In re Mark W. ( 2008 )

Docket No. 104168.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re MARK W., a Minor (The People of the State of Illinois,
Appellant, v. Delores W. et al., Appellees).
Opinion filed April 3, 2008.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
At issue in this appeal is whether the circuit court of Cook County
erred during a hearing on termination of parental rights when it
appointed a guardian ad litem for a mentally disabled mother who
already had a plenary guardian of the person. The appellate court
concluded that the appointment of the guardian ad litem rendered the
termination proceeding “fundamentally flawed” and reversed the
judgment of the circuit court terminating the mother’s parental rights.
371 Ill. App. 3d 81. For the reasons that follow, we reverse the
judgment of the appellate court and remand the cause to that court for
further proceedings.
Background
In August of 1997, the circuit court of Cook County entered an
order pursuant to section 11a–12 of the Probate Act of 1975 (755
ILCS 5/11a–12 (West 2006)) appointing Amy B. plenary guardian of
the person for her daughter, Delores W. The order indicated that
Delores was “mentally handicapped” with “mild to moderate
retardation” and that she functioned at a third-grade level. Thereafter,
in July of 1998, Delores gave birth to a son, Mark W.
In April of 1999, when Mark was approximately nine months old,
the Illinois Department of Children and Family Services (DCFS)
received a report that Delores had shoved a plastic toy into Mark’s
mouth and throat, that she had hit him on the head with a television
remote control several times, and that she had attempted to choke
Mark when he continued to cry. Mark was taken into protective
custody and placed in foster care with his grandmother, Amy.
On April 8, 1999, the State filed a petition for adjudication of
wardship pursuant to section 2–13 of the Juvenile Court Act of 1987
(705 ILCS 405/2–13 (West 1998)) and a motion for temporary
custody (see 705 ILCS 405/2–9, 2–10 (West 1998)). The petition and
motion alleged that Mark was neglected due to an injurious
environment (see 705 ILCS 405/2–3(1)(b) (West 1998)) and that he
was abused because he faced a substantial risk of physical injury (see
705 ILCS 405/2–3(2)(ii) (West 1998)).
On April 9, 1999, the circuit court awarded temporary custody of
Mark to DCFS. Mark remained in the care of Amy until July of 1999,
when he was removed from Amy’s care because of concerns about
her parenting skills and fears that Mark was at risk of being harmed.
According to documents generated by DCFS, Mark had what
appeared to be burns on his stomach and toe that Amy was unable to
explain. Mark was placed with foster parents from July of 1999 to
June of 2000. He was then placed with a foster parent, Michelle N.,
with whom he remains to the present day.
After several continuances, the State’s petition for adjudication of
wardship was set for trial on October 3, 2000. On that date, however,
the circuit court was informed that, despite several previous attempts
to retain representation, Delores did not have an attorney. Aware that
she was disabled, the court expressed an intent to appoint a bar
attorney as both attorney and guardian ad litem for Delores. The case
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was then passed so that the bar attorney for the day, Raymond
Morrissey, could speak with Delores and Amy. When the case was
recalled, Morrissey told the court the following:
“Your Honor, Ray Morrissey. I am the bar attorney today,
and I have attempted to speak with the mother along with her
guardian. The guardian is not present at this time. She has
made it known emphatically clear that she does not want me
to represent her daughter as attorney or guardian, and that she
wants to hire a private attorney for her daughter.
***
*** I have talked to the mother, and I also explained to
the guardian that there may be a conflict between what she
feels is in the best interest of her daughter and what I feel is
the best interest, and then she stopped me and she said: I want
to hire a private attorney for my daughter.
***
I have no problem with accepting appointment as the
guardian. I am just not sure if she [Amy] as a legal guardian
would have a right to hire a private attorney for her daughter.”
After listening to Morrissey’s statement, and after questioning
Delores, the circuit court stated that it would give Amy time to hire
private counsel. The court then appointed Morrissey guardian ad
litem for Delores.
