Opinion
No. 1-05-3370
June 16, 2006. Opinion Withdrawn by the Court on December 26, 2006.
Appeal from the Circuit Court of Cook County, No. 99 JA 00877, Candace Fabri, Judge, presiding.
Amy B., respondent and plenary guardian of the person for Delores W., the mentally-disabled adult mother and respondent, appeals from the July 12, 2005, order of the juvenile court finding Delores W., unfit. Following the termination of the parental rights hearing, a best-interest hearing was held where the trial court terminated Delores W.'s parental rights to Mark W. In this appeal, Amy B. presents the following issues for review: (1) whether Delores W., a mentally disabled adult with a plenary guardian of the person, was denied due process by the juvenile court when on December 9, 2002, the juvenile court appointed a guardian ad litem (GAL) to represent the mentally disabled mother's best interest during a hearing to terminate the mother's parental rights; (2) whether the trial court's findings at the termination of parental rights hearings were against the manifest weight of the evidence; (3) whether the trial court had jurisdiction to terminate the parental rights of Delores W. when Delores W.'s plenary guardian of the person had not received notice of the proceedings; and (4) whether the trial court erred when it denied the plenary guardian's attempts to call witnesses, including the minor.
In the record there are two spellings for the mother's name: Delores and Dolores. We will use the Delores spelling.
BACKGROUND The Probate Court's Determination That Delores W. is Disabled
On August 29, 1997, the probate court entered an order naming Amy B., Delores W.'s mother, plenary guardian of the person for Delores W. The probate court found, as of July 10, 1997, that a report by Dr. Simon Gewold indicated that Delores W. is mentally handicapped, has mild to moderate mental retardation, and functions at a third-grade level. The probate court's order indicated that the appointment of a GAL for the guardianship proceedings had been waived. The probate court issued letters of office to Amy B. naming her plenary guardian of the person of Delores W., a disabled person. The letters of office provided that Amy B. "is authorized to have under the direction of the court the custody of the ward and to do all acts required by law."
The Birth of Mark W.
According to the petition for adjudication of wardship, on July 1, 1998, approximately 10 months after Amy B. was appointed Delores W.'s plenary guardian of the person, Delores W. gave birth to a son, Mark W. Mark W.'s father is Bradley B.
The Juvenile Court's Termination of Delores W.'s Parental Rights Proceedings
The Illinois Department of Children and Family Services (DCFS) client service plan for March 31, 1999, reveals that Mark W.'s babysitter called DCFS and reported that Delores W. had forced a plastic toy down Mark W.'s mouth and that she hit him on the head with a television remote control. On April 4, 1999, DCFS took protective custody of Mark W. and placed him in foster care with his maternal grandmother, Amy B. At the same time, Mark W.'s mother, Delores W., was also a resident in Amy B.'s home because Amy B. was the plenary guardian of her person.
The Temporary Custody Hearing
On April 8, 1999, the State filed a petition for adjudication of wardship alleging that, pursuant to sections 2-3(1)b and 3(2)(ii) of the Juvenile Court Act of 1987 (Juvenile Court Act) ( 705 ILCS 405/2-3(1)(b), (2)(ii) (West 1998)), nine-month-old Mark W. was neglected in that his environment was injurious to his welfare, and that he was abused due to a substantial risk of physical injury. The following facts were provided to support the allegations in the petition:
"On or about March 31, 1999, natural mother shoved a plastic object into minor's mouth and down his throat causing minor to gag. Natural mother then hit minor on the head with an object several times. Natural mother also attempted to choke minor when minor continued to cry. Natural mother grabbed minor and attempted to pull minor away from another individual."
On April 9, 1999, the court took temporary custody of Mark W., and DCFS placed Mark W. in the care of Amy B. On July 29, 1999, Mark W. was removed from Amy B.'s care to a specialized foster care placement due to risk of harm and concerns about Amy B.'s parenting skills. Mark W. had what appeared to be burns on his stomach and on his toe that Amy B. was unable to explain.
