In re Br. M. & Bo. M. , 2021 IL 125969 ( 2021 )

2021 IL 125969IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 125969)
In re Br. M. and Bo. M., Minors (The People of the State of Illinois, Appellant,
v. Wendy M., Appellee).
Opinion filed April 15, 2021.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Garman, Michael J. Burke, Overstreet, and Carter concurred in the
judgment and opinion.
Chief Justice Anne M. Burke dissented, with opinion, joined by Justice Neville.
OPINION
¶1 The sole issue in this case is whether the appellate court erred in reversing the
trial court’s decision to terminate respondent Wendy M.’s parental rights on the
grounds that her privately retained attorney at several hearings on a neglect petition
had a per se conflict of interest because the attorney was previously appointed as
guardian ad litem for one of Wendy’s children and appeared at three hearings on
an earlier neglect petition. For the reasons that follow, we reverse the judgment of
the appellate court.
¶2 BACKGROUND
¶3 In 2011, Wendy was charged with felony theft and subsequently placed on
probation. In 2012, Wendy tested positive for cocaine and phencyclidine (PCP).
Her probation was revoked, and she was sentenced to two years’ imprisonment.
Prior to entering custody, Wendy arranged for her boyfriend, Jermaine Mirenda, to
care for her six-year-old daughter, Br. M. According to a Department of Children
and Family Services (DCFS) integrated assessment, Br. “came to the attention of
DCFS on 7/31/13 due to concerns regarding the appropriateness of [Br.] remaining
in Mr. Mirenda’s care while [Wendy] was incarcerated.” Those concerns related to
pending allegations that Mirenda sexually abused a previous partner’s seven- and
eight-year-old daughters. 1 On August 9, 2013, the State filed a petition alleging
that Br. was neglected.
¶4 On August 16, 2013, the trial court conducted a shelter care hearing. Wendy
and Assistant State’s Attorney Tina Filipiak were present. Assistant Public
Defender Gail Bembnister was appointed as counsel for Wendy, and Assistant
Public Defender Lea Drell was appointed as guardian ad litem (GAL) for Br.
Filipiak informed the court that Wendy would stipulate to the State’s allegations
because she “is currently in custody and has a substance abuse problem that requires
treatment.” The trial court found probable cause that Br. was neglected due to an
injurious environment. The court further found that shelter care was in the child’s
best interests, and it placed her in the temporary custody of DCFS. The court asked
if Wendy understood that she would need to comply with a service plan from DCFS
and correct the conditions that led to the neglect finding or risk termination of her
parental rights. Wendy said yes.
¶5 On December 17, 2013, the trial court held an adjudicatory hearing. Wendy,
Bembnister, Drell, and Assistant State’s Attorney Misty Cavanaugh were present.
The trial court again found Br. neglected due to an injurious environment. The
1
Mirenda was later indicated for sexual molestation of Br.
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factual basis for that finding was Wendy’s incarceration and substance abuse
problem. Guardianship remained with DCFS. The court asked Wendy if she had
been able to access services in prison. Wendy stated that she had attended parenting
classes, as well as Alcoholics Anonymous and Narcotics Anonymous meetings.
According to Bembnister, Wendy could not obtain individual counseling because
she would not be incarcerated long enough. The court again asked if Wendy
understood that her parental rights could be terminated if she did not comply with
the service plan. Wendy said yes.
¶6 On January 17, 2014, the trial court held a dispositional hearing. Wendy,
Bembnister, Br., Drell, and Cavanaugh were present. The State presented no
witnesses and offered a DCFS integrated assessment, a DCFS service plan, and a
DCFS dispositional report as evidence. The State asked the trial court to find
Wendy unfit and unable to care for Br. The court asked Drell for her position as
GAL, and she said:
“[W]e would join in the argument of the State. The mother is going to be
incarcerated until 2015.
We need to have a stable place for [Br.] until her mother gets out and can
engage in services. So we agree that DCFS custody and guardianship is the best
situation right now.”
Bembnister insisted that Wendy was not unfit but rather only “unable” to care for
Br. The trial court found Wendy unfit, made Br. a ward of the court, and placed her
in DCFS custody. The court noted that Wendy’s release date would be in May 2014
and asked again if she understood that her parental rights could be terminated if she
did not comply with the service plan. Wendy said yes.
¶7 After Wendy was released from prison, Bembnister filed a motion to restore
fitness. On August 22, 2014, the trial court held a hearing on that motion. Wendy,
Bembnister, and Cavanaugh were present. Bembnister informed the court that Drell
was still acting as GAL. Bembnister stated that she had spoken to Drell about the
motion and that “she has no objection and she did specifically cite the bond between
the mother and the child.” The trial court granted the motion, terminated DCFS’s
custody and guardianship, and vacated Br.’s wardship. The court’s order instructed,
“close file.”
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¶8 A month later, the State filed a supplemental petition, alleging that Br. was
neglected. On September 9, 2014, the trial court held an initial hearing on that
petition. Wendy, Br., Bembnister, and Cavanaugh were present. Cavanaugh asked
the trial court to name a court appointed special advocate (CASA) as GAL for the
child. Cavanaugh also asked the court to let “PC lapse” and return Br. to Wendy.
Apparently, the supplemental petition was based on a hotline call, and Cavanaugh
had developed some doubts about the veracity of the caller’s information because
of “animosity between the parties.” Cavanaugh still wanted the CASA’s “eyes and
ears on this,” and the court set another hearing. On October 15, 2014, the parties
returned to court, and the State made a motion to withdraw the supplemental
petition. The trial court granted that motion. The court’s order instructed, “close
file.”
¶9 Two years later, on September 26, 2016, the State filed a second supplemental
petition, again alleging that Br. was neglected. The State filed a companion petition,
alleging that Br.’s half-brother, Bo. M., was also neglected. That day, the trial court
held a shelter care hearing. Wendy and Assistant State’s Attorney Walter Ratajczyk
were present. Assistant Public Defender Lea Norbut was appointed to represent
Wendy, and a CASA was appointed as GAL for both children. At the hearing,
DCFS investigator Monique Boozer testified about two incidents. On August 16,
2016, police officers were called to Wendy’s house around midnight because one
of her children was screaming. When the officers arrived at the house, Wendy, her
boyfriend, and Br. were outside. According to Boozer, Wendy was “so intoxicated
that the police felt she was not able *** to care for the children,” and the officers
arranged for a relative to care for them. Wendy took a drug test later that day, and
she was “positive for PCP.”
