In re Estate of McHenry
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Opinion
2016 IL App (3d) 140913
Opinion filed August 26, 2016 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re ESTATE OF CHASE McHENRY, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, an Alleged Disabled Adult, ) Peoria County, Illinois. ) Respondent ) ) (Laurie McHenry, ) Appeal No. 3-14-0913 ) Circuit No. 13-P-253 Petitioner-Appellee, ) ) v. ) ) Daniel Shayne McHenry, ) The Honorable ) Scott Shore, Cross-Petitioner and Appellant). ) Judge, presiding. ______________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice Schmidt specially concurred in the judgment. ______________________________________________________________________________
OPINION
¶1 Petitioner, Laurie McHenry (Mother), filed a petition under the Probate Act of 1975 (755
ILCS 5/1-1 et seq. (West 2012)) to be named the plenary guardian of the person and estate of her
disabled adult son, Chase McHenry. Chase's father, cross-petitioner Daniel McHenry (Father),
filed a competing petition to be named Chase's guardian. After a bench trial, the trial court
granted Mother's petition and named Mother Chase's sole plenary guardian. Father appeals, arguing that: (1) the trial court erred in naming Mother as Chase's guardian, rather than Father;
(2) the trial court's ruling should be reversed because of an undisclosed judicial bias; and (3) the
trial court erred in initially setting support to be paid by Father at 20% of Father's income. We
affirm the trial court's judgment.
¶2 FACTS
¶3 Mother and Father were married in 1990 and lived in Florida. They had two children,
Kaitlin, born in 1994, and Chase, born in 1995. Mother and Father separated in 1997, and
Mother and the two children moved to Peoria, Illinois, where Mother's family was located.
Father remained in Florida. Shortly after Mother moved to Illinois, it was determined that Chase
had autism. Mother and Father's divorce was finalized in 2001, and the parties entered into a
joint parenting agreement, which gave Mother custody of the children and Father visitation.
¶4 In June 2013, as Chase was approaching the start of his senior year of high school,
Mother filed the instant petition to be appointed the plenary guardian of Chase's person and
estate. The petition alleged that Chase was a disabled person because of his autism and that he
lacked sufficient understanding or capacity to make or communicate responsible decisions
regarding the care of his person and the management of his estate and financial affairs. A
guardian ad litem (GAL) was appointed to represent Chase's interests during the proceedings.
¶5 In October 2013, Father filed a cross-petition for guardianship. 1 In the cross-petition,
Father agreed that Chase was in need of a guardian and that Mother was qualified to serve in that
1 Father's pleading was entitled a petition for appointment of co-guardian. However, by
the time of the bench trial in this case, it was clear that the parties could not serve as co-
guardians and that Father was seeking to be appointed as Chase's sole plenary guardian. To
avoid confusion, we have referred to Father's petition here as a cross-petition for guardianship.
2 capacity. Father asked, however, in Chase's best interest, to be appointed co-guardian so that he
could participate in decisions as to Chase's education, residential placement, and financial assets.
¶6 In November 2013, an agreed order was entered appointing Mother and Father as
temporary co-guardians of Chase. The order also gave Mother and Father time to obtain
neuropsychological evaluations of Chase and to investigate the post-high school options that
were available to Chase in both Florida and Illinois. In addition, Chase was appointed his own
attorney because the GAL had taken a position that was contrary to Chase's wishes.
¶7 At various points in this case, the parties filed their financial affidavits. Father's financial
affidavit indicated that he was 53 years old; that he owned his owned consulting business; that
his gross income was approximately $150,000 a year ($12,500 a month); that his monthly
expenses were approximately $16,527; that his current spouse contributed a minimum of $2,000
a month toward expenses; that he had been paying $1,700 a month in child support until May
2014 when child support allegedly ended; that after May 2014, he had been voluntarily paying
$500 per month in temporary child support; and that he had approximately $500,550 in total
assets and $76,400 in total debts. Mother's financial affidavit, which was later amended,
indicated that she was 53 years old; that she worked as a certified occupational therapy assistant;
that her gross income was approximately $26,124 a year ($2,177 a month); that she had been
receiving $500 a month from Father in child support; that her monthly expenses were
approximately $5,031; and that she had $21,500 in total assets and $13,785 in total debts, a large
portion of which were legal fees.
¶8 A bench trial was held on the guardianship petitions in September and October 2014.
Going into the trial, the parties were in agreement that Chase was a disabled adult, that he was in
need of a guardian, and that appointing Mother and Father as Chase's co-guardians was not a
3 workable solution. The trial court, therefore, was called upon to determine, in Chase's best
interest, which one of the two parents should serve as Chase's guardian—Mother or Father. That
decision would ultimately also determine, in practical effect, whether Chase was going to remain
in Illinois or was going to be required to move to Florida.
¶9 The evidence presented at the trial, although not necessarily in the order presented, can be
summarized as follows. Mother testified that she lived in Peoria and had worked for the past
seven years in the local public schools as a certified occupational therapy assistant. When
Mother and Father separated in 1997, Chase was only about two years old and had not yet been
diagnosed with autism. About midway through the year, however, Mother started to notice that
Chase was not reaching the developmental milestones and that he had some potential
impairment. Mother discussed the matter with the children's pediatrician, Dr. Thomas Halperin,
and was referred to a developmental pediatrician, Dr. Andrew Morgan, for Chase to be
evaluated. Mother informed Father of her concerns, and Father wanted Chase to be evaluated as
well. There was a three month wait time for the appointment with Dr. Morgan. During that time
period, Mother enrolled Chase in an early intervention preschool through Easter Seals and also
started Chase in speech and occupational therapy.
¶ 10 Mother and Father attended Chase's evaluation together. At the conclusion of the
evaluation, Dr. Morgan diagnosed Chase as having pervasive development disorder not
otherwise specified (an autism spectrum disorder) and possible mental retardation. Chase had no
communication skills at the time, had no eye contact or language, and would throw a temper
tantrum because he had no way to express what he wanted or to understand what was going on.
Free access — add to your briefcase to read the full text and ask questions with AI
2016 IL App (3d) 140913
Opinion filed August 26, 2016 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re ESTATE OF CHASE McHENRY, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, an Alleged Disabled Adult, ) Peoria County, Illinois. ) Respondent ) ) (Laurie McHenry, ) Appeal No. 3-14-0913 ) Circuit No. 13-P-253 Petitioner-Appellee, ) ) v. ) ) Daniel Shayne McHenry, ) The Honorable ) Scott Shore, Cross-Petitioner and Appellant). ) Judge, presiding. ______________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice Schmidt specially concurred in the judgment. ______________________________________________________________________________
OPINION
¶1 Petitioner, Laurie McHenry (Mother), filed a petition under the Probate Act of 1975 (755
ILCS 5/1-1 et seq. (West 2012)) to be named the plenary guardian of the person and estate of her
disabled adult son, Chase McHenry. Chase's father, cross-petitioner Daniel McHenry (Father),
filed a competing petition to be named Chase's guardian. After a bench trial, the trial court
granted Mother's petition and named Mother Chase's sole plenary guardian. Father appeals, arguing that: (1) the trial court erred in naming Mother as Chase's guardian, rather than Father;
(2) the trial court's ruling should be reversed because of an undisclosed judicial bias; and (3) the
trial court erred in initially setting support to be paid by Father at 20% of Father's income. We
affirm the trial court's judgment.
¶2 FACTS
¶3 Mother and Father were married in 1990 and lived in Florida. They had two children,
Kaitlin, born in 1994, and Chase, born in 1995. Mother and Father separated in 1997, and
Mother and the two children moved to Peoria, Illinois, where Mother's family was located.
Father remained in Florida. Shortly after Mother moved to Illinois, it was determined that Chase
had autism. Mother and Father's divorce was finalized in 2001, and the parties entered into a
joint parenting agreement, which gave Mother custody of the children and Father visitation.
¶4 In June 2013, as Chase was approaching the start of his senior year of high school,
Mother filed the instant petition to be appointed the plenary guardian of Chase's person and
estate. The petition alleged that Chase was a disabled person because of his autism and that he
lacked sufficient understanding or capacity to make or communicate responsible decisions
regarding the care of his person and the management of his estate and financial affairs. A
guardian ad litem (GAL) was appointed to represent Chase's interests during the proceedings.
¶5 In October 2013, Father filed a cross-petition for guardianship. 1 In the cross-petition,
Father agreed that Chase was in need of a guardian and that Mother was qualified to serve in that
1 Father's pleading was entitled a petition for appointment of co-guardian. However, by
the time of the bench trial in this case, it was clear that the parties could not serve as co-
guardians and that Father was seeking to be appointed as Chase's sole plenary guardian. To
avoid confusion, we have referred to Father's petition here as a cross-petition for guardianship.
2 capacity. Father asked, however, in Chase's best interest, to be appointed co-guardian so that he
could participate in decisions as to Chase's education, residential placement, and financial assets.
¶6 In November 2013, an agreed order was entered appointing Mother and Father as
temporary co-guardians of Chase. The order also gave Mother and Father time to obtain
neuropsychological evaluations of Chase and to investigate the post-high school options that
were available to Chase in both Florida and Illinois. In addition, Chase was appointed his own
attorney because the GAL had taken a position that was contrary to Chase's wishes.
¶7 At various points in this case, the parties filed their financial affidavits. Father's financial
affidavit indicated that he was 53 years old; that he owned his owned consulting business; that
his gross income was approximately $150,000 a year ($12,500 a month); that his monthly
expenses were approximately $16,527; that his current spouse contributed a minimum of $2,000
a month toward expenses; that he had been paying $1,700 a month in child support until May
2014 when child support allegedly ended; that after May 2014, he had been voluntarily paying
$500 per month in temporary child support; and that he had approximately $500,550 in total
assets and $76,400 in total debts. Mother's financial affidavit, which was later amended,
indicated that she was 53 years old; that she worked as a certified occupational therapy assistant;
that her gross income was approximately $26,124 a year ($2,177 a month); that she had been
receiving $500 a month from Father in child support; that her monthly expenses were
approximately $5,031; and that she had $21,500 in total assets and $13,785 in total debts, a large
portion of which were legal fees.
¶8 A bench trial was held on the guardianship petitions in September and October 2014.
Going into the trial, the parties were in agreement that Chase was a disabled adult, that he was in
need of a guardian, and that appointing Mother and Father as Chase's co-guardians was not a
3 workable solution. The trial court, therefore, was called upon to determine, in Chase's best
interest, which one of the two parents should serve as Chase's guardian—Mother or Father. That
decision would ultimately also determine, in practical effect, whether Chase was going to remain
in Illinois or was going to be required to move to Florida.
¶9 The evidence presented at the trial, although not necessarily in the order presented, can be
summarized as follows. Mother testified that she lived in Peoria and had worked for the past
seven years in the local public schools as a certified occupational therapy assistant. When
Mother and Father separated in 1997, Chase was only about two years old and had not yet been
diagnosed with autism. About midway through the year, however, Mother started to notice that
Chase was not reaching the developmental milestones and that he had some potential
impairment. Mother discussed the matter with the children's pediatrician, Dr. Thomas Halperin,
and was referred to a developmental pediatrician, Dr. Andrew Morgan, for Chase to be
evaluated. Mother informed Father of her concerns, and Father wanted Chase to be evaluated as
well. There was a three month wait time for the appointment with Dr. Morgan. During that time
period, Mother enrolled Chase in an early intervention preschool through Easter Seals and also
started Chase in speech and occupational therapy.
¶ 10 Mother and Father attended Chase's evaluation together. At the conclusion of the
evaluation, Dr. Morgan diagnosed Chase as having pervasive development disorder not
otherwise specified (an autism spectrum disorder) and possible mental retardation. Chase had no
communication skills at the time, had no eye contact or language, and would throw a temper
tantrum because he had no way to express what he wanted or to understand what was going on.
After the diagnosis, Mother began to research Chase's condition by reading books and other
materials; attending seminars; attending Chase's speech and occupational therapy sessions; and
4 by talking to other parents, speech pathologists, occupational therapists, and anyone else who
would talk to her about Chase's condition. According to Mother, since the day that Chase was
diagnosed, she made it her mission to educate herself about Chase's condition and about what
could be done so that she could help Chase grow and be as independent as possible.
¶ 11 Mother later arranged for Chase to be evaluated in Maryland by Dr. Stanley Greenspan, a
world-renown specialist on developmental disorders. After the evaluation, Dr. Greenspan also
concluded that Chase was on the autism spectrum. Dr. Greenspan recommended that Mother be
very hands on in interacting with Chase and in getting Chase to make eye contact.
¶ 12 Early on, through her research, Mother came to believe that Chase was having seizures.
Mother addressed that concern with Dr. Morgan and was told that seizures were very rare in
children with autism. Mother persisted in her efforts and, on her own, found a pediatric
neurologist in Illinois, Dr. Michael Chez, who specialized in autistic pervasive developmental
disorders and epilepsy. After conducting tests, Dr. Chez confirmed that Chase was, in fact,
having seizures. Father did not attend the initial testing with Dr. Chez and, as far as Mother
knew, never contacted Dr. Chez about his findings. Father did, however, attend one of Chase's
later monitoring visits with Dr. Chez. Pursuant to Dr. Chez's recommendation, Chase was
started on a daily seizure medication. The results were dramatic. Within the first week, Chase
started making eye contact, getting language, and sleeping through the night. Eventually, the
seizures went away completely, and Chase was weaned off of the seizure medication.
¶ 13 When Chase turned three, he transitioned from the Easter Seals early intervention
preschool program to the local public school's special education early childhood program. Chase
was in the early childhood program for three years until he was six years old. While Chase was
in the early childhood program, Mother advocated for Chase to have a one-on-one aide, but the
5 school district did not have such a person. Chase's teacher filled out a form of all of the duties
that an aide would perform for Chase, and Mother called Easter Seals to find out if they had a
student or anyone else that really stood out as a volunteer. Easter Seals recommended a person,
and Mother and Chase's teacher interviewed that person together. That person got hired by the
school district as Chase's one-on-one aide and was paid for by the district.
¶ 14 Mother had started an Applied Behavior Analysis (ABA) program by that point, and she
asked the student if she was interested in working at home with Chase. The student stated that
she was. Mother trained that student, and then that student recruited other students. The
students would fill out an application, and Mother would hire those students to work in her home
with Chase. The students were paid for their work through the Department of Human Services
(DHS) because Chase qualified for funding since his skill level was so low due to his disability.
Mother felt that additional home training was important for Chase because Chase had no skills
and, for a long time, had no language. He was very behind in academics, had major behavioral
issues, and would have meltdowns and would bang his head on the floor, throw himself into the
wall, roll around, kick, and scream. Chase would also perseverate on things and would lie down
on the ground and kick and scream if he could not get what he wanted. Those issues were what
led Mother to implement the ABA program at home.
¶ 15 The second year that Chase was in the special education program, Mother requested that
he be allowed to spend a portion of the day in the regular division preschool with his typically-
developing peers. Mother's request was granted, and everyday Chase would take his aide and go
to the regular division classroom for a brief period. Mother thought it was important for Chase
to do so because he needed to learn language and social skills from the typically-developing
children. Father was not involved in any way in advocating for, or obtaining, the one-one-one
6 aide for Chase at school; in having an aide work with Chase at home; or in obtaining the funding
for the in-home aide. According to Mother, although Father never objected to those things, he
never dug in and helped with any of those things either.
¶ 16 In 2003, when Chase was six years old, he entered kindergarten. When he did so, the
school district wanted to put Chase in a special education classroom, instead of a regular division
classroom. After researching the matter, Mother objected. Mother wanted Chase in a regular
division classroom to see if it was appropriate for him and because it would be much easier to
transition Chase from a regular division classroom to a special education classroom, if that was
necessary, rather than the other way around. As a result of Mother's efforts, Chase was placed
into regular division classes throughout grade school and was only pulled out of those classes by
the special education teachers from time to time to work on his major areas of deficit.
¶ 17 Around the time when Chase entered kindergarten, Mother went back to school to obtain
an associate's degree in occupational therapy. Mother chose occupational therapy because she
was interested in that area and because she needed a schedule that would match Chase's school
schedule since there was no appropriate after-school care for Chase. Mother obtained her
associate's degree and started working at the local schools in 2008.
¶ 18 As noted above, the behavior program that Mother decided to implement at home was the
ABA program. The ABA program focused on changing a child's behavior in a very positive
manner. In the program, everything was broken down into very simple steps for children who
were on the autism spectrum. As Chase got a little older, Mother did other things as well to help
Chase participate in class. For example, Chase did not know that he was supposed to raise his
hand if the teacher asked a question and he knew the answer. Mother and her students, therefore,
set up a pretend classroom in Mother's basement and would play school. A student would
7 pretend that he or she was the teacher, and Mother would sit behind Chase. When the student
asked a question, Mother would prompt Chase to raise his hand if he knew the answer.