The First Adjudicatory and Dispositional Hearings
On October 10, 2000, the juvenile court entered an order amending the petition for adjudication of wardship as follows: "the minor is dependant in that he is under 18 years of age and is without proper care because of the physical or mental disability of his parent, guardian or custodian pursuant to 705 ILCS 405/2-4." On November 27, 2000, the juvenile court held an adjudicatory hearing and found that Mark W. was a dependant child, pursuant to section 2-4 of the Juvenile Court Act ( 705 ILCS 405/2-4 (West 1998)), due to the mental condition of his mother. On March 29, 2001, the juvenile court conducted a dispositional hearing making Mark W. a ward of the State. On March 15, 2002, after making a finding that Amy B., the plenary guardian of Delores W.'s person, had not been notified, the juvenile court vacated the adjudicatory and dispositional orders. The court based its decision upon In re K.C., 323 Ill. App. 3d 839, 852 (2001), which held that the plenary guardian of a disabled person whose parental rights are the subject of proceedings under the Juvenile Court Act is a necessary party under the Act and must be named as a party respondent and served with notice. The adjudication of wardship petition was amended and added Amy B.'s name as a respondent. On October 15, 2002, the adjudication of wardship petition was again amended to include the following:
"The maternal grandmother was appointed as-the natural mother's plenary guardian of the person on August 29, 1997. The natural mother is incapable of taking care of herself or the minor due to her disability. On or about March 29, 1999 the natural mother left the home with the minor without any additional supervision. On or about March 30, 1999 the natural mother ran away with the minor without any additional supervision on two occasions."
Prior to Judge Candace Fabri being assigned to the case, Judge Noreen Daly was the judge assigned to the case. On December 9, 2002, during the pendency of the termination proceedings, Raymond Morrissey was removed by Judge Daly as Delores W.'s attorney because of a conflict, but Judge Daly permitted Morrissey to remain on the case as Delores W.'s GAL. Another attorney, Mark W. Kusatzsky, was appointed as Delores W.'s legal counsel. During a hearing on November 9, 2004, Kusatzky, Delores W.'s court-appointed attorney, explained to Judge Fabri that Morrissey was originally appointed to represent Delores W. in the termination proceedings to maintain Delores W.'s parental rights. At the November 9, 2004, hearing, Morrissey stated that he believed that Delores W.'s parental rights should be terminated during the following colloquy between Judge Fabri and Morrissey:
The appellate court does not have the report of proceedings from the December 9, 2002, hearing. The court only has the December 9, 2002, appointment order.
"THE COURT: * * * [Delores W.] has the right to have her guardian participate in these proceedings to help preserve * * * [Amy B.'s] parental rights, and that is the view that I am going to be looking at, that there are plenty of people here.
MR. MORRISSEY: That is not my position. I am not trying to preserve * * * [Amy B.'s] rights. Well, her rights, but not her as a parent over Mark. My position has always been that termination proceedings should go forward and rights should be terminated.
* * *
THE COURT: I have never had a guardian ad litem for a disabled person. I don't think that the law requires it. I don't know why Judge Daly appointed you, but I am not striking your position.
MR. MORRISSEY: Okay.
THE COURT: You can participate in the proceedings. Although, I do want to make clear that I don't think that you are the guardian for the minor."
At the conclusion of the hearing, Judge Fabri permitted Morrissey to remain on the case as Delores W.'s GAL.
The Second Adjudicatory and Dispositional Hearings
On January 17, 2003, the juvenile court held a second adjudicatory hearing and entered an adjudication order finding that Mark W. was neglected due to exposure to an injurious environment and was abused due to exposure to a substantial risk of physical injury. The reasons given for the court's findings were that Delores W. has mental limitations and Delores W.'s legal guardian, Amy B., failed to ensure that Delores W. was supervised at all times, resulting in Delores W. hitting Mark W. and putting plastic toys in his mouth. The adjudication order noted that the findings were the result of abuse or neglect inflicted by a parent.
On March 6, 2003, the juvenile court entered a dispositional order adjudging Mark W. a ward of the court and finding that (1) Delores W. was unwilling and unable for reasons other than financial circumstances to care for, protect, train, or discipline the minor; (2) Bradley B. was unable for reasons other than financial circumstances to care for, protect, train, or discipline the minor; and (3) Amy B. was unwilling and unable for reasons other than financial circumstances to care for, protect, train, or discipline the minor. The court placed Mark W. under the guardianship of DCFS. On January 16, 2004, the juvenile court found that Delores W. had not made any progress toward the goal of return home, and the juvenile court established a permanency goal of substitute care pending court determination on termination of parental rights.
In August of 2004, the juvenile court entered an order allowing six-year-old Mark W. to move to California with his foster mother Michelle N., who had been caring for Mark W. for four years.
The Fitness Hearing
On November 9, 2004, the fitness portion of the termination proceedings began. Neither Delores W. nor Amy B. was present during the termination proceedings, but their attorneys were present in court. Amy B. was represented by attorney Dean Bastounes. Delores W. was represented by Kusatzky and Morrissey appeared as Delores W.'s GAL. The State presented the following witnesses: (1) Meg O'Rourke, a clinical social worker employed at Little City Foundation; and (2) Traneeka Jackson, a caseworker employed at Little City Foundation.
