J.H. v. Ada S. Mckinley Community Services

• Decision Date: 29 December 2006
• Docket Number: No. 1-05-2132.,1-05-2132.
• Citation: 308 Ill.Dec. 255,861 N.E.2d 320
• Parties: J.H. and J.D., Plaintiffs-Appellants, v. ADA S. McKINLEY COMMUNITY SERVICES, INC., Ralph Burlingham, Kenneth Honderich, Margaret Ortinau, Claudine Robinson, Gale Spencer, Victoria Lawson, Carol Winn, Walter C. McCrone, Gilbert Gavlin, Ursula Howard, Mary A. Klingenberger, Robert S. Moore, Gregory McLaughlin, Michael T. Healy, Anna R. Langford, Samuel Panayotovich, Bobby Rush, Jessie C. White, Margaret Smith, Byron E. Winton, Ron Bean, William C. Campbell, Debra McGee, Drenda Lakin, Brodie Westbrooks, Marie Boyd, Gloria Basher, Jessica Conner, a/k/a Jessica Chambers, Cheri Smith, Gwendolyn R. Gill, Melanie Scott, Theresa Spears, a/k/a Theresa Lockett, Ethel Hylton, Ruby E. Robertson, Beverly Brown, Toleda Rice, Cheryl Dreakford, Cassandra Bowden, Jocelyn Nichols, Lisa L. Maltbia, Freddie Rainey, Beverly Gordon, Jacqueline Bonds, Myra Holmes, Letha Holley, Cassandra Dale, Betty Cobbs, William White, and Richard Hill, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

861 N.E.2d 320

308 Ill.Dec. 255

J.H. and J.D., Plaintiffs-Appellants, v. ADA S. McKINLEY COMMUNITY SERVICES, INC., Ralph Burlingham, Kenneth Honderich, Margaret Ortinau, Claudine Robinson, Gale Spencer, Victoria Lawson, Carol Winn, Walter C. McCrone, Gilbert Gavlin, Ursula Howard, Mary A. Klingenberger, Robert S. Moore, Gregory McLaughlin, Michael T. Healy, Anna R. Langford, Samuel Panayotovich, Bobby Rush, Jessie C. White, Margaret Smith, Byron E. Winton, Ron Bean, William C. Campbell, Debra

McGee, Drenda Lakin, Brodie Westbrooks, Marie Boyd, Gloria Basher, Jessica Conner, a/k/a Jessica Chambers, Cheri Smith, Gwendolyn R. Gill, Melanie Scott, Theresa Spears, a/k/a Theresa Lockett, Ethel Hylton, Ruby E. Robertson, Beverly Brown, Toleda Rice, Cheryl Dreakford, Cassandra Bowden, Jocelyn Nichols, Lisa L. Maltbia, Freddie Rainey, Beverly Gordon, Jacqueline Bonds, Myra Holmes, Letha Holley, Cassandra Dale, Betty Cobbs, William White, and Richard Hill, Defendants-Appellees.

No. 1-05-2132.

Appellate Court of Illinois, First District, Fifth Division.

December 29, 2006.

O'Callaghan & Colleagues, P.C., Chicago (Joseph Michael O'Callaghan, of counsel), for Appellant.

Shefsky & Froelich Ltd., Chicago (Cary E. Donham and Patricia S. Spratt, of counsel),f or Appellee.

Justice GALLAGHER delivered the opinion of the court:

The issue in this case is whether a trial court has the authority to sua sponte appoint a guardian ad litem for competent adult plaintiffs, without a hearing, where plaintiffs are already represented by counsel who objects to the appointment on their behalf.

BACKGROUND

This case was previously before this court, but was dismissed for lack of jurisdiction.¹ It is now properly before this court pursuant to Supreme Court Rule 304(a). 155 Ill.2d R. 304(a). Plaintiffs, J.H. and J.D., competent adults, appeal from an award of fees and expenses in the amount of $120,585.98, to be paid by them out of the proceeds of the settlement obtained for them by their counsel, to a guardian ad litem who was appointed sua sponte by the trial judge, over the objection of plaintiffs' counsel. Plaintiffs ask this court to decide the following issues:

(1) Whether the trial court had inherent authority to appoint a guardian ad litem for plaintiffs who had allegedly suffered permanent and severe physical and psychological injury, where plaintiffs were competent adults already represented by counsel at the time of the appointment;

(2) Whether plaintiffs, as competent adults already represented by counsel, were denied substantive and procedural due process in connection with the trial court's appointment of a guardian ad litem;

(3) Whether the trial court had improper ex parte contacts with its appointed guardian ad litem; and (4) What must a guardian ad litem prove in a fee petition and is a respondent entitled to a trial?²

The action below was a personal injury case. Plaintiffs, represented by counsel, sought damages for injuries that they suffered as a result of the care they received in Illinois's foster care system. In 1995, plaintiffs, by and through their father and next friend, Todd Higgin, filed their action against defendants for injuries that plaintiffs suffered while wards of the Illinois Department of Children and Family Services (DCFS), as a result of abuse plaintiffs received from their respective foster fathers, Richard Hill and William White, both of whom were pedophiles. Defendant, Ada S. McKinley Community Services, Inc., was a private child-welfare agency (the McKinley agency) that DCFS had assigned to monitor plaintiffs' foster placements. The McKinley agency knew that Richard Hill, the foster father with whom J.D. was placed, was a prior multiple pedophilic sex offender and active alcoholic. Hill severely sexually abused J.D. for 2½ years while he was in Hill's home. The McKinley agency also knew that William White, the foster father with whom J.H. was placed, had psychiatric infirmities precluding placement of children in his home. White severely sexually abused J.H. for eight months while she was in White's home. Both White and Hill were subsequently convicted of aggravated criminal sexual assault. The McKinley agency subsequently forfeited its child-welfare agency license in connection with these incidents of abuse and neglect. The other defendants in the case were McKinley employees, officers and directors. At the time plaintiffs filed their action, they were minors. During the pendency of this case, plaintiffs reached the age of majority.