¶ 10 On September 22, 2016, DCFS received a hotline call with concerns about
Wendy’s behavior when she picked up Bo. from school. The next day, when Wendy
tried to pick up Bo. from school, her condition was reportedly “worse than she was
the day before,” and school officials refused to let him go with her and called the
police. Police officers drove Wendy and Bo. to her house. Later, Boozer went to
the house to speak to Wendy, but she was not there. After several hours, Wendy
eventually arrived with Br. Wendy “appeared to be out of it” and was “not
responsive.” Boozer told Wendy that DCFS would find someone to watch the
children overnight and would help her locate an inpatient substance abuse program
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the next day. Boozer attempted to avoid taking protective custody of the children,
but Br.’s paternal grandmother was unwilling to care for them, citing mistrust
issues, and no other relative was available. Boozer called her supervisor and asked
for help from the police. Police officers and Boozer told Wendy to get the children
prepared to spend the night elsewhere, but she was unable to do so, so Br. did. The
children then went to a neighbor’s house, but DCFS received a hotline call
requesting their removal because Br. was hysterical and could not be calmed. A
caseworker placed the children with another family.
¶ 11 At the conclusion of the hearing, the trial court found probable cause of an
injurious environment for both children. The court also found an immediate and
urgent necessity to place the children in temporary custody with DCFS. The court
ordered DCFS to facilitate visitation between Wendy and the children and ordered
Wendy to obtain a drug and alcohol evaluation. She indicated that she understood
the court’s order.
¶ 12 That month, Wendy was incarcerated in the Will County Adult Detention
Facility for driving under the influence. She was released in February 2017.
¶ 13 On December 20, 2016, the trial court held an adjudicatory hearing. Wendy,
Bo.’s putative father Gregory W., Boozer, a CASA as GAL for the children, and
Ratajczyk were present. Wendy was represented by Assistant Public Defender
Collette Safford, and Gregory was represented by Norbut standing in for her
colleague Patricia Adair. The trial court admonished Wendy and Gregory, then
accepted their stipulations to the allegations in the State’s second supplemental
petition. The court found that the children were neglected due to an injurious
environment. The court asked Wendy and Gregory if they understood that they
must comply with their DCFS service plans or risk termination of their parental
rights. They both said yes.
¶ 14 On May 18, 2017, the trial court held a dispositional hearing. Wendy, Safford,
a CASA as GAL for the children, and Filipiak were present. Gregory was also
present and represented by Assistant Public Defender Bartholomew Markese on
Adair’s behalf. The State offered four exhibits as evidence: a five-page
dispositional report prepared by a DCFS representative, a 34-page service plan for
both parents prepared by a DCFS representative, and two reports from Stepping
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Stones, Wendy’s inpatient treatment center. Wendy and Gregory did not offer any
further evidence.
¶ 15 The court found Wendy unfit because of her substance abuse problem.
According to the court, “she has completed residential [treatment, but] she has
failed to fully commit to an after-care plan and there are indications that she is
continuing to use.” The court found Gregory unfit because he was incarcerated. The
court made the children wards of the court and awarded custody and guardianship
to DCFS. The permanency goal remained a return home for both children. The trial
court asked the parents if they understood that their parental rights could be
terminated if they failed to comply with their DCFS service plans. They said yes.
¶ 16 On November 15, 2017, the trial court directed the State to review both cases
for grounds to terminate the parental rights of Wendy and Gregory. On December
14, 2017, the State filed termination petitions regarding both children. The petitions
alleged that Wendy and Gregory were unfit in that they failed to (1) maintain a
reasonable degree of interest, concern, or responsibility as to the children’s welfare;
(2) protect the children from conditions within their environment injurious to the
children’s welfare; (3) make reasonable efforts to correct the conditions that were
the basis for the removal of the children; and (4) make reasonable progress toward
the return of the children within nine months after the adjudication of neglect (from
December 20, 2016, to September 20, 2017).
¶ 17 At a March 21, 2018, status hearing, Wendy appeared with a new, privately
retained attorney, Drell. Drell asked for a continuance to give Wendy “a chance to
work on her services.” According to Drell,
“She is doing really well and is very, very serious about rehabilitation and
getting her children back. It’s very important to her and she is working very
hard towards it, and I am here to see that she does that. We would like to have
some time to get this all together.”
Drell added that Wendy is “willing to take her children back and desperately wants
them back and is doing everything she can to do that.” The trial court agreed to a
continuance. The fact that Drell appeared as Br.’s GAL at three hearings on the
2013 neglect petition before the same trial judge was not mentioned.
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¶ 18 On July 30, 2018, the parties returned to court. Drell asked the trial court to
continue the trial date to give Wendy “a chance to get her act together.” Drell stated
that she spoke to Wendy over a week earlier and that she had been evaluated by
Stepping Stones. Drell also stated that Wendy “is now in a halfway house where
she is getting substance abuse and parenting classes and doing everything that she
is supposed to do.” The trial court refused to grant a continuance.
¶ 19 On October 16, 2018, the trial court began a series of hearings on the State’s
termination petitions. Wendy, Drell, Gregory, Norbut, a CASA as GAL for the
children, DCFS case manager Josephina Reyes-Garcia, and Ratajczyk were
present. Reyes-Garcia testified that Bo. was 3 years old and Br. was 11 years old.
Both had been in protective custody for two years. The State asked Reyes-Garcia
if Br. had been in foster care before; Drell objected, and the State withdrew the
question. Reyes-Garcia had been the case manager for Br. and Bo. since March
2017. At that time, Wendy’s integrated assessment showed that she suffered from
substance abuse problems, and it recommended individual therapy and parenting
classes. DCFS referred her to Stepping Stones. The center initially recommended
outpatient treatment, but Wendy tested positive for drugs, so she entered an
intensive residential treatment program in April 2017. At the end of that program,
Stepping Stones recommended a 90-day extended residential treatment program.
According to Reyes-Garcia, Wendy refused. She also refused a three-day-per-week
intensive outpatient treatment program. Instead, she agreed to an outpatient
recovery program that required one Stepping Stones meeting and one Alcoholics
Anonymous meeting per week. Wendy did not attend any meetings for three weeks,
and then she relapsed and tested positive for PCP in June 2017.
¶ 20 Reyes-Garcia testified that she referred Wendy to Stepping Stones again for
another assessment. Before that assessment, Wendy relapsed again and came to a
supervised visit with Br. intoxicated. That visit was terminated immediately.
Wendy spoke to Reyes-Garcia, blamed DCFS for taking her children, and denied
being intoxicated. Ultimately, Wendy did the assessment at Stepping Stones, and
the center recommended a 30-day residential treatment program. Wendy accepted
that recommendation but discharged herself after 10 days. She refused to go back
because she did not like the center, asserting that its staffers were “against her” and
“lying about her.” Reyes-Garcia encouraged Wendy to seek treatment at another
center called Brandon House, but Wendy chose to seek treatment at Women’s
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Treatment Center in Chicago. She stayed 27 days of a 30-day inpatient program
there, and the center recommended another intensive outpatient program. Wendy
declined, telling Reyes-Garcia that “she felt she completed her treatment.” Reyes-
Garcia referred Wendy for two drug tests—one in November 2017 and one in
December 2017. She did not attend the November test, but she attended the
December one, and her result was “clean.” Reyes-Garcia then referred Wendy for
four drug tests in February 2018. She attended none of them. Reyes-Garcia then
requested that Wendy do a new substance abuse assessment at Stepping Stones.
