In re Estate of M.L

2018 IL App (3d) 170712

124 N.E.3d 1015

429 Ill.Dec. 505

IN RE the ESTATE OF M.L and G.L, Minors

(Anthony Loader, Petitioner-Appellant,

v.Debra Grossi, Respondent-Appellee).

Appeal No. 3-17-0712

Appellate Court of Illinois, Third District.

Opinion filed November 27, 2018

Frederick C. Cappetta, of Cappetta & Associates, Ltd., of Oak Brook, and Kathryne Hayes and Adrian Vuckovich, of Collins Bargione & Vuckovich, of Chicago, for appellant.

Melissa J. Kuffel, of Mullyk Laho Law, of Glen Ellyn, for appellee.

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

¶ 1 In this discretionary interlocutory appeal from the grant of a motion to disqualify counsel in a guardianship matter, the petitioner maintains that the court erred in disqualifying his attorney based upon an alleged conflict with another party, his sister, who also filed a petition for guardianship over petitioner's children. The motion to disqualify was filed by the maternal grandparents of the children.

¶ 2 BACKGROUND

¶ 3 Anthony Loader and Christina Schaade were the natural parents of two children: M.L., born September 20, 2011; and G.L., born July 31, 2014. Anthony and Christina were never married, but it was never in dispute that Anthony was the biological father of both children. Anthony executed a voluntary acknowledgement of paternity for each child at the time of birth. It is undisputed that Anthony and Christina had a tumultuous relationship, and they never lived together for any significant period of time. At all times, the children lived with Christina, although not under any formal custodial determination. Anthony's involvement in the care of the children varied over time, and he maintained some interest and contact with both children. Christina and the children did not have a permanent address, but lived with different family members, both hers and Anthony's. It is undisputed that Anthony's parental rights were never relinquished or terminated and he was never the subject of an order of protection regarding Christina or the children.

¶ 4 On May 24, 2017, Christina died. At the time of her death, she and the children had been staying in the home of Robert and Debra Grossi. Debra was Christina's mother. Robert, Debra's second husband, was not Christina's father. While Christina and the children resided in the Grossi home, Christina enrolled the children in daycare and school using the Grossi address as her own. Christina took no formal steps to relinquish parental control or temporary guardianship over the children to Debra or Robert.

¶ 5 On May 25, 2017, Anthony appeared at the Grossi home and demanded that the children be turned over to him. Debra and Robert refused. On May 31, 2017, at Christina's funeral, Anthony's demand that his children be turned over to him was again refused. The next day, Anthony inquired of the State's Attorney's office regarding the possibility of charging Debra and Robert with interference with his parental rights. He was apparently informed that local authorities would not intervene. At this time, Anthony was also a defendant in a criminal matter pending in Cook County circuit court. As a result of the uncertainty surrounding the outcome of the criminal matter, Anthony chose not to take further steps to obtain the physical custody of his children.

¶ 6 On June 1, 2017, Anthony executed a standard form "Appointment of Short-term Guardian" appointing his sister, Stephanie Loader, as short-term guardian of the children pursuant to section 11-5.4 of the Probate Act of 1975 (Probate Act). 755 ILCS 5/11-5.4 (West 2016). On June 5, 2017, Stephanie filed a petition for appointment of guardian in the Will County circuit court, attaching a copy of the short-term guardianship appointment previously executed by Anthony. In a supporting affidavit filed with her petition, Stephanie stated that: (1) she was pursuing guardianship in accordance with Anthony's expressed designation in the standard form appointment of short-term guardian; (2) the guardianship she was seeking would terminate, pursuant to the terms of Anthony's appointment "on the date that Anthony states in writing that he is willing and able to make and carry out day-to-day child care decisions concerning the children, but not more than 365 days after the effective date of the Short-term Guardianship;" and (3) guardianship was being sought as a result of the Grossis' refusal to comply with the children's father's wishes. Stephanie's petition was docketed as 17-P-458 and placed on the Probate docket of Judge Jeffrey Allen. Natalie Cappetta of the law firm of Cappetta and Associates represented Stephanie.

