In re Darius G. ( 2010 )

No. 2—10—0685
Opinion filed December 15, 2010
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
In re Darius G., ) Appeal from the Circuit Court of
) Winnebago County.
a Minor )
) No. 07—JA—309
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Tracie G., ) Patrick L. Heaslip,
Respondent-Appellant). ) Judge, Presiding.
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justice McLaren concurred in the judgment and opinion.
Justice Hutchinson dissented, with opinion.
OPINION
Respondent, Tracie G., appeals the trial court’s June 30, 2010, order terminating her parental
rights to minor Darius G.1 Respondent argues on appeal that she received ineffective assistance of
counsel and that the trial court’s findings that she is unfit and that termination is in Darius’s best
interest are contrary to the manifest weight of the evidence.
For the following reasons, we agree with respondent’s contention that she received
ineffective assistance of counsel resulting from a per se conflict of interest when, during these
proceedings, the same attorney from the public defender’s office appeared on her behalf at one
1
The trial court also terminated the parental rights of Darius’s father, but that decision is not
before us in this appeal.
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hearing but then subsequently appeared on Darius’s behalf at another hearing. Accordingly, we
reverse and remand.
I. BACKGROUND
A. Shelter Care and Permanency Review Hearings
On December 4, 2007, the State petitioned the trial court to find Darius a neglected minor
under sections 2—3 and 2—4 of the Juvenile Court Act of 1987 (Juvenile Court Act). 705 ILCS
405/2—3(1)(a), 2—4(1)(a) (West 2006). That day, the court held a shelter-care hearing.
Respondent was not present. The court appointed “Conflicts I” attorney Ryan Swift, from the
“Conflicts Division of the Public Defender’s office,” to represent Darius. Swift informed the court
that, based on the statement of facts presented to him by the State, he believed there existed probable
cause to find neglect. The court found probable cause to find neglect and found that it was a matter
of urgent and immediate necessity to place Darius in State custody with the Department of Children
and Family Services (DCFS).
On December 12, 2007, respondent appeared for a shelter-care hearing, and the court
appointed Robert Simmons of the public defender’s office to represent her. Respondent provided
the court with the identity of Darius’s father, was advised by the court of the pending petition, and
waived her right to the shelter-care hearing. Darius was placed in traditional foster care.
On March 20, 2008, respondent stipulated to the neglect petition. Darius was represented
by Kristin Anderson (the reason for the change in attorneys is unclear from the record, but it appears
that she, too, was a “conflicts” attorney), who agreed with the stipulation. The court accepted the
stipulation, finding that a factual basis supported it. The court adjudicated Darius a neglected minor,
and custody and guardianship remained with DCFS.
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Thereafter, a series of permanency-review hearings were held to assess whether respondent
was making reasonable progress toward the goal of returning Darius home to her care. At the first
hearing, on September 8, 2008, respondent’s former counsel, Simmons, appeared on behalf of
Darius’s father. Respondent’s new counsel was Matthew Jura. Darius was represented by Kristin
Anderson. Throughout the remaining permanency-review hearings, Darius was represented by
Anderson while respondent was represented by Jura (March 10, 2009) and Erin Buhl (September 1
and October 20, 2009). (On September 29, 2009, Shannon Reeves-Rich requested on Buhl’s behalf
a continuance, which was granted.)
In sum, the evidence from these hearings reflected that respondent initially made reasonable
progress but later attended only half of her scheduled visits with Darius (sometimes missing without
explanation), was evicted from her apartment, was discharged from counseling for lack of
attendance, and was unable to successfully complete a parenting class until the fourth time she
enrolled. Ultimately, on October 20, 2009, the State argued that it had made reasonable efforts but
that respondent had not. It requested that the goal be changed. On Darius’s behalf, Anderson also
requested that the goal be changed. The court agreed, finding that respondent did not make
reasonable efforts toward Darius’s return and changing the goal to substitute care pending a
determination of parental rights.
