Carafotes v. Hull (In re A.D.)

1

2024 IL App (1st) 230306-U

IN RE THE ESTATE A.D., a Minor

Rachel E. Carafotes, Petitioner-Appellant, v. Kelly J. Hull., As Plenary Guardian of the Person of the Minor, Respondent-Appellee.

No. 1-23-0306

Court of Appeals of Illinois, First District, Fifth Division

April 12, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 2018 P 4818 Honorable Amee E. Alonso Judge, Presiding.

JUSTICE NAVARRO delivered the judgment of the court. Justices Mikva and Lyle concurred in the judgment.

ORDER

NAVARRO, JUSTICE

¶ 1 Held: Where the circuit court did not hold an evidentiary hearing, the court erred when it denied Appellant's section 2-1401 petition seeking to vacate the order appointing Appellee as guardian of the person of the minor based on lack of personal jurisdiction; reversed and remanded.

¶ 2 Appellant, Rachel E. Carafotes, appeals from the circuit court's order denying her amended motion to vacate the order appointing a guardian for the minor, A.D., brought pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2022)), in which she sought to vacate the circuit court's November 21 2018, order appointing Appellee, Kelly J. Hull, as guardian of the minor. On appeal, Carafotes contends that the court erred when it denied her motion to vacate because the November 21, 2018, order appointing Hull as guardian of the minor was void based on lack of personal jurisdiction. We reverse and remand for the court to hold an evidentiary hearing.

¶ 3 I. BACKGROUND

¶ 4 Carafotes is the biological mother of the minor, A.D., who was born on March 8, 2017. On November 21, 2018, the circuit court entered an order appointing Hull, the minor's great aunt, as the guardian of the person of the minor. In April 2022, Carafotes filed a petition to vacate that order, which the court denied on January 19, 2023. The following is a summary of the documents contained in the common law record.

¶ 5 Petition and Order Appointing Hull as the Minor's Guardian

¶ 6 On July 13, 2018, Carafotes, as petitioner, filed a petition for guardian of the minor. The petition stated that it was in the minor's best interests that a guardian of the person of the minor be appointed based on "complications arising out of a domestic violence incident with the child's father." The petition which Carafotes signed, requested the court appoint Hull as guardian of the person of the minor. Attorney Jack Prato signed the petition under the attorney certification section, and his attorney information is provided at the bottom of the document.

¶ 7 Carafotes attached a notarized affidavit to the petition, in which she averred that she was "willfully petitioning" the court for the appointment of Hull as the guardian of the minor for "her protection" and requested that Hull be appointed as "temporary guardian." She stated that on August 14, 2017, a court in the state of New York entered an order of protection and a no contact order against the minor's father for a five-year period "due to a domestic violence incident." Carafotes also attached to the petition a document entitled "Temporary Guardianship Agreement," which was notarized and signed by both Carafotes and Hull on June 27, 2018, and stated that Carafotes "grant[s] temporary guardianship" of the minor to Hull and her husband, Mark Hull, from July 18, 2018, to July 18, 2019.

¶ 8 On August 7, 2018, Carafotes filed a "motion for appointment of guardian of a minor," in which she requested in her prayer for relief that the court "appoint [Hull], as Guardian of the Person" of the minor. The preamble of the motion, which Carafotes signed, states as follows: "Now comes the Petitioner, Rachel Carafotes, by and through her attorneys, PRATO & ASSOCIATES, P.C., and moves this Honorable Court for an order appointing Kelly Hull as Guardian of the Person for the minor." The motion states that on June 27, 2018, Carafotes and Hull entered into a temporary guardianship agreement through July 18, 2019.

¶ 9 The record contains a notice of motion addressed to Hull and certified by Attorney Prato that set the motion for appointment of a guardian for September 5, 2018. The motion was continued two times. Then, on November 21, 2018, the circuit court entered an order appointing Hull as guardian of the person of the minor. The order indicates that the matter was before the court on the verified petition of Carafotes, that due notice was given, and that the bond of the guardian was approved. The record does not contain a transcript of the November 21, 2018, court date.

