Charles A. v. Daniel B. (In re A.N.B.)

2021 IL App 210215-U

In re GUARDIANSHIP OF A.N.B.

(Charles A. and Teresa T., Petitioners-Appellants, v. Daniel B. and Andrea A., Respondents

(Bonita B., Intervenor-Appellee)).

No. 4-21-0215

Court of Appeals of Illinois, Fourth District

September 13, 2021

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 Champaign County No. 17P108 Honorable Ramona Sullivan, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.

ORDER

HARRIS, JUSTICE

¶ 1 Held: Paternal grandmother lacked statutory standing for grandparent visitation under either the Probate Act of 1975 or the Illinois Marriage and Dissolution of Marriage Act.

¶ 2 Petitioners, Charles A. and Teresa T., are the maternal grandparents and co-guardians of A.N.B., born January 16 2009. They appeal the trial court's order awarding grandparent visitation with A.N.B. to respondent, Bonita B A.N.B.'s paternal grandmother. On appeal, Charles and Teresa argue (1) Bonita lacked standing to pursue or enforce an order for grandparent visitation, (2) pending adoption proceedings could render the issue of grandparent visitation moot, (3) the court erred by denying their motions to stay the grandparent visitation proceedings due to the pending adoption proceedings, (4) the court utilized the wrong statutory best interest factors in awarding Bonita grandparent visitation, and (5) the court's decision was against the manifest weight of the evidence. We reverse.

¶ 3 I. BACKGROUND

¶ 4 Daniel B. and Andrea A. are A.N.B.'s biological parents. The two were never married. Since birth, A.N.B. resided with and was cared for by Charles and Teresa. Andrea also resided in the home. In April 2017, when A.N.B. was eight years old, Charles and Teresa initiated the underlying guardianship case by filing a petition for "Plenary Guardianship" of A.N.B. In July 2017, the trial court appointed Charles and Teresa as permanent co-guardians of A.N.B.'s person. The court's order stated Daniel raised no objection to the petition and Andrea executed a consent to the guardianship.

¶ 5 In December 2017, an agreed order was entered, setting forth a schedule for Daniel's "visitation," or parenting time, with A.N.B. Specifically, Daniel was granted parenting time with A.N.B. every Saturday from 2 p.m. to 7 p.m., every Wednesday from 4 p.m. to 7:30 p.m., and on various holidays. His parenting time was generally required to occur at his home. From December 2017 to April 2019, Daniel exercised his parenting time with A.N.B. as set forth in the agreed order. Because Daniel was residing with Bonita, his parenting time with A.N.B. often occurred in Bonita's home and, thus, Bonita also spent time with A.N.B.

¶ 6 In April 2019, Daniel stopped exercising his parenting time with A.N.B. A year later, in May 2020, Bonita filed a petition to intervene in the underlying guardianship case, asserting her intention to file a petition for grandparent visitation. The trial court granted Bonita's motion to intervene over the objections of Charles and Teresa.

¶ 7 On October 5, 2020, Bonita filed her two-count petition for grandparent visitation. In count I of her petition, Bonita sought grandparent visitation under section 602.9 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/602.9 (West 2018)). She alleged she had a close bond with A.N.B. and that she anticipated Daniel would consent to her having visitation. Bonita further alleged that she requested visitation with A.N.B. but Charles and Teresa unreasonably denied her any contact. She maintained the denial of visitation caused A.N.B. "mental or emotional harm," and that visitation between her and A.N.B. was in A.N.B.'s best interests. In connection with count II of her petition, Bonita, alternatively, sought grandparent visitation under section 11-7.1 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-7.1 (West 2018)). Count II was based on the same factual allegations as set forth in count I.

¶ 8 On October 20, 2020, Charles and Teresa filed a motion to dismiss, or stay, the proceedings. They asserted Bonita's petition should be dismissed because she lacked standing to seek visitation with A.N.B. under both the Marriage Act and the Probate Act. Alternatively, Charles and Teresa requested to stay the visitation proceedings, noting that on October 13, 2020, they filed a petition to adopt A.N.B. They maintained that if an adoption was entered, the issue of grandparent visitation would be moot. Following a hearing on October 26, 2020, the trial court denied the motion. In December 2020, Charles and Teresa filed a "Renewed Motion to Stay" based on the pendency of adoption proceedings, which the court also denied.