B. Termination of Parental Rights
On November 24, 2009, the State petitioned for termination of parental rights and power to
consent to an adoption, arguing that termination was appropriate because, pursuant to the Adoption
Act (750 ILCS 50/1 et seq. (West 2008)), respondent was an unfit person in that she: (1) failed to
maintain a reasonable degree of interest, concern, or responsibility for Darius’s welfare (750 ILCS
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50/1(D)(b) (West 2008)); (2) failed to protect Darius from conditions within his environment that
were injurious to his welfare (750 ILCS 50/1(D)(g) (West 2008)); and (3) failed to make reasonable
progress toward Darius’s return to her during “any 9-month period after the end of the initial 9-
month period following the adjudication of neglect[] or abuse[]” (750 ILCS 50/1(D)(m)(iii) (West
2008)).
That same day, respondent appeared before the court for arraignment on the petition.
Respondent was represented by Mike Herrmann. Anderson continued to represent Darius. The court
informed respondent of the petition’s allegations, the bifurcated nature of the proceedings (unfitness
followed by best interest), the State’s burden of proof, and respondent’s right to counsel and to
present evidence on her own behalf. Thereafter, the parties discussed locating Darius’s father so that
he could be served with the petition.
A brief hearing was held on December 18, 2009. At that hearing, respondent was again
represented by Buhl, not Herrmann.
However, at the next substantive hearing, the pretrial conference held on February 19, 2010,
Herrmann reappeared, although he no longer represented respondent. Instead, he appeared on
Darius’s behalf. No explanation was provided for why Herrmann replaced Anderson as Darius’s
attorney. Respondent was present and Buhl appeared on her behalf. As it was the father’s first
appearance, the trial court arraigned him on the petition to terminate parental rights. Afterwards, the
trial date was scheduled. Nothing else of substance happened at this hearing.
On March 19, 2010, at a brief appearance before the court on a discovery status, respondent
was again represented by Buhl and Darius was again represented by Anderson. Herrmann did not
appear.
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On May 27, 2010, trial commenced on the unfitness portion of the State’s petition.
Respondent was represented by Buhl; Darius was represented by Eric Arnquist. These attorneys
represented their respective parties through the remainder of these proceedings (again on June 17,
2010, and, finally, on June 30, 2010). After presenting evidence, the State argued that it had proved
respondent unfit as alleged in the petition. Arnquist agreed. On June 17, 2010, the court found that
the State had established by clear and convincing evidence that respondent was unfit on the three
grounds alleged in the State’s petition.
Immediately thereafter, a hearing commenced on the best-interest portion of the State’s
petition. In sum, the State argued that it would be in Darius’s best interest for respondent’s parental
rights to be terminated. Again, Arnquist agreed. On June 30, 2010, the court found that it was in
Darius’s best interest that respondent’s parental rights be terminated. Respondent appeals.
II. ANALYSIS
Respondent argues first that she was denied effective assistance of counsel because Herrmann
represented both her and Darius at different times during the proceedings. In juvenile proceedings,
ineffective-assistance-of-counsel claims are considered under the same standard as that applied in
criminal proceedings; namely, that, to establish ineffective assistance, one must show both that
counsel’s representation fell below an objective standard of reasonableness and a reasonable
probability that, but for the error, the result would have been different. In re S.G., 347 Ill. App. 3d
476, 479 (2004). Here, however, respondent argues that she need not establish any prejudice to
succeed on her ineffective-assistance claim because, when the same attorney represents opposing
parties in the course of the same litigation, a per se conflict of interest arises and prejudice is
presumed. Respondent argues that such representation is per se ineffective and that her right to
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privileged and confidential communication with Herrmann was violated when, after representing her,
he appeared on Darius’s behalf.