After all the parties rested, the State maintained that Delores W. should be found unfit. Morrissey, Delores W.'s GAL, along with the State and the Public Guardian asked the court to find Delores W. to be unfit. Morrissey told the court that he understood that the court felt this was an unusual approach for someone in his position to take. He explained that the testimony had made clear that the only way Delores W. could be reunited with Mark W. would be if she entered a residential assisted-living program. Morrissey maintained that Delores W. had been given the opportunity to do so, but had chosen not to. Based on these facts, Morrissey felt that the State had met its burden of proving Delores W. unfit. Both Delores W.'s attorney, Kusatzky, and Amy B.'s attorney, Bastounes, argued against the findings of unfitness.
On April 29, 2005, the juvenile court found that Delores W. was unfit based upon her failure to maintain a reasonable degree of interest, concern, or responsibility and based upon her failure to make reasonable progress. Delores W.'s failure to visit with Mark W. and to comply with the service plans established her failure to maintain reasonable interest, concern, or responsibility. The juvenile court further found that Delores W. failed to make reasonable progress toward Mark W.'s return home, not only during the first nine months after the adjudication in January of 2003, but during the entire year-long period beginning with the adjudication and ending with the change of the permanency goal in January of 2004.
Best Interest Hearing
On July 12, 2005, the trial court commenced the best interest hearing. The State presented the following witnesses: (1) Michelle N., Mark W.'s foster mother; (2) Traneeka Jackson, a caseworker employed by Little City Foundation; (3) Tina Dorrow, an adoption supervisor employed at Little City Foundation; and (4) Julie Evets, a caseworker employed by Little City Foundation. After the testimony concluded, the State, the Public Guardian, and Morrissey, as Delores W.'s GAL, each asked the court to grant the State's petition. Counsel for Delores W. and counsel for Amy B. asked that the State's petition be denied. The juvenile court found, by a preponderance of the evidence, that it was in Mark W.'s best interests to terminate Delores W.'s parental rights and to appoint a guardian with the right to consent to his adoption. The juvenile court entered an order on July 12, 2005, which found Delores W. unfit on grounds (b) and (m) ( 750 ILCS 50/1(D)(b), (m) (West 1998)), found the father unfit, terminated the rights of the parents, and appointed a guardian with the right to consent to Mark W.'s adoption.
Amy B.'s Motion to Reconsider
On August 10, 2005, Amy B. filed a motion to reconsider which included, among other things, an allegation that the juvenile court erred by allowing Delores W.'s GAL, Morrissey, to remain on the case after he took a position favoring termination of Delores W.'s rights and that the evidence failed to show that it was in Mark W.'s best interests to terminate Delores W.'s parental rights. On September 16, 2005, the court entered an order denying the motion to reconsider. On October 14, 2005, Amy B. filed a notice of appeal from the June 9, 2005, finding that Delores W. was unfit, the July 12, 2005, order terminating parental rights, and the September 16, 2005, denial of her motion to reconsider.
ANALYSIS
The first question presented to the court is whether a mentally-disabled-adult parent, represented by a plenary guardian of the person appointed by the probate court, was denied due process by the juvenile court when during the proceedings to terminate the parental rights of the mentally-disabled-adult mother the juvenile court appointed a GAL for the mentally-disabled-adult mother to inform the court about the adult mother's best interests. Amy B. argues that Delores W.'s due process rights were violated because Morrissey, her GAL, was ineffective when he advocated to the juvenile court that Delores W.'s parental rights be terminated. The Public Guardian argues that although the juvenile court had no authority, pursuant to either the Juvenile Court Act or case law, to appoint Morrissey as Delores W.'s GAL, there was nothing to prevent the juvenile court from appointing Morrissey as Delores W.'s GAL. The Public Guardian also argues that Morrissey's role as GAL was not to advocate for Delores W., but to make recommendations to the juvenile court that he believes are in the best interest of Delores W., even if his opinion is contrary to the desires of Delores W. The State argues that the Juvenile Court Act does not address whether the court may appoint a GAL to an indigent, disabled parent in termination-of-parental-rights proceedings. The State maintains, instead, that Morrissey, as Delores W.'s GAL, acted properly, and that in any event the evidence of Delores W.'s unfitness was overwhelming.
