McHenry v. McHenry (In re Estate of McHenry)

• Citation: 60 N.E.3d 930,406 Ill.Dec. 379
• Decision Date: 26 August 2016
• Docket Number: No. 3–14–0913.,3–14–0913.
• Parties: In re ESTATE OF Chase McHENRY, an Alleged Disabled Adult, Respondent (Laurie McHenry, Petitioner–Appellee, v. Daniel Shayne McHenry, Cross–Petitioner and Appellant).
• Court: United States Appellate Court of Illinois

60 N.E.3d 930

406 Ill.Dec. 379

In re ESTATE OF Chase McHENRY, an Alleged Disabled Adult, Respondent (Laurie McHenry, Petitioner–Appellee, v. Daniel Shayne McHenry, Cross–Petitioner and Appellant).

No. 3–14–0913.

Appellate Court of Illinois, Third District.

Aug. 26, 2016.

Christopher P. Ryan, of Peoria, for appellant.

Susan Dawson–Tibbits (argued), of Johnson, Bunce & Noble, P.C., of Peoria, for appellee.

OPINION

Justice CARTER

delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Laurie McHenry (Mother), filed a petition under the Probate Act of 1975 (755 ILCS 5/1–1 et seq.

(West 2012)) to be named the plenary guardian of the person and estate of her disabled adult son, Chase McHenry. Chase's father, cross-petitioner Daniel McHenry (Father), filed a competing petition to be named Chase's guardian. After a bench trial, the trial court granted Mother's petition and named Mother Chase's sole plenary guardian. Father appeals, arguing that: (1) the trial court erred in naming Mother as Chase's guardian, rather than Father; (2) the trial court's ruling should be reversed because of an undisclosed judicial bias; and (3) the trial court erred in initially setting support to be paid by Father at 20% of Father's income. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 Mother and Father were married in 1990 and lived in Florida. They had two children, Kaitlin, born in 1994, and Chase, born in 1995. Mother and Father separated in 1997, and Mother and the two children moved to Peoria, Illinois, where Mother's family was located. Father remained in Florida. Shortly after Mother moved to Illinois, it was determined that Chase had autism

. Mother and Father's divorce was finalized in 2001, and the parties entered into a joint parenting agreement, which gave Mother custody of the children and Father visitation.

¶ 4 In June 2013, as Chase was approaching the start of his senior year of high school, Mother filed the instant petition to be appointed the plenary guardian of Chase's person and estate. The petition alleged that Chase was a disabled person because of his autism

and that he lacked sufficient understanding or capacity to make or communicate responsible decisions regarding the care of his person and the management of his estate and financial affairs. A guardian ad litem (GAL) was appointed to represent Chase's interests during the proceedings.

¶ 5 In October 2013, Father filed a cross-petition for guardianship.¹ In the cross-petition, Father agreed that Chase was in need of a guardian and that Mother was qualified to serve in that capacity. Father asked, however, in Chase's best interest, to be appointed co-guardian so that he could participate in decisions as to Chase's education, residential placement, and financial assets.

¶ 6 In November 2013, an agreed order was entered appointing Mother and Father as temporary co-guardians of Chase. The order also gave Mother and Father time to obtain neuropsychological evaluations of Chase and to investigate the post-high school options that were available to Chase in both Florida and Illinois. In addition, Chase was appointed his own attorney because the GAL had taken a position that was contrary to Chase's wishes.

¶ 7 At various points in this case, the parties filed their financial affidavits. Father's financial affidavit indicated that he was 53 years old; that he owned his owned consulting business; that his gross income was approximately $150,000 a year ($12,500 a month); that his monthly expenses were approximately $16,527; that his current spouse contributed a minimum of $2,000 a month toward expenses; that he had been paying $1,700 a month in child support until May 2014 when child support allegedly ended; that after May 2014, he had been voluntarily paying $500 per month in temporary child support; and that he had approximately $500,550 in total assets and $76,400 in total debts. Mother's financial affidavit, which was later amended, indicated that she was 53 years old; that she worked as a certified occupational therapy assistant; that her gross income was approximately $26,124 a year ($2,177 a month); that she had been receiving $500 a month from Father in child support; that her monthly expenses were approximately $5,031; and that she had $21,500 in total assets and $13,785 in total debts, a large portion of which were legal fees.

