In re Guardianship of Huseman
Case Date: 06/07/2005
Court: 5th District Appellate
Docket No: 5-03-0563 Rel
Notice Decision filed 06/07/05. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same. NO. 5-03-0563 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT
JUSTICE GOLDENHERSH delivered the opinion of the court: Respondent, Sandra Barton, mother of the alleged disabled adult, Bethany TekoaHuseman (Tekoa), appeals from stipulated orders of the circuit court of Perry Countyregarding Tekoa. The orders appealed from were agreed to by respondent and her ex-husband, Leonard Huseman, petitioner. The orders, inter alia, found Tekoa disabled,ordered attorney fees to be paid from Tekoa's social security disability benefits, andmandated joint custody and visitation. On appeal, respondent raises the following issues: (1)whether the trial court erred in ordering attorney fees to be paid from Tekoa's social securitydisability benefits, (2) whether the orders complied with the provisions of the Illinois ProbateAct of 1975 (Act) (755 ILCS 5/1-1 et seq. (West 2000)), and (3) whether the trial court hadjurisdiction to enter the order mandating joint custody. We affirm. Before we address the issues raised by respondent, we note that petitioner filed amotion to dismiss the appeal on the basis of a lack of jurisdiction. In that motion, petitioneressentially argues that because the appeal is based upon the initial order in which Tekoa wasfound to be a disabled adult and guardianship was established and because respondent failedto appeal from that order, this court lacks jurisdiction. We have considered petitioner'sargument but find the first order so intrinsic to the second order that we hereby denypetitioner's motion to dismiss the appeal and consider the appeal on its merits.
Tekoa, the alleged disabled adult, was born on September 27, 1983. Petitionerinitiated the instant litigation on September 13, 2001, by filing a petition for an adjudicationof disability and the appointment of a guardian. The petition requested that a guardian beappointed for the estate of Tekoa due to her diagnosis as a Down's syndrome child. Thepetition alleged that due to that condition and disability, Tekoa is not able to properlymanage her person, estate, or financial affairs. A psychological report from September 1987confirming that Tekoa has Down's syndrome was attached as "Exhibit A." Petitionerrequested that an order be entered directing that Tekoa be properly evaluated by a qualifiedperson or persons and that a report be prepared and filed at least 10 days prior to the hearingin accordance with the provisions found in section 11a-9 of the Act (755 ILCS 5/11a-9 (West2000)). On September 25, 2001, the trial court entered an order appointing attorney J. MarkMaclin to serve as Tekoa's guardian ad litem. Maclin served in that capacity throughout theproceedings below. On October 11, 2001, respondent filed an answer and her own petition in which sheasked the court to adjudge Tekoa a disabled adult and requested the appointment of aguardian for the person and estate of Tekoa. Respondent's petition specifically alleged thatthe appointment of a guardian was necessary because Tekoa "has been diagnosed as aTrisome 21 MMI child and person and because of this condition is not able to properlymanage her personal and financial affairs." On November 28, 2001, petitioner filed apetition for temporary relief in which he alleged that respondent was refusing to allow himvisitation or contact with Tekoa. He sought visitation throughout the pending proceedings. On December 7, 2001, the trial court appointed an attorney to represent Tekoapursuant to her written request. The trial court appointed Donald Bigham as Tekoa'sattorney. Bigham has served as Tekoa's attorney throughout the proceedings. On December 11, 2001, the trial court entered an agreed order. The order appointedDr. Travis, Tekoa's family doctor, to perform the required evaluation and report pursuant tosection 11a-9 of the Act. On April 11, 2002, Dr. Travis filed his report. He opined thatTekoa "is partially incapable of making personal [and] financial decisions." (Emphasis inoriginal.) He concluded that the most appropriate living arrangement for Tekoa would bewith respondent because she has a close relationship not only with respondent but also withother maternal relatives. On July 1, 2002, guardian ad litem Maclin filed his report. He noted that there wasan impasse between Tekoa's parents regarding who should be the guardian, but he alsostated, "All parties do agree that a guardian of the person and a guardian of the estate isnecessary." Maclin concluded that the guardian of the person should be respondent becauseTekoa had lived with respondent her entire life. As for a guardian of the estate, Maclinconcluded that either or both of