We note that the basic requirements of due process and fairness must be satisfied in juvenile court proceedings. In re K.C., 323 Ill. App. 3d 839, 846-47 (2001), quoting People v. D.J., 175 Ill. App. 3d 491, 493 (1988), citing In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967). We also note that the first juvenile court judge's appointment of a GAL for the disabled mother, who was already represented by a plenary guardian of the person, presented a problem for the successor judge in this case. In order to answer the due process question in this case, we must examine the constitution, and in order to determine the power of a juvenile court judge to appoint a GAL, we must examine the Juvenile Court Act. The aforementioned questions are questions of law and involve statutory construction, which we review de novo. Feltmeier v. Feltmeier, 207 Ill. 2d 263, 266-67 (2003); see also In re K.C., 323 Ill. App. 3d at 847, citing Village of Mundelein v. Franco, 317 Ill. App. 3d 512, 517 (2000).
A. The Plenary Guardian of the Person's Authority to Act
We begin our analysis with the August 29, 1997, order entered by the probate court appointing Amy B. as the plenary guardian of the person for Delores W. because that order was entered before Morrissey was appointed as her GAL. The procedure for the appointment of guardians for disabled adults is codified in the Probate Act of 1975 (Probate Act) (755 ILCS 5/1 et seq. (West 1998)). Section 11a-3(a) of the Probate Act provides that "the court may adjudge a person to be a disabled person and may appoint (1) a guardian of his person, if because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if because of his disability he is unable to manage his estate or financial affairs or (3) a guardian of his person and of his estate." 755 ILCS 5/11a-3(a) (West 1998). Section 11a-3(b) further provides that "[g]uardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations." 755 ILCS 5/11a-3(b) (West 1998).
In this case, the probate court appointed Amy B. as Delores W.'s plenary guardian of the person. Plenary guardians are only appointed "for the respondent's person or estate or both" when the respondent is adjudged to be disabled and totally without capacity as specified in section 11a-3, and if the court finds that limited guardianship will not provide sufficient protection for the disabled person. 755 ILCS 5/11a-12(b) (West 1998). In August 1997, the probate court determined that Delores W. was totally without understanding or capacity to make or communicate responsible decisions concerning the care of her person; therefore, the probate court entered an order appointing Amy B. plenary guardian of the person and issued her letters of office. As a plenary guardian of the person, Amy B. was vested upon appointment with the entirety of the authority provided under section 11a-17 of the Probate Act. In re K.C., 323 Ill. App. 3d at 849, citing 755 ILCS 5/11a-14(d) (West 1998). Indeed, the decision-making authority of a plenary guardian of the person under section 11a-17 is exceedingly broad. In re K.C., 323 Ill. App. 3d at 849, citing In re Adoption of Savory, 102 Ill. App. 3d 276, 278 (1981). The practical effect of section 11a-17 is that Amy B., as the plenary guardian of the person, under the direction of the court, makes all decisions and exercises all legal rights on behalf of the ward, Delores W., that impact the exercise of the guardian's statutory authority. In re K.C., 323 Ill. App. 3d at 849, citing 755 ILCS 5/11a-17(a) (West 1998).
The State, however, argues that Amy B., as Delores W. plenary guardian of the person, was only authorized to act "to the extent ordered by the court." We find the State's construction of the words "[t]o the extent ordered by the [probate] court" in section 11a-17 of the Probate Act ( 755 ILCS 5/11a-17(a) (West 1998)) to be in error. It should be noted that section 11a-17 of the Probate Act prescribes the duties for both limited and plenary guardians. See 755 ILCS 5/11a-17 (West 1998). According to section 11a-14(a) of the Probate Act, a limited guardian of the person only has the authority to act and to perform those duties provided under section 11a-17 which are specifically conferred upon the limited guardian by the court's order. See 755 ILCS 5/11a-14(a) (West 1998) Conversely, when the respondent is adjudged to be disabled and totally without capacity as specified in section 11a-3 (see 755 ILCS 11a-12(b) (West 1998)), as was the case with Delores W., we find no limitation in the Probate Act on the authority of the plenary guardian of the person to act on behalf of the ward pursuant to section 11a-17. See 755 ILCS 5/11a-17 (West 1998); see also 755 ILCS 5/11a-14(d) (West 1998). The aforementioned statutes make it clear that the court is not required to enter an order which specifically delineates the duties of plenary guardians who have broad powers and are authorized to do all acts required by law. In re Marriage of Burgess, 189 Ill. 2d 270, 273 (2000) (plenary guardians have authority to make personal decisions under section 11a-17 even though the power to do so is not specifically enunciated); In re K.C., 323 Ill. App. 3d at 849. Because both limited and plenary guardians of the person have the duties prescribed in section 11a-17 of the Probate Act, we find that the words "to the extent ordered by the court" refer to the probate court's power to limit by court order the duties of a limited guardian of the person. See 755 ILCS 5/11a-12(b), 11a-14(a), (d), 11a-17 (West 1998). Therefore, we find that the duties delineated in section 11a-17 cannot be exercised by a limited guardian of the person until a court order has been entered which specifies the extent of the limited guardian of the person's authority (see 755 ILCS 5/11a-14(a) (West 1998)), while a plenary guardian of the person, the complete guardian in every aspect, has all of the authority provided in section 11a-17 and the power to make decisions that are not specifically enunciated. See Burgess, 189 Ill. 2d at 273; 755 ILCS 5/11a-14(a), 11a-17 (West 1998).
