In re Estate of T.A. , 2022 IL App (2d) 210460-U ( 2022 )

2021 IL App (2d) 21-0460-U
No. 2-21-0460
Order filed January 11, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re ESTATE OF T.A. ) Appeal from the Circuit Court
) of Kane County.
)
) Nos. 20-F-11, 19-P-150
)
) Honorable
(Michelle Anderson, Petitioner-Appellant, v. ) Joseph M. Grady,
Austin Cady, Respondent-Appellee). ) Judge Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court.
Justices Jorgensen and Brennan concurred in the judgment.
ORDER
¶1 Held: The trial court’s decision to terminate grandmother’s guardianship of minor and
transfer possession to father, a fit parent, was not against the manifest weight of the
evidence. Affirmed.
¶2 Petitioner, Michelle Anderson, grandmother of T.A., appeals from an order of the trial
court granting the petition of T.A.’s father, respondent. Austin Cady, to terminate her guardianship
of T.A. and to award him sole custody, principle allocation of parenting time, and sole
2021 IL App (2d) 210460-Uresponsibility for parenting the minor child. Petitioner seeks relief only from the court’s parenting
rulings. For the reasons that follow, we affirm.1
¶3 I. BACKGROUND
¶4 In November 2016, the circuit court of Allen County, Indiana, entered an order providing
that respondent is the biological father of T.A., awarding custody of the child to her biological
mother, Bailey Dahl, and reserving parenting time for respondent. T.A. was subsequently removed
from the possession of Bailey Dahl and transferred to petitioner, T.A.’s maternal grandmother.
¶5 On March 13, 2019, an order was entered in Kane County, Illinois, (case number 19-P-
150) appointing petitioner plenary guardian of T.A. and her sister, T.E., and C.A.S.A. was
appointed guardian ad litem. No notice of service or return of service upon respondent appears in
the record for the March 13 petition or court date. On March 28, 2019, petitioner filed an additional
motion seeking to be appointed guardian of the two minors. Notice of this motion listed respondent
with a Fort Wane, Indiana, address. In September 2019, an order was entered in the same case
providing for respondent to have weekly unsupervised visitation with T.A. and to participate in
transitional therapy with T.A. and her counselor.
¶6 In November 2019, petitioner filed a petition to modify, seeking to be awarded continued
sole parental responsibility for the care and control of T.A. until respondent “can demonstrate that
he has the requisite knowledge and understanding to effectively parent” her. Petitioner further
sought an order requiring respondent “to participate in therapeutic counseling with the minor child
1
Our disposition in this accelerated case was due January 10, 2022. Given extensions to
the briefing schedule, we have good cause for the delay pursuant to IL S. Ct. R. 311(a)(5) (eff.
July 1,2018).
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2021 IL App (2d) 210460-Uand counselor until a determination is made that is in the best interests [of T.A.] for the parental
responsibilities for the care and control of [T.A.] to be modified.”
¶7 In January 2020, the court found that “the transitional therapist is not performing as ordered
and intended” and terminated transitional therapy. Also, in January 2020, Bailey Dahl filed a
petition to allocate parental rights and responsibilities (case number 20-F-11). Attorney James
Jensen was appointed guardian ad litem of N.A. in that cause.
¶8 On April 15, 2020, in case number 19-P-150, respondent filed a petition to terminate
petitioner’s guardianship of T.A. Petitioner filed a response in August 2020. In November 2020,
CASA, which had been reappointed guardian ad litem in this cause, submitted a report to the court
recommending that T.A. remain under respondent’s guardianship and “continue to be provided
regular visits and phone calls” with petitioner. In December 2020, the court consolidated cases
numbered 19-P-150 and 20-F-11 and discharged court-appointed guardian ad litem CASA.
¶9 On January 13, 2021, petitioner was given leave to intervene. She filed a motion to allocate
parenting responsibilities and parenting time between herself as guardian of T.A. and respondent.
A trial was held on the competing petitions of respondent and petitioner on June 7, 8, and 10, 2021.