The State disagrees that this situation presents a per se conflict of interest. The State notes
that the case law enumerating per se conflicts of interest has been developed in the criminal-law
context, where the adversarial nature of the proceedings has a fundamental impact on constitutional
due process protections. Here, the State notes, proceedings under the Juvenile Court Act are not
meant to be adversarial, a guardian ad litem does not represent the minor in a traditional attorney-
client manner, and a respondent’s right to counsel in termination proceedings derives from the
Juvenile Court Act, not the constitution. Accordingly, the State argues that the per se conflict rule
should be applied with restraint in the “unique three-party setting of a termination proceeding where
the objective is not merely to secure a judgment that benefits one party at the expense of another, but,
rather, to ascertain and order procedures to secure the best interests of the minor child.”
Although respondent did not raise this issue before the trial court, forfeiture is a limitation
on the parties, not the reviewing court. In re D.F., 208 Ill. 2d 223, 239 (2003). Here, we relax the
forfeiture rule to: address a plain error affecting the fundamental fairness of a proceeding (see In re
Jay. H., 395 Ill. App. 3d 1063, 1067 (2009)); maintain a uniform body of precedent (see Dillon v.
Evanston Hospital, 199 Ill. 2d 483, 505 (2002)); and reach a just result (see In re D.F., 208 Ill. 2d
at 239).
We review de novo the question of whether counsel’s representation constituted a per se
conflict of interest. People v. Miller, 199 Ill. 2d 541, 544 (2002). As the State correctly notes, the
per se conflict-of-interest inquiry originated in criminal law and is based upon a criminal defendant’s
sixth amendment right to effective assistance, i.e., conflict-free representation. People v. Hernandez,
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231 Ill. 2d 134, 142 (2008). A per se conflict arises when a defense attorney has ties to a person or
entity that would benefit from an unfavorable verdict for the defendant, because the attorney’s
knowledge that his or her other client’s favorable result would conflict with the defendant’s interest
“might ‘subliminally’ affect counsel’s performance in ways [that are] difficult to detect and
demonstrate.” Id. at 142-43. In the criminal context, our supreme court has identified three per se
conflicts requiring reversal: (1) defense counsel has a prior or contemporaneous association with the
victim, the prosecution, or an entity assisting the prosecution; (2) defense counsel
contemporaneously represents a prosecution witness; or (3) defense counsel is a former prosecutor
who had been personally involved in the defendant’s prosecution. Id. The “threshold inquiry in any
conflict-of-interest case is whether, in fact, defense counsel represented or represents a party with
conflicting interests to those of the defendant.” People v. Graham, 206 Ill. 2d 465, 472 (2003).
The State argues that none of the three circumstances identified above exists here, but it
concedes that two appellate court opinions have applied the per se conflict analysis outside the
criminal context and, specifically, in cases involving termination of parental rights: In re D.B., 246
Ill. App. 3d 484, 492 (1993) (no per se conflict established), and S.G., 347 Ill. App. 3d at 481 (per
se conflict established). The State argues that both cases are wrongly reasoned because they fail to
fully consider that the purpose of the per se conflict rule is to address adversarial situations where
an attorney’s commitment to others undermines his or her loyalty to the defendant’s interest. The
State urges that such a situation is not present here because of the nature of three-party termination
proceedings and the fact that Herrmann represented Darius after representing respondent.
First, we note that, to the extent the State suggests that a parent’s right to counsel in a
termination case—a right derived from the Juvenile Court Act, not the constitution—does not require
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the representation to be conflict-free, we disagree. Implicit in the right to effective assistance of
counsel is the right to undivided loyalty from one’s attorney. In re Johnson, 102 Ill. App. 3d 1005,
1011 (1981). In other words, regardless of the source of a client’s right to representation—the
constitution or the Juvenile Court Act—the right to effective representation includes the right to
undivided loyalty from one’s attorney; that one’s counsel not undertake conflicting interests or
inconsistent duties “is so central to our profession that it is embodied in our Rules of Professional
Conduct.” S.G., 347 Ill. App. 3d at 479, citing Supreme Court Rule 1.9(a) (eff. Jan. 1, 2010).
