In re A.F. ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re A.F., 2012 IL App (2d) 111079
Appellate Court In re A.F., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellee, v. Anthony F., Respondent-Appellant (Crista E., Respondent)).
District & No. Second District
Docket No. 2-11-1079
Filed May 7, 2012
Held Order terminating respondent father’s parental rights was affirmed where
(Note: This syllabus there was no conflict of interest on the part of respondent’s counsel
constitutes no part of arising from the fact that another attorney from the same division of the
the opinion of the court public defender’s office had represented the child’s mother in the same
but has been prepared proceedings, the trial court did not abuse its discretion in denying
by the Reporter of respondent’s request for a continuance, and the trial court’s findings that
Decisions for the respondent was unfit and that the termination of his parental rights was
convenience of the in the child’s best interest were not against the manifest weight of the
reader.)
evidence.
Decision Under Appeal from the Circuit Court of Winnebago County, No. 09-JA-34; the
Review Hon. Mary Linn Green, Judge, presiding.
Judgment Affirmed.
Counsel on Nicholas O. Meyer, of Meyer & Horning, P.C., of Rockford, for
Appeal appellant.
Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
and Scott Jacobson, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justice Bowman concurred in the judgment and opinion.
Presiding Justice Jorgensen dissented, with opinion.
OPINION
¶1 In 2009, the State filed a neglect petition against respondents, Anthony F. and Crista E.,
alleging that A.F. (the minor) was neglected. During the proceedings, both respondent and
Crista E. were represented by different attorneys from the same conflicts division of the
public defender’s office. The trial court found the minor neglected and adjudicated her a
ward of the court and placed her in the guardianship of the Department of Children and
Family Services (the Department). Thereafter, the trial court found respondent unfit and
terminated his parental rights. Respondent now appeals, contending that: (1) he was denied
the effective assistance of counsel due to a per se conflict based on attorneys from the same
conflicts division representing him and Crista E.; (2) the trial court abused its discretion by
denying his motion for a continuance of the termination hearing; (3) the trial court’s finding
of unfitness was against the manifest weight of the evidence; and (4) the trial court’s finding
that it was in the minor’s best interest to terminate respondent’s parental rights was against
the manifest weight of the evidence. We affirm.
¶2 I. Background
¶3 The minor was born on November 14, 2008, and is the biological child of respondent and
Crista E. Respondent and Crista E. were not married to each other. On January 26, 2009, the
State brought a neglect petition alleging that the minor’s environment was injurious as a
result of Crista E. allowing contact between the minor and respondent, in violation of a
previously established safety plan. Brandon Sanchez, an attorney from the Conflicts II
division of the public defender’s office, represented Crista E. The trial court ordered
respondent to retain private counsel and submit to a paternity test.
¶4 The trial court conducted the next hearing on March 16, 2009, but respondent failed to
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appear. On April 9, 2009, Crista E. stipulated to the allegation of neglect, and, as a result, the
minor was adjudicated neglected and made a ward of the court. The trial court entered an
order providing that respondent was not permitted to have contact with the minor until he
appeared in court.
¶5 On May 20, 2009, the trial court heard testimony from Rachel Kocher, a caseworker with
the Children’s Home and Aid Society, regarding a protective service plan. Kocher testified
that Crista E. and respondent had an “on and off” relationship. Kocher testified that she could
not meet with respondent because he was uncooperative. Kocher testified that, after
respondent failed a number of drug tests, he was court ordered in July 2008 to comply with
a safety plan or move out of Crista E.’s house. Kocher testified that, after respondent failed
another drug test, it was ordered that he could have only supervised visits with the minor.
Kocher testified that respondent subsequently passed a substance abuse assessment but failed
a parenting course due to lack of attendance. On June 2, 2009, the trial court ordered that
Crista E. should retain guardianship and custody of the minor.
¶6 On May 10, 2010, Crista E. and her husband were shot to death in their home. On May
11, 2010, the State petitioned the trial court for an emergency modification of guardianship.
Sanchez’s appointment to represent Crista E. was vacated. The trial court appointed attorney
Michael Hermann from the Conflicts III division of the public defender’s office to represent
respondent, who appeared in court for the first time. Respondent consented to the minor’s
guardianship and custody with the State, and the trial court lifted the no-contact order with
respect to respondent.
¶7 At a December 20, 2010, permanency review hearing, attorney Amy Zalud from the
Conflicts II division of the public defender’s office advised the trial court that she was
standing in for Hermann on behalf of respondent. During the hearing, Kocher testified that
the minor was living with Robin W., her maternal grandmother. Kocher testified that the
minor had “adjusted very well” to her living environment and that she was developmentally
on track. Kocher testified that respondent was incarcerated and that he had not visited with
the minor. Zalud cross-examined Kocher. Robin W. testified that she was the minor’s foster
mother and that she took good care of her. The trial court found that it was in the best interest
of the minor that the “permanency goal be changed to that of substitute care pending court
determination on termination of parental rights.”
