Custody H.J. v. Calhoun

Citation2021 IL App (4th) 200401,184 N.E.3d 1110,452 Ill.Dec. 129
Decision Date11 February 2021
Docket Number4-20-0401
Parties IN RE CUSTODY OF H.J. and L.J., Minors (Patrick E. Lee and Lisa D. Lee, Petitioners-Appellants, v. Kristina Calhoun, Respondent-Appellee).
CourtUnited States Appellate Court of Illinois

William F. Moran III, of Stratton, Moran, Reichert, Sronce & Appleton, of Springfield, for appellants.

Michelle Coady Carter, of Coady Law Group, LLC, of Springfield, for appellee.


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

¶ 1 In December 2017, the trial court terminated the parental rights of Shaundra J. and Joseph J. to their minor children H.J. (born in December 2008) and L.J. (born in January 2011). Two months earlier, in October 2017, foster parent Kristina Calhoun filed a petition for custody or guardianship of the minor children. Ultimately, in parallel proceedings that began in coordination with the Department of Children and Family Services (DCFS), Calhoun started the process of adopting H.J. and L.J., eventually filing an adoption petition in the Sangamon County probate court in July 2018 (Sangamon County case No. 18-AD-66). DCFS eventually changed its recommendation for H.J. and L.J. from adoption by Calhoun to placing the minor children with their maternal grandparents in Alaska. In September 2018, the maternal grandparents, petitioners Patrick E. Lee and Lisa D. Lee (collectively the Lees), filed a petition for custody or guardianship of the minor children. After 17 days of hearings, from January to October 2019, the trial court denied the Lees’ petition, granted Calhoun's petition, left wardship open, and set the matter for a permanency review hearing. The Lees appealed the trial court's order, but since the decision was not a final, appealable order, we dismissed the appeal. In re Custody of H.J. , 2020 IL App (4th) 190818-U, ¶¶ 1, 16, 2020 WL 3415702. Thereafter, in July 2020, the trial court held a permanency review hearing where it entered a dispositional order elaborating on the handwritten October 2019 order it rendered from the bench. The trial court entered a Rule 303 finding, ruling the current order final and appealable. See Ill. S. Ct. R. 303 (eff. July 1, 2017).

¶ 2 On appeal, petitioners challenge the trial court's order denying their guardianship petition and granting Calhoun's petition, labeling the court's decision an abuse of discretion and against the manifest weight of the evidence. Specifically, petitioners argue the trial court's best-interests analysis "ignored the importance of maintaining families together and sibling consolidation, which are the foundations of the child welfare system and DCFS." Calhoun counters by arguing, first, the Lees lack standing to appeal the trial court's order and, second, the court's order does not go against the manifest weight of the evidence. We affirm.


¶ 4 In October 2015, the State filed a petition for adjudication of neglect with respect to H.J. and L.J., the minor children of Shaundra J. and Joseph J. Following an emergency shelter care hearing, the trial court found there was probable cause to believe the minors were neglected and in need of temporary shelter care. Temporary custody and guardianship were placed with DCFS. In February 2016, the minors were adjudicated neglected and made wards of the court, with custody and guardianship to remain with DCFS. The State's motion for termination of parental rights was filed in April 2017. After a hearing in December 2017, a finding of unfitness was entered as to both parents. The court also found it was in the minors’ best interests to terminate parental rights. Both parents appealed the court's ruling, which this court affirmed in May 2018. See In re H.J. , 2018 IL App (4th) 170951-U, 2018 WL 2111029 ; In re H.J. , 2018 IL App (4th) 170955-U, 2018 WL 2229343.

¶ 5 The voluminous record in this case reveals the following. As the underlying neglect cases proceeded to termination of parental rights, the maternal grandparents became involved. Their belated entrance into the litigation came as a result of what DCFS ultimately admitted was its failure to contact the Lees in a timely fashion. Indeed, the record confirms that the caseworker, Tara Herbord, unilaterally decided to disregard DCFS policy and protocol and elected not to alert the Lees that their granddaughters were in care. Jason Cummins, Herbord's supervisor, compounded Herbord's failure by neglecting to follow up on why his subordinate did not make the required communications to the girls’ family. The Lees argued DCFS did not follow its own policy and procedures when it failed to contact them after learning of their interest in November 2015.