She refused.
¶ 21 Reyes-Garcia testified that Wendy was arrested for theft on April 11, 2018, and
released on June 1. Wendy did an assessment at Stepping Stones in July 2018, and
the center recommended outpatient treatment. Reyes-Garcia did not know whether
Wendy completed that program. Reyes-Garcia testified about other aspects of
Wendy’s service plan, including parenting classes and individual therapy. She did
not complete the former, and the latter was terminated for poor attendance.
¶ 22 Drell then cross-examined Reyes-Garcia. Drell focused on Wendy’s initial
integrated assessment, which another DCFS caseworker had completed prior to
Reyes-Garcia’s involvement in the case. Drell noted that Wendy was incarcerated
from September 2016 until February 2017 in the Will County jail, which was a
sizeable portion of the nine-month period in which she could show reasonable
progress regarding the service plan. Reyes-Garcia said that some services were
available in the jail. Drell asked Reyes-Garcia whether Wendy took advantage of
those services. Reyes-Garcia acknowledged that Wendy received a certificate for
active participation in the jail’s drug recovery program and completed a total of 12
classes. Reyes-Garcia also acknowledged that she never gave Wendy credit for
those classes, though she did give her credit for attending therapy sessions.
According to Reyes-Garcia, Wendy’s therapist said that she was making progress
during the year that he saw her. The therapy required by the service plan, however,
was not completed because Wendy stopped attending sessions due to an illness.
Regarding parenting classes, Wendy participated in them at the center in Chicago
but did not complete the entire parenting program. And she took parenting classes
at the jail.
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¶ 23 Reyes-Garcia stated that Wendy and Br. had a strong relationship “to an
extent.” On redirect examination by the State, Reyes-Garcia explained:
“The relationship with [Wendy] and [Br.] is complicated based on the child
where she has mixed emotions, where is most of the time worried, concerned
about her mom’s whereabouts and safety and her well-being, causing her some
stress, anxiety.”
Reyes-Garcia expressed some “concerns” about Bo.’s relationship with Wendy.
After visits with her, he would exhibit negative behaviors—tantrums, hitting, and
biting.
¶ 24 Kaitlin Nolan, an advocate supervisor with the CASA, testified about her
concerns with Wendy as a parent. Nolan stated that, since September 2016,
“Wendy seemed to have a drug addiction that continues to this day. She has
been in and out of multiple rehab facilities, detox facilities. She’s visited
multiple emergency rooms for PCP overdoses.
She’s had the Joliet Fire Department called due to being unresponsive due
to a drug overdose. She consistently says that she does not have a drug problem.
She’s transient as to where she is living. She has multiple cases of domestic
violence all the way up until the last month ***.”
Nolan described three overdoses—one on April 7, 2017, another during the first
week of May 2017, and another on June 6 or 7, 2017. On cross-examination by
Drell, Nolan conceded that Wendy was “working at” addressing her substance
abuse problem, but she did not complete treatment.
¶ 25 After Nolan’s testimony, Drell made an oral motion for a directed verdict,
arguing that the State had not proved that Wendy did not comply with her service
plan. The State responded that it had demonstrated by clear and convincing
evidence that Wendy did not make reasonable progress toward the return of her
children during the nine-month period from December 20, 2016, to September 20,
2017. Drell replied that Wendy was incarcerated for part of that period and still
pursued services while in jail. The trial court denied the motion.
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¶ 26 On November 20, 2018, the hearing continued. Tara Alexander from Help at
Home, an organization that supervises visits for DCFS, testified that she was
present for more than 10 visits between Wendy and her children. Drell asked
Alexander about those visits. According to Alexander, Wendy brought them clothes
and toys, and the three would play and interact together for two hours. Alexander
noticed a strong bond between Wendy and the children, and the children did not
want to leave at the end of those visits. Alexander repeated, “you could tell that
they had a strong bond together.”
¶ 27 Drell then called Wendy as a witness. Wendy stated that, while she was
incarcerated for five months in late 2016 and early 2017, she took substance abuse
and parenting classes in jail. Wendy then did an inpatient program at Stepping
Stones when she was released. When the program was over, Wendy visited a
therapist for a year on the recommendation of Reyes-Garcia. Wendy discussed the
program at the Chicago center. There, she attended meetings and “learned a lot.”
She also went to Alcoholics Anonymous meetings at a nearby church. According
to Wendy, she found a sponsor and still attends meetings. She affirmed that she has
maintained her sobriety for more than a year.
¶ 28 Drell asked Wendy if she had satisfied all the requirements of her service plan
when she left the Chicago center, and Wendy said yes. Her visits with her children
were shortened to one hour per month when the State filed its termination petitions.
When that happened and Reyes-Garcia recommended that Wendy return to
substance abuse treatment, she checked herself into Tabitha House from July 17,
2018, until October 9, 2018. Wendy called that facility “a recovery home for when
you’re sober and trying to live a sober life and you go to meetings.” She had to do
random drug tests while there. All were negative. Wendy testified that she moved
out of Tabitha House after she found a home of her own in Joliet. She also found a
job to support herself and her children. Wendy insisted that she had done everything
that Reyes-Garcia asked.
¶ 29 On December 10, 2018, the trial court ruled that the State had proved by clear
and convincing evidence that Wendy and Gregory were unfit. As to Wendy, the
court stated: “[A]t the heart of the case is mother’s substance abuse. Mother has
failed to successfully complete substance abuse treatment within the time period
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alleged by the State.” The court recognized that she had completed inpatient
treatment thereafter. The court scheduled a best interests hearing.
¶ 30 On January 25, 2019, the trial court convened a hearing. George Stuhr appeared
on behalf of Wendy. According to Ratajczyk, Drell had a medical emergency and
would not be able to participate in further proceedings for an extended period of
time. The court asked Stuhr to draft a motion to withdraw and gave Wendy the
option of a 21-day continuance to obtain other counsel or proceed with a public
defender. Wendy chose the latter option. On April 26, 2019, the trial court held
another hearing. Wendy; Margaret Naal, her new public defender; Gregory;
Norbut; a CASA for both children; and Ratajczyk were present. The court agreed
to appoint an attorney to represent Br., whose wishes diverged from the
recommendation of the CASA.
¶ 31 On September 25, 2019, the trial court found by a preponderance of the
evidence that it was in the best interests of Br. and Bo. to terminate the parental
rights of Wendy and Gregory. The court ordered that DCFS would still be the
children’s guardian and custodian with power to consent to adoption. Wendy
appealed.
¶ 32 A divided panel of the appellate court reversed the trial court’s decision and
remanded for further proceedings, holding that a per se conflict existed because
Drell served as Br.’s GAL before she served as Wendy’s attorney. 2020 IL App
(3d) 190603. Although Wendy did not raise the conflict-of-interest issue before the
trial court, the appellate court majority chose to address it, stating that forfeiture is
a limitation on the parties and not on a reviewing court. Id. ¶ 23.
