Legal Developments

Appellate Unit

First District Appellate Court

The following are summaries of recent decisions from the First District Appellate Court in cases where the Public Guardian represented the child(ren) or ward in the trial court and on appeal, or where the Public Guardian filed a friend of the court brief. At any given time, the Public Guardian has multiple appeals pending from all three divisions.

In re Estate of Marshall Davies, 2014 IL App (1st) 133551.

Marshall Davies is a 95-year-old man with dementia. In 2007, Mr. Davies was hospitalized and met the defendant, a certified nursing assistant (the CNA). After he was discharged from the hospital, the CNA and her relatives began working for Mr. Davies. The CNA soon obtained a power of attorney over Mr. Davies’ property. A social service agency received two reports of suspected financial exploitation of Mr. Davies. In 2011, the Public Guardian was appointed as Mr. Davies’ guardian, and soon after, he filed a petition to recover Mr. Davies’ assets. The Public Guardian alleged that the CNA, her relatives, and an attorney misappropriated over $500,000 of Mr. Davies’ assets. In 2013, a Cook County grand jury indicted the CNA, her husband and her daughter (the defendants) for theft and financial exploitation of Mr. Davies. The defendants asked the trial court to stay the proceedings to recover Mr. Davies’ assets, claiming that going forward would violate their Fifth Amendment rights against self-incrimination. The trial court stayed the proceedings and the Public Guardian appealed.

The appellate court reversed, noting that the defendants did not assert their Fifth Amendment rights during depositions where they admitted to withdrawing hundreds of thousands of dollars in “loans” from Mr. Davies’ accounts. Noting Mr. Davies’ age, the appellate court found that he had the right to recover the misappropriated assets during his lifetime. Moreover, the public interest favored “prompt resolution of civil proceedings, especially promptly recovering misappropriated funds by people in fiduciary relationship who manipulate the elderly.” The hearing to recover Mr. Davies’ assets is continuing in the trial court.

For full text of opinion, click here

In re J.B., 2014 IL App (1st) 140773.

The case came into court due to allegations of physical abuse to almost nine-year-old Jaylan H., and neglect and abuse due to a substantial risk of physical injury to Jaylan’s 2 1/2-year-old brother Julian B. The State amended the petition to add torture, and amended the petition to seek termination of parental rights at disposition. There was a no contact order between the mother and the boys. At trial, the State admitted the mother’s written confession to the police. The mother’s confession noted that Julian told her that Jaylan almost pulled the T.V. down on him. As punishment, she made Jaylan do leg squats, but he stopped and she began to whip him. She threw Jaylan to the floor in the bathroom where he hit his head on the side of the tub. The mother admitted that she sat on Jaylan’s leg. She went to bed and lay down, and eventually called 911. The mother told the paramedics that Jaylan injured his leg while doing squats. Jaylan told the DCFS investigator that his mother choked him and punched him, and stood on top of his leg. Another family member pulled the mother off Jaylan. Jaylan told DCFS that his mother hit him all the time. The mother admitted to DCFS that she had been hitting Jaylan for years, but never like this. She also told DCFS that she was sorry for hurting Jaylan. The emergency room doctor testified that Jaylan had bruises on his face and forehead and his thigh was swollen and deformed and bent. Jaylan’s right femur had a recent fracture, and another older fracture. Jaylan also had a fracture to his pelvis. The trial court found, by clear and convincing evidence, that Jaylan was tortured based on the severe injuries and the older injury, and that Julian was subject to neglect and abuse. The court also found the mother unfit under numerous grounds of the Adoption Act. At the dispositional hearing, the worker testified that the mother was not able to engage in services in jail. The boys were placed with their maternal grandmother and were doing well. The grandmother wanted to adopt the boys. The court made dispositional findings, and also found that it was in the boys’ best interest to terminate the mother’s parental rights.

On appeal the mother claimed her due process rights were violated because she was not allowed to visit or participate in reunification services due to her incarceration. The appellate court rejected this argument, noting that the mother was found unfit for her actions prior to the case coming into court, and not for failing to visit the boys. The mother also argued that she was prevented from engaging in services and showing progress. The appellate court noted that three of the unfitness grounds alleged did not provide time frames for a parent to show fitness. With regard to the final ground of unfitness, failure to show interest, concern or responsibility, the appellate court affirmed, noting that the time period examined was not after the boys were taken into custody. The appellate court affirmed under all grounds of unfitness alleged, including extreme and repeated cruelty and depravity.

