White v. Daniels

2017 IL App (4th) 170405-U

MICAH WHITE, Petitioner-Appellant, and KRISTI DANIELS, Respondent-Appellee.

NO. 4-17-0405

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

October 27, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Pike County

No. 14F1

Honorable J. Frank McCartney, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices Appleton and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding the trial court (1) properly entered an agreed temporary order prior to making a permanent custody determination, and (2) did not abuse its discretion in awarding respondent the majority of parenting time.

¶ 2 In February 2014, petitioner, Micah White, filed a petition to determine the existence of a father-child relationship arising from petitioner's previous relationship with respondent, Kristi Daniels. The petition sought sole custody of the parties' minor child, B.W. (born October 3, 2013). On October 2, 2014, the trial court entered an order awarding petitioner temporary physical and legal custody. In December 2015, respondent filed a petition to change custody. In March 2016, the court entered an order that, in part, provided, "[petitioner] has parental responsibility of [B.W.], the parties' minor [child], until further court order." In May 2017, the court granted respondent's petition and granted her primary parental responsibilities for B.W.

¶ 3 Petitioner appeals, arguing (1) either the October 2014 order or the March 2016 order was a final order reflecting a permanent custody determination; (2) the trial court erred in failing to apply the standards for the modification of a permanent custody determination in ruling on respondent's petition to change custody in accordance with section 610.5 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610.5 (West 2016)); and (3) the court erred in granting respondent's petition to change custody by incorrectly applying the best-interest standards set forth in section 602.7 of the Act (750 ILCS 5/602.7 (West 2016)). We affirm.

¶ 4 I. BACKGROUND

¶ 5 In February 2014, petitioner filed a petition to determine the existence of a father-child relationship. The petition alleged respondent "staged a fake suicide in [p]etitioner's residence by discharging a firearm into the walls of the apartment." The petition further alleged respondent was on probation for a felony driving under the influence (DUI) conviction. That same month, petitioner filed a petition for temporary custody of B.W., alleging respondent's probation had been revoked.

¶ 6 On October 2, 2014, the trial court entered an order that noted the parties had reached an agreement and, in relevant part, ordered "Temporary physical and legal sole custody is awarded to [petitioner]. This order cannot be modified unless a petition to change custody is filed by [respondent] and a court determination is made by this court." The order also noted a support order was not entered because of respondent's incarceration in the Department ofCorrections (DOC) beginning on October 6, 2014. Transcripts of this proceeding are not in the record on appeal.

¶ 7 A. Petition To Change Custody

¶ 8 In November 2015, respondent was released from DOC. The following month, respondent filed a petition to change custody, alleging the October 2014 order awarded temporary physical and legal custody of B.W. to petitioner primarily due to respondent's impending incarceration. The petition alleged respondent was the primary caretaker for B.W. prior to her incarceration and requested permanent physical and legal custody be restored to respondent.

¶ 9 In March 2016, the trial court entered an order that provided, in pertinent part, due dates for the parties' proposed parenting plans and the guardian ad litem (GAL) report. The order did not set a date for a hearing on respondent's petition, but it did set a date for a status and case management hearing. Finally, the order provided, "[petitioner] has parental responsibility of [B.W.], the parties' minor [child], until further court order." Transcripts of this proceeding are not in the record on appeal.

¶ 10 1. First GAL Report

¶ 11 An April 2016 GAL report noted the GAL's belief that the trial court was aware of respondent's prior criminal and substance-abuse problems. According to the report, respondent spent nine months in treatment, which precipitated the change in custody from respondent to petitioner. Respondent had subsequently completed treatment and had experienced no other troubles. At the time, respondent was living with her parents and lived on money from babysitting and food stamps, but she reported plans to move into her own apartment. Respondent reported her concern that petitioner did not take B.W. to the doctor asneeded. According to the report, petitioner lived in Pleasant Hill with his girlfriend and intended to seek custody of his two older sons. Petitioner reported B.W. saw a doctor for his 18-month checkup and was up to date on his shots. The report concluded with the following recommendation:

"I do not get a very good impression from either parent[,] but at this time it appears that [petitioner] is more stable. It is encouraging that [respondent] has made it through the rehab program and has not been in anymore [sic] trouble. I do think she cares about [B.W.]. I would prefer that she had a longer trac[k] record of stability.