Moreover, it is clear that “the statutory right to counsel in juvenile proceedings is violated when one
attorney is appointed to represent parties with conflicting interests.” Johnson, 102 Ill. App. 3d at
1011-12.
Second, to address the State’s argument that S.G. and D.B. should not apply here, we
summarize their holdings. In S.G., the trial court appointed an attorney (an assistant public defender)
as guardian ad litem for the minors. The attorney represented the minors for a total of two months
and appeared at one hearing where he cross-examined a State witness. After that hearing, with no
reason for the change appearing in the record, the trial court vacated the attorney’s appointment as
guardian ad litem and instead appointed him to represent the mother. The attorney represented the
mother for the next four years. Although the record did not reflect that the attorney represented the
mother in anything but a “competent and dedicated manner with complete loyalty,” the appellate
court agreed with the mother that the fact that he had first represented her children in the same
proceedings created a per se conflict. S.G., 347 Ill. App. 3d at 481.
Specifically, the court noted that it was uncontested that the attorney represented parties with
adverse objectives at different times in the same proceedings; the State did not disagree that the
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mother’s interest and the minors’ interests were diametrically opposed (the mother sought to retain
her custody and parental rights, while the State, DCFS, and the guardian ad litem advocated
otherwise). Id. The court asserted that it could “think of no reason that a party in a proceeding
brought pursuant to the [Juvenile Court] Act should not be afforded the same standard of legal
representation as a criminal defendant.” Id. The court rejected the argument that the record’s
evidence of the attorney’s limited activity on the minors’ behalf reflected that no per se conflict
arose. “[T]he State’s argument belies the underlying purpose of the per se conflict-of-interest rule.
It is what is not in the record, or what is incapable of being reflected by the record, that prompts us
to apply the per se conflict-of-interest rule in this case. Our concern is with the opinions [the
attorney] had already formulated about the ‘best interests of the children’ when representing them
and how those opinions might adversely impact his ability to later effectively represent [the mother]
with ‘undivided loyalty.’ ” (Emphases added.) Id.
The S.G. court further rejected the State’s reliance on D.B., which had found no per se
conflict where the mother’s attorney, who had previously served as the minor’s guardian ad litem,
did not simultaneously represent the minor and the mother, and the mother continued the attorney’s
representation after he informed her that he had represented the minor but did not think that there
would be a conflict of interest. D.B., 246 Ill. App. 3d at 492. The S.G. court declined to follow D.B.
because it disagreed that only simultaneous representation can create a per se conflict of interest and
because nothing in the record revealed any consultation between the attorney and the mother about
the potential for a conflict or a knowing waiver of the potential conflict. S.G., 347 Ill. App. 3d at
482.
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We similarly conclude that D.B. does not control here. Like the court in S.G., we see nothing
in the record reflecting that respondent was informed of a conflict of interest or waived her right to
conflict-free representation. Further, we disagree with D.B.’s conclusion that only simultaneous
representation can create a per se conflict of interest. Clearly, a per se conflict would exist if, for
example, the assistant State’s Attorney assigned to petition for the termination of a respondent’s
parental rights left that office and was later appointed in the same proceedings to represent the
respondent. See People v. Kester, 66 Ill. 2d 162, 167-78 (1977) (per se rule applied in criminal
context where appointed defense counsel had previously appeared in same proceeding as assistant
State’s Attorney). Obviously, such representation is not simultaneous, but any off-the-record opinion
the attorney may have developed about the respondent in his or her prior representation of the State
might affect his or her ability to represent the respondent with “undivided loyalty.” In re Lackey,
71 Ill. App. 3d 705, 707 (1979) (right to effective assistance of counsel entitles parent to “undivided
loyalty” of his or her attorney).