¶ 7 On June 2, 2017, Debra and Robert filed a petition for custody of the children, which was docketed as case 17-F-469 and placed on the Domestic Relations docket of Judge Elizabeth Dow. On June 5, 2017, Anthony filed a response seeking dismissal of the petition on jurisdictional grounds and on the theory that Debra and Robert lacked standing to seek custody of the children. Anthony was represented by Natalie Cappetta and Frederick Cappetta of Cappetta & Associates; and Greg LaCost of the law firm of Rizzon & Diersen. On that date, Judge Dow, over Anthony's objection, entered a temporary order granting custody of the children to Debra and Robert, with visitation for Anthony supervised by Stephanie.

¶ 8 On June 23, 2017, Judge Dow granted Anthony's motion to dismiss the custody petition on jurisdictional grounds and dissolved the temporary custody order. Anthony requested the entry of an order finding that he was entitled to legal custody of the children based on his uncontested paternity of each child. The court refused the request, suggesting that Anthony would need to file his own custody petition to assert his parental rights. Anthony's counsel requested that the Grossis voluntarily turn over the children to Anthony and Stephanie. The Grossis refused.

¶ 9 On June 26, 2017, Anthony filed a petition for custody of the children, which was docketed as case number 17-P-569. Natalie Cappetta and her firm represented Anthony in this action. The petition named Stephanie Loader as "Guardian and necessary party." In the verified petition, Anthony requested that he be recognized as the biological father of the children and that he be granted sole care, custody, control, and education of the minor children, and that the Grossis be ordered to surrender the children to him "or Stephanie Loader, Guardian." Anthony served notice of hearing for the next available court date, which was August 10, 2017. The matter was placed on Judge Dow's domestic relations docket.

¶ 10 On the following day, June 27, 2017, Debra and Robert filed an "Emergency Petition for Guardianship" of each of the children, which was docketed as case number 17-P-528 on Judge Allen's probate docket. Anthony and Stephanie received notice of hearing on the emergency petition. Cappetta entered her appearance on Anthony's behalf and contested the jurisdiction of the court. The court reserved ruling on Anthony's opposition, appointed a guardian ad litem for the children, granted temporary custody of the children to Debra Grossi and established visitation rights for Anthony. The court on its own motion consolidated Stephanie's guardianship petition (17-P-458) with the Grossis' emergency guardianship petition. Anthony's paternity petition (19-F-569) was not consolidated and remained pending on the domestic relations docket in Judge Dow's court.

¶ 11 On August 10, 2017, Anthony filed a petition to dismiss the Grossis' guardianship petition in 17-P-528, in which he argued that the Grossis lacked standing to bring the petition. In the verified petition, Anthony stated that he was "willing and able to make and carry out day-to-day child care decisions concerning the minors." Anthony further verified that he would revoke his appointment of Stephanie as short-term guardian as his "short-term unavailability has resolved." The clerk informed Anthony that a hearing on his motion could not be docketed before October.

¶ 12 Meanwhile, on August 11, 2017, Judge Dow entered a judgment in Anthony's paternity petition (17-F-569) finding that Anthony was the biological father of the two children. The judgment included both a finding of paternity regarding each child, and an order granting Anthony custody of each child, with instructions for law enforcement to provide appropriate enforcement of the custody order.

¶ 13 On August 14, 2017, at a hearing in the probate case, the court appointed guardian ad litem recommended that the children remain in the temporary custody of the Grossis pending a final determination to follow further review. Anthony's counsel argued in response that the appropriate resolution for the matter would be for the court to defer to Judge Dow's paternity order and dismiss the Grossis' guardianship petition. Judge Allen denied the request to dismiss the Grossis' guardianship petition, continued the Grossis' temporary custody of the children and ordered the guardian ad litem to continue her investigation toward the issuance of a final report. The court required that both Anthony and Stephanie should be listed as authorized contacts at daycare and school, and permitted Anthony to have contact with the children when accompanied by Stephanie. Regarding the "jurisdiction" of the paternity order, Judge Allen indicated that he would seek a conference with Judge Dow pursuant to Supreme Court Rule 903 in order to "make sure we are in the appropriate courtroom." Ill. S. Ct. R. 903 (eff. Mar. 8, 2016) (requiring that "[w]henever possible and appropriate, all child custody and allocation of parental responsibilities proceedings relating to an individual child shall be conducted by a single judge."). The record does not establish that the probate and paternal proceedings were consolidated; nor is there any indication in the record regarding the status or enforcement of the order in the paternity proceeding.

¶ 14 On August 21,...