the parents (as coguardians) would be acceptable so long asrespondent would have the use of Tekoa's social security disability funds for Tekoa's benefit. Maclin noted his investigation showed that in the past respondent had deliberately thwartedpetitioner's visitation. In order to ensure that petitioner receive visitation, Maclin suggestedestablishing a schedule of visitation similar to the joint-custody-of-a-minor arrangement andthat respondent and petitioner "consult with each other regarding any additional schooling,healthcare needs, and other decisions fundamentally affecting Tekoa." On July 12, 2002, the trial court conducted a final hearing on the petition for anadjudication of disability. Tekoa was present with her attorney, Donald Bigham. Theguardian ad litem was present. Petitioner and respondent were both present, along with theirrespective attorneys. All the parties and counsel participated in settlement discussions. Afterthe hearing, the trial judge entered an order consistent with an agreement reached by theparties at the hearing. On July 16, 2002, the trial judge entered a 12-page order appointing a guardian of theperson and estate of Tekoa. In the order, the trial judge noted he had interviewed Tekoa inchambers and consulted with her attorneys, after which all the parties, including the allegeddisabled adult, "reached a stipulated settlement and agreement with regard to all issues in thiscause." The order found Tekoa to be disabled and appointed respondent as the guardian ofher person and petitioner as the guardian of her estate. It ordered petitioner to pay Tekoa's$500 social security benefits to respondent for the care and benefit of Tekoa, ordered Tekoato reside with both petitioner and respondent on a rotating monthly basis with equal timegiven to both parents, set up a schedule for visitation, and ordered petitioner to maintainmedical coverage for Tekoa, with petitioner and respondent to be equally responsible for anyadditional health benefits not covered by insurance. It further ordered the attorney fees ofDonald Bigham and J. Mark Maclin to be paid from funds appropriated by the state orcounty for that purpose, but it noted that if those funds were not available, another hearingwould be scheduled to determine how the fees should be paid. On September 26, 2002, respondent, by and through a new attorney, filed a petitionto terminate or modify the order appointing a guardian for the person and estate of Tekoapreviously entered on July 16, 2002. The grounds set forth included that there wasinsufficient evidence to support a finding that Tekoa is disabled and that the court lackedauthority to grant petitioner a change in custody and visitation. Petitioner moved to dismissthe petition to terminate on October 15, 2002, and asked that respondent be assessed attorneyfees. On December 27, 2002, the trial court found respondent in contempt for failing topermit visitation as outlined in the September 6, 2002, order. Respondent was sentenced to60 days in jail and ordered to pay $1,770 in attorney fees. Respondent moved to stay thecontempt order and filed a notice of appeal. On February 11, 2003, the trial courttemporarily suspended the order of incarceration conditioned upon compliance with the orderrequiring visitation. A hearing on respondent's motion to terminate or modify was held on May 22, 2003. During the hearing, respondent filed a voluntary motion to dismiss the petition to terminateor modify, which the trial court granted. The parties reached an agreement and stipulationduring the hearing on May 22, 2003. As a part of the agreement, respondent's appeal in thecontempt matter was dismissed by this court on June 25, 2003, on respondent's motion. OnJuly 22, 2003, an order was entered that recites the additional agreement and stipulationamong the parties reached during the May 22, 2003, hearing. The agreement includedremoving the reports of several medical professionals from the record. The parties alsoagreed to "participate in mediation in an attempt and effort to resolve any and all differencesthat exist between them" regarding the best interests of Tekoa. All the parties stipulated thatbecause no state or county funds were available to pay attorney fees to Tekoa's attorney orher guardian ad litem, those fees would be paid at a rate of $200 per month until paid in fullfrom the social security benefits received by petitioner as the guardian of the estate of Tekoa,with all the remaining monthly benefits to be paid to respondent for Tekoa's care. Respondent now appeals from the order of July 22, 2003.
The first issue we are asked to address is whether the trial court erred in orderingattorney fees to be paid from Tekoa's social security disability benefits. Respondent, relyingon section 407(a) of the Social Security Act (42 U.S.C. |