In re Estate of Johnson

No. 1-95-4018

IN RE ESTATE OF KIRSTEN JOHNSON,   )
a Minor,                           )    
                                   )    
VERA HOWSE,                        )    APPEAL FROM THE CIRCUIT
                                   )    COURT OF COOK COUNTY.
          Petitioner-Appellee,     )    
                                   )
     v.                            )    HONORABLE BENJAMIN 
                                   )    NOVOSELSKY, JUDGE
ERIC JOHNSON,                      )    PRESIDING.
                                   )    
          Respondent-Appellant.    )


     JUSTICE GORDON delivered the opinion of the court:

     Vera Howse filed a petition seeking appointment of herself
as the successor guardian of the person of the minor, Kirsten
Johnson, her niece, after Kirsten's mother and guardian, Barbara
Johnson, died.  Kirsten, who was 16 years old, signed the
petition and nominated Vera Howse as the guardian of her person. 
Attached to Howse's petition was a copy of Barbara Johnson's will
in which she nominated her sister, Vera Howse, as guardian of
Kirsten's person and estate.  Eric Johnson, Kirsten's father,
moved to dismiss Howse's petition and alternatively sought
appointment of himself as Kirsten's successor guardian.  After
the hearing, the trial court denied Eric Johnson's motion and
request to be appointed Kirsten's guardian and granted Howse's
petition.  The court determined that it was in Kirsten's best
interest that Howse be appointed the guardian of her person. 
Eric Johnson appeals.
     The issues raised in this appeal are whether the probate
court had jurisdiction to appoint a nonparent as guardian of a
minor when a parent is living and able to care for the minor and
whether the trial court afforded the surviving, noncustodial
parent a fair hearing.
     The evidence presented at the hearing on the petitions
seeking appointment of guardianship showed that the marriage of
Barbara and Eric Johnson was dissolved pursuant to judgment
entered on September 26, 1983.  That judgment awarded sole
custody of Kirsten Johnson to Barbara and provided visitation
rights to Eric.  Eric was required to pay $500 per month in child
support and was responsible for Kirsten's extraordinary medical
expenses.
     On May 28, 1986, Kirsten sustained multiple trauma with
severe head injuries.  A personal injury lawsuit was filed on
her behalf and that lawsuit was settled in 1990.  In accordance
with the settlement agreement, Kirsten received a cash payment of
$750,000 plus a structured settlement annuity that guaranteed
total payments of $4,485,405.88 with expected total payments
reaching as high as $14,418,036.24.  First Colonial Trust Company
was named by the probate court to act as the guardian of
Kirsten's estate.  Barbara Johnson, the custodial parent,
remained as the guardian of Kirsten's person until her death on
April 30, 1995.
     Vera Howse, Barbara Johnson's sister, testified that in
1993, for a period of about three weeks while Barbara was in the
hospital undergoing a bone marrow transplant, she was appointed
by the court to care for Kirsten.  After Barbara was released
from the hospital, Howse continued to assist Barbara and cared
for Kirsten by bringing food and making sure that Kirsten
attended school and doctor appointments.  In June 1994, when
Barbara could no longer care for herself or Kirsten, Barbara and
Kirsten moved into Howse's home in Matteson, Illinois.  Howse
made arrangements for Kirsten to have necessary dental work
performed and for her to attend counselling at school.  She also
talked to Kirsten's teachers on several occasions.  Howse
regularly took Kirsten to her church in Chicago even though Howse
attended another church.
     Howse stated that, after Barbara's divorce and until June
1994, Eric Johnson was not involved in the day-to-day
responsibilities toward Kirsten.  She stated that she also never
saw him during the three-week period in 1993 when Barbara was
hospitalized.  Howse had no knowledge whether Eric called the
house to see how Kirsten was doing or whether Kirsten had any
contact with Eric during that three-week period.  She stated that
the first time Eric came to see Kirsten after her move to
Matteson was in October 1994.  According to Howse, Eric visited
Kirsten once in February 1995 and a couple of times in March. 
Howse did not think that Eric took Kirsten over to his house on
any of those occasions and stated that Kirsten never stayed
overnight at Eric's house.
     Howse further testified that while Barbara was alive and
living with her, she would receive about $500 per month from
Barbara.  She stated that she did not know whether Barbara was
receiving any child support payments from Eric.
