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In re Estate of Rivera

Court of Appeals of Illinois, First District, Fourth Division

June 21, 2018

In re ESTATE OF INEZ RIVERA, a Disabled Adult The Northern Trust Company, as Both Plenary Guardian of the Estate of Inez Rivera, a Disabled Adult and Trustee of the Inez Rivera Trust, Petitioner-Appellee; Jennifer M. Vega, as Plenary Guardian of the Person of Inez Rivera, a Disabled Adult, Respondent-Appellee; and Martin A. Rivera and All of His Descendants Other Than Jazlyn Rivera, Respondents-Appellants.

          Appeal from the Circuit Court of Cook County 13-P-000438 Honorable Caroline G. Quinn, Judge Presiding

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.



         ¶ 1 Martin A. Rivera and 8 of his 11 children appeal from a trial court order authorizing an amendment to the estate plan of his third daughter, 23-year-old Inez Yolanda Rivera, who is permanently and profoundly disabled by birth injuries. Inez's estate is sizeable after her receipt of a $12 million personal injury settlement in 2003. Because of her physical and cognitive delays, Inez has never married, has not had or adopted children, and has never had testamentary capacity. Inez's initial estate plan followed the rules of intestacy and benefitted both parents and all full- and half-siblings in equal shares, but after a "best interests" hearing pursuant to Howell, the trial court authorized the guardian of Inez's estate, The Northern Trust Company (Northern Trust), to amend the plan. Estate of Howell v. Howell, 2015 IL App (1st) 133247, ¶ 41, 36 N.E.3d 293 (finding estate coguardians were statutorily empowered to act in an adult ward's best interests, which could include deviating from rules of intestacy in crafting an estate plan, and remanding for an evidentiary hearing to determine the ward's best interests). The current plan excludes Inez's father and eight paternal half-siblings and benefits Inez's mother, sister, and three maternal half-siblings. The appellants contend it was error to allow the amendment because the Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq. (West 2016)) does not authorize amending a trust to deviate from intestacy, Howell is not on point, and, in any event, the hearing evidence should have been subjected to the clear-and-convincing standard instead of the preponderance standard. Howell, 2015 IL App (1st) 133247.

         ¶ 2 Appellant Martin, born on August 14, 1967, and Inez's mother, appellee Jennifer M. Vega, nee Garcia, born on May 3, 1978, began dating on an unspecified date when he was in his early twenties and she was about 13 years old. We calculate the age gap between Jennifer and Martin to be 10 years, 8 months, and 19 days. Martin had already fathered two children with two different women. His daughter Salina Castaneda was born on September 1, 1987, and his daughter Yolanda Rivera Frederick was born on May 8, 1991. Jennifer began living with Martin and became pregnant by him when she was 15 years old. Their first daughter, Inez, was born on January 1, 1995, when Jennifer was 16 years old. Inez was deprived of oxygen at birth and has consequently suffered from cerebral palsy, autonomic instability, seizure disorder, encephalopathy, and severe developmental delays. These injuries rendered Inez legally blind and incapable of walking, talking, sitting up on her own, or feeding herself. Inez is able to move her hands but cannot pick up anything or get herself out of bed. While still a young child, Inez became dependent on a gastrostomy feeding tube and a tracheostomy breathing tube. She cannot be left unattended and requires skilled assistance 24 hours a day. Within a year of Inez's birth, Martin and Jennifer had a second daughter together, Jazlyn Allison Rivera, who was born November 27, 1995. Their third child together, Martin Peter Rivera, was stillborn on October 18, 1996. Martin and Jennifer married on March 24, 1998, when he was 30 years old and she was 19 years old, and they divorced less than 8 years later, on November 8, 2005. While Martin was married to Jennifer, he had two children with Lisa Marie Luman. Fabian A. Luman was born on December 20, 2002, and Alexia Rivera was born on March 19, 2004. After his divorce from Jennifer, Martin had four more children with Lisa and another woman, Claudia Cabrales. Martin had Gianna Rivera with Claudia on March 1, 2005, Alessandra Rivera with Lisa on December 6, 2006, Analya Rivera with Lisa on August 2, 2007, and Enaya Rivera with Claudia on December 10, 2009.