¶8 At the conclusion of the hearing, Zalud asked the trial court to vacate Hermann’s
appointment and appoint her as respondent’s public defender. Zalud advised the trial court
that respondent had requested that she represent him. After noting that a Conflicts II attorney
had previously represented Crista E., the trial court denied the request.
¶9 On February 1, 2011, the State filed a three-count petition for termination of parental
rights and power to consent to adoption. Count I alleged that respondent failed to maintain
a reasonable degree of interest, concern, or responsibility as to the minor’s welfare. Count
II alleged that respondent failed to protect the minor from conditions within her environment
that were injurious to her welfare. Count III alleged that respondent was depraved.
¶ 10 On September 30, 2011, trial on the State’s petition commenced. Respondent’s counsel
requested a continuance, claiming that “[respondent] does not feel that we’re ready, we need
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to speak further. Also, [respondent] has left notes and things that he has put together for this
in his cell, so we’re asking that the matter be continued.” The trial court denied the motion,
noting that the matter had already been continued “numerous times.”
¶ 11 Kocher testified at trial that respondent had been incarcerated since May 13, 2010.
Kocher testified that she had received two letters from respondent, on approximately August
31, 2009, and April 12, 2011, respectively. Kocher testified that she had not received any
other letters or phone calls from respondent since his incarceration. Kocher testified that, to
her knowledge, respondent had not otherwise attempted to contact her. Kocher testified that
she had authority to make decisions allowing visitation for incarcerated parents but that
respondent had not requested visitation with the minor. Kocher testified that respondent had
not explained to her why he had not requested visitation. Kocher testified that respondent had
not asked for any information regarding the minor’s welfare, including doctor’s visits.
¶ 12 Kocher further testified that she met with respondent before the minor’s birth. After the
minor was born, Kocher made “several phone calls” to respondent, but respondent refused
to communicate with her. Kocher testified that respondent had not requested visitation for
more than 18 months and that, to her knowledge, respondent had not provided any financial
support for the minor. With respect to having the minor returned to respondent’s custody,
Kocher testified that she wanted respondent to comply with drug screening, get a substance
abuse assessment, provide a stable home, and provide the minor with basic needs, including
being involved with medical and school appointments. Kocher testified that she was not “any
closer” to placing the minor back with respondent because respondent was still incarcerated,
the minor had not visited respondent in “a long time,” he had not completed substance abuse
treatment, and, although respondent attended Narcotics Anonymous meetings, “that doesn’t
*** qualify for the treatment that he may need.” Kocher also emphasized that respondent
would not be able to provide the minor with a stable home, attend medical appointments, or
make sure that the minor was well cared for during his incarceration. Kocher testified that
she visited respondent in prison in May 2011 and advised him that the minor was doing well
in foster care, but that respondent did not request that she visit him again.
¶ 13 During cross-examination from respondent’s attorney, Kocher admitted that when she
met with respondent in May 2011, she did not specifically ask respondent whether he wanted
the minor brought to the prison to visit him. Kocher further acknowledged that she did not
explain to respondent his options for visiting with the minor while he was incarcerated, such
as phone calls.
¶ 14 Prior to resting, the State asked the trial court to take judicial notice of the previous court
orders in the case, including the temporary custody order from May 11, 2010. Respondent
did not proffer evidence. After further argument, the trial court found that the State proved
the allegations in counts I and II of the petition by clear and convincing evidence.
¶ 15 The trial court proceeded to the best-interest-of-the-minor phase of the proceedings. The
State called Kocher as a witness. Kocher testified that the minor had been residing with
Robin W. and her family since May 26, 2010. Kocher testified that when the minor was
placed in foster care, she was “very emotionally unstable” from witnessing her mother being
shot. Kocher testified that the minor was doing very well in the foster home and that “[h]er
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development was really good.” Kocher testified that the foster parents were aware of the
minor’s background and would be able to provide counseling services if necessary. Kocher
testified that the minor was “very attached” to her foster parents and that the minor had not
seen respondent for “a long time.”
¶ 16 Kocher further testified that she was concerned about respondent’s ability to provide
proper care for the minor, because he was incarcerated. Kocher testified that respondent was
facing further charges for armed violence, in addition to possessing, manufacturing, and
delivering illegal drugs. Kocher testified that respondent was arrested on those charges three
days after Crista E. was shot. Kocher testified that, in her opinion, respondent’s parental
rights should be terminated. The parties rested, and the trial court took judicial notice of the
evidence from the unfitness phase of the proceedings. After closing arguments, the trial court
found that the State proved by a preponderance of the evidence that terminating respondent’s
parental rights was in the minor’s best interest.
¶ 17 The trial court proceeded to a permanency hearing. No further evidence was presented,
and the trial court took judicial notice of the evidence presented at the previous phases of the
proceedings. The trial court found that it was in the minor’s best interest to set adoption as
the permanency goal. Respondent timely appealed.