On October 10, 2000, the circuit court entered an order amending
the petition for adjudication of wardship to include an allegation that
Mark was dependent due to the physical or mental condition of his
parent, guardian or custodian. See 705 ILCS 405/2–4 (West 1998).
On November 27, 2000, following an adjudicatory hearing (see 705
ILCS 405/2–21 (West 1998)), the circuit court found that Mark was
a dependent child, due to the mental condition of his mother. A
dispositional hearing was held on March 29, 2001 (see 705 ILCS
405/2–22 (West 1998)), and Mark was made a ward of the court.
Shortly thereafter, in June of 2001, the appellate court filed its
decision in In re K.C., 323 Ill. App. 3d 839 (2001). In re K.C. held
that the State must name a plenary guardian of a parent as a party-
respondent in a petition for adjudication of wardship. In order to
comply with the decision, on March 15, 2002, the circuit court
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vacated the adjudicatory and dispositional orders that had previously
been entered in the case. The State’s petition for adjudication of
wardship was then amended to add Amy as a respondent and she was
given proper notice of the proceedings.
On December 9, 2002, the circuit court revisited the issue of
Delores’ representation, asking Morrissey if he would accept
appointment as both attorney and guardian ad litem for Delores.
Morrissey declined, stating that such an appointment would create a
conflict of interests:
“I would object for a couple of reasons. Firstly, I was
discharged as her attorney. My independent standing all the
way through, and I was hoping I had made it clear every time
I appeared on the case, I was just appointed as her guardian,
not as her attorney and guardian. Correct, I was appointed as
her attorney and guardian but I was fired by Amy [B.]. So for
me to be reappointed I think is a conflict on the case.
Also, if your Honor saw fit to appoint me on the case
today and we did proceed, there were a whole different set of
issues that I have to deal with. In this particular case there’s
a strong conflict, as we say, bifercation [sic] between my role
as guardian and my role as attorney. I would be advocating
two contradictory positions. I don’t think that would be in the
best interest of my client at this time. So, I’d ask the matter be
passed for appointment of private attorney.”
Following Morrissey’s comments, the court appointed attorney Mark
Kusatzky as Delores’ counsel. Morrissey continued as Delores’
guardian ad litem.
In January of 2003, the circuit court held a second adjudicatory
hearing and found that Mark was abused and neglected. Following a
second dispositional hearing in March 2003, the court found that
Delores, Amy, and Mark’s father1 were all unable and unwilling for
reasons other than financial circumstances to care for Mark. The court
made Mark a ward of the court and appointed the DCFS guardian
administrator as his guardian. In January of 2004, the court held a
1
Mark’s father did not appeal the termination order and is not a party to
this appeal.
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permanency planning hearing and found that Delores had not made
any progress toward the goal of returning home. The court then
entered a permanency goal of substitute care pending termination of
parental rights.
On April 27, 2004, the State filed a supplemental petition for
appointment of a guardian with the right to consent to adoption,
alleging that Delores was unfit and that it would be in Mark’s best
interests to terminate parental rights. The termination hearing began
on November 9, 2004. Neither Delores nor Amy appeared in court at
any time during the hearing. However, both women were represented
by their attorneys and Morrissey was present as guardian ad litem for
Delores.
During the unfitness portion of the termination hearing, evidence
was introduced which showed that Delores had failed to participate
in DCFS’s various assessment and reunification services and had
failed to make progress toward reunification with Mark. Evidence
was also introduced which showed that Amy had repeatedly
prevented Delores from following her service plans, that she had
failed to provide consent, as Delores’ plenary guardian, for Delores
to receive various services,2 that she had been hostile to service
providers, and that her behavior had impeded efforts to reunify
Delores with Mark.
At the close of the unfitness portion of the termination
proceeding, the attorneys for Delores and Amy argued against
termination of Delores’ parental rights. Morrissey made a brief
statement to the contrary, asserting that Delores’ parental rights
should be terminated. As evinced by a review of the record as a
whole, Morrissey’s position was that, in light of assessments made by
DCFS, the only way Delores could be reunited with Mark would be
if she participated in an assisted living program that provided her with
the necessary support and services for raising Mark. Amy, however,
refused to permit Delores to participate in such a program. Thus, in
2
From the outset of the proceedings, Morrissey took the position that he
had no authority, as guardian ad litem, to provide consents to receive
services or releases for information on Delores’ behalf. His role was solely
to apprise the court as to what he believed was in Delores’ best interests
with respect to Mark.
