Correy K. v. Robyn B. (In re S.F.)

2020 IL App (2d) 190248

156 N.E.3d 1254

441 Ill.Dec. 505

IN RE S.F., a Minor

(Correy K. and Sarah K., Petitioners-Appellees,

v.Robyn B., Respondent-Appellant).

No. 2-19-0248

Appellate Court of Illinois, Second District.

Opinion filed April 2, 2020

Randy K. Johnson, of West Dundee, and Vickie Voukidis, of Wheaton, for appellant.

Daniel J. Moriarty, of Daniel J. Moriarty, P.C., of Naperville, for appellees.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 Respondent, Robyn B., appeals from orders of the trial court (1) finding that petitioners, Correy and Sarah K., had standing under the Probate Act of 1975 (Act) ( 755 ILCS 5/1-1 et seq. (West 2016)) to bring their motion to remove respondent as plenary guardian of S.F., a minor, and (2) removing respondent as guardian for good cause, on the court's own motion. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 S.F. was born June 15, 2010. In May 2013, S.F.'s biological mother transferred physical possession of S.F. to respondent, who had no biological relationship to S.F. (According to respondent's statement of facts, she "was S.F.'s temporary guardian from May 2013 until her appointment as plenary guardian on March 23, 2015." However, respondent points to nothing in the record to substantiate this claim.)

¶ 4 Shortly after acquiring possession of S.F., respondent placed her with Chad and Tracy Voegele. On October 22, 2013, five months after S.F. had been living with the Voegeles, respondent filed a petition seeking her appointment as S.F.'s guardian. S.F. lived with the Voegeles for approximately one and a half years. In November of 2014, while S.F. was on vacation with respondent, respondent made the determination that the Voegeles were not taking proper care of S.F. and did not return her to them.

¶ 5 In January 2015, respondent introduced S.F. to petitioners, for the purpose of determining whether it would be suitable for petitioners to adopt S.F. In mid-January 2015, S.F. began living full time with petitioners. Although S.F. spent some nights and some weekends with respondent, she mostly stayed with petitioners. She slept, did chores, played, and did schoolwork at petitioners' home. S.F. also went on vacations and to dog shows with petitioners, worked with them in their business of training, taking care of, and showing dogs.

¶ 6 On March 23, 2015, respondent was appointed as plenary guardian of S.F. However, as the trial court found, from January 12, 2015, through December 27, 2015, S.F. lived and resided full time with petitioners. While S.F. resided with them, petitioners assumed responsibility for her day-to-day activities and needs. Petitioners and respondent shared responsibilities regarding S.F.'s schooling and medical needs. The parties communicated often and effectively regarding S.F.'s upbringing and needs and, for the most part, worked in concert to meet S.F.'s best interests.

¶ 7 In the fall of 2015, the relationship between the parties began to deteriorate. Although the parties continued to communicate regarding S.F., disagreements began to surface with respect to petitioners' attendance at dog shows, petitioners' employment and work schedules (and the effect they were having on S.F.), the lack of respect shown towards respondent, and the failure to stick to agreed-upon plans and instructions.

¶ 8 On December 27, 2015, S.F. spent the night at respondent's residence. On December 28, 2015, respondent notified petitioners that S.F. did not want to return to petitioners, and on December 30, 2015, respondent indicated that S.F. was staying with her permanently. On December 31, 2015, petitioners filed their petition seeking removal of respondent as plenary guardian. On January 13, 2016, respondent filed a response to the petition. On the same date, an agreed order was entered reappointing Linda Solfisburg as guardian ad litem (GAL), with respondent and petitioners to share responsibility for paying her fees.

¶ 9 On February 22, 2016, an order was entered providing that the GAL "shall conduct her investigation by determining the best interest evaluation as well as the facts alleged in the pleadings." On April 4, 2016, an order was entered providing that the GAL was to meet with S.F. and petitioners within 10 days. On April 27, 2016, an order was entered requiring respondent "to comply with the terms" of the April 4 order by May 4, 2016. On May 16, 2016, petitioners filed against respondent a petition for a rule to show cause, seeking to have her found in contempt for her failure to comply with the court orders of April 4 and 27. A rule to show cause was issued on May 16, 2016.

¶ 10 Also, on that date, on its own motion, the court scheduled a hearing for May 27, 2016, on whether respondent should be removed as guardian. On May 20, 2016, respondent filed motions to dismiss petitioners' petition for removal and to vacate the hearing set for May 27, 2016. Both motions were denied on May 25, 2016. On May 27, 2016, after the hearing on the court's motion to consider respondent's removal, the court removed respondent as guardian and appointed petitioners as temporary guardians, pending a hearing on petitioners' petition for removal or further order of the court.