¶ 10 The Trial
¶ 11 Petitioner testified that she is a 49-year-old home healthcare worker, or nursing assistant.
She is in a six-year relationship and has four grown children. Her daughter Bailey had two children,
T.A., five and a half years old, and T. E., four, both of whom currently live with petitioner. Her
partner and his nine-year-old son also live with her. T.A. calls her “mom” and T.A.’s partner,
“papa.” They live in a five-bedroom house in Aurora, Illinois, where T.A. and Tessa choose to
share a room. T.A. interrelates with nine cousins; she and one cousin have sleepovers.
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2021 IL App (2d) 210460-U¶ 12 Petitioner paid for T.A.’s prenatal care and helped deliver her, and T.A. has lived with her
most of her life. According to petitioner, Bailey “really didn’t have any interest in being a mother
anymore.” Over the years, petitioner has made all of the medical, educational, and religious
decisions for T.A.
¶ 13 When petitioner filed her petition for guardianship of T.A. and Tessa in 2019, she listed
her occupation as “bartender” and gave respondent’s address as “Indiana.” She was issued letters
of office as T.A.’s guardian but was told by the court she needed to give notification to respondent.
She reapplied two weeks later listing a full address in Fort Wayne for respondent. Bailey signed a
consent to the guardianship in April 2019.
¶ 14 According to petitioner, respondent met T.A. for the first time in April 2019 when he was
in Illinois for “a court proceeding.” She believes he had known of T.A.’s existence since
proceedings in Indiana in 2016 established paternity and set child support. In September 2019,
after the court ordered visitation and transitional counseling, until the trial in June 2021, father and
daughter averaged less than monthly meetings, always in Illinois. Petitioner never brought T.A. to
Indiana for visitation. Respondent and T.A. did not meet for an eight-month period in 2020 due to
petitioner’ belief that the Covid19 restrictions in place in Illinois at that time were prohibitive. 2
Also, respondent’s son, who lived with him, contracted Covid-19 in March of 2020.
2
During petitioner’s cross-examination, the trial court took judicial notice of Governor
Pritzker’s Covid-19 executive order entered March 20, 2020, which lists court-ordered “transfer
of children pursuant to a custody agreement” as permitted “essential travel.”
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2021 IL App (2d) 210460-U¶ 15 Several visits ended with respondent bringing home a “distraught, crying” T.A. early; in
text messages, he complained that T.A. was “disrespectful,” “out of control,” even “mean.”
Respondent told petitioner that he believes in corporal punishment; petitioner does not.
¶ 16 Petitioner believes that “every child should have a relationship with their father” and that
she has “made every effort” to support T.A.’s relationship with respondent. T.A. and respondent
have weekly Zoom calls on Tuesdays and Thursdays, lasting from five to fifteen minutes
depending on how long T.A. stays engaged. Numerous texting communications between petitioner
and respondent, mostly regarding scheduling and cancelling of visitation, were introduced at trial.
¶ 17 Petitioner’s “spouse’s family” owns a lake home in Elk Horn, Wisconsin, and they go
there every weekend possible, at least a dozen times over the course of a year; the trip is about one
hour and forty minutes from her home in Aurora. Petitioner’s mother lives in the Smoky Mountains
in Tennessee; petitioner has taken T.A. to visit her three times in the past four years. That trip is
just under nine hours. She has also taken T.A. to Kentucky Lake, a six-hour drive. When asked
how many times she took T.A. to Indiana since the case was filed, petitioner answered: “Zero. I
was told that was not my responsibility.”
¶ 18 Jessica Rogers, T.A.’s primary teacher when she started at Ivy Academy in 2019, and now
area director for the school, testified that T.A. has always been “at the top of the charts” for
academics. Although she was in the lower portion of the emotional/social scale for children her
age when she began at the school three years ago, she is now “on the top end of her age bracket”
for emotional/social skills. Rogers described T.A.’s relationship with Tessa, who also attends the
school, as “conjoined at the hip,” if they could be. Petitioner works very hard to make sure both
girls excel in school. Rogers has seen respondent at the school “once or twice.”