         ¶ 3 The record indicates that when Inez was a minor, Northern Trust was appointed as the guardian of her estate in conjunction with her receipt of the personal injury settlement. The estate is the legal owner of Inez's home, stock, and cash. Shortly after Inez's eighteenth birthday in 2013, Jennifer petitioned the court to adjudicate Inez as a disabled person, appoint Jennifer as the sole guardian of Inez's person, and appoint Northern Trust as guardian of her estate. Martin did not oppose the petition, and it was granted.

         ¶ 4 In 2015, after Inez's twentieth birthday, Northern Trust petitioned for authority to execute estate planning documents and fund a revocable trust and pour-over will so that upon Inez's death, her remaining assets could be distributed to her heirs without incurring the costs and delays of a probate estate. Northern Trust specified that the proposed estate plan would not affect Inez's access to her assets during her lifetime and that if the proposed plan were adopted, it could be changed at any time, either by the court, or by Inez, if she were later determined to have testamentary capacity. The estate plan, which was proposed to and approved by circuit court Judge Carolyn Quinn on May 19, 2015, provided for Inez's parents and siblings (both full and half) to be equal heirs.

         ¶ 5 At the time that Inez's initial estate plan was being considered and approved, an appeal was pending in Howell, 2015 IL App (1st) 133247, which questioned whether a guardianship court could consider an estate plan deviating from intestacy for a disabled young adult who never had testamentary capacity. Like Inez, the disabled adult in Howell had received compensation for personal injuries. Under the rules of intestacy, most of the disabled ward's $11 million estate would be distributed upon his death to the father, whom it was alleged had never lived with him, never assisted in his care, visited only occasionally, and contributed an insignificant amount towards his support and comfort, and the father's 10 other children, whom it was alleged had never met the disabled ward. Howell, 2015 IL App (1st) 133247, ¶ 1. Relying on the "substituted judgment" doctrine, his mother and Northern Trust, who were the coguardians of his estate, argued that the disabled adult would want his assets to go to his mother, who was his full-time caretaker, rather than also being shared under intestacy rules with his father and 10 half-siblings. Howell, 2015 IL App (1st) 133247, ¶ 8. We reversed the trial court's determination that the only possible plan was to follow intestacy. Howell, 2015 IL App (1st) 133247, ¶ 41. We remanded for an evidentiary hearing, explaining that "reading the relevant sections of the Probate Act together, the preferred approach to estate planning is to follow the ward's subjective wishes, to the extent those wishes can be ascertained, but the overriding principle is to act in the ward's objective 'best interests.'" The relevant provisions of section 11a-18 of the Probate Act were subsections (a) and the very next paragraph, (a-5), both of which concern duties of an estate guardian, and will be set out as relevant below. 755 ILCS 5/11a-18(a), (a-5) (West 2016).

         ¶ 6 After Howell was filed on June 19, 2015, Northern Trust met with Jennifer and Martin about the possibility of deviating from intestacy in Inez's estate plan if the guardianship court determined that this was in her best interests. In December 2015, Northern Trust requested direction from Jennifer, in her capacity as the guardian of Inez's person, regarding Inez's possible wishes for her estate plan. Jennifer recommended that the sole beneficiaries of Inez's estate plan be five individuals: the full sister, Jazlyn, who had lived with Inez until moving out as an adult; the three young half-sisters, Samantha, Jessica and Emma, who continued to live with Inez; and the parent who had always been her caretaker, Jennifer.

         ¶ 7 That same month, on December 10, 2015, Martin returned to the domestic relations division of the circuit court, where his marriage to Jennifer had been ended by a judgment order in 2005, and filed a petition for visitation with Inez. In this 2015 petition, Martin alleged, "The parties had an informal visitation agreement that took place at [Jennifer's] residence but recently she told [Martin] that she was not going to allow him any more visitation with [Inez]." Martin further alleged that Inez's physical condition had deteriorated to the point that she was in extremis (in her last illness or near death), it was impracticable for her to be transported for visitation, and that he had a right to visit his child. That same day, Jennifer advised the domestic relations judge that Inez had been adjudicated a disabled adult and that the probate division of the circuit court had jurisdiction over visitation questions. The domestic relations judge agreed with Jennifer and ordered that Martin's petition be heard in the probate division. The probate division judge reappointed Peter Schmiedel as the guardian ad litem in this matter and entered a briefing schedule.

         ¶ 8 Next, in early 2016, Northern Trust filed a verified petition in the probate division, seeking judicial direction regarding further estate planning on Inez's behalf.