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order to have a chance of reuniting with her child, Delores would
have to curtail, and perhaps sever, her relationship with Amy. Faced
with the options of Delores ending her connection with Mark, a child
with whom she had an attenuated relationship, or severing her
connection with her mother, a woman with whom Delores was
inextricably bound, Morrissey concluded it would be in Delores’ best
interests to terminate her parental rights.
In April 2005, the circuit court found Delores unfit based upon
her failure to maintain a reasonable degree of interest, concern, or
responsibility as to Mark’s welfare (see 750 ILCS 50/1(D)(b) (West
2000) and based upon her failure to make reasonable progress toward
reunification (see 750 ILCS 50/1(D)(m) (West 2000). Thereafter, the
court found it was in Mark’s best interests to terminate Delores’
parental rights. On July 12, 2005, the circuit court entered an order
finding Delores unfit, terminating her parental rights and appointing
the DCFS guardian administrator as guardian with the right to consent
to adoption.
Amy appealed. Before the appellate court she raised four issues:
(1) Delores’ due process rights were violated because Morrissey
recommended that her parental rights be terminated; (2) the circuit
court’s findings at the termination of parental rights hearing were
against the manifest weight of the evidence; (3) the circuit court did
not have jurisdiction to terminate Delores’ parental rights because
Mark was illegally removed from Amy’s care in 1999; and (4) the
circuit court committed reversible error when it barred certain
witnesses from testifying. The appellate court did not reach these
issues, however, choosing instead to consider, sua sponte, whether
the circuit court’s appointment of Morrissey as guardian ad litem was
appropriate.
The appellate court held that, following Amy’s appointment as
Delores’ plenary guardian of the person, Morrissey’s appointment as
guardian ad litem was unauthorized under either the Juvenile Court
Act or the Probate Act. The appellate court further held that the
termination of parental rights hearing was “fundamentally flawed”
and the judgment terminating Delores’ parental rights had to be
reversed, both because Morrissey revealed confidential information
obtained during his initial conversation with Amy and Delores and
because he was operating under an actual conflict of interest during
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the proceedings. One justice dissented, concluding that any error
during the termination hearing was harmless, as the evidence
overwhelmingly established Delores’ unfitness as a parent. 371 Ill.
App. 3d at 102 (O’Mara Frossard, J., dissenting). We granted the
State’s petition for leave to appeal. 210 Ill. 2d R. 315.
Analysis
Two principal issues are raised by the appellate court’s decision
in this case: (1) Does the circuit court have the authority, as a general
matter, to appoint a guardian ad litem for a mentally disabled parent
during a termination of parental rights hearing when the parent
already has a plenary guardian of the person? and (2) Assuming the
circuit court has such authority, must the judgment of the circuit court
terminating Delores’ parental rights in this case nevertheless be
reversed because Morrissey revealed confidential information and
was operating under a conflict of interest? We address these issues in
turn.
A guardian ad litem functions as the “eyes and ears of the court”
and not as the ward’s attorney. In re Guardianship of Mabry, 281 Ill.
App. 3d 76, 88 (1996), citing In re Marriage of Wycoff, 266 Ill. App.
3d 408, 415-16 (1994). The traditional role of the guardian ad litem
is not to advocate for what the ward wants but, instead, to make a
recommendation to the court as to what is in the ward’s best interests.
Mabry, 281 Ill. App. 3d at 88. The role of the guardian ad litem is
thus in contrast to the role of the plenary guardian of the person
appointed pursuant to the Probate Act. Under section 11a–17 of the
Probate Act, the plenary guardian makes decisions on behalf of the
ward and must, in general, conform those decisions “as closely as
possible to what the ward, if competent, would have done or intended
under the circumstances.” 755 ILCS 5/11a–17(e) (West 2000). See
also In re Marriage of Burgess, 189 Ill. 2d 270, 278-79 (2000)
(guardian must generally “make decisions on behalf of a ward in
accordance with the ward’s previously expressed wishes”).
