Opinion
3-21-0475 3-21-0476
03-08-2022
In re K.P. and D. A., Minors v. Garilynn P., 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 the 13th Judicial Circuit, Bureau County, Illinois, Circuit Nos. 18-JA-1 & 18-JA-2 Honorable Marc P. Bernabei, Judge, Presiding.
JUSTICE HAUPTMAN delivered the judgment of the court. Presiding Justice O'Brien and Justice Schmidt concurred in the judgment.
ORDER
HAUPTMAN, JUSTICE
¶ 1 Held: The termination of mother's parental rights is affirmed, where mother failed to establish the existence of a conflict of interest between her appointed counsel and the minors' guardian ad litem.
¶ 2 Respondent mother, Garilynn P., appeals from orders of the circuit court terminating her parental rights as to minors, K.P. and D. A. On appeal, respondent argues that a conflict of interest existed between her appointed counsel and the minors' guardian ad litem, such that the 1 court's orders terminating mother's parental rights should be vacated, and the matter remanded for new proceedings.
¶ 3 I. BACKGROUND
¶ 4 On January 19, 2018, the State filed petitions for adjudication of wardship (neglect petitions) alleging that K.P. (D.O.B. 1/17/2018) and D.A. (D.O.B. 8/06/2016) were neglected due to an environment injurious to their welfare pursuant to section 405/2-3(1) of the Juvenile Court Act of 1987 (Juvenile Court Act). 705 ILCS 405/2-3(1) (West 2018). The neglect petitions alleged, among other things, that mother tested positive for cocaine and marijuana at the time of K.P.'s birth and that mother was the victim of domestic violence by father while six months pregnant with K.P. The court appointed Bureau County Public Defender Michael Henneberry (PD Henneberry), as the minors' guardian ad litem (GAL) and Bureau County Assistant Public Defender Eric May (APD May), to represent mother. On January 23, 2018, the circuit court entered temporary custody orders providing that the minors should be removed from mother's care.
On May 3, 2018, the State filed an amended neglect petition as to D.A., which added the name of D.A.'s putative father.
¶ 5 The circuit court conducted an adjudicatory hearing on October 23, 2018. Mother failed to appear. APD May, acting as counsel for mother, joined counsel for father's motion to continue the case, while PD Henneberry, acting as the minors' GAL, took no position on the motion. The court denied the motion to continue. At the conclusion of the evidence, PD Henneberry agreed with the State that the neglect petitions should be granted. APD May took no position. The court found the neglect petitions proven by a preponderance of the evidence. 2
¶ 6 The matter proceeded to a dispositional hearing on December 27, 2018. Mother failed to appear, and the parties agreed to proceed in her absence. At the conclusion of the evidence, the State asked that the neglect petitions be granted without objection from any party. The court entered dispositional orders finding mother unfit and making the minors wards of the court.
¶ 7 On June 20, 2019, the court changed the minors' permanency goals from return home within 12 months to substitute care pending court determination on termination of parental