At this time, I do not see a clear reason to restore permanent physical and legal custody solely to [respondent]. I am of the opinion that it is in the best interest of the child for both parents to be actively involved; therefore, I recommend either leaving custody with [petitioner] with liberal visitation rights for [respondent] or a joint custody arrangement."

¶ 12 2. GAL's Motion To Strike and Dismiss

¶ 13 In November 2016, a newly appointed GAL filed a motion to strike and dismiss respondent's petition to change custody, arguing, in part, respondent prematurely sought to change a final custody order. The trial court entered a written order denying the GAL's motion. The November 2016 order noted on October 2, 2014, "it was the agreement of the parties that the [o]rder to be entered was temporary in nature." At the time, respondent had been B.W.'s primary caregiver and petitioner had not regularly seen B.W. Accordingly, the GAL thought it was inB.W.'s best interest for the order to be temporary and the parties agreed. Finally, the court noted, "[a]lthough it was unusual to maintain a temporary order for such a long period of time, the [c]ourt deferred to the wishes of the parties and the GAL and allowed the order to be temporary."

¶ 14 3. Second GAL Report

¶ 15 In February 2017, a second GAL report was filed by the new GAL. According to the report, petitioner lived with Jenny Williams, with whom he had a very young child. Williams stayed at home with the baby, her daughter from another relationship, and B.W. Petitioner was self-employed and could list positive attributes of respondent's parenting abilities. Respondent lived with her father and worked part-time at a convenience store. Respondent gave the GAL approximately 60 pages of notes, which generally did not present anything positive about petitioner and blamed him for her struggles with addiction and other legal troubles. According to the report, respondent had "three DUI matters and a very serious felony conviction which involved [petitioner] and resulted in" her incarceration.

¶ 16 The second GAL report summarized the relationship between petitioner and respondent as one "fraught with substance abuse and issues surrounding their respective levels of maturity." The report noted respondent's concern about the "rocky and unstable" relationship between petitioner and Williams and included the following recommendation:

"[G]iven [respondent's] recent background, including a prison incarceration for several DUI's [sic] and very serious weapons violations, repeated attempts to deceive law enforcement, probation, those around her and herself, her inability to take responsibility for her past actions as well as her very serious mental health and substance abuse issues, her request that 'herchild' be returned simply as she is out of prison is premature, at best. Parenting time between [B.W.] and mother, however, should be liberal, but is further complicated by [respondent's] inability to drive a vehicle. Interaction between the parents should be kept at a minimum for the foreseeable future, if not eliminated entirely."

¶ 17 B. Hearing on the Petition To Change Custody

¶ 18 On April 28, 2017, the trial court held a hearing on respondent's petition to change custody. The court heard the following testimony.

¶ 19 1. Respondent's Daughter

¶ 20 M.G., respondent's daughter from another relationship, testified she was 16 years old and currently attended Pittsfield High School. M.G. primarily lived with her father until she was 15 years old but spent about half the time with respondent. M.G. moved in with her mother after respondent got out of DOC. M.G. testified she lived in a house with respondent, her grandfather, and B.W. when he visited three or four days a week. M.G. testified B.W. was "pretty much her best friend," and she would like to see more of him. M.G.'s grandfather was not home very often because of his job driving a truck. However, M.G. and B.W. both had a good relationship with their grandfather, and he enjoyed spending time with B.W.

¶ 21 According to M.G., she had a "pretty good" relationship with her mother and felt respondent was a good mother. M.G. was aware of respondent's substance-abuse issues. However, M.G. testified respondent was "doing good" and had not been drinking at all. M.G. had a valid driver's license and often helped respondent with transportation by picking B.W. up and dropping...