Vlastelica v. Brend ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Vlastelica v. Brend, 2011 IL App (1st) 102587Appellate Court MILIJANA VLASTELICA, Individually and as Next Friend of Kristian
Caption N. Chehaiber, Plaintiffs-Appellants, v. JEFFREY W. BREND and
LEVIN AND BREND, P.C., Defendants-Appellees.
District & No. First District, First Division
Docket No. 1-10-2587
Filed August 8, 2011
Held Plaintiff’s complaint against the child representative appointed in
(Note: This syllabus plaintiff’s underlying action to dissolve her marriage and his law firm
constitutes no part of alleging legal malpractice, intentional breach of fiduciary duty and
the opinion of the court intentional interference with plaintiff’s custody rights was properly
but has been prepared dismissed based on the finding that defendants were absolutely immune
by the Reporter of from civil liability for defendant’s work performed as child
Decisions for the representative.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 10-L-001908; the
Review Hon. Kathy M. Flanagan, Judge, presiding.
Judgment Affirmed.
Counsel on Milijana Vlastelica, of Naperville, appellant pro se.
Appeal
Meckler Bulger Tilson Marick & Pearson, LLP, of Chicago (Bruce R.
Meckler, Brian J. Williams, and Jeffrey B. Greenspan, of counsel), for
appellees.
Panel JUSTICE ROCHFORD delivered the judgment of the court, with
opinion.
Presiding Justice Hall and Justice Lampkin concurred in the judgment
and the opinion.
OPINION
¶1 Plaintiffs, Milijana Vlastelica (Milijana), individually and as next friend of her minor
son, Kristian N. Chehaiber (Kristian), filed a three-count complaint against the child
representative appointed in the underlying divorce action, Jeffrey W. Brend (Brend), and
Brend’s private law firm Levin and Brend, P.C. (collectively referred to as defendants). The
complaint alleged: (1) legal malpractice; (2) intentional breach of fiduciary duty; and (3)
intentional interference with Milijana’s custody rights. The circuit court granted defendants’
motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-
619 (West 2010)), finding that defendants were absolutely immune from civil liability for
Brend’s work performed as child representative. Plaintiffs filed a motion to reconsider,
which the circuit court denied. Plaintiffs appeal. We affirm.
¶2 In May 2000, Manheir Chehaiber (Manheir) filed a petition for dissolution of marriage
to Milijana. In May 2002, the parties entered into a marital settlement agreement that was
incorporated into a judgment for dissolution of marriage (the dissolution judgment). The
dissolution judgment reserved various issues, including custody of their minor son, Kristian,
child support, and visitation rights. The circuit court subsequently awarded custody of
Kristian to Milijana; however, visitation and certain other issues not addressed by the
dissolution judgment remained open.
¶3 In connection with these open issues, the circuit court appointed Brend as child
representative for Kristian in September 2003. After Brend’s appointment, Milijana filed a
motion for substitution of judges. In that motion, Milijana accused the court of being
prejudiced against her and of deliberately ignoring the basic principles of law. Milijana also
accused Brend of improper and fraudulent conduct. The circuit court denied the motion and
imposed sanctions against Milijana, finding there was no evidence supporting the allegations
that Brend had engaged in fraudulent conduct. Milijana appealed. We affirmed the sanctions.
See In re Marriage of Chehaiber, No. 2-07-0117 (2008) (unpublished order under Supreme
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Court Rule 23). Milijana also filed two separate motions to discharge Brend. In her first
motion, Milijana alleged that Brend was biased against her as evidenced by: (1) his
recommending a visitation schedule favoring Manheir; (2) his telling her that previous orders
regarding custody and other matters could be modified; (3) his “screaming in [her] face” that
he would “come after” her if she told the circuit court of her belief that Manheir was
violating court orders; and (4) his filing a motion in limine to bar her from testifying at a
hearing regarding visitation. The circuit court denied this motion.
¶4 In her second motion, Milijana alleged that Brend improperly attempted to influence Dr.
