People v. Edith F. , 408 Ill. App. 3d 862 ( 2011 )

JUSTICE McLAREN

delivered the judgment of the court, with opinion.

Justice Zenoff concurred in the judgment and opinion.

Justice Hudson dissented, with opinion.

OPINION

Respondent, Edith E, appeals from the trial court’s order terminating her parental rights to her minor son, Paul L.F. We reverse and remand.

Paul L.F. was born on April 6, 2005. On December 5, 2005, the State filed a three-count petition alleging that Paul was a neglected minor pursuant to section 2—3 of the Juvenile Court Act of 1987 (705 ILCS 405/2—3 (West 2004)), in that: (1) he was born with cocaine in his urine, blood, or meconium (705 ILCS 405/2—3(1)(c) (West 2004)); (2) his environment was injurious to his welfare because respondent had a substance abuse problem that prevented her from properly parenting him (705 ILCS 405/2—3(1)(b) (West 2004)); and (3) his environment was injurious to his welfare because his father, Paul E, Sr.,¹ had a substance abuse problem that prevented him from properly parenting him (705 ILCS 405/2—3(1) (b) (West 2004)). Respondent, for whom counsel was appointed, waived her right to a shelter care hearing, and the court granted temporary custody and guardianship of Paul to the Department of Children and Family Services (DCFS), with discretion to place him with a relative or in traditional foster care. Respondent subsequently stipulated to count I of the petition, and the State dismissed the remaining counts. The court adjudicated Paul a neglected minor and made him a ward of the court. Respondent was ordered to cooperate with DCFS and to remain drug-free. The initial permanency goal of short-term care with a return home in less than one year was established in September 2006.

There followed a series of seven more permanency reviews and various other hearings and court dates. Respondent was represented by six different attorneys during this period. On November 23, 2009, the State filed a five-count petition for termination of parental rights and for power to consent to adoption. From that point, one of the previous attorneys and four new attorneys represented respondent. After a hearing on April 8, the trial court found respondent unfit pursuant to four of the five counts. On June 23, following a hearing, the trial court found that it was in Paul’s best interests that respondent’s parental rights be terminated. This appeal followed.

Respondent first contends that she was denied effective assistance of counsel because two of her appointed counsel also represented other parties at various times in these proceedings. Respondent was represented by 10 different attorneys throughout the course of the proceedings in the trial court. Matthew Jura appeared on behalf of respondent on April 13, 2010, after previously appearing on behalf of Paul F, Sr., five times. Shannon Reeves-Rich appeared on respondent’s behalf at an April 20, 2010, permanency hearing after having represented both Paul F, Sr., and Paul previously. Both Jura and Reeves-Rich made their appearances for respondent after the court had found respondent to be an unfit parent.

The State responds that Jura’s representation of respondent was de minimis; indeed, Jura’s only action on April 13 was to ask for a continuance “for a couple of reasons”:

“[M]y understanding is [respondent] is in a jury trial over in Courtroom D this morning, um, which is why she’s not here. And I also represented the father on this case, [Paul F., Sr.], for some time; so I have a conflict on this case. I don’t know if there is anybody else available to come down here this morning.

* * *

I tried to do that yesterday, but to no avail.”

However, the State fails to address the appearance of Reeves-Rich on respondent’s behalf at a permanency hearing during which respondent and a caseworker testified.

This court recently held that a per se conflict of interest, requiring reversal of a termination of parental rights, arose when the same attorney appeared on behalf of both the respondent mother and the minor at different times during the same proceedings. In re Darius G., 406 Ill. App. 3d 727 (2010). In Darius G., we propounded a “clear rule” that “the same attorney may not during the proceedings appear on behalf of different clients.” (Emphases in original.) Darius G., 406 Ill. App. 3d at 738. In such a situation, “[prejudice is presumed and respondent need not demonstrate that the conflict contributed to the judgments entered against her.” Darius G., 406 Ill. App. 3d at 739. The application of such a 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.” Darius G., 406 Ill. App. 3d at 738. Both the trial court and counsel appointed in juvenile proceedings must remain aware of the parties’ representation; the termination of parental rights is a drastic measure, and the strict procedural requirements adopted to regulate such proceedings “are paramount.” Darius G., 406 Ill. App. 3d at 739; see also In re E.B., 231 Ill. 2d 459, 463-64 (2008).

This case presents a scenario similar to, but even more convoluted than, that presented in Darius G.: 1 of respondent’s 10 attorneys represented two other parties and another of her attorneys represented one other party during the course of the proceedings. The clear rule of Darius G. applies here; prejudice is presumed in the unacceptable rotation of representation and mandates that we reverse the judgments of the trial court finding respondent to be an unfit parent and terminating her parental rights and that we remand the cause for further proceedings.

REPLY TO THE DISSENT

Without citation to authority, the dissent rejects the per se standard and argues that a showing of prejudice should be required in such situations. 408 Ill. App. 3d at 869-70. Contrary to the implications and presumptions contained in the per se rule, the dissent determines that Reeves-Rich’s conflict in this case is “de minimis,” without the benefit of any evidence as to what transpired when she counseled both Paul and Paul E, Sr., before representing respondent. 408 Ill. App. 3d at 870. The dissent flips the rule on its head: prejudice is presumed not to have occurred even in the absence of an opportunity to establish prejudice.