¶ 18 II. Discussion
¶ 19 A. Conflict of Interest
¶ 20 Respondent’s first contention on appeal is that he was denied the effective assistance of
counsel because Zalud, from the Conflicts II division of the public defender’s office,
represented him after Sanchez, also an attorney from the Conflicts II division, had previously
represented Crista E. in the proceedings. According to respondent, Zalud “presumably
reviewed the file prepared” by Sanchez during his representation of Crista E., creating a per
se conflict of interest. We disagree.
¶ 21 Section 1-5 of the Juvenile Court Act of 1987 (the Act) provides that minors and their
parents have the right to be represented by counsel in juvenile proceedings. 705 ILCS 405/1-
5 (West 2010). Illinois courts apply the same per se conflict analysis in cases under the Act
as in criminal proceedings. In re W.R., 2012 IL App (3d) 110179, ¶ 29 (citing In re S.G., 347
Ill. App. 3d 476 (2004)). When seeking reversal pursuant to a per se conflict, a party “need
not show that [his or her] counsel’s performance was affected by the existence of the
conflict.” S.G., 347 Ill. App. 3d at 480. A per se conflict arises when a party’s counsel has
ties to a person or entity that would benefit from an unfavorable judgment for that party,
because the attorney’s knowledge that his or her other client’s favorable result would conflict
with that party’s interest “might ‘subliminally’ affect counsel’s performance in ways [that
are] difficult to detect and demonstrate.” (Internal quotation marks omitted.) In re Darius G.,
406 Ill. App. 3d 727, 732 (2010) (quoting People v. Hernandez, 231 Ill. 2d 134, 142-43
(2008)). Our supreme court has identified three per se conflicts in the criminal context that
require 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
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prosecutor who had been personally involved in the defendant’s prosecution. Hernandez, 231
Ill. 2d at 143-44. We review de novo the issue of whether counsel’s representation
constituted a per se conflict (Darius G., 406 Ill. App. 3d at 732), and our threshold inquiry
is whether counsel represented or represents a party with conflicting interests to those of
respondent’s. See W.R., 2012 IL App (3d) 110179, ¶ 29 (citing People v. Graham, 206 Ill.
2d 465, 472 (2003)).
¶ 22 In support of his contention, respondent primarily relies on this court’s previous holdings
in Darius G. and In re Quadaysha C., 409 Ill. App. 3d 1020 (2011). In Darius G., an attorney
from the public defender’s office represented the respondent at the termination phase of the
proceedings. Darius G., 406 Ill. App. 3d at 730. At the next substantive hearing, the attorney
who originally represented the respondent appeared on behalf of the minor. Id. The attorney
did not represent either the respondent or the minor during trial at the unfitness phase or the
best-interest phase of the proceedings. Id. at 730-31. We held that the attorney’s
representation of the respondent and subsequent representation of the minor created a per se
conflict requiring reversal. Id. at 738. In reaching our determination, we adopted the holding
and reasoning outlined in S.G., noting that the “ ‘concern is with the opinions [the attorney]
had already formulated about the “best interest of the children” when representing them and
how those opinions might adversely impact [the attorney’s] ability to later effectively
represent [the mother] with “undivided loyalty.” ’ ” (Emphasis in original.) Id. at 734
(quoting S.G., 347 Ill. App. 3d at 481). Specifically, we expressed concern that the attorney
likely had confidential communications with the respondent, and, if the attorney “concluded
from this confidentially gleaned information that [the] respondent was unfit or that her rights
should be terminated, [the attorney] was subsequently placed in the unique position of being
able to use this information when [representing the minor].” (Emphasis in original.) Id. at
735. We further emphasized that, although the attorney’s representation of the parties was
minimal–he represented the respondent at one hearing and, later, the minor at one
hearing–that consideration was not dispositive. Id. at 736-37. Specifically, we noted that “we
assume that [the attorney] prepared, read the file, and spoke with [the] respondent about the
case” and that the “brevity of the attorney’s representation of the minor did not preclude
application of the [per se] rule or alter the fact that the rule’s purpose is to protect against
what is not reflected in the record.” (Emphasis in original.) Id. at 737. In conclusion, we
stated:
“From a pragmatic standpoint, we agree with S.G. that the better rule is to find that [the
attorney’s] representation of both [the] respondent and [the minor] in these termination
proceedings created a per se conflict. *** A clear rule better informs attorneys that, while
multiple attorneys from the public defender’s office may substitute to represent the same
client, the same attorney may not during the proceedings appear on behalf of different
clients.” (Emphases in original.) Id. at 738.
¶ 23 We have since followed our holding in Darius G. In Quadaysha C., the State filed a
petition alleging that 5 of the respondent’s 10 children were neglected. Quadaysha C., 409
Ill. App. 3d at 1021. At the dispositional hearing, an attorney from the public defender’s
office appeared on behalf of the attorney for the Court Appointed Special Advocate (CASA).
