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In re Estate of K.E.S.

March 30, 2004

[5] IN RE: THE ESTATE OF K.E.S. AND J.M.S., MINORS,
JOSEPH T. SCHNEIDER, JOAN M. SCHNEIDER, AND BENITO DITERLIZZI, PETITIONERS-APPELLEES,
v.
AMY J. SCHNEIDER, RESPONDENT-APPELLANT, AND MARK E. SLINEY, RESPONDENT.
IN RE: THE ESTATE OF K.E.S. AND J.M.S., MINORS,
JOSEPH T. SCHNEIDER AND JOAN M. SCHNEIDER, PETITIONERS, AND MARK E. SLINEY, RESPONDENT, AND KAREN COATES AND DAN COATES, INTERVENORS-APPELLANTS,
v.
AMY J. SCHNEIDER AND BENITO DITERLIZZI, RESPONDENTS-APPELLEES.



[6] Appeal from Circuit Court of Macon County No. 93P366 (No. 4-03-0612) (No. 4-03-0625) Honorable Scott B. Diamond, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Myerscough

[8]  After a hearing in January 2003, the trial court denied Amy J. Schneider's petition to terminate guardianship of her biological children, K.E.S. and J.M.S., and the petition of Karen and Dan Coates (the Coateses) to be appointed successor guardians. The court confirmed guardianship in Benito DiTerlizzi. Two separate appeals have been filed. In No. 4-03-0612, Amy appeals the denial of her petition to terminate guardianship, arguing (1) the trial court committed reversible error by not dismissing the Coateses, intervenors, from the lawsuit; (2) the court exceeded its authority by permitting Benito, the surviving guardian, to maintain guardianship after he allowed the minor children to reside with Karen and Dan Coates, the intervenors; (3) the court erred in finding that disputed questions of fact be decided against Amy; (4) the court's finding that Amy and Benito had consensual sex was against the manifest weight of the evidence; and (5) the court abused its discretion by failing to remove Benito as guardian. In No. 4-03-0625, Karen and Dan Coates appeal the denial of their petition to be appointed successor guardians, arguing (1) the trial court erred in denying their petition for appointment of successor guardian, and (2) the court erred by ordering them to pay one-half of the guardian ad litem (GAL) fees. We affirm in part and remand in part with directions.

[9]  I. BACKGROUND

[10]   On January 23 and 24, 2003, the trial court held a hearing on Amy's petition to terminate guardianship and the Coateses' petition to be appointed successor guardians. Testimony and evidence admitted in the January 2003 hearing revealed the family history leading up to Amy's petition to terminate guardianship.

[11]   Amy Schneider and Mark Sliney are the natural parents of K.E.S. and J.M.S. Amy and Mark were married on May 27, 1988. K.E.S. was born on June 21, 1988; J.M.S. was born on October 22, 1989. When Amy and Mark were divorced on June 26, 1991, the issue of child custody was not decided. At the time of the divorce, Amy resided in Bloomington, Illinois, and Mark resided in St. Louis, Missouri. The children were living in Decatur, Illinois, with Amy's parents, Joseph and Joan Schneider (the Schneiders).

[12]   Amy testified that she attempted to put the children up for adoption shortly after J.M.S. was born. Eventually, Amy voluntarily gave physical possession of the children to her parents, the Schneiders. Amy testified that she felt she was unable to care for the children because she was suffering from financial, mental, and emotional difficulties.

[13]   In June 1993, the children moved to Bellevue, Washington, to live with their maternal aunt and uncle, Christine and Benito DiTerlizzi. On November 12, 1993, the Schneiders filed a petition for appointment of guardians of minors' persons, pursuant to section 11-5 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 1992)), seeking to declare Christine and Benito DiTerlizzi guardians of K.E.S. and J.M.S. Mark Sliney was defaulted for failing to appear.

[14]   The record shows that on November 12, 1993, the trial court appointed Christine and Benito DiTerlizzi temporary guardians of K.E.S. and J.M.S. On March 16, 1995, the trial court appointed Christine and Benito as plenary coguardians of K.E.S. and J.M.S., then six and five years old. In its order, the court found that Amy had not exhibited responsibility for her children or stability since September 1990; Amy had not manifested a willingness to provide food, clothing, shelter, or nurture for the children; the children desired to live with Christine and Benito; and Christine and Benito had sufficient income to provide for the children. The court concluded that it was in the best interests of the minor children that Christine and Benito be appointed as coguardians to K.E.S. and J.M.S.

