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01/20/94 ESTATE DAVID STEINFELD A DISABLED PERSON

January 20, 1994

IN RE ESTATE OF DAVID STEINFELD, A DISABLED PERSON (JOSEPH STEINFELD, APPELLANT; ROSEMARIE HODDICK, AS GUARDIAN, APPELLEE).


McMORROW, Freeman

The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

On June 8, 1989, David Steinfeld (David) was adjudicated a disabled adult by the probate division of the circuit court of Cook County pursuant to the Probate Act of 1975 (the Act) (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 11a-1 et seq.). Rosemarie Hoddick (Hoddick) was appointed plenary guardian of David's person. Two years later, on June 7, 1991, David's brother, Joseph Steinfeld (Joseph), filed a motion to vacate the guardianship order on the ground that the order was void because certain statutory requirements were not followed prior to its entry. Following a hearing, the trial court denied Joseph's motion to vacate and held Joseph and his wife, K. Janet Steinfeld (Janet), in contempt of court for their failure to return David to Illinois following a court-approved visit to the Steinfelds' home in California. The appellate court affirmed the denial of Joseph's motion to vacate the guardianship order, and affirmed the finding of contempt against Joseph. However, the appellate court reversed that portion of the circuit court's order finding Janet in contempt, and remanded the cause for further proceedings on a separate, pending petition to remove Hoddick as guardian for cause. (233 Ill. App. 3d 715.) Joseph appeals from the orders denying his motion to vacate the order adjudging David disabled and holding Joseph in contempt of court.

BACKGROUND

On April 14, 1989, David's mother, Lotte Steinfeld (Lotte), filed a petition alleging that David, then age 45, was a disabled person as a result of having Down's Syndrome since birth. The petition requested appointment of Hoddick as guardian of David's person on the alleged basis that David lacked sufficient understanding and capacity to make or communicate responsible decisions regarding the care of his person. Attached to the petition was a list of the names and addresses of David's nearest living relatives, who consisted of Lotte, Joseph and another brother, Thomas. Notices of the petition were timely mailed to Joseph at his residence in California and to Thomas in Oregon, and David was personally served with summons at the Little City residential facility where he lived. The hearing was set for June 8, 1989.

Prior to the hearing, Lotte, then age 87, moved to California to be near Joseph and Janet in lieu of entering a nursing home. The only persons present at David's hearing were Lotte's attorney and Hoddick. The attorney and Hoddick informed the trial court that David lived at Little City and regularly spoke and visited with Hoddick, who was a friend of Lotte and had acted as "kind of a subguardian" for David for several years. Counsel depicted David as being childlike, stating, "You will realize why he needs a guardian. When you see David and talk to him, think of him as a child, although he is in his late forties; when you talk to him it totally escapes me that he is actually an adult. He has an IQ of 62; it says combined IQ, verbal and functional. He acts like a fourteen year old boy." Counsel described David's enjoyment of playing games such as "policeman," and remarked that David was never on time for his part-time janitorial job at Little City.

When a court clerk brought to counsel's attention that the petition was not accompanied by a medical report, counsel stated that he had not believed such a report was necessary because David had had Down's Syndrome since birth. The trial Judge entered the guardianship order but directed counsel to bring in a medical report "for the record." The court further ordered that a statement be mailed to David informing him of his future right to petition for discharge of the guardian or modification of the guardianship order. The court also ordered Hoddick to file a report on David's condition by July 15, 1989, and thereafter to file semi-annual reports, copies of which were to be mailed to David's mother and brothers.

On July 11, 1990, Lotte and Joseph filed a petition for removal of Hoddick as guardian on the ground that her actions were contrary to David's best interests. The petition also requested appointment of Lotte and Joseph as successor co-guardians. The petition was assigned to a different Judge than the one who rendered the original disability and guardianship orders. The successor trial Judge immediately entered an order appointing a guardian ad litem for David and forbidding David's removal from Little City by any of the parties. The matter was continued to August 31, 1990, and several times thereafter.