Id. Beginning with the first permanency hearing, that attorney appeared for the respondent,
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although a different court-appointed attorney appeared on the respondent’s behalf after the
State filed its petition to terminate the respondent’s parental rights. Id. Adhering to Darius
G., we held that a per se conflict existed, warranting reversal. Id. at 1023-35. Specifically,
we concluded that “[w]here, as here, the attorney represents the minor first, ‘possibly
forming the opinion that it would be in the child’s best interest for the respondent’s rights
to be terminated,’ the ‘conflict and resulting prejudice are clear.’ ” Id. at 1024 (quoting
Darius G., 496 Ill. App. 3d at 735).
¶ 24 We find both Darius G. and Quadaysha C. distinguishable and, therefore, decline to
apply those holdings to the matter presently before us. As emphasized in Darius G., the
underlying concerns with the same attorney representing adversarial parties in the same
proceedings are the attorney’s undivided loyalty in light of opinions already formed while
representing the adverse party and the attorney using confidentially gleaned information
against that party while representing the other party later in the proceedings. Darius G., 406
Ill. App. 3d at 734-35. Those concerns, however, are not as prevalent here. Specifically, the
application of the per se conflict rule in Darius G. and Quadaysha C. was premised on the
reasonable presumption that each attorney had confidential communications and reviewed
the case file while representing each of the adversarial parties and could have later used that
information against one party when representing the other. However, such a presumption is
not appropriate when the alleged conflict involves two attorneys from the same conflicts
division representing adversarial parties in the same proceedings, as opposed to the same
individual attorney representing adversarial parties in the same proceedings.
¶ 25 Moreover, we emphasize that, by not extending the per se conflict rule to situations
where attorneys from the same conflicts division represent adversarial parties in a
termination proceeding, we are not undermining the justification for the per se conflict rule.
In Hernandez, our supreme court explained the justification for the per se conflict rule as
being twofold. First, the court noted that counsel’s knowledge that a result favorable to his
or her other client would inevitably conflict with a defendant’s interest might subliminally
affect counsel’s performance in ways that would be difficult to detect and demonstrate.
Hernandez, 231 Ill. 2d at 143. Second, the court noted the possibility that counsel’s conflict
would subject counsel to later charges of unfaithful representation. Id. Here, respondent has
not identified, nor can we discern, a compelling reason for why Zalud’s representation of
respondent would have been “subliminally affected” by virtue of Sanchez’s–her colleague
in the Conflicts II division–previous representation of Crista E. Similarly, we do not believe
that Zalud would later be subject to a charge of unfaithful representation merely from her
association with Sanchez.
¶ 26 Further, we reemphasize our finding in Darius G. of the benefits resulting from a clear
rule that the same attorney may not represent adversarial parties during the same proceedings.
Darius G., 406 Ill. App. 3d at 738. From a “pragmatic standpoint,” however, we believe that
limiting the per se rule to the scenario presented in Darius G. provides clear guidance to
attorneys and trial courts regarding appropriate representation by appointed counsel. See id.
at 738-39.
¶ 27 We are cognizant of the dissent’s concerns regarding conflict-free representation.
However, we believe that extending the per se rule to the circumstances in this case is not
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necessary to achieve that goal. Moreover, the dissent’s position would undermine the
important policy of protecting minors’ best interests by providing stability and finality in
termination proceedings. See In re Kenneth F., 332 Ill. App. 3d 674, 679-80 (2002).
¶ 28 In In re Paul L.F., 408 Ill. App. 3d 862 (2011), the reviewing court held that, consistent
with Darius G., the same attorney representing adverse parties in the same proceeding
constituted a per se conflict. Id. at 865. The dissent in that case, relying on Kenneth F., noted
that this court previously emphasized the importance of finality over the procedural rights
of a respondent in a termination proceeding, when the respondent was not prejudiced. Id. at
869 (Hudson, J., dissenting). In Paul L.F., the dissent opined:
“Absent a showing of prejudice, the same result should obtain here ***. Instead, the
majority undoes nearly five years of litigation because an attorney *** made a single
appearance on behalf of the minor on September 11, 2006, and an appearance on
respondent’s behalf on April 20, 2010. *** To allow such a de minimis violation of the
per se conflict rule to undo the whole proceeding needlessly prolongs an already lengthy
proceeding and denies stability to the minor whom this proceeding is designed to
protect.” Id. at 869-70 (Hudson, J., dissenting).
