Opinion
1-23-1554
06-21-2024
In re C.A. and I.A., Minors v. Annie M., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. Nos. 17 JA 907 17 JA 908 Honorable Robert Balanoff, Judge presiding,
JUSTICE LYLE delivered the judgment of the court. Presiding Justice Mitchell and Justice Navarro concurred in the judgment.
ORDER
LYLE JUSTICE
Held: The circuit court did not err by denying multiple motions to withdraw by respondent's counsel.
¶ 1 On November 5, 2021, the State filed a petition to terminate the parental rights for the respondent-appellant, Annie M., and the biological father, as to the minors, C.A. and I.A. After three days of the termination trial, Annie M.'s attorney filed a motion to withdraw, citing Annie M.'s desire to end his representation, which was her tenth attorney during the pendency of these child protection proceedings. The court denied the motion, after conducting a hearing. On two subsequent occasions, Annie M. asked her attorney to withdraw from her case, but the court denied each subsequent motion to withdraw from her attorney. On August 17, 2023, the trial court granted the State's petition, terminating Annie M.'s parental rights. On August 30, 2023, Annie M. filed her notice of appeal. On appeal, she argues that the trial court erred by not granting any of her attorney's multiple motions to withdraw, despite her repeated stated desire to fire him. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND
¶ 3 On September 6, 2017, the State filed petitions for adjudication of wardship for C.A. and I.A. On that date, the trial court appointed a public defender for the minors' mother, Annie M. On December 21, 2017, Annie M. filed a motion "pro se" seeking to remove her public defender and the public defender's supervisor. On February 21, 2018, the trial court vacated the appointment of her public defender and appointed bar attorney Charles Aron to represent Annie M. After the adjudication proceedings, Mr. Aron withdrew as her attorney, and the trial court appointed a different public defender. On September 14, 2018, after the disposition hearing, where the court placed the minors in the custody of DCFS, the public defender filed a motion to withdraw. The trial court granted the motion and, on January 4, 2019, appointed bar attorney Sabra Ebersole. On November 26, 2019, the trial court granted Ms. Ebersole's motion to withdraw. On January 14, 2020, the trial court appointed bar attorney Brenda Shavers as standby counsel for Annie M. On August 7, 2020, the court appointed Marcie Claus to represent Annie M. On October 13, 2020, Ms. Claus filed a motion to withdraw, which the court subsequently granted.
¶ 4 On November 24, 2020, Melissa Kuffel filed an appearance to represent Annie M. On January 27, 2021, the permanency goal in both minors' cases changed to substitute care pending court determination on termination of parental rights. On February 3, 2021, Ms. Kuffel filed a motion to withdraw as Annie M.'s attorney, which the trial court granted. The court appointed bar attorney Bruce Bornstein to represent the mother, Annie M. On July 19, 2021, Mr. Bornstein, filed a motion to withdraw from his representation of Annie M, and the court granted that motion. On August 13, 2021, Ellen Weisz, a bar attorney, was appointed to represent Annie M. On November 5, 2021, the State filed a petition to terminate the parental rights for Annie M. and the biological father of both minors. In the petition, the State identified three nine-month periods where Annie M. did not make reasonable progress towards her reunification with C. A. and I.A.
¶ 5 On May 24, 2022, Ms. Weisz filed an emergency motion to withdraw as counsel for Annie M., and the trial court granted the motion. On June 28, 2022, the court appointed Stephen Jaffe to represent Annie M., her tenth attorney during the pendency of these proceedings.
¶ 6 Mr. Jaffe stated he spoke to Annie M.'s previous representation, Ms. Weisz, to obtain records from her. The trial on the State's petition to terminate Annie M.'s parental rights to the minors, C.A. and I.A., began on June 28, 2022. The trial took place over 17 days with the last court date on August 17, 2023. On September 28, 2022, after three days of termination proceedings, Mr. Jaffe filed a motion to withdraw, citing Annie M.'s request for him to immediately withdraw.
¶ 7 On September 30, 2022, the trial court inquired about the motion with Mr. Jaffe and Annie M. Mr. Jaffe stated the attorney-client relationship with Annie M. was "irretrievably broken" and he did not think he "should be subjected to representing somebody who has said the things Annie M. said" to him. Mr. Jaffe also suggested Annie M. could represent herself in the proceedings. Annie M. informed the court that she "feel[s] as though there is-that there is a conflict of interest with [Mr. Jaffe's] relationship with [her] previous attorney Ms. Weisz. That there are some *** conversations [Ms. Weisz had] with the counselor. They were very personal about [her]." Annie M. claimed Mr. Jaffe and Ms. Weisz are best friends and their relationship prejudiced him against her. She claimed that Mr. Jaffe "constantly told" her that she was "never going to win at this point." She also explained that she felt pressured to have a court-appointed attorney rather than her own, but she felt that the court-appointed attorneys did the bare minimum.