To determine whether S.G. should control here, however, we address three considerations:
(1) Herrmann represented respondent first and then Darius, not the other way around as in S.G.; (2)
the record reflects that Herrmann’s representation was even more limited than the guardian ad
litem’s representation in S.G.; and (3) as the State puts it, termination proceedings are unique in that
the single goal is the best interest of the child and, as such, they are not meant to be adversarial.
While we address each in turn, we ultimately conclude that none of these considerations prevails
and, accordingly, that the per se rule must apply.
First, unlike in S.G., Herrmann appeared on respondent’s behalf and then appeared on
Darius’s behalf. A conflict and resulting prejudice are clear if an attorney represents the child first,
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possibly forming the opinion that it would be in the child’s best interest for the respondent’s rights
to be terminated, and then the same attorney in the same proceedings represents the respondent. In
contrast, the prejudice to respondent here is less obvious. Is respondent’s right to conflict-free
representation prejudiced if Herrmann no longer represents her? We conclude that it is.
We consider that off-the-record confidential communications between respondent and
Herrmann likely occurred, that, in those conversations, Herrmann likely learned information that he
would not otherwise have learned, and that he might have, in his interactions with respondent,
formed an opinion of her that he would not otherwise have had the opportunity to formulate.
Certainly, it is reasonable to presume that, as respondent’s counsel, Herrmann at a minimum
interviewed her and reviewed her file. As such, if Herrmann concluded from this confidentially
gleaned information that respondent was unfit or that her rights should be terminated, he was
subsequently placed in the unique position of being able to use this information when he represented
Darius.2 In contrast, if Herrmann represented only respondent, his obligation would have been to
2
We note that, in contrasting this case to S.G., the State argues that the order of representation
here did not prejudice respondent because the real question is whether Herrmann’s prior
representation of respondent impacted his ability to adequately represent to the court what would be
in Darius’s best interest, a question that it asserts respondent has no standing to raise. After all, it
argues, “[a] guardian ad litem functions as the ‘eyes and ears of the court’ and not as the ward’s,”
and the guardian’s role “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.” In re Mark W., 228 Ill. 2d
365, 374 (2008). We disagree that this scenario is devoid of prejudice to respondent. A guardian
ad litem has the opportunity to directly advise the court about the best interest of the child unfettered
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advocate only for respondent’s interests. Thus, he would not have had the opportunity to use
confidential information against respondent, his first client, even if unintentionally. Again, the
critical focus of the per se conflict rule is the presumption that the circumstances themselves impair
the attorney’s ability to represent the first client, and the later client, with undivided loyalty. The per
se nature of the rule, which requires no proof of prejudice, reflects that, in such a case, it would be
impossible for the respondent to establish the prejudice, either because the prejudice does not appear
in the record (e.g., less aggressive tactics used to defend than otherwise would have been used) or
even because the impact on the attorney was subconscious (e.g., subconscious reluctance to attack
pleadings). S.G., 347 Ill. App. 3d at 480-81. Thus, we do not think that the order of representation
here—where Herrmann had the opportunity to use against respondent’s interests information or
impressions he acquired in their confidential relationship—precludes application of the per se
conflict rule.3
by the constraints of client wishes. Arguably, this direct access to provide the court with information
or impressions that were developed in part while representing a respondent would be more
prejudicial to the respondent who, if he or she had remained the attorney’s client, would have
retained some measure of control over the attorney’s actions via the attorney-client relationship.