     Howse stated that she wanted to be Kirsten's guardian
because Kirsten was "like [her] daughter" and because she helped
Barbara raise Kirsten since Kirsten was born.  She stated that
she raised Kirsten in "a Christian atmosphere" and with love.
     On cross-examination by Kirsten's guardian ad litem, Howse
stated that Eric visited Kirsten a few times in April 1995 before
Barbara died.  At that time, Eric did not offer to provide any
money or to take custody of Kirsten.  She stated that in May 1995
Kirsten stayed overnight at Eric's house.  Kirsten also stayed
overnight a couple of times in June.  On none of those occasions
did Eric offer to provide any money to Howse.  Howse stated that
Eric visited Kirsten in July 1995 and once in August.  He took
Kirsten for about a week and a half in September without Howse's
consent.  Howse further stated that from the time of Barbara's
death until the hearing, Eric had never provided her with any
financial support for Kirsten and had never discussed Kirsten's
daily needs, education, or religious instruction with her.
     On cross-examination by Eric's counsel, Howse testified that
she never approached Eric to discuss Kirsten's daily needs,
educational needs, religious education or support.  Howse
admitted that she did not have personal knowledge regarding any
child support payments made by Eric to Barbara.  She stated that
the sole basis for her testimony regarding Eric's support
payments was a conversation she had with Barbara "about a year
ago" in which Barbara told her that Eric hadn't paid support in
about four or five years.
     Howse stated that in March 1995 she had a discussion with
Eric concerning Kirsten's living arrangements if Barbara was to
die.  She stated that Eric indicated that he wanted Kirsten. 
When Barbara died, Eric told Howse that he had talked to Kirsten
and that Kirsten stated she wanted to stay with Howse.  Howse
testified that Eric said that Kirsten could stay with her until
she finished high school.  She conceded that Eric was a member of
Kirsten's church and that Eric attended that church while he was
married to Barbara and also attended that church on a few
occasions after Barbara died.
     Howse further testified that her home in Matteson was sold
in February 1995 to the trust fund established for Kirsten's
estate.  After the sale, Howse continued to reside in the home
with her mother, Esther J. Miles, who was deceased at the time of
the hearing; her son and daughter; her sister, Esther Frierson;
and her brother, Elmer Miles, who had "MS."  Howse stated that
Esther Frierson moved in to help with Kirsten.  The Matteson
house has three bedrooms, one of which is occupied by Kirsten. 
Kirsten shared the room with her mother and also shared it with
overnight guests.  Howse admitted that neither she nor any
members of her family were making rent payments to Kirsten.  She
stated, however, that the bills for the house were still in her
name (although there was nothing in the record to establish who
paid those bills); that her sister, Esther, who was unemployed,
gave her $100 per month; and that all of the people who lived in
the Matteson home paid for food, washed clothes and kept the
house clean.
     Mary Hawes, a speech language pathologist for the Rich
Township high schools and a teacher in the special education
program, testified that Kirsten was one of eleven students
assigned to her care.  Kirsten came to the school in the fall of
1994.  She tested Kirsten in early 1995 and determined that
Kirsten was at the 11th grade level in reading recognition, which
she defined as Kirsten's "ability to say words, not the
understanding;" better than twelfth grade in spelling (twelfth
grade nine months); fourth grade in mathematics; and third grade
in reading comprehension.  She stated that Kirsten was
"mainstreamed out for chorus and PE."  Hawes disclosed that she
met with Barbara on two occasions and that she had several
telephone conversations with Howse concerning Barbara's illness. 
Hawes saw Howse and Frierson when they attended an awards
ceremony at school, when they attended an open house, and spoke
with them by telephone on several occasions.  She also spoke with
Eric Johnson once at the end of the prior school year.
     On cross-examination, Hawes testified that Eric Johnson
spoke with her in the fall of 1995 about placing Kirsten in
another school district.  She also met with him and had another
telephone conversation with him concerning Kirsten's move to
Bolingbrook.  She did not know whether a program at another
school would be as good or better than the program at Rich
Central if Kirsten transferred to another school.  Hawes stated
that Kirsten was a junior and was scheduled to graduate the
following school year.
     Esther Frierson, the sister of Vera Howse, testified that
she had taken care of some of the responsibilities and duties
surrounding the day-to-day life of Kirsten since Kirsten was
born.  During the four or five months preceding Barbara's death,
Frierson would visit the Matteson house on a daily basis to help
Barbara and Kirsten.  When Barbara died, she moved into the
Matteson house to help with Kirsten while Vera was at work.  She
stated that she would wake Kirsten up in the morning, make sure
her clothes were ironed, make sure she had eaten breakfast and
had taken care of her personal hygiene and sent her off to
school.  When Kirsten returned from school, Frierson would help
her with her homework.  Frierson testified that since May 1995,
Eric came to the house four times.  She further testified that
Kirsten is living in a stable environment, has friends, goes to
church, is comfortable and "feels free to grow."