Doris Van Byssum, a psychologist whom the circuit court appointed to evaluate custody and
visitation in this case. Milijana again sought Brend’s discharge as child representative. The
circuit court denied this motion too. Milijana appealed. We affirmed. See In re Marriage of
Chehaiber, Nos. 2-08-0375, 2-08-1030 cons. (2009) (unpublished order under Supreme
Court Rule 23).
¶5 Brend remained Kristian’s child representative until March 27, 2008, when Milijana’s
and Manheir’s dissolution of marriage was fully adjudicated and became final.
¶6 On February 11, 2010, plaintiffs filed their three-count complaint against defendants.
Counts I and II were brought by Milijana as next friend of Kristian. Count I was for legal
malpractice, while count II was for intentional breach of fiduciary duty. Count III was
brought by Milijana individually and was for intentional interference with her custody rights.
¶7 Count I’s claim for legal malpractice alleged that Brend met with Milijana at her house
on November 5, 2003, and “wanted to do everything all over as if the parties never had a
custody trial.” Brend insisted on discussing the issues of Kristian’s school, religious
upbringing, and custody, all of which had been resolved by the court; however, Brend
refused to discuss certain issues that had not yet been decided, such as visitation rights, child
support, division of holidays and vacation time. Brend also refused to discuss the subjects
of Manheir’s alleged anti-Semitism and he disregarded derogatory comments Manheir made
about Milijana in Kristian’s presence. Plaintiffs alleged that on November 12, 2003, Brend
met with both Milijana and Manheir and tried to convince Milijana that the noncustodial
parent, Manheir, had the right to raise Kristian as a Muslim. When Milijana told Brend that
Manheir repeatedly violated court orders and she needed to bring it to the circuit court’s
attention, Brend screamed, “Oh no you will not do that. I will not allow you to do that. And
if you do that I will personally come after you.”
¶8 Plaintiffs alleged that Brend’s refusal to discuss pending issues, and his insistence on
discussing the “nonissues,” entangled plaintiffs in “stressful and unnecessary litigation for
an additional five years.”
¶9 Plaintiffs further alleged that Brend committed legal malpractice when he contacted
Milijana by phone prior to January 9, 2004, and attempted to “bully” her into agreeing that
Manheir should be given physical custody of Kristian and that her visitation should be
limited to four hours per week and every other weekend. Plaintiffs contended that Brend was
“de facto, re-deciding the custody award entirely on his own, without any basis in law or fact,
without any hearing whatsoever,” and contrary to Kristian’s best interests.
¶ 10 Plaintiffs also alleged that Brend committed legal malpractice by: advocating that the
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parties should maintain the parenting schedule as agreed upon in 2002, as if the custody trial
of 2003 never even took place; and filing numerous pleadings designed to prevent Milijana
from having an evidentiary hearing on the issue of Manheir’s visitations and by seeking to
bar Milijana from testifying thereto.
¶ 11 Plaintiffs alleged that on August 3, 2006, the circuit court ordered the parties to undergo
a second custody trial and appointed Dr. Van Byssum as the “custody evaluator.” Milijana
filed a motion to reconsider or for a finding under Illinois Supreme Court Rule 308(a) (eff.
Feb. 26, 2010) and a motion to stay the custody evaluation. Plaintiffs alleged that Brend
committed legal malpractice by failing to file a response to Milijana’s motions or appear at
various hearings. Plaintiffs contended that but for Brend’s negligent acts, plaintiffs would
not have become entangled in an unnecessary second custody battle from May 23, 2005, until
November 11, 2007.
¶ 12 Plaintiffs alleged that Brend committed legal malpractice during a pretrial conference on
September 18, 2007, when he falsely informed the court that the parenting “arrangement”
did not interfere with Kristian’s extracurricular activities. Plaintiffs contended that Brend
knew or should have known that Kristian had been forced to quit his swim team and Tae
Kwon Do because Manheir did not want Kristian to participate in activities that would
interfere with his parenting time. Plaintiffs alleged that Brend committed legal malpractice
on November 8, 2007, when he approached Milijana in the hallway of the courthouse and
tried to convince her that even though she was the custodial parent, Manheir was entitled to
an equal amount of parenting time with Kristian. Plaintiffs contended that but for Brend’s
unsupported argument that Manheir was entitled to an equal amount of parenting time with
Kristian, the issue of Manheir’s visitation rights would have been decided sooner.