In this case, the letters of office issued to Amy B. as plenary guardian of the person of Delores W. provided that Amy B. "is authorized to have under the direction of the court the custody of the ward and to do all acts required by law." (Emphasis added.) The letters of office authorized Amy B. to act on Delores W.'s behalf and to exercise all of the express and implied duties prescribed in section 11a-17 of the Probate Act. See In re K.C., 323 Ill. App. 3d at 849-50; also see Burgess, 189 Ill. 2d at 273. Consequently, once the probate court issued letters of office to Amy B., she had the complete authority to act and to do all acts required by law on behalf of Delores W.
B. The Juvenile Court's Appointment of a GAL for a Mentally Disabled Adult
The next question we must address is whether the Juvenile Court Act empowered the juvenile court to appoint a GAL for Delores W. It appears from our reading of the record that Morrissey was appointed as Delores W.'s attorney and as her GAL. We note that Morrissey was removed by Judge Daly as Delores W.'s attorney, but Judge Daly permitted Morrissey to continue as Delores W.'s GAL. We also note that Judge Fabri questioned why Morrissey was appointed, but refused to remove him as Delores W.'s GAL. While the Juvenile Court Act empowered the juvenile court to appoint attorneys for parties ( 705 ILCS 405/1-5 (West 1998)), and Delores W. was a party, we must determine whether a juvenile court judge can appoint a GAL for a parent, who is a party and who has been adjudged a mentally disabled adult, during termination-of-parental-rights proceedings.
The purpose of the Juvenile Court Act is "to secure for each minor subject hereto such care and guidance * * * as will serve the safety and moral, emotional, mental, and physical welfare of the minor and the best interests of the community." (Emphasis added.) 705 ILCS 405/1-2(1) (West 1998). In all child custody proceedings under the Juvenile Court Act, the court's primary concern is protecting the best interests of the children involved. In re Gustavo H., 362 Ill. App. 3d 802, 809 (2005), citing In re Ashley F., 265 Ill. App. 3d 419, 424 (1994); 705 ILCS 405/1-2 (West 2004). While the Juvenile Court Act permits the juvenile court to appoint GALs for minors ( 705 ILCS 405/2-17(1)(a) (West 1998)), because its purpose is to serve minors, it does not contain a provision that permits the juvenile court to appoint a GAL for a mentally disabled adult parent who is not a minor but is a party to the proceedings. 705 ILCS 405/1-1 et seq. (West 1998).
As previously noted in this opinion, the Probate Act governs proceedings involving disabled adults. 755 ILCS 5/1-1 et seq. (West 1998). Section 11a-10 provides that "[u]pon the filing of a petition pursuant to section 11a-8" of the Probate Act, "[t]he court shall appoint a [GAL] to report to the court concerning the respondent's best interests consistent with the provisions of this Section." 755 ILCS 5/11a-10 (West 1998). Section 11a-10 of the Probate Act clearly prescribes the procedure that must be followed by a court when appointing a GAL for a disabled person. 755 ILCS 5/11a-10 (West 1998). Therefore, we find that if the juvenile court is going to appoint a GAL for a mentally-disabled-adult parent that is a party to a termination proceeding, the appointment should be made pursuant to the Probate Act. 755 ILCS 5/1-1 et seq. (West 1998).
The next question we must look at is the specific function of a GAL in probate proceedings. A GAL functions as the "`eyes and ears of the court,'" not as the ward's attorney. In re Guardianship of Mabry, 281 Ill. App. 3d 76, 88 (1996), quoting In re Marriage of Wycoff, 266 Ill. App. 3d 408, 415 (1994). The GAL represents the best interest of the ward, as the GAL sees them, not as the ward sees them. In re Guardianship of Mabry, 281 Ill. App. 3d at 88, citing D. Jost, The Illinois Guardianship for Disabled Adults Legislation of 1978 and 1979: Protecting the Disabled From Their Zealous Protectors, 56 Chi.-Kent L. Rev. 1087, 1094 (1980), ("The [GAL] is responsible for representing the respondent. Traditionally, this has meant representing the respondent's best interests as opposed to serving as an advocate for the respondent's possibly ill-advised wishes"). If the GAL and the ward are in agreement, the GAL does in effect represent the ward. In re Guardianship of Mabry, 281 Ill. App. 3d at 88-89. However, the court must appoint separate counsel if the ward requests it or if the ward and GAL take different positions. 755 ILCS 5/11a-10(b)(2) (West 1998).