¶ 8 A bench trial was held on the guardianship petitions in September and October 2014. Going into the trial, the parties were in agreement that Chase was a disabled adult, that he was in need of a guardian, and that appointing Mother and Father as Chase's co-guardians was not a workable solution. The trial court, therefore, was called upon to determine, in Chase's best interest, which one of the two parents should serve as Chase's guardian—Mother or Father. That decision would ultimately also determine, in practical effect, whether Chase was going to remain in Illinois or was going to be required to move to Florida.

¶ 9 The evidence presented at the trial, although not necessarily in the order presented, can be summarized as follows. Mother testified that she lived in Peoria and had worked for the past seven years in the local public schools as a certified occupational therapy assistant. When Mother and Father separated in 1997, Chase was only about two years old and had not yet been diagnosed with autism

. About midway through the year, however, Mother started to notice that Chase was not reaching the developmental milestones and that he had some potential impairment. Mother discussed the matter with the children's pediatrician, Dr. Thomas Halperin, and was referred to a developmental pediatrician, Dr. Andrew Morgan, for Chase to be evaluated. Mother informed Father of her concerns, and Father wanted Chase to be evaluated as well. There was a three month wait time for the appointment with Dr. Morgan. During that time period, Mother enrolled Chase in an early intervention preschool through Easter Seals and also started Chase in speech and occupational therapy.

¶ 10 Mother and Father attended Chase's evaluation together. At the conclusion of the evaluation, Dr. Morgan diagnosed Chase as having pervasive development disorder not otherwise specified (an autism

spectrum disorder) and possible mental retardation. Chase had no communication skills at the time, had no eye contact or language, and would throw a temper tantrum because he had no way to express what he wanted or to understand what was going on. After the diagnosis, Mother began to research Chase's condition by reading books and other materials; attending seminars; attending Chase's speech and occupational therapy sessions; and by talking to other parents, speech pathologists, occupational therapists, and anyone else who would talk to her about Chase's condition. According to Mother, since the day that Chase was diagnosed, she made it her mission to educate herself about Chase's condition and about what could be done so that she could help Chase grow and be as independent as possible.

¶ 11 Mother later arranged for Chase to be evaluated in Maryland by Dr. Stanley Greenspan, a world-renown specialist on developmental disorders. After the evaluation, Dr. Greenspan also concluded that Chase was on the autism

spectrum. Dr. Greenspan recommended that Mother be very hands on in interacting with Chase and in getting Chase to make eye contact.

¶ 12 Early on, through her research, Mother came to believe that Chase was having seizures. Mother addressed that concern with Dr. Morgan and was told that seizures were very rare in children with autism

. Mother persisted in her efforts and, on her own, found a pediatric neurologist in Illinois, Dr. Michael Chez, who specialized in autistic pervasive developmental disorders and epilepsy. After conducting tests, Dr. Chez confirmed that Chase was, in fact, having seizures. Father did not attend the initial testing with Dr. Chez and, as far as Mother knew, never contacted Dr. Chez about his findings. Father did, however, attend one of Chase's later monitoring visits with Dr. Chez. Pursuant to Dr. Chez's recommendation, Chase was started on a daily seizure medication. The results were dramatic. Within the first week, Chase started making eye contact, getting language, and sleeping through the night. Eventually, the seizures went away completely, and Chase was weaned off of the seizure medication.

¶ 13 When Chase turned three, he transitioned from the Easter Seals early intervention preschool program to the local public school's special education early childhood program. Chase was in the early childhood program for three years until he was six years old. While Chase was in the early childhood program, Mother advocated for Chase to have a one-on-one aide, but the school district did not have such a person. Chase's teacher filled out a form of all of the duties that an aide would perform for Chase, and Mother called Easter Seals to find out if they had a student or anyone else that really stood out as a volunteer. Easter Seals recommended a person, and Mother and Chase's teacher interviewed that person together. That person got hired by the school district as Chase's one-on-one aide and was paid for by the district.

¶ 14 Mother had started an Applied Behavior Analysis (ABA) program by that point, and she asked the student if she was interested in working at home with Chase. The student stated that she was. Mother trained that student, and then that student recruited other students. The students would fill out an application, and Mother would hire those students to work in her home with Chase. The students were paid for their work through the Department of Human Services (DHS) because Chase qualified for funding since his skill level was so low due to his disability. Mother felt that additional home training was important for Chase because Chase had no skills and, for a long time, had no language. He was very behind in academics, had major behavioral issues,...