¶ 13 Plaintiffs alleged that Brend committed legal malpractice on December 11, 2007, prior
to Dr. Van Byssum’s deposition, when Brend attempted to wrongfully influence Dr. Van
Byssum by telling her that “Milijana was the sole cause of the litigation and that Milijana
was obsessed with obtaining at least four days a week with the minor child solely for the
purpose of receiving child support from Manheir.” Plaintiffs alleged Brend committed legal
malpractice during the hearing on Milijana’s amended motion to modify Manheir’s visitation
when he successfully objected to Dr. Van Byssum testifying to what Kristian told her about
his preferences regarding his schedule with his parents. Plaintiffs alleged that but for Brend’s
objection, the court would have heard from Dr. Van Byssum that Kristian wanted to spend
more time with Milijana and that he was afraid of Manheir. Finally, plaintiffs alleged Brend
committed further legal malpractice during the evidentiary hearing, and during the hearing
on the motion to reconsider, when his questions of the witness and his comments to the court
revealed his bias in favor of Manheir and against Milijana.
¶ 14 In count II, plaintiffs claimed that Brend intentionally breached his fiduciary duty toward
Kristian when he engaged in the conduct described above favoring Manheir. In count III,
plaintiffs claimed that Brend intentionally interfered with Milijana’s custody rights when he
engaged in the alleged conduct favoring Manheir.
¶ 15 Plaintiffs cursorily pleaded that Brend’s law firm, Levin and Brend, P.C., also was liable
for Brend’s legal malpractice, intentional breach of fiduciary duty, and intentional
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interference with Milijana’s custody rights because 25% of unspecified legal work rendered
to Kristian was performed by Levin and Brend’s attorneys other than Brend himself.
¶ 16 The circuit court granted defendants’ section 2-619 motion to dismiss, finding that they
were absolutely immune from civil liability for Brend’s work performed as child
representative. Plaintiffs filed a motion for reconsideration, which the circuit court denied.
Plaintiffs filed this timely appeal.
¶ 17 A section 2-619 motion to dismiss admits the legal sufficiency of the complaint and
raises defects, defenses, or other affirmative matters appearing on the face of the complaint
or established by external submissions that act to defeat the claim. Krilich v. American
National Bank & Trust Co. of Chicago, 334 Ill. App. 3d 563, 569-70 (2002). The court
construes the pleadings and supporting documents in the light most favorable to plaintiffs.
Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008). The issue on appeal is “ ‘whether the
existence of a genuine issue of material fact should have precluded the dismissal or, absent
such an issue of fact, whether dismissal is proper as a matter of law.’ ” Czarobski, 227 Ill.
2d at 369 (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-
17 (1993)). Review is de novo. Czarobski, 227 Ill. 2d at 369; Krilich, 334 Ill. App. 3d at 571.
¶ 18 In the present case, there are no questions of material fact; the issue is whether the circuit
court erred, as a matter of law, by dismissing plaintiffs’ complaint on the basis that
defendants were absolutely immune from civil liability for Brend’s work performed as a
child representative.
¶ 19 Plaintiffs argue that the circuit court erred in dismissing their complaint because child
representatives are not absolutely immune from civil liability. Plaintiffs contend that absolute
immunity from liability arises from only two possible sources, statutory or common law. The
relevant statute here, section 506(a) of the Illinois Marriage and Dissolution of Marriage Act
(the Act), provides for three types of attorney appointments during proceedings involving the
general welfare of a minor child, including visitation: (1) an attorney to represent the child;
(2) a guardian ad litem; and (3) a child representative. 750 ILCS 5/506(a)(1), (a)(2), (a)(3)
(West 2010). Section 506(a) does not accord any immunity from civil liability for the work
performed thereby. Section 506(a) states in pertinent part:
“(a) Duties. In any proceedings involving the support, custody, visitation,
education, parentage, property interest, or general welfare of a minor or dependent
child, the court may, on its own motion or that of any party, appoint an attorney to
serve in one of the following capacities to address the issues the court delineates:
(1) Attorney. The attorney shall provide independent legal counsel for the
child and shall owe the same duties of undivided loyalty, confidentiality, and
competent representation as are due an adult client.