¶ 19 As a result of Mother's efforts, by the time that Chase entered kindergarten, he was able
to sit at a table and be attentive to the teacher for a very short period of time. Mother wanted to
educate the school on what she was doing at home with Chase (the ABA program), why she was
doing it, and why she thought it would help for the school to carry that over into kindergarten
and grade school. Mother provided the school with citations to research that had been done on
the ABA program so that the school could see that the program had been successful. Mother
also provided the school with a list of what she expected from the school and a biography about
Chase that she had written so that the school would know as much as possible about Chase, his
disability, and about the things that would set him off and cause tantrums. Mother and Chase's
aide also put together a list of helpful information for Chase's teacher. In addition, Mother
provided Chase's teacher with a notebook for helpful hints—things that the teacher found worked
and did not work. That notebook was passed along each year to Chase's new teacher. Mother
also went into the classroom and educated the other students about Chase and his disability, so
that the other students had a better understanding of Chase and were more likely to accept him.
¶ 20 Early on in middle school, Chase took some of his courses in special education and some
in regular division. However, as the class work became more difficult, Chase's lack of reading
comprehension became more of a problem. Mother went to the school and successfully
advocated for Chase to be placed in more special education classes because she felt that he
needed more support to be able to do the class work. At a later conference, the special education
teacher told Mother that although she did not agree with Mother initially, Mother was right, and
Chase was now producing his own work. By the time Chase was in high school, most of his
8 classes were in special education. The only high school classes that he did not take in special
education were lunch, physical education, health, and his freshman and sophomore algebra class.
¶ 21 Chase had an Individualized Education Plan (IEP) starting from when he was in the early
childhood program up until the time he graduated from high school. Mother was involved in
every IEP conference without exception. Mother called other conferences with the school as
well when she wanted to address particular matters with them. Father attended the IEP
conference when Chase was being transitioned into kindergarten. The next IEP conference that
Father attended was when Chase was a freshman in high school. According to Mother, at the
IEP conferences in high school, Father's main focus was on Chase going to college.
¶ 22 At Richwoods High School, where Chase attended, there were specific programs offered
to help Chase transition to life beyond high school. One such program was the Secondary
Transition Education Program (STEP). Chase was enrolled in STEP in 2011, his sophomore
year. In that program, Chase worked with Kurt Mankle (the school's work coordinator) and
Leigh Bowen (the transition coordinator between the school district and the DHS). Through
STEP, Chase obtained work experience, attended work skills classes, and received job-related
information. As part of his work experience, Chase worked as a volunteer in the school
cafeteria, in the school library, and in the local public library.
¶ 23 Chase started working as a volunteer in the local public library in January 2014 during
his senior year of high school. Mother had essentially created that position for Chase by going in
and talking to the library manager. Chase's job responsibilities at the public library were to
alphabetize and shelve books. According to Mother, it was a successful placement in that Chase
did an excellent job alphabetizing and shelving and was very polite, but it was unsuccessful in
9 that when patrons came up and asked Chase questions, he could not direct them, even though he
had been instructed to send them to the information desk.
¶ 24 Mr. Mankle later found Chase a job at Courtyard Estates, where Mankle had other
students working. Chase started at Courtyard Estates in April 2014. Chase's job responsibilities
at Courtyard Estates were to take the residents' requests for food and drinks; to fill those
requests; to clean the tables after the residents were finished eating; to sweep, mop, and change
the trash; to fill the condiments; and to roll silverware into napkins in preparation for the next
meal time. Chase did not have any problem with the communication aspects of the job. On
average, Chase worked at Courtyard Estates four evenings a week for three hours each evening.
Chase enjoyed his job at Courtyard Estates. The residents and other staff members really liked
him and were very supportive. Chase was not currently receiving any ongoing job coaching or
job support services but did receive some job coaching during his first week on the job. The job
coach wrote down everything for Chase, and Chase and Mother went over the list each night so
that Chase would know what his responsibilities were.
¶ 25 Some of the skills that Mother had worked on with Chase over the years, other than
academics, included: sorting and putting away his laundry, making simple meals in the
microwave, making his own pitcher of lemonade, using the toaster, taking out the trash,
emptying the dishwasher, setting the table, dusting, taking the city bus to and from work (the city
bus had a door-to-door service for disabled adults), and locking the door when he left for work.
To introduce a new skill to Chase, Mother would break it down into steps, write the steps down,
and then practice the steps with Chase. Mother was currently teaching Chase how to use the
washing machine, how to do some basic banking functions, and how to use a list to get groceries.
10 ¶ 26 With regard to Chase's social development, Mother stated Chase had some friends
through school, but it was difficult for him. Chase's one-one-one aide specifically worked on
social skills with him at school during physical education class and recess. The speech
pathologist worked on those skills with Chase as well. When Chase was younger, he went to
birthday parties, took Jazzercise, and went to Sunday school and church. As he got older, he
participated in some of the junior high programs where there were a lot of kids involved. When
Chase was in high school, he was involved in the Friendship Club, went to basketball games, and
would watch his sister swim. Currently, Chase liked to bowl, roller skate, exercise, shoot
baskets, read, watch movies, do word search puzzles, collect books, go to the library, visit other
libraries, look at maps, have Mother drive him around and find out where streets went, play
Bingo, and participate in activities through the Heart of Illinois Special Recreation Association
(HISRA). HISRA provided recreational activities for children and young adults with disabilities.
Whenever Mother got the new HISRA catalog, she and Chase would sit down and go through it,
and Chase would pick out some activities that he wanted to do. HISRA also had a program
called "Focus," which worked on social skills, life skills, and other things. Chase could attend
the Focus program anywhere from one to four days a week from 9 a.m. to 3 p.m. each day.
¶ 27 According to Mother, at the time that Chase was diagnosed, there were not a lot of
services in central Illinois for children with autism spectrum disorders or for their parents.
Mother helped start a support and advocacy group and learned how to write grants to support the
activities of the group. The group pushed for services in the area and was successful in doing so.
In addition, with the funds that were raised, the group held conferences and brought in experts to
speak and to consult with the schools about the services that were being provided. Mother had
attended, or her group had hosted, conferences on autism in 1998, 1999, 2005, and 2010.
11 ¶ 28 When asked about whether she had a transition plan for Chase, Mother responded that
she had been living the transition plan—she had consulted doctors; had consultants come into the
school; had educated herself; and that everything she had done and every decision she had made,
had been to promote Chase's independence. According to Mother, promoting Chase's
independence was the reason why Chase had taken the classes he had taken; was why Chase had
been in speech and occupational therapy; was why Chase had been in the work-training program;
and was why Mother had enrolled Chase on the Prioritization of Urgency of Need for Services
(PUNS) list, the State's waiting list for services. Mother gave a similar response when she was
asked why she believed it was in Chase's best interest for her to be Chase's guardian.
¶ 29 Mother stated further that she had printed a transition toolkit off of an autism website a
few weeks ago and was going through it and had realized that she had essentially done all of the
steps that were listed. A copy of the transition toolkit was admitted into evidence at the trial.
The toolkit was divided into sections. Each section pertained to a particular topic area that
parents were supposed to consider as they were preparing to transition their child from high
school to adulthood. Mother went through each section of the toolkit during her testimony and
described what she had done in relation to that particular topic area.
¶ 30 Starting with the first section, self advocacy, Mother stated that she believed that Chase
needed to be part of the process and that his thoughts and desires needed to be taken into
consideration. According to Mother, she started teaching self advocacy to Chase early on in her
ABA program when she taught him how to raise his hand in the classroom. They also worked
on self advocacy a lot at school for Chase to be able to advocate for himself and to say what his
needs, desires, and wants were and if he needed help.
12 ¶ 31 Section two of the toolkit addressed community living. In her discussion of that section,
Mother described how Chase had been successful in riding the city bus to and from work,
although he still did not have the skills or capacity to be able solve any problems that arose with
the bus. As for safety under community living, Mother stated that from the time that Chase was
very young, she had been working with him on such skills as knowing his name, address, and
phone number in case he ever got lost; identifying strangers; identifying community members
who could offer assistance; knowing how to use a cell phone; and other things of that nature.
Mother filled out a chart that showed Chase's community life, social activities, and resources,
such as the HISRA and Focus activities. Chase had to wait until the past August, when he turned
19, to participate in some of those activities. Chase had selected some of the programs that he
wanted to participate in and was registered for those programs. Another activity that Chase was
involved in was the Antioch Group, a weekly interpersonal effectiveness peer group that was
specifically tailored for young men who had some form of pervasive developmental disorder.
¶ 32 Section three of the transition toolkit addressed employment and other options.
According to Mother, she had started working on that aspect of the transition plan in Chase's
sophomore year of high school when Chase entered STEP and started taking occupational-type
classes. Mother had investigated supported employment and adult day training but believed that
Chase's level of functioning was too high for those particular programs. Mother stated that the
goal for a disabled person was for the person to be in a competitive employment setting with
nondisabled peers and natural supports in place.
¶ 33 Section four of the toolkit addressed housing. Mother stated that from the time of
Chase's diagnosis, she had thought about the fact that at some point, she might not be here and
Chase might need alternative housing arrangements. Chase's high school had held a meeting for
13 parents of disabled children and had gone through the entire process of how to fill out the PUNS
application form because the form could be very confusing. After the form was filled out, it was
updated every year. Mother submitted Chase's application for the PUNS list in 2011.
¶ 34 As Mother's testimony on housing continued, she discussed the questions that she would
ask if the time came for her to consider alternative housing arrangements for Chase. Mother
would want to make sure that Chase would be happy, so she would consider such things as the
staff turnover rate and the staff-to-resident ratio. According to Mother, those things were
important because a young adult with autism thrived on structure, routine, and sameness.
Mother stated that she did not think she needed a professional to advise her in that process but
commented that she knew she had Ms. Bowen, the transition specialist, to guide her and to
whom she could turn with questions. Mother also knew that if Chase's name got picked from the
PUNS list, the facility that would be doing the screening had been trained to look at what Chase's
adult skills were at that point and to determine what type of residential setting would be best.
Mother had listed in the toolkit all of the people that she had talked to at different agencies and
the notes she had taken. Mother insisted that the notion of Chase living outside the home was
not something that she had just started thinking about when Father entered this lawsuit. Rather,
Mother had been thinking about the matter from the day that Chase was diagnosed.
¶ 35 When asked why she put Chase on the PUNS list instead of considering private pay,
Mother stated that the cost of the residential facilities was between $55,000 and $75,000 per
year, and she could not afford to pay that amount. Mother would have to rely, therefore, either
on Father being ordered to private pay for Chase or on funding through the Medicaid waiver
program. Mother did not know at that point whether independent or semi-independent apartment
living would be an option for Chase and stated that it would probably be more of a group home
14 setting where there was 24-hour supervision. Mother did not believe that Chase needed someone
hovering over him 24 hours a day but did believe that he needed to have someone available
wherever he was living in case there was a problem. Mother thought that in the future a semi-
independent living apartment could be a possibility for Chase as they continued to work on his
independent living skills but did not think that it was currently a possibility for him.
¶ 36 Section five of the toolkit discussed legal matters, such as obtaining supplemental
security income (SSI) or social security disability insurance (SSDI) benefits. Mother stated that
she had talked to the workers at the Social Security Administration (SSA) several times about the
possibility of getting such benefits for Chase. Her application for SSDI benefits had been
denied, but she was still waiting for a decision from the SSA on her application for SSI benefits
for Chase. If Chase received SSI, he would also be eligible for a Medicaid card through the
State. Currently, Chase's medical expenses were being paid through Mother's health insurance.
¶ 37 As her testimony progressed, Mother briefly described the remaining sections of the
transition toolkit. Mother stated that the whole exhibit was a summary of what she had done in
terms of transition planning, along with the workshops she had attended, the books she had read,
the consultants she had brought into the school with her support group, and the speech and
occupational therapy services Chase had received. In Mother's opinion, all of those things were
part of the transition plan because they helped Chase reach his current level of independence.
¶ 38 When Mother and Father got divorced, child support for the two children was set at
$1,600 per month. In 2010 or 2011, Mother took Father back to court to get an increase in that
amount. The amount was increased by about $600 to about $2,285 per month. Father was pretty
upset with Mother for going back to court and asking for more child support. According to
Mother, she had asked Father twice to increase the amount of support voluntarily by $200 a
15 month, but Father apparently refused. That was the first time since they had gotten divorced that
Mother had asked for an increase in child support. When Kaitlin turned 18, the amount of
support was reduced to $1,700 per month.
¶ 39 As for her criticisms of Father, Mother claimed that: (1) there were times when Father
was with Chase when he was not particularly aware that Chase was ill; (2) the most amount of
visitation time that Father had ever taken with the children in the summer was two weeks, even
though Father was allowed six weeks of summer visitation under the joint parenting agreement;
(3) Father generally only called to talk to Chase about once every six to eight weeks but had
started calling twice a week since Mother had been made temporary sole guardian in this case;
and (4) Father had gone to only one of Chase's visits with Dr. Chez, although there were
scheduling problems for Father with those visits.
¶ 40 During her testimony, Mother conceded or acknowledged that: (1) from her financial
affidavit, it appeared that there was about a $3,000 shortfall between her income and expenses
each month; (2) she could not say how much her household expenses would change if Chase was
allowed to go to Florida or went into a group home; (3) if Chase stayed with her, she was going
to need financial support from Father to help with Chase's expenses; (4) she had not visited any
group homes in the Peoria area in the past 10 years; (5) she was invited to come to Florida during
spring break to examine some of the resources there and to look at some of the facilities that
Father was going to be talking about, but she declined to do so; (6) she was aware that Dr.
Halperin had also testified or recommended as a possibility that Chase would be better off in a
group home; (7) she had told Dr. Robyn Cohen (father's expert witness) that she was not
comfortable filling out a parent questionnaire until it had been reviewed by her attorney and that
based upon her attorney's advice, she was not going to be participating in the evaluation process;
16 (8) she had talked to Chase about the differences between what she wanted for him and what
Father wanted for him; (9) she had told Chase before the appointment with Dr. Kurth that part of
the evaluation was to determine whether college was appropriate for him and was not surprised,
therefore, that he perseverated with Dr. Kurth about having to go to Florida and about having to
go to college; (10) in her deposition, she had estimated it would take Chase two to five years of
living at home before she would even consider putting Chase in a group home; (11) she had
probably told the GAL that she had no plans at the current time to move Chase out of the house;
(12) if she was made guardian, it would be within her discretion to keep Chase at home
indefinitely and to receive state services at home; (13) even if Chase's name had been picked
from the PUNS list and that he had cleared all of the screenings, she would still visit the homes
in question and would determine whether she thought those homes were appropriate for Chase;
(14) she worked from 7 a.m. to 3 p.m. five days a week during the school year, and Chase
worked roughly 3 p.m. to 7 p.m. three or four days a week; (15) she lived in a duplex, her parents
lived in the adjoining unit, and there was a pass-through door that went between the two units;
(16) her father bought items from people to sell on eBay and was robbed at one point at the
duplex by two women and a man with a shotgun; (17) at one point many years ago, one of her
nephews was arrested for having 1.4 pounds of cannabis in his car at a time when the nephew
was living with Mother's parents in the adjoining unit next door; and (18) she did not tell Father
about either the robbery or the drug arrest.
¶ 41 Regarding a note that Chase had presented to Dr. Kurth about why he wanted to stay with
Mother in Peoria, Mother stated that she was not standing next to Chase when he wrote the note,
but she had read the note after Chase had written it. Mother had talked to Chase afterwards and
had told him that she thought Father understood that a four-year college (something that Chase
17 had mentioned in the note) was not a possibility. Mother had also explained to Chase that
although he had said in the note that he wanted to live with Mother and his sister, that was
probably not going to happen because his sister was probably going to get married after college.
¶ 42 When asked what assurances she could give the court that she would agree at some point
to let Chase move out of the house and into a group home or assisted living facility, Mother
stated that getting Chase independent as possible had been the whole purpose of everything that
she had done and that if Chase was ready for that step, she would do it. When the time came, in
five to seven years, Mother would consult with, and obtain guidance from, the Community
Workshop Training Center. In the meantime, according to Mother, Chase was going to stay in
her home and Mother was going to continue training Chase on life skills. Chase would also be
working on those skills in the Focus program.
¶ 43 Mother agreed that she and Father had been completely unable to work with each other
on the day-to-day details involving Chase, even with the help of outside assistance. Mother felt
that Father would not be an appropriate guardian for Chase because Father was unrealistic in his
expectations of Chase. Mother did not believe that Father would be physically there for Chase
because Father traveled 26 out of 52 weeks of the year. Father and his family took many trips
per year and Mother did not know how Chase would maintain any type of employment under
those circumstances. Mother also did not believe that Father took Chase's needs and desires into
consideration when he was making any of his plans for Chase.
¶ 44 Julia Smith testified for Mother that she was the director at Courtyard Estates in Peoria, a
supportive living community that provided residential services to people over the age of 65.
Chase was employed at Courtyard Estates as a dining room attendant and was doing well in that
position. Chase was very polite and well-mannered and stayed on task. Chase worked on
18 average three hours a day, five days a week. He did not qualify for paid time off because he did
not work the required number of hours. Unpaid time off was at the discretion of Smith.