     Katherine Miles, Kirsten's cousin, testified that she lived
with Barbara during the period of 1984 until Barbara moved to
Matteson.  She stated that she helped care for Barbara's children
while Barbara was at work.  She stated that, when she lived with
Barbara, she observed Barbara crying on several occasions because
she was not receiving child support monies.  With respect to
Eric's visits with his children, Miles testified that "sometimes
[Eric] would show up and sometimes he wouldn't."  According to
Miles, there were times that Eric did not meet the needs of his
family.
     On cross-examination, Miles testified that she did not know
how much money Eric was ordered to pay Barbara.  She also stated
that she did not know how much he did pay.
     Robert Jansen, vice president of Firstar Bank of Illinois,
formerly known as First Colonial Trust Company, the bank acting
as the guardian of Kirsten's estate, testified that payments were
being made out of Kirsten's estate for mortgage loans,
homeowner's insurance, and health insurance.  He stated that
Kirsten's estate had paid approximately $23,000 in health
insurance premiums and that Eric Johnson had reimbursed the
estate in the approximate amount of $6,500.  On cross-
examination, Jansen stated that in August 1995 Eric had advised
him that he had an insurance policy for Kirsten.  Eric did not
provide any identification for that insurance.
     Steffa Mirel, a psychotherapist licensed in the state of
Illinois as a clinical social worker, was called by Eric Johnson. 
Mirel testified that she was Kirsten's therapist from July 1991
until November 1994.  She stated that she had occasion to talk to
Eric during the one-year period beginning late 1991 or early 1992
when he would bring Kirsten for her appointments.  She also
testified that she had one occasion to talk to Kirsten
thereafter, on September 20, 1995, pursuant to a telephone
request from Eric.  Because of the confidentiality privilege,
Mirel was not allowed to testify concerning the nature and
content of any of her conversations with Kirsten.
     Eric Johnson testified that since January 1993 he has lived
in a house in Bolingbrook with his current wife, her mother, her
sister and her niece.  He is an architect and has worked in that
business for thirty years.  His current employment began in April
1995.  Eric's wife and sister-in-law work full time, and his
mother-in-law remains at home.  There are four bedrooms in the
home, one of which is for Kirsten.  Eric made a partial
contribution toward the down payment on the house but his wife is
solely obligated on the mortgage and note.  Eric's income is
used, however, to pay the mortgage and other expenses.  He does
not receive any financial contributions from his current wife's
family other than to buy food on occasion.
     Eric testified that currently he is only able to see Kirsten
if Vera Howse or Esther Frierson "allow" him to see her.  He
defined "allow" by saying "[t]hat means that she would not be
home, or they would not open the door, or they would not answer
the phone, or they would not let me see her."  He stated that he
was told by Howse that he could see Kirsten on two or three
occasions although he wanted to see Kirsten every Saturday.  He
stated that he attempted to see Kirsten at church but that
Kirsten was hidden from him.  Eric estimated that since Barbara
died his attempts to visit Kirsten were thwarted by Howse or
Frierson on about 25 occasions.  He denied that he told Howse
that she could keep Kirsten.
     Eric also testified to a recent occurrence wherein Kirsten
lived with him and his wife for a nine-day period.  He stated
that during that time he took her to church and to Rich Central
School.  He attempted to enroll Kirsten at Bolingbrook High
School which had a program similar to the one she had been
enrolled in at Rich Central.
     Eric further testified that he is willing and able to
participate in the day-to-day care decisions involving Kirsten. 
He testified that he had cared for Kirsten on a full-time basis
during the period of December 1984 until June 1985 while Barbara
was hospitalized.  During that time period, he took Kirsten to
school and picked her up, fed her, washed her and cared for her. 
Eric stated that he was prepared to act as Kirsten's father and
guardian and to support and care for her.  
     On cross-examination, Eric stated that during his last
visitation with Kirsten, Kirsten asked to stay with him.  He
stated that Kirsten had made that request before but that when he
would approach Howse he was told to talk to Howse's attorney. 