The dissent cites for support only one case involving a conflict of interest in a juvenile case, In re D.B., 246 Ill. App. 3d 484 (1993). However, D.B. is clearly distinguishable. In that case, the respondent mother hired an attorney who had earlier appeared as the minor’s appointed guardian ad litem for over two years of the proceedings. However, the attorney told the respondent mother about the prior representation and that he did not think that there would be a conflict of interest. D.B., 246 Ill. App. 3d at 492. The respondent mother continued with the attorney’s representation. Here, respondent was represented by a parade of 10 attorneys during the course of these proceedings. There is nothing in the record to indicate that respondent had any idea that 2 of her 10 attorneys had other, conflicting involvements in the case. There is also nothing to indicate that she had been admonished that she had the right to the undivided loyalty of any attorney appointed to represent her and that, if an attorney violated his or her ethical duties regarding representation, the burden was on respondent to bring it to the court’s attention.

The dissent also laments the “tremendous waste of the resources of the parties and the court system,” supposedly caused by the application of the per se rule. 408 Ill. App. 3d at 870. However, the dissent’s undefined, nondescript procedure for making a showing of prejudice is not designed to stop this ongoing problem of attorneys representing multiple parties in the same proceedings; it casually compromises the integrity of representation by appointed counsel and leaves the issue to be resolved down the road by some higher authority. Which system makes such waste less likely to occur: one that prevents the potential of conflict by “informing] 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” (Darius G., 406 Ill. App. 3d at 738), or one that waits until after the improper representation occurs, then requires, at best, the opportunity for a hearing to determine if prejudice occurred, and, if it has, requires the appointment of new counsel and a new termination proceeding?

Further, the dissent fails to address how such a showing should be made. What type of hearing would be held? Would discovery be allowed? What would be the nature and extent of discovery? Who would bear the burden of going forward? What would be the burden of proof? Who would bear the burden of proof? If the burden is on the parent, then must the parent waive the attorney-client privilege in order to establish that, first, there was a conflict, and, second, it prejudiced the parent? Is prejudice determined by a showing of a lack of undivided loyalty and a different result or merely an undivided loyalty? If the State must establish lack of prejudicial error, must it do so by clear and convincing evidence? Must additional unconflicted attorneys be appointed to represent the parent and the potentially conflicted attorneys? What happens if unconflicted attorneys are appointed to represent multiple parties in conflicts that create subsequent per se conflicts? May a parent force a conflicted attorney to testify about confidential matters with other parties represented by the conflicted attorney? May attorneys be forced to disclose matters protected by the attorney-client privilege when the child or the other parent refuses to waive the privilege? Does an irrebuttable presumption arise if the attorney does not comply with discovery or fails to testify? Does it depend on waiver by the other party-client? What contempt powers should be implemented to enable the parent or the State to present evidence? Will in camera inspections be required to determine if some privileged matters must be disclosed absent waiver? Will the trial judge have to recuse himself or herself after the privileged material is presented to the court, in order to avoid the appearance of impropriety arising from the fact that the trial judge is now aware of confidential information that he or she would not otherwise be privy to and that could cause a bias or prejudice to arise in the judge? Will the hearing have to be transferred to a judge not otherwise involved in the proceedings, in order to insulate the trial judge from learning of the privileged material? Is a later-appointed attorney who fails to recognize and raise the existence of an earlier per se conflict himself or herself per se ineffective? The dissent neither discusses the procedures needed to review and determine whether a conflict is de minimis nor considers whether the additional proceedings are more or less wasteful than the application of the rule.

Contrary to the dissent, the imposition of the per se rule in no way hamstrings the “ ‘well-intentioned public defenders whose only desire was to represent unrepresented indigent parties.’ ” 408 Ill. App. 3d at 870. The rule, if properly followed, prevents these attorneys from being placed in the untenable and potentially unethical position of having their loyalties divided by representing multiple parties in the same proceeding. See, e.g., Ill. S. Ct. Rs. of Prof. Conduct, R. 1.7(a)(1) (eff. Jan. 1, 2010) (providing that a lawyer shall not represent a client if the representation involves a “concurrent conflict of interest” that exists where “the representation of one client will be directly adverse to another client”). Application of the per se rule and the Rules of Professional Conduct would impose no additional burdens on trial courts or attorneys, as we trust that the courts keep track of the appearances filed in a case and that the attorneys know whom they represent in a particular proceeding. Any judicial system that does not provide at least this minimum level of compliance with rules of conduct, competence, and due process cannot be considered worthy of confidence.

Occam’s razor — “Pluralitas non est ponenda sine neccesitate” (“plurality should not be posited without necessity”)—is popularly interpreted to mean, “the simpler the explanation, the better.” (Internal quotation marks omitted.) In re Faith B., 359 Ill. App. 3d 571, 577 (2005) (McLaren, J., specially concurring). The dissent attempts to avoid the admonition of Occam’s razor by failing to set forth the pluralities that would arise in attempting to determine if a prejudicial violation occurred. The per se rule is the simple explanation of how to resolve this recurring problem, and it should be followed. When a per se conflict is recognized, it should immediately be brought to the trial court’s attention to be remedied, either by having the party waive the conflict or by discharging the attorney. Waiting until after a conflict arises to hold a hearing to determine the level of the conflict of interest and the amount of prejudice encourages waste and delay and does nothing to encourage the “competing interest in stability and finality.” 408 Ill. App. 3d at 873. Awareness and strict compliance with the per se rule by the trial courts and attorneys prevent conflicts and the waste of resources, encourages finality, and preserves the integrity of judicial proceedings.

Reversed and remanded.

1 Paul F., Sr.’s parental rights were terminated along with respondent’s, but he is not a party to this appeal.