In re Estate of K.E.J.

• Decision Date: 18 April 2008
• Docket Number: No. 1-07-0618.,No. 1-06-3077.,No. 1-06-2263.,1-06-2263.,1-06-3077.,1-07-0618.
• Citation: 887 N.E.2d 704
• Parties: In re ESTATE OF K.E.J., a Disabled Person (V.H., Petitioner-Appellant, v. K.E.J., Respondent-Appellee).
• Court: United States Appellate Court of Illinois

887 N.E.2d 704

In re ESTATE OF K.E.J., a Disabled Person (V.H., Petitioner-Appellant, v. K.E.J., Respondent-Appellee).

No. 1-06-2263.

No. 1-06-3077.

No. 1-07-0618.

Appellate Court of Illinois, First District, Sixth Division.

April 18, 2008.

Rehearing Denied May 29, 2008.

Lester L. Barclay and Crystal L. Roberts, Barclay, Dixon & Smith, P.C., Chicago, IL, for Appellant.

John W. Whitcomb, Cheryl R. Jansen, Byron Mason, Mariangela Monteiro, and Laura J. Miller, Equip for Equality, Chicago, IL, for Appellees.

Justice JOSEPH GORDON delivered the opinion of the court:

Guardian V.H. petitioned the court below to allow involuntary sterilization of her ward K.E.J., a 29-year-old mentally disabled woman, by means of a tubal ligation.¹ The court denied the petition, ruling that V.H. had not sufficiently demonstrated that a tubal ligation was in K.E.J.'s best interests.

The three key issues raised in this appeal are as follows: (1) whether the trial court erred in denying V.H.'s petition to have K.E.J. undergo tubal ligation; (2) whether it was proper for the trial court to award V.H. attorney fees for the trial proceedings out of K.E.J.'s estate, and whether we have jurisdiction to consider this issue; and (3) whether it was proper for the trial court to deny attorney fees for the appellate proceedings. For the reasons that follow, we affirm on the first issue, affirm the denial of appellate fees, and remand on the issue of trial fees.

I. BACKGROUND

On May 28, 1986, when K.E.J. was eight years old, she sustained severe head trauma in a car accident. The ensuing personal injury lawsuit was settled, and K.E.J. received $750,000 in cash, as well as a structured settlement annuity which had a guaranteed payout of $4,485,405.88 and which was expected to pay as much as $14,418,036.24 over her lifetime.

Due to the brain damage K.E.J. sustained in the accident, she has since been adjudicated to be a disabled person. V.H., her maternal aunt, was appointed as the guardian of K.E.J.'s person, in a decision which we subsequently affirmed. K.E.J. currently resides with V.H.

On January 9, 2003, V.H. petitioned the court to authorize a tubal ligation for K.E.J., who was then 24 years old. She alleged that K.E.J. was sexually active despite V.H.'s efforts to deter her, but that K.E.J. was unable to comprehend the possibility of pregnancy or handle the responsibility that it would bring. She further stated that K.E.J. was currently on Depo Provera injections for contraception, but that these injections caused weight gain, elevated blood pressure, and other negative side effects. In support of her petition, she attached statements from K.E.J.'s doctors and counselors stating that a tubal ligation was the optimal means of preventing K.E.J. from becoming pregnant under the circumstances.

Probate lawyer Mary J. Raleigh has been K.E.J.'s guardian ad litem since 1996, and in the time period leading up to the hearing, she met with K.E.J. on multiple occasions to keep the court appraised of K.E.J.'s status. In her report dated February 4, 2003, Raleigh stated that K.E.J. was involved with a man named David Hence whom she called her fiancee and wished to marry. Subsequently, on February 14, 2005, Raleigh met with K.E.J. to discuss the pending petition for tubal ligation. According to Raleigh, K.E.J. told her that she wished to have a baby and that she understood the contraceptive purpose of tubal ligation as well as its permanence; as a result, Raleigh said, "There is no doubt in my mind that [K.E.J.] does not want the tubal ligation procedure." K.E.J. said that she had previously agreed to the procedure because she was with V.H. and knew that V.H. wanted the procedure done. K.E.J. was then on the Ortho Evra contraceptive patch, about which she claimed to have no problems; however, Raleigh expressed concern that due to her obesity (K.E.J. weighed over 200 pounds at the time), the patch might not be fully effective as a means of contraception.

Before the trial, V.H.'s counsel filed a petition requesting that attorney fees be paid out of K.E.J.'s estate, both for past services rendered and prospective fees to be incurred. On May 11, 2005, K.E.J.'s counsel filed an objection to any such award of fees, arguing that no fees should be granted for anything relating to the petition for tubal ligation because K.E.J. was unwilling to undergo the procedure and thus it was not in her best interest.

