Illinois Official Reports 

Appellate Court

In re Estate of B.R.S., 2015 IL App (3d) 150038

Appellate Court 

Caption

In re ESTATE OF B.R.S. a Minor (Jamie R. Lawson, PetitionerAppellee, v. Conaley Michael Aaron and Jessica Erin Aaron, 

Respondents-Appellants).

District & No. Third District

Docket No. 3-15-0038

Filed June 12, 2015

Decision Under 

Review

Appeal from the Circuit Court of Tazewell County, No. 14-P-346; the 

Hon. Michael D. Risinger, Judge, presiding.

Judgment Vacated and remanded.

Counsel on

Appeal

Robert R. Parker, of Parker & Parker, of Peoria, for appellants.

Betty K. Cassidy, of Cassidy Law Office, of Pekin, for appellee.
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Panel PRESIDING JUSTICE McDADE delivered the judgment of the 

court, with opinion.

Justices Holdridge and Wright concurred in the judgment and opinion.

 OPINION 

¶ 1 Respondents, Conaley and Jessica Aaron (the Aarons), appeal the trial court’s denial of 

their petition to vacate the order granting Jamie Lawson plenary guardianship of the minor, 

B.R.S. Their arguments focus primarily on Lawson’s failure to (1) list them as the minor’s 

nearest kin and her custodians in the petition for guardianship and (2) provide them notice of 

the hearing. They assert that these failures were part of a fraud perpetrated by Lawson upon the 

court in pursuit of custody of the minor. They contend that the omissions render the order 

voidable and require the court to conduct a more in-depth review to ascertain whose 

appointment as guardian would serve the best interest of the minor. Additionally, the Aarons 

take issue with section 11-8 of the Probate Act of 1975 (755 ILCS 5/11-8 (West 2014)) and 

challenge its constitutionality. They argue that on its face this section thwarts their 

fundamental right to due process as it confers an interest in the proceeding but retracts the need 

for notice allowing them to participate in the disposition of the case. Lastly, they claim that 

Lawson should be estopped from guardianship as a matter of law as her parental rights were 

relinquished in the adoption of the minor by the newly deceased parent. We agree that the trial 

court erred in denying the Aarons’ motion to vacate. We remand the case for proceedings in 

accord with this opinion. 

¶ 2 FACTS 

¶ 3 B.R.S. was born to Jamie Lawson and Justin Shannon in 2005. In 2009, both parents 

relinquished their parental rights and their daughter was adopted by her paternal grandmother, 

Cindy Fincham. On October 31, 2014, Cindy passed away. 

¶ 4 On November 7, 2014, Lawson petitioned the court for emergency and temporary 

guardianship of the minor. In the petition she acknowledged the relinquishment of her parental 

rights but claimed that the minor was now “without a guardian or any person who [could] 

provide for the child’s care.” She listed how her circumstances had changed, alleged that 

Justin’s had not changed, and argued that her guardianship would be in the best interest of the 

minor. 

¶ 5 At the hearing on the matter, Lawson testified to her current personal status, including her 

marriage, residence, income, and other household members.1 She told the court she had 

regular contact with the minor and again informed the court that the minor was now “without a 

guardian or any person who can provide for the child’s care including medical care.” Lawson 

 

1The record on appeal does not include a transcript of the November 7, 2014 hearing on Lawson’s 

petition for temporary guardianship. Statements from Lawson’s testimony at that hearing are gleaned 

from the transcript of the hearing on the Aarons’ motion to vacate, which is in the record, where 

recounts of the petition hearing are discussed, as well as Lawson’s appellate brief. 
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stated that at the present time the minor was with Justin. However, Jamie did not note this in 

her petition or include the address of the minor. Despite the fact that the petition was styled as 

a request for temporary guardianship, the court granted Lawson plenary guardianship. 

Accompanied by police, Lawson promptly went to forcibly retrieve the child from Justin, the 

Aarons, and several other relatives who were attending the funeral service for Cindy. She was 

prevailed upon to let the child remain for Cindy’s funeral. 

¶ 6 On November 14, the Aarons motioned for the court to vacate its ex parte order granting 

plenary guardianship to Lawson. At the motion hearing, the Aarons enumerated significant 

omissions from Lawson’s petition for guardianship of information mandated by section 11-8 

of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-8 (West 2014)). They stated the 

petition was missing the correct address of the minor, the names and addresses of the minor’s 

nearest relatives, including the Aarons, and the name and address of the person having custody 

of the minor. They also noted the omission of the approximate value of the minor’s personal 

estate and the fact that the minor’s gross income and receipts from social security would be 

approximately $1,800 per month. Lawson also omitted her occupation as a stripper at Club 

Cabaret. Lastly, they submitted proof that the minor had not been covered on health insurance 

presumably by Lawson even though providing medical care was one of the several purposes 

Lawson petitioned for the award of guardianship. The Aarons alleged that collectively the 

defects amounted to fraud and that proper notice of the petition should have been given to 

them. It is, they argued, thus void. 

