. 2d at

441, 844 N.E.2d at 31. In re R.L.S. explained the procedural protections outlined in section

11-5:

        "By allowing a guardianship petition to proceed to a hearing on the merits over the

        wishes of a parent only when the parent has been established to be unwilling or unable


                                               6
         to carry out day-to-day child-care decisions, the Probate Act respects the superior

         rights of parents while also insuring to protect the health, safety, and welfare of

         children." In re R.L.S., 218 Ill. 2d at 441, 844 N.E.2d at 31.

         In the case at hand, the trial court denied the request for an evidentiary hearing on the

standing issue and proceeded to entertain evidence supposedly on the remaining question of

best interests. After the evidentiary hearing, the court did not rule on the question of best

interests but dismissed the petition on the standard for standing. The proceedings before the

trial court were, at best, muddled. The process both diverged from the burden created by a

rebuttable presumption and undermined any claim that the issue of standing was actually

heard.

         The court's procedure displayed a misunderstanding of the nature of the standing

requirement as a rebuttable presumption. Once a presumption is overcome, it ceases to

operate. In re Estate of Miller, 334 Ill. App. 3d 692, 698, 778 N.E.2d 262, 267 (2002); In re

J.A., 316 Ill. App. 3d 553, 562, 736 N.E.2d 678, 686 (2000). The record indicates that by the

court's prehearing comments and ruling on the motion to dismiss, the parties to the action

were led to believe that the presumption had dissolved. Although the court might have

initially erred against Jennifer by not holding a hearing on standing, the court prejudiced

Victor by reviving the presumption after the conclusion of the evidence.

         Ultimately, the court ruled on the standing issue without conducting an evidentiary

hearing on the issue. The record indicates that the issue of whether Jennifer was a willing and

able parent was not actually tried. The court denied the request for an evidentiary hearing on

the issue of whether Jennifer was a willing and able parent and then proceeded to what was

ostensibly a dispositional hearing on best interests. Thus, the parties were not on notice that

the issue of standing was being considered by the court, and any evidence introduced on the

issue was merely coincidental. Alternatively, the court's action could be characterized as


                                                 7
misinterpreting the test for best interests. Either way, the issue of standing was never tried.

          The interpretation of comparable statutory schemes for determining custody supports

a reversal. Under other statutory schemes, the fitness of a parent and the best interests of a

child are seen as distinct matters, and courts have recognized the potential for prejudice and

confusion when the issues are not addressed at separate hearings. In re Adoption of Syck, 138

Ill. 2d 255, 276, 562 N.E.2d 174, 184 (1990); In re C.L.T., 302 Ill. App. 3d 770, 779, 706

N.E.2d 123, 129 (1999) (Adoption Act (750 ILCS 50/1 (W est 1996))); In re M.B., 332 Ill.

App. 3d 996, 1004, 773 N.E.2d 1204, 1210 (2002) (Juvenile Court Act of 1987 (705 ILCS

405/2-3 (West 2000))). This court need not address whether it is possible for the separate

issues of standing and best interests in the Probate Act to be considered at a consolidated

proceeding. See Freeman v. Settle, 75 Ill. App. 3d 799, 804, 393 N.E.2d 1385, 1388 (1979)

(the record indicated that the court and the parties clearly understood their responsibilities at

a single hearing under the Adoption Act); see also In re Custody of Gonzalez, 204 Ill. App.

3d 28, 31-32, 561 N.E.2d 1276, 1278 (1990) (a waiver of the standing requirement in a

custody case under the Marriage Act). At best, the proceedings in this case are so muddled

that they leave the factual underpinnings of the court's decision unreliable.

          Jennifer contends that Victor waived his right to appeal a lack of an evidentiary hearing

on the standing issue. Victor did not object to the lack of a hearing on the standing issue.

Indeed, Jennifer points out that Victor was perfectly happy with the trial court's prehearing

ruling.

          This, however, misconstrues why the proceedings were flawed. Victor had no reason

to call for an evidentiary hearing on the standing issue, or even present evidence on the issue,

because the trial court indicated that he had already been granted standing. Although Jennifer

is able to point to comments by the trial court at the conclusion of the hearing referring to

paragraph (b), the undeniable import of the trial court's prehearing comments was that the


                                                  8
ostensible purpose of the hearing was the question of bests interests, not standing. Thus, the

trial court's conclusory ruling and posthearing comments defy application of the standard of

review this court would apply if the issue had actually been tried. See In re Guardianship of

K.R.J., No. 4-10-0454, slip op. at 14-15 (Ill. App. Nov. 15, 2010) (describing the mixed

standard of review applied when standing is tried).

       The nature of the standing requirement as a protection for parents, instead of

petitioners, does not diminish the magnitude of the trial court's error. The application of a

standard for which there was no evidentiary hearing and the revival of a presumption that the

court indicated had been overcome mandate a remand for an actual evidentiary hearing on the

standing issue.

       The comments of the trial court that Jennifer relies on for her claim of waiver raise

other issues. Jennifer notes that the trial court referred to paragraph (b) after the conclusion

of the evidence. The court stated that the Probate Act limited its consideration to acts of

commission and excluded acts of omission as evidence. The Probate Act makes no such

distinction.

       The trial court also commented that the role of the guardian ad litem was limited to

issues concerning the best interests of the minor. In denying the request for an evidentiary

hearing on the issue of standing, the trial court suggested that the guardian ad litem would be

precluded from commenting on whether Jennifer was a willing-and-able parent. Again, there

is no basis for this limitation. The court had plenary jurisdiction over the person of the minor,

and the authority to appoint the guardian ad litem was derived from common law. In re

Estate of Green, 359 Ill. App. 3d 730, 737, 835 N.E.2d 403, 409 (2005).

                                        CONCLUSION

       Accordingly, the order of the circuit court of Jackson County is hereby reversed, and

the matter is remanded with directions to conduct an evidentiary hearing on standing as


                                               9
described in the Probate Act (755 ILCS 5/11-5 (West 2008)).



      Reversed; cause remanded with directions.




                                          10
                                         NO. 5-10-0353

                                            IN THE

                              APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

In re GUARDIANSHIP OF A.G.G., a Minor  ) Appeal from the
                                       ) Circuit Court of
(Victor Eck,                           ) Jackson County.
                                       )
       Petitioner-Appellant,           )
                                       )
v.                                     ) No. 10-P-49
                                       )
Jennifer Greer,                        ) Honorable
                                       ) W. Charles Grace,
       Respondent-Appellee).           ) Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:             December 10, 2010
Motion to Publish Granted:       January 6, 2011
Opinion Filed:                   January 6, 2011
___________________________________________________________________________________

Justices:        Honorable Richard P. Goldenhersh, J.
                 Honorable Thomas M. Welch, J., and
                 Honorable Bruce D. Stewart, J.,
                 Concur
___________________________________________________________________________________

Attorney         Susan Burger, 105 Willards Ferry Road, Jonesboro, IL 62952
for
Appellant
___________________________________________________________________________________

Attorneys         Ann P. Coward/Sandi Gordon, Land of Lincoln Legal Assistance
for               Foundation, Inc., 509 S. University Ave., 3rd Floor, Carbondale, IL 62901
Appellee
                 Eugenia C. Hunter, 905 W. Cherry, Carbondale, IL 62901 (guardian ad litem)
___________________________________________________________________________________