For full text of opinion, click here

In re Ashli T., 2014 IL App (1st) 132504.

DCFS took protective custody of Ashli in May 2013, about six weeks after she was born. Ashli’s mother had other children in DCFS custody, had not completed services, and in 2009 had been convicted for assault of her oldest daughter. At the temporary custody hearing, the father requested a paternity test. The trial court placed Ashli in DCFS temporary custody. In July 2013, the trial court found made a paternity finding, and the father filed a motion to vacate the temporary custody order and place Ashli in his custody. All the parties agreed that the father was a suitable custodian for Ashli.

The trial court entered an amended temporary custody order stating that probable cause remained, there was no urgent and immediate necessity to remove Ashli, and if Ashli were returned to her mother’s care, the court would find urgent and immediate necessity. The amended temporary custody order gave “legal and physical custody” of Ashli to her father. The court dismissed the adjudication petition and closed the case.

Ashli and the State appealed, arguing that the court could not grant custody of Ashli to her father without first conducting adjudicatory and dispositional hearings, and the trial court erred because it incorrectly perceived its new amended temporary custody order as an order giving permanent custody to the father. The appellate court reversed and remanded. The Court ruled that the trial court did not and could not confer permanent custody of Ashli to her father because once the case was closed the order would have no legal effect. The trial court’s order was entered pursuant to standards for temporary custody, which further reinforced the temporary nature of the order.

The Court held that even if the order could be characterized as a permanent custody order, it could not enter such an order at the temporary custody stage of proceedings – a permanent custody order can only be ordered after proceeding to adjudication and disposition. The Court reasoned that if a trial court could enter a permanent custody award at a temporary custody hearing, it would render superfluous the sections of the Juvenile Court Act relating to adjudication and disposition. The case was remanded back to the trial court for further proceedings.

For full text of opinion, click here

In re Charles W., 2014 IL App (1st) 131281.

Charles and his brother Darious were previously adopted by their paternal grandfather, who was 79 at the time the case came to DCFS’ attention. Darious reported that his paternal aunt was caring for him and was physically abusive. The father (their paternal grandfather) was hospitalized and diagnosed with Alzheimer’s, dementia, cancer and other illnesses. The DCFS worker visited the father in the hospital and was told by a doctor that the father would never be able to parent. She observed that the father was nonresponsive. Charles told DCP that the paternal aunt was also abusive to him, and treated Charles and Darious “like slaves.” The trial court found both boys dependent due to their father’s mental and physical disabilities under the Juvenile Court Act. At the dispositional hearing, the father was living with and being cared for by the paternal aunt. In separate hearings, both Charles and Darious were made wards of the court. On appeal, the father claimed that he received ineffective assistance of counsel because his trial attorney did not object to hearsay statements during the trial. With regard to the doctor’s out of court statement that the father could not parent, the appellate court found that the DCFS worker’s personal observations of the father at the hospital demonstrated his debilitated mental and physical state. Also the doctor’s statement was not hearsay because it was admitted to show the course of conduct. In addition, Charles’ statements to the DCFS worker were not hearsay and the failure to object to the statements did not show ineffective assistance of counsel. The appellate court also affirmed the dependency findings based on the father’s diagnoses of dementia, Alzheimer’s and other medical conditions listed in the medical records.

For full text of opinion, click here

In re Rayshawn H., 2014 IL App (1st) 132178.

Rayshawn was born in 1996 and adopted as a baby. When he was ready for discharge from a psychiatric hospital in March 2011, his mother refused to pick him up. The State filed a petition alleging neglect and abuse due to substantial risk of injury. The mother filed a petition alleging no fault dependency. Prior to trial, the State filed a motion to exclude testimony and evidence from Rayshawn’s therapists relating to his behavior after the State filed its petition. The mother argued that the evidence was necessary to show that he should have been placed in a residential facility after his March 2011 hospital discharge. The trial court granted the motion to exclude, finding the post-petition evidence was not relevant to show Rayshawn’s behavior prior to DCFS involvement. At trial, hospital records showed that Rayshawn was diagnosed with mental illness and developmental disabilities. DCFS testified that the mother stated she locked Rayshawn out of the home due to his bad behavior, but she said he was never physically aggressive with her. Then for several days, DCFS could not reach the mother by phone or at her home. When DCFS finally spoke to the mother again, she stated she would not allow Rayshawn to return home and she was unable to find a family member to care for him. The trial court found that Rayshawn was neglected and he was not dependent due to no fault of his mother.