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2021 IL App (2d) 210460-U¶ 19 James Jensen testified that during his tenure as GAL he has had “half a dozen or more”
telephone conferences with both petitioner and respondent and met T.A. on “probably half a
dozen” occasions. In March 2020, he reported to the court that respondent needed to “step it up”
since he was not a factor or force in T.A.’s life during the first three years of her life and that he
had some doubts as to petitioner’s commitment to the reintegration of father and daughter. He sat
down with them after court and reached an agreement that there would be a sequence of weekend
visitations in Illinois and several in Indiana. However, respondent’s son was suspected of having
Covid and went into quarantine, and the contemplated visitation never got “off the ground.”
¶ 20 When the pandemic first arrived, Jensen was privy to e-mails from petitioner indicating
that respondent could not have any in-person visitation because Illinois was in “total lockdown,”
which was “somewhat of a mischaracterization of what the governor had done.” Accordingly,
reunification has “sputtered” but has never “gone in the right direction,” which Jensen finds to be
“unfortunate.”
¶ 21 When Jensen first met T.A. in March 2020, she was happy to talk with him about spending
time with her father: “[i]f anything, she went from this happy and engaging child to a more happy,
more engaging child when dad was brought up.” But in the ensuing 15 months, there was a change.
Now, when he asks about seeing her father, he feels “a little bit of stress building up in in her.”
She gives what he thinks are “sort of canned answers that he spanks me, or that he’s mean to me,
or I don’t want to go to Indiana.”
¶ 22 Jensen would describe T.A.’s relationship with petitioner as “loving. [She] obeys
grandmother very well.” T.A. and Tessa act “like you would expect two little sisters to act.” Jensen
believes T.A. is stable living with petitioner, and he considers stability “to probably be the number
one factor in most of my investigations.”
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2021 IL App (2d) 210460-U¶ 23 Respondent’s relationship with T.A. is “going in the wrong direction *** because of the
lack of in-person involvement between the parties.” Jensen knows of no substantial steps petitioner
has taken to make sure T.A. has a loving relationship with respondent, other than setting up their
Zoom conversations. He also had a concern about respondent’s “staying power” in March 2020
due to his absence from T.A.’s life from 2016 until 2019 and finds the lack of effort to seek out
the child “puzzling.” He finds the fact that respondent had 17 visits in the 83 weeks prior to the
trial “somewhat troubling” and also acknowledges that petitioner did not drive T.A. to Indiana to
see respondent during that time.
¶ 24 Jensen believes that it could be emotionally and psychologically detrimental to T.A. to
relocate to Indiana to live with her father without having spent any time in his home there. He also
believes that reunification should be the goal. When pressed by counsel as to T.A.’s best interests
with respect to who should have primary residential control and parenting responsibilities, Jensen
stated: “I would punt the ball. I’d kick the can down the road and somehow, someway see if we
could have reunification therapy that works in this case that both parties buy into.” When pressed
further, he said: “Well, if you’re going to take away from me my effort to answer your question,
then, I would have to say [petitioner].” “At the end of the day,” he thinks that reunification is best
for T.A.
¶ 25 Respondent testified that he is 30 years old and works out of his home as an area manager
of operations with Averhealth. He is currently married for the second time. Prior to their marriage,
respondent and his first spouse had one child, Ranger, born in 2014, who lives with him and his
current wife in a four-bedroom house. T.A. is his second child; he broke off his brief relationship
with her mother, Bailey Dahl, after he found drugs in his home. He did not know she was pregnant
until he was notified of paternity proceedings and his child support obligations in September 2016.
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2021 IL App (2d) 210460-UA third child is the product of a relationship he had in 2018 after separating from his ex-wife. The
child resides primarily with her mother, though respondent has parenting time “[a]t least every
other weekend.” He married his current wife in January 2021. She works on the administrative
side of a substance abuse clinic and is pregnant with his fourth child.