That same day, the court held a hearing on V.H.'s fee petition. A representative of South Suburban Bank & Trust, the guardian of the estate, testified that as of that date, the value of the estate had been reduced to $225,000 in cash and investments plus a house worth $100,000, as well as approximately $60,000 a year in annuity payments and further payments of $50,000 every five years. Raleigh, the guardian ad litem, strongly opposed V.H.'s fee petition: "This is a very small estate for a very young person," she said, "and if we are all granted our customary hourly rate, this small estate will be even smaller." She thus argued that it was in K.E.J.'s best interest that the fee award be reduced. After hearing arguments from both sides, the court chose to grant V.H.'s fee petitions, awarding $21,000 in back fees and $3,000 in prospective fees. It stated that as this was a medical matter, V.H. "had a right to bring it to court," and that it would be unfair to essentially force her lawyers into working pro bono by denying fees. K.E.J.'s counsel filed a motion to reconsider the fee award on June 3, 2005, but that motion was denied.

The court conducted a bench trial during June and July of 2005. Because the transcript is disorganized and nonchronological, the compilation of a full chronological sequenced account of the trial has been difficult.

V.H.'s first witness was K.E.J. K.E.J. said that she knew that she was in court because V.H. wanted her to get a tubal ligation, and that she understood that the procedure worked by tying the Fallopian tubes so that no eggs could pass through. However, she said that she did not want a tubal ligation. Instead, she wanted to have two children when she was married to a husband who would support her and help her take care of them. "I want to have children," she said, "because they are — I will love taking care of them, I will love, you know, to see how they grow and stuff, you know, just — just all the things that, you know, any person would want to have a child." Furthermore, she said that she feared having to go under general anesthesia if she were to undergo tubal ligation.

K.E.J. also said that she had sex with her previous boyfriend, Hence, but that he did not always wear a condom despite her urging him that "you have got to, cause otherwise you can get me pregnant." Although V.H. has disapproved of her sexual activities in the past, K.E.J. told the court that "I guess I need a little freedom." She said that she was currently on the patch for contraception. According to her, the patch had fallen off in the past due to her being a wild sleeper; when that happened, she told V.H., who put a new one on her.

V.H. thereafter testified in support of her petition. Regarding K.E.J.'s relationship history, V.H. said that in 1999, K.E.J. believed (incorrectly) that she had been impregnated by a man named Efrom and that they were going to get married and have 10 children — despite Efrom's statements to V.H. that he "didn't know anything about it" and that they had no relations. Subsequently K.E.J. became involved with Hence, a paranoid schizophrenic 20 years her senior. She wanted to be married to him, over V.H.'s objections, and told people that they were engaged. However, the two of them broke up; K.E.J. has since then been through a string of other boyfriends and continues to be sexually active.

V.H. initially had K.E.J. placed on Depo Provera contraceptive injections. However, once this treatment started, K.E.J. gained weight from 134 pounds to 184 pounds, and she also experienced hair loss. Over a year ago, V.H. began taking K.E.J. to see Dr. Anjum Hameeduddin, who was referred to her as a gynecologist. Dr. Hameeduddin took K.E.J. off Depo Provera and started her on the Ortho Evra contraception patch. The patch is placed on K.E.J.'s back every three weeks, then remains off a week; V.H. said that there had been no problems with the patch falling off, contrary to K.E.J.'s testimony, and there were no negative side effects.

V.H. nevertheless said that she believed that a tubal ligation was in K.E.J.'s best interests because it would be permanent and effective, it would be healthier than taking contraceptive medication (since K.E.J. was already on a variety of other medications due to her condition), and if K.E.J. were to become pregnant, she could not rely on any family members for help and support except for V.H. On cross by K.E.J.'s counsel, she admitted that in her deposition, another reason she gave for supporting a tubal ligation was that it would be "easy maintenance."

V.H. also called various doctors and professionals to testify to K.E.J.'s condition. The first of these was Eric Larson, a clinical neuropsychologist, which is a specialty that studies the effects of brain damage. Based on an examination of K.E.J. in September 2004, he said that K.E.J. was unable to make decisions about personal and financial matters, including whether to have a tubal ligation, and that her cognitive condition was unlikely to improve. He also stated that if she were to become pregnant, she would have to discontinue her psychiatric medicines, which might cause her to endanger herself and her family. However, on cross, he admitted that he was not a physician and that a physician would be in a better position to determine if such medicines would have to be discontinued.

V.H. also called Dr. Hameeduddin to testify. Dr. Hameeduddin said that she was a board-certified family physician whose practice included gynecological...