¶ 11 On May 31, 2016, respondent filed an emergency motion to vacate the court's order of May 27, 2016, based on an allegation by S.F.'s therapist that Correy K. sexually abused S.F. Respondent called DCFS, which put a safety plan in place for 10 days and then closed the case as "unfounded." On June 17, 2016, the court denied respondent's motion.

¶ 12 On June 27, 2016, respondent filed a notice of appeal of the court's orders of May 27, 2016, and June 17, 2016. On July 14, 2017, this court issued an order pursuant to Illinois Supreme Court Rule 23 (eff. May 30, 2018), dismissing the appeal for lack of jurisdiction, because the removal of respondent as guardian was not a final order. The mandate was filed on October 30, 2017, and a hearing on this matter commenced March 26, 2018, and concluded November 2, 2018.

¶ 13 On December 21, 2018, the trial court entered a written order in which it referenced its removal of respondent as guardian and ruled that petitioners' petition for removal was, therefore, moot. The order then evaluated best-interest factors and concluded that designating petitioners as plenary guardians was in S.F.'s best interest. Respondent's motion to reconsider was denied on March 1, 2019, and this appeal ensued.

¶ 14 II. ANALYSIS

¶ 15 A. Respondent's Motion to Strike Portions of Brief

¶ 16 Preliminarily, we address respondent's motion to strike petitioners' statement of facts and to strike and disregard a citation to a Rule 23 order. Respondent argues that petitioners' statement of facts contains argument, conclusory statements, and inappropriate or absent record citations, thereby violating Illinois Supreme Court Rule 341(h)(6) (eff. July 1, 2017). Although we may, in our discretion, strike improper portions of a brief, we decline respondent's request, because the violations here are not "so flagrant as to hinder or preclude review" (internal quotation marks omitted) ( Hubert v. Consolidated Medical Laboratories , 306 Ill. App. 3d 1118, 1120, 240 Ill.Dec. 196, 716 N.E.2d 329 (1999) ); accordingly, we will not strike the statement of facts but "will simply disregard any portions that we believe violate Rule 341."

In re Marriage of Milne , 2018 IL App (2d) 180091, ¶ 22 n.4, 424 Ill.Dec. 797, 109 N.E.3d 911. Similarly, we will not strike the citation to the Rule 23 order but will simply disregard it, as we would have irrespective of any motion.

¶ 17 B. Standing

¶ 18 Respondent contends that petitioners lacked standing to bring their petition for removal and that the trial court erred in finding that respondent "waived any objection to [petitioners'] standing in that [she] consented to [petitioners'] participation in these proceedings and failed to assert any claim for lack of standing until the eve of hearing on the [petitioners'] Motion to Remove." The parties and the trial court use the term "waiver" exclusively. "However, we recognize that [w]hile waiver is the voluntary relinquishment of a known right, forfeiture is the failure to timely comply with procedural requirements." (Internal quotation marks omitted.) In re Parentage of Scarlett Z.-D. , 2014 IL App (2d) 120266-B, ¶ 22 n.3, 381 Ill.Dec. 729, 11 N.E.3d 360.

¶ 19 We agree with the trial court that respondent's consent to petitioners' participation in the proceedings constituted waiver. Petitioners filed their petition for removal on December 31, 2015. Respondent waived her objection to petitioners' standing on January 13, 2016, when she entered into an agreed order reappointing the GAL, with respondent and petitioners to pay her fees. However, waiver is a limitation on the parties, not the court. In re T.P.S. , 2011 IL App (5th) 100617, ¶ 12, 352 Ill.Dec. 590, 954 N.E.2d 673.

¶ 20 We do not agree, moreover, that respondent forfeited her objection to petitioners' standing. Lack of standing is an affirmative matter that is properly raised under section 2-619 of the Code of Civil Procedure ( 735 ILCS 5/2-619 (West 2016) ). Scarlett Z.-D. , 2015 IL 117904, ¶ 20, 390 Ill.Dec. 123, 28 N.E.3d 776. A section 2-619 motion to dismiss must be brought "within the time for pleading." 735 ILCS 5/2-619(a) (West 2016); Scarlett Z.-D. , 2015 IL 117904, ¶ 20, 390 Ill.Dec. 123, 28 N.E.3d 776. However, a trial court may allow a motion to dismiss outside the time for pleading when the issue of standing is "clearly at issue and not a surprise." Scarlett Z.-D. , 2014 IL App (2d) 120266-B, ¶ 24, 381 Ill.Dec. 729, 11 N.E.3d 360 (citing In re Custody of McCarthy , 157 Ill. App. 3d 377, 380-81, 109 Ill.Dec. 687, 510 N.E.2d 555 (1987) (when there is no prejudice, "the trial court does not abuse its discretion by allowing tardy pleadings")).

¶ 21 Petitioners filed their petition for removal on December 31, 2015. In her response, filed ...