Leila S. v. Liisa S. (In re V.S.)

• Decision Date: 31 March 2022
• Docket Number: 2-21-0667
• Parties: IN RE V.S., a Minor (Leila S., Petitioner-Appellant, v. Liisa S. and David S., Respondents-Appellees).
• Court: United States Appellate Court of Illinois

2022 IL App (2d) 210667

186 N.E.3d 1125

IN RE V.S., a Minor (Leila S., Petitioner-Appellant, v. Liisa S. and David S., Respondents-Appellees).

No. 2-21-0667

Appellate Court of Illinois, Second District.

Opinion filed March 31, 2022

Michael K. Goldberg and Dominic A. Velloze, of Goldberg Law Group, LLC, of Chicago, for appellant.

John W. Whitcomb, Joseph T. Monahan, and Monique C. Patton, of Monahan Law Group, LLC, of Chicago, for appellees.

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

¶ 1 Petitioner, Leila S., appeals from a circuit court order denying her petition for visitation with her minor grandchild, V.S. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 V.S. was born in 2006. Her mother's parental rights were terminated, and her father never established parentage. V.S. was adopted by her mother's cousin, Liisa S., and Liisa's husband, David S.

¶ 4 In June 2021, Leila filed a petition for grandparent visitation in Lake County circuit court. See 750 ILCS 5/602.9 (West 2020). Liisa and David filed a petition to change venue, and the matter was transferred to McHenry County circuit court. Leila also subsequently filed a petition for guardianship.

¶ 5 Liisa and David filed a combined motion to dismiss the petition for grandparent visitation, pursuant to section 2-619.1 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-619.1 (West 2020) ). They argued that Leila's petition for grandparent visitation (1) failed to sufficiently allege that Liisa and David unreasonably denied visitation and that V.S. suffered undue harm as a result (id. § 2-615(a)) and (2) was barred by an affirmative matter (id. § 2-619(a)(9)) in that Leila failed to show that she satisfied any one of the conditions required to file a petition for grandparent visitation ( 750 ILCS 5/602.9(c)(1) (West 2020)). In response, Leila argued that the requirements of subsection (c)(1)(E) (id. § 602.9(c)(1)(E)) had been met. Liisa and David also filed a motion to strike the petition for guardianship.

¶ 6 The trial court held oral argument on both motions on August 18, 2021, and, on August 20, 2021, entered a written order striking the petition for guardianship and dismissing the petition for grandparent visitation. The court struck the petition for guardianship pursuant to section 2-615 of the Code, stating, "The petition for guardianship of the minor child and the emergency motion for temporary guardianship are stricken without prejudice ***. Petitioner is granted leave to file and serve notice of an amended petition for guardianship within 30 days from the date of this order."

¶ 7 The court dismissed the petition for grandparent visitation pursuant to section 2-619(a)(9) of the Code. It concluded that "[Leila] has special standing *** pursuant to 750 ILCS 5/602.9(b)(6) [(West 2020)] because [Liisa and David] were related to their adopted child as defined by Section 1 of the Adoption Act" and that Leila had pled sufficient facts to sustain the petition. Nevertheless, the court concluded that Leila had not satisfied any of the conditions of section 602.9(c)(1).

¶ 8 Following oral argument, the trial court orally explained that it interpreted section 602.9 to require a petitioner who has standing under subsection (b)(6) to nevertheless allege and prove the existence of one of the conditions under subsection (c)(1). Moreover, it interpreted the reference to "parent" or "parents" in subsection (c)(1) to refer to the adoptive parent or parents. Accordingly, in its written order, the court rejected Leila's argument that subsection (c)(1)(E) was satisfied, explaining that the requirements were not met because Liisa and David were married and living together. It stated, "This dismissal order is entered without prejudice should any of the conditions under Section 602.9(c)(1)(A)-(E) be found to exist in the future." The court also indicated following oral argument that Leila could request a final order, though she did not do so at that time.

¶ 9 Leila filed a motion to reconsider the dismissal of her petition for grandparent visitation. The court denied the motion to reconsider in an October 20, 2021, written order, stating, "This is a final and appealable order." Leila filed her notice of appeal on November 12, 2021.

¶ 10 After the case was docketed in this court, we directed Leila to file a jurisdictional statement. Leila filed her jurisdictional statement on December 16, 2021, and, on December 20, 2021, Liisa and David filed a motion to strike the same. We denied that motion without prejudice and allowed the parties to address this court's jurisdiction in their briefs. Leila's appellant brief incorporated by reference her jurisdictional statement.