According to Smith, there was currently no possibility that Chase could obtain full time
employment at Courtyard Estates because he was unable to meet the requirements. For a full
time position, Chase would have to pass a cardiopulmonary resuscitation test, which both his
caseworker and supervisor did not feel that he would be able to comprehend.
¶ 45 Kurt Mankle testified for Mother that he was employed at Richwoods High School as the
work coordinator for special education. In that position, Mankle worked with special education
students on work compatibility and job skills. Mankle had about 60 students per year. Mankle's
goal for each student was first, to get the student some work experience; second, to get the
student hired by an employer; and third, to keep the student competitively paid after graduation.
¶ 46 Mankle had Chase as a student for three years from Chase's sophomore year through his
senior year. Mankle started Chase out by placing him in a voluntary employment position at the
high school cafeteria, wiping down tables, so that he could get some work experience. That
position was not a competitive employment position, and Chase had his aide with him while he
was at work. Chase worked in that position for the first two years. While Chase was in his
senior year of high school, Mankle placed him in another voluntary employment position in the
high school library, shelving books. After that position, Chase was placed in a third voluntary
position at the local public library, shelving books and alphabetizing things. Mother had found
that position for Chase and had provided the information to Mankle. Chase worked at the public
library for about half of his senior year and did so with the aid of a job coach (an adult who went
into the workplace with the student and helped keep the student focused and on task). Chase's
position at the public library was not a competitive pay position and was paid through STEP.
19 The placement was successful for Chase in terms of obtaining work experience but was
unsuccessful in terms of a competitive pay situation. The public library was not going to hire
Chase into a competitive pay position because he was unable to handle patron questions.
¶ 47 In addition to participating in the voluntary work positions, Chase also took a work skills
class while he was in school. Mankle had talked to Chase at times about what Chase wanted to
do in the future. According to Mankle, Chase's response would depend upon what he was doing
at the time. If Chase was working in the library, he wanted to be a librarian. If Chase was
working in the cafeteria, he wanted to be a custodian. In Mankle's opinion, Chase needed a
repetitive job where he would come in and know exactly what to do, something with no variables
where Chase did not have to initiate new tasks.
¶ 48 In the second semester of his senior year, Chase started working at Courtyard Estates.
Mankle had other students that worked at that location and was able to obtain a position there for
Chase. Chase cleaned tables and assisted residents in carrying food to their tables. Chase's
position at Courtyard Estates was a competitive employment position where he was working
with nondisabled individuals. According to Mankle, Chase did very well in the job switch from
the public library to Courtyard Estates. Chase initially had a job coach at Courtyard Estates but
was weaned off the job coach once the employer said that he was doing well.
¶ 49 In Mankle's opinion, Chase was capable of working in a competitive setting as long as
there were specific parameters. With the limitations that Chase had, jobs were difficult to find in
the Peoria area. It was hard to find competitive placement for a disabled student because many
of the jobs that were available required multitasking, which some students with disabilities could
not do. If Chase was unable to work at Courtyard Estates for some reason, transition specialist
20 Leigh Bowen would help Chase find another job. Bowen worked on the cases of students who
had graduated, and Mankle worked on the cases of students who were still in school.
¶ 50 Mankle stated that he had various contact with Mother over the years at IEP meetings,
parent-teacher meetings, numerous calls on how Chase was doing, and forms that Mankle would
send home. To the best of Mankle's memory, Mother had attended every IEP meeting and every
parent-teacher meeting, both of which were held once a year. Mankle also had some contact
with Father over the past few years as well. When Chase was working at Courtyard Estates,
Father had contacted Mankle by email to request the address of Chase's employer and the name
of Chase's supervisor. Father had also asked Mankle at one point to provide some materials to a
neuropsychologist in Florida. As far as Mankle could remember, Father had been present for
one parent-teacher meeting and one or two IEP meetings. Father did not, however, play any role
in terms of the process that Mankle was engaged in with trying to find employment for Chase.
¶ 51 Juli Cranwill testified for Mother that she taught English as a special education teacher at
the Peoria public schools. Cranwill had Chase as a student for all four years of high school.
Chase had a one-on-one aide and was in some regular division classes and some special
education classes. In addition to being Chase's teacher, Cranwill was also Chase's manager and
wrote Chase's IEPs for 2011, 2012, and 2013.
¶ 52 An IEP was prepared every year for each special education student and set forth, among
other things, the student's education goals for the following school year. The IEPs were prepared
starting when the student was about 14 years old. That was when the teachers and everyone else
involved in the IEP process started to discuss with the student what the student's future path
would be, whether it would be a vocational path or an educational path. As part of the process,
Cranwill would interview the student, prepare learning objectives, and write up the IEP. A
21 meeting would then be held with all of those involved and they would talk about the IEP as a
team and make adjustments.
¶ 53 Part of the IEP was transition planning for beyond high school. Starting with the 2011
IEP, Chase's desire for the future was to work at a library or at Peoria Production (a packaging
facility). Chase did not want to go to college because he felt it would be too stressful. Cranwill
believed that Chase's goals for after high school were realistic and that he understood what it
meant to go to college and to have a job. In Cranwill's opinion, the fact that Chase had autism
did not take away from Chase's ability to critically look at his life and to say what he did or did
not want and what he was good and not good at. In addition, Chase was amenable to being
taught new things, and Cranwill thought that Chase could be trained to do some computer work.
¶ 54 Cranwill had contact with Mother several times over the years at IEP meetings, parent-
teacher conferences, and some phone conferences. Mother attended every IEP meeting and
every parent-teacher conference. Mother would also contact Cranwill regarding questions or
problems with things that were going on in class. Cranwill also had some contact with Father
over the years as well. Father was present, either by phone or in person, for all of Chase's high
school IEP conferences. Cranwill remembered in general that Father wanted to keep the doors
open for Chase but could not remember any specific discussions that were had. In addition, in
the spring of Chase's senior year, Cranwill attended a meeting at the school that had been
requested by Father. Mother was not present for that meeting. At the meeting, Father asked
some questions about the vocational program going forward, about Chase's future, and about
programming for Chase after graduation. Father also contacted Cranwill a few times by email.
The emails did not, however, stand out in Cranwill's mind as being anything noteworthy.
22 According to Cranwill, Chase appeared to have a good time with Father over the spring break
during his senior year and showed her pictures of the things that he and Father had done together.
¶ 55 Leigh Bowen testified for Mother that she had been employed for the past 24 years by the
public school district as a transition specialist. Bowen helped oversee STEP in the school district
for the DRS and worked with disabled high school students in conjunction with the school's
work coordinator, Kurt Mankle. Bowen provided job counseling and support services for the
high school students who were in STEP and would help those students find, and be successful in,
a job. Each year, Bowen had about 120 students and graduates who were on her caseload.
¶ 56 Chase was in STEP and was one of the students or former students who was currently on
Bowen's caseload. Bowen had worked with Chase in his current placement at Courtyard Estates
and in his previous placements at the high school cafeteria and at the public library. In 2013,
Bowen prepared Chase's first individualized plan for employment (IPE), which served as a
guideline as to what services Bowen would provide to Chase, such as job counseling and
guidance, referrals to community resources, and job training. Chase would hopefully use those
services to become, and stay, employed. In the current IPE, the employment goal for Chase was
to be a nonrestaurant food server, such as in a nursing home. Although Bowen could close
Chase's case after 90 days, she was most likely going to keep it open until Chase's plan was up
for renewal in April 2015. The only benefit to Bowen of doing so was that she would be able to
see Chase succeed. If a problem arose, Bowen could renew Chase's case and could continue
providing services for a longer period.
¶ 57 According to Bowen, Chase was doing well in his placement at Courtyard Estates and
there had not been any problems. Chase liked his job and was not bored in that position. Bowen
viewed the job at Courtyard Estates as a good fit for Chase because Chase had a very supportive
23 work environment; was not required to multitask or to make decisions on the job; and could go
to work, do his job, and then go home, which was what worked best for Chase. The employment
at Courtyard Estates was considered to be competitive employment because Chase was paid by
the employer. That was the ideal goal for a person with a disability.
¶ 58 If Chase was to lose his job at Courtyard Estates for some reason, Bowen would help
Chase fill out job applications and would work with another agency to get Chase services to help
with job placement and coaching. Bowen believed that there would be another job out there for
Chase but that it might be difficult to find. In Bowen's opinion, it was a little harder in the
central Illinois area to find a job for someone like Chase because Chase was very concrete in his
thinking and had a specific skill set. He was not able to do a lot of multitasking, which many of
the available jobs now required. Other students with similar skill sets had been placed at
Courtyard Estates and at hotels. Chase was not a candidate for an adult day training program or
for sheltered employment because he was too high in functioning for those types of positions.
When asked if she thought Chase was possibly too high in functioning for his job at Courtyard
Estates, Bowen replied that she thought what Chase was doing at Courtyard Estates was a
"perfect fit" for him at that point. Although the State's goal for disabled adults was for them to
be placed into some type of full-time employment (40 hours per week), Bowen rarely saw that
happen with the students with whom she worked.
¶ 59 According to Bowen, Chase had shown the ability to adapt by being able to move from
the public library position to the position at Courtyard Estates without any significant incident.
Chase could be taught new tasks and was generally agreeable to learning new tasks if they were
presented and taught in the right way. Bowen had never evaluated Chase's computer skills but
knew that Chase did well in math. Bowen believed that Chase could possibly do a job where he
24 worked in a quiet office environment and entered numerical data from a piece of paper into a
chart on a computer if he was properly taught how to do so.
¶ 60 Unless Chase complained, lost his job, or was otherwise unhappy in his position, his
employment and skills would essentially remain the same. If an opportunity arose for a job that
was higher pay or more hours and Chase was interested in it, he could fill out an application and
would hopefully get an interview. Mother, nor anyone else, had requested that Chase be
evaluated for working at other jobs or that he receive additional vocational training.
¶ 61 Bowen had started working with Chase in July 2012 and had various contact with Mother
over the years. Initially, Bowen would see Mother at IEP meetings. However, as Chase got
closer to graduation, Bowen had more contact with Mother, talking to her about different options
for Chase's employment, because Chase was not competitively employed until right before
graduation. According to Bowen, Mother had been very involved in working with her. Bowen
also had some contact with Father over the years as well. Bowen had attended a meeting last
spring at Richwoods High School where Father was present. The purpose of the meeting was for
Father to find out more information about the post-graduation possibilities for Chase regarding
housing, education, and work. Father was interested in Chase going to college. The response of
Bowen and the others at the meeting was that college was probably not the best fit for Chase.
Bowen did believe, however, that Chase was a good fit for vocational placement. Since Chase
had been working at Courtyard Estates, Father had not contacted Bowen at all to object to that
placement, to express any negative concerns about the job, or to indicate that he believed that
Chase was not reaching his full potential in that position.
¶ 62 Martha Atwater testified for Mother that she was one of Chase's special education
inclusion teachers for kindergarten through third grade. Chase was in regular division classes at
25 that time as an inclusion student with special education—that meant that Chase was in special
education, that he had an IEP, and that the special education teachers designed a program for
him, but he was still in a regular division classroom. Chase had a one-on-one aide and would
come out of class for special assistance when needed.
¶ 63 While Atwater was Chase's special education teacher, she was never contacted by Father
for any issues regarding Chase. Atwater had a lot of contact, however, with Mother. When
Chase was in kindergarten, for example, Atwater was in daily or weekly contact with Mother for
a while. In addition, before each IEP meeting, Mother would meet with Atwater and would talk
to Atwater about Chase's current level of progress and about what Mother wanted to see happen
regarding Chase's future progress. Mother would also call Atwater with questions about the IEP
or about how things were going with Chase. In Atwater's opinion, Mother's relationship with
Chase and her contact with the school were always very positive. Mother always knew the latest
information on autism and what was going on at the school and was Chase's biggest advocate as
to what she felt could be done for Chase.
¶ 64 Over the years, Atwater had seen Chase from time to time at different places in the
community. At one point within the past two years, Atwater had seen Chase at a local restaurant
with Father. Atwater observed Chase and Father for about 40 minutes. According to Atwater,
during that entire time period, Father was on an electronic device and did not interact with Chase
at all. That was the only time that Atwater had ever seen Chase and Father together.
¶ 65 Lisa Humke testified for Mother that she had been employed for the past 19 years by
Central Illinois Service Access (CISA). CISA had a contract with the DHS whereby CISA
would facilitate the placement of intellectually disabled persons into services within a nine-
county area in central Illinois. CISA would assist disabled persons in signing up for the PUNS
26 list and would conduct preadmission eligibility screenings of those individuals in the area whose
names were selected from the list. If a person was found to be eligible, CISA would help place
that person into residential or vocational services. Humke was an individual service coordinator
for CISA. Her specific job function was to screen individuals for eligibility standards and to
facilitate getting them into services. A preadmission screening would basically explore the
individual's diagnosis, how the individual met the state criteria, and what the individual's deficits
were. Humke completed about 30 preadmission screenings per year.
¶ 66 According to Humke, when people talked about services for disabled persons, they were
usually referring to the Medicaid waiver program, a system of state and federal funding that was
used to provide residential and vocational programs and services to specialized populations. A
person with autism was potentially eligible for services through the Medicaid waiver program if
he or she was classified as a developmentally disabled person. The determination as to whether
a particular individual met the eligibility criteria would be made when a preadmission screening
was completed after the individual's name was picked from the PUNS list.
¶ 67 There were many different types of residential settings that were available under the
Medicaid waiver program, such as an individual apartment, a group home, a community living
facility, and an immediate care facility. In addition, a disabled adult could live at home with
other family members and be provided with an allotment of funds that could be used to purchase
desired services. Most service provider agencies were based on Medicaid waiver funding, but an
individual could choose to private pay instead. For an eight bed group home, the Medicaid
waiver rate would typically range from $50,000 to $80,000 per year.
¶ 68 If an individual was found eligible for the Medicaid waiver program and accepted into a
particular facility, he would typically have to pay over the majority of any SSI or SSDI that he
27 received to the service provider to help offset the cost of his care. The individual would
generally get to keep only a small percentage of his SSI or SSDI for his own personal needs.
The only residential setting that was exempt from that rule was the home-based setting. In that
setting, the individual's SSI or SSDI was still considered to be part of the family income and did
not have to be turned over.
¶ 69 The PUNS list was the waiting list that Illinois enacted to be the mechanism for how an
individual got into Medicaid waiver program services. An exception to the PUNS list could be
made in the case of an emergency or a crisis. In 2008, there were 20,000 people statewide on the
PUNS list. That was the last time that the number of people on the PUNS list was released.
Humke believed that the number had gone down since that time because, as a result of a lawsuit,
the state was required to pick 500 people off of the PUNS list each year. Selection from the
PUNS list, however, was random and was not a guarantee of eligibility for Medicaid waiver
services. Rather, selection was considered to be an invitation to the individual to apply for
services. At that point, a preadmission screening would be done to insure eligibility and to
facilitate connecting the person with a service provider. If a person did not want Medicaid
waiver services but wanted to go into one of the residential facilities as a private pay, a
preadmission screening would be done at that time as well. CISA was the only organization that
administered the PUNS list and the preadmission screenings in the area that CISA served.
¶ 70 There were about 20 residential service providers in CISA's nine-county area. The
number of beds available varied depending on the service provider. A provider was not
mandated by the state to accept into its facility any particular person who was seeking placement.
Rather, a provider could look for a certain individual who would be a good fit with that particular
site's current population. Although there was no shortage of beds in residential facilities in the
28 central Illinois area, there were certain facilities that were at full capacity and did not have open
beds. If an individual family wanted a particular service provider, they could wait for that
service provider to have an open bed available without having to go back on the PUNS list. The
same was true if a particular placement did not work out. At that point, CISA would get
involved and would assist the family in finding a new placement that would meet the individual's
needs. In addition, there could be issues with a group home that could make placement
unsuccessful. For example, the individual's behavioral or medical needs could be above what the
service provider felt it was capable of providing. There had also at times been instances of
violence between people in group homes, although those instances were rare.
¶ 71 Once a person was selected from the PUNS list, went through the preadmission
screening, and was found to be eligible for Medicaid and Medicaid waiver services, CISA would
meet with the person and his or her family to inform them of all of the different options available
and to explore what type of services they were interested in. After the person and family chose
the particular services that they were interested in, CISA would facilitate referrals to entities that
provided those types of services.
¶ 72 During her testimony, Humke confirmed that Chase was on the PUNS list. Humke could
not provide an opinion as to when Chase would become available for Medicaid waiver services
because the state followed a random selection process in picking from the PUNS list—it could
be as soon as six months or as long as five years. According to Humke, if a disabled person was
working full-time and was making more than the Medicaid waiver amount, the person would no
longer be eligible for services, although there were ways to offset that income. The amount that
could be put into an individual's own account from income could not exceed $2,000 a month or
the person would not be eligible for Medicaid services.