In the case at bar, the appellate court concluded that the circuit
court had no authority, under either the Juvenile Court Act or the
Probate Act, to appoint a guardian ad litem for Delores. Before this
court, the State points to various statutory provisions which, it
contends, support by implication the circuit court’s authority to
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appoint a guardian ad litem. The State acknowledges, however, that
no provision speaks directly to the situation presented here. At the
same time, Amy acknowledges that no statutory provision expressly
forbids the appointment of a guardian ad litem. The question, then, is
whether in the absence of controlling statutory authority, the circuit
court has the authority to make such an appointment. We believe it
does.
Delores was adjudicated a disabled person under the Probate Act
in 1997. A disabled person is viewed as “a favored person in the eyes
of the law” and is entitled to vigilant protection. In re Estate of
Wellman, 174 Ill. 2d 335, 348 (1996) (“[t]he trial court protects the
disabled person as its ward, vigilantly guarding the ward’s property
and viewing the ward as a favored person in the eyes of the law”).
Once a person is adjudicated disabled, that person remains under the
jurisdiction of the court, even when a plenary guardian of the person
has been appointed. In re Estate of Nelson, 250 Ill. App. 3d 282, 286-
87 (1993). The court has a duty to judicially interfere and protect the
ward if the guardian is about to do anything that would cause harm.
Nelson, 250 Ill. App. 3d at 287. To fulfill this duty, the court’s
authority is not limited to express statutory terms. As our appellate
court has held:
“When, as in this case, a court is charged with a duty to
protect the interests of its ward, we believe that by implication
it has such powers, although not expressly given by the statute
vesting the court with jurisdiction over the ward, as are
necessary to properly discharge that duty ***.” Nelson, 250
Ill. App. 3d at 287-88 (recognizing the authority of the circuit
court to appoint a guardian ad litem to investigate an
allegation that a ward was neglected).
See also In re Serafin, 272 Ill. App. 3d 239, 244 (1995) (“The circuit
court is charged with a duty to protect the interests of its ward and
has, by statute and otherwise, those powers necessary to appoint a
guardian ad litem to represent the interests of the respondent during
the court’s exercise of its jurisdiction”).
In accordance with this precedent, and given Delores’ status as a
disabled person entitled to the utmost protection of the courts, we
have little difficultly concluding that the circuit court had the
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authority to appoint a guardian ad litem to make a recommendation
to the court as to what was in Delores’ best interests.
The appellate court, however, was also critical of the circuit
court’s appointment of Morrissey as guardian ad litem because the
court did not first revoke Amy’s letters of office. 371 Ill. App. 3d at
97-98. As noted, neither the Juvenile Court Act nor the Probate Act
addresses the situation presented here, and we think it would be
unwise to impose a requirement, as a matter of law, that the circuit
court must revoke the plenary guardian’s letters of office in situations
such as this. The facts of this case illustrate the point.
At various times during the proceedings in this case, the circuit
court expressed concern about Amy’s decisions not to permit Delores
to participate in reunification services with DCFS. At one point, for
example, the court noted,
“If the record before me were clear that [Amy] is making a
decision about D[e]lores because she feels that D[e]lores
simply cannot handle the parenting, is not capable of
managing with a child, I would have complete respect for
that. *** [But] [t]here have been things that have been said
throughout the course of both of these proceedings, Mark and
Paula’s[3] that cause me some concern that while that may be
a factor[,] *** there may be other factors as well that [are]
causing [Amy] to have perhaps clouded judgment on the
issue.
***
My concern is that Ms. Amy [B.], as a result of the
removal of Mark, has become so disenchanted with our
system and has become so disaffected by the system that she
has clouded judgment when it comes to what is best for
D[e]lores.”