3
We realize that our aforementioned conclusion regarding the prejudice here is arguably
speculative and based on potential conversations, information gleaned, opinions formed, and use of
the information. We feel compelled to note that our supreme court, in Mark W., rejected an appellate
court’s findings of an actual conflict and attorney-client-privilege violations based, in part, on
speculation. Nevertheless, while Mark W. and other cases (see, e.g., Hernandez, 231 Ill. 2d at 144)
caution against finding an actual conflict based on speculative prejudice, the issue here warrants a
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Our second consideration regarding whether to apply the per se rule in this case arises from
the limited nature of Herrmann’s representation. In our view, if there is a spectrum upon which
scenarios suggesting conflict might be measured in cases of dual, nonsimultaneous representation
in termination cases, this case arguably presents the threshold. On the record, Herrmann’s role in
this case was very minimal: the record reflects that he appeared once for respondent and once for
Darius, each time at proceedings where he did not perform any substantive, on-the-record
representation. However, Herrmann’s limited activity on the record is not dispositive. It is the off-
the-record conduct that would have impacted Herrmann’s decisions to act as he did on the record.
Similarly, Herrmann’s actions off the record might have directly prejudiced respondent. Again, we
assume that Herrmann prepared, read the file, and spoke with respondent about the case. We do not
know if Herrmann’s thoughts or impressions formed while representing respondent were in any way
communicated to Arnquist, who, on the record, agreed with the State that respondent was unfit and
that her rights should be terminated.
different conclusion. First, while speculative allegations are impermissible in establishing an actual
conflict—where a showing of prejudice is required—a showing of prejudice is irrelevant in a per se
conflict situation. Hernandez, 231 Ill. 2d at 144. Second, the conflict issue that arose in Mark W.
involved the attorney’s potential representation of the same party in dual roles (as both her attorney
and her guardian ad litem) not, as here, different parties with clearly defined competing interests.
Third, the supreme court’s opinion in Mark W. was partially based on the fact that the attorney never
actually represented the client as her attorney, but only as her guardian ad litem. Here, we have an
attorney who actually appeared on behalf of both parties.
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The point, as previously discussed, is that the per se nature of the conflict rule makes
irrelevant the length or nature of the representation, and it necessarily includes situations where
prejudice might be impossible to establish. Indeed, in S.G., the attorney, after representing the
minor, represented the mother for four years with no signs in the record of anything but competent,
dedicated, and completely loyal representation. S.G., 347 Ill. App. 3d at 481. Nevertheless, the
brevity of the attorney’s representation of the minor did not preclude application of the rule or alter
the fact that the rule’s purpose is to protect against what is not reflected in the record. Id. Similarly,
the court in Hernandez, rejecting the State’s argument that the attorney did not have an active
relationship with the party who created the conflict, stated, “the very nature of a per se conflict rule
precludes inquiry into the specific facts of a case.” Hernandez, 231 Ill. 2d at 150. The court cited
other cases where the attorney’s status alone engendered the conflict and inquiries into the degree
or extent of the representation were unnecessary. Id. Further, the court held that “active
representation” was simply unnecessary, and that conflicts may arise from counsel’s “ ‘prior or
current’ ” or “ ‘previous or current’ ” association, relationship, commitment, professional
connection, or “ ‘some tie’ ” with both the “victim” and the defendant. Id. at 151. Accordingly,
here, Herrmann’s limited appearance and his failure to perform on the record any obviously
prejudicial representation are irrelevant to a finding of a per se conflict.
Our third consideration in deciding whether to apply the per se conflict rule is that, as the
State points out, the rule originated in criminal law and in relation to constitutional protections and,
therefore, might not perfectly fit the unique three-party termination proceedings contemplated by the
Juvenile Court Act and the Adoption Act. Proceedings under the Juvenile Court Act are not meant
to be adversarial (705 ILCS 405/1—5(1) (West 2008)) and if, as the statutes contemplate, the
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purpose of the proceedings is to consider the best interest of the child, the parties arguably do not
have conflicting interests. Nevertheless, while this might be true in theory, we are hard-pressed to
say that where the State and the guardian ad litem seek to terminate the parent’s rights to the child,
and the parent seeks to keep his or her rights, those interests are not conflicting. Indeed, and as noted
in S.G., the Juvenile Court Act itself contemplates the likelihood of conflicts of interest arising
between minors and their parents and accordingly permits, and sometimes requires, courts to appoint
guardians ad litem to serve the minors’ interests. 705 ILCS 405/2—17 (West 2008); S.G., 347 Ill.