¶ 33 The appellate court majority stated that both children and parents have a
statutory right to counsel under section 1-5 of the Juvenile Court Act of 1987 (705
ILCS 405/1-5 (West 2016)). 2020 IL App (3d) 190603, ¶ 24. That right to counsel
includes the right to undivided loyalty by counsel. Id. (citing In re S.G., 347 Ill.
App. 3d 476, 479 (2004)). Counsel may not represent “conflicting interests or
undertake the discharge of inconsistent duties.” Id. The majority then maintained
that the same per se conflict of interest rule that originated in criminal law also
applies to proceedings under the Juvenile Court Act. Id. ¶ 25 (citing In re W.R.,
2012 IL App (3d) 110179, ¶ 29). The majority summarized that rule:
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“A per se conflict arises when a defense attorney has ties to a person that would
benefit from an unfavorable verdict for the defendant because the attorney’s
knowledge of her other client’s favorable result might conflict with the
defendant’s interest and affect counsel’s performance in ways that are difficult
to detect.” Id.¶ 34 The majority discussed S.G., where the appellate court found a per se conflict
of interest because the mother’s court-appointed attorney previously represented
the children as the GAL in the same juvenile proceeding, and In re Darius G., 406
Ill. App. 3d 727 (2010), where the appellate court found a per se conflict of interest
because the parent’s court-appointed attorney later represented the child in the same
juvenile proceeding. The majority followed those two cases in concluding that
Drell’s representation of Br. as GAL from 2013 to 2014 and her later representation
of Wendy constituted a per se conflict. 2020 IL App (3d) 190603, ¶ 28. The
majority reasoned:
“Although Drell’s representation of different clients was not simultaneous, the
goal of the juvenile proceedings was clearly compromised. Any opinion Drell
may have developed regarding [Br.’s] best interests in her prior capacity as
GAL might have conflicted with [Wendy’s] position and affected counsel’s
ability to represent [Wendy] in the termination proceeding with ‘undivided
loyalty.’ ” Id.¶ 35 Justice Wright dissented, asserting that a per se conflict of interest exists only
when a court-appointed attorney has a contemporaneous relationship with a third
party that makes undivided loyalty very difficult. Id. ¶ 35 (Wright, J., dissenting)
(citing In re D.B., 246 Ill. App. 3d 484, 491 (1993)). Here, there was never
contemporaneous representation of Br. and Wendy by Drell. Id. Justice Wright
highlighted the fact that litigation of the first petition was completed in 2014 and
the second petition was not filed until 2016. Id. ¶ 38. And in 2018, Wendy “made
a choice that gave rise to an argument about [her] attorney’s undivided loyalty.” Id.
¶ 41.
¶ 36 According to Justice Wright, vacating the trial court’s order created a perverse
incentive:
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“[I]f a per se conflict of interest exists in this case, then every parent would be
wise to replace nonconflicted court-appointed counsel with private counsel,
arguably previously tied to another party. This approach *** would guarantee
every parent a right to relief from adverse rulings by choosing private counsel
with arguable conflicts.” Id. ¶ 42.
¶ 37 This court allowed the State’s petition for leave to appeal. See Ill. S. Ct. R.
315(a) (eff. Oct. 1, 2019). Our review of the legal issue presented here proceeds
de novo. People v. Green, 2020 IL 125005, ¶ 19.
¶ 38 ANALYSIS
¶ 39 Before addressing the merits, we must decide whether Wendy forfeited
consideration of her per se conflict of interest claim by not raising it before the trial
court. In effect, Wendy created the conflict by hiring Drell, then waited until she
lost her parental rights to raise her conflict claim for the first time on appeal. The
appellate court majority excused any procedural default, however, by briefly
mentioning the proposition that forfeiture is a limitation on the parties and not on
the reviewing court. See 2020 IL App (3d) 190603, ¶ 23 (citing In re D.F., 208 Ill.
2d 223, 239 (2003)). While the proposition remains true, the exception to forfeiture
principles that it provides is narrow.
¶ 40 “Parents have a fundamental liberty interest in raising and caring for their
children ***.” Sharpe v. Westmoreland, 2020 IL 124863, ¶ 15 (citing In re N.G.,
2018 IL 121939, ¶¶ 24-25); see Obergefell v. Hodges, 576 U.S. 644, 668 (2015)
(stating that the right to “ ‘ “bring up children” is a central part of the liberty
protected by the Due Process Clause’ ” (quoting Zablocki v. Redhail, 434 U.S. 374,
384 (1978), quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923))). “Because of
the liberty interests involved, courts will not easily terminate those rights.” In re
M.H., 196 Ill. 2d 356, 363 (2001). And a reviewing court should not easily declare
forfeiture of an argument directed at a decision to terminate those rights—
particularly where, as here, there is some tension about that argument in the
appellate court. Compare Darius G., 406 Ill. App. 3d 727, and S.G., 347 Ill. App.
3d 476, with D.B., 246 Ill. App. 3d 484; see In re Quadaysha C., 409 Ill. App. 3d
1020, 1025 (2011) (describing representation of multiple parties by the same
attorney in juvenile proceedings as a “recurring problem”). In order to maintain a
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uniform body of precedent and reach a just result, we choose to reach the merits.
See In re Tamera W., 2012 IL App (2d) 111131, ¶ 30.
¶ 41 While the sixth and fourteenth amendments to the United States Constitution
(U.S. Const., amends. VI, XIV) and article I, section 8, of the Illinois Constitution
of 1970 (Ill. Const. 1970, art. I, § 8) guarantee the right to counsel in criminal
proceedings, the right to counsel in proceedings under the Juvenile Court Act is
provided by statute. Section 1-5(1) of the Juvenile Court Act states:
“[T]he minor who is the subject of the proceeding and his parents *** have the
right to be present, to be heard, to present evidence material to the proceedings,
to cross-examine witnesses, to examine pertinent court files and records and
also, although proceedings under this Act are not intended to be adversary in
character, the right to be represented by counsel.” 705 ILCS 405/1-5(1) (West
2016).
See In re Adoption of K.L.P., 198 Ill. 2d 448, 461 (2002) (“an indigent parent in a
termination proceeding brought under the Juvenile Court Act is entitled to court-
appointed counsel, not because the due process clause of the Illinois or United
States Constitutions mandates it, but because the legislature has chosen to guarantee
the assistance of counsel to indigent parents”).
¶ 42 The sixth amendment right to counsel implies the right to effective assistance.
People v. Peterson, 2017 IL 120331, ¶ 79. Though the statutory right to counsel in
proceedings under the Juvenile Court Act lacks constitutional footing (see People
v. Lackey, 79 Ill. 2d 466, 468 (1980) (per curiam) (citing In re Adoption of
Hoffman, 61 Ill. 2d 569, 579-80 (1975)), that right is closely linked to its
constitutional counterpart (In re R.G., 165 Ill. App. 3d 112, 127 (1988) (stating that
the constitutional right to counsel “has been codified and extended to the parents of
a minor who are parties respondent in a proceeding under the Juvenile Court Act”)).