(2) Guardian ad litem. The guardian ad litem shall testify or submit a written
report to the court regarding his or her recommendations in accordance with the
best interest of the child. The report shall be made available to all parties. The
guardian ad litem may be called as a witness for purposes of cross-examination
regarding the guardian ad litem’s report or recommendations. The guardian ad
litem shall investigate the facts of the case and interview the child and the parties.
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(3) Child representative. The child representative shall advocate what the
child representative finds to be in the best interests of the child after reviewing
the facts and circumstances of the case. The child representative shall meet with
the child and the parties, investigate the facts of the case, and encourage
settlement and the use of alternative forms of dispute resolution. The child
representative shall have the same authority and obligation to participate in the
litigation as does an attorney for a party and shall possess all the powers of
investigation as does a guardian ad litem. The child representative shall consider,
but not be bound by, the expressed wishes of the child. A child representative
shall have received training in child advocacy or shall possess such experience
as determined to be equivalent to such training by the chief judge of the circuit
where the child representative has been appointed. The child representative shall
not disclose confidential communications made by the child, except as required
by law or by the Rules of Professional Conduct. The child representative shall not
render an opinion, recommendation, or report to the court and shall not be called
as a witness, but shall offer evidence-based legal arguments. The child
representative shall disclose the position as to what the child representative
intends to advocate in a pre-trial memorandum that shall be served upon all
counsel of record prior to the trial. The position disclosed in the pre-trial
memorandum shall not be considered evidence. The court and the parties may
consider the position of the child representative for purposes of a settlement
conference.” 750 ILCS 5/506(a)(1), (a)(2), (a)(3) (West 2010).
¶ 20 Plaintiffs argue that since section 506(a)(3) of the Act does not confer any immunity
upon child representatives, the only other possible source of immunity would be the common
law. Plaintiffs contend that their review of the common law indicates no immunity is
provided for child representatives.
¶ 21 We disagree. The Supreme Court has recognized that the common law provides for
absolute immunity for judges (see Briscoe v. LaHue, 460 U.S. 325, 334-35 (1983)), and the
Seventh Circuit Court of Appeals (hereinafter, the Seventh Circuit) has held that guardians
ad litem and child representatives are entitled to the same absolute immunity because they
are “arms of the court.” Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009). The Cooney
court stated:
“Guardians ad litem and court-appointed experts, including psychiatrists, are
absolutely immune from liability for damages when they act at the court’s direction.
[Citations.] They are arms of the court, much like special masters, and deserve
protection from harassment by disappointed litigants, just as judges do. Experts asked
by the court to advise on what disposition will serve the best interests of a child in
a custody proceeding need absolute immunity in order to be able to fulfill their
obligations ‘without the worry of intimidation and harassment from dissatisfied
parents.’ [Citation.] This principle is applicable to a child’s representative, who
although bound to consult the child is not bound by the child’s wishes but rather by
the child’s best interests, and is thus a neutral, much like a court-appointed expert
witness.” Cooney, 583 F.3d at 970.
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¶ 22 Plaintiffs here argue that as a federal court decision, Cooney is not binding on us (see
Werderman v. Liberty Ventures, LLC, 368 Ill. App. 3d 78, 84 (2006)) and should not be
followed unless its logic is persuasive. Plaintiffs contend Cooney’s logic is not persuasive,
because it wrongly equated a child representative with a guardian ad litem. Plaintiffs note
that, under section 506(a)(2) of the Act (750 ILCS 5/506(a)(2) (West 2010)), the guardian
ad litem acts as a witness who is empowered to advocate for the child’s best interests via his
written reports and recommendations, whereas section 506(a)(3) provides that the child
representative advocates for the child’s best interests while “participat[ing] in the litigation
as does an attorney for a party.” 750 ILCS 5/506(a)(3) (West 2010). Plaintiffs contend that
as an attorney representing the child’s best interests, the child representative stands in a
fiduciary relationship with the child, owes a duty of confidentiality to the child, and is no
more an “arm of the court” than the parties’ own attorneys. Plaintiffs also contend the
Cooney court improperly equated a child representative with a “neutral” court-appointed
expert witness. Plaintiffs argue that while a child representative “is neutral to the interests
of the parents,” he is not “neutral” to the best interests of the child.