Eric admitted that he recently wrote two letters to Rich Central
High School advising the school that Barbara had died and that
Kirsten could not be picked up from that school by anyone other
than Eric, his wife or his mother-in-law.  He stated that he
wrote the letters after calling the school and being told that
Kirsten's records did not reflect Barbara's death.
     Eric admitted that during the nine-day period that he kept
Kirsten he was cognizant of ongoing court proceedings to
determine who would be Kirsten's guardian.  He denied having
knowledge that the court proceedings also dealt with the issue of
Kirsten's custody.  He admitted that he returned Kirsten to Howse
the day after a court order was issued directing him to do so. 
He also stipulated that he disobeyed several court orders with
respect to the payment of Kirsten's health insurance premiums and
that he was found in contempt for failure to comply with those
court orders.  He stated that he made partial premium payments in
1991, 1992 and 1993 because he had lost his job and was trying to
start his own business during those years.  He also said that the
1994 and 1995 premiums did not warrant payment because he had
other insurance coverage for Kirsten.  He admitted that he never
petitioned the court to relieve himself of the insurance premium
obligations because of that alternate coverage.
     With respect to child support payments, Eric admitted that
he did not make any payments when he was unemployed.  He stated
that when he was working he made all payments to Barbara until
her death.  Although he earned an income of $70,000 from May 1994
to May 1995, he produced four cancelled checks made payable to
Barbara during that time period totalling $1,050.  He stated that
he had written receipts for cash payments he had made to Barbara
but that they were at his home.  Eric admitted that after Barbara
died he made no support payments to Howse.  He stated that she
did not ask for financial support and that he did not offer any
but that he offered to take Kirsten and pay for all her needs.
     Eric further testified that he contacted Kirsten's school in
May 1994 to request that he be sent notice of any school
functions involving Kirsten.  He was told that the school could
not include him as a person to be notified of events because the
computer at the school allowed for the listing of only one
address and that address was Barbara's.
     The record reflects that Kirsten wrote a note to the trial
judge in which she expressed a preference to live with her
father.  When questioned about that note by the trial judge in
chambers, Kirsten stated that her father told her to write the
note.  She also stated that she wrote it because she did not know
what to do and in order to "cooperate."  When asked where she
preferred to live, Kirsten stated that she preferred to live with
her aunt.  She stated that she received love and affection from
her aunt and that when she was with her father she received
"negative feedback."  Kirsten said she was not comfortable at her
father's house because she felt that she was "concealed" in one
room and because the house was so big and she had to go up steps
which she hated to do.
     In its order granting Vera Howse's petition for appointment
of guardianship, the court noted that it had examined the entire
court file on Kirsten Johnson, all of the testimony presented at
the hearing and all of the exhibits entered into evidence.  The
court noted that Eric Johnson had rendered insignificant
assistance for the last five years and had made payments to
Kirsten's estate for her health insurance premiums only pursuant
to the court's issuance of "rules to show cause" and writs of
attachment.  The court also noted that Eric had not reimbursed
Kirsten's estate since 1993 even though he earned $70,000 in the
1994-1995 year.  The court stated that the evidence was clear
that Howse was capable of meeting Kirsten's special needs and
gave considerable weight to Kirsten's preference for her aunt. 
The trial court concluded that it was in Kirsten's best interest
that Vera Howse be appointed the guardian of her person and be
entitled to her custody.
     On appeal, Eric first contends that the probate court did
not have subject matter jurisdiction to appoint Howse, a
nonparent, as guardian of Kirsten's person when he, Kirsten's
parent, was alive and willing to care for her.  In support of
this argument, Eric relies upon section 11-5(b) of the Probate
Act of 1975 (the Probate Act) which states in pertinent part:
     "The court lacks jurisdiction to proceed on a petition
     for the appointment of a guardian of a minor if (1) the
     minor has a living parent, adoptive parent or
     adjudicated parent, whose parental rights have not been
     terminated, whose whereabouts are known, and who is
     willing and able to make and carry out day-to-day child
     care decisions concerning the minor ***.  There shall
     be a rebuttable presumption that a parent of a minor is
     willing and able to make and carry out day-to-day child
     care decisions concerning the minor, but the
     presumption may be rebutted by a preponderance of the
     evidence."  755 ILCS 5/11-5(b) (West 1994).