29 ¶ 73 Kaitlin McHenry testified for Mother that she was 20 years old, was Chase's older sister,
and was currently a junior in college. When Kaitlin was not in school, she lived in Peoria with
Mother and Chase. According to Kaitlin, her parents divorced in 2001 when she was 7 years old.
Father had visitation with Kaitlin and Chase over the years since the time of the divorce up
through the present date. Mother had always insisted that Chase fly to Florida in the company of
another adult and not just with Kaitlin. Up until the most recent spring, every time that Chase
went to Florida to visit Father, Kaitlin went with him. While in Florida with Father, Kaitlin and
Chase would go to amusement parks, to the beach, to movies, bowling, or out to eat. Most of the
time, Father's wife, Leigh, would go with them as well. Once in a while, Father would watch a
movie with just Kaitlin or go on an errand with just Chase, but that did not happen very often.
¶ 74 Chase and Father's wife, Leigh, got along very well. Leigh was nice to Chase, and Chase
liked seeing her when he was in Florida. A lot of the time, Father would be working when
Kaitlin and Chase were in Florida for their visits with him. In addition, Leigh would be in her
room a lot of times, but would come out and interact with Kaitlin and Chase when it was meal
time or if they were all watching a movie together. Chase also got along well with Leigh's 11-
year-old daughter, Texie.
¶ 75 During her testimony, Kaitlin confirmed that there were times when she observed Father
not being attentive to Chase's needs and described some specific instances of when that occurred.
Kaitlin also described times when she, Father, and Chase were together, and Father, in Kaitlin's
opinion, had not interacted much with Chase. In addition, according to Kaitlin, Father had talked
to her about the guardianship at issue in this case at least three times over the past year. Kaitlin
described those conversations and stated that during one of the conversations, she had told Father
that she believed Chase should stay with Mother because Chase wanted to stay in Peoria and
30 because Father did not really understand Chase's capabilities. Father had also talked to Kaitlin a
few times about Chase working for Father's business.
¶ 76 Kaitlin stated further that when they were growing up, Mother was always very involved
in Chase's schooling and in making sure that his needs were met. When Chase first started
school, Kaitlin saw Mother put together a program where she would bring college students into
the family home to work with Chase on different skills to help him be more prepared for going to
school. Throughout the years, Kaitlin saw times where Mother had issues with the school
district because they would want to put Chase in a program that was not appropriate for him,
would not have the right kind of program, or would want to take away Chase's one-on-one aide.
Mother always fought to make sure that Chase had whatever he needed. Kaitlin had also seen
Mother working with Chase on daily living skills, such as teaching Chase how to make different
drink mixes, how to cook items in the toaster, and how to make simple meals for himself. Chase
was also starting to learn how to do laundry. In addition, Kaitlin was aware that Chase knew
how to use the microwave and how to use a key to open the door and that Chase had recently
started taking the bus to work at Courtyard Estates.
¶ 77 Over the years, Kaitlin had seen Chase have meltdowns at times. When Chase was little,
if he had a meltdown, he would throw himself down, scream, and bang his head on the floor and
the wall. The last time that Kaitlin saw Chase have a meltdown was about two weeks ago when
there was a miscommunication over Kaitlin taking Chase to the pool. Chase escalated and
stomped off to his room and said that he was not going to do anything the following day. Chase
then went downstairs and continued to talk about the incident for about 20 minutes. According
to Kaitlin, it normally took Chase at least half an hour to calm down after an incident like that.
31 ¶ 78 Kaitlin was familiar with the note that Chase had written to give Dr. Kurth about why he
wanted to live in Peoria with Mother. Kaitlin knew that Chase had written the note because she
was home at the time. Chase wrote the note because he knew he had an appointment coming up
with Dr. Kurth and that he was going to have to say why he wanted to stay with Mother. Chase
was stressing out about trying to put his feelings into words. He sat down at the dining room
table and wrote out the note and said out loud everything that he was writing. According to
Kaitlin, that was one of the ways that Chase would think. Mother and Kaitlin were sitting in the
living room at the time, and Kaitlin could hear Chase speaking out loud.
¶ 79 According to Kaitlin, Chase had never gone to a summer camp for autistic children or for
children with special needs. Chase had opportunities to participate in different daytime activities
through HISRA during the summer but did not want to. Mother would not make Chase
participate in those activities if he did not want to do so. Kaitlin thought it was acceptable to
transition Chase into doing new things in steps but did not think that Chase should be forced into
something completely different from what he had experienced before. Since it was summertime,
Chase would swim and do different activities at home during the day, like reading and shooting
baskets in the driveway. Kaitlin had no concerns about Chase being home by himself during the
day and stated that she believed that once the legal process was over and it was clear where
Chase was going to be living, there would be more stability for Chase to get involved with
additional activities and to potentially increase his hours at work.
¶ 80 Kaitlin's grandparents lived in duplex unit that adjoined Mother's unit. Kaitlin's
grandmother was on oxygen. Kaitlin did not know to what extent her grandparents interacted
with Chase when he was home during the day because Kaitlin was not usually home at that time.
It had been at least five years since Kaitlin's cousin had lived next door with her grandparents.
32 That cousin had been arrested at some point for possession of marijuana, but Kaitlin did not
know if that occurred at the time that her cousin was living with her grandparents. Kaitlin stated
that there was no chance that her cousin would come back and live with her grandparents in the
future because her cousin was engaged, was living in a house, and was looking to buy a different
house. Kaitlin did not believe that Chase was aware of any of her cousin's activities.
¶ 81 According to Kaitlin, Mother had stated at times that Father was not really willing to
listen to other people's opinions on the situation with Chase. Father had not specifically told
Kaitlin what his plans were for Chase if Chase came to Florida and had said different things to
Kaitlin about the matter at different times. Kaitlin was aware that Chase had said that he wanted
to live with Mother and with her. Kaitlin had not discussed with Chase where she would be
living after college, although she had mentioned that she would probably be getting married.
Kaitlin stated that she had no reason to believe that it would affect Mother financially if
guardianship was given to Father and Chase moved to Florida. Kaitlin agreed that her parents
were fundamentally unable to cooperate on issues related to the guardianship of Chase, and she
did not see any possibility that the situation would get any better.
¶ 82 If Kaitlin had to make the decision, she would choose Mother to be the guardian of
Chase. Kaitlin knew that Mother had been working very hard to make sure that Chase had the
services lined up that he needed for the future so that one day when Mother could not take care
of him anymore, he would have the funds and the possibility of a place to go. Mother made sure
that Chase had job opportunities. She listened to Chase's opinion and factored that into her
decisions about where to go next with the process. Kaitlin did not think that Father should be
guardian because she did not think that Father fully understood Chase's capabilities. Kaitlin also
did not think that Father knew the different services that Chase needed or how to obtain those
33 services or that Father was willing to listen to the opinions of other people, who had more
experience with Chase, if those opinions were not in line with his opinion. Kaitlin and Chase
were close, and Chase had told Kaitlin that he absolutely wanted Mother to be his guardian.
¶ 83 Dr. Shanna Kurth testified for Mother by way of evidence deposition that she was a
clinical neuropsychologist and was currently employed by her own corporation. Kurth described
her background and experience in detail. Among other things, Kurth had been a clinical
neuropsychologist since 1993, had been licensed in Illinois since about 1994, and had been board
certified in clinical neuropsychology since about 1997 or 1998. Kurth described the practice of
neuropsychology as a diagnostic-type of practice in which the doctor's role was to identify the
absence or existence of a particular brain impairment. Kurth's practice consisted of 100%
neuropsychology (assessment and activities related to assessment); she did not engage in direct
counseling of patients or in transition counseling. Kurth assessed approximately 180 to 200
people per year, a small portion of which were young adults or adults with autism spectrum
disorders. When Kurth assessed an adult on the autism spectrum, the person being assessed
always came in with a referral question, such as whether the person was capable of driving,
whether the person was capable of living on his own, or whether the person's relationship with
other family members was being impacted by the person's autism spectrum behaviors. Every
evaluation that Kurth conducted was composed of three aspects: the record review, the clinical
interview, and the objective test results. 2
¶ 84 In this particular case, Kurth conducted an evaluation of Chase in December 2013. The
referral question centered upon appropriate placement for Chase following his graduation from
2 Both of the neuropsychologists who testified in this case testified in detail about the
records that they had reviewed in conducting their evaluation of Chase.
34 high school and his potential for employment. Kurth saw Chase just that one time when she
conducted the evaluation. Mother came with Chase to the evaluation, but Father did not. Kurth
had communicated to Father's attorney prior to the evaluation that she wanted to interview
Father, so she was a little surprised that Father was not there when the evaluation was conducted.
¶ 85 During her testimony, Kurth described in detail the clinical evaluation that was conducted
on Chase. As part of the assessment process, Chase participated in two rounds of testing and
was also interviewed by Kurth. Chase was able to maintain focus for the entire testing and
interview process and did not have any emotional outbursts that day. The interview of Chase
took place in the presence of Mother. At the end of the interview, Chase gave a handwritten note
to Kurth listing the reasons why he wanted to stay in Peoria with Mother. The contents of the
note were consistent with what Chase had verbally expressed to Kurth during the interview.
Kurth did not know how the note was prepared and did not believe it was relevant to her clinical
assessment of Chase. Kurth also did not know how Chase got the idea that he would have to go
to college if he went to Florida, as expressed in the note, but stated that it was very common for
an individual on the autism spectrum to take an off-handed comment, which did not mean what
the individual perceived it to have meant, and to latch onto it and perseverate on it. Kurth agreed
that with a person like Chase, one could not really teach him how to accurately imagine the
future; he lacked the skill or ability to extrapolate from the information that he had. If Chase was
told that he might be going to live in Florida, he would not be able to extrapolate what that
meant. In addition, according to Kurth, the reasons that Chase had given for where he wanted to
live could not really be relied upon as an accurate analysis of what was best for him. Those
reasons did tell, however, what Chase valued and what was important to him.
35 ¶ 86 Following the interview of Chase, Kurth conducted an interview of Mother. Prior to that
time, Mother had been given questionnaires to fill out that were designed to elicit details
regarding Chase's behavior, his ability to cope, and his emotions. Mother told Kurth during the
interview that Chase's outbursts were becoming rarer as time went by and that Chase was
showing signs of self-modulating behavior (that Chase had learned some type of coping strategy
to help calm himself down when he was starting to become very upset). Kurth did not know if
others were prompting that behavior but stated that regardless of whether it was prompted or
unprompted, that behavior was a very positive sign for Chase.
¶ 87 As part of her testimony, Kurth described in detail the behavioral observations that she
had made of Chase. Among other things, Kurth noted that Chase was perseverative, which
meant that he repeated a statement or a behavior over and over again, a common behavior that
was seen with individuals with neurologic deficits. One of the perseverative topics for Chase
was that he was very keen to stay in Peoria and to live with Mother and to make sure that Kurth
understood his reasons for that. Chase seemed to be under the impression that Kurth would be
making the decision, even though Kurth tried several times to correct that misperception. Kurth
also observed that the content of Chase's speech was very concrete and simplistic and that he had
a very literal interpretation of the words spoken with little to no abstraction or interpretation
outside of the actual words. As was common for a person on the autism spectrum, Chase
showed significant strength in some areas, such as math and spelling. However, his verbal
problem solving and reasoning skills were a significant weakness for him, and he had difficulty
with most aspects of executive functions, such as mental flexibility, higher-order problem
solving, reasoning, insight, and judgment. In addition, Chase's reading comprehension skills
were at about a third-grade level.
36 ¶ 88 When Kurth was asked during her testimony about her impression or opinion of Mother's
willingness to get involved to give Chase a better life, Kurth stated:
"I think that she left no stone unturned. I think that she was at least
vigilant, if not obsessive, about making sure that she contacted every source, that
she obtained every possible resource for him, and in particular she made sure that
his teachers were well aware of his issues and she made sure that they were as
much as possible implementing the behavior program that was developed for
him."
¶ 89 Regarding the referral questions, Kurth opined that the most likely result for Chase in
terms of his independence would be for him to be in a group home where there would be a staff
member present at all times. Kurth described that possible outcome as a "stretch" or "reach" for
Chase but stated that she thought it was worth the effort to try to get Chase to that point. Kurth
did not think that Chase would be able to live any more independently than that. The reason that
Kurth believed that a group home setting was currently a stretch for Chase was because Chase's
flexibility was currently minimal, his emotional maturity was currently low, his behavioral self-
modulation was just emerging, and there was a list of daily-living skills that Chase needed to
master first. Kurth believed that there was a fair chance that Chase would be successful in a
group home setting and was reasonably confident that Chase would be successful in making the
transition to that type of setting. Kurth also believed that Chase was capable of a transition to
Florida and that some care would need to be taken to provide support if that were to occur.
According to Kurth, the transition to a group home setting would not be easy regardless of
whether it was done in Peoria or Florida. Kurth believed, therefore, that there needed to be a
"plan B" in case Chase was not successful. Kurth was not asked to find out what group homes
37 were available in Peoria, so she could not state how many or what type of group homes or
transition resources were available at that time in the Peoria area. Kurth also had no idea what
resources were available for Chase in the Orlando, Florida area.
¶ 90 In Kurth's opinion, the goal for Chase was to get Chase to the greatest degree of
successful independence possible. Kurth acknowledged that successful independence would
require a certain amount of comfort for Chase but agreed that making sure Chase was
comfortable 24 hours a day, 7 days a week, was not necessarily what was best for Chase. Kurth
described the risk of "caving" as a risk of decreased social interaction and regression of social
skills that could arise in a particular situation. That risk applied to everyone, not just Chase, and
was caused in part by letting a person do only what was comfortable and by not forcing the
person into some type of social interaction or social risk as part of that person's daily routine.
According to Kurth, if someone was regressing, the window in which that problem could be
addressed and corrected was only a few months because after that amount of time, that new
pattern of behavior would become very entrenched and would be increasingly more difficult to
change. Kurth also agreed that a lack of direct supervision during the day was a risk for Chase.
¶ 91 According to Kurth, anyone who became Chase's guardian would need professional
assistance to outline a plan for Chase's future. During the evaluation, there was nothing that led
Kurth to believe that Mother would not follow through with the wishes and assistance provided
by professionals in helping to develop Chase's plan. Mother had done so in the past "with a
vengeance," according to Kurth, and it had been "a heroic effort" on Mother's part. Kurth stated
that Chase was very much like a typical individual on the autism spectrum as well as a typical
adult teenager. The things that made Chase comfortable were a routine, familiarity, and
predictability, which made sense because Chase was not very good at predicting. In addition,
38 Kurth suspected that Chase, like many other teens, was more comfortable being by himself and
being entertained by activities which had no emotional or social risk, such as playing video
games, watching television, or reading books. In Kurth's opinion, with regard to Chase making a
successful transition, the robustness of the support system and programs available would be less
important than the demands upon Chase's flexibility and emotional maturity. The key factor was
not necessarily to scour the planet to find the best program. Counseling and peer groups and so
on were very helpful and were important, but they were less important than the foundation,
which would be emotional maturity, flexibility, and familiarity.
¶ 92 As for employment, Kurth believed that Chase would always need some kind of support.
Kurth opined that at best, Chase would be able to participate in competitive employment of a
part-time nature that was very repetitive and consistently monitored by some kind of liaison with
the employer. Chase's strength as an employee was that he was very regulated by rules and
highly focused on details, as was typical for an autistic individual. Once Chase understood the
job and was trained to a point where he could perform each task individually, step by step, he
could be relied upon by the employer. Chase's weaknesses as an employee, however, were that
he was vulnerable to being easily overwhelmed and was not able to think on his feet or to
generalize (to apply what he had learned in one situation to another). Kurth believed, therefore,
that Chase should not be doing any type of problem solving or decision making and thought that
there was some potential for emotional outbursts if Chase became overwhelmed or if he
misinterpreted events, which was quite a likely possibility in certain settings. Chase was not a
good fit for a job dealing with the public, unless that job was very structured. Chase could
perform a data-entry type job but could not perform any type of job that required problem
solving skills. In Kurth's opinion, if Father was recommending some type of focal job skill
39 training for Chase, such as computer classes, keyboarding, or training in database entry, that
might be an appropriate use of educational supports for Chase.
¶ 93 A copy of Kurth's written neuropsychological report was admitted into evidence. In the
recommendations section of the report, Kurth stated, among other things, that her opinion was
unequivocal on the issue of college—that Chase was not a candidate for higher education under
any circumstances. Kurth went on in the report to explain the reasons behind that opinion in
detail. The remainder of Kurth's recommendations in the report were consistent with what she
had stated in her testimony.
¶ 94 Lori Ewing Crim testified for Father that she was a special education teacher at
Richwoods High School in Peoria and had taught Chase during his senior year of high school.
Crim had Chase in two classes, diversified occupations and study skills. Chase was a very good
student and a very hard worker. Crim did not have any behavioral problems with Chase
whatsoever. Chase was willing to learn and to be taught new things. Chase had shown Crim
pictures from the spring break that he had spent during his senior year in Florida with Father.