An initial settlement offer totaling $20,000 to both plaintiffs was made on behalf of the defendants. That offer was not accepted. The maximum amount that was eventually offered to plaintiffs while they were minors was a total of $1 million to be divided between the two. That offer was also not accepted.

The case was assigned to Judge Susan Zwick on the complex case management call, during which time she held several settlement conferences and recommended a settlement in the sum of $6 million. The case was also pretried before Judge Donald P. O'Connell before his retirement, and he also recommended settlement of $6 million.

After the minor plaintiffs became adults, defendants' insurer offered the sum of $2 million to settle the claim of J.H. only. No offer was made with respect to J.D. This offer was not accepted.

After the complex case management call was discontinued, plaintiffs' case was assigned in early 2002 to Judge James S. Quinlan for trial. The trial judge held one pretrial conference early in his involvement. He never made any recommendations with respect to settlement. On October 27, 2003, the trial judge, without notice to plaintiffs and without a hearing, appointed former judge Brian L. Crowe to be plaintiffs' guardian ad litem. Subsequently, plaintiffs moved to vacate the October 27, 2003, order. On December 1, 2003, after a hearing on the motion to vacate, the trial judge denied the motion. In so doing, the trial judge refused to hold a hearing on plaintiffs' legal competency or the presumed lack thereof.

Plaintiffs were adults when the trial judge sua sponte decided to appoint the guardian ad litem. The trial judge apparently relied on medical records provided by defense counsel which had indicated that J.D. was in a nursing home and may have been suffering from schizoaffective disorder. Despite the speculation engaged in by one of the defense counsel that J.D. might therefore be a person who could not make decisions for herself, defense counsel acknowledged that she was an attorney, not a psychiatrist. Nevertheless, no expert opinion was ever produced by anyone that either plaintiff was disabled. No petition was filed by defense counsel to find plaintiffs disabled. The record indicates, however, one of the defendant's counsel, although not taking a position regarding plaintiffs' motion to vacate the appointment of a guardian ad litem, reviewed the law "to aid and assist" the trial court and opined that the trial court "on [its] own motion file a petition or just make [its] own motion to adjudge a person to be disabled." Despite plaintiffs' request, the trial judge never followed any such procedure and further asserted that it was appointing the guardian ad litem outside of the provisions of the Probate Act of 1975 (755 ILCS 5/1-1 et seq. (West 2004)) (the Probate Act).

The trial judge refused to hold a hearing on plaintiffs' competency or disability. Although voicing his personal opinion that plaintiffs were disabled by virtue of their being abused by a foster father, the trial judge refused to make any finding of disability. Additionally, although the trial judge ordered that plaintiffs be examined by another psychiatrist, the trial judge refused to allow plaintiffs' counsel to be present, other than generally stating that he was doing it to "protect" plaintiffs, and noting plaintiffs' allegations of mental and psychological damages as part of their personal injury claim, the trial judge refused to specify the purpose of the appointment of the guardian ad litem. Moreover, in a written order entered on December 2, 2003, the trial judge granted the guardian ad litem's request to clarify that members of his firm, in addition to himself, could assist him in undertaking his duties³ as guardian ad litem.

On December 30, 2003, plaintiffs filed their notice of appeal in case No. 1-03-3787 purporting to initiate an appeal from the October 27, 2003, order appointing the guardian ad litem, the December 1, 2003, order denying their motion to vacate the October 27, 2003, order, and the December 2, 2003, order which once again appointed Judge Crowe as plaintiffs' guardian ad litem and allowed the assistance of Judge Crowe's law firm. As noted earlier, we dismissed the appeal for lack of jurisdiction.

Thus, although plaintiffs' pleadings alleged that plaintiffs had suffered severe, irreparable and permanent psychological and emotional harm from which they will never recover, plaintiffs were never found to be incompetent or disabled. Indeed, it was later acknowledged by the guardian ad litem, in a report submitted to the court on July 13, 2004, that plaintiffs were functional adults who were aware of what was entailed in a trial and that they were willing to testify and would make "strong witnesses." The guardian ad litem further reported that they trusted their counsel and were fully cooperating with him. Additionally, the guardian ad litem reported that their counsel was adequately representing them. The guardian ad litem opined that plaintiffs were not disabled and were capable of settling their case. Nonetheless, the guardian ad litem continued to remain involved in the case.

It is disputed as to whether plaintiffs' counsel or the guardian ad litem suggested⁴ the use of private mediators but the parties agreed to private mediation of both claims. J.H.'s case was mediated before retired judge Anthony Bosco. This resulted in a settlement to...