¶ 7 Lawson contended that notice is not mandatory and failure to provide such would leave the 

order of the court only voidable. Additionally, she, and the court, asserted that they simply did 

not think about other relatives, including brothers, sisters, aunts, and uncles, requiring notice 

under the Probate Act. The court also stated it did not find notice to Justin required, even 

though legally he is the minor’s brother, as he was “not related anymore” pursuant to the 

relinquishment of his parental rights. 

¶ 8 Although conceding a lot of things could have been done differently, the court denied the 

Aarons’ petition despite their other evidence of the significance and closeness of their 

relationship with the child. The judge stated that the minor needed “a guardian. And I can’t do 

a temporary guardianship, so what was left–was a plenary guardianship. That’s what I 

ordered.” The court declined to find that there had been fraud with respect to the defects in 

Lawson’s petition and held that the lack of notice had no effect on his jurisdiction to rule on the 

case. The court did express its frustration with the structure, of the statute noting that “[the

legislature] put down that you have got to give notice to any relative named in the petition, so 

how do you get around that? Just don’t name them.”

¶ 9 The Aarons timely appealed. 

¶ 10 ANALYSIS 

¶ 11 We review the denial of a motion to vacate for an abuse of discretion. Berg v. Mid-America 

Industrial, Inc., 293 Ill. App. 3d 731, 734 (1997). Where our decision requires construction of 

the statute, our review is de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 267 (2003). 

¶ 12 The court in this case denied the Aarons’ motion to vacate its order granting Lawson 

plenary guardianship of the minor. Sections 11-8 and 11-10.1 of the Probate Act are pertinent 

to the issues raised in this appeal. 
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“(a) The petition for appointment of a guardian *** of both the person and estate, of 

a minor *** must state, if known: (1) the name, date of birth and residence of the 

minor; (2) the names and post office addresses of the nearest relatives of the minor in 

the following order: (i) the spouse, if any; if none, (ii) the parents, adult brothers and 

sisters, and the short-term guardian, if any; if none, (iii) the nearest adult kindred; (3) 

the name and post office address of the person having the custody of the minor; (4) the 

approximate value of the personal estate; (5) the amount of the anticipated gross annual 

income and other receipts; (6) the name, post office address and, in case of an 

individual, the age and occupation of the proposed guardian; (7) the facts concerning 

the execution or admission to probate of the written designation of the guardian, if any, 

a copy of which shall be attached to or filed with the petition; and (8) the facts 

concerning any juvenile, adoption, parentage, dissolution, or guardianship court 

actions pending concerning the minor or the parents of the minor and whether any 

guardian is currently acting for the minor.” (Emphasis added.) 755 ILCS 5/11-8 (West 

2014).

“Unless excused by the court for good cause shown, it is the duty of the petitioner to 

give notice of the time and place of the hearing on the petition, in person or by mail *** 

to the relatives *** whose names and addresses are stated in the petition *** but failure 

to give notice to any relative is not jurisdictional.” (Emphasis added.) 755 ILCS 

5/11-10.1 (West 2014). 

¶ 13 The plain language of the statute evidences a clear legislative intent that all the information 

it deemed necessary for the court’s determination of the best interest of the child who is the 

subject of the guardianship proceeding must be provided to the court. Some of that information 

is required to be set out in the petition for guardianship itself. Other information is to be 

presented at a hearing of which all immediate relatives and current custodians or short-term 

guardians of the child have notice and in which they can be heard in support of or opposition to 

the appointment of the petitioner as guardian. Most of the information required by the statute 

for a meaningful best interest determination was omitted by Lawson from her petition. 

¶ 14 We find that Lawson’s petition for guardianship provided to and accepted by the court was 

evasive, duplicitous and plainly noncompliant with the statute. The petition submitted by 

Lawson is devoid of such basic information as: the current whereabouts and custodian of the 

child, the identification and location of her closest relatives, any estate and income of the child, 

and even, as the person seeking guardianship, her own occupation. This petition would be 

glaringly deficient even if prepared by Lawson herself. It is exceedingly troubling that it was 

prepared and submitted by a licensed attorney, who is presumed to know the applicable law 

and has been trained to comply with legal requirements. 

¶ 15 Despite the deficiencies in the petition, the trial court awarded permanent or plenary 

guardianship to Lawson. Even after being made aware of the identification of close adult 

relatives and of other salient information omitted from Lawson’s petition, the court refused to 

vacate the challenged order. 

¶ 16 We consider the three conclusions reached by the trial court to justify its refusal to vacate 

its order awarding Lawson guardianship of the minor child. 

¶ 17 First, concerning the fundamental issue of its jurisdiction, there is no dispute that the court 

had subject matter jurisdiction to consider and determine the issues presented by Lawson’s 

petition for guardianship and the Aarons’ motion to vacate the guardianship. According to the 
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plain language of the statute, the petitioner’s failure to provide notice to proper parties does not 

divest the court of this jurisdiction. 755 ILCS 5/11-10.1 (West 2014) (“failure to give notice to 

any relative is not jurisdictional”). See In re Estate of Neuf, 85 Ill. App. 3d 468, 470 (1980) 

(court denied petition as notice was not required and had a guardian ad litem assess the 

petitioner’s ability to care for the stroke victim/relative). The significance of this fact is that a 

judgment entered by the court in the absence of such notice is not void from its inception. It is, 

however, voidable and errors relative to the judgment can and should be corrected. See 

People v. Mescall, 379 Ill. App. 3d 670, 673 (2008). 