         ¶ 9 Before proceeding to a best interests hearing on Northern Trust's petition, the parties addressed Martin's visitation petition. Jennifer filed a section 2-619 motion to dismiss Martin's visitation petition (735 ILCS 5/2-619(a)(9) (West 2014)) and first argued that the facts militated against allowing Martin to have visitation. She contended that Martin had consistently chosen to have only sporadic and minimal contact with Inez during her lifetime regardless of whether she was undergoing one of her numerous and long hospitalizations, where he had the unimpeded ability to visit, or was at home with Jennifer. For instance, when Martin visited Inez at home in October 2015, he had not seen her in two-and-a-half years. Jennifer contended that the few visits that did occur had been initiated by her and that Martin's new interest in visitation was motivated by the possibility of his disinheritance. Jennifer noted that Martin also made no effort to contact or visit their 20-year-old daughter, Jazlyn, who was residing in her own apartment. Jennifer's second point was that Inez did not know Martin and was not aware of him. Jennifer also said she was afraid of Martin because of his history of violence and abuse, which included criminal convictions, time in the penitentiary, and beating her when she was nine months pregnant in 1996 to the point that their son was stillborn a week later, and Jennifer, Inez, and Jazlyn had to flee to a shelter despite Inez's medically precarious condition. These facts led Jennifer to state that it was not in Inez's best interests to be visited by Martin. Jennifer also contended that, as the sole legal guardian of Inez's person, Jennifer, not the court, had authority to make decisions concerning visitation and that Martin had no standing to assert a right of visitation with his adult daughter. The guardian ad litem informed the court that he made a home visit and found, as he had during previous home visits with Inez, that she was receiving excellent care; that, during a telephone interview, Martin admitted to infrequent visits with Inez but blamed the situation on Jennifer; and that it was unnecessary for the court to determine why Martin's visits were sporadic because Martin had no standing to challenge Jennifer's visitation decision. After oral arguments in March 2016, the probate division judge denied Martin's petition for visitation due to his lack of standing, and it was agreed that any future discussion about visitation would be handled by counsel rather than direct communication between Jennifer and Martin. During the hearing, the judge emphasized that the parents should not request or refuse visitation out of a belief that they would influence the court's ruling on the estate planning issue because the court would be taking a comprehensive look at Inez's entire life.

         ¶ 10 The parties next prepared and filed legal briefs regarding the best interests hearing that would be conducted over two days in October 2016.

         ¶ 11 Jennifer was the first witness at the hearing regarding Inez's family life. Jennifer testified that she and Inez were residing in Orland Park, Illinois, with Jennifer's husband, Emanuel Vega Jr. and their three daughters, Samantha, Jessica, and Emma Vega. Inez had to spend a month in the hospital after she was born. Jennifer and Martin's relationship had been "off and on," and at the time he was still dating Karen Varella, the mother of his second child, Yolanda. Martin did not visit Inez on his own, and went to the hospital only once or twice when Jennifer "begged" him for a ride so she would not have to take the bus as she "often" did during that month. When Inez was discharged, Jennifer took the baby home to her mother's house. Martin and Jennifer continued their "off and on" relationship and subsequently had Jazlyn and Martin Peter. Martin Peter was stillborn because Martin "became physical," "would always hit" Jennifer, and was "abusive." Martin hurt Jennifer in front of Jazlyn and Inez, and he struck Jazlyn in Inez's presence. Martin, however, never hurt Inez.

         ¶ 12 Jennifer broke off the relationship and divorced Martin when she and Jazlyn moved to Orland Park in 2005. Jennifer was granted sole custody of Inez. Martin was not required to pay monthly support for Inez because of her settlement; however, he has never provided any monetary support for her or given her any Christmas or birthday cards or any gifts. Martin did make some of the court-ordered monthly payments towards Jazlyn's support, but then he stopped.