App. 3d at 478. Presumably, the trial court here recognized this inherent possibility and pursuant
to the Juvenile Court Act appointed counsel from the “conflicts division” of the public defender’s
office to represent Darius.
We also note that, while the shared goal in juvenile proceedings is to serve the child’s best
interest, what that best interest is often depends on whose perspective is being considered. Here, as
in S.G., the State and the guardian ad litem (although not Herrmann, at least not on the record)
agreed that it was in Darius’s best interest that respondent’s rights be terminated—a position
diametrically opposed to respondent’s. Thus, competing positions clearly may exist within the
unified goal of best interest.
In sum, we find S.G.’s reasoning sound and see no compelling reason to depart from its
conclusion. From a pragmatic standpoint, we agree with S.G. that the better rule is to find that
Herrmann’s representation of both respondent and Darius in these termination proceedings created
a per se conflict. As stated by the court in Hernandez, “[a]pplication of the per se rule is not
unworkable but rather straightforward and simple.” Hernandez, 231 Ill. 2d at 147. A clear rule
better informs attorneys that, while multiple attorneys from the public defender’s office may
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substitute to represent the same client, the same attorney may not during the proceedings appear on
behalf of different clients.4 Further, a clear rule will inform the trial court not to accept an
appearance from an attorney who already, at some point during the proceedings, appeared on behalf
of another party. Thus, here, we conclude that a per se conflict of interest requiring reversal
arose when Herrmann appeared on both respondent’s and Darius’s behalf at different times during
the same proceedings. Prejudice is presumed and respondent need not demonstrate that the conflict
contributed to the judgments entered against her. As Herrmann’s first appearance occurred after the
petition to terminate parental rights was filed, we reverse the judgments of the trial court finding
respondent unfit and terminating her parental rights. We remand for new hearings on the petition
to terminate and for the appointment of new counsel consistent with this opinion.
Our conclusion should not be construed as insensitive to the importance of finality in juvenile
proceedings. Rather, as the State conceded at oral argument, we do not pursue “finality at any cost.”
We remain mindful that a proceeding to terminate parental rights is a drastic measure and that the
strict procedures contained in the Juvenile Court and Adoption Acts, including the right to be
represented by counsel, are paramount. In re E.B., 231 Ill. 2d 459, 463-64 (2008).
III. CONCLUSION
4
The State asserts that Herrmann “stepped up” at these proceedings, suggesting that he
merely appeared to assist his colleagues who could not be present. To the contrary, Herrmann
appeared on behalf of his clients. He did not, for example, represent to the court that respondent’s
(or Darius’s) counsel was unavailable and that a continuance was needed. This distinction is critical
because, in the latter example, Herrmann would be representing his office or his colleague, not a
client. Accordingly, there would be no conflict.
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For the foregoing reasons, the judgment of the circuit court of Winnebago County is reversed,
and the cause is remanded.
Reversed and remanded.
JUSTICE HUTCHINSON, dissenting:
I generally agree with the analysis presented by the majority concerning the per se conflict
of interest issue. I do not agree, however, that this court should have reviewed the issue. I do not
believe that we should address the issue because the issue was never raised in the trial court, either
during the series of hearings that followed the events in question or upon any motion for
reconsideration. Accordingly, I do not believe that this issue has been preserved for review.
This court should not overlook forfeiture because the rules of civil procedure do not direct
our consideration of this issue. See In re Samantha V., 234 Ill. 2d 359 (2009). In In re M.W., 232
Ill. 2d 408, 430 (2009), our supreme court explained that the forfeiture principles that apply in
criminal proceedings also apply in proceedings under the Juvenile Court Act. A criminal defendant
preserves an error for review by objecting to the claimed error at trial and raising the issue in a
posttrial motion. Samantha V., 234 Ill. 2d at 368, citing M.W., 232 Ill. 2d at 430. As the M.W. court
stated, a respondent’s failure to object at trial forfeits consideration of the claimed error on appeal,
unless the respondent can demonstrate plain error. M.W., 232 Ill. 2d at 430.