Chase was excited to show Crim the pictures and was also excited that he had permission to use
his phone to do so. Chase did not make any negative statements about that Florida trip or about
being with Father. Crim saw Chase in school at around the same time that Chase had allegedly
written the note about why he wanted to stay in Peoria with Mother, and Chase made no
statement of any type to Crim about not wanting to work for Father or about not liking to go to
camps. Those topics, however, did not come up.
¶ 95 Leigh McHenry, Father's current wife, testified that she had been married to Father for
just over eight years and that they resided in Windemere, Florida, with Leigh's 11-year-old
daughter, Texie. During that time period, Kaitlin and Chase would come to visit them in Florida
40 periodically. When Chase came to Florida for a visit, he was usually excited to go swimming; to
go to the amusement parks; to interact with Father, Leigh, and Texie; and to participate in all of
the activities that they had planned for him. At times, when Kaitlin and Chase would visit, Leigh
would leave the room after Texie had gone to bed, so that Kaitlin and Chase could have some
alone time with Father. In the past few years, Leigh had not noticed any problems with Chase
when he arrived in Florida to visit or when he was about to depart to go back home. Chase had
not had any behavior difficulties or meltdowns. Rather, according to Leigh, Chase had been
wonderful socially in terms of interacting with Leigh and her family.
¶ 96 During the past Christmas vacation, Chase, Kaitlin, and Kaitlin's boyfriend came to visit
for about six days. Leigh spent several hours alone with Chase during that period. While Chase
was in Florida, Leigh and Father purchased an iPhone for him. Chase loved the phone and
learned how to turn it on and off very quickly. He was very happy and pleased with himself to
demonstrate to the family that he could do so. Chase was able to use some of the applications on
the phone, and Leigh helped him transfer his movies and games to it. Chase was able to access
those things on his phone without assistance and was able to send text messages and pictures.
¶ 97 The past spring break was the first time that Chase had ever come to Florida without
Kaitlin. That particular visit lasted six or seven days, and Father and Leigh were both present in
the household for all of those days. Leigh noticed during that time period that Chase tended to
make more decisions for himself since Kaitlin was not present. During the visit, Leigh spent
some time alone with Chase and took him to Downtown Disney. They went shopping, had
lunch, walked around and enjoyed the sights, and were alone together for several hours. That
was the only time that Leigh spent alone with Chase during that vacation. The longest time that
Leigh had spent alone with Chase at any one time was probably no more than four hours.
41 According to Leigh, Chase was exposed to a number of new activities while he was in Florida
and did not show fear or any type of negative reaction.
¶ 98 Leigh worked from home for Father's business, McHenry Consulting. She would review
documents for Father, help with travel arrangements and with marketing, do administrative
assistant work, and just try to take some of the burden off of Father. She was paid $2,000 per
month for her work. The number of hours that she worked varied depending on what was going
on. According to Leigh, Father had opened a local office that was only about 10 to 15 minutes
away from their house and was much closer than Father's Tampa office. Father worked out of
the local office four days a week and out of the Tampa office one day a week. Father had also
cut down on the amount of his travel over the past year or two by hiring additional people and by
using computer-based services for meetings. Father currently was gone for business five to
seven days a month. Leigh understood, however, that if Chase had some type of emergency, the
kids came first, regardless of whether Father was at a worksite or social activity and regardless of
whether Leigh was busy working for Father's business.
¶ 99 According to Leigh, Chase seemed to be a very visual learner—after she showed him
how to do something once or twice, he would pick up on it. Leigh had helped teach Chase how
to use his cell phone and how to make a bowl of cereal in the morning and believed that Chase
was comfortable with her. She also believed that Father was capable of fulfilling the role of
Chase's guardian in this case.
¶ 100 Since September 2013, Leigh had taken four trips. The previous year, Leigh had taken
about three trips. Kaitlin and Chase did not travel with Leigh or Father at all last year but did
take a seven day cruise with them in 2012 and a three day cruise in 2013. According to Leigh, if
42 Chase was living with her and Father, he would travel with them if he was available. If Chase
was not available, Leigh would subordinate her travel plans to Chase's needs.
¶ 101 At the home where Father and Leigh lived in Florida, Leigh and her mother held title to
the property. Father's name was not on the title. If Father was made guardian and if a residential
placement for Chase was not feasible, Chase could live with Father and Leigh for as long as was
necessary, even for the rest of his life. Although there were no plans for Chase to live with
Father and Leigh for a substantially long period of time, such as five or seven years, Leigh had
no problem with him doing so, if that was necessary.
¶ 102 In Father and Leigh's marriage, Father handled the household finances, and Leigh could
not say how much of the household budget they could spend to place Chase into residential
placement if they had to use their own funds. Leigh believed that they would do what was
necessary to make ends meet so that Chase could be in the best place possible. There were two
residential schools that Father and Leigh had looked at for Chase—CIP and Vanguard—both of
which were one-year transition schools. CIP was approximately $55,000 to $86,000 per year for
tuition and housing, and Vanguard was approximately $58,000 per year for tuition and housing.
According to Leigh, if their team of experts felt that one of the two residential schools was the
best place for Chase and if no public or government benefits were available to pay for those
costs, she and Father would commit what they could personally, and Leigh could always make
up the difference herself. More specifically, Leigh stated that if the experts thought that going to
one of those two schools was the best thing for Chase to make him independent, she was willing
to commit her own funds to make it happen, even if it was $50,000 to $60,000 or more. Leigh
and her family had their own private funds and were willing to use those funds to make up
whatever amount Father could not afford to pay for by himself. Residential nonschool
43 placements, on the other hand, were substantially cheaper in Florida than the residential school
placements. One such residential nonschool placement, Trinity, was approximately $2,000 per
month, which was only $300 more than Father had been paying in child support just six months
ago. Father could pay that amount just out of his own income.
¶ 103 Dr. Robyn Cohen testified for Father that she was a pediatric neuropsychologist and that
she worked at a children's hospital and also at her own private practice. Cohen described her
background and experience in detail. Among other things, Cohen was licensed as a psychologist
in the state of Florida and was finishing the process of obtaining her board certification, although
she had previously been board certified as a behavior analyst from 1999 to 2011. One of
Cohen's partners in her private practice was her husband, who was a board certified rehabilitation
psychologist. As part of her practice, Cohen provided diagnosis, counseling, and planning,
including the beginning parts of transition planning. According to Cohen, about 50% of her
patients were on the autism spectrum, and she treated about 25 to 30 patients a year that were
transitioning from school or a home environment into a group home or semi-independent living
situation. Cohen was, therefore, familiar with group housing options and other services that
were available to autistic spectrum patients throughout central Florida.
¶ 104 Cohen got involved in this case after Father contacted her at her private practice and
asked if she would be willing to do a neuropsychological evaluation of Chase, to assess his
strengths and weaknesses, and also to aid Father in transition planning if Chase was to relocate to
central Florida. Father's purpose in obtaining the evaluation was to get a real understanding of
where Chase was at, what his potential was, what the realistic goals were for Chase in the future,
and what resources were available in central Florida to help Chase achieve his maximum
potential. As part of her procedure, Cohen would normally obtain questionnaires from, and
44 interview, both parents. In this particular case, however, Mother indicated over the phone that
she was not comfortable answering questions. Mother told Cohen that if there were questions
that either Chase or Father could not answer, she would answer those questions after her attorney
had reviewed them. Cohen assured Mother that she was not going to be determining who the
guardian should be or where Chase should live but was simply going to be performing an
evaluation and aiding with transition services in central Florida. Mother eventually provided
Cohen with written materials but did not participate in a verbal interview. Cohen had never had
a situation before where a person wanted to have her attorney review the written materials before
responding or refused to participate in an interview based upon legal concerns.
¶ 105 During her testimony, Cohen identified a copy of the written report that she had prepared
in this case. The report was signed by both Cohen and her husband. Cohen went through her
report in depth, describing the process that she followed and responding to the specific questions
of the attorneys. Regarding possible placement, Cohen stated that she believed that Chase would
function well in a group home and recommended that Chase have as a goal some sort of semi-
independent living option. According to Cohen, there was an abundance of group homes and
structured semi-independent apartments available in central Florida for disabled adults. That
abundance allowed service providers in Florida to group individuals by functioning level so that
there would be very similar individuals living with each other in residential placements. Cohen
believed that it would be very likely to achieve that type of situation for Chase in Florida. Cohen
acknowledged, however, that Chase had expressly told her during the evaluation that he wanted
to live at home in Peoria with Mother. Cohen went on to describe as part of her testimony how
she would assist Father in transitioning Chase to Florida if Father was appointed guardian.
45 ¶ 106 Cohen recommended, among other things, that services continue for Chase throughout
his adult life. In central Florida, there were a lot of resources for autistic adults that were very
beneficial in maintaining and developing continued social and vocation skills and in increasing
quality of life. Florida had many resources for autistic individuals because much of the behavior
analysis community had actually formed in Florida. In fact, Florida was one of the first states to
certify behavior analysis, which was one of the most important treatment modalities for autism.
¶ 107 Cohen confirmed during her testimony that her report was very similar to the report of
Dr. Kurth and that she was in substantial agreement with Dr. Kurth's findings and testimony.
The main difference between Kurth's report and Cohen's report, in Cohen's opinion, was that
Kurth mentioned group home living as a goal that might or might not be attainable for Chase,
while Cohen believed that group home living was an attainable goal for Chase and that semi-
independent living was also a possible goal for Chase. Cohen acknowledged that she was not in
any way stating that Father would be a more appropriate guardian for Chase than Mother and
that she was not expressing any opinion as to which parent would be the preferred guardian.
Cohen conceded that she was not familiar with group housing options or other services that were
available for persons with autism in central Illinois and acknowledged that group homes in
Florida and other services were usually paid for through the Medicaid waiver program. Cohen
acknowledged further that there were a lot of people on the waiting list in Florida for those
services and that if the plan was to place Chase in a residential living facility in Florida in a short
period of time (within a few years), the only way to do so was through private pay.
¶ 108 Cohen testified further that it was not typical to create a formal transition plan with
timelines and deadlines for an autistic adult. According to Cohen, if persons on the autism
spectrum were asked whether they wanted to continue living in the same place with the same
46 people or to go some place different, close to 0% would say that they wanted to go some place
different. Cohen agreed, therefore, that if the court was going to ask Chase questions, the weight
the court should give those answers was limited by Chase's own cognitive limitations.
¶ 109 Father testified in his own case-in-chief that he lived in Windermere, Florida (West
Orlando) with his wife, Leigh, and his stepdaughter, Texie. 3 Father had been married to Leigh
for just over eight years. Father had an accounting background, owned his own consulting firm,
and had earned $150,000 to $160,000 last year. The number of hours that Father worked per
week varied.
¶ 110 During his testimony, Father described his plan for Chase at length and presented a
slideshow and written presentation of his plan to the court. According to Father, his plan at that
point was more of a process because he had not had Chase in Florida to meet with the different
groups. There were four main components to Father's plan: employment, independence, quality
of life, and financial. Father described in detail many of the different services and facilities that
were available for autistic or disabled adults in the central Florida area that he could possibly
take advantage of if he was appointed Chase's guardian. Father also named and discussed the
experts who would be working with him as part of his "team" and what each expert's
involvement in the process would be.
¶ 111 In discussing his plan for Chase, Father described the cost of some of the services that
were available in Florida, including the two residential transitional schools, CIP and Vanguard,
that Father's wife, Leigh, had already testified about. The two residential transitional schools
3 Father was also called to testify as a witness in Mother's case-in-chief. Since the
testimony presented at that point of the case was very similar to the testimony presented by
Father in his own case-in-chief, we have only set it forth here.
47 were immersive programs that combined in one source multiple services, such as housing; social
and networking services; vocational, educational, and life skills training; and ties to employers
and schools. According to Father, CIP was a one to three year program that cost about $62,000
to $70,000 per year for tuition and housing. Vanguard, the other residential transitional school,
had a tuition rate of about $48,000 per year. When asked at what point he would start to
consider placement in one of the residential transitional schools as part of his plan for Chase,
Father stated that it would be after he had gotten Chase to Florida, had gotten Chase evaluated by
certain members of his team, and had been given the go-ahead to put Chase into one of the
programs by those team members. Father stated further that it was his intent to enroll Chase in
one of the residential transitional schools, once Chase had gotten established and everything was
going well, if his advisory team indicated that the residential transitional schools were the best
route to go. As for the cost of some of the nonschool residential living facilities, Father stated
that one group home, Attain, was $2,500 to $3,000 per month for private pay and that another
group home, Trinity, was $1,800 per month.
¶ 112 According to Father, Florida had a state agency, the Center for Autism and Related
Disabilities (CARD), which was specifically devoted to autism. CARD had multiple offices
throughout the state and sought to promote full participation in life for autistic individuals. As
far as Father was aware, there was no comparable state agency in Illinois for people on the
autism spectrum. Some of the other resources that were available for Chase in Florida were the
Special Olympics; Camp Thunderbird; a group called Opportunities, Community, and Abilities
(OCA); travel, entertainment, and vocational opportunities; church; and fitness facilities. Father
also included in his plan time for Chase to spend with Mother in Illinois.
48 ¶ 113 With regard to financial concerns, Father stated that he had a checking account with
Chase's name on it, which had approximately $1,200 in it. Chase had the debit card for that
account. Father had also set up a special needs trust for Chase. Father had placed a few hundred
dollars into that trust and had named the trust as a partial beneficiary on some of his life
insurance policies and on his retirement account. The trust was revocable by Father up until the
time of his death. Father acknowledged that setting the trust up that way meant that Father had
the absolute right to add or remove property from the trust up until the time of his own death.
Under the terms of the trust, Father also had the absolute right to control the distribution of
income and principal from the trust. In addition, Father commented that he was considering
possibly purchasing a condominium in the trust's name so that Chase could share that living
space with other similar individuals, who would pay rent, and could still have the value of that
property as a trust asset later on. Father understood that the purpose of a special needs trust was
to shield assets from being considered as available for governmental program purposes. It was
Father's opinion that Chase would be accumulating money for his financial future under Father's
plan but would not be doing so under Mother's plan. Father also believed that appointing him as
Chase's guardian would make a more efficient use of Father's financial resources and was a
stronger plan from a financial standpoint. Father explained that if he was made Chase's
guardian, he would only have to plan for two retirements—his and Chase's. Whereas, if Mother
was made Chase's guardian, Father would potentially have to cover a portion of three
retirements—his, Chase's, and Mother's. Father wanted Chase to be financially independent
because there was no certainty as to what kind of governmental resources would be available in
the future. Father stated, however, that he would register Chase for Florida's public aid system
but commented that his plan for Chase would not be dependent upon state-based services.
49 ¶ 114 As for Chase's employment, Father opined that the focus at the current time should not be
upon just getting Chase into any job available but upon developing Chase's skill sets and social
aspects and raising Chase to the highest level that he was capable of in terms of making a living
and quality of life. Father's employment goal for Chase, therefore, was to raise Chase's level of
marketable skill sets to the highest level possible and to then integrate those to Chase's particular
interest levels. In addition, Father pointed out that if he was guardian, he could provide Chase
with flexibility in employment so that Chase could spend time with all of his family. With
Chase's current employment, it was unclear whether Chase had the ability to take more than a
few days off in a row.
¶ 115 When asked why he thought his plan was more appropriate for Chase in terms of Chase's
best interest, Father stressed what he believed to be the strengths of his plan: financial resources,
family supports, an open-minded team approach that included experts and advisors, abundant
area resources, opportunities for development, and quality of life. In Father's opinion, his plan
would provide Chase with the opportunity to be happy and independent and would allow Chase
to live life to the fullest level of which he was capable. Father recognized that Chase's needs,
wants, and desires were important but stated that Chase's best interest was more important.
¶ 116 Father's main concern with Mother's plan was that it appeared that Mother's plan had
already been completed to the fullest extent possible in that Chase had already graduated, had a
job, and was living at home. Now that there was an indication that Chase's job at Courtyard
Estates was never going to be a full-time position, Father was not sure what would happen past
that point under Mother's plan. Father stated that he had not heard anything in Mother's plan
about adding any type of life skill sets or about Chase's development and potential. According to
50 Father, that was the main difference between his and Mother's plans—his plan sought to
determine where Chase could go and what Chase's potential was and Mother's plan did not do so.
¶ 117 Father believed that Mother's plan involved Chase living at home for as long as she was
able to take care of him because that was the only path that Mother could take, based upon her
financial affidavit, since Mother needed to bring additional income into the home, regardless of
whether that income was contributed from Father, the state, or from Chase. Father believed that
the money was the reason that Mother was keeping Chase at home and not letting Chase develop
or get closer to becoming as independent as possible. Father acknowledged, however, that Chase
was not capable of living totally independently at that point.