¶ 6 The record reflects that, in March 2017, the Lees finally learned their granddaughters were in DCFS's care. The Lees immediately contacted the caseworker and the trial court, asking to adopt the girls and offering to provide a family placement in the interim. Without consulting her superiors or DCFS policy, Herbord informed the Lees that they could not adopt the girls. Upon learning of the Lees’ interest, Calhoun contacted the caseworker and moved to secure her interest in adopting the girls as well. In April 2017, Calhoun filed a "Notice of Right to be Heard," exercising her status provided by statute as the current foster parent for both minors and noting that she had a statutory right to be heard in the proceedings according to the Juvenile Court Act of 1987 ( 705 ILCS 405/1-5(2)(a) (West 2016)). In the meantime, the paternal grandmother, Lisa Johnson, filed a petition to intervene as well. The trial court granted Calhoun's request to be heard in May 2017 and also allowed her oral motion to participate as a party in the guardianship proceedings. At the hearing on the paternal grandmother's petition in May, counsel for the State noted both the State and the court were aware of the Lees and their desire to be considered for placement. Counsel for DCFS referenced the Lees as well. The trial court permitted Johnson to participate but not as a party to the proceedings. Calhoun next filed a petition for custody or guardianship of the minor children in October 2017.

¶ 7 In July 2018, the neglect case took a dramatic turn when acting regional administrator, Maria Miller, learned of Cummins's and Herbord's failures. Miller made the critical decision to change DCFS's recommendation for the girls from adoption by Calhoun to placement with and adoption by the Lees. Later in July, after the Lees learned Herbord misled them into thinking they were not an eligible placement for their granddaughters and that they could adopt the girls, the Lees filed a petition for leave to intervene with the trial court, claiming it was in the best interests of both minor children to reside with them. The petition stated the Lees had previously adopted the minors’ older half-brother when he was three years old, and he continued to reside with them in Alaska. The petition pointed out that the Lees were unaware of the minors’ foster care placement until March 2017 and, upon learning of their placement, the Lees contacted DCFS to establish contact with the minors and initiated the process to become a potential placement. In August 2018, the court denied the Lees’ petition to intervene, a petition that was, by that time, supported by DCFS, but the court allowed the Lees’ attorney to be present during future hearings "due to issues that may come up in [the] adoption case."

¶ 8 In September 2018, the Lees filed a petition for custody or guardianship of the minors in the neglect cases. In October 2018, the trial court held a status hearing to consider the Lees’ petition and their renewed request to actively participate in the proceedings. Again, the trial court ruled that the Lees and their counsel "are not allowed to intervene and participate with any and all facets of the case" but they "are allowed to participate specifically regarding their motion for custody and guardianship." Consequently, the cross-petitions for custody and guardianship proceeded under the same cause numbers as the underlying neglect cases. The record before us contains no written objection to the Lees’ participation under the limited circumstances the trial court outlined in October 2018, nor is there a record of Calhoun or DCFS moving to dismiss the Lees’ petition based on lack of standing.

¶ 9 Starting in January 2019 and concluding in October 2019, the trial court presided over 17 days of hearings involving litigation between Calhoun, the Lees, the guardian ad litem , DCFS, and the State. The court heard testimony from 16 different witnesses, most called by Calhoun. The court rendered its decision from the bench, addressing the best-interests-of-the-child factors before granting Calhoun's petition and denying the Lees’ competing petition.

¶ 10 Though the trial court found the Lees and Calhoun evenly balanced in the best-interests analysis, saying most of the factors "cut both ways," it reasoned, in part, that since the minors have resided with Calhoun for such a significant period of time, removing them from that environment and placing them elsewhere would traumatize them, especially H.J., whom the court labeled "incredibly fragile." The trial court acknowledged remaining thousands of miles from their biological family (grandparents, siblings, and a large extended family) might very well cause some unknown harm to the children, but it believed removing them from Calhoun would cause them a known harm, saying: "I just can't bring myself to harm these children, a known harm, and I can't bring myself to do it, particularly with Dr. Schmidt saying there's no way to know for sure if they would bounce back." Upon granting Calhoun's guardianship petition and denying the Lees’ petition, the court stated wardship would remain open and set the matter for a future review hearing approximately four months later. At the July 2020 hearing, the court...

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