¶ 26 Respondent testified that he has objected to petitioner’s guardianship petition from the time
he learned of it in 2019. He attributed the accounting of his seventeen visits in eighty-three weeks
partially to his need to care for his other minor children but also to petitioner’s having “sabotaged”
his relationship with T.A. by “actively coaching my daughter against me, having improper
conversations with her, and *** actively lying and misinterpreting the Governor’s order regarding
a lockdown.” Petitioner has enrolled T.A. in gymnastics, which conflicts with the time respondent
is supposed to have parenting time. T.A. reported that petitioner had told her that he was going to
take her out of Illinois to Indiana to live with him and she would never see her sister or petitioner
again. Petitioner told respondent that the therapy sessions were supposed to occur with just T.A.
and he was not supposed to be present, and she had communications with the therapist that were
never relayed to him.
¶ 27 Respondent testified that on several visits, when T.A. had emotional outbursts, he would
bring her back to petitioner’s house early, because he did not have “a proper place to parent” in
Illinois. He believes that a “public venue is not an appropriate place to parent a child.” It can be an
embarrassing moment for a child, and not because it would involve corporal punishment.
¶ 28 He agreed that he should take the initiative to see T.A. and stated that he had asked to come
visit T.A. on “numerous occasions” in the last eight months, but petitioner relayed “the information
that Illinois is on a total lockdown, and that people driving to Illinois from Indiana must quarantine
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2021 IL App (2d) 210460-U10 days in advance.” Due to the “active coaching” and the “alternative arrangements that are made
for every visitation attempt,” he and T.A. have a “toxic, damaged relationship.”
¶ 29 Respondent stated that he would be the one who would take care of T.A. after school, as
he works from home. He acknowledged that she “may need intense family therapy for a short
period of time” following the transition. He believes it is in T.A.’s best interest to be separated
from the sister and family she knows in order to live with him because “she deserves the right to
grow up knowing her father, having him in her life, as well as her other siblings.
¶ 30 The Trial Court’s Decision
¶ 31 The trial court found that T.A. “appears to be thriving” under petitioner’s guardianship,
whose home and living arrangements “appear to provide a stable environment for the child.” The
court also noted its concern about respondent’s relationships with multiple women, including the
fact that he has fathered four children with four different women, stating that “has been his choice
and will be his responsibility.”
¶ 32 The court noted that throughout the history of the case the CASA GAL, GAL Jensen, and
the court have “recommended, encouraged and ordered transitional therapy” for respondent and
T.A. and, further, that the one attempt at therapy was unsuccessful because the therapists selected
were not qualified. The court found that respondent has made “less than a diligent effort to develop
a relationship” with T.A., but that some of his efforts have been “obstructed” by petitioner, usually
because “she and the child were going somewhere or doing something with [petitioner’s’ family
when [respondent] had made plans with [petitioner] or on his own to visit the child.” Petitioner
has “done little to further a relationship” between respondent and T.A. and “has done nothing
unless the action or conduct required of her to foster such relationship is specifically ordered by
the court.” As examples, the court cited petitioner’s refusal to do any transportation of T.A. to visit
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2021 IL App (2d) 210460-Urespondent and her scheduling therapy sessions when respondent was working and unable to
participate.
¶ 33 The court agreed with GAL Jensen’s opinion that unification of T.A. with her father
“should be the objective of the parties and the Court, but not at this time.” The court found,
however, that if petitioner’s guardianship were to continue, “it is unlikely that the unification ***
will move any closer to accomplishment than it has throughout the history of this case.”
Accordingly, the court granted respondent’s petition to terminate guardianship as of July 15, 2021,
and ordered that respondent shall “take possession of” T.A. no later than August 1, 2021.
¶ 34 The court then granted petitioner’s motion for stay pending appeal and included in its order
the directive that petitioner shall drive T.A. to respondent’s Indiana residence “every other
weekend starting on August 14, 2021,” with visitation to begin at 10: a.m. on Saturday and end at
12:00 p.m. on Sunday, at which time petitioner shall pick up T.A. from respondent’s residence and
transport her back to petitioner’s residence in Illinois.