¶ 118 In response to some of the specific negative claims that were made about him during
some of the other testimony, Father stated that: (1) he attended some of the visits with Dr. Chez
in Chicago but scheduling became a problem because the visits were not being scheduled on a
Monday or a Friday so that he could fly in from Florida; (2) pursuant to certain restrictions in the
parties' joint parenting agreement, he could not have Chase's condition evaluated or treated in
Florida; (3) although Mother testified that he did not "dig in and help" her with Chase, she did
not specifically request that he do anything in connection with Chase's physical condition or with
his medical treatment during that period; (4) after he was remarried in 2006, he asked for more
than two weeks of summer visitation with the children but was told by Mother that it would
conflict with Kaitlin's activities and that he would have to discuss it directly with the children;
(5) he exercised his phone visitation with the children over the years but many times when he
called, there was no answer or the children's cell phones were turned off; (6) he never told the
IEP team that he was absolutely adamant that Chase go to a four-year college but, rather, merely
told them that it was his desire that someday Chase would develop to be able to do that; (7) his
51 concern about the IEPs was that they planned only for an Illinois option; (8) while he and Chase
were together in Florida over the past spring break, Chase did not express to him any of the
feelings that were expressed in the notes that Chase had allegedly written; 4 (9) his discussions
with Kaitlin about this case had been very limited, and she did not have all of the facts related to
the issues involved in this case; and (10) although he had always been concerned about Chase's
future, his plans in that regard escalated in January 2014 after he attended a conference on autism
for the first time and saw how much hope there was for Chase. Father also described some of the
problems that he had encountered with Mother over the years, including: (1) Mother had refused
to allow the children to fly to Florida together without another adult going with them; (2) he had
difficulty trying to set up a time through Mother for him to visit Chase in Illinois and with
getting information from Mother about Chase's current job, even though he was a temporary co-
guardian of Chase at the time; (3) after he had given Kaitlin a copy of the GAL report and Dr.
Cohen's report, he was threatened with litigation by Mother's attorney for supposed violations of
the health care confidentiality laws; (4) after he had visited with officials at Chase's school and at
Peoria Production in Spring 2014, his attorney received emails from Mother's attorney, objecting
to him doing those things without Mother being present and claiming that he was trying to turn
witnesses in this case; (5) Mother declined his invitation to come to Florida to visit the facilities
that he had been talking about and to participate in Dr. Cohen's evaluation of Chase, even though
he had offered to pay for Mother's airfare; (6) he was not notified of the evaluation date for Dr.
Kurth's evaluation of Chase or provided with an opportunity to participate in that evaluation; and
(7) he did not know until he had read the newspaper articles that the arrest of Mother's nephew
4 Chase had also presented a note to his own attorney, which was similar to the one that
he had presented to Dr. Kurth, about why he wanted to stay in Peoria with Mother.
52 on drug charges had occurred while the nephew was living in the other half of the duplex or that
at the time of the robbery of Chase's grandfather, one of the subjects involved had been standing
in the duplex with a shotgun.
¶ 119 According to Father, unlike the other issues between him and Mother, support issues
were always worked out. Father paid regular child support to Mother for the children and also
set up a joint bank account to which Mother had a debit card that Mother could use as a
discretionary fund to pay for the children's ongoing medical bills or for extra expenses of the
children. That account was still in existence. In addition to the discretionary fund and the direct
child support, Father had been paying nearly 100% of the cost of Kaitlin's college education,
outside of any scholarships and money that Kaitlin had earned on her own. Father had not taken
Mother back to court to ask that Mother pay a percentage of those college costs. Furthermore,
after the child support ended, Father continued to pay voluntary child support in a reduced
amount of $500 per month. Father had determined the reduced amount based, in part, upon the
assumption that Chase would be receiving $700 a month in SSI. Father acknowledged, however,
that he was not sure what the requirements were for a person to receive SSI and that he continued
to pay the same reduced amount, even though he had learned at the previous court date that some
of his assumptions, upon which the reduced amount was based, were inaccurate.
¶ 120 A copy of the transcript of the court's prior in-camera interview of Chase was offered
into evidence by Chase's attorney for the court to consider as evidence in the trial. It was agreed
that the transcript would not be shown to the parties. Chase's attorney represented that he was
presenting the transcript in lieu of having Chase testify and that if Chase would have testified at
the trial, he would have continued to express his preference to remain in Illinois with Mother as
opposed to living in Florida with Father.
53 ¶ 121 In her rebuttal case, Mother called Chase's sister, Kaitlin, back to the witness stand.
Kaitlin testified, among other things, that: (1) in the years that she and Chase were in high
school, Father called them about once every six weeks; (2) she and Chase had never shut their
cell phones off so that Father could not reach them, although Chase's phone did run out of power
at times when he failed to charge it; and (3) she and Chase did not have much contact with their
step-grandparents and had not received many gifts from them.
¶ 122 Mother also provided some additional testimony of her own in rebuttal. Mother stated,
among other things, that: (1) there were times when Chase's phone would be dead because he did
not remember to charge the battery; and (2) she insisted that an adult accompany Kaitlin and
Chase when they flew to Florida for safety reasons. During her rebuttal testimony, Mother also
told her side of some of the situations that Father had described when he allegedly had problems
setting up visitation, obtaining information, or getting Mother to come to Florida to see some of
the available services. Mother also described what she had told Chase prior to Chase's
appointment with Dr. Cohen. In addition, Mother commented that Chase was now attending the
Focus program on Mondays and Wednesdays and that he had just become eligible to participate
in the program during the past August when he had turned 19.
¶ 123 The GAL, Angela Evans, testified that she had spoken to both Mother and Father several
times on the phone; had met with Chase and Kaitlin; had spoken with Father's current wife,
Leigh, on the phone; had attended the depositions; had fact-checked the information provided by
the parties; had reviewed the school and health records; and had been present for the testimony
of the various witnesses at trial. It was Evans's opinion that Father would be the better guardian
for Chase. Evans came to that conclusion because she believed that: (1) Father was more likely
to seek out and implement the advice of professionals with regard to what was best for Chase;
54 (2) Father was better qualified to handle Chase's financial affairs and to make sure that Chase
had financial independence; (3) with Father as guardian, Chase would not have to wait to be
picked from the PUNS list before he could take advantage of the developmental resources that
were available; (4) Father wanted to be guardian because he wanted to help Chase not because he
was trying to get out of paying child support; (5) Father was more open to considering Mother's
opinions and would encourage Mother to have input into the decisions that were being made as
to Chase; (6) Father was adamant that Mother be given a certain amount of time with Chase each
year and would encourage family relationships; (7) there was less of a likelihood that Chase
would regress in his social skills if Father was appointed guardian and Chase was living with
Father; and (8) although Chase very clearly stated that he wanted Mother to make decisions for
him and that he trusted her to do so, Father's plan was better for Chase in the long run because it
would help ensure Chase's independence into the future when Mother and Father had passed
away or were no longer able to care for Chase. Evans recommended, therefore, that Father be
appointed the sole plenary guardian of Chase.
¶ 124 Evans acknowledged during her testimony that she only had met with Chase one time for
about 15 minutes. Evans stated, however, that she did not feel that she needed to talk to Chase
any further about the matter, especially when the experts in this case testified that Chase could
not comprehend many different facts and could not accurately imagine the future. Evans
acknowledged that Chase's position—that he wanted to stay in Peoria with Mother—had been
consistent throughout this case. Evans's meeting with Kaitlin only lasted for about 15 minutes as
well. Evans commented that her meeting with Kaitlin took place very early on in this case, that
it was very traumatic for Kaitlin, and that Kaitlin was crying. Evans conceded that she had
previously recommended before a different judge that Mother be appointed the sole guardian of
55 Chase. Evans stated that a big part of why she was now recommending that Father be made
guardian was because Father was more willing to put Chase in a group home, as the experts were
recommending, and Mother was resistant to that idea. Evans believed that Mother was not
taking into account what the professionals had stated was in Chase's best interest as far as the
living situation for Chase. Evans acknowledged further that she had taken into account that
Father had more money than Mother, that he could pay for the abundant services available in
Florida, and that he did not have to rely on public aid, but stated that was not the only reason
why she was recommending that Father be appointed Chase's guardian.
¶ 125 During her testimony, Evans conceded that she had never presented a petition to the court
for the payment of her fees in this case. Rather, Evans sent out monthly bills to the attorneys for
Mother and Father. Those monthly bills were paid by Father. According to Evans, the fact of
how her bill had been paid had not affected her decision in any way in this case. Evans agreed
that she had accepted the payments from Father without first approaching the court and asking
the court to approve her fees or to determine which of the parties should pay her fees. Evans did
not agree, however, that doing so created the appearance of impropriety. Evans admitted that she
had "plenty" of phone conversations with Father's attorney over the course of the case but did not
know how many phone conversations that she had with Mother. Evans did not interview any of
the school officials or Dr. Kurth, but stated that she did attend Dr. Kurth's deposition and did ask
some questions. Evans did not talk to the director of Courtyard Estates or to the person who was
supervising Chase at that location.
¶ 126 Evans had filed her written report in November of the previous year. At that time, Father
was indicating that he wanted Chase in a group home and Mother was indicating resistance to
that. That was one of the reasons why Evans had recommended that Father be appointed
56 guardian. Evans acknowledged that Father's position had since changed somewhat and that
placement of Chase in a group home was now just one of the possible long-term options
available for Chase. Evans commented that she thought Father's position was a well-reasoned
one and that it was consistent with the position of Dr. Kurth—that any possible transition would
be dependent upon how Chase adapted and developed. Evans noted that Dr. Kurth's opinion was
actually very similar to that of Dr. Cohen in that regard.
¶ 127 Evans denied that she was downgrading Mother because Mother was resistant to the idea
of a group home or because Mother did not have the financial resources of Father and might
need the assistance of public aid or of the Medicaid waiver program in order to provide services
for Chase. Evans commented that all of the experts in this case—Dr. Halperin, Dr. Kurth, and
Dr. Cohen—were essentially in agreement, that Chase should be in some type of supervised or
semi-independent living arrangement. Mother and her attorney were the only ones who were
disagreeing with that, in Evans's opinion. According to Evans, there was not that much support
in terms of services, programs, or resources for people with autism in Peoria. Evans was not
aware, however, that the Antioch Center in Peoria had counseling for autistic adults or that
Illinois State University had an autism center.
¶ 128 After all of the evidence had been presented and the attorneys had made their closing
arguments, the trial court announced its ruling. The trial court's ruling and its detailed
explanation thereof spanned approximately 30 pages of transcript. Early on in its ruling, the trial
court explained the court's role in the process of selecting a guardian for a disabled adult under
the Probate Act. The trial court indicated that in making its decision, it had to consider such
things as: (1) what the disabled adult would have intended had the disabled adult been competent
to make the decision; (2) the respective qualifications of the proposed guardians; (3) the
57 capabilities of the proposed guardians to provide an active and suitable program of guardianship;
and, ultimately, (4) the best interest of the disabled adult.
¶ 129 The trial court had praise for both parents, commenting that it had two great, loving, and
caring parents before it who were committed to doing what was in Chase's best interest, even
though they could not agree on what that was. The trial court pointed out that both parents had
safety concerns over where Chase would reside and that neither parent, therefore, could be
critical of the other parent's safety concerns. The trial court commented that the incidents that
had occurred at the adjoining unit to Mother's duplex were one-time incidents that were not
likely to reoccur. The trial court went on to state that it thought that both parents would be
extremely diligent in making certain that any place, whether it was a recreational day program or
a residential program for the foreseeable future, was going to be safe for Chase.
¶ 130 Turning to the parties' plans for Chase, the trial court stated that both parents had done
what they could to develop a life or transition plan for Chase. The trial court noted that there
was a need for skill and developmental training; a need for monitoring Chase's mental and
physical health; and a need to maintain Chase in a protective environment, where he would not
be subjected to stresses, violence, or job requirements that he could not handle. The trial court
stated further that it was sure that both parents were committed to the fact that Chase needed a
skill set to go out and do whatever he was going to do, and that there was a lot of agreement on
those types of issues. However, according to the trial court, there was a divergence when it came
to the experience of the parents with Chase. The trial court indicated that it had to separate out in
this case what had happened because of the circumstances of the divorce and that it could not
punish Father for living in Florida when that was where Mother and Father had lived initially and
Mother had moved away. The trial court pointed out that because there were emotional issues
58 involved in these types of cases, and not just financial issues or business decisions, there would
always be some game playing between the parties as to such things as child support, visitation,
and twisting each other's words around.
¶ 131 Turning to the strengths of each parent in relation to serving as Chase's guardian, the trial
court stated:
"Mother has committed her life and her career choice to meet Chase's
needs. She has committed herself and her life and her time to study, to learn, to
education [sic] herself and to educate others, and to create a network within which
to help others, and to benefit from others' help and support. She has obviously
taken an active and advocative life and role in Chase's education and his
healthcare and his psychological adjustment, his vocational development, and
advancing his life skills.
She has sought, found, and implements appropriate programs and
activities within the limitations of Peoria. Could be worse. She could be in my
hometown of 1,400 people, trying to find services for children or adults.
She has sought, found, and implements appropriate programming and
activities, both social and recreational, as well as vocational and skill, educational.
She has maintained constant and vigilant contact with multiple support
professionals that are actually servicing or serving Chase's needs and all bent
upon improving Chase's life and opportunities.
I would also echo, as the GAL did, that her efforts have been deemed the
extraordinary, and I believe that she has developed a great deal of professional
expertise, which combined with her professional or her own profession,
59 advocation, vocation, have given her a broad spectrum of knowledge, not just
about Chase, but about autism and about others similarly situated and those who
are not similarly situated, so that she sees as comparative analysis and has a good
working knowledge of the various levels of autistic ability and disability.
She has provided a home in which Chase has thrived, has been well-
adjusted, has been well-nurtured by friends and family and teachers and service
providers, educators.
He has done well in the areas of learning and gaining new life skills and
creating a healthy lifestyle of exercise and recreation, as well as learning work
ethic and understanding the dependence of others upon him, not just his
dependence upon others.
Both parties can be proud of Chase's accomplishments. I said that the
term of art of transition—applying just that. It's a term of art. You can call it
anything you want, but as mother has testified, she is living Chase's transition
plan. That is an important statement, and it came from, I'm sure, from the
experience of being there and being part of Chase's development 24/7.
***
There was discussion that mom hasn't pushed Chase to his fullest
potential, and I believe that the evidence shows the contrary, even from preschool
on, that she has pushed him towards preschool. She has pushed him towards
being able to sit through kindergarten, through school, and in school, where others
might retreat and say you know what, he's just not doing this. Let's home school,
or let's go to a special school, or let's put him in a contained environment.
60 One of his pushed for advocative, for—and even had to go to bat against
school officials for Chase's opportunity to be in an included classroom, and to
have this important, necessary to make it happen, rather than to retreat. She has
pushed him toward and obtained and made happen the opportunities for voluntary
employment, for employment, and to make sure that every obstacle is overcome,
rather than retreating from it.
Given that the parties share the goal to provide Chase to be as independent
as possible, as independent as his abilities will allow as they grow, as he grows, I
believe that the evidence is strong and supportive, and I find that the mother has
pushed Chase to learn and to build upon these skills, introducing new challenges
at a pace and in a manner best suited to Chase, and that's where the knowledge of
the child or adult comes to, is knowing that pace.
Professionals can all give us as best theory as they know, but they all say
too that each case is particular to the patient or to the client, and they don't give
every single person that comes through the office the same shot. They won't give
every person that comes through the office the same level of therapy or the same
therapist. Everything has to be individually tailored, and they have to know as
much as the parent in order to do that. They never will, but they give their best
shot.
Ultimately, they have to rely on what the parent knows, and so I think it's
reasonable for a parent to take into consideration all of the expertise that is given
by as many people that can possibly be found that have knowledge in the area, but
mom or dad, they have to make their own decisions.
61 ***
So given the goals that both parents have for Chase, I think the mother has
pushed to the right directions. I think she has pushed to the appropriate rate,
speed, introducing things such as riding the bus, or paying bus fare, or making
change at a speed that's appropriate to Chase.
Other factors that I've taken into consideration, not necessarily caused
bind [sic], but simply circumstances of value, include Chase's home now, and also
has the benefit of extended family, the adjoining half of the property, and
immediate access to them and their support and love and kindness. I'm sure is
beneficial to him.
He also has the benefit of his sister. In that relationship, things—good and
strong relationship, and someone he can look up to, and he'll appreciate the
support of in his home when she is there, or I think he probably still has that
support when she's absent from the home, school, and as she moves on in life.
There was concern though that Chase spending too much time at this
home could cause that caving or the regression. Of the GAL's suggestion, I don't
recall it specifically, but the GAL's suggestion was that evidence was that this
could happen very quickly, that the regression could happen immediately if he
began this process or was left alone for lengthy periods.
And, in fact, in dad's closing, the same was suggested when we talked
about how long he had been in the home before he was of age to participate in
these other programs. He was working only part-time, so he was home, available
to visit his grandparents, but essentially home, and there has been no suggestion
62 though from anybody that he has regressed, or that he has caved, or whatever the
term may be.
So apparently, that isn't an issue. Why isn't it an issue? I think it's not an
issue because of the level of activity that he has been provided, even in small-
town America, to participate in social education, vocational and employment
situations.