¶ 8 The trial court asked Annie M. why each of her previous attorneys withdrew. She said that she could not recall, regarding the court's line of questioning about each appointed attorney. Mr. Jaffe testified that he is friendly with Ms. Weisz but would not characterize the relationship as best friends. He stated he contacted her because she was the predecessor attorney on the case. Mr. Jaffe also provided the court with an email detailing Annie M.'s concerns about his representation such as quoting her emails in responses to her and stating that he felt she was unlikely to prevail in her case. The court asked the other attorneys in the matter about their thoughts on Mr. Jaffe withdrawing. The guardian ad litem and the State raised no objection as long as the trial proceeded without delay, while the father's attorney objected, arguing that Annie M. should not be able to "shop" attorneys. The court denied the motion given the vast number of attorneys that Annie M. has had and because her children needed permanency. When the court followed up a few weeks later regarding Annie M.'s satisfaction with her attorney, she said she wanted Mr. Jaffe to represent her "for now-yes."
¶ 9 On May 18, 2023, Mr. Jaffe conveyed to the trial court that Annie M. requested that he be removed from the case again. Annie M.'s complaint was that her attorney would not have verbal communication with her. The court indicated that he had previously "made very clear to [Annie M.] and with [Mr. Jaffe's] approval all communications between [Mr. Jaffe] and her were to be by text or email." Annie M. addressed the court, complaining about Mr. Jaffe's cross-examination of a witness, his failure to file a motion to reinstate visits, his refusal to subpoena certain witnesses, and she stated he was giving about "50 percent" effort. She alleged that she was uncertain about his trial strategy and that he was not on her side. The trial court disagreed with Annie M.'s assessment, noting he had raised objections, made arguments, and that it had faith in his representation of her. Though Mr. Jaffe sought a mistrial and requested the ability to formally withdraw, the court denied both motions.
¶ 10 On July 6, 2023, Mr. Jaffe sought to withdraw again by filing a motion. The trial court denied the motion, noting that she had nine previous attorneys and stating that Mr. Jaffe is one of the best attorneys in the Child Protection Division. After the 17-day trial, in which the State and Annie M. both presented a case-in-chief followed by a rebuttal by the State, on August 17, 2023, the trial court terminated Annie M.'s parental rights. On August 30, 2023, Annie M. filed her notice of appeal.
¶ 11 ANALYSIS
¶ 12 We note that we have jurisdiction to consider this matter, as Annie M. filed a timely notice of appeal following the trial court's judgment. See Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017).
¶ 13 On appeal, Annie M. argues that the trial court erred by not allowing Mr. Jaffe to withdraw from the case and allowing her to proceed pro se. She does not challenge the sufficiency of the evidence supporting the trial court's decision to terminate her parental rights to C.A. and I.A. or that her trial counsel was ineffective. As a result, she has forfeited those arguments on appeal. Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020) ("Points not argued are forfeited").
¶ 14 "Under the Adoption Act, an indigent parent is entitled to court-appointed counsel for proceedings pursuant to a petition for termination of parental rights." In re Travarius O., 343 Ill.App.3d 844, 850 (2003). Pursuant to Supreme Court Rule 13(c)(3) (Ill. S.Ct. R. 13(c)(3) (eff. July 1, 2017)), a motion to withdraw "may be denied by the [trial] court if the granting of it would delay the trial of the case, or would otherwise be inequitable." "A trial court's ruling on a motion to withdraw will not be overturned on appeal absent an abuse of discretion." In re J.D., 332 Ill.App.3d 395, 404 (2002). A trial court abuses its discretion when it makes "a ruling that is arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view." In re D.M., 2020 IL App (1st) 200103, ¶ 20.
¶ 15 In J.D., 332 Ill.App.3d at 404, trial counsel for a mother in a child protection case filed a motion to withdraw during a termination trial. Trial counsel believed she could be called as a potential witness in the mother's criminal case, which arose from the mother's outburst and attack on the foster mothers in court. J.D., 332 Ill.App.3d at 404. The trial court denied the motion, stating that not only would granting the motion delay the trial but also that the mother needed "competent representation and consistent representation" which trial counsel had provided. J.D., 332 Ill.App.3d at 405. This court found the trial court did not abuse its discretion by denying the motion. J.D., 332 Ill.App.3d at 405.