On December 20, 1990, Lotte filed a motion to be voluntarily dismissed from the July 1990 petition for Hoddick's removal as David's guardian. Simultaneously, Joseph filed a motion for leave to file an amended petition naming Janet as an additional party-petitioner. The amended petition realleged Hoddick's unfitness to serve as David's guardian and her failure to prepare reports on David's condition, sought an accounting of David's earnings, and requested that Joseph and Janet be appointed successor guardians. Both motions were continued to January 18, 1991.

On December 21, 1990, the trial court granted an earlier motion by Lotte and Joseph for permission to bring David to their home in California for a Christmas visit, conditioned upon the deposit by the Steinfelds of a $10,000 cash bond with the guardian ad litem. Return of the bond was contingent upon the Steinfelds' return of David to Little City by January 15, 1991.

A copy of an order stamped by the clerk of the circuit court, which was omitted from the record but which has been appended to Hoddick's brief in this court, reveals that on January 18, 1991, the trial court granted Lotte's motion for voluntary dismissal. The court also granted Joseph's and Janet's motions to add Janet as a party-petitioner, to file an amended petition, and for return of the bond due to their safe and timely return of David to Little City.

On March 19, 1991, Joseph and Janet filed a motion for permission to take David to California for a spring visitation. The motion was granted upon the condition that the Steinfelds post another $10,000 bond, returnable only by court order upon David's return to Little City no later than April 16, 1991.

On April 17, 1991, a petition for an injunction prohibiting harassment, signed by David as petitioner and by counsel for David, and naming Joseph and Janet as defendants, was granted by the superior court of California. The order prohibited, inter alia, David's removal from California without the advance approval of the clinical psychologist and the psychiatrist who, a few days earlier, had interviewed David and prepared psychological reports which were attached to the petition. On April 22, David and Lotte filed a petition in the California court requesting that Lotte and Joseph be appointed limited conservators of David.

On April 18, 1991, Hoddick filed an answer to the amended petition of December 20, 1990. That same day the trial court entered a rule to show cause why the Steinfelds should not be held in contempt for failing to comply with the court's order to return David to Little City by April 16, 1991.

On June 7, 1991, Joseph filed the motion, which is the subject of this appeal, to vacate the June 8, 1989, guardianship order. The basis of the motion was that the order was void because the trial Judge failed to follow the requirements set forth in the statute prior to adjudicating David disabled. On August 22, 1991, the court conducted a hearing, which was attended by counsel for the Steinfelds, Hoddick, Hoddick's attorney, the guardian ad litem and an attorney from the office of the public guardian. Following argument by all counsel, the trial court denied Joseph's motion to vacate the 1989 disability and guardianship order. The court ruled that the original hearing was sufficient and that all information subsequently presented to the court concerning David, including the psychological evaluations performed in California, supported the original finding of disability. The court also found Joseph and Janet in civil contempt of court for wilfully failing to return David to Illinois, ordered the forfeiture of their $10,000 bond and imposed a fine of $50 per day, beginning August 22, 1991, until their return of David to the court or Little City. The appellate court affirmed the denial of Joseph's motion to vacate the guardianship order and the contempt finding against him, but reversed the contempt order against Janet, and remanded the cause for further proceedings on the December 1990 petition by Joseph and Janet to remove Hoddick as guardian of David for cause.

Discussion

Initially, we consider Hoddick's contention that this appeal should be dismissed for lack of standing by Joseph and Janet. It is Hoddick's position that they were not parties to the original adjudication proceeding, and because that proceeding did not affect their substantive rights they lacked standing to contest the validity of the guardianship order and, consequently, to appeal from the denial of the motion to vacate it.

We note that although Janet joined in the December 1990 petition for Hoddick's removal as guardian, the June 7, 1991, motion to vacate the original guardianship order was brought by Joseph alone and only Joseph was named in the portion of the trial court's order denying it.

The Act states that the circuit court may adJudge an individual a disabled person "upon the filing of a petition by a reputable person" (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 11a-3); that the petition must state the names of the allegedly disabled person's nearest relatives (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 11a-8(e)(2)); and that notice of the proceedings must be given to all adult siblings of the allegedly disabled person (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 11a-10(f)). In addition, section 11a-20(a) of the Act expressly provides that "upon the filing of a petition by or on behalf of a disabled person * * * the court may terminate ...


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