¶ 23 Contrary to plaintiffs’ arguments, we find Cooney’s logic persuasive. For a court
deciding a custody matter, “ ‘the issue that singly must be decided is the best interest of the
child.’ ” In re Austin W., 214 Ill. 2d 31, 49 (2005) (quoting In re Ashley K., 212 Ill. App. 3d
849, 879 (1991)). The child representative appointed by the court assists in this determination
by meeting with the child and the parties, investigating the facts of the case, and advocating
for the child’s best interests after reviewing the facts and circumstances of the case. We agree
with Cooney’s characterization of a child representative as a “hybrid” of a child’s attorney
and a child’s guardian ad litem who acts as an arm of the court in assisting in a neutral
determination of the child’s best interests. Cooney, 583 F.3d at 969-70. We also agree with
Cooney’s holding that to best aid the court in its determination of the child’s best interests,
the child representative must be accorded absolute immunity so as to allow him to fulfill his
obligations without worry of harassment and intimidation from dissatisfied parents. Cooney,
583 F.3d at 970.
¶ 24 Plaintiffs contend that the finding that child representatives are absolutely immune from
civil liability runs counter to the so-called “functional” approach to immunity set forth by the
United States Supreme Court. Pursuant to the functional approach, absolute immunity flows
not from a person’s rank or title or his position within the government, but rather from the
nature of his responsibilities. Cleavinger v. Saxner, 474 U.S. 193, 201 (1985). The Supreme
Court has identified the following factors relevant to the determination of whether a person
is entitled to absolute immunity: “(a) the need to assure that the individual can perform his
functions without harassment or intimidation; (b) the presence of safeguards that reduce the
need for private damages actions as a means of controlling unconstitutional conduct; (c)
insulation from political influence; (d) the importance of precedent; (e) the adversary nature
of the process; and (f) the correctability of error on appeal.” Cleavinger, 474 U.S. at 202.
¶ 25 In Golden v. Nadler, Pritikin & Mirabelli, LLC, No. 05 C 0283, 2005 WL 2897397, at
*10 (N.D. Ill. Nov. 1, 2005), the United States District Court held that these factors “weigh
strongly in favor” of granting child representatives absolute immunity:
“Child custody battles can be emotionally charged, and child representatives in
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contentious cases may be subject to harassment and intimidation if they are not
immune from suit. Further, the dissatisfied party can bring any concerns before the
state court judge if the child representative has acted inappropriately. While in theory
the process should not be adversarial because all parties in a custody proceeding
should be concerned with the best interests of the child, in practice these proceedings
are often adversarial because the parties disagree as to what those interests are. These
factors show that absolute immunity is appropriate for child representatives involved
in custody determinations.” Golden, 2005 WL 2897397, at *10.
¶ 26 We agree with Golden that these factors weigh in favor of a finding that absolute
immunity should be accorded child representatives involved in custody determinations.
Further, on the specific facts of this case, application of the factors indicates that Brend
should be accorded absolute immunity for civil liability arising out of his work performed
as child representative. Two of the factors to be considered are “the need to assure that the
individual can perform his functions without harassment or intimidation” and “the adversary
nature of the process.” Cleavinger, 474 U.S. at 202. In the case at bar, the child custody
battle was quite adversarial and emotionally charged; Milijana accused her husband Manheir
of violating court orders and she accused Brend of unduly favoring Manheir, of lying to the
court, and of screaming in her face and threatening her. Given the adversarial nature of the
proceedings, absolute immunity was required to allow Brend to perform his work without
harassment or intimidation.