[15]   The children continued living with Christine and Benito in Washington, calling them "mom" and "dad." In November 1998, Christine was diagnosed with cancer. In July 2001, Amy traveled to Washington to visit her ailing sister and Benito. When Amy came to visit, the children were visiting their grandparents, the Schneiders, in Decatur, Illinois. Amy testified that during this visit, Benito attempted to rape her. She also testified that she was intoxicated that night. Benito testified that the two had consensual sex. Benito also testified that Amy and her paramour, Wayne, had attempted to extort money from him after Amy returned home. They promised to keep the "rape" secret in exchange for money. Benito testified that it was only after he refused to comply with their request that he was visited by the police (1 1/2 months after the sexual encounter). After this visit by the police, Benito testified that he heard nothing further from them. No charges were ever filed.

[16]   On August 17, 2001, Christine died, leaving Benito as the sole guardian of K.E.S. and J.M.S. Christine's will named her other sister, Karen Coates, as the successor guardian of K.E.S. and J.M.S. in the event Benito was unable or unwilling to care for the children. The will also named Karen as successor trustee of a "$5-600,000.00" trust (estimates varied) established for the children's care if she were to become guardian. K.E.S. and J.M.S. continued living in Washington with Benito until August 2002.

[17]   At the January 2003 hearing, Benito testified that the children had been honor students in the past but had academic difficulties during the school year following Christine's death. He also testified that he was "exhausted" as a result of his wife's long illness and later death and the allegations of rape. At the request of K.E.S. and Karen Coates, Benito agreed to let the children move to Texas to live with the Coateses for the following school year. Benito characterized this relocation as being on a "trial basis." The relocation arrangement was reduced to writing in a document entitled "agreement for temporary living arrangements," dated August 28, 2002.

[18]   In this agreement, Benito authorized the Coateses to enroll the children in school and obtain medical treatment. The agreement stated in part as follows:

[19]   "This living arrangement is expected to last through May 2003, but may possibly be extended by mutual agreement of the parties. Therefore, I am providing my indefinite authorization for school enrollment and medical treatment for as long as the children are living in Texas. However, if the children make a request, after adequate deliberation, to return to live with me, the Coates[es] shall consult with me and return the children, if I so request. Nothing in this [a]greement shall affect my rights as a guardian, and the Coates[es] agree not to take any action, directly or indirectly, that would adversely affect those rights."

[20]   On August 28, 2003, both Benito and Karen signed the agreement. On August 29, 2002, K.E.S. and J.M.S. moved in with the Coates family in Texas.

[21]   At the January 2003 hearing, Amy testified that she learned of the plan to relocate the children days before their scheduled departure. On August 22, 2002, Amy filed a petition for temporary restraining order and preliminary injunction, seeking to prevent the children from moving to Texas. On August 30, 2002, she filed a motion to terminate Benito's guardianship, seeking to regain custody of the children. In Amy's amended petition to terminate guardianship, filed September 30, 2002, she stated that a substantial change in circumstances had occurred since the original entry of guardianship, i.e., Benito's transfer of physical custody to the Coateses and improvements in her lifestyle, and it was therefore in the children's best interests that they reside with her. Amy also petitioned to receive visitation with the children in the interim.

[22]   On October 29, 2002, Benito responded with a motion to dismiss Amy's petition to terminate guardianship. He also moved to have the Coateses added as parties to the litigation, stating that a complete determination of the issues could not be made without their presence as parties. The Coateses also filed a petition to intervene, requesting to be named successor coguardians of the children. The court appointed a GAL to represent the children's interests.

[23]   On November 21, 2002, the trial court held a hearing on the parties' pretrial motions. Amy testified in support of her petition for visitation. The Coateses called Joan Schneider, Amy's mother, as a witness in opposition to the petition for visitation. In a written order filed November 25, 2002, the court found that there had been very little contact between Amy and the children since their placement with Christine and Benito. The order acknowledged Amy's testimony that her life had improved since the children were placed with Christine and Benito and that she was self-employed and under the care of a psychiatrist. The court further found that while Amy had "made a good appearance in court," the court "still has numerous questions about her health and style of life." The court denied the petition to dismiss the petition to terminate guardianship, granted the Coateses leave to intervene, and granted Amy temporary unsupervised visitation from December 26, 2002, until January 2, 2003, on the condition she pay for round-trip airline tickets.