While noting that Amy’s decisionmaking appeared to be “clouded by
her unhappy relationship with the agency and with our court system,”
the circuit court at the same time stated that it had no reason to
believe that Amy was not providing adequately for Delores’ day-to-
3
Paula was another child of Delores who was subject to juvenile court
proceedings. See 371 Ill. App. 3d at 104 (O’Mara Frossard, J., dissenting).
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day care. The court also made it clear that it did not want to drive a
wedge between Amy and Delores because doing so would be harmful
to Delores’ interests.
Appointing a guardian ad litem without first revoking the plenary
guardian’s letters of office was appropriate in these circumstances.
Simply because the circuit court may find it desirable, in a particular
case, to appoint a guardian ad litem to obtain a recommendation
regarding a ward’s best interests, it does not follow that the plenary
guardian of the ward is unfit or must be discharged. Indeed, where as
here, the plenary guardian is the ward’s own parent, discharging the
guardian could be contrary to the ward’s best interests. We conclude,
therefore, that there is no need, as a matter of law, to revoke the
plenary guardian’s letters of office before appointing a guardian ad
litem in situations such as presented here.
The appellate court concluded that the appointment of Morrissey
as guardian ad litem was unnecessary in this case, stating: “we find
no evidence in the record of a need for the juvenile court to appoint
a GAL to protect Delores W.’s interests.” 371 Ill. App. 3d at 96. In so
finding, the appellate court made no mention of the circuit court’s
concerns regarding Amy’s decisionmaking. Nor did the appellate
court acknowledge the many instances when Amy prevented Delores
from engaging in reunification services, refused to sign releases of
information, was antagonistic toward the agencies and individuals
working with the family, and compromised Delores’ chances for
reunification with Mark. In our view, there is ample evidence of
record to support the circuit court’s appointment of Morrissey as
guardian ad litem during the termination proceeding.
The appellate court also concluded, however, that the circuit court
erred in appointing Morrissey because he violated the attorney-client
privilege and the rules of professional conduct. According to the
appellate court, Morrissey “violated Delores W.’s attorney-client
privilege and the attorney’s rule of confidentiality because he used
privileged and confidential information to make arguments and to
take positions in the juvenile court that were adverse to Delores W.’s
interests.” 371 Ill. App. 3d at 102.
The appellate court did not find that Morrissey disclosed, or
attempted to disclose, confidential information in court or elsewhere.
Rather, the appellate court’s position was that, based on statements
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he made in court, Morrissey must necessarily have obtained
confidential information during his initial conversation with Delores
and Amy on October 3, 2000, and that he used this information to
advocate a position adverse to Delores’ interests. As the appellate
court stated:
“After receiving instructions from Judge Coleman, Morrissey
had an attorney-client conference with Amy B. and Delores
W. The record does not reveal what was discussed during the
attorney-client conference. However, Morrissey obtained
sufficient information during the attorney-client conference
with Amy B. and Delores W. to conclude that what he
thought was in Delores W.’s best interest differed from what
Delores W. and Amy B. thought was in Delores W.’s best
interest. After the October 3, 2000, attorney-client conference,
Morrissey stated on the record that he had a conflict, and,
therefore, he was not appointed by Judge Coleman as Delores
W.’s attorney but as her GAL.”4 (Emphasis added.) 371 Ill.
App. 3d at 99.
In other words, according to the appellate court, Morrissey obtained
confidential information from Delores and Amy on October 3, 2000,
under the guise of an attorney-client conversation, immediately
formed a personal opinion based on this information regarding what
would be in Delores’ best interests, and then stated to the court that
his personal opinion was at odds with what Delores and Amy
believed was in Delores’ best interests. From this, the appellate court
concluded that Morrissey should not have accepted appointment as
guardian ad litem and that he violated the attorney-client privilege
and rules of professional responsibility in doing so. We disagree.