     Eric argues that no evidence was presented at the hearing to
rebut the presumption that he was willing and able to make and
carry out the day-to-day child care decisions concerning Kirsten
and, thus, in accordance with section 11-5(b) of the Probate Act,
the court lacked jurisdiction to proceed on Howse's petition for
guardianship and erred in proceeding to make a best interest of
the child determination with respect to Kirsten's custody.
     Preliminarily, Howse contends that the essence of Eric's
argument is standing and that Eric is precluded from making any
standing contention because he did not raise standing as an
affirmative defense in his motion to dismiss.  See In re Marriage
of Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345 (1995) (standing
is an affirmative defense that is waived if not raised within the
time of pleading (735 ILCS 5/2-619(a) (West 1994)).  We disagree.
     While Eric's motion below and his argument on appeal raise
the issue of subject matter jurisdiction, his contentions have
consistently been predicated on section 11-5 of the Probate Act
and, as such, implicitly raise standing.  "Jurisdiction," as it
is used in section 11-5(b) of the Probate Act does not refer to
"jurisdiction" in the traditional subject matter sense.  Subject
matter jurisdiction is constitutionally conferred upon the
circuit court.  Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345. 
The purpose of section 11-5(b) is to prevent the circuit court
from exercising its subject matter jurisdiction when the
petitioner lacks standing.  Such a conclusion was reached in
cases construing the "jurisdictional" requirements for custody
proceedings filed under the Illinois Marriage and Dissolution of
Marriage Act (the Dissolution Act) (750 ILCS 5/101 et seq. (West
1994)).  See Siegel v. Siegel, 84 Ill. 2d 212, 221, 417 N.E.2d 1312, 1316 (1981) (stating that the General Assembly did not use
the term "jurisdiction" in section 601 of the Dissolution Act in
the traditional sense of subject matter jurisdiction but rather
"in the sense of a limitation upon the exercise of the existing
jurisdiction"); Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345. 
That term and the provision within which it appears was said to
have created a standing requirement.  See In re Custody of
Peterson, 112 Ill. 2d, 48, 52, 491 N.E.2d 1150, 1152 (1986) (the
standing requirement for nonparents appears in section 601 of the
Dissolution Act); Schlam, 271 Ill. App. 3d at 795, 648 N.E.2d  at
350 ("'[j]urisdiction' as the term is used in section 601 of the
[Dissolution] Act, refers to a standing requirement for persons
petitioning for child custody").  Thus, since Eric's motion to
dismiss argued lack of jurisdiction under section 11-5(b) of the
Probate Act, and since "jurisdiction" as it is used in that
provision refers to the standing requirement (see Schlam, 271
Ill. App. 3d 788, 648 N.E.2d 345), that motion preserved the
issue of standing for review.
     Before a nonparent can petition for custody and demand a
custody hearing to determine the best interests of the child, the
nonparent must show that he has standing.  E.g., In re Kirchner,
164 Ill. 2d 468, 649 N.E.2d 324 (1995); In re Marriage of
Thompson, 272 Ill. App. 3d 257, 651 N.E.2d 222 (1995) (unless
standing is established, court cannot proceed to determine which
locus of custody would serve the best interests of the child);
Schlam, 271 Ill. App. 3d 788, 648 N.E.2d 345; In re Marriage of
Haslett, 257 Ill. App. 3d 999, 629 N.E.2d 182 (1994).  The
standing requirement is an acknowledgment of the superior rights
doctrine.  Kirchner, 164 Ill. 2d 468, 649 N.E.2d 324; Peterson,
112 Ill. 2d 48, 491 N.E.2d 1150.  See In re Estate of Barnhart,
232 Ill. App. 3d 317, 597 N.E.2d 1238 (1992) (superior rights
doctrine has been incorporated into the Probate Act).  That
doctrine provides that "'[i]n child-custody disputes it is an
accepted presumption that the right or interest of a natural
parent in the care, custody and control of a child is superior to
the claim of a third person.'"  Peterson, 112 Ill. 2d  at 51, 491 N.E.2d  at 1151 quoting In re Custody of Townsend, 86 Ill. 2d 502,
508, 427 N.E.2d 1231, 1234 (1981).  
     Here, whether Howse has standing to petition for
guardianship and custody of Kirsten depends upon whether she has
rebutted the presumption that Eric was willing and able to make
and carry out day-to-day child care decisions concerning Kirsten. 
