Appellate Law

Temporary Removal Of Guardian Not Reviewable

By Steven R. Merican

Glen Dresher?s son, 35 years old, was developmentally disabled and autistic. In 2001, Dresher was convicted of attempted murder when he struck his wife with his car several times. In 2006, Roseanne Dresher moved to have Glen removed as guardian of their son?s estate. That pro se motion was denied, but the court sua sponte temporarily removed Glen as guardian.

Glen appealed on the basis that the Probate Act did not give the court authority to order a temporary removal. The son?s Guardian Ad Litem moved to dismiss the appeal. The GAL argued that the order that temporarily removed guardianship rights was not a final order, and therefore Glen could not invoke the jurisdiction of the appellate court.

The First District Illinois Appellate Court agreed that it did not have jurisdiction. ?? [T]he orders Glen appeals from were not final orders. The first October 16, 2006, order explicitly stated that, upon the court's own motion, Glen was ?temporarily removed? from his guardianship position. The second order similarly stated that the authority of Glen as co-guardian was suspended pending a hearing on the citation. Thus, there is no question that the trial court's orders did not 'finally determine, fix and dispose of the parties' rights'?

Glen also tried to invoke jurisdiction through Illinois Supreme Court Rule 304, which permits appeal of an otherwise nonfinal order when the trial court rules there is "no just cause or reason to delay enforcement or appeal."

In this case, the trial court did make a Rule 304 finding. But the appellate court rejected the trial court?s finding, stating, ?? [T]he addition of that language did not alter the fact that the court's orders were not final as to any claim or party and were, thus, not subject to Rule 304(a). Such a finding by a trial court is not effective to transform a disposition that is not final in its own right into a final judgment.?

Glen was hardly a sympathetic appellant, but what if was right about the trial court not having authority to temporarily remove guardianship rights? This appellate opinion in effect says the trial court?s action cannot be contested on appeal.

Read the whole opinion, In re Guardianship of J.D., No. 1-06-3069 (9/28/07), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 03, 2008 (boomark / email).