Both rights imply a right to effective assistance. In re D.M., 258 Ill. App. 3d 669,
673 (1994) (stating that “inherent in the Juvenile Court Act’s right to counsel is the
right that such counsel be effective”); accord In re M.D.B., 121 Ill. App. 3d 77, 84
(1984); In re Johnson, 102 Ill. App. 3d 1005, 1011 (1981). To hold otherwise would
render the statutory right illusory. See R.G., 165 Ill. App. 3d at 127 (“It would seem
a useless gesture on the one hand to recognize the importance of counsel in
proceedings to terminate parental rights—as evidenced by our statutory right for
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same—and, on the other hand, not require that counsel perform effectively.”); cf.
In re Barbara H., 183 Ill. 2d 482, 496 (1998) (refusing to allow the statutory right
to counsel in civil proceedings under the Mental Health and Developmental
Disabilities Code (405 ILCS 5/3-800 et seq. (West 1996)) to be “reduced to no more
than an empty formality”).
¶ 43 Our rubric for evaluating ineffective assistance claims in criminal cases is the
two-prong standard in Strickland v. Washington, 466 U.S. 668 (1984). See People
v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting the Strickland standard). Under
that standard, a defendant must show substandard performance by defense counsel
and resulting prejudice. Peterson, 2017 IL 120331, ¶ 79 (citing People v. Patterson,
192 Ill. 2d 93, 107 (2000)). We recognize that there are differences between
criminal law proceedings and proceedings under the Juvenile Court Act, but the
Strickland standard, because of its familiarity and simplicity, offers a helpful
structure to guide our analysis.
¶ 44 One aspect of effective assistance is conflict-free assistance—that is “assistance
by an attorney whose allegiance *** is not diluted by conflicting interests or
inconsistent obligations.” People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988); accord
People v. Hernandez, 231 Ill. 2d 134, 142 (2008); see People v. Coslet, 67 Ill. 2d
127, 134 (1977) (stating that the right to counsel “entitles the person represented to
the undivided loyalty of counsel”). A conflict-of-interest claim is a specific form of
an ineffective assistance claim. Essentially, the party asserting such a claim is
arguing that a conflict rendered the attorney’s performance substandard and that the
substandard performance caused prejudice.
¶ 45 We have recognized two types of conflicts—per se and actual. Green, 2020 IL
125005, ¶ 20. A per se conflict arises when the attorney had or has “a tie to a person
or entity” that would benefit from a verdict unfavorable to the client. Spreitzer, 123
Ill. 2d at 16. Pursuant to long-standing precedent, there are only three situations in
which that occurs:
“(1) when defense counsel has a prior or contemporaneous association with the
victim, the prosecution, or an entity assisting the prosecution [citations];
(2) when defense counsel contemporaneously represents a prosecution witness
[citations]; and (3) when defense counsel was a former prosecutor who had
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been personally involved in the prosecution of the defendant [citation].”
Hernandez, 231 Ill. 2d at 143-44.
Accord Fields, 2012 IL 112438, ¶ 18; Green, 2020 IL 125005, ¶ 43.
¶ 46 In those situations, the tie “may have subtle or subliminal effects on counsel’s
performance that are difficult to detect and demonstrate.” Peterson, 2017 IL
120331, ¶ 103. A party alleging a per se conflict need only show that one of those
ties exists (see People v. Hillenbrand, 121 Ill. 2d 537, 544 (1988)) and need not
show that it affected the attorney’s performance (see Spreitzer, 123 Ill. 2d at 15).
Under Strickland, prejudice is presumed. Green, 2020 IL 125005, ¶ 21
(“ ‘allegations and proof of prejudice are unnecessary in cases where a defense
counsel *** might be restrained in fully representing the defendant’s interests due
to *** commitments to others’ ” (quoting Coslet, 67 Ill. 2d at 133)); Hernandez,
231 Ill. 2d at 142-43. And the remedy is automatic reversal unless the client waives
the conflict. Green, 2020 IL 125005, ¶ 24. 2
¶ 47 In reaching its ultimate holding that there was a per se conflict, the appellate
court majority followed S.G. and Darius G., so we will discuss them. In S.G., the
trial court initially appointed one public defender, Brian Wernsman, to represent
the mother and one public defender, Michael McHaney, to serve as GAL for her
children at the shelter care hearing in neglect proceedings. S.G., 347 Ill. App. 3d at
478. At a subsequent hearing, the trial court vacated the appointment of Wernsman
and appointed McHaney to represent the mother and another attorney to serve as
GAL. Id. In sum, McHaney served as the children’s GAL for almost 2 months, and
2
The notion that Wendy did not know of Drell’s involvement in proceedings on the 2013 neglect
petition before hiring her at the key moment in proceedings on the 2016 neglect petition defies
credulity. Wendy was present in court at the shelter care hearing, the adjudicatory hearing, and the
dispositional hearing in the former case, and Drell introduced herself at all three hearings and agreed
with the State’s argument in the dispositional hearing. Wendy was also present at the hearing on the
motion to restore her fitness, where her attorney Bembnister indicated that Drell as GAL had no
objection and spoke of the “bond” between Wendy and Br. All of the hearings at which Drell
appeared, on both neglect petitions, were before the same trial judge.
The record, however, does not indicate that Drell’s work as GAL for Br. was mentioned when
she appeared in 2018. We have intimated that there is more scrutiny of potential conflicts when
counsel is appointed, rather than retained (see People v. Stoval, 40 Ill. 2d 109, 113 (1968)), but we
have also cautioned about the need to ensure knowledgeable assent to conflicts of interest (see
Coslet, 67 Ill. 2d at 135). In the absence of facts to show such assent, it is not possible to say that
Wendy waived any conflict.
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he served as the mother’s attorney for almost 3½ years. Id. At the close of the
proceedings, the mother’s parental rights were terminated, and she appealed. Id.¶ 48 The appellate court reversed and remanded. Id. The appellate court referred to
a parent’s statutory right to counsel under the Juvenile Court Act and the
accompanying right to effective assistance. Id. at 478-79. That right, in turn, entitles
the parent to undivided loyalty from the attorney. Id. at 479. Consequently,
“counsel may not represent conflicting interests or undertake the discharge of
inconsistent duties.” Id. According to the appellate court, that concept is “so central
to our profession” that it was formalized in the Rules of Professional Conduct. Id.
(citing Ill. R. Prof’l Conduct R. 1.9 (eff. Aug. 1, 1990)). The court continued,
describing our development of the per se conflict of interest rule for “cases where
a conflict is created by defense counsel’s prior or contemporaneous association with
either the prosecution or the victim.” Id.
