In re Estate of K.E.J.

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State: Illinois

Court: 1st District Appellate

Docket No: 1-06-2263, 1-06-3077, 1-07-0618 Cons.

Case Date: 04/18/2008

Preview:SIXTH DIVISION April 18, 2008 Nos. 1-06-2263 & 1-06-3077 & 1-07-0618 cons.

In re ESTATE OF K.E.J., a Disabled Person ) (V.H., Petitioner-Appellant, v. K.E.J., Respondent-Appellee). ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County, Illinois. No. 96 P 11118

Honorable James Riley Judge Presiding.

JUSTICE JOSEPH GORDON delivered the opinion of the court: Guardian V.H. petitioned the court below to allow involuntary sterilization of her ward K.E.J., a 29-year-old mentally disabled woman, by means of a tubal ligation. 1 The court denied the petition, ruling that V.H. had not sufficiently demonstrated that a tubal ligation was in K.E.J.'s best interests. The three key issues raised in this appeal are as follows: (1) whether the trial court erred in denying V.H.'s petition to have K.E.J. undergo tubal ligation; (2) whether it was proper for the trial court to award V.H. attorney fees for the trial proceedings out of K.E.J.'s estate, and whether we have jurisdiction to consider this issue; and (3) whether it was proper for the trial court to deny attorney fees for the appellate proceedings. For the reasons that follow, we affirm on the first issue, affirm the denial of appellate fees, and remand on the issue of trial fees.
1

To help keep the identity of K.E.J. from being revealed, we are referring to her guardian

by her initials only, and we are omitting the surname of her father.

Nos. 1-06-2263 & 1-06-3077 & 1-07-0618 cons. I. BACKGROUND On May 28, 1986, when K.E.J. was eight years old, she sustained severe head trauma in a car accident. The ensuing personal injury lawsuit was settled, and K.E.J. received $750,000 in cash, as well as a structured settlement annuity which had a guaranteed payout of $4,485,405.88 and which was expected to pay as much as $14,418,036.24 over her lifetime. Due to the brain damage K.E.J. sustained in the accident, she has since been adjudicated to be a disabled person. V.H., her maternal aunt, was appointed as the guardian of K.E.J.'s person, in a decision which we subsequently affirmed. K.E.J. currently resides with V.H.. On January 9, 2003, V.H. petitioned the court to authorize a tubal ligation for K.E.J., who was then 24 years old. She alleged that K.E.J. was sexually active despite V.H.'s efforts to deter her, but that K.E.J. was unable to comprehend the possibility of pregnancy or handle the responsibility that it would bring. She further stated that K.E.J. was currently on Depo Provera injections for contraception, but that these injections caused weight gain, elevated blood pressure, and other negative side effects. In support of her petition, she attached statements from K.E.J.'s doctors and counselors stating that a tubal ligation was the optimal means of preventing K.E.J. from becoming pregnant under the circumstances. Probate lawyer Mary J. Raleigh has been K.E.J.'s guardian ad litem since 1996, and in the time period leading up to the hearing, she met with K.E.J. on multiple occasions to keep the court appraised of K.E.J.'s status. In her report dated February 4, 2003, Raleigh stated that K.E.J. was involved with a man named David Hence whom she called her fiancee and wished to marry. Subsequently, on February 14, 2005, Raleigh met with K.E.J. to discuss the pending petition for

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Nos. 1-06-2263 & 1-06-3077 & 1-07-0618 cons. tubal ligation. According to Raleigh, K.E.J. told her that she wished to have a baby and that she understood the contraceptive purpose of tubal ligation as well as its permanence; as a result, Raleigh said, "There is no doubt in my mind that [K.E.J.] does not want the tubal ligation procedure." K.E.J. said that she had previously agreed to the procedure because she was with V.H. and knew that V.H. wanted the procedure done. K.E.J. was then on the Ortho Evra contraceptive patch, about which she claimed to have no problems; however, Raleigh expressed concern that due to her obesity (K.E.J. weighed over 200 pounds at the time), the patch might not be fully effective as a means of contraception. Before the trial, V.H.'s counsel filed a petition requesting that attorney fees be paid out of K.E.J.'s estate, both for past services rendered and prospective fees to be incurred. On May 11, 2005, K.E.J.'s counsel filed an objection to any such award of fees, arguing that no fees should be granted for anything relating to the petition for tubal ligation because K.E.J. was unwilling to undergo the procedure and thus it was not in her best interest. That same day, the court held a hearing on V.H.'s fee petition. A representative of South Suburban Bank & Trust, the guardian of the estate, testified that as of that date, the value of the estate had been reduced to $225,000 in cash and investments plus a house worth $100,000, as well as approximately $60,000 a year in annuity payments and further payments of $50,000 every five years. Raleigh, the guardian ad litem, strongly opposed V.H.'s fee petition: "This is a very small estate for a very young person," she said, "and if we are all granted our customary hourly rate, this small estate will be even smaller." She thus argued that it was in K.E.J.'s best interest that the fee award be reduced. After hearing arguments from both sides, the court chose to grant

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Nos. 1-06-2263 & 1-06-3077 & 1-07-0618 cons. V.H.'s fee petitions, awarding $21,000 in back fees and $3,000 in prospective fees. It stated that as this was a medical matter, V.H. "had a right to bring it to court," and that it would be unfair to essentially force her lawyers into working pro bono by denying fees. K.E.J.'s counsel filed a motion to reconsider the fee award on June 3, 2005, but that motion was denied. The court conducted a bench trial during June and July of 2005. Because the transcript is disorganized and nonchronological, the compilation of a full chronological sequenced account of the trial has been difficult. V.H.'s first witness was K.E.J. K.E.J. said that she knew that she was in court because V.H. wanted her to get a tubal ligation, and that she understood that the procedure worked by tying the Fallopian tubes so that no eggs could pass through. However, she said that she did not want a tubal ligation. Instead, she wanted to have two children when she was married to a husband who would support her and help her take care of them. "I want to have children," she said, "because they are

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