J.H. v. Ada S. McKinley Community Services, Inc.

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State: Illinois

Court: 1st District Appellate

Docket No: 1-05-2132 Rel

Case Date: 12/29/2006

Preview:FIFTH DIVISION December 29, 2006 No. 1-05-2132

J.H. and J.D., Plaintiffs-Appellants, v. ADA S. McKINLEY COMMUNITY SERVICES, INC., RALPH BURLINGHAM, KENNETH HONDERICH, MARGARET ORTINAU, CLAUDINE ROBINSON, GALE SPENCER, VICTORIA LAWSON, CAROL WINN, WALTER C. McCRONE, GILBERT GAVLIN, URSULA HOWARD, MARY A. KLINGENBERGER, ROBERT S. MOORE, GREGORY McLAUGHLIN, MICHAEL T. HEALY, ANNA R. LANGFORD, SAMUEL PANAYOTOVICH, BOBBY RUSH, JESSIE C. WHITE, MARGARET SMITH, BYRON E. WINTON, RON BEAN, WILLIAM C. CAMPBELL, DEBRA McGEE, DRENDA LAKIN, BRODIE WESTBROOKS, MARIE BOYD, GLORIA BASHER, JESSICA CONNER, a/k/a Jessica Chambers, CHERI SMITH, GWENDOLYN R. GILL, MELANIE SCOTT, THERESA SPEARS, a/k/a Theresa Lockett, ETHEL HYLTON, RUBY E. ROBERTSON, BEVERLY BROWN, TOLEDA RICE, CHERYL DREAKFORD, CASSANDRA BOWDEN, JOCELYN NICHOLS, LISA L. MALTBIA, FREDDIE RAINEY, BEVERLY GORDON, JACQUELINE BONDS, MYRA HOLMES, LETHA HOLLEY, CASSANDRA DALE, BETTY COBBS, WILLIAM WHITE, and RICHARD HILL, Defendants-Appellees.

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Appeal from the Circuit Court of Cook County

Honorable James S. Quinlan, Judge Presiding

JUSTICE GALLAGHER delivered the opinion of the court: The issue in this case is whether a trial court has the authority to sua sponte appoint a guardian ad litem for competent adult plaintiffs, without a hearing, where plaintiffs are already

1-05-2132 represented by counsel who objects to the appointment on their behalf. BACKGROUND This case was previously before this court, but was dismissed for lack of jurisdiction.1 It is now properly before this court pursuant to Supreme Court Rule 304(a). 155 Ill. 2d R. 304(a). Plaintiffs, J.H. and J.D., competent adults, appeal from an award of fees and expenses in the amount of $120,585.98, to be paid by them out of the proceeds of the settlement obtained for them by their counsel, to a guardian ad litem who was appointed sua sponte by the trial judge, over the objection of plaintiffs' counsel. Plaintiffs ask this court to decide the following issues: (1) Whether the trial court had inherent authority to appoint a guardian ad litem for plaintiffs who had allegedly suffered permanent and severe physical and psychological injury, where plaintiffs were competent adults already represented by counsel at the time of the appointment; (2) Whether plaintiffs, as competent adults already represented by counsel, were denied substantive and procedural due process in connection with the trial court's appointment of a guardian ad litem; (3) Whether the trial court had improper ex parte contacts with its appointed guardian ad litem; and (4) What must a guardian ad litem prove in a fee petition and is a

J.H. and J.D. v. Ada S. McKinley Community Services, Inc., No 1-03-3787 (2005) (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23)). 2

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1-05-2132 respondent entitled to a trial?2 The action below was a personal injury case. Plaintiffs, represented by counsel, sought damages for injuries that they suffered as a result of the care they received in Illinois's foster care system. In 1995, plaintiffs, by and through their father and next friend, Todd Higgin, filed their action against defendants for injuries that plaintiffs suffered while wards of the Illinois Department of Children and Family Services (DCFS), as a result of abuse plaintiffs received from their respective foster fathers, Richard Hill and William White, both of whom were pedophiles. Defendant, Ada S. McKinley Community Services, Inc., was a private child-welfare agency (the McKinley agency) that DCFS had assigned to monitor plaintiffs' foster placements. The McKinley agency knew that Richard Hill, the foster father with whom J.D. was placed, was a prior multiple pedophilic sex offender and active alcoholic. Hill severely sexually abused J.D. for 2

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