The Paul L.F. dissent further emphasized that termination cases are among the few select
types of cases subject to mandatory acceleration on appeal and that a per se rule requiring
reversal for a conflict without a showing of prejudice does not strike the appropriate balance
between a party’s right to the effective assistance of counsel and a child’s need for finality
in termination proceedings. Id. at 870 (Hudson, J., dissenting). The dissent in Paul L.F.
concluded:
“The per se rule certainly provides staunch protection for a party’s right to counsel;
however, that is not the only interest at stake here. *** By mandating reversal for even
technical and de minimis violations of the right to counsel, the per se rule hardly
recognizes the competing interest in stability and finality at all.” Id. at 873 (Hudson, J.,
dissenting).
¶ 29 While we stress that our determination in this case does not undermine our previous
holdings that the same attorney representing adverse parties in the same proceedings
constitutes a per se conflict, we find the Paul L.F. dissent persuasive in this matter. Here, the
dissent’s rationale for extending the per se conflict rule appears to be that, because Zalud
“theoretically” had access to Crista E.’s file, Sanchez’s conflict was imputed to her and a per
se conflict exists. Infra ¶ 54. However, unlike in Darius G., there is no reason to presume
that Zalud reviewed Crista E.’s file or communicated with Crista E. before representing
respondent. Thus, finding a per se conflict based on an unsubstantiated theory that Zalud had
access to Crista E.’s file–as opposed to finding a per se conflict on the reasonable
presumption that an attorney who represents a party will have reviewed the file and
communicated with that party (see Darius G., 406 Ill. App. 3d at 737)–disregards the
competing but equally important interest of providing stability and finality to minors in
termination proceedings.
¶ 30 We further note that our decision today is consistent with this court’s recent opinion in
In re Tamera W., 2012 IL App (2d) 111131. In Tamera W., we held that the mother’s
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representation by a conflicts unit in a previous juvenile proceeding that ended in 2003 did
not constitute a per se conflict when that same conflicts unit subsequently represented the
respondent in a 2008 termination proceeding where the mother was also a party. Id. ¶¶ 40-42.
¶ 31 We are not persuaded by the dissent’s attempt to distinguish Tamera W. based on the
noncontemporaneous nature of that conflicts unit’s representation and based on the
conclusion that the parties’ interests did not conflict. Infra ¶ 57. The dissent’s concern that
attorneys in the same conflicts unit theoretically have access to the same files during
contemporaneous representation is also present in noncontemporaneous proceedings. In
addition, whether the mother’s and the respondent’s interests in Tamera W. were in conflict,
the attorneys within the conflicts unit could still have gleaned information while representing
the mother that could have later affected that unit’s representation of the respondent.
Therefore, the dissent’s attempt to distinguish Tamera W. only further exemplifies the
difficulty in expanding the per se conflict rule to include different attorneys from the same
conflicts unit.
¶ 32 In sum, although we recognize the importance of conflict-free representation, we must
also consider “a primary purpose” of protecting the best interests of children, “who are the
object[s] of” termination proceedings. See In re Kenneth F., 332 Ill. App. 3d at 679-80. As
a result, limiting the per se conflict rule in termination proceedings to situations where the
same attorney represents adverse parties in the same proceeding strikes the appropriate
balance between ensuring conflict-free representation and protecting the best interests of
minors by providing stability and finality to termination proceedings. This limitation is
consistent with our supreme court’s rules of professional responsibility and provides clear
guidance to trial courts and practitioners. See Paul L.F., 408 Ill. App. 3d at 867 (citing Ill.
Rs. Prof’l Conduct R. 1.7(a)(1) (eff. Jan. 1, 2010)).
¶ 33 Finally, we note that, even if a per se conflict does not exist, respondent can still establish
an ineffective-assistance-of-counsel claim by showing an actual conflict of interest that
adversely affected his counsel’s performance. See Hernandez, 231 Ill. 2d at 144. To establish
an actual conflict of interest, respondent must point to some specific defect in counsel’s
strategy, tactics, or decision making attributable to the alleged conflict. Id. Here, respondent
does not argue, nor does our careful review of the record reflect, a defect in Zalud’s or
Hermann’s strategy, tactics, or decision making that could be attributed to an alleged conflict.
Accordingly, we find that no conflict exists.
¶ 34 B. Motion to Continue Trial
¶ 35 Respondent’s second contention on appeal is that the trial court abused its discretion by
declining to continue the trial. Respondent argues that the trial court abused its discretion
when it denied his request for a continuance, because it had previously granted the State’s
motion for a continuance and had also continued the trial on its own motion. Respondent
further argues that denying him the opportunity to prepare with counsel constituted a
substantial injustice.
¶ 36 Illinois recognizes that “ ‘serious delay in the adjudication of abuse, neglect, or
dependency cases can cause grave harm to the minor.’ ” In re Jamarqon C., 338 Ill. App. 3d
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639, 644 (2003) (quoting 705 ILCS 405/2-14 (West 2000)). There is no absolute right to a
continuance in proceedings pursuant to the Act, and the trial court has discretion whether to
grant or deny a continuance motion. In re K.O., 336 Ill. App. 3d 98, 104 (2002). The trial
court’s decision will not be disturbed “absent manifest abuse or palpable injustice.” Id. In
addition, the denial of a request for a continuance is not a ground for reversal unless the
complaining party has been prejudiced by the denial. Jamarqon C., 338 Ill. App. 3d at 639.