On appeal, the mother argued that the court should have found no fault dependency and should not have granted the motion to exclude evidence. In affirming the findings of neglect, the court noted that Rayshawn’s mother made almost no efforts to find him an alternative placement. Moreover, Rayshawn was never physically aggressive with his mother. She was not willing to participate in services and she refused to allow Rayshawn to return home. The court noted that although the mother had in the past tended to Rayshawn’s physical and mental needs, she did not do so in March 2011 when he was discharged from the hospital. Simply because the mother felt that Rayshawn needed residential treatment did not mean that DCFS could ignore the recommendation of the hospital that Rayshawn return home.

The court then went on to affirm the trial court’s order granting the motion to exclude evidence. With regard to the testimony of staff at Rayshawn’s current placement, the court noted that those “individuals became acquainted with him after the State had filed the April 14, 2011 petition . . . .” The appellate court found that the trial court did not abuse its discretion because the post-petition evidence was irrelevant to the allegations in the petition. Even if the post-petition evidence corroborated the mother’s opinion that Rayshawn needed residential treatment, it did not absolve her of her failure to provide alternative care arrangements, to cooperate with DCFS, and to show any interest in participating in DCFS services in March 2011.

For full text of opinion, click here

In re Tatiana C., 2013 IL App (1st) 131573.

Here, the mother had a history of psychiatric issues and hospitalizations and failed to ensure that nine-year-old Tatiana attended school. The mother admitted to DCFS that Tatiana had missed over 100 plus days of school over the past year. Records showed that Tatiana missed 56.5 days of school in 2010, and 79 days of school in 2011. Her grades fell from A’s to C’s in 2011. The trial court found neglect due to lack of care based on Tatiana missing school because of her mother’s physical and mental health issues. In affirming the finding, the appellate court determined that the mother had a lengthy history of substance abuse and mental illness. She was unable to properly care for Tatiana or take her to school, and as “a result, Tatiana missed an exorbitant number of school days and her grades have suffered.” Therefore, Tatiana did not receive proper “education as required by law” and she was neglected under the Juvenile Court Act. This case is important because it clarifies that failure to ensure a proper education for a child constitutes neglect.

For full text of opinion, click here

In re Aaron L., 2013 IL App (1st) 122808.

Aaron was 19 years old and living in a transitional living program. Although Aaron had graduated from high school, he did not have a job and needed services from DCFS. At a hearing, Aaron’s case worker testified that he was in desperate need of services. Aaron asked the judge to keep his case open, but the judge closed his case. On appeal, the appellate court reversed the case closure, finding that the trial court had not complied with Section 2-31 of the Juvenile Court Act, and in addition, it was not in Aaron’s best interest to close his case. As the statute makes clear, Aaron’s lack of participation in services did not show that he could live independently, and the evidence showed that he could not do so. This case is important because it ensures our clients’ access to services until they are able to live independently.

For full text of opinion, click here

In re R.G., 2012 IL App (1st) 120193.

R.G.’s brother Ameri was diagnosed with two leg fractures, several rib fractures and a liver injury. At trial, two medical experts testified. The State’s expert stated that Ameri was the victim of physical abuse, and the parents’ expert stated that Ameri’s injuries were not from abuse. The trial court found the State’s expert more careful and persuasive, and found the parents’ expert “careless” because he missed a fracture and had errors in his report. On appeal, the parents argued that their expert had more experience and the trial court should have listened to him. The appellate court found that the trial court’s evaluation of the experts was correct and that Ameri was the victim of physical abuse. This case is important because it shows that an expert witness’s experience alone is not conclusive, especially if the less experienced expert witness is more thorough and careful.

For full text of opinion, click here

Illinois Supreme Court

The following are summaries of recent decisions from the Illinois Supreme Court in cases where the Public Guardian represented the child(ren) or ward in the trial court and on appeal, or where the Public Guardian filed a friend of the court brief. At any given time, the Public Guardian has multiple appeals pending from all three divisions.