¶ 49 The appellate court reasoned that the policy concerns behind the per se conflict
rule were present there because McHaney “represented parties with adverse
objectives at different times in the same proceeding.” Id. at 480-81. The court noted
that the State did not contest that the interests of the mother and her children were
“diametrically opposed.” Id. at 481. The mother sought to retain her parental rights,
while McHaney, as the children’s GAL, “advocated otherwise.” Id. The brevity of
that appointment did not affect the court’s conclusion that the rule applied because
the attorney may have formulated opinions about the children’s best interests that
were not reflected by the record. Id.
¶ 50 In Darius G., attorney Erin Buhl represented the mother at two permanency-
review hearings in neglect proceedings. Darius G., 406 Ill. App. 3d at 729. A month
later at the arraignment on the State’s parental rights termination petition, attorney
Mike Herrmann represented the mother. Id. at 730. Three months later at a pretrial
conference, Buhl again represented the mother, and Herrmann appeared on behalf
of the child. Id. Nothing substantive happened at that hearing; the court simply
scheduled a trial date. Id. Hermann never made another appearance in the case, but
Buhl continued to represent the mother. Id. At the close of the proceedings, her
rights were terminated. She appealed. Id. at 731.
¶ 51 A divided panel of the appellate court reversed and remanded. Id. at 739. The
appellate court majority stated that, “when the same attorney represents opposing
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parties in the course of the same litigation, a per se conflict of interest arises and
prejudice is presumed.” Id. at 731. The majority explained that a per se conflict
occurs when defense counsel has ties to a person or entity that would benefit from
an unfavorable verdict for the defendant. Id. at 732. The majority recited the three
situations of per se conflicts identified by this court in that case. Id. (citing
Hernandez, 231 Ill. 2d at 143-44). The majority then dismissed the State’s argument
that none of the three situations occurred and instead relied upon S.G. in holding
that the per se conflict rule applied because Herrmann appeared on behalf of both
the mother and the child. Id. at 738.
¶ 52 The appellate court majority acknowledged that, “if there is a spectrum upon
which scenarios suggesting conflict might be measured in cases of dual,
nonsimultaneous representation in termination cases, this case arguably presents
the threshold.” Id. at 736-37. Herrmann represented the mother at one hearing and
represented the child at another hearing. Id. at 737. At both hearings, he made no
substantive, on-the-record argument. Id. The majority found that irrelevant. Id.
(citing S.G., 347 Ill. App. 3d at 481). Though “the shared goal in juvenile
proceedings is to serve the child’s best interest,” what that best interest may entail
“often depends on whose perspective is being considered.” Id. at 738. According to
the appellate court majority, “competing positions clearly may exist within the
unified goal of best interest.” Id.
¶ 53 S.G. predated Hernandez, where we first used the three-situation formulation
of the per se conflict rule, so the appellate court’s loose application of the rule in
that case is perhaps understandable. The appellate court majority opinion in Darius
G. postdated Hernandez. The majority there correctly presented the holding in
Hernandez and the three situations when a per se conflict occurs, then ignored those
situations in favor of its own sense of what constitutes a conflicting interest. The
analyses in those cases clearly depart from our approach to per se conflicts. S.G.
and Darius G. are, therefore, overruled.
¶ 54 Worse still, the appellate court majority in this case did not even mention our
approach to per se conflicts and the three situations at all. Instead, the majority
stated the per se conflict rule like this:
“A per se conflict arises when a defense attorney has ties to a person that would
benefit from an unfavorable verdict for the defendant because the attorney’s
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knowledge of her other client’s favorable result might conflict with the
defendant’s interest and affect counsel’s performance in ways that are difficult
to detect.” 2020 IL App (3d) 190603, ¶ 25 (citing Darius G., 406 Ill. App. 3d at
732, citing Hernandez, 231 Ill. 2d at 142-43).
In Fields, 2012 IL 112438, ¶ 40, we called a similar statement “the justification for
the per se conflict rule,” as opposed to the rule itself, and strongly rejected any
interpretation of the statement that would create a fourth situation or an alternate
basis for finding a per se conflict. The majority in this case did not cite Fields.
¶ 55 The appellate court majority had the benefit of Hernandez and Fields; it just
chose not to use them. The State contends that the appellate court majority’s
analysis was flawed, and we agree. The majority failed to identify which of the
three narrow situations created a per se conflict here. As we recently reiterated,
“this court recognizes only three situations in which a per se conflict of interest will
be found to exist.” Green, 2020 IL 125005, ¶ 43. That is a closed set, and any other
situations may be examined for an actual conflict of interest. Id. ¶ 38. Obviously,
the second and third situations did not occur. Drell did not contemporaneously
represent Wendy and a prosecution witness, and Drell was not a former prosecutor
involved in a criminal case against Wendy. The question becomes whether the first
situation occurred. That is, we must determine whether Drell had a prior association
with the victim, the prosecution, or an entity assisting the prosecution.
¶ 56 The State argues that Br. was not a victim. Although she was adjudicated
neglected, the Juvenile Court Act does not refer to a neglected child as a victim but
rather as “the subject of the proceeding.” 705 ILCS 405/1-5(1) (West 2016). The
State observes that Br. does not meet the definition of “crime victim” under the
Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 2016)).
That statute defines “crime victim” as “any natural person determined by the
prosecutor or the court to have suffered direct physical or psychological harm as a
result of a violent crime perpetrated or attempted against that person or direct
physical or psychological harm as a result of” a driving under the influence offense
or an involuntary manslaughter/reckless homicide offense. Id. § 3(a)(1).
¶ 57 Wendy argues that Drell had a prior association with “the victim”—the
children. According to Wendy, her “untreated drug issues *** rendered the minors
unwilling recipients of [her] actions which placed them in a position of harm and/or
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threat of harm.” Wendy quotes definitions of “victim” from Black’s Law
Dictionary and Webster’s dictionary. The former states that a victim is “[t]he person
who is the object of a crime or tort.” Black’s Law Dictionary 1567 (6th ed. 1990).
The latter states that a victim is “one that is subjected to oppression, hardship, or
mistreatment.” Merriam-Webster’s Online Dictionary, https://www.merriam-
webster.com/dictionary/victim (last visited Feb. 22, 2021) [https://perma.cc/7T52-
998U]. Wendy also asserts that Drell’s cooperation with the State at the
dispositional hearing on the 2013 neglect petition amounted to assistance for the
prosecution.
¶ 58 After making a “ ‘realistic appraisal’ ” of Drell’s professional relationship with
Br. (see People v. Austin M., 2012 IL 111194, ¶ 83 (quoting People v. Daly, 341
Ill. App. 3d 372, 376 (2003))), we hold that Drell was not associated with the victim
for purposes of the per se conflict rule when she acted as Br.’s GAL at three
hearings on the 2013 neglect petition. An allegedly neglected minor is not a victim
but “the subject of the proceeding” under the Juvenile Court Act, and such
proceedings “are not intended to be adversary in character.” 705 ILCS 405/1-5(1)
(West 2016).