We note that section 11a-10 of the Probate Act is entitled "Procedures preliminary to hearing." 755 ILCS 5/11a-10 (West 1998). We also note that when guardians of estates are involved, a GAL is only required prior to the hearing on the respondent's competence, but section 11a-18(c) provides that a court may still appoint a GAL or next friend to represent the ward's interest in subsequent litigation. See 755 ILCS 5/11a-18(c) (West 1998); see also In re Guardianship of Mabry, 281 Ill. App. 3d at 89. However, Amy B. is Delores W.'s plenary guardian of the person, not the guardian of her estate, and we see no comparable provision in section 11a-17, where the duties of a guardians of the person are delineated empowering the court to appoint a GAL or next friend to represent the ward's interest in subsequent litigation where there is a plenary guardian of the person. See 755 ILCS 5/11a-17 (West 1998). Therefore, we find that a GAL is not required after a hearing on the mentally disabled adult's competence and after a plenary guardian of the person is appointed. See 755 ILCS 5/11a-10, 11a-17 (West 1998).
In this case, we previously noted that the Juvenile Court Act contains no provision to appoint a GAL for Delores W., Mark W.'s mentally-disabled-adult mother, during a termination of parental rights hearing. Compare 705 ILCS 405/2-17(1) (West 1998). Additionally, we noted that Delores W. was a party to the termination proceedings, not the subject of it, and she was represented by an attorney and plenary guardian of the person. Therefore, since a plenary guardian of the person had been appointed by the probate court to protect Delores W.'s interests before the appointment of the GAL by the juvenile court, and since Kuzatsky replaced Morrissey and had been appointed as Delores W.'s attorney, we find no evidence in the record of a need for the juvenile court to appoint a GAL to protect Delores W.'s interests; rather, the juvenile court's duty was to protect the best interests of Delores W.'s child, Mark W. See 705 ILCS 405/1-2(1) (West 1998); see also 705 ILCS 405/2-17(1)(a) (West 1998).
Nevertheless, Delores W., as a party to the proceedings, had a right to be present, along with Amy B., her plenary guardian of the person who was a necessary party, and they had a right to be heard and present evidence material to the proceeding. See 705 ILCS 405/1-5(1) (1998). In this case we note that Amy B. was appointed Delores W.'s plenary guardian of the person on August 29, 1997, by the probate court. We also note that the order appointing Amy B. plenary guardian of the person for Delores W. indicates that a GAL had been waived. Apparently, the probate court did not find it necessary to appoint a GAL for Delores W. during the preliminary proceedings to determine Delores W.'s competency, thereby entrusting Amy B. with the sole responsibility of representing Delores W.'s best interests. More importantly, in 1997, the probate court issued Amy B. letters of office as plenary guardian of the person of Delores W. and gave her complete authority to act on Delores W.'s behalf before the commencement of the termination of parental rights proceedings on March 31, 1999, in the juvenile court. See In re K.C., 323 Ill. App. 3d at 850. "Plenary" is defined as "`complete in every respect.'" In re K.C., 323 Ill. App. 3d at 848, quoting Webster's Third New International Dictionary 1739 (1986). Therefore, we find that the juvenile court did not have authority, pursuant to the Juvenile Court Act, to appoint a GAL for Delores W., the mentally-disabled-adult mother of Mark W. who was already represented by Amy B., the plenary guardian of her person. See 705 ILCS 405/2-17(1) (West 1998) (the juvenile court must appoint a GAL, who must represent the best interests of the "minor"); see also 755 ILCS 5/11a-3(b) (West 1998) (pursuant to the Probate Act, plenary guardians of the person must promote the well-being of the disabled person and represent their best interest).
