{
  "id": 1544404,
  "name": "In re ESTATE OF ANTHONY TERRELL WEBB et al. (Rose Carter, a/k/a Rose Carter Webb, Petitioner-Appellant, v. Margaret Webb, Respondent-Appellee)",
  "name_abbreviation": "Carter v. Webb",
  "decision_date": "1996-12-26",
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  "last_updated": "2023-07-14T20:24:46.991294+00:00",
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    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re ESTATE OF ANTHONY TERRELL WEBB et al. (Rose Carter, a/k/a Rose Carter Webb, Petitioner-Appellant, v. Margaret Webb, Respondent-Appellee)."
    ],
    "opinions": [
      {
        "text": "JUSTICE CERDA\ndelivered the opinion of the court:\nPetitioner, Rose Carter, also known as Rose Carter Webb, appeals from a judgment in favor of respondent, Margaret Webb, in petitioner\u2019s action to terminate respondent\u2019s guardianship of petitioner\u2019s minor children Anthony Terrell Webb and Ballard Lamar Webb. Margaret Webb is the grandmother of the minor children.\nI. Facts\nOn June 9, 1986, respondent, Margaret Webb, filed a petition in the probate division of the circuit court of Cook County seeking to be appointed guardian of the minor children of petitioner, Rose Carter, and Lamar Webb, who was respondent\u2019s son: Anthony Terrell Webb, who was born October 23, 1983; Lisa Rose Webb, who was born on November 26, 1984; and Ballard Lamar Webb, who was born on January 7, 1986. The petition alleged that the children and petitioner lived with respondent and that respondent needed guardianship in order to receive additional public assistance and medical care and to enroll the children in school.\nPetitioner and the children\u2019s father consented to the appointment of respondent as guardian of the person of the minors, which was ordered by the court on June 9, 1986.\nOn March 3, 1989, petitioner petitioned to discharge respondent as guardian. The petition to discharge was granted on December 4, 1990, only with respect to Lisa. Seven years after the appointment, on June 1, 1993, petitioner filed a second petition to discharge the guardian. The petition was amended on November 3, 1994.\nPetitioner submitted a brief to the trial court in which she argued that the court should make a ruling at the outset that the burden of proof was on respondent to rebut a presumption that it was in the children\u2019s best interests to be in the custody of their mother. The trial court refused and instead ruled that \"the burden of proof and to proceed first regarding the best interests of the children\u201d was on petitioner, the mother.\nOn May 12, 1995, after a hearing, the trial court denied the petition to discharge respondent as guardian. The trial court found that it was in the best interest and welfare of the children to have the guardianship continue with Margaret Webb.\nII. Discussion\nPetitioner argues on appeal that the trial court erred in placing the burden of proof on her and in not placing the burden of proof on respondent to overturn the presumption that the natural parent has superior rights over third parties to her children.\nSection 23\u20142 of the Probate Act of 1975 (the Probate Act or Act) provides for several causes for which a court may remove a guardian, including good cause. 755 ILCS 5/23\u20142(a)(10) (West 1994). The Act does not address the burden of proof issue presented in this case.\nIn In re Custody of Townsend, 86 Ill. 2d 502, 427 N.E.2d 1231 (1981), a minor\u2019s relative appealed from the appellate court\u2019s order awarding custody of a child to the father. The trial court was held to have erred at the very outset of the hearing by stating that the burden was on the father. Townsend, 86 Ill. 2d at 514. The custody decision was reversed on the basis that the trial court incorrectly placed the burden on the child\u2019s father. Townsend, 86 Ill. 2d at 515-16. The court held that the burden of proof on the issue of custody was on third parties:\n\"[A] third party seeking to obtain or retain custody of a child over the superior right of the natural parent must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child\u2019s best interests that the third party be awarded the care, custody and control of the minor.\u201d (Emphasis added.) Townsend, 86 Ill. 2d at 510-11.\nAlthough Townsend involved an initial custody determination, the court also stated in the above excerpt the burden of proof for cases where a third party seeks to retain custody. Subsequent cases from other districts have applied Townsend where parents sought a change of custody. In re Estate of Wadman, 110 Ill. App. 3d 302, 442 N.E.2d 333 (4th Dist. 1982); In re Custody of Walters, 174 Ill. App. 3d 949, 529 N.E.2d 308 (3d Dist. 1988).\nIn Wadman, 110 Ill. App. 3d 302, guardians were appointed for a child, and the natural mother successfully petitioned to terminate the guardianship. The court noted that the Probate Act set no standards for termination of guardianship and found that some showing of a change in circumstances was necessary to terminate a guardianship and that the Townsend guidelines applied. Wadman, 110 Ill. App. 3d at 305-06. In Walters, 174 Ill. App. 3d at 952-53, a mother sought the return of the custody of her child from a third party. The court stated that, even though Townsend did not involve a prior custody decree, the Townsend court\u2019s reasoning was no less persuasive. Walters, 174 Ill. App. 3d at 952.\nWe adopt Wadman\u2019s analysis. Petitioner had to show some change in circumstances, or otherwise she could bring frequent petitions to terminate at any time, but first respondent had the burden of proof to overcome the superior-rights doctrine that a parent has a superior right to custody of her minor children. Further, respondent had to show that it was in the children\u2019s best interests that she retain the guardianship.\nAs the trial court\u2019s ruling that petitioner had the burden of proof was contrary to the Townsend holding, the trial court is ordered on remand to conduct a new hearing and to make clear the burden of proof at the outset of the hearing. The trial court is to determine whether, it will consider at the new hearing only the evidence already received at the prior hearing or whether to receive new evidence.\nThe judgment of the trial court is reversed, and the cause is remanded for a new hearing.\nReversed and remanded.\nTULLY, P.J., and GREIMAN, J., concur.",
        "type": "majority",
        "author": "JUSTICE CERDA"
      }
    ],
    "attorneys": [
      "Equip for Quality, Inc., of Chicago (Michael F. Figueras, of counsel), for appellant.",
      "Loyola University Chicago Community Law Center, of Chicago (Maria T. Cenzon and Theresa C. Ceko, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "In re ESTATE OF ANTHONY TERRELL WEBB et al. (Rose Carter, a/k/a Rose Carter Webb, Petitioner-Appellant, v. Margaret Webb, Respondent-Appellee).\nFirst District (4th Division)\nNo. 1\u201495\u20142010\nOpinion filed December 26, 1996.\nEquip for Quality, Inc., of Chicago (Michael F. Figueras, of counsel), for appellant.\nLoyola University Chicago Community Law Center, of Chicago (Maria T. Cenzon and Theresa C. Ceko, of counsel), for appellee."
  },
  "file_name": "0099-01",
  "first_page_order": 117,
  "last_page_order": 120
}