¶ 16 In Travarius O., 343 Ill.App.3d at 851-52, this court stated "[n]either the statute nor judicial precedents specify how many times a trial court must appoint counsel in the event that counsel withdraws or an indigent parent no longer desires their particular services." In that case, the trial court appointed counsel for the father on three different occasions before having him proceed pro se in the termination of parental rights proceeding. Travarius O., 343 Ill.App.3d at 852. This court acknowledged that appointing counsel for a fourth time would delay the trial since the newly appointed counsel would have to learn the facts of the case to adequately prepare to represent the father. Travarius O., 343 Ill.App.3d at 852. This court ultimately found that not appointing a new counsel did not violate the father's due process rights. Travarius O., 343 Ill.App.3d at 852.
¶ 17 Here, Annie M. has had 10 different attorneys since these child protection proceedings began in 2017. In each circumstance, she appeared to have some conflict with her attorney that led to the attorney filing a motion to withdraw. With her last attorney, Mr. Jaffe, she complained that he told her she had no chance to prevail in her case, refused to subpoena people she named as witnesses, and would only communicate with her in writing. Mr. Jaffe requested that communications occur via email or text to prevent misunderstandings. The court agreed and admonished Annie M. that she and her attorney would communicate in writing going forward and gave them extra time in court hearings to accommodate their communication. She also complained that he was prejudiced against her after he spoke with her previous attorney and generally felt the appointed bar attorneys were doing the bare minimum. The other attorneys, representing the parties involved in the case, vouched for Mr. Jaffe's credentials, and the trial court noted that it was familiar with Mr. Jaffe's work as a child protection attorney and held him in high regard. As noted, Illinois Supreme Court Rule 13(c)(3) states that a trial court is not required to grant a motion to withdraw and may deny it if it will cause delay or would be inequitable.
¶ 18 The trial court had no obligation to either appoint another attorney or allow Annie M. to proceed pro se. However, if it allowed Mr. Jaffe to withdraw from the case, it had two options: 1) allow Annie M. to represent herself or 2) appoint a new attorney in the middle of the trial. Annie M. does not argue that Mr. Jaffe performed inadequately in his representation of her during the termination proceedings. Instead, her appellate argument is simply that she should have been able to fire her attorney and represent herself. The trial court was in the best position to determine whether her request to represent herself was in the best interest of the proceedings and the representation of her interests. The court noted that Annie M. had represented herself on two prior occasions for significant periods of time during the child protection proceedings but on each occasion, the court believed that the mother's interests would be better represented with the assistance of counsel. While Annie M. wanted to present the strongest case possible for herself, she lacked the experience and knowledge of a seasoned child protection attorney. In one of her letters seeking Mr. Jaffe's removal, she mentioned a request to include letters of reference from family members, which was an example of her lack of experience and knowledge about termination proceedings. The question before the court was not whether Annie M. was someone of high character or even about her love for her children but whether she was making reasonable progress in services toward the goals of reunification and if it was in the best interests of her children to maintain her parental rights. Letters of reference would have added nothing to that analysis.
¶ 19 The termination trial lasted 17 days and consisted of testimony about events spanning from 2017 through 2022. If the court appointed a new attorney, that attorney would have to learn about the mother's progress in services from the inception of the case in 2017. See In re J.A., 316 Ill.App.3d 553, 564 (2000) ("Reasonable progress is an objective standard, focusing on the amount of progress toward the goal of reunification one can reasonably expect from the parent under the circumstances," and "progress toward the broadly defined goal of the return of the child to the natural parent."). If the court appointed an attorney, that attorney would need time to acquaint himself or herself with the case, which would unavoidably result in a delay of the proceedings. At the time of the first motion to withdraw by Mr. Jaffe, the child protection proceedings had been pending for five years. During that time, 10 attorneys filed their appearances to represent Annie M. during the proceedings. She found fault with each. The court could reasonably anticipate that she might at some point seek to have a future attorney removed also, further delaying a resolution. See Ill. S.Ct. R. 13(c)(3).
¶ 20 We cannot say that the trial court abused its discretion by not allowing Mr. Jaffe to withdraw during the trial, when it was privy to Annie M.'s ability to represent herself, Mr. Jaffe's competency, the court proceedings, and Annie M.'s wavering, at times, about her desire to have Mr. Jaffe represent her. Accordingly, we affirm the trial court's judgment denying Mr. Jaffe's motions to withdraw and terminating Annie M.'s parental rights.
¶ 21 CONCLUSION
¶ 22 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 23 Affirmed.