C. The Juvenile Court's Power to Revoke the Plenary Guardian's Letters of Office
Although the juvenile court was not empowered, pursuant to the Juvenile Court Act, to appoint a GAL for Delores W., a mentally disabled adult, we are mindful that once Delores W. was adjudicated incompetent in 1997, she became a ward of the court and is entitled to the court's protection. In re Estate of Nelson, 250 Ill. App. 3d 282, 286 (1993), citing Proehl v. Leadley, 86 Ill. App. 2d 472 (1967). A court is not divested of its jurisdiction over a mentally disabled person by the appointment of a plenary guardian of the ward's person. In re Estate of Nelson, 250 Ill. App. 3d at 286, citing Hoit v. Snodgrass, 315 Ill. 548 (1925); In re Estate of Peterson, 103 Ill. App. 3d 481 (1982). The jurisdiction of the court continues until the adjudication of the ward's disability is terminated or the ward dies. In re Estate of Nelson, 250 Ill. App. 3d at 287. Guardians only act as the hand of the court and are at all times subject to its direction in the manner in which they provide for the care and support of the disabled person. In re Estate of Nelson, 250 Ill. App. 3d at 287, citing In re Estate of Peterson, 103 Ill. App. 3d at 485-86. The court is under a duty to judicially interfere if the guardian is about to do anything that would cause harm or threaten harm to the ward. In re Estate of Nelson, 250 Ill. App. 3d at 287, citing In re Estate of D.W., 134 Ill. App. 3d 788 (1985); see also 755 ILCS 5/11a-20(a) (West 1998). Section 11a-20 provides that "[u]pon the filing of a petition by or on behalf of a disabled person or on its own motion, the court may * * * revoke the letters of guardianship of the * * * person." 755 ILCS 5/11a-20(a) (West 1998). Therefore, section 11a-20 of the Probate Act empowers the court to initiate proceedings to revoke a guardian's letters of office if the guardian is about to do something that would cause harm or threaten harm to the ward. 755 ILCS 5/11a-20(a) (West 1998).
It is clear that the court is duty bound to intervene if the guardian of the person is about to cause harm or threaten harm to the ward. In re Estate of Nelson, 250 Ill. App. 3d at 287, citing In re Estate of D.W., 134 Ill. App. 3d 788, 791 (1985). In this case, the record is silent and does not reveal that the juvenile court held a hearing or made findings that Amy B. was harming Delores W. or was not fulfilling her duties as the plenary guardian of the person. The record is also silent and does not indicate the reason that Judge Daly appointed the GAL for Delores W. in this termination-of-parental-rights proceeding. Judge Fabri expressed concern as to why Delores W., who was represented by a plenary guardian of the person, was appointed a GAL. As has been previously pointed out, the Probate Act does not permit concurrent appointments of a plenary guardian of the person and a GAL for mentally disabled adults like Delores W. Based on the record before this court, the juvenile court took no action, pursuant to section 11a-20 of the Probate Act, to revoke Amy B.'s letters of office.
In this case, the record indicates that Amy B. sought to preserve Delores W.'s parental rights. In re K.C. points out that a court may presume that any parent, even a mentally disabled parent, would contest the removal of his or her child from his or her home. See In re K.C., 323 Ill. App. 3d at 851. In re K.C. holds that the plenary guardian of a disabled mother is a necessary party to termination-of-parental-rights proceedings. See In re K.C., 323 Ill. App. 3d at 852. Accordingly, we find that Amy B., as plenary guardian of the person for Delores W., was acting pursuant to the letters of office issued by the probate court and was empowered to act in Delores W.'s best interest by preserving Delores W.'s parental rights.
D. Parties are Entitled to Due Process in Termination of Parental Rights Proceedings
Finally, we must determine whether Delores W. was denied due process when her former attorney was removed but was permitted to act as her GAL. "`[T]he United States Supreme Court [has] stated that the interest of natural parents in the care, custody, and management of their children is a fundamental liberty interest protected under the fourteenth amendment.'" In re K.C., 323 Ill. App. 3d at 849, quoting In re B.C., 247 Ill. App. 3d 803, 806 (1993), and citing Santosky v. Kramer, 455 U.S. 745, 747-48, 71 L. Ed. 2d 599, 603, 102 S. Ct. 1388, 1391-92 (1982) and In re Enis, 121 Ill. 2d 124, 128-29 (1988). In order to effectuate this fundamental liberty interest, section 1-5(1) of the Juvenile Court Act empowers parents with a right to be present, to be heard, to present material evidence, to cross-examine witnesses, to examine pertinent court files and records and to be represented by counsel. In re K.C., 323 Ill. App. 3d at 849, citing 705 ILCS 405/1-5(1) (West 1998). While the juvenile court had the power to appoint Morrissey as Delores W.'s attorney ( 705 ILCS 405/1-5 (West 1998)), we find that after Morrissey was removed as Delores W.'s attorney, he should not have been permitted to participate as a GAL in his former client's termination of parental rights proceedings. Morrissey had a conflict with Amy B. and Delores W. because he felt, unlike Amy B. and Delores W., that Delores W.'s parental rights should be terminated. During Delores W.'s termination of parental rights hearing, Morrissey made the following argument:
"Judge we would agree with the State and with the Guardian in this case. And I understand your Honor feels that that is an unusual position for the guardian over the person of the person of the Delores W's [person] to take and maybe an extraordinary position. But we've been on the case for five years, and we've had an opportunity to observe Dolores as well as Amy in court and outside of court and staffings and ACRs and what not. * * * What became clear during the course of the case and the testimony of Ms. Traneeka Jackson and Ms. O'Rork is that the only way that Dolores could possibly have Mark reunified with her is if she entered into a program such as CILA an assisted living program, a residential facility. And she was given the opportunity to go into one of those facilities. She refused. Because of that, Judge, I think that she made a decision, and it's an unfortunate situation because I think she is being influenced by her legal guardian. * * * So because of that I would say that the State has met their burden by clear and convincing evidence on B, M, and P, and we ask that she be found unfit."
