Michael C. v. Amber B.

2021 IL App 210020-U

MICHAEL C., Petitioner-Appellee, v. AMBER B., Respondent-Appellant.

No. 4-21-0020

Court of Appeals of Illinois, Fourth District

June 16, 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 McLean County No. 14F145 Honorable Charles M. Feeney III, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices DeArmond and Holder White concurred in the judgment.

ORDER

TURNER JUSTICE.

¶ 1 Held: The circuit court's judgment allowing removal of the minor child from Illinois and awarding a majority of the parenting time and final decision-making authority to the father was not against the manifest weight of the evidence.

¶ 2 Respondent, Amber B., appeals the McLean County circuit court's December 2020 order, which allowed petitioner Michael C. to remove the parties' minor child, M.B.C from Illinois and awarded petitioner a majority of the parenting time and final decision-making authority. On appeal, respondent argues the circuit court's determinations were against the manifest weight of the evidence. We affirm.

¶ 3 I. BACKGROUND

¶ 4 A. Earlier Proceedings in This Case

¶ 5 The parties were never married, and M.B.C. was born in February 2014. Three months after his birth, petitioner filed a petition for custody of M.B.C. In July 2014, the circuit court entered a temporary visitation order, granting petitioner visitation on alternate Saturdays and every Tuesday and Thursday evening. The order stated neither parent was to have alcohol or drugs or be under the influence of alcohol or drugs when M.B.C. was in his or her care. In April 2015, the parties entered into a parenting agreement, under which they both would have joint legal custody of M.B.C. with respondent having primary residential custody and petitioner having liberal parenting time. However, the court never approved the agreement. In July 2015, the temporary visitation order was modified to provide petitioner with alternating weekend visitation instead of Saturday visitation.

¶ 6 B. State Involvement

¶ 7 In April 2016, petitioner filed a motion to terminate child support. In the motion, he alleged the State of Illinois took protective custody of M.B.C. on March 30, 2016. The temporary custody order in the juvenile case (In re M.C., No. 16-JA-25 (Cir. Ct. McLean County)) awarded temporary custody of M.B.C to the Department of Children and Family Services (DCFS). In a June 2, 2016, docket order in this case, the court noted any child-related issues were to be heard by the judge in case No. 16-JA-25, if it was still open. Additionally, we note respondent had a second minor child, P.D. (born in 2008), who was also the subject of a juvenile case (In re P.D., No. 16-JA-26 (Cir. Ct. McLean County)). The two juvenile cases were consolidated. We note the record on appeal contains only the juvenile documents submitted by the parties during the proceedings in this case.

¶ 8 In the consolidated juvenile cases, the circuit court entered a September 22, 2016, dispositional order, which found petitioner fit but concluded respondent and P.D.'s father, Colin D., were unfit. M.B.C. had been allowed to reside with petitioner, and the permanency goal for M.B.C was to remain home with petitioner. In a November 2016 order in this case, the court allowed the termination of child support, noting the minor child currently resided with petitioner as a ward of the court in McLean County case No. 16-JA-25. On February 16, 2017, the court entered another permanency order in case No. 16-JA-25, finding petitioner fit, restoring legal custody and guardianship of M.B.C. to petitioner, releasing wardship, and closing the case.

¶ 9 In case No. 16-JA-26 (P.D.'s case), the circuit court entered a permanency order on June 21, 2017, finding respondent fit and changed the permanency goal to return home in five months. The order also noted it was in P.D.'s best interests to be transitioned home to respondent prior to the start of school in the fall. In the order, the court found Colin D. remained unfit. A September 20, 2017, docket entry in this case noted case No. 16-JA-26 was closed and any further child issues regarding M.B.C. were to be heard in this case.