         ¶ 13 Inez needs care every day, 24 hours a day, which she receives primarily from a registered nurse. She also has weekly or monthly visits from a teacher, an occupational therapist, and a physical therapist. Jennifer takes sporadic eight-hour nursing shifts, and otherwise cares for Inez. Inez smiles when she hears her mother's voice and can signal when she is hungry. Jennifer has received training that enables her to replace Inez's "G-tube," give medication, and change and bathe her daughter. Regardless of the time of day or night, Inez needs to be moved into a different position at least every two hours so that her sensitive skin does not break down. Martin has never received any training to care for Inez, and he has never spent time alone caring for her. Many years ago, Jennifer agreed to bring Inez to a mall for some visitation time with Martin, and although they waited for him for two hours, Martin did not show up. The record includes an order dated June 7, 2010, which appears to have been handwritten by Martin's attorney, indicating Martin would have visitation with Inez and Jazlyn every other Saturday "in the food court of the Orland Park Mall, by Taco Bell, from 12:00 pm to 4:30 pm." Other than the 2005 judgment order dissolving the marriage, giving Jennifer custody and Martin visitation with Inez and Jazlyn, this 2010 order was the only order regarding visitation. Jennifer did not deny Martin the opportunity to come visit Inez at home and she used to ask him to visit his daughter there, but Martin chose to visit Inez only "[w]hen he feels like it," which was less than once a year, and only for 15 or 20 minutes at a time. However, after the meeting with Northern Trust regarding a revision to Inez's estate plan, Martin indicated he wanted visitation.

         ¶ 14 Inez has a "hospital quality" room on the ground floor of the Orland Park residence, and the kitchen doorway and counter have been modified so that she can spend time with the family in the kitchen. Jennifer's husband, who has not been included in the estate plan, spends time with Inez every day. Inez has a "[t]rue friendship" with her little sisters Samantha, Jessica, and Emma, and also a good relationship with her sister Jazlyn. Jazlyn went away to boarding school for two or three years of high school and was at home again between the ages of 16 and 18, before moving out as an adult. Since she has moved out, Jazlyn still visits Inez and calls to ask about her. Jazlyn is now learning how to take care of Inez.

         ¶ 15 One of Martin's daughters with Claudia, Anaya, has never visited Inez, and Jennifer has never met Anaya. Martin's daughter Gianna and Gianna's mother, Claudia, lived with Jennifer for a couple of months because the women "became friends, and [Jennifer] felt sorry for [Claudia]." Other than staying in the house, Claudia did not have contact with Inez. Jennifer was unsure if she knew Lisa's daughters Analya or Alexia or if they had ever visited Inez. Martin brought Lisa's other children "sporadically," specifically, Alessandra came to visit Inez once or twice, and Fabian came three or four times. Their last visit had been in October 2015, a year before the best interests hearing. Martin's oldest child, Salina, has never met Inez. Yolanda had last visited Inez five years ago, but started calling after Jennifer and Martin met with Northern Trust about revising the estate plan.

         ¶ 16 Neither Martin nor any of these other children have attended any of Inez's school events, such as her graduation from middle school, and Martin has never attended the Individual Education Planning meetings about Inez's schooling. Martin had never taken custody of Inez to provide care for her and never assisted with her physical or occupational therapies.

         ¶ 17 As Inez's mother and the legal guardian of her person, Jennifer recommended that she and her daughters be included in Inez's estate plan because they have maintained relationships with Inez, but that Martin and his children with other women should be left out because they never had relationships with Inez.

         ¶ 18 On cross-examination, Jennifer said she was uncertain about the dates, but that after Inez came home from the hospital, Jennifer and the baby moved back and forth between her mother's house and either Martin's mother's house or an apartment. After Jennifer and Inez moved into the house in Orland Park in 2005, Martin only visited for a couple of nights and never lived there. Those visits stopped 9 or 10 years before the best interests hearing, and Jennifer and Martin's sexual relationship stopped in 2006. The divorce was granted on grounds of irreconcilable differences, not physical cruelty, but there were "a lot" of times when Jennifer had to protect herself from being struck by Martin, and the neighbors, not Jennifer, would call the police. Jennifer pressed charges against Martin once, but the charges were dropped. Inez was first assigned caregivers after she was discharged from a hospital stay when she was almost three years old and had "a trach and G-tube." Martin was "in and out of jail" during this time period and did not assist with Inez's care. Martin helped Jennifer bathe Inez once, when she was still in the hospital after her birth, and he might have changed her diaper once. Inez is not able to make choices. When asked whether Jazlyn and Yolanda had a friendship, Jennifer answered that Martin and Yolanda's mother, Karen, had an agreement that "he was supposed to watch her," so Jennifer babysat Yolanda when the children were little and the family did not have the house in Orland Park. Martin, Yolanda, and his other children would sometimes come visit; Yolanda came for a visit by herself once when Jazlyn was away at school, and her last visit was in 2011.

         ¶ 19 On redirect, Jennifer indicated that she was 5 feet tall and Martin was 6 feet, 2 inches or 6 feet, 3 inches tall; that she was physically afraid of him; and that after Martin was stillborn, she had ...

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