I think there's also some benefit in having the routine schedule continue
for him from what has been said by the experts that we've heard from. And
finally, there's the benefits of status quo because we know that he's doing well.
He's thriving.
But there is a benefit in the status quo because we know it's working. We
know it's got potential. We know he can build his potential. We know that there
is a plan for his potential to be built upon, and it's not all about residence, but
residence is part of that independence. It's necessary. All of his needs are being
met. All of his potential is being tapped, and there are no holes being placed on it,
his abilities, from what I can see.
Dad's plan is a great sell. It really is. There's magnificent, ninety-five
slides, not one of which I wouldn't [sic] have omitted from that program. They're
so beneficial. They threw everything out there, and they even found out which
therapists like to ski or swim, and which don't.
63 I'm just happy to have all of that information if needed, but the real
importance, the real meat of it is how many resources there are available, at least
in Florida. I don't know about Illinois. I heard about Peoria. I didn't hear about
Bloomington, or Champaign, or Chicago, or anywhere else. There are a lot of
services available down there, and I wouldn't have known that without having had
the benefit of dad's research on that. There are some practicalities to all of that,
that need to be addressed.
First of all, those were all private paid. And particularly residentially
ideas are all very expensive. As a practicality, I have two parties with income.
Dad's got a pretty good income, but not enough to pay for that, for even one year,
much less the rest of Chase's life. I don't know how rich the step-grandparents
are, but they might be. I'll just assume for right now that they are indeterminably
rich, that they have more resources than Fort Knox ever did, and that money is
never ever going to be an object for them.
And giving that assumption, I still have no practicality in determining or
accepting that they would pay out that kind of money forever, in fact, even
beyond their own life expectancy to serve Chase for his life expectancy. And
certainly, I have no jurisdiction to even ask for it. And the same with dad's wife,
who is very supportive, and apparently has her own wealth and is willing, but I
don't have any jurisdiction over that.
I have to look at the practicalities of these people living within their own
means and Chase living within the means of his parents. I can't hope that he'll
win the lotto once a week, or that Santa is going to visit every time the bill comes
64 to the door. Not only does Chase have to be self-sufficient, but so do mom and
dad. You can't hope to be supported by someone else's generosity, anymore than
Chase can, so what's that leave you with?
One-hundred and fifty thousand dollars a year is a great amount of money,
at least here, maybe in Orlando, but it's not a terribly crazy amount of money, and
people often go within their means. And in order to do that, there's going to have
to be a reliance on public benefits for Chase, otherwise, Chase's welfare is only
going to last as long as we last, as long as the parents last, and he's going to
outlast us.
And for that matter, he's going to outlast our generation's earning capacity
because people retire. People stop working. People's business can have ups and
downs. There's no predictability to that, but there is predictability to public
assistance, on which the general public has, I don't think for the worst, come to
rely.
I think we have to have a subsidized program, especially for the disabled
who can't earn their own way, and that gives more independence than relying
upon dad's 37 percent of the business income or mom's income, hoping that their
health continues, hoping that other bills don't get in the way. But the fact is
public benefits are more predictable, longstanding. Of course, next time I say
that, might be after the election I might have a different view, but so far, so good.
So I'm looking at the practicality of this, the practicality of dad's plan. The
benefit is clear. There are a lot of services available, but the practicality is
dependent on the kindness of strangers to me, and the kindness of family to him.
65 And as we talked about, all of the grandparents are in their seventies. I
used to think that was old. Others might still say it is, and I can't make it [a]
condition of guardianship that they support Chase.
I think it's impractical also to believe that Chase will thrive in a residential
community in which everybody around him is higher functioning. It's not
practical, and that's with all of the material that I've been given suggests of those
programs that we're looking at.
There might also be programs that are more specific to Chase's needs and
abilities, but I didn't get those yet. They might be available, but I don't know
where they are. The literature from these programs is very telling, even though
the individuals that dad has talked to have said oh, please bring your son by, and
we want to meet him, and we want him in our program. We have six slots, and
we've only filled four. There is a monetary necessity for all of these programs to
have more bodies in them. And I'm sure that they would be willing to
accommodate and to make provision for Chase, especially if it's private paid.
That's just the way of [the] world. They'll do it, but I don't think it's necessarily
the best placement just because they'll do it. It's very important for Chase to be in
an environment that's protected and suited to him.
The experts that have been here, the job folks and educational folks who
have said that the goal should be competitive employment, and the only
competitive I've heard about is here and is working.
And whether it's part-time or full-time is not as important to me as
whether it's here and it's working, and whether there are other services and
66 activities and is beneficial in the meanwhile because we're not talking about
Chase ever being financially independent.
So, in fact, if he's working 10 hours, or 30 hours, or 40 hours is not really
as important as that he's getting everything that he can from what he's doing, and
that he is in a position that he feels great about what he is doing, and according to
the witnesses, that it's competitive employment, as compared to subsidized
employment or employment at home or at dad's place of work, or volunteer
capacity.
It's a different experience, and it's a different work ethic, and it's—I'm all
for volunteer work. I do a lot of volunteer work, but it's—it doesn't replace the
need for sustainable competitive employment opportunities.
The plan also had information about the special needs trust, and I'm
extremely familiar with the special needs trust, not only the pounders, but the five
pagers that do what dad's talked about here is to protect the assets.
The real benefit of the special needs trust and from what I've read—I've
read the entire trust. It is to protect the assets from not only—the trust part of it
protects the assets from being absconded with or being lost to liabilities created
by the disabled adult clearly, but the special needs part of it is that it's
supplemented to public benefits.
A big part of what has happened here is, you know, mom has examined all
of these issues and has gone to all of these lengths to create a living environment
and opportunities for Chase's future over the long haul, and dad's plan by
67 necessity of this litigation had to be developed in a very short amount of time. He
spent tons of time on it, and all out of love for Chase, and it's a good thing, but it's
all very concentrated in the last couple of months, some I think within the last few
weeks.
The suggestion, one of those things that I have to discount is well, he
hasn't had custody. He hasn't had Chase with him, but he still hasn't had custody.
He still hasn't had Chase with him.
So apparently, all of the work that has been done for the last few weeks
could have been done over a long period of time. Both parties had the ability and
opportunities to anticipate that Chase would essentially [sic] be 18 years of age.
That was no surprise to either one of you.
Mom spent her whole life planning for that and continues to. Dad began
the effort late. I think it shows the level of commitment.
Another commitment issue I find is this financial aspect, and I'm not sure
what to make of it, but I will take into consideration dad's suggestion, which is
he's going to do this trust because Chase is going to be living with him. There is
no requirement that dad can have this trust, whether Chase is living with him or
not. Dad can have the exact same terms and the exact same funding of the trust,
whether Chase is living with him or not.
If it's out of love, it will be exactly the same, so we'll find out just by
waiting around whether that happens. If it was to buy Chase's guardianship, then
it's contingent upon him coming to Florida, that it will only benefit his life if he
68 comes to Florida, but out of love, I'm sure that the intention is the same, whether
he's in Florida or not.
I appreciated everything the GAL did in this case, and although my
suggestions are different from hers, that doesn't discount the fact that the GAL's in
a unique position to look objectively at the facts and to think about this in terms of
the disabled adult's best interest.
I agree that being paid by one party versus the other and cutting one party
out of the—out of the communication gives a bad appearance, but we're trained as
lawyers. We're trained in ethics. We're training in independence, and I know that
Ms. Evans knows the role of a GAL is to be independent, and I don't think she
could have been bought.
I do think because of her level of communication with dad, that she gave
greater credence to some of those plans that have been stated, but I don't find any
unethical conduct. I do not want to sanction though, for the future, any billing by
a GAL directly to one party or the other. The GAL works for the Court. Bills are
submitted to the Court. The Court determines who pays the bill, and we have to
maintain the independence of the GAL. In another circumstance, it could be
disastrous not to do that.
One of the issues that the GAL addresses, very fair comment, and that is
that the guardian, being the guardian of a person and estate of Chase, is going to
have to account to the Court for every dollar that comes in, every dollar that
comes out. And dad's financial background is extremely well-fitted to that.
69 It doesn't mean that others can't, but it is a responsibility that the parties
need to address, and I appreciate the GAL bringing that up because you can't co-
lingual [sic] funds unless specifically allowed by a Court. Some Courts do, so if
he's getting SSI, many Courts, and I have been in many circumstances in the past
but not all said well, you can take all of the SSI and use that for household
expenses, and SSI allows you to account for it that way. But you have to account
for any other income that he has and where it goes. I'm not addressing how that
works just yet with the guardianship, but it is, as the GAL says, an absolute
requirement of a person who's appointed guardian.
The issue of visitation has been addressed because that's what we call it
because of our usage in divorce cases, but in an adult world, it's not visitation. It's
time with family, and I do hope that both parties understand the need to
accommodate time with family.
I don't think it's practical to suggest that Chase could have competitive
employment and take a summer off here or in Florida. I don’t think it's practical,
in fact, for Chase to even be in a group home and take a summer off, but maybe if
it's self-funded, maybe you can get away with that and leaving half of a—leaving
a bed in the group home unattended for months on end, but I'm not going to be in
a position to determine when or how much time Chase spends with parents or
grandparents or extended family. That is going to be within the discretion of the
guardian appointed, and I said that at the outset, so that the parties knew that if
70 they wanted to come to some agreement otherwise, that was the time to do it, but
didn't.
And having now addressed all of those matters with regard to the
guardianship plan and the capacity of each party, I would find independently,
without reference to Chase's own desires, that mother would best serve as
guardian of Chase. But I do look at what Chase told me. I have to say how proud
the parents must be of him, and how incredibly communicative he was with me in
the in camera conference.
I was amazed because of the introduction that I've had in the case that he
was so talkative about his work and about what he does, about what he likes, what
he doesn't like, about wanting to spend quality vacation time with dad in Florida,
about wanting to live here and wanting to work here, enjoying his work and
enjoying his life here, and all of the activities that he does participate in.
So with that additional overlay, I believe that I am appropriately taking
into consideration the best interest, the respective abilities of the parties, and also
the personal desires of the disabled adult and what the disabled adult would be
saying.
The statute says if you weren't disabled, what you would say, but we know
what he would say if he wasn't disabled because we know what he's saying if he's
in his own abilities right now.
71 Where the disabled adult isn't comatose and is able to say exactly what he
wants and has good reason for saying what he wants, that's helpful to a Court, and
it was helpful to me.
Taking all of that into consideration, considering all of [the] evidence in
the case, all of the exhibits that have been submitted and received, and taking into
consideration the statutory criteria that we have dealt with here, it is the
determination of the Court that the mother is awarded guardianship of Chase
McHenry, plenary guardianship, as stated in person with power [to] place, but
with the Court to determine and approve the ultimate placement that is found to
be appropriate, with notice to father before that hearing occurs, sufficient notice,
so that he can actually be here, preferably on a Monday or a Friday."
¶ 132 In November 2014, a hearing was held on a petition that Mother had filed for support
from Father (petition for support of the parties' adult disabled child). The trial court had
previously ordered, when it made its guardianship decision, that Father pay to Mother 20% of his
net income as defined in section 505(a)(3) of the Illinois Marriage and Dissolution of Marriage
Act (750 ILCS 5/505(a)(3) (West 2012)) as support for the parties' adult disabled child, Chase.
The trial court later recognized that the section 505 (750 ILCS 5/505 (West 2012)) standard was
not applicable in this case. At the conclusion of the hearing on the petition for support, the trial
court found that it did not have enough information to make a ruling at that time. The trial court
encouraged the parties to come to an agreement on the matter and told the parties that a further
hearing would be held if the parties could not do so. The trial court referred the case to family
court for any further proceedings that were necessary as to the payment of support by Father to
Mother. Father later brought this appeal to challenge the trial court's guardianship decision.
72 ¶ 133 While the case was on appeal, Father filed a motion in this court to supplement the
record. We allowed that motion. One of the documents contained in the supplemental record
was a copy of an article from a Peoria newspaper dated November 7, 2014, the date that Father's
notice of appeal happened to have been filed in this case. The article was about the retirement of
the particular trial court judge that had made the guardianship decision in this case. The article
noted, among other things, that the trial judge was retiring after 24 years on the bench, that he
and his wife had two grown sons who lived on the East Coast, and that they also "had a
profoundly disabled daughter who died several years ago."
¶ 134 ANALYSIS
¶ 135 I. Claim of Error in the Selection of Mother as Chase's Guardian
¶ 136 As his first point of contention on appeal, Father argues that the trial court erred in
naming Mother as sole plenary guardian of Chase's person and estate, rather than Father. Father
asserts that the trial court's ruling was against the manifest weight of the evidence and that it
constituted an abuse of discretion. More specifically, Father claims that the trial court's ruling
was erroneous in the following respects: (1) the trial court found that the crimes that had
occurred at the grandparents side of the duplex were one-time occurrences that were not likely to
reoccur, despite the fact that there was no testimony that the grandfather had stopped conducting
business with strangers in the driveway or that the security measures at the duplex had been
increased; (2) the trial court assumed that Mother would be taking advantage of resources for
Chase that were available in Chicago, Bloomington, or other places around Peoria, even though
Mother had never presented any evidence as to what those resources were, that she had sought
them out, or that she would access those resources for Chase at any time in the future; (3) the
trial court found that Mother had pushed Chase to learn, had excessive knowledge of Chase,
73 knew the proper pace, and would take into consideration all possible resources and how to
introduce them, despite the fact that Mother had not visited a group home in Peoria in the past 10
years, had initially told the GAL that she would not place Chase in a group home until she was
no longer physically able to care for him, had refused to travel to Florida (even at Father's
expense) to view the resources that were available there for Chase, was planning to keep Chase
at home for the next five to seven years, had only started teaching Chase life skills within the
past four months while the litigation was pending and after the GAL had recommended that
Father be made sole guardian, had just pulled her plan for Chase (the transition toolkit) off of the
internet about two weeks prior to her testimony, and had presented a plan to the trial court that
offered no hope of Chase achieving even modest financial independence; (4) the trial court
ignored the testimony of all of the expert witnesses in this case—that it was in Chase's best
interest to be placed in an appropriate group home; (5) the trial court found that Father's plan was
financially unrealistic by incorrectly focusing on one possible residential option in Father's plan,
the immersive transition schools, despite the fact that the evidence had shown that the nonschool
based residential placement facilities in Florida were substantially less expensive than they were
in Illinois, that the cost of those facilities was only about $300 more per month than what Father
had previously been paying in child support, and that Father could easily pay that amount based
solely upon his own income; (6) the trial court found that Father's plan would place Chase in an
environment with higher functioning adults, despite the fact that Dr. Cohen had testified that
Chase could be placed in a group home in Florida with nearly exactly matched individuals; (7)
the trial court implicitly found that Mother had the financial ability and was an appropriate
person to be Chase's guardian, despite the fact that Mother was unable to explain the nearly
$3,000 gap between her income and expenses each month, had not done any calculations as to
74 what expenses were attributable to Chase, could not explain how she had attained the balances
that she had in her accounts, would need approximately $2,000 per month in support from Father
just to make ends meet, had a large financial incentive to keep Chase in her home contrary to
Chase's best interest, and lacked sufficient financial acumen to manage Chase's financial affairs;
(8) the trial court ruled in Mother's favor despite the fact that Mother planned to keep Chase at
home until she was no longer physically able to care for him and had a gross conflict of interest
in that she needed the additional income that keeping Chase in her home would provide; (9) the
trial court rejected Father's willingness to comport with the opinions of the expert witnesses in
implementing his plan for Chase; (10) the trial court inexplicably held essentially that the experts
in this case did not know anything and that Mother knew better than anyone else; (11) the trial
court ignored that the resources available for Chase in Florida were far better than the resources
available for Chase in the Peoria area; and (12) the trial court ignored Father's plan to make
Chase not dependent upon public aid and doomed Chase to extreme poverty. 5 Based upon those
alleged errors, Father asks that we reverse the trial court's ruling and that we either order that
Father be named as the sole plenary guardian of Chase's person and estate or that we remand this
case for a new trial.
¶ 137 Mother argues that the trial court's ruling was proper and should be affirmed. Mother
asserts that in making its ruling, the trial court listened to three days of testimony from 13
witnesses, conducted an in camera examination of Chase, and considered all of the appropriate
factors that apply under the law in making a guardianship decision. Thus, Mother contends that
the trial court's ruling appointing her as Chase's guardian did not constitute an abuse of
5 Father describes some of the alleged erroneous aspects of the trial court's ruling as being
against the manifest weight of the evidence and others as being an abuse of discretion.