755 ILCS 5/11-5(b) (West 1994).  See Thompson, 272 Ill. App. 3d
257, 651 N.E.2d 222 (rebuttable presumption in favor of parent
under section 601(b)(2) of the Dissolution Act); Barnhart, 232
Ill. App. 3d 317, 597 N.E.2d 1238 (presumption in favor of parent
in Probate Act).  Whether a nonparent petitioner may have the
ability to provide a better environment for the child is not a
factor to be considered where standing is in issue so long as the
presumption that the natural parent is willing and able to care
for the child remains unrebutted.  To compare the potential of
the nonparent against the parent when making a standing
determination would jeopardize the custodial rights of natural
parents such that any nonparent with better qualifications,
albeit a stranger, could be found to have standing to petition
for custody notwithstanding the established threshold adequacy of
the natural parent.
     Nor can the child circumvent the superior rights doctrine as
embodied in the standing requirement of the Probate Act by
nominating a nonparent guardian.  See Barnhart, 232 Ill. App. 3d
317, 597 N.E.2d 1238.  This court is cognizant of the fact that
Kirsten signed Howse's petition and nominated Howse as her
guardian pursuant to section 11-5(c) of the Probate Act.  735
ILCS 5/11-5(c) (West 1994).  That provision, which permits a
minor who is 14 years of age or older to nominate a guardian,
allows the court to consider the minor's preference where the
preference is expressed in favor of a person with standing. 
Barnhart, 232 Ill. App. 3d at 322, 597 N.E.2d  at 1241-42
(nomination of grandparents by granddaughter pursuant to section
11-5(c) of the Probate Act does not confer standing upon
grandparents).
     Based upon the record before us, we do not believe that
Howse has met the burden of overcoming the presumption that Eric
was willing and able to make and carry out day-to-day care
decisions concerning Kirsten.  See Thompson, 272 Ill. App. 3d
257, 651 N.E.2d 222 (standing under 601(b)(2) of the Dissolution
Act); In re Person & Estate of Newsome, 173 Ill. App. 3d 376, 527 N.E.2d 524 (1988) (standing under 11-5 of the Probate Act). 
Although there was testimony at the hearing that Eric failed to
meet his monetary obligations with respect to the payment of
Kirsten's health insurance premiums, he testified that his
inability to do so was caused by his lack of income and failed
business venture.  There also was evidence suggesting that Eric
had failed to meet his child support obligations but that
evidence was not conclusive and was refuted by Eric. 
Notwithstanding any evidence in this regard, it should be noted
that Eric's financial shortcomings largely occurred after the
multi-million dollar settlement of Kirsten's personal injury
action.  To that extent, Kirsten's needs and health insurance
coverage were not jeopardized since her estate had the financial
resources to pay for Kirsten's necessities and health insurance. 
Finally, while there was some evidence to suggest that Eric's
visitation with Kirsten was sparse, there also was evidence to
suggest that several of Eric's attempts to visit with Kirsten had
been thwarted by her aunts.
     There also was unrefuted evidence that at the time of the
hearing, Eric remarried, returned to full-time employment, and
lived in a home wherein his mother-in-law could care for Kirsten
while Eric and his current wife were at work.  Eric testified
that he attended the same church in Chicago that Kirsten
attended.  Eric further testified to his attempts to obtain
Kirsten's custody shortly after Kirsten's mother died and to the
numerous occasions, approximately 25, upon which his attempts to
visit with Kirsten were thwarted.  Eric testified concerning his
attempts to locate an educational program that would be meet
Kirsten's needs at the high school near his home.  He also
testified to his discussions with Mary Hawes, which she
corroborated, about Kirsten's placement in another school and
about his unsuccessful attempt to obtain notification from Rich
Central High School of that school's activities.  The testimony
also showed that Eric had cared for Kirsten on a full-time basis
for two extended periods.  No evidence was presented to dispute
those facts or to suggest that the care Eric provided to Kirsten
on those occasions was inadequate.  Finally, there was unrebutted
evidence that for a period of one year, Eric brought Kirsten to
her psychotherapy sessions.  When viewed in its entirety, the
evidence presented did not rebut the presumption that, at the
time of the hearing, Eric was willing and able to make and carry
out the day-to-day child care decisions concerning Kirsten.
     In view of our determination that this matter warrants
reversal because Howse lacked standing, we need not consider
Eric's second argument in favor of reversal predicated upon the
allegation that he was denied a fair hearing.
     For the foregoing reasons, the judgment of the Circuit Court
of Cook County is reversed and the cause is remanded for further
proceedings.
     Reversed and remanded.
     McNULTY, P.J. and HOURIHANE, J., concur.