Given the conflict between Amy B., Delores W. and Morrissey, confirmed by Morrissey's argument, once Morrissey was removed as Delores W.'s attorney by the court, he was prohibited from using confidential information he acquired while representing Delores W. to the disadvantage of Delores W. See 134 Ill. 2d R. 1.9(2) (a "lawyer who has formerly represented a client in a matter shall not thereafter: * * * use information relating to the representation to the disadvantage of the former client"); see also 155 Ill. 2d R. 1.6 ("a lawyer shall not, during or after termination of the professional relationship with the client, use or reveal a confidence or secret of the client known to the lawyer unless the client consents after disclosure"). Morrissey's argument clearly establishes that he obtained confidential information during his representation that was detrimental to Delores W. Moreover, after acquiring the confidential information while acting as Delores W.'s attorney, he used the confidential information against her to support his argument that she be found unfit. Section 11a-10(b)(2) requires the court to appoint counsel if the ward takes a position adverse to that of the GAL. 755 ILCS 5/11a-10(b)(2). However, in probate proceedings, the Probate Act provides for the appointment of the GAL during preliminary proceedings before an attorney has been appointed and acquired confidential information while serving as the ward's attorney. 755 ILCS 5/11a-10 (West 1998). We find that Delores W. was denied due process or a fair termination of parental rights proceeding because the juvenile court (1) allowed Morrissey to acquire confidential information while acting as Delores W's attorney; and (2) allowed Morrissey to continue to act as Delores W.'s GAL and as "the eyes and ears of the court" after he was removed as her attorney. It is fundamentally unfair for an attorney to acquire confidential information while acting as a disabled ward's attorney, and then to act as the ward's GAL and use the confidential information acquired as the disabled ward's attorney against the ward. Accordingly, we find that Delores W. was denied due process in these termination of parental rights proceedings.
Conclusion
We find that the juvenile court erred in appointing Morrissey as GAL for Delores W. because the Juvenile Court Act did not authorize the judge to appoint a GAL for a mentally disabled adult who is a party to a termination of parental rights proceeding. We find that the juvenile court erred in appointing Morrissey because his appointment was not made pursuant to the Probate Act. We also find that the juvenile court erred in appointing Morrissey as GAL for Delores W. because Amy B. was the plenary guardian of the person for Delores W. and her letters of office had not been revoked. Additionally, we find that once Morrissey was removed as Delores W.'s attorney, his continued participation in the proceedings as her GAL was unfair because Morrissey had confidential information that he had no right to disclose to the court and he made arguments and took positions in the juvenile court that were adverse to Delores W.'s interests. Accordingly, we hold that: (1) the Juvenile Court Act did not empower the juvenile court to appoint a GAL for Delores W., a mentally disabled adult who is a party to a termination of parental rights proceeding; (2) if a juvenile court judge is going to appoint a GAL for a mentally disabled adult, it must be done pursuant to the Probate Act; (3) the juvenile court was not empowered by the Probate Act to appoint another guardian, including a GAL, for Delores W., a mentally disabled adult without revoking the letters of office of Amy B., the plenary guardian of her person; and (4) Delores W. was denied due process or a fair termination of parental rights hearing when the juvenile court permitted Morrissey to withdraw as Delores W.'s attorney but act as her GAL when he had confidential information that was adverse to her interests.
In conclusion, in light of our decision, it is unnecessary to address the remaining issues in this appeal. The order terminating Delores W.'s parental rights and appointing a guardian to consent to Mark W.'s adoption is reversed. This cause is remanded to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded with directions.
O'BRIEN, J., and O'MARA FROSSARD, J., concur.