Marriage of Karbin, 2012 IL 112815, cert. denied, 133 S. Ct. 2341 (2013)

In re Marriage of Karbin, 2012 IL 112815, cert. denied, 133 S. Ct. 2341 (2013). The Public Guardian filed a friend of the court brief on behalf of the disabled wife in a case involving a petition for dissolution of marriage. In 1997, the wife was in a car accident and suffered a serious brain injury. Her husband became the guardian of her estate and person. Later, when the husband reported that his Parkinson’s disease prevented him from caring for his wife, guardianship was transferred to the disabled wife’s adult daughter. The wife moved to her daughter’s home in Ohio. Subsequently, the husband filed for dissolution of marriage, and the daughter, as guardian, filed a counter petition for dissolution of marriage. In the dissolution proceedings, the wife’s guardian alleged that the husband tried to conceal his income and bought a home in Illinois with another woman who was listed as his wife. The husband denied that this other woman was his wife, claiming that she was his caretaker. The husband then withdrew his dissolution petition. Based on old case law that held that a guardian cannot file a dissolution of marriage petition for a disabled spouse, the husband asked the court to dismiss the wife’s counter petition. The trial court and the appellate court agreed that the wife’s guardian could not proceed with the dissolution proceeding.

In his friend of the court brief, the Public Guardian argued that the old case law unfairly restricted people with disabilities. The Illinois Supreme Court agreed, and held that a guardian can file a petition for dissolution of marriage on behalf of a ward if the trial court finds that doing so is in the ward’s best interest. The purpose of the Probate Act is to protect the vulnerable members of society. The Supreme Court then sent the case back to the trial court to determine if a dissolution proceeding was in the wife’s best interest. In 2014, the Illinois Legislature amended the Probate Act to codify the holding in this case. The amended statute also allows a guardian to consent to a ward’s marriage.

Legislative Unit

The following are recently passed laws that are of interest to those representing persons with disabilities in Illinois.

Adult Protective Services Act

Public Act 99-0287, Effective January 1, 2016
Amends Section 8 of the Adult Protective Services Act to provide that the Department of Aging shall release records (excluding the identity of the reporter) concerning reports of abuse, neglect, financial exploitation, or self-neglect to: “(1.5) A representative of the public guardian acting in the course of investigating the appropriateness of guardianship for the eligible adult or while pursuing a petition for guardianship of the eligible adult pursuant to the Probate Act of 1975[.]” We thank OPG Attorney, Amy Kessler, for identifying the need for this amendment and going even further to draft the language to address it. This Act will enable OPG to be more effective in protecting persons who might have been abused, neglected and/or exploited.

To read the entire act, click here

Testamentary Capacity for Persons with Disabilities

Public Act 99-0302, Effective January 1, 2016
Amends Sections 4-1 and 11a-18(d-5) of the Probate Act of 1975. Section 4-1 is amended by establishing a rebuttable presumption that a will or codicil is void if it was executed after the testator is adjudicated a person with a disability. The presumption applies to persons under guardianship for whom: (1) a plenary guardian of the estate is appointed; or (2) a limited guardian of the estate is appointed and the court found that person to lack testamentary capacity. The presumption is overcome by clear and convincing evidence that the person with a disability had testamentary capacity at the time the will or codicil was executed. The presumption does not apply to a person with a disability who executes the will or codicil in accordance with (newly enacted) Section 11a-18(d-5) of the Probate Act of 1975. Under Section 11a-18(d-5), a court may authorize a person under guardianship to execute a will or codicil [1] upon a verified petition by the plenary or limited guardian of the estate or the request of the person under guardianship [2] that is accompanied by a current physician’s report that states the person under guardianship possesses testamentary capacity. If the court authorizes the execution of a will or codicil, it shall authorize the guardian to retain independent counsel for the person under guardianship with whom that person may execute the will or codicil. The law only applies to wills or codicils executed after its effective date of January 1, 2016.

To read the entire act, click here

Temporary Guardians

Public Act 99-0070, Effective January 1, 2016
Amends Section 11a-4 of the Probate Act of 1975. The law provides that a temporary guardian shall have the limited powers and duties of a guardian of the person or estate that are specifically enumerated in the court order appointing the temporary guardian.