¶ 10 C. Injunction Proceedings in This Case

¶ 11 In July 2017, respondent filed a petition for injunctive relief, asserting petitioner left the state with M.B.C. on March 17, 2017, and had since resided in Massachusetts. Respondent alleged petitioner did not file a notice of intent to relocate. She further noted that, on June 21, 2017, the circuit court had found her fit in the juvenile case. On June 23, 2017, she requested parenting time with M.B.C, and petitioner had not responded to her request. Respondent asked to have petitioner return M.B.C. to Illinois. Petitioner filed a motion to dismiss the petition for injunctive relief, noting he had custody of M.B.C. under an order in the juvenile case and respondent had not been found fit as to M.B.C. Respondent sought leave to file an amended petition for injunctive relief, noting no final order had been entered in this case and her parental rights to M.B.C. had not been terminated. The court granted her leave to file the amended petition. Petitioner filed a response to the amended petition for injunctive relief, which included a counterpetition that requested respondent's visitation be supervised and petitioner be allowed to relocate the child to Massachusetts. Respondent filed a motion to dismiss petitioner's counterpetition. After a September 7, 2018, hearing, the circuit court dismissed petitioner's request for relocation of the child to Massachusetts because he failed to comply with the statutory notice requirement.

¶ 12 After a November 14, 2017, hearing on only respondent's amended petition for injunctive relief, the circuit court granted respondent's petition and ordered petitioner to return with M.B.C. to Illinois within 60 days. In December 2017, petitioner filed a motion to vacate and for rehearing, which the court denied on January 5, 2018. Petitioner appealed, and this court affirmed the circuit court's judgment on April 23, 2018. Cadena v. Buck, 2018 IL App (4th) 180035-U.

¶ 13 D. Contempt Proceedings

¶ 14 In January 2018, respondent filed a verified petition for adjudication of indirect civil contempt, asserting petitioner had willfully not complied with the circuit court's November 2017 order to return the child to Illinois. After a June 1, 2018, hearing, the circuit court entered a written order, finding petitioner in indirect civil contempt and ordering him to appear on June 8, 2018. At the June 8, 2018, hearing, petitioner again did not personally appear. The court entered an order for a bench warrant for petitioner's arrest without any geographical limits and set bond. The court stayed the warrant until June 13, 2018. If the petitioner did not return M.B.C. by June 13, 2018, at 3 p.m., the warrant would issue, and respondent would be allowed to travel to Massachusetts to retrieve the child. Petitioner failed to personally appear on June 13, 2018, and the circuit court issued the bench warrant. The court also awarded temporary full residential custody of M.B.C. to respondent and allowed her to travel to Massachusetts to retrieve M.B.C.

¶ 15 In July 2018, respondent filed a petition for adjudication of direct and indirect criminal contempt but later dropped the claim for indirect criminal contempt. On September 11, 2018, the circuit court entered a written order finding petitioner in direct criminal contempt for failing to appear before the court on six separate occasions. The court issued a bench warrant based on direct criminal contempt for petitioner's arrest and set bond. At a September 27, 2018, hearing, the court recalled that warrant and issued a new warrant with "no geographical limits to apply, and extraditable" and sentenced petitioner to six months in the county jail for direct criminal contempt. Petitioner appealed, and this court affirmed petitioner's direct criminal contempt finding and sentence. Michael C. v. Amber B., 2019 IL App (4th) 180659-U.

¶ 16 In April 2018, petitioner filed a complaint to modify a foreign decree in Massachusetts. He also filed a motion seeking to have the Massachusetts court exercise jurisdiction over M.B.C., which was denied. Petitioner appealed the denial. The appeal had not been heard when respondent returned home with M.B.C. on October 4, 2018. Petitioner dismissed his appeal in December 2019.

¶ 17 E. Later Proceedings

¶ 18 In March 2018, respondent filed a petition for allocation of permanent and temporary parenting time and allocation of decision-making authority. Based on the parties' joint oral motion, the circuit court entered a written order on January 8, 2019, appointing Joseph Foley as guardian ad litem for M.B.C. The next month, petitioner filed a motion for the evaluation of M.B.C.'s best interests which the court granted after a hearing. The court appointed Luke Dalfiume, a clinical psychologist, as evaluator. In September 2020, petitioner moved to excuse the guardian ad litem. The court granted the motion and ordered the guardian ad litem to prepare and file a report before trial. In December 2020, petitioner filed a supplemental petition to relocate M.B.C. to Massachusetts, noting Dalfiume's custody evaluation.

¶ 19 On December 7, 2020, the circuit court commenced the hearing on the parties' pending petitions, which lasted eight days. Petitioner testified on his own behalf, called respondent as an adverse witness, and presented the testimony of the following individuals: (1) Dalfiume, the appointed child custody evaluator; (2) Richard B., ...