¶ 27 Two other factors to be considered are “the presence of safeguards that reduce the need
for private damages actions as a means of controlling unconstitutional conduct” and “the
correctability of error on appeal.”1 Cleavinger, 474 U.S. at 202. In the present case, such
safeguards are provided by section 506(a)(3) of the Act, which states that child
representatives must be attorneys who have received “training in child advocacy” or who
possess experience “determined to be equivalent to such training by the chief judge of the
circuit where the child representative has been appointed.” 750 ILCS 5/506(a)(3) (West
2010). Such training or equivalent experience reduces the likelihood of the child
representative committing unconstitutional conduct. The child representative is also
restrained from committing unconstitutional conduct by his professional obligations as an
attorney. In the event unprofessional conduct occurs, the aggrieved party has recourse with
the Attorney Registration and Disciplinary Commission (ARDC). The aggrieved party also
may bring her concerns before the judge; in the case at bar, Milijana availed herself of that
opportunity by filing multiple motions seeking Brend’s discharge and by appealing the circuit
court’s denial of said motions. Finally, on the court’s own motion or that of a party “for good
cause shown,” the court may appoint an additional attorney to act as child representative. 750
ILCS 5/506(a-3) (West 2010). Given the presence of all these safeguards against
unconstitutional conduct and the correctability of error on appeal, “there is a less pressing
need for individual suits to correct constitutional error.” Butz v. Economou, 438 U.S. 478,
1
The remaining factors, “insulation from political influence” and “the importance of
precedent” (Cleavinger, 474 U.S. at 202), relate more to judicial immunity and are not applicable
here.
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512 (1978).
¶ 28 Thus, contrary to plaintiffs’ arguments here, the functional approach to immunity
supports the circuit court’s finding that Brend was entitled to absolute immunity for his work
performed as child representative. Such absolute immunity extends to all conduct that
“occurred within the course of [the child representative’s] court-appointed duties.” Cooney,
583 F.3d at 970. Plaintiffs argue, though, that Brend stepped outside the role of child
representative when he allegedly: “bullied” Milijana and insisted she agree to give physical
custody of Kristian to Manheir and limit her visitation to four hours per week and every other
weekend; chose not to respond to various pleadings or attend certain hearings; chose not to
argue Kristian’s best interests relating to the child’s desire to swim, engage in religious
education, and perform Tae Kwon Do; lied to Dr. Van Byssum about Milijana being the
cause of the litigation; lied to the circuit court about Kristian’s happiness with the current
parenting arrangement; and threatened to personally come after Milijana if she told the court
about how Manheir was violating court orders. Plaintiffs contend that since all this conduct
occurred outside the scope of his duties as child representative, Brend is not immune
therefor.
¶ 29 We disagree with plaintiffs’ characterization of Brend’s conduct as taking place outside
his role as child representative. Brend committed all of the complained-of conduct after his
appointment as child representative and in pursuit of his duties to meet with the parties,
investigate the facts of the case, encourage settlement, and participate in the litigation. All
of the alleged misfeasance and malfeasance committed by Brend occurred within the course
of his court-appointed duties and are subject to absolute immunity.
¶ 30 Plaintiffs next argue that we should follow a Maryland case, Fox v. Wills, 890 A.2d 726(Md. 2006), in finding that a child representative is not entitled to absolute immunity. Fox
is inapposite, as the court there held that an attorney appointed for a child pursuant to section
1-202 of the Family Law Article (Md. Code Ann., Fam. Law § 1-202 (West 1984 & 2004
repl. vol.)) was not entitled to immunity due to the short and succinct nature of the statutory
language authorizing the court to “ ‘appoint to represent the minor child counsel who may
not represent any party to the action.’ ” Fox, 890 A.2d at 734 (quoting Md. Code Ann., Fam.
Law § 1-202 (West 1984 & 2004 repl. vol.)). The Maryland court noted that, unlike statutes
in other states, section 1-202 of the Family Law Article contained no language defining the
duties of attorneys appointed to represent minor children or indicating that such attorneys act
as arms of the court. Fox, 890 A.2d at 733-35. Section 1-202 of the Family Law Article reads
similarly to section 506(a)(1) of the Act, which provides for the appointment of an “attorney
[who] shall provide independent legal counsel for the child.” 750 ILCS 5/506(a)(1) (West
2010). However, section 506(a)(1) is not at issue here; rather, section 506(a)(3) is at issue.
