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In re Estate of Johnson

March 02, 1999

IN RE ESTATE OF KIRSTEN JOHNSON, A DISABLED PERSON, VERA HOWSE, PETITIONER-APPELLEE,
v.
ERIC JOHNSON, COUNTER-PETITIONER- APPELLANT.



The opinion of the court was delivered by: Presiding Justice Gordon

Appeal from the Circuit Court of Cook County. Honorable Maureen Connors, Judge Presiding.

Eric Johnson, the father of Kirsten Johnson, appeals from the trial court's appointment of Vera Howse, Kirsten's maternal aunt, as the guardian of Kirsten's person upon the court's finding that Kirsten was a disabled person. *fn1 Eric argues that the trial court abused its discretion in making that appointment by failing to give preference to him, Kirsten's surviving parent, and by ignoring evidence of Howse's financial conflict of interest. For the reasons discussed below, we affirm the order of appointment.

I. BACKGROUND FACTS

This case is a continuation of an earlier proceeding in which Vera Howse petitioned the court to be appointed Kirsten's guardian, upon the death of Kirsten's mother, Barbara, in April 1995, while Kirsten was a minor. (Barbara and Eric divorced in 1983.) This court, in an opinion filed on November 8, 1996, reversed the trial court's appointment of Howse as guardian of Kirsten's person, finding that Howse lacked standing to bring the petition because she failed to present evidence to rebut the presumption that Eric, a natural parent, was willing and able to make and carry out day-to-day child care decisions concerning Kirsten. Estate of Johnson v. Johnson, 284 Ill. App. 3d 1080, 673 N.E.2d 386 (1996). The matter was remanded to the trial court for further proceedings. It does not appear from the record, however, that Eric was appointed Kirsten's guardian of the person. Instead, on November 10, 1996, two days after the filing of this court's opinion, and in anticipation of Kirsten's eighteenth birthday on December 12, 1996, Howse filed a petition seeking an order declaring Kirsten a disabled person and appointing her (Vera) as the guardian of Kirsten's person. Eric filed a counter-petition seeking his appointment as Kirsten's guardian. *fn2

There is no dispute that Kirsten is a disabled person. On May 28, 1986, she sustained multiple trauma and severe head injuries as a result of an automobile accident. As noted in our earlier opinion, a personal injury lawsuit, filed on Kirsten's behalf, was settled in 1990. In accordance with the settlement agreement, Kirsten received a cash payment of $750,000 plus a structured settlement annuity that guaranteed total payments of $4,485,405.88 with expected total payments reaching as high as $14,418,036.24. Johnson, 284 Ill. App. 3d at 1082-83, 673 N.E.2d at 387-88.

While the instant action was pending in the circuit court, Kirsten's guardian ad litem filed a report concerning her visit with Kirsten on January 25, 1997. According to the report, Kirsten was aware of the competing petitions filed by her aunt and her father seeking appointment as her guardian. Kirsten described her friends, her attendance at high school, and her part-time job at a local food store (which was later phased out by the store). Kirsten reported that she and her mother began living with her Aunt Vera in Matteson after her mother became very ill. She indicated that she enjoyed living with her two aunts, Vera and Esther, her cousin (Vera's son), and her uncle who had multiple sclerosis. *fn3 Kirsten stated that she felt isolated when she stayed with her father and his wife at their home in Bolingbrook. She did not want to transfer to the high school in Bolingbrook. She stated that she loved her father and wanted to spend more time with him but did not want to move in with him. Kirsten expressed her preference that her Aunt Vera act as the guardian of her person, stating that her aunt knew her and had been there for her including at the time of her mother's death. Kirsten told the guardian ad litem that she would not object to the appointment of her father as the guardian of her person provided she could continue to live with her aunt.

Doctor Daniel J. Luchins, M.D., a board certified psychiatrist, also filed a report with the court. That report detailed Doctor Luchins' examination of Kirsten. Luchins stated that Kirsten had learning and emotional deficits and had difficulty understanding those deficits. In Luchins' opinion, Kirsten was totally unable to make financial and personal decisions and needed to live with a responsible adult who could supervise her.