¶ 37 In the current matter, respondent cannot demonstrate that prejudice resulted from the trial
court’s denial of his request for a continuance. The trial court found that the State met the
requisite burden of proving that respondent failed to take a reasonable degree of interest,
concern, or responsibility as to the minor’s welfare and that he failed to protect the minor
from conditions injurious to her welfare. As we will elaborate below, the record reflects that
the State provided ample evidence to support the petition’s allegations. Kocher testified
extensively on her interaction with respondent. She testified that she had only sporadic
contact with respondent since April 2009 and that respondent had not requested visitation
with the minor in the 18 months prior to the trial. Further, Kocher testified that she was
concerned about respondent’s ability to provide for the minor in light of his pending charges
for armed violence and drug possession, manufacturing, and distribution. Respondent has
failed to demonstrate how his attorney could have undermined that evidence against him if
the trial date had been continued. See Id. at 645 (rejecting the respondent’s contention that
the trial court abused its discretion in denying a continuance when the respondent did not
demonstrate how, with a continuance, he could have undermined the “overwhelming”
evidence against him). Accordingly, we reject respondent’s contention that the trial court
abused its discretion in denying his request for a continuance.
¶ 38 C. Unfitness Finding
¶ 39 Respondent’s third contention on appeal is that the trial court’s finding that respondent
was unfit was against the manifest weight of the evidence. Respondent maintains that
because the minor was in foster care for more than a year, the trial court could not have used
the statutory mechanism of respondent failing to protect the minor from an injurious
environment as a basis to terminate his parental rights. Respondent further argues that he had
regular weekly visits with the minor from her birth in November 2008 until the trial court
entered an order denying him visitation in April 2009. In addition, respondent maintains that
his ability to visit with the minor was limited due to his incarceration in May 2010.
¶ 40 The Act provides a bifurcated mechanism to determine whether parental rights may be
terminated–there must first be a showing of parental unfitness followed by a showing that
the best interest of the child is served by severing parental rights. In re Konstantinos H., 387
Ill. App. 3d 192, 203 (2008). Because termination of parental rights is a serious matter, the
State must prove by clear and convincing evidence one statutory factor of unfitness before
the termination of parental rights may ensue. In re H.D., 343 Ill. App. 3d 483, 493 (2003).
If properly proven, any one ground of unfitness is sufficient to find a parent unfit. Id. A trial
court’s finding of unfitness is entitled to great deference and we will not disturb it unless it
is against the manifest weight of the evidence. In re K.B., 314 Ill. App. 3d 739, 748 (2000).
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The trial court’s finding is against the manifest weight of the evidence when the opposite
conclusion is clearly evident. In re D.L., 326 Ill. App. 3d 262, 270 (2001). “We defer to the
trial court for factual findings and credibility assessments because it is in the best position
to make such findings” and “[w]e will not reweigh evidence or reassess witness credibility
on appeal.” (Internal quotation marks omitted.) In re April C., 345 Ill. App. 3d 872, 889
(2004).
¶ 41 Section 1(D)(b) of the Adoption Act (750 ILCS 50/1(D)(b) (West 2008)) permits a
finding of neglect based on failure to maintain a reasonable degree of interest, concern, or
responsibility as to the child’s welfare. In evaluating an allegation pursuant to section
1(D)(b), a trial court must focus on a parent’s reasonable efforts, rather than success, in
communicating, visiting, or otherwise showing interest in the child. Konstantinos H., 387 Ill.
App. 3d at 204. A court should consider any circumstances making it difficult to visit,
communicate, or otherwise show interest, including difficulty obtaining transportation to the
child’s residence, the parent’s poverty, conduct of others that hinders visitation, and the
motivation underlying the failure to visit. Id. “If personal visits were somehow impractical,
courts consider whether a reasonable degree of concern was demonstrated through letters,
telephone calls, and gifts to the child, taking into account the frequency and nature of those
contacts.” In re Daphnie E., 368 Ill. App. 3d 1052, 1064 (2006). Noncompliance with an
imposed service plan or irregular visitation with the minor is sufficient for an unfitness
finding. Konstantinos H., 387 Ill. App. 3d at 204.
¶ 42 In the current matter, a conclusion opposite to the trial court’s finding that respondent
was unfit by failing to show a reasonable degree of interest in the minor is not clearly
evident. Respondent emphasizes that “while [he] could have requested visitation with the
minor, his ability to meet with her in any appropriate setting was severely limited due to his
incarceration.” We recognize that respondent was incarcerated in May 2010 and that,
according to Kocher, he was undergoing parenting classes and Narcotics Anonymous
meetings while in prison. Nonetheless, the trial court heard testimony from Kocher that she
visited respondent in May 2011 and discussed the minor with him. Kocher testified that, after
that visit, respondent did not request that she update him on the minor again. In addition,
Kocher testified that respondent did not request visitation with the minor since his
incarceration in May 2010 or offer an explanation for why he did not request visitation.