¶ 35 II. ANALYSIS
¶ 36 Petitioner does not appeal from the termination of her guardianship, nor from the trial
court’s award of sole custody to respondent. Her only contention on appeal is that the court’s
orders giving respondent the principal allocation of parenting time and sole responsibility for
parenting are not in T.A.’s best interests. Those orders, like the termination of petitioner’s
guardianship, are custodial in nature. See Black’s Law Dictionary (11th ed. 2019) (custody is the
“care, control, and maintenance of a child”; sole custody is “full control [of] and sole decision-
making responsibility” for a child); see also Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/official (last visited Dec. 15, 2021)
[https://perma.cc/HWC2-PCCC]. (“guardian” and “custodian” are synonymous). Thus, in this
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2021 IL App (2d) 210460-Ucase, we do not view the responsibility for parenting of T.A. separately from her guardianship and
custodial arrangements.
¶ 37 We will not disturb a trial court’s determination relating to custody unless it is against the
manifest weight of the evidence. In re Estate of K.E.S., 347 Ill. Ap. 3d 452, 461 (2004). A decision
is against the manifest weight of the evidence where the opposite conclusion is apparent or the
findings appear to be unreasonable, arbitrary, or not based on the evidence. Id.¶ 38 Petitioner argues that once standing is determined, the “best interests of the child is the
paramount consideration to which no other takes precedence,” quoting In re Austin, 214 Ill. 2d 31,
46 (2005). The Austin court’s remark, however, was made in the context of “an order of disposition
regarding the custody and guardianship of a minor ward.” Id. As petitioner does not challenge the
trial court’s disposition of the custody and guardianship of T.A., she has forfeited this point
regarding best interests. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“[p]oints not argued are
forfeited”). Forfeiture aside, the supreme court later abrogated In re Austin. See In re M.M. and
J.M, 2016 IL 119932, ¶¶ 27, 28 (repudiating the proposition that “the best interest standard trumps
all” and holding that “section 2–27(1) of the [Probate] Act [705 ILCS 405/2–27(1) (West 2012)]
does not authorize placing a ward of the court with a third party absent a finding of parental
unfitness, inability, or unwillingness to care for the minor”).
¶ 39 Petitioner’s best interests arguments avoid any mention of respondent’s parental rights. See
Troxel v. Granville, 530 U.S. 57, 68–69 (2000) (holding a Washington grandparent visitation
statute unconstitutional as applied because it allowed the petitioners to proceed straight to a best-
interests analysis without any deference accorded to the parent’s decision to limit grandparent
visitation). Our supreme court in M.M. recognized that it is “beyond discussion that parents have
a fundamental liberty interest in the care, custody, and control of their children.” Id. ¶ 26 (citing
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2021 IL App (2d) 210460-UTroxel, 530 U.S. at 65–66). Further, “as a matter of constitutional law, ‘there is a presumption that
fit parents act in the best interests of their children.’ ” Id. (quoting Troxel, 530 U.S. at 68). In this
case, no evidence was presented that respondent is an unfit parent. On the other hand, GAL Jensen
opined that respondent was a fit parent, an Indiana court found him to be a fit and proper parent
during the custody proceedings over his first child, and petitioner conceded the point during
closing arguments.
¶ 40 The trial court’s decision to reunite T.A. with her father recognizes respondent’s parental
rights and, because respondent has not been proven to be an unfit parent, presumes that
reunification is in T.A.’s best interests. The court’s findings that petitioner has obstructed
respondent’s efforts to develop a relationship with T.A. and has done little to foster a relationship
between them are not against the weight of the evidence. Nor is its conclusion that “it is unlikely
that the unification of the child with her father will move any closer to accomplishment than it has
through the history of this case” against the manifest weight of the evidence. Accordingly, the
court’s orders granting respondent’s petition to terminate guardianship and transferring possession
of T.A. to respondent are affirmed.
¶ 41 Respondent requests that we vacate the stay of judgment pending appeal and “order the
immediate turnover of his daughter.” However, because the potential harshness of an immediate
transfer of possession may be somewhat ameliorated by the ordered visitation at respondent’s
home every other weekend during the stay, we deny respondent’s requests.
¶ 42 III. CONCLUSION
¶ 43 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 44 Affirmed.
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