At the hearing held to decide the issue of the appointment of Kirsten's guardian, Vera and Eric presented much of the same evidence that was elicited during the proceedings held to appoint Kirsten's guardian during her minority. Kirsten testified that she currently lived with her aunts, Vera and Esther. She stated that she graduated from high school (attending a special needs program) and was taking one class, two days a week, at the local college. She stated that when at home, she sleeps, takes a daily shower, and listens to the radio and to gospel tapes. She stated that she would like to be with more people on a daily basis but opined that it was hard to "find people that you could trust." Kirsten estimated that in the two months preceding the hearing, she had seen her father twice. She stated that she telephones her father and he telephones her, but not often. She appreciates his calls because it shows he wants to be involved in her life. Kirsten stated that she had not been to her father's home for a long time. She stated that the Matteson home and her father's home in Bolingbrook were both fine but she preferred to live with her aunts in Matteson.

During examination by Vera's counsel, Kirsten stated that she was extremely close to Vera who was like a mother to her. She stated that she enjoyed living with Vera and Esther because "there's love, and love is what a family really means to somebody." She also stated that she felt a sense of freedom living with Vera and Esther and that she felt "trapped" at her father's home. Kirsten testified that she enjoyed going to church with Vera and Esther and she wanted to attend the youth group meetings on Friday nights.

During examination by Eric's counsel, Kirsten stated that Vera talked to her a number of times about the court proceedings and told her what her father was trying to do. Kirsten also recalled making a telephone call to her father's attorney at a number given her by Vera. She left a message to the effect that having dinner with her father would not be a good idea. On redirect and recross examination, respectively, Kirsten stated that her guardian ad litem discussed the case with her and that her father also discussed the case with her.

Vera Howse testified that she was employed at a law firm and was away from home from 6:30 a.m. to 7:00 p.m. She stated that Kirsten was like a daughter to her and came to live with her shortly before Kirsten's mother, Barbara, died. She stated that when Kirsten first came to live with her, while Barbara was alive, Eric was not involved in caring for Kirsten. Vera stated that she and her sister, Esther, attend to Kirsten's daily needs; they help her get ready for school and help her with her homework. Vera taught Kirsten about personal hygiene and attends to Kirsten's health care needs including the taking of medication and the making of periodic visits to the doctor. Vera testified that, while she is away at work, Esther, who is an in-home care provider, comes home on lunch break to check on Kirsten. Vera also calls Kirsten during the day to check on her. According to Vera, when Kirsten is not at school, she writes, watches television, works on her computer, and calls people on the telephone. Kirsten also attends two churches with her aunts. She loves to sing, is a member of the church choir, and has participated in concerts. Vera indicated that a vocational evaluation performed on Kirsten recommended that Kirsten obtain employment rather than attend school. Vera stated that Kirsten nevertheless wanted to attend school so she personally paid the $346 for a "Reading Fundamentals" class Kirsten was taking, not for degree purposes but to keep Kirsten's mind "activated." Vera also stated that she has never discussed Kirsten's career aspirations with Eric because he and she have had problems communicating.

Vera testified that she formerly owned the house in which she, Kirsten, Esther, and Vera's son (who is away at college) reside. She stated that at Barbara's suggestion, shortly before her death, Kirsten's trust fund bought the Matteson house which had been for sale as a result of Vera's divorce. The sale was approved by the court. Howse did not receive any "windfall" from the sale. The utility bills relating to the house remained in Vera's name after the sale because Kirsten was a minor at the time. Vera also testified that she received $500 per month until August 1997 from Kirsten's estate for expenses related to Kirsten's care. She used that money to pay for cable, gas, electric, a car lease, clothing, and to give Esther "a little something for helping" (estimated to be about $20).

Vera denied coaching Kirsten to say certain things. She denied telling Kirsten not to call and not to visit her father. She stated that on one occasion, after Kirsten turned eighteen, Kirsten called the police, insisting that she did not want to visit her father's home. Vera also stated that she provided Kirsten with the telephone number of Eric's attorney and told Kirsten that she could do whatever she wanted with respect to visitation. Kirsten has not had overnight visitation with her father since October 1996. The foregoing notwithstanding, Vera stated that Kirsten loves her father.

On examination by Eric's attorney, Vera stated that Kirsten was taken by her father to live with him on September 15, 1996. Howse obtained a court order for Kirsten's return. Kirsten also visited her father every other weekend in 1995 and until October ...


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