¶ 18 Second, the fact that a failure to give notice is not jurisdictional is not tantamount to a 

finding that notice is not mandatory. To the extent that In re Marriage of Frazier, 205 Ill. App. 

3d 621, 623 (1990), holds otherwise, we believe it was wrongly decided. Again, the plain 

language of the statute clearly demonstrates the mandatory nature of the notice to the Aarons 

and to Justin of a hearing on Lawson’s guardianship petition. Section 11-8 of the Probate Act 

says the petition “must state, if known *** (2) the names and post office addresses of the 

nearest relatives of the minor in the following order *** (ii) the parents, adult brothers and 

sisters, and the short-term guardian, if any; if none, (iii) the nearest adult kindred.” 755 ILCS 

5/11-8 (West 2014). 

¶ 19 Lawson attempted to explain the omission of the Aarons and Justin by claiming that she 

“didn’t think about” them. There is, however, no dispute that they were known to her. We find 

her claim undercut, first, by the fact that, in preparing the petition, competent counsel would 

have sought the specific information required by the statute from the client, triggering her 

recollection of the existence of the child’s relatives, and, second, by the additional fact that 

immediately upon receiving the order, Lawson went, accompanied by the police, to forcibly 

wrest the child from the custody of the very persons she failed to acknowledge or identify in 

the petition. It is without consequence that the trial judge also did not think about them. He was 

not under a statutory obligation to do so. 

¶ 20 Further regarding whether providing notice was mandatory, section 11-10.1 tells us that 

unless the court has found good cause to excuse the notice–which the court indicated it had 

not–”it is the duty of the petitioner to give notice of the time and place of the hearing *** to the 

relatives *** whose names and addresses are stated in the petition.” 755 ILCS 5/11-10.1 (West 

2014). 

¶ 21 It is the petitioner’s statutory obligation to provide, inter alia, the names of the minor’s 

nearest relatives and adult kin in her petition and her statutory duty to give notice of the hearing 

to those persons so named. By failing to identify close relatives and to provide such relatives 

with notice of the hearing on guardianship, Lawson deprived the court of its ability to make a 

full and fair assessment of all pertinent circumstances and reach an informed decision on 

guardianship that was in the best interest of this child. 

¶ 22 Third, we consider the trial court’s conclusions that it had no authority under the statute to 

grant the temporary guardianship requested in Lawson’s petition and that its order awarding 

permanent guardianship could not or should not be vacated. While the trial court is correct that 

the Probate Act makes no provision for an award of an emergency or temporary guardianship, 

its decision to award permanent guardianship in this case without the information explicitly 

required by the statute is incorrect and improvident. 

¶ 23 Section 11-5.4 of the Probate Act does provide for the adoptive parent’s appointment, in 

writing, of a short-term guardian. 755 ILCS 5/11-5.4(a) (West 2014). Section 11-5.3 allows the 
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written appointment to be made “in any writing, including a will.” 755 ILCS 5/11-5.3(a) (West 

2014). The record in this case contains no transcript of the ex parte hearing nor otherwise 

discloses whether the trial court inquired about the possibility of such an appointment, whether 

there was a will, or even if there was verification of the adoptive parent’s death. The petition 

was filed and the hearing held mere days after Cindy’s passing and the record here on appeal 

does not show that anything was provided to the trial court other than the petition itself.

¶ 24 By its omissions, Lawson’s petition created the false specter of a 10-year-old girl, 

orphaned, homeless, fending for herself “without any person who can provide for the child’s 

care including medical care.” This was not a situation where the petitioner provided false 

information under oath, where the court could be justified in accepting it at face value; Lawson 

provided no responses to critical questions. The court should have stricken her petition and 

required her to refile one actually in compliance with the requirements of the statute. Maybe 

then she would have also recalled and listed in her petition the relatives she “didn’t think of” in 

the original petition. In the interim, appointment of a guardian ad litem by the court would have 

ensured that proper care was being provided to the child, pending an informed guardianship 

determination. 

¶ 25 We find the trial court (1) erred in awarding Lawson guardianship on the basis of her 

deficient petition and (2) abused its discretion by (a) ignoring the material facts of which it had 

newly been made aware and which had been omitted from Jamie’s petition; (b) denying the 

Aarons’ petition to vacate its order; and (c) failing to conduct an evidentiary hearing to 

determine whose guardianship was in the best interest of the minor. The order is vacated and 

the matter remanded for the court to reconsider guardianship in light of all of the known facts 

and with the opportunity for involvement of all of the parties designated by the statute. Having 

so determined, we need not reach the Aarons’ other issues here on appeal. 

¶ 26 CONCLUSION 

¶ 27 The judgment of the circuit court of Tazewell County is vacated and the matter remanded 

for proceedings in accord with this opinion. 

¶ 28 Vacated and remanded.