In re Estate of Webb

                                                                 
                                             FOURTH DIVISION
                                             DECEMBER 26, 1996












1--95--2010

In re ESTATE OF ANTHONY            )  Appeal from the
TERRELL WEBB, LISA WEBB,           )  Circuit Court of
and BALLARD LAMAR WEBB,            )  Cook County
                                   )
(ROSE CARTER a/k/a                 )
ROSE CARTER WEBB),                 )
                                   )
     Petitioner-Appellant,         )  
                                   )
          v.                       )
                                   )
  MARGARET WEBB,                   )  Honorable George
                                   )  W. Cole, Judge
     Respondent-Appellee.          )  Presiding.


     JUSTICE CERDA delivered the opinion of the court:
     Petitioner, Rose Carter, also known as Rose Carter Webb,
appeals from a judgment in favor of respondent, Margaret Webb, in
petitioner's action to terminate respondent's guardianship of
petitioner's minor children Anthony Terrell Webb and Ballard
Lamar Webb.  Margaret Webb is the grandmother of the minor
children.
                                 I.  Facts
     On 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's
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.  
     Petitioner and the children's 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. 
     On 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. 
     Petitioner 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's 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" was on petitioner, the mother.
     On 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.
                              II.  Discussion
     Petitioner 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.
     Section 23--2 of the Probate Act of 1975 (the Probate Act)
provides for several causes for which a court may remove a
guardian, including good cause.  755 ILCS 5/23--2(a)(10) (West
1994).  The Act does not address the burden of proof issue
presented in this case.  
     In In re Custody of Townsend, 86 Ill. 2d 502, 427 N.E.2d 1231 (1981), a minor's relative appealed from the appellate
court's 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's 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:
     "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's best interests that the
     third party be awarded the care, custody and control of the
     minor."  (Emphasis added.)  Townsend, 86 Ill. 2d  at 510-11.
Although 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 (3rd Dist. 1988).
     In 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's reasoning was no less persuasive.  Walters, 174
Ill. App. 3d at 952.
     We adopt Wadman's 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's
best interests that she retain the guardianship.
     As the trial court ruling's 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.  
     The judgment of the trial court is reversed, and the cause
is remanded for a new hearing.
     Reversed and remanded.
     TULLY, P.J., and GREIMAN, J., concur.