Section 506(a)(3) expressly provides that the child representative is to investigate the facts
of the case and advocate solely for the child’s best interests. As discussed, we agree with the
Seventh Circuit’s holding in Cooney that a child representative appointed pursuant to section
506(a)(3) is an arm of the court assisting in a neutral determination of the child’s best
interests and, as such, that he is absolutely immune from liability arising therefrom.
¶ 31 We recognize that subsequent to Cooney, the Seventh Circuit recently has again
considered absolute immunity of child representatives in Golden v. Helen Sigman &
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Associates, Ltd., 611 F.3d 356 (7th Cir. 2010). In Golden, Bruce Golden’s wife, Jody
Rosenbaum, filed for divorce in Illinois state court. Golden, 611 F.3d at 359. Golden
subsequently brought an action under 42 U.S.C. § 1983 (2006) against the court-appointed
child representative, Helen Sigman, alleging that she maligned his reputation and abdicated
her duty of neutrality by favoring Rosenbaum in the custody proceedings. Golden, 611 F.3d
at 359. The district court dismissed Golden’s section 1983 action against Sigman, and
Golden appealed. Golden, 611 F.3d at 360.
¶ 32 The Seventh Circuit began its analysis by noting its holding in Cooney that child
representatives are a hybrid of a child’s attorney and a child’s guardian ad litem and that
child representatives are absolutely immune for conduct occurring within the course of their
court-appointed duties. Golden, 611 F.3d at 361. The Seventh Circuit then addressed
Golden’s allegations that Sigman engaged in misconduct outside the scope of her role as
child representative. Golden, 611 F.3d at 361. Golden alleged that Sigman made false and
misleading communications with the parties about matters related to the custody dispute.
Golden, 611 F.3d at 361. The Seventh Circuit held that even assuming the truth of these
allegations, Sigman still was carrying out her responsibilities as a child representative by
speaking with the relevant actors about the custody proceedings and investigating the facts.
Golden, 611 F.3d at 361. In this capacity, her actions closely resembled those of a guardian
ad litem who was acting as an arm of the court and, as such, she was immune therefor.
Golden, 611 F.3d at 361.
¶ 33 The Seventh Circuit found “[m]ore problematic” Golden’s allegations relating to
Sigman’s work as an advocate, such as her preparation of certain court orders and her efforts
to eliminate the role of the court-appointed psychiatrist:
“Though these tasks are part and parcel of a child representative’s statutory duties,
they involve a form of advocacy that more closely resembles the work carried out by
a public defender than that of a guardian ad litem. [Citation.] Since public defenders
are not absolutely immune from suit, Tower v. Glover, 467 U.S. 914, 921-23 ***
(1984), child representatives may not be protected when they function as a child’s
attorney. [Citation.] As the court in Cooney did not confront allegations implicating
a child representative’s actions as an advocate, it did not have the opportunity to
comment on this issue.” Golden, 611 F.3d at 361.
¶ 34 The Seventh Circuit ultimately decided to “lay [the issue] aside for another day” because
the Rooker-Feldman doctrine, which prevents a party who is complaining about an injury
caused by a state-court judgment from seeking redress in a lower federal court, barred it from
reviewing whether Sigman violated Golden’s rights when she acted as the child’s advocate.
Golden, 611 F.3d at 361-62 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)).
¶ 35 The Rooker-Feldman doctrine does not similarly bar us from considering the issue
whether Brend is entitled to immunity for his work as an advocate for Kristian’s best
interests, and so we consider the issue on the merits. For the reasons that follow, we hold that
Brend is entitled to absolute immunity for his work performed as an advocate for Kristian’s
best interests. We begin our analysis by noting that Tower v. Glover, cited by Golden, only
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addressed whether state public defenders (not child advocates) are immune from liability
under section 1983 for intentional misconduct. Tower, 467 U.S. at 923. The Supreme Court
held that public defenders were not immune from liability under section 1983 for intentional
misconduct because: (1) section 1983 admits no immunities on its face; (2) no immunity
existed for public defenders at common law when the Civil Rights Act was enacted in 1871;
(3) the public defender’s “reasonably close ‘cousin,’ ” the English barrister, has never
enjoyed immunity from liability for intentional misconduct; (4) no state appellate courts have
concluded that public defenders are immune for intentional misconduct; and (5) it was for
the Congress, not the Supreme Court, to establish immunities from section 1983 actions.