To read the entire act, click here

Disposition of Remains Act

Public Act 99-0417, Effective January 1, 2016
Amends Section 40 of the Disposition of Remains Act by providing that a person’s written directions regarding the disposition of their remains may include instructions regarding gender identity, including, but not limited to, instructions with respect to appearance, chosen name, and gender pronouns, regardless of whether the person has obtained a court-ordered name change, changed the gender marker on any identification document, or undergone any transition-related medical treatment.

To read the entire act, click here

“Persons with Disabilities”

Public Act 99-0143, Effective July 27, 2015
This act changes various sections in the Illinois Compiled Statutes. P.A. 99-0143 changes all occurrences of “disabled persons” to “persons with disabilities” and all occurrences of “the mentally and developmentally disabled” to “persons with mental and developmental disabilities.” The title of Section 11a of the Probate Act is changed from “Guardians for Disabled Adults” to “Guardians for Adults with Disabilities.” There are also several changes to the guardianship lexicon, e.g., “alleged disabled person” becomes “alleged person with a disability,” and “disabled person” becomes “person with a disability.”

To read the entire act, click here

Litigation Unit

The Litigation Unit brings damages, declaratory and injunctive actions in state and federal court on behalf of the Public Guardian’s clients. The following are summaries of some of the Litigation Unit’s cases.

Harris v. M. Agency, et al.

Jaylen, a 14-year-old boy with severe special needs, suffered a slow and painful death when his two home-healthcare nurses and his mother failed to care for him adequately. The Public Guardian was the plaintiff in a lawsuit against a national healthcare company, the two nurses, and Jaylen’s mother. The parties settled in July 2012.

Lee R. v. A. Agency, et al.

A brother and sister were repeatedly abused by their elderly foster parent and babysitter in a licensed foster home. The Public Guardian sued the agency, the temporary case worker, the national healthcare temp agency, the foster parent, and the babysitter. The Public Guardian settled the case in May 2014 against all of the defendants except the foster parent and babysitter. In November 2014, the Public Guardian obtained a judgment against the foster parent and babysitter.

Harris v. L. Agency, et al.

Two-year-old Angel died at the hands of her mother and her mother’s boyfriend, a convicted murderer. The agency assigned to monitor and protect Angel first tried to hide that fact that the mother had a boyfriend who was a convicted murderer, and then failed to monitor the mother’s home to make sure the boyfriend wasn’t at the home during the mother’s visits with Angel and her siblings. After Angel was killed, the Public Guardian learned that not only was the murderer present for the visits, he had been living with the mother for months. The Public Guardian has filed suit against the agency, Angel’s mother, and the convicted murderer.

Harris v. O. Agency, et al.

Lamariana died at just 8 months old when she drowned after her mentally-ill mother left her and her older sister in the bathtub unsupervised. The assigned social-service agency ignored several red flags that should have led to the girls being removed from their mother’s care. The Public Guardian is the plaintiff in a lawsuit pending against the agency, the case worker, and the mother.

Kayla T.

A group-home worker broke Kayla’s arm in four places during a restraint. The video clearly shows that the worker used improper techniques and excessive force. The Public Guardian is negotiating a pre-litigation settlement for Kayla’s injuries.

Aristotle P., et al. v. McEwen

The Public Guardian acts as class counsel on a consent decree it reached in a federal lawsuit against DCFS on behalf of DCFS wards. The purpose of the lawsuit was to ensure that when sibling groups enter the child-welfare system, they are placed together and, if that is not possible, that they receive at least two, two-hour sibling visits per month. The parties developed several policies to promote joint sibling placement and sibling visitation, including:

  • DCFS created a case assignment protocol that increased the placement of new sibling groups together from 25-30% to the current level of nearly 100%.
  • DCFS instituted financial sanctions against private agencies that fall below a certain level of compliance with the sibling visitation. So far, DCFS has sanctioned more than $100,000 against private agencies. The number of children visiting their siblings regularly has doubled since the sanctions began.
  • DCFS agreed to pay transportation subsidies to foster parents. Now a foster parent can receive up to $150 per month to transport children and supervise sibling visitation and an additional $100 to host an overnight visitation.

The Honorable Charles R. Norgle, Sr. monitors the decree in federal court.