¶ 11 II. ANALYSIS

¶ 12 At issue in this appeal is whether the trial court erred in granting Liisa and David's motion to dismiss Leila's petition for grandparent visitation and in denying the motion to reconsider the same, finding that Leila failed to establish the existence of any of the conditions in subsection (c)(1). We review both judgments de novo. Jaros v. Village of Downers Grove , 2020 IL App (2d) 180654, ¶ 35, 449 Ill.Dec. 711, 180 N.E.3d 125 ; In re Tyreke H. , 2017 IL App (1st) 170406, ¶, 418 Ill.Dec. 80, 89 N.E.3d 914 109. Preliminarily, however, we must address this court's jurisdiction.

¶ 13 A. This Court Has Jurisdiction

¶ 14 Leila argues that this court has jurisdiction pursuant to Illinois Supreme Court Rule 303 (eff. July 1, 2017), while Liisa and David counter that Leila did not obtain a final judgment and, therefore, this court lacks jurisdiction.

¶ 15 At the outset, Liisa and David argue that Leila attempts to flout Illinois Supreme Court Rule 23(e)(1) (eff. Jan. 1, 2021) by citing a Rule 23 order ( Village of East Dundee v. Village of Carpentersville , 2014 IL App (2d) 131006-U, 2014 WL 1779347 ) entered prior to January 1, 2021, in her jurisdictional statement. Leila's brief incorporated by reference her previously entered jurisdictional statement without modification, thus it included the offending citation. Leila, in her reply brief, acknowledges the oversight and requests that we consider her jurisdictional statement without the offending citation. Liisa and David request that we strike the jurisdiction section of Leila's brief, dismiss the appeal, and sanction Leila. We decline that drastic request, but we disregard the offending citation.

¶ 16 We next consider Liisa and David's substantive jurisdiction argument that Leila did not appeal from a final order. Rule 303 provides, "The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from ***." Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). "A final order is one that ‘resolve[s] every right, liability or matter raised.’ " Goral v. Kulys , 2014 IL App (1st) 133236, ¶ 22, 386 Ill.Dec. 578, 21 N.E.3d 64 (quoting Marsh v. Evangelical Covenant Church of Hinsdale , 138 Ill. 2d 458, 465, 150 Ill.Dec. 572, 563 N.E.2d 459 (1990) ); cf. Armstead v. National Freight, Inc. , 2021 IL 126730, ¶ 23, ––– Ill.Dec. ––––, ––– N.E.3d –––– (" ‘[T]o be considered final and appealable for purposes of Rule 304(a), a judgment or order must terminate the litigation between the parties on the merits of the cause, so that, if affirmed, the trial court only has to proceed with execution of the judgment.’ " (quoting Blumenthal v. Brewer , 2016 IL 118781, ¶ 25, 410 Ill.Dec. 289, 69 N.E.3d 834 )). Liisa and David contend that Leila did not appeal from a final order, because the trial court disposed of both the petition for grandparent visitation and the petition for guardianship "without prejudice." In support of their contention that we lack jurisdiction, they cite D'Attomo v. Baumbeck , 2015 IL App (2d) 140865, ¶ 23, 394 Ill.Dec. 601, 36 N.E.3d 892, for the proposition that a trial court clearly manifests its intent that an order is not final and appealable whenever it includes the phrase "without prejudice." Leila responds that the finality and appealability of an order is determined by its effect rather than its form. Krause v. USA DocuFinish , 2015 IL App (3d) 130585, ¶ 16, 390 Ill.Dec. 343, 28 N.E.3d 996 (" ‘[I]f the dismissal is because of a deficiency that could be cured by simple technical amendment, the order is not the subject of appeal.’ [Citation.] On the other hand, if the dismissal is because of a ‘perceived substantive legal deficiency,’ the dismissal order is final and therefore appealable.").

¶ 17 We agree with Leila. Liisa and David are correct in noting that the trial court's August 20, 2021, order was entered "without prejudice" to Leila's ability to refile. But the court's order required Leila to file an amended petition for guardianship within 30 days. She did not do so, and thus that part of the order became final by its own terms on September 19, 2021. And while the court also dismissed Leila's petition for grandparent visitation "without prejudice," she filed a motion for reconsideration, which the trial court denied on October 20, 2021, stating, "This is a final and appealable [o]rder." The trial court was not required to render any express finding as with an appeal under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Rather, the only requirement was the entry of a final judgment. Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). The effect of the trial court's October 20, 2021, order was to resolve every matter raised in the trial court after the amendment of the petition for grandparent visitation had been disallowed, and thus it was a final judgment. Liisa and David's argument fixates on the trial court's August 20, 2021, order, while ignoring what followed. Leila filed her notice of appeal on November 12, 2021, within 30 days of the entry of the final judgment. See id. We have jurisdiction.

¶ 18 B. The Trial Court Properly Dismissed Leila's Petition

¶ 19 Before reviewing the trial court's order, we must construe section 602.9 in light of...