Kocher further testified that the two letters she received from respondent did not inquire into
the minor’s medical or educational welfare. There was no other evidence that respondent
attempted to communicate with the minor via telephone or letters, sent gifts, or expressed
concern over her well-being; and respondent proffered no explanation for why he failed to
do so. Therefore, despite respondent’s incarceration, Kocher’s testimony regarding his lack
of efforts to communicate with the minor or otherwise manifest a concern regarding her well-
being provided the trial court with a sufficient factual basis to find respondent unfit. See
Konstantinos H., 387 Ill. App. 3d at 205-06. Accordingly, the trial court’s finding of
unfitness was not against the manifest weight of the evidence.
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¶ 43 D. Best Interest
¶ 44 Petitioner’s final contention on appeal is that the trial court erred in finding that it was
in the minor’s best interest to terminate his parental rights. Respondent emphasizes that he
is the minor’s only living parent and that keeping his parental rights intact is important to the
minor’s identity. Respondent also notes that he kept regular visitation with the minor from
her birth in November 2008 through April 2009, when the trial court issued the no-contact
order.
¶ 45 Once a trial court finds a parent unfit under one of the grounds of section 1(D) of the
Adoption Act, the court must consider whether it is in the best interest of the child to
terminate parental rights pursuant to the Act. In re Tiffany M., 353 Ill. App. 3d 883, 891
(2004) (citing 705 ILCS 405/1-3 (West 2002)). All considerations yield to the child’s interest
in a stable, loving home life. In re D.T., 212 Ill. 2d 347, 364 (2004); see also In re Travarius
O., 343 Ill. App. 3d 844, 854 (2003). The State must prove by a preponderance of the
evidence that termination is in the child’s best interest. D.T., 212 Ill. 2d at 366. The factors
that a trial court should consider in making its best-interest determination include: (1) the
physical safety and welfare of the child, including food, shelter, health, and clothing; (2) the
development of the child’s identity; (3) the child’s background and ties, including familial,
cultural, and religious; (4) the child’s sense of attachments; (5) the child’s wishes and long-
term goals; (6) the child’s community ties, including church, school, and friends; (7) the
child’s need for permanence; (8) the uniqueness of every family and child; (9) the risks
attendant to entering and being in substitute care; and (10) the preference of the persons
available to care for the child. See 705 ILCS 405/1-3(4.05) (West 2010). On review, our
function is not to substitute our judgment for that of the trial court on questions regarding the
witnesses’ credibility and the inferences to be drawn from their testimony; the trial court is
in the best position to observe the conduct and demeanor of the parties and witnesses as they
testify. In re Adoption of J.R.G., 247 Ill. App. 3d 104, 109 (1993). A trial court’s decision
on the best interest of a child will not be reversed unless it is against the manifest weight of
the evidence. In re A.H., 195 Ill. 2d 408, 425 (2001); Tiffany M., 353 Ill. App. 3d at 892.
¶ 46 Our review of the record makes clear that the minor needs a safe and stable home
environment and that the trial court’s ruling was in her best interest. The minor was living
with Crista E. and witnessed her death. Shortly thereafter, respondent was incarcerated, and
at the time of trial he was facing charges of armed violence and drug possession,
manufacturing, and distribution. These events were relevant to the trial court’s consideration
of the minor’s physical safety and welfare.
¶ 47 Further, the trial court properly applied the statutory factors when determining that
terminating respondent’s parental rights was in the minor’s best interest. The trial court heard
testimony from Kocher that the minor had been living with her foster family since May 26,
2010. When the minor was first placed in foster care, she was “in an awful place” and
emotionally unstable from witnessing her mother’s death. Kocher testified that the minor had
since bonded with her foster parents, was “very very attached” to her foster mother, and was
“very attached” to her foster father and that her “development is really good.” Kocher
testified that, in her opinion, respondent’s parental rights should be terminated and that the
minor should be adopted by her foster parents. In rendering her opinion, Kocher emphasized
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the minor’s need for permanency. With respect to respondent’s argument that he maintained
regular contact with the minor until the trial court entered the no-contact order in April 2009,
the trial court made clear that the no-contact order resulted from respondent’s failure to
appear in court. When respondent appeared in court on May 11, 2010, the trial court lifted
that order and permitted respondent to have visitation with the minor at the discretion of the
Department.
¶ 48 Based on the foregoing, we hold that the trial court’s decision that terminating
respondent’s parental rights was in the minor’s best interest was not against the manifest
weight of the evidence.