¶ 59 Further, Drell was never associated with the prosecution. Section 2-17(1) of the
Juvenile Court Act provides that, when the State files an abuse or neglect petition,
the trial court must appoint a guardian ad litem to represent the best interests of the
child and to offer recommendations to the court consistent with that duty. Id. § 2-
17(1). In an abuse or neglect proceeding, “a GAL is, in essence, an arm of the
court.” Austin M., 2012 IL 111194, ¶ 69; see In re Mark W., 228 Ill. 2d 365, 374
(2008) (“A guardian ad litem functions as the ‘eyes and ears of the court’ and not
as the ward’s attorney.”). Traditionally, a GAL is not an advocate for the ward but
an adviser to the court as to what is in the ward’s best interest. Id.; accord Nichols
v. Fahrenkamp, 2019 IL 123990, ¶ 35 (stating that most Illinois cases treat the GAL
as “a reporter or a witness and not as an advocate”).
¶ 60 As GAL for Br., Drell acted at the behest of the trial court, not the State. Drell’s
only substantive comment during proceedings on the 2013 neglect petition
indicated that Br.’s best interests aligned with the State’s argument simply because
her mother was incarcerated. Drell added that Br. needed a stable home until Wendy
was released and could engage in services. The appellate court majority speculated
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that any opinion that Drell may have developed regarding Br.’s best interests in her
prior capacity as GAL in proceedings on the 2013 neglect petition might have
conflicted with Wendy’s position in proceedings on the 2016 neglect petition. That
reasoning is demonstrably false. Drell’s opinion about Wendy was favorable. She
declined to object to the motion to restore Wendy’s fitness, citing the bond between
Wendy and Br. We conclude that the appellate court majority erred in holding that
Drell operated under a per se conflict of interest when she represented Wendy. We
repeat: That conclusion would not preclude a parent from asserting an actual
conflict of interest claim in a similar context. See Hernandez, 231 Ill. 2d at 144 (“If
a per se conflict does not exist, a defendant may still establish a violation of [the]
right to effective assistance of counsel by showing an actual conflict of interest that
adversely affected *** counsel’s performance.”). Wendy did not do that here, so
our inquiry ends.
¶ 61 Today, Br. is more than 14 years old. She has spent most of her life in foster
care. Reversal here would not affect the 2013 neglect proceedings, which ended
when Wendy’s rights were restored. Reversal, however, would undo the result of
the 2016 neglect proceedings, which ended when Wendy’s rights were terminated.
Br. would be sent back five years, as if none of this had ever happened. Perhaps
that is what she wants, judging from her argument in this case, but we believe that
stability and finality are more important. See In re Kenneth F., 332 Ill. App. 3d 674,
679-80 (2002) (“Of primary concern is permanency and stability in the lives of
children involved in termination proceedings.”); In re Paul L.F., 408 Ill. App. 3d
862, 870 (2011) (Hudson, J., dissenting) (“A per se rule that allows—indeed,
requires—reversal for an error that is not prejudicial does not strike a proper
balance between a party’s right to counsel and a child’s need for finality.”).
¶ 62 CONCLUSION
¶ 63 For the reasons that we have stated, the judgment of the appellate court is
reversed, and the judgment of the circuit court is affirmed.
¶ 64 Appellate court judgment reversed.
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¶ 65 Circuit court judgment affirmed.
¶ 66 CHIEF JUSTICE ANNE M. BURKE, dissenting:
¶ 67 The issue before this court is whether the doctrine of per se conflict of interest
extends to proceedings under the Juvenile Court Act of 1987 (Act) (705 ILCS
405/1-1 et seq. (West 2016)) and, if so, whether in this case attorney Lea Drell
labored under a per se conflict of interest when she represented Wendy M.
(respondent) in proceedings to terminate respondent’s parental rights. The appellate
court held that, because Drell had previously served as guardian ad litem (GAL) for
one of respondent’s children, a per se conflict existed. Accordingly, the appellate
court reversed the termination of respondent’s parental rights and remanded for
new proceedings. 2020 IL App (3d) 190603.
¶ 68 A majority of this court now reverses the appellate court’s judgment and
overrules two appellate cases the court below relied upon. The majority concludes
that, although claims of per se conflict of interest are cognizable in proceedings
under the Act, there was no per se conflict in this case. The majority reaches this
conclusion because it finds that there are only three situations where a per se
conflict is recognized and that the circumstances of this case do not fit within the
strict parameters of any of those three situations.
¶ 69 I disagree with the majority’s conclusion that the circumstances of this case do
not give rise to a per se conflict of interest. I would affirm the appellate court
judgment, reverse the termination of respondent’s parental rights, and remand for
further proceedings. Therefore, I respectfully dissent.
¶ 70 The rules concerning per se conflicts were developed in the context of criminal
prosecutions. As we noted in People v. Green, 2020 IL 125005, ¶ 21, the term
“per se” conflict was first coined in People v. Coslet, 67 Ill. 2d 127 (1977), to
describe a conflict rule that had been adopted in some earlier criminal cases
“whereby allegations and proof of prejudice are unnecessary *** where a defense
counsel, without the knowledgeable assent of the defendant, might be restrained in
fully representing the defendant’s interests due to his or her commitments to
others.” Id. at 133 (citing People v. Stoval, 40 Ill. 2d 109, 113 (1968)). The per se
conflict rule recognizes that the constitutional right to effective assistance of
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counsel is a fundamental right, which must not be “ ‘diluted by conflicting interests
or inconsistent obligations.’ ” Green, 2020 IL 125005, ¶ 20 (quoting People v.
Spreitzer, 123 Ill. 2d 1, 13-14 (1988)). Therefore, a per se conflict claim is a special
type of ineffective assistance of counsel claim.
¶ 71 Since Coslet, the per se conflict rule has been applied in a number of situations.
People v. Lawson, 163 Ill. 2d 187, 210 (1994). The common denominator in each
of these situations is that we found certain “facts about a defense attorney’s status
*** engender[ed], by themselves, a disabling conflict.” (Emphasis in original.)
Spreitzer, 123 Ill. 2d at 14-15 (listing cases); see also People v. Hernandez, 231 Ill.
2d 134, 142 (2008). It is now well established that, in criminal matters, when a
defense attorney has ties to a person or entity that might benefit from an unfavorable
verdict for the defendant, the “ ‘situation is too fraught with the dangers of
prejudice, prejudice which the cold record might not indicate, that the mere
existence of the conflict is sufficient to constitute a violation of [defendant’s] rights
whether or not it in fact influences the attorney or the outcome of the case.’ ” Stoval,
40 Ill. 2d at 113 (quoting United States ex rel. Miller v. Myers, 253 F. Supp. 55, 57
(E.D. Pa.1966)).
¶ 72 The rationale for adopting a per se conflict rule is that the defense attorney’s
past or present commitments “may have subtle or subliminal effects on counsel’s
performance that are difficult to detect and demonstrate” but raise the possibility
that the attorney is unable to effectively represent his or her client. People v.
