Suburban government gadfly Randy Toler, 42, says he met the young woman he wants to marry at a Naperville Pizza Hut. But now he claims the state is standing in the way.
His fiance is Alicia Kirk, an 18-year-old ward of the state, and the case has raised rare issues for both the courts and Illinois’ child-welfare officials: How far can–or should–the state go in exercising guardianship rights over wards who have reached legal age?
Because of an unusual provision in Illinois, most wards technically remain in state custody until they are 19. Whether that means the court must give “permission” for an 18-year-old to marry–and what the repercussions would be if it didn’t–are at the heart of the legal tug of war.
In simpler terms, the case is forcing the Department of Children and Family Services and a Kankakee County judge to grapple with the age-old parental dilemma of whether to let one’s child run off with a questionably appropriate suitor.
“We have to act as a parent would, and I think any parent looking at this situation would say, if it’s true love it can probably wait a few days,” said DCFS Director Jess McDonald. “I don’t mean to be flip about this, but is this really in this young person’s interest?”
Toler, who is divorced, is a software salesman and a consistently unsuccessful candidate for low-level municipal seats.
Authorities privately harbor doubts about Toler’s motivations. They wonder why a 42-year-old man feels such a sense of urgency about marrying a troubled teen less than half his age.
And by eagerly seeking publicity for something he characterizes as an effort to free a “political prisoner,” is Toler merely trying to bring attention to his fledgling aldermanic campaign in Aurora?
McDonald mentioned faxes Toler sent him recently detailing his political views.
“I could see why the guardian is concerned,” McDonald said.
As for Kirk, who will turn 19 in October, since her parents died nearly a decade ago–her mother of ovarian cancer, her father in an automobile accident–she has hopscotched from one foster home to another around the state.
She works part time washing dishes in a Pizza Hut, where she met Toler about a year ago, but she has had so many discipline problems at her Plainfield group home that most of her phone and visiting privileges have been taken away.
“If you really love the person, age shouldn’t really matter,” Kirk said. “I see a man that’s very caring and very sweet and who wants to help me get out of this mess.”
Toler says of Kirk: “They’re saying she had a troubled past and they’re concerned, but I’ve known her for over a year and she’s completely got her mental abilities.
“The bottom line is she’s had an awful, difficult childhood and these people are making it worse.”
Toler said he was told one reason Kirk’s discharge from state custody had been delayed was because the court is conducting a criminal background check on him.
In the meantime, if the couple suddenly decide to run off and secretly get married, as they have threatened, the courts may soon enter uncharted legal waters.
If Toler and Kirk elope without state permission, DCFS could issue a warrant to apprehend the young woman. Chief Judge Kendall Wenzelman said he would then have the authority to invalidate the union.
“So long as they are wards and under guardianship of a state agency, they cannot get married without permission,” Wenzelman said.
But whether the courts actually have such authority is a matter of debate.
“The easiest thing to do as far as our caseload is concerned is to grant (Kirk’s) request for discharge,” Wenzelman said. “But after time and effort is invested in this minor, the last thing we want to do is to have that occur prior to the time the minor is ready for it.”
Though Illinois has no case law clearly outlining what the state can do in these kinds of rare cases, Cook County Public Guardian Patrick Murphy contends no judge or agency can prevent an 18-year-old from getting married.
“Unless that person has a disability, DCFS can’t prevent them from getting married or joining the army or running nude on the beach,” Murphy said. “Their power and a judge’s power is the same as any parent’s, and no more.”
Bruce Boyer, supervising attorney with the Children and Family Justice Center at Northwestern University Law School, agrees.
“Anybody who is over 18 has a right to make certain kinds of decisions about how to live their life unless and until the court goes through the process of making a determination that the child is not competent,” he said. “And that’s a difficult process with a high standard.”
Legally, once someone turns 18, they are imbued with the rights of an adult. In most states, that is the age at which foster children are automatically released from guardianship.
In Illinois, though, most foster care children are released only after they turn 19. State policy is even more unusual in that DCFS may maintain supervision of its wards up to age 21, even against their will, depending on how well-prepared the DCFS and the courts believe they are to live independently.
About 3,800 of the 42,500 on the state’s foster care caseload are young people 18 or older, according to McDonald. In most of those cases, the youth have mental or developmental disabilities, or remain in the system in order to take advantage of special programs such as college tuition breaks or independent living services.
But more often than not, the agency escorts wards out of the system as soon as they reach 19, according to Benjamin Wolf, attorney for the American Civil Liberties Union in Chicago.
“The bigger problem we’ve seen is children being dropped out of the system when they ought to be offered an option to stay in and receive services,” he said.
Alicia Kirk’s current guardians have concerns not only about her maturity, but also about her vulnerability. They also worry about the spotlight Toler is placing on the agency as it makes such decisions.
Wards of the state can petition to be discharged before 19, but the final say rests with the judge.
“She’s not an adult as far as this case is concerned,” said Kirk’s public guardian, Sherri Carr. “If you have DCFS involved in an older child’s life, you know there are going to be some things they are in need of. The court would have absolutely no control over getting a child needed services (such as psychiatric counseling) if they are discharged as a ward of the court.”
In the meantime, the court has ordered Kirk and Toler to go through couples counseling. Their first session was last week.
Toler, an aldermanic candidate in Aurora’s April 13 municipal election, said he’s willing to risk his political prospects for happiness, but he does not want to defy the law. And happiness, to him, means saving Kirk from state “oppression” and delivering her into a modeling career, which she says she hopes to pursue as soon as she is discharged from the system.