¶ 9 Over four dates in March and April 2021, the trial court conducted evidentiary hearings on Bonita's petition for grandparent visitation. The court heard testimony from Bonita, Daniel, Teresa, Charles, and Jerome Lyke, the court-appointed guardian ad litem. Evidence showed Bonita spent time with A.N.B. from December 2017 through April 2019, during Daniel's parenting time. In mid-April 2019, Daniel stopped exercising his parenting time with A.N.B. and never resumed. Thereafter, Bonita requested visits with A.N.B. from Teresa and Charles on five separate occasions, once in person and four times through text messages. However, Charles and Teresa either declined or ignored her requests. The evidence further showed that Daniel supported Bonita's request for grandparent visitation and that Charles and Teresa did not believe visitation between Bonita and A.N.B. was in A.N.B.'s best interests.

¶ 10 On April 14, 2021, the trial court entered a written order granting Bonita's petition for grandparent visitation and ordering visits to occur every Saturday from 2 p.m. to 7 p.m. and on specified holidays. In reaching its decision, the court initially found the provisions of the Probate Act, rather than the provisions of the Marriage Act, were applicable to Bonita's petition. Citing section 602.9 of the Marriage Act (750 ILCS 5/602.9 (West 2018)), it stated a grandparent could only seek visitation with a minor if there had been "an unreasonable denial of visitation by the parent and if the denial has caused the child undue mental, physical or emotional harm." It noted however, that in the present case, A.N.B. was "not in the custody of a natural or adoptive parent," and, as a result, Bonita was "not required to prove that the denial of visitation has caused harm to [A.N.B.] in order to prevail on a request for grandparent visitation." The court further stated as follows:

"The presumptions and protections for natural and adoptive parents that are encompassed in [section 602.9 of the Marriage Act] are not applicable in this case. The minor child is in the guardianship of her maternal grandparents. Importantly neither of the child's parents have offered any objection to Bonita's request for visitation. The child's father fully supports the request and testified at length in support of the petition. The child's mother was notified of the proceeding and did not contest the petition."

Next, citing section 11-7.1 of the Probate Act (755 ILCS 5/11-7.1 (West 2018)), the court further stated as follows:

" [Under the Probate Act, w] hen both parents of a child are deceased and the child has not been adopted, a grandparent is entitled to visitation unless it is shown that visitation would be detrimental to the best interest and welfare of the minor. [Citation.] If a child has been adopted by a close relative after the death of both parents, a [c]ourt may grant visitation to a grandparent if the grandparent alleges and proves that she has been unreasonably denied visitation with the child and the Court finds that visitation would be in the best interests of the child. [Citation.] The parents in this case are alive, so this section of the Probate Act does not squarely apply to Bonita's request for visitation. The Probate Act is to be liberally construed, and the legislature's failure to anticipate this particular fact pattern does not prohibit Bonita *** from seeking visitation with the child.

The [c] ourt determines that if a grandparent alleges and establishes that she has been unreasonably denied visitation with a child who is in the guardianship of the child's other grandparents, then the [c]ourt can award visitation if the Court determines that grandparent visitation is in the child's best interests."

¶ 11 Ultimately, the trial court found Bonita established that Charles and Teresa unreasonably denied her requests for visitation with A.NB. and that visitation with her was in A.N.B.'s best interests. In setting forth its reasoning, the court determined Bonita and A.N.B. "developed a positive relationship with each other" during the time period that Daniel exercised his parenting time. Notably, however, it concluded Bonita had been "unable to establish that [A.N.B.'s] mental, physical, or emotional health suffered specifically from the loss of her relationship with *** Bonita."

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 On appeal, Charles and Teresa challenge the trial court's order granting Bonita grandparent visitation with A.N.B. As stated, they assert (1) Bonita lacked standing to pursue or enforce an order for grandparent visitation, (2) pending adoption proceedings "may" render the issue of grandparent visitation moot, (3) the court erred by denying their motions to stay the grandparent visitation proceedings due to the pending adoption proceedings, (4) the court relied upon the wrong statutory best interest factors in awarding Bonita...