Peterson, 2017 IL 120331, ¶ 103. In these situations, prejudice will be presumed,
and there is no need—indeed, it may be impossible—to show actual prejudice
resulting from the conflict. Spreitzer, 123 Ill. 2d at 16. As a result, when a per se
conflict exists, the court on appeal must reverse unless the conflict was
affirmatively waived. Id. at 14-17.
¶ 73 In Hernandez, we examined cases in which a per se conflict was alleged and
identified three categories of cases in which a defense attorney representing a
defendant in criminal proceedings had been found to have labored under a per se
conflict of interest:
“(1) when defense counsel has a prior or contemporaneous association with the
victim, the prosecution, or an entity assisting the prosecution (Spreitzer, 123 Ill.
2d at 14; see also People v. Lawson, 163 Ill. 2d 187, 210-11 (1994) (collecting
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cases)); (2) when defense counsel contemporaneously represents a prosecution
witness (see People v. Moore, 189 Ill. 2d 521, 538 (2000); People v. Thomas,
131 Ill. 2d 104, 111 (1989)); and (3) when defense counsel was a former
prosecutor who had been personally involved in the prosecution of the
defendant (see Lawson, 163 Ill. 2d at 217-18).” Hernandez, 231 Ill. 2d at 143-
44 (2008).
These situations are not the per se conflict rule itself but a distillation of the
circumstances that will give rise to a per se conflict. In criminal cases, efforts to
expand these situations or add new ones have been rejected by this court. See
Green, 2020 IL 125005, ¶¶ 37-43; People v. Fields, 2012 IL 112438, ¶ 41.
¶ 74 The case before us is not a criminal case. Moreover, until this case, this court
had never before even considered whether the doctrine of ineffective assistance of
counsel—which includes recognition of per se conflicts of interest—could be
extended to proceedings under the Act. Today, by analogizing a criminal
defendant’s constitutional right to effective assistance of counsel to the statutory
right to counsel provided for in section 1-5(1) of the Act (705 ILCS 405/1-5(1)
(West 2016)) and by finding that the statutory right to counsel would be
meaningless unless it implied the right to effective assistance of counsel, the
majority holds that claims of per se conflict of interest are cognizable in
proceedings under the Act. On this point I agree with the majority. Where I part
company is with the majority’s application of the per se conflict doctrine to this
case.
¶ 75 Rather than consider how the purposes and concepts underpinning the per se
conflict doctrine in the criminal context might translate to this new context, the
majority simply lifts the rules for finding a per se conflict in criminal cases and
superimposes them, verbatim, on these civil proceedings. This is undeniably not
possible. As the majority itself acknowledges, criminal proceedings and
proceedings under the Act are quite different. The terminology and rules used to
determine whether a per se conflict exists in a criminal proceeding logically cannot
be applied to the parental termination proceedings in this case.
¶ 76 The majority holds that Drell did not operate under a per se conflict when she
represented respondent in parental termination proceedings. The reason offered for
this conclusion is that Drell’s previous association was with Br., one of
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respondent’s children, when Drell acted as Br.’s guardian ad litem in prior neglect
proceedings and that “[an] allegedly neglected minor is not a victim but ‘the subject
of the proceeding’ under the Juvenile Court Act, and such proceedings ‘are not
intended to be adversary in character.’ 705 ILCS 405/1-5(1) (West 2016).” Supra
¶ 58.
¶ 77 This reasoning clearly demonstrates the flaw in the majority’s analysis. The
majority’s mechanical application of the per se conflict rules for criminal cases to
the parental termination proceedings in this case is illogical and improper. In my
view, the proper procedure for determining whether Drell labored under a per se
conflict of interest in this case is to apply the per se conflict doctrine first set out in
Coslet. That is, we should consider whether this is a case where allegations and
proof of prejudice are unnecessary because respondent’s counsel, without the
knowledgeable assent of respondent, might have been restrained in fully
representing respondent’s interests due counsel’s prior commitment as GAL.
Undertaking such an analysis, I would find that a per se conflict did exist.
¶ 78 Drell’s past commitment as Br.’s GAL gave Drell full access to court records
and the State’s allegations of neglect, as well as information about respondent’s
background, behavior, and parenting ability. As GAL, it was Drell’s responsibility
to formulate recommendations regarding the best interests of respondent’s child.
As such, Drell necessarily formed opinions regarding respondent and her behavior.
Further, it is impossible to know whether Drell’s involvement as Br.’s GAL had
any subtle, subliminal influence on her representation of respondent, which would
not be detectable from the record or, perhaps, even to Drell herself but might have
affected her ability to represent the respondent’s interests effectively.
¶ 79 Even if we were to simply analogize the per se conflict situations in criminal
cases to this case, I would find the majority erred. The majority finds that Drell did
not labor under a per se conflict of interest because Br., as the subject of neglect
proceedings, was not a “victim.” However, in parental termination proceedings,
who could possibly be “the victim” if not the children who were abused or
neglected to such an extent that they must be permanently removed from the care
of their biological parent?
¶ 80 Finally, I note that the majority also rejects the appellate court’s judgment,
stating:
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“The appellate court majority speculated that any opinion that Drell may have
developed regarding Br.’s best interests in her prior capacity as GAL in
proceedings on the 2013 neglect petition might have conflicted with Wendy’s
position in proceedings on the 2016 neglect petition. That reasoning is
demonstrably false. Drell’s opinion about Wendy was favorable.” Supra ¶ 60.
This statement demonstrates a fundamental misunderstanding of per se conflicts in
proceedings under the Act. As noted above, it has been firmly established that a
per se conflict will be found when facts concerning the attorney’s status gives rise
to the possibility of a conflict. Spreitzer, 123 Ill. 2d at 14; Hernandez, 231 Ill. 2d at
142. We have repeatedly acknowledged that finding a per se conflict based on the
attorney’s status is appropriate because the attorney’s past or present commitments
“may have subtle or subliminal effects on counsel’s performance that are difficult
to detect and demonstrate” but raise the possibility that the attorney is unable to
effectively represent his or her client. Peterson, 2017 IL 120331, ¶ 103; Spreitzer,
123 Ill. 2d at 16. Reviewing the record to evaluate the level of Drell’s involvement
when she acted as GAL or searching the record for evidence of an actual conflict is
improper. See People v. Kester, 66 Ill. 2d 162, 168 (1977) (fact that defendant’s
attorney previously served as prosecutor against defendant in same case
necessitated application of per se rule; inquiry into nature and extent of his
involvement as prosecutor was not necessary or desirable); Lawson, 163 Ill. 2d at
216 (fact of actual commitment to another, not degree or extent of that commitment,
dictated application of per se rule).
¶ 81 For the reasons set forth above, I would find that Drell operated under a per se
conflict of interest when she represented respondent at her parental termination
proceedings. Accordingly, I respectfully dissent.
¶ 82 JUSTICE NEVILLE joins in this dissent.
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