[24]   During the January 23 and 24, 2003, hearing, the trial court heard testimony from eight witnesses: Jennifer Hall, Amy, Benito, Karen, Wayne (Amy's paramour), Jane Schneider, and the two children (in camera).

[25]   Jennifer Hall, a licensed clinical professional counselor, testified that she had treated Amy during approximately 10 sessions. Jennifer testified that Amy was diagnosed with "bipolar II disorder." Jennifer also testified that Amy's manic periods were often marked by inappropriate sexual behavior and Amy had been treated for alcohol addiction. Jennifer testified that Amy had been scored as a "55" out of 100 points on the "global assessment of functioning scale." Jennifer agreed that individuals in this category generally have moderate difficulty in social and occupational functioning. Jennifer also stated that Amy was taking medication to treat her bipolar disorder.

[26]   In her testimony, Amy described her state of mind during the original guardianship proceedings in 1993-95 as "chaotic" and "undisciplined." Amy testified that she had taken amphetamines daily and been diagnosed as having an "alcohol dependence." Since the original guardianship proceedings, Amy testified that she had received treatment from an alcohol- treatment facility on two occasions, had stopped taking amphetamines, and was taking medication for her bipolar disorder. Amy stated that she had also moved into a house with two of her other children and their father, Wayne. She testified that Wayne has custody of their two children and she was pregnant with their third.

[27]   She also testified that she had seen K.E.S. and J.M.S. on a few occasions, although she had multiple opportunities to see them, and she had not paid any child support in over seven years though ordered to do so. Amy admitted that "there's no excuse" for her failure to pay child support.

[28]   Jane Schneider, Amy's sister, testified that Amy and Wayne had difficulties in their relationship, often resulting in Wayne "kicking Amy out" of their house. She also stated that she and Amy had discussed Amy and Benito's sexual encounter. Jane testified that Amy never described the encounter as a "rape." Rather, Amy explained that she had "slept with Benito" but she did not remember it because she was "drunk."

[29]   In its written judgment filed on April 3, 2003, the trial court identified "two important legal concepts involved in this litigation": requisite elements for guardianship termination and guardianship appointment. The court reasoned as follows:

[30]   "The first concept is concerned with the required elements to justify a termination of a guardianship in favor of the biological parent. The [c]court believes that the law to be as follows on this issue:

[31]   'We adopt the Wadman analysis. [In re Estate of Wadman, 110 Ill. App. 3d 302, 442 N.E.2d 333 (1982).] Petitioner had to show some change [in] circumstances, or otherwise she could bring frequent petitions to terminate at any time, but first respondent had the burden of proof to overcome the superior-[rights] doctrine that a parent has a superior right to custody of her minor children. Further, respondent had to show that it was in the children's best interest that she retain the guardianship.' [In re Estate of Webb, 286 Ill. App. 3d 99, 101, 675 N.E.2d 192, 194 (1996)]."

[32]   The court identified the second concept, quoting section 11-5(b) of the Probate Act:

[33]   "'The [c]court lacks jurisdiction to proceed on a petition for the appointment of a guardian of a minor if (I) the minor has a living parent, adoptive parent[,] or adjudicated parent[,] whose parental rights have not been terminated, whose whereabouts are known[,] and who is willing and able to make and carry out day-to-day [ child-care] decisions concerning the minor, unless the parent or parents consent to the appointment [or], after receiving notice of the hearing under [s]section 11-10.1, fail to object to the appointment at the hearing on the petition[,] or (ii) there is a guardian for the minor appointed by a court of competent jurisdiction. [There] shall be a rebuttable presumption that a parent of a minor is willing and able to make and carry out day-to-day child[-]care decisions concerning the minor, but the presumption may be rebutted by a preponderance of the evidence.' 755 ILCS 5/11-5(b) (West 2002)."

[34]   The court continued, stating this statutory section is "important if the court determines that the guardian abandoned his position by placing the children with the Coateses, and whether the court should have allowed the Coateses to become intervenors and rebut the presumption by a preponderance of the evidence. [In re Estate of Johnson, 284 Ill. App. 3d 1080, 1091, 673 N.E.2d 386, 393 (1996)]."

[35]   The court further found as follows:

[36]   (1) Findings of fact should be ...


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