After speaking with Delores and Amy, Morrissey did not tell the
circuit court that he had conflict. Rather, he stated the following:
“I have talked to the mother, and I also explained to the
guardian that there may be a conflict between what she feels
is in the best interest of her daughter and what I feel is the
4
Contrary to the appellate court’s statement, Morrissey declined
appointment as Delores’ attorney because Amy did not want him to
represent her. Morrissey’s position was that, as plenary guardian of the
person, it was Amy’s right to select Delores’ counsel.
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best interest, and then she stopped me and she said: I want to
hire a private attorney for my daughter.” (Emphasis added.)
The most reasonable reading of this statement is that Morrissey
simply described, in a general manner, his role as potential attorney
and guardian ad litem to Delores and Amy. As the circuit court had
also done, Morrissey explained to Amy that his role would be
independent of her, and that there might come a time when they
would disagree as to Delores’ best interests. At that point, Amy
stopped the conversation and nothing further was discussed. This
reading comports with Morrissey’s additional statement to the court
that he had only “attempted to speak with the mother along with her
guardian.” In addition, unlike the appellate court’s interpretation, our
reading of the record comports with the realities of the situation: it is
unlikely that Morrissey formed an opinion regarding what would be
in Delores’ best interests–a person he had never met before–based on
a single conversation at the courthouse.
In any event, and most importantly, at no time during the circuit
court proceedings did Amy object to Morrissey’s appointment, and
at no time were any factual findings made by the circuit court
regarding Morrissey’s conversation with Delores and Amy. On this
record, it would be speculative at best to conclude that the
conversation held on October 3, 2000, included confidential
information, or that it fell within the type of communication protected
by the attorney-client privilege. See, e.g., In re Himmel, 125 Ill. 2d
531, 541 (1988) (the attorney-client privilege exists, where, inter alia,
legal advice of any kind is sought from a professional legal adviser in
his capacity as such, and the communication at issue relates to that
purpose). We decline to hold that Morrissey violated the attorney-
client privilege or the rules of professional conduct based on
speculation.
In finding that Morrissey had an actual conflict of interest, the
appellate court also referenced Morrissey’s statements on December
9, 2002, when he declined appointment as Delores’ counsel. As the
record makes clear, Morrissey did not say he had an actual conflict
based on his having served as both attorney and guardian ad litem.
Rather, he stated there was a potential for conflict, which would only
be realized if he were appointed Delores’ attorney. Morrissey was
never appointed Delores’ attorney. Consequently, we conclude that
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Morrissey was not operating under a conflict of interests, and the
appellate court erred in holding to the contrary.
Finally, we note that the Cook County public guardian, as attorney
for Mark W. and appellee in this case, has asked that in addition to
reversing the appellate court’s judgment, we also “review the juvenile
court’s findings and affirm the termination of parental rights order.”
The public guardian stresses the time-sensitive nature of child
custody proceedings and notes that Mark W. has been in the juvenile
court system for over eight years.
We understand the public guardian’s request to be that we
consider the four issues raised by Amy in her initial appeal from the
circuit court that were left unaddressed by the appellate court. We
note, however, that the State, as appellant before this court, neither
has briefed these issues nor raised them at oral argument. Further, in
its prayer for relief, the State has requested that the cause be
remanded to the appellate court, stating: “Given the manner in which
the Appellate Court addressed only the issue that it saw, without
addressing the issues raised by [Amy], the People understand that,
despite the fact that this appeal involves the interests of a child, this
matter must be remanded to the Appellate Court with directions to
address any issues raised by Amy’s appellate court brief that are not
resolved by this Court’s opinion.” Under these circumstances, we
conclude that remand to the appellate court is appropriate.
Nevertheless, we share the public guardian’s concern regarding
the time-sensitive nature of this proceeding. Accordingly, we direct
the appellate court to file its judgment in this matter within 60 days
of the issuance of this court’s mandate.
Conclusion
For the foregoing reasons, the judgment of the appellate court is
reversed. The cause is remanded to that court to address those issues
that were initially raised by Amy in her appeal from the judgment of
the circuit court terminating Delores’ parental rights. The appellate
court is directed to file its judgment in this matter within 60 days of
the issuance of this court’s mandate.
Appellate court judgment reversed;
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cause remanded with directions.
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