¶ 10 On the same date, the court also entered a separate order, which stated that a court in New York had entered a five-year order of protection against the minor's father and that, "[p]ursuant to a Temporary Guardianship Agreement [b]etween the [g]uardian of the child's mother to protect the child due to the exigent & emergency circumstances; the six month residency requirement is waived." The court also entered an "Oath and Bond of Representative-No Surety" form, in which Hull indicated that she would discharge faithfully the duties of the office of representative. The form was signed by Hull and Attorney Prato's information was included in the attorney information section at the bottom, indicating he was the attorney for the representative, Kelly Hull.

¶ 11 Petition to Discharge the Guardian

¶ 12 On December 20, 2019, Carafotes, through a different attorney, filed a "Petition to Discharge a Guardian-Minor Estate," in which she alleged that there was a change in circumstances since the time of the appointment of the present guardian. She stated that Hull, "appearing with counsel, Attorney Jack V. Prato" was appointed the guardian of the minor on November 21, 2018, without her knowledge and consent. She further stated that she never gave legal consent to the appointment of the guardian, that she did not sign the August 7, 2018, motion for appointment of guardian, that she was never served with notice of any court proceedings, and that Hull was alienating her from the minor and refused to return the minor to her pursuant to the temporary agreement. Carafotes requested that Hull be discharged as guardian of the person of the minor.

¶ 13 The record contains various orders and motions filed between June 2020 and February 2022, including, among other things, Prato's "motion to withdraw from representation," an order appointing a guardian ad litem (GAL) for the minor, the GAL's report, and petitions relating to Carafotes' visitation of the minor. In February 2022, Carafotes moved to continue the April 2022 trial dates that had been set on her petition to discharge guardianship. Thereafter, on March 2, 2022, the court entered an order that struck the previously set trial dates and stated that Carafotes voluntarily withdrew her petition to discharge the guardian. In that order, the court also granted Carafotes time to file a motion to vacate the order appointing the guardian based on improper service and lack of notice.

¶ 14 Petition to Vacate the November 21, 2018, Order Appointing Guardian of Minor

¶ 15 On April 1, 2022, Carafotes moved to vacate the November 21, 2018, order appointing guardian of the minor and then on August 16, 2022, she filed the "amended motion to vacate order appointing guardian of a minor entered on November 21, 2018 and for other relief' (section 2-1401 petition) at issue here, in which she requested that under section 2-1401 of the Code, the court vacate the November 21, 2018, order based on lack of personal jurisdiction. She argued that she was never served with process and that she did not receive notice of the petition or motion for appointment of guardian of the minor or the orders that continued the case to November 21, 2018. She asserted that Attorney Prato filed the petition and motion as her attorney but that he was Hull's attorney and did not represent her. Carafotes claimed that Attorney Prato was able to avoid serving her by presenting himself as her attorney. She stated that the "questionable nature" of Attorney Prato's status in the case "contaminates this entire proceeding" and that the manner in which he brought this matter to the court made it possible for the court to enter a plenary guardianship order rather than a temporary agreement to which she had agreed. She also asserted that neither Hull nor the minor's father were served with process and that no parties filed an appearance in the case.

¶ 16 Carafotes attached to her petition a document entitled "substitution of attorneys" signed by Hull that stated that Attorney Prato withdrew his appearance for Hull, the petitioner. Carafotes also attached an affidavit in which she averred that she "never agreed or consented to [Hull] being appointed as plenary guardian" over the minor. She also attached the temporary guardianship agreement as well as the August 2018 motion for appointment of guardian, in which she stated that she had entered into a temporary guardianship agreement with Hull for the period of June 27, 2018, through July 18, 2019. She attached the court's September 5, 2018, continuance order, which contained Attorney Prato's contact information and indicated that he was the attorney for the minor, and the November 5, 2018, continuance order, which provided that Attorney Prato was the attorney for the estate. She also attached the "oath and bond of representative-no surety" form that contained Attorney Prato's information at the bottom and indicated he was the attorney for the representative, Hull.

¶ 17 Hearing and Order on the Petition to Vacate the November 21, 2018, Order

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