¶ 49 III. Conclusion
¶ 50 For the foregoing reasons, we affirm the judgment of the circuit court of Winnebago
County.
¶ 51 Affirmed.
¶ 52 PRESIDING JUSTICE JORGENSEN, dissenting.
¶ 53 As to the first issue before this court, I respectfully dissent because I conclude that a per
se conflict of interest was present here such that respondent was denied the effective
assistance of counsel.
¶ 54 In this case, Sanchez and Zalud, two attorneys from the Conflicts II division of the public
defender’s office, represented in the same trial court proceedings parties with conflicting
interests (Crista E. and respondent). The conflicts divisions were presumably created to
ensure conflict-free representation in scenarios where the public defender is appointed to
represent multiple parties in the same litigation. In other words, the point of the divisions is
to have attorneys from the same conflicts division represent the same client (or clients who
do not have conflicting interests). Zalud theoretically had, by virtue of being in the same
division, access to Crista E.’s file, which was prepared by Sanchez, who was also of the
Conflicts II division. See Darius G., 406 Ill. App. 3d at 735-37 (in a per se conflict analysis,
theoretical, off-the-record activity by counsel may be assumed). This is sufficient, in my
view, for finding a per se conflict of interest and, in this case, I would hold that the goal of
conflict-free representation was not achieved. Indeed, the trial court acknowledged as much
when it denied Zalud’s request to be appointed as respondent’s attorney, where Sanchez had
previously represented Crista E. in the litigation.
¶ 55 I believe that the establishment of separate conflicts divisions imputes the conflict of one
attorney in a division to all attorneys in the same division who might represent a party with
a conflicting interest to that of another party in the same proceedings. Therefore, here,
although the same attorney did not represent both Crista E. and respondent (i.e., the parties
with conflicting interests), the fact that both Zalud and Sanchez were in the same conflicts
division necessarily, in my view, means that they shared the same conflict. A conflicts
division, I believe, acts as one attorney.
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¶ 56 I agree with the majority’s conclusion that our case law is factually distinguishable. First,
the factual scenarios in several cases involved the same attorney(s) representing at different
times during the same proceedings clients with conflicting interests. Quadaysha, 409 Ill.
App. 3d at 1023-24 (per se conflict where the same attorney represented at different times
in the same case both the respondent and her five children’s guardian ad litem); Paul L.F.,
408 Ill. App. 3d at 865 (although not addressing whether the parties had conflicting interests,
holding there was a per se conflict where one of the respondent/mother’s 10 attorneys
represented two other parties–the father and the child–and another of her attorneys
represented one other party–the father–during the proceedings); Darius G., 406 Ill. App. 3d
at 738 (per se conflict where the same attorney appeared in the same proceedings once for
the respondent and once for the child, i.e., for parties with conflicting or competing interests).
¶ 57 Second, I conclude that Tamera W., 2012 IL App (2d) 111131, ¶¶ 40-42, a recent case
where this court found no per se conflict, is distinguishable because different attorneys from
the same conflicts unit, in different proceedings, represented different clients whose interests
did not conflict. The attorneys in the first case had represented the mother five years earlier
when she was the minor in an abuse/neglect case, and those attorneys were no longer with
the unit. The attorneys in the case on appeal, who represented the respondent/father, had no
knowledge of or involvement in the juvenile proceedings where the mother was the minor;
and, again, the mother’s and the respondent’s interests did not conflict. Id. Thus, unlike this
case, Tamera W. involved unrelated (i.e., the parties’ interests did not conflict) and
noncontemporaneous representation by different attorneys in the same conflicts unit.
¶ 58 I would extend the foregoing case law and hold that there exists a per se conflict of
interest in the scenario present in this case, namely, where attorneys from the same conflicts
division contemporaneously represent in the same proceedings parties who have conflicting
interests. I acknowledge the special nature of a public defender’s office. Courts have
recognized that public defender’s offices are generally not treated as law firms for purposes
of conflicts of interest. See, e.g., People v. Banks, 121 Ill. 2d 36, 41 (1987). However, within
the public defender’s office that was involved in this case, there are separate conflicts
divisions established for the purpose of avoiding conflicts of interest, presumably by
segregating notes and files to avoid situations where an attorney or attorneys from the same
division represent in the same proceedings parties with conflicting interests. This purpose
was not achieved here, and, therefore, I would hold that there is a per se conflict of interest.
I applaud the Winnebago County public defender for establishing separate conflicts
divisions. However, under the scenario that played out in this case, I conclude that the goal
of conflict-free representation was not achieved.
¶ 59 No one can argue with the policy, mentioned by the majority, of protecting minors’ best
interests by providing stability and finality in termination proceedings. However, I emphasize
that, where an advocate in termination proceedings labors under a per se conflict of interest,
minors’ best interests cannot be protected.
¶ 60 Finally, I agree with the majority that the facts in this case would not support a finding
of an actual conflict of interest.
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