75 discretion. In addition, in response to some of Father's specific claims, Mother asserts that: (1)
she has no financial conflict of interest in this case and has filed a petition in the trial court to
receive additional support from Father for Chase (petition for support of an adult disabled child);
(2) she has already signed Chase up for the PUNS list in Illinois and will address the issue of
residential placement for Chase when Chase's name is selected from the PUNS list for the
potential receipt of services; (3) she has demonstrated that she has been considering Chase's
future since the time that he was diagnosed, not only in terms of Chase's housing interests but
also in terms of Chase's educational, social, and recreational interests; (4) Father makes his
claims by picking and choosing from various points in the evidence presented at the trial, but in
so doing, ignores the totality of all of the evidence presented; (5) the trial court balanced and
weighed the evidence presented and decided what aspects of that evidence were important; (6)
the record in this case shows that the trial court did not go outside of the evidence in making its
decision and did not consider resources that were available for Chase outside of the Peoria area
of which no evidence was presented; and (7) the GAL was biased in favor of Father from a very
early point in this case and had previously recommended that Mother be Chase's plenary
guardian. For all of the reasons stated, Mother asks that we affirm the trial court's ruling, naming
her as the sole plenary guardian of Chase's person and estate.
¶ 138 Before we address the merits of the parties' arguments, we must first determine the
appropriate standard of review to apply in this case on appeal. Father argues that the trial court's
guardianship decision is subject to both an abuse of discretion standard of review and a manifest
weight of the evidence standard of review. Thus, Father contends that the trial court's
guardianship decision will be overturned only if the trial court abused its discretion or if the
decision itself is against the manifest weight of the evidence. See In re Estate of Green, 359 Ill.
76 App. 3d 730, 735 (2005); In re Estate of Doyle, 362 Ill. App. 3d 293 (2005) 6; In re Marriage of
Russell, 169 Ill. App. 3d 97, 103 (1988). Mother argues that the standard or review that applies
in this case is the abuse of discretion standard (see 755 ILCS 5/11a-12(d) (West 2012); Doyle,
362 Ill. App. 3d at 303; In re Schmidt, 298 Ill. App. 3d 682, 690 (1998)) and that the additional
component of manifest weight review only applies in those cases involving guardianship of a
minor (see Green, 359 Ill. App. 3d at 735; Russell, 169 Ill. App. 3d at 102-03).
¶ 139 Having reviewed the statute and the case law on this issue, we agree with Mother that in
cases involving guardianship of a disabled adult, the trial court's decision as to who to appoint as
guardian is subject to an abuse of discretion standard of review on appeal. See 755 ILCS 5/11a-
12(d) (West 2012); Doyle, 362 Ill. App. 3d at 303; Schmidt, 298 Ill. App. 3d at 690. Therefore,
we will not reverse the trial court's decision to appoint Mother as Chase's guardian in the present
case unless that decision constituted an abuse of discretion. See id. The threshold for finding an
abuse of discretion is high one and will not be overcome unless it can be said that the trial court's
ruling was arbitrary, fanciful, or unreasonable, or that no reasonable person would have taken the
view adopted by the trial court. See Blum v. Koster, 235 Ill. 2d 21, 36 (2009); In re Leona W.,
228 Ill. 2d 439, 460 (2008); People v. Illgen, 145 Ill. 2d 353, 364 (1991).
¶ 140 Having determined the appropriate standard of review to be applied in this case, we now
turn to the merits of the parties' arguments on appeal. Section 11a-3(a) of the Probate Act of
1975 provides that:
"Upon the filing of a petition by a reputable person or by the alleged disabled
person himself or on its own motion, the court may adjudge a person to be a
disabled person, but only if it has been demonstrated by clear and convincing
6 Father does not cite to a specific page in the Doyle decision.
77 evidence that the person is a disabled person as defined in Section 11a-2. If the
court adjudges a person to be a disabled person, the court may appoint (1) a
guardian of his person, if it has been demonstrated by clear and convincing
evidence that because of his disability he lacks sufficient understanding or
capacity to make or communicate responsible decisions concerning the care of his
person, or (2) a guardian of his estate, if it has been demonstrated by clear and
convincing evidence that because of his disability he is unable to manage his
estate or financial affairs, or (3) a guardian of his person and of his estate." 755
ILCS 5/11a-3(a) (West 2012).
See also In re Estate of Johnson, 303 Ill. App. 3d 696, 704 (1999). A guardianship should be
utilized only as is necessary to promote the well-being of the disabled person; to protect that
person from neglect, exploitation, or abuse; and to encourage the development of that person's
maximum self-reliance and independence. 755 ILCS 5/11a-3(b) (West 2012). In addition, a
guardianship shall be ordered only to the extent made necessary by the disabled person's actual
mental, physical and adaptive limitations. 755 ILCS 5/11a-3(b) (West 2012).
¶ 141 The selection of a guardian for a disabled person shall be made in the discretion of the
trial court. 755 ILCS 5/11a-12(d) (West 2012). To be qualified to serve, the proposed guardian
must: (1) be capable of providing an active and suitable program of guardianship for the disabled
person; (2) be at least 18 years old; (3) be a resident of the United States; (4) be of sound mind;
and (5) generally not be convicted of a felony. 7 755 ILCS 5/11a-5(a) (West 2012); Johnson, 303
Ill. App. 3d at 704-05. In selecting the appropriate guardian, the trial court shall give due
7 The statute does, however, contain an exception that allows a person who has been
convicted of a felony to serve as guardian under certain circumstances.
78 consideration to the preference of the disabled person but is not bound by that preference. 755
ILCS 5/11a-12(d) (West 2012); Johnson, 303 Ill. App. 3d at 705; Schmidt, 298 Ill App. 3d at
689. The trial court must also consider the qualifications of the proposed guardian. 755 ILCS
5/11a-12(d) (West 2012); Schmidt, 298 Ill App. 3d at 689. The primary consideration, however,
in selecting a guardian for a disabled person is the best interest and well-being of the disabled
person. Johnson, 303 Ill. App. 3d at 705; Schmidt, 298 Ill App. 3d at 690. Some of the factors
that the trial court may consider in making that determination include: (1) the degree of
relationship between the disabled person and the proposed guardian; (2) the recommendations of
persons with kinship or familial ties to the disabled person; (3) conduct by the disabled person
prior to the adjudication demonstrating trust or confidence in the proposed guardian; (4) prior
conduct by the proposed guardian indicating a concern for the well-being of the disabled person;
(5) the ability of the proposed guardian to manage the disabled person's estate (the proposed
guardian's business experience and other factors); and (6) the extent to which the proposed
guardian is committed to discharging any responsibilities which might conflict with his or her
duties as a guardian. Johnson, 303 Ill. App. 3d at 705; Schmidt, 298 Ill App. 3d at 690.
¶ 142 In the present case, after having reviewed the record thoroughly, we find that the trial
court did not err in appointing Mother as Chase's guardian, rather than Father. Mother had been
thoroughly committed to every aspect of Chase's well-being since the time that Chase had been
diagnosed. She had taken extensive steps to educate herself about Chase's condition and to
advocate for Chase's needs. She had taken it upon herself to find a doctor who could determine
whether Chase was having seizures when he was very young; had implemented a behavior and
learning program at home for Chase after having sought aides and funding to do so; had sought
to make sure that the school followed and reinforced that behavior program; had constantly
79 monitored Chase's progress and made any changes that were necessary; and had been active in
helping Chase obtain suitable employment skills, in helping Chase maintain successful
employment, and in teaching Chase life skills. As the trial court noted, Mother had been living
the transition plan for Chase's entire life and had been successful in doing so. Chase was happy
living in Peoria with Mother, wanted to stay in that location, and did not want to move to
Florida. He was also happy in his current employment position and was well-liked by his
employer, the residents of the facility, and his fellow employees. It is clear from the trial court's
ruling that the trial court knew the applicable law, weighed the appropriate factors, and came to a
decision based solely upon the evidence presented after weighing that evidence in relation to
Chase's best interest. Upon reaching its decision, the trial court thoroughly explained the reasons
for that decision on the record. Based upon the circumstances presented in the instant case, we
find that the trial court did not commit abuse of discretion in appointing Mother to serve as
Chase's guardian. See Blum, 235 Ill. 2d at 36; Leona W., 228 Ill. 2d at 460; Illgen, 145 Ill. 2d at
364.
¶ 143 In reaching that conclusion, we note that we do not agree with Father's claims that the
trial court considered matters outside of the record in making its decision and that the trial court's
findings were inconsistent and unsupported by the evidence. Our review of the record indicates
to the contrary. The trial court in the present case was faced with the difficult task of
determining which one of Chase's parents should serve as Chase's guardian. Each parent was
well qualified to serve in that capacity, and each parent had a plan for Chase's future that he or
she believed was in Chase's best interest. The trial court considered the appropriate factors under
the law, weighed the evidence presented, and came to a thorough and well-reasoned decision.
We simply cannot find in the instant case that the trial court's ruling was arbitrary, fanciful, or
80 unreasonable, or that no reasonable person would have taken the view adopted by the trial court,
as we would be required to conclude in order to find that an abuse of discretion had occurred.
See id.
¶ 144 II. Claim of Judicial Bias or Prejudice
¶ 145 As his second point of contention on appeal, Father argues that the trial court's ruling
should be reversed because of an alleged personal undisclosed prejudice of the trial judge. In
support of that position, Father claims that: (1) at some point after the ruling in this case, he
learned through a newspaper article regarding the trial judge's retirement that the trial judge had
a disabled adult daughter who had been raised at home and who had died only a few years prior
to the hearing in this case; (2) the trial judge's personal circumstances were nearly identical to
that of Mother and her stated intent to keep her disabled adult son at home for as long as she was
able to care for him; (3) had the trial judge disclosed that information in this case, Father would
have sought to substitute the trial judge; (4) the trial judge's failure to disclose that information
deprived Father of his right to substitute judge; (5) comments made by the trial judge during his
ruling in this case show a great affinity for Mother's position for raising the disabled adult in her
home and a great animosity for Father's position; (6) the trial judge's bias led the trial judge to
ignore the comparative lack of resources in Peoria as compared to Florida, to unilaterally reject
all of the doctors' opinions in this case, and to ignore or misconstrue the evidence regarding
Father's financial advantage and his ability to pay for the possible residential placement of Chase
in Florida; and (7) the trial judge's ruling both implicitly and explicitly revealed the trial judge's
prejudice against transitioning a disabled adult to a larger community with more resources. For
the reasons stated, Father asserts that there was clear evidence of judicial prejudice in this case
and asks that we reverse the trial court's ruling.
81 ¶ 146 Mother argues that there is no indication of any judicial bias in this case and that the trial
judge's ruling should be affirmed. In support of that argument, Mother asserts that: (1) contrary
to Father's claim, the newspaper article in question did not state that the trial judge's disabled
daughter was raised at home; (2) Father tries to use that "made-up" fact to mislead this court into
finding that the trial judge was prejudiced in favor of Mother and against Father; (3) at no time
during the bench trial or the ruling in this case did the trial judge allude to his own personal
circumstances, other than one comment that the trial judge made about his home town of 1,400
people; (4) without that "made-up" fact, Father has nothing to assert that the trial judge's personal
circumstances were nearly identical to that of Mother and to her stated intent to keep her disabled
son at home; (5) all that is known in this particular instance is that the trial judge had a
profoundly disabled daughter who died—it is not known the kind of disability the daughter had,
where the daughter resided, or how old the daughter was when she died; and (6) the mere fact
that the trial judge had a disabled child is not evidence of judicial bias in any way. In addition,
Mother also contests the claims that Father makes regarding the specific ways that the trial
judge's bias allegedly manifested itself in this case. First, as to Father's claim that the trial judge
ignored the comparatively greater amount of resources for Chase in Father's central Florida area,
Mother contends that the trial judge did not ignore that evidence. Rather, Mother submits, the
trial judge acknowledged that Father had presented evidence to that effect but went on to point
out some practical concerns that he had with those resources, such as the court's inability to order
others to help pay for those resources, the lack of evidence presented as to programs in Florida
that were more specific to Chase's individual needs and abilities, the need for public benefits for
Chase, and the ability of Chase to have competitive employment in Florida. Second, as to
Father's claim that the trial judge ignored the opinions of the doctors in this case, Mother
82 contends that there is no indication in the record that the trial judge ignored those opinions.
Rather, according to Mother, the trial judge made the very valid point that experts could give
their opinions, but it was the parent or guardian who was responsible for actually making the
decision for their child or ward. In addition, Mother points out, Father's own expert testified in
this case that her report was substantially the same as the report of Mother's expert. The only
difference was that the two experts disagreed as to what extent Chase could eventually attain
semi-independent living. Third and finally, as to Father's claim that the trial judge ignored or
misconstrued the evidence of Father's financial advantage, Mother contends that this is really the
crux of Father's entire argument—that no reasonable person could ever believe that Chase would
be more appropriately served by having Mother act as guardian, rather than the wealthier Father.
According to Mother, the trial court addressed that issue by summarizing at length the level of
commitment that Mother had demonstrated for Chase over the years since the time that Chase
had been diagnosed. For all of the reasons set forth, Mother asks that we reject Father's claim of
judicial bias and that we affirm the trial court's ruling in this case.
¶ 147 The Code of Judicial Conduct provides, among other things, that: (1) a judge is obligated
to avoid both impropriety and the appearance of impropriety and should not allow his family,
social, or other relationships to influence his judicial conduct or judgment (Ill. S. Ct. R. 62 (eff.
Oct. 15, 1993)); (2) a judge shall perform the duties of his office impartially and diligently and
without any bias or prejudice (Ill. S. Ct. R. 63 (eff. July 1, 2013)); and (3) a judge shall
disqualify himself in a proceeding where his impartiality might reasonably be questioned,
including but not limited to instances where he has a personal bias or prejudice concerning a
party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the
proceeding (Ill. S. Ct. R. 63 (eff. July 1, 2013)). Trial judges are presumed to be both fair and
83 impartial. See Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002); Calabrese v. Benitez, 2015 IL
App (3d) 130827, ¶ 25; Lesher v. Trent, 407 Ill. App. 3d 1170, 1176 (2011). The party claiming
that a trial judge is prejudiced bears the burden of overcoming that presumption. Eychaner, 202
Ill. 2d at 280. Adverse rulings alone are almost never sufficient to support a claim of judicial
bias, even if those rulings are alleged to be erroneous. Eychaner, 202 Ill. 2d at 280. The party
claiming judicial bias must show that the judge in question had: (1) a personal bias stemming
from some source other than the litigation; or (2) made comments in the course of the
proceedings that revealed such a high degree of favoritism or antagonism on the part of the judge
as to make fair judgment impossible. See Eychaner, 202 Ill. 2d at 280-81; Lesher, 407 Ill. App.
3d at 1176.
¶ 148 In the present case, we have reviewed the record thoroughly and have found no indication
that the trial judge was prejudiced or biased in any manner. The newspaper article and the
statements made by the trial judge in explaining his ruling, which Father points to as evidence of
the trial judge's bias in this case, do not show such a high degree of favoritism or antagonism on
the part of the trial judge as to make a fair judgment in this case impossible; nor do they establish
an outside source of bias as Father suggests. See id. The newspaper article indicated only that
the trial judge and his wife had a profoundly disabled daughter who had passed away at some
point. The article did not state the nature of the daughter's disability, how old the daughter was
when she passed away, or whether the daughter had resided at home. Thus, contrary to Father's
assertion on appeal, the newspaper article did not establish that Father's personal situation with
his own disabled daughter was nearly identical to Mother's situation with her disabled adult son.
By the same token, the few statements that Father points to in the trial court's lengthy decision do
not establish whether the trial judge was speaking from his personal experiences with his own
84 disabled daughter, from his life experiences, or from his experiences as a trial judge for over 20
years. At any rate, a trial judge may consider the evidence presented at trial in the light of his
own observations and experience in life. People v. Tye, 141 Ill. 2d 1, 25 (1990). The
background and experience of a trial judge are disqualifying only if they prevent that judge from
assessing the evidence fairly and impartially. Id. It is assumed that a trial judge, regardless of
his own personal backgrounds and experiences in life, will be able to set aside any biases or
predispositions he might have and consider each case in light of the evidence presented. Id. We
find no indication that the trial judge failed to do that in the present case. Therefore, we reject
Father's claim of judicial bias. See Eychaner, 202 Ill. 2d at 280-81; Lesher, 407 Ill. App. 3d at
1176; Tye, 141 Ill. 2d at 25.
¶ 149 III. Claim of Error in the Amount of Initial Support Set by the Trial Court
¶ 150 As a final point of contention on appeal, Father challenges the amount of initial support
that was set by the trial court. As acknowledged by Father, however, the support order is not a
final order, which is subject to appeal. In addition, at this time, the support order is not part of an
appeal on the guardianship issue as provided for in Illinois Supreme Court Rule 304(b)(1) (eff.
Mar. 8, 2016). Since the support issue is still before the trial court and will be resolved by the
trial court's family division when it rules upon Mother's motion for support (motion for support
for an adult disabled child), it would be premature for us to rule upon that issue at this time.
¶ 151 CONCLUSION
¶ 152 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.
¶ 153 Affirmed.
¶ 154 JUSTICE SCHMIDT, specially concurring.
¶ 155 I concur in the judgment.
Related
Cite This Page — Counsel Stack
2016 IL App (3d) 140913, 60 N.E.3d 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-mchenry-illappct-2016.