Tower, 467 U.S. at 920-23.
¶ 36 Unlike Tower, the present case does not involve a section 1983 action against a public
defender, but rather an action for legal malpractice, intentional breach of fiduciary duty, and
intentional interference with custody rights against a child representative appointed under
section 506(a)(3). Although a child representative’s work includes advocacy, as does a public
defender’s, their roles are not identical and therefore Tower’s holding that public defenders
are accorded no immunity under section 1983 for intentional misconduct is not applicable
here. As discussed above, section 506(a) sets forth three different categories of attorneys that
the court may appoint in proceedings involving “the support, custody, visitation, education,
parentage, property interest, or general welfare of a minor or dependent child”: (1) the
attorney for the child appointed pursuant to section 506(a)(1); (2) the guardian ad litem
appointed pursuant to section 506(a)(2); and (3) the child representative appointed pursuant
to section 506(a)(3). 750 ILCS 5/506(a)(1), (a)(2), (a)(3) (West 2010). A public defender is
more akin to an attorney for the child appointed pursuant to section 506(a)(1) who provides
“independent legal counsel for the child” and who owes “the same duties of undivided
loyalty, confidentiality, and competent representation as are due an adult client.” 750 ILCS
5/506(a)(1) (West 2010). A public defender generally must “abide by a client’s decisions
concerning the objectives of representation” (see Rule 1.2(a) of the Illinois Rules of
Professional Conduct (eff. Aug. 1, 1990)) and “follow the lawful instructions of [his] client.”
People v. Wilkerson, 123 Ill. App. 3d 527, 532 (1984). By contrast, a child representative
appointed pursuant to section 506(a)(3) is not required to provide independent legal counsel
to the child and is not bound by the express wishes of the child, but rather he must advocate
what he finds to be in the child’s best interests after meeting with the parties and
investigating the facts of the case. 750 ILCS 5/506(a)(3) (West 2010). He also encourages
settlement and the use of alternative forms of dispute resolution. 750 ILCS 5/506(a)(3) (West
2010). Although a child representative is not intended to abrogate the decision making power
of the trier of fact or act in the role of a surrogate judge (750 ILCS 5/506(a-5) (West 2010)),
his investigative and advocacy roles aid the court making a neutral determination of the
child’s best interests. In so aiding the court in making a neutral determination of the child’s
best interests, the child representative is acting as an arm of the court even while performing
his role as an advocate. Accordingly, we hold that the child representative is entitled to
absolute immunity for his work as an advocate occurring within the course of his court-
appointed duties.
¶ 37 Therefore, we affirm the order of the circuit court dismissing plaintiffs’ claims against
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Brend. We also affirm the order dismissing plaintiffs’ claims against Brend’s law firm, Levin
and Brend, where the only basis of liability pleaded was that 25% of the legal work rendered
to Kristian was performed by Levin and Brend’s attorneys other than Brend himself.
Plaintiffs failed to plead the specific work performed by Levin and Brend attorneys other
than Brend himself. To the extent plaintiffs’ complaint is premised on Levin and Brend’s
liability under agency principles, the dismissal of the agent (Brend) entitles the principal
(Levin and Brend) to dismissal. Evans v. Lima Lima Flight Team, Inc., 373 Ill. App. 3d 407,
416 (2007).
¶ 38 Finally, plaintiffs make cursory reference to child representative immunity as violating
equal protection principles. Plaintiffs’ cursory reference is insufficient to comply with Rule
341(h)(7)’s requirement that their brief contain arguments in support of their issues. See Ill.
S. Ct. R. 341(h)(7) (eff. Sept 1, 2006). Accordingly, this issue is waived.
¶ 39 For the foregoing reasons, we affirm the circuit court. As a result of our disposition of
this case, we need not address defendants’ collateral estoppel and public policy arguments.
¶ 40 Affirmed.
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