In the present case, respondent forfeited review of this issue by not objecting at trial and by
not including it in a posttrial motion. See In re Madison H., 215 Ill. 2d 364, 379 (2005), citing
People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a trial objection and a written posttrial motion
raising the issue are necessary to preserve an issue for appellate review). This same premise was
recently addressed by the Illinois Supreme Court. See People v. Taylor, 237 Ill. 2d 356 (2010)
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(where a potential conflict of interest is not brought to the attention of the trial court, a defendant
must establish that an actual conflict of interest adversely affected his lawyer’s representation).
Finally, an opinion rendered without trial court review of the issue would be purely advisory. See
In re Robert S., 213 Ill. 2d 30, 45 (2004) (stating that reviewing courts should not render advisory
opinions).
The record in this case is complete as to the evidence presented and the trial court’s findings.
A careful review of that record reveals no actual conflict of interest that impacted respondent’s case.
Counsel who appeared consistently on behalf of respondent after attorney Herrmann was present for
respondent’s arraignment waged a steady and solid case on behalf of respondent. Indeed, respondent
does not even raise the argument that an actual conflict of interest occurred.
Rather, the majority and respondent are concerned about what happened outside the record
when the same assistant public defender stepped up on behalf of respondent one day and then
stepped up approximately three months later on behalf of the minor. Had this representation of both
parties during the termination of parental rights proceedings been addressed to the trial court during
those proceedings or in a postjudgment motion, the trial court could have taken evidence, if
necessary, to determine whether during Herrmann’s brief representation any information had been
revealed that compromised either respondent’s case or the minor’s case. During oral argument, the
State noted that this case continued on for several months after Herrmann’s representation of the
minor and that during this time, no one raised the issue or apparently considered that the scenario
raised an ethical problem or a conflict of interest.
By this dissent, I am not excusing this administrative mistake nor am I condoning it. The
majority clearly identifies the dangers and potential constitutional dimensions of such confusion in
representation during a termination of parental rights case. Furthermore, it is also obvious that the
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office of the public defender involved in this case recognizes that it must be cautious in representing
parties in complicated, multiparty cases, as it has created various "Conflicts" divisions within its
ranks. However, without more information and a proper resolution at the trial court level, I believe
that respondent has forfeited this issue.
Finally, I remain very concerned about stability on behalf of the minor here. Our supreme
court has established rules for trial courts and rules for reviewing courts to expedite these matters,
to give minors, whose lives are hanging in the balance, a decent chance at a stable, solid future as
quickly as possible. See Ill. S. Ct. R. 311 (eff. Feb. 26, 2010). The majority is remanding this case
for new hearings on the petition to terminate respondent’s parental rights. The last hearing in this
case took place approximately six months ago, and based upon responses from counsel during oral
argument, respondent and her efforts have not been monitored by any child welfare entity since the
close of the proceedings. Furthermore, the trial court was emphatic in its ruling that respondent had
“never been to a point where the child could be returned to her care” during the monitored periods.
Additionally, the child welfare representative testified emphatically that it was in the best interest
of the minor to be adopted into a loving and stable home and that such an opportunity was available
for him.
If this matter must be remanded, and as I have earlier indicated, I do not believe that it should
because the issue of a per se conflict of interest was not preserved, a more limited hearing appears
appropriate. Assuming that the trial court and the attorneys involved in the presentation of this case
are available, I would recommend upon remand that the trial court conduct a hearing to determine
what, if any, information or knowledge was exchanged that could have compromised respondent’s
case or the minor’s case. If the trial court determined that a conflict of interest did exist, then I
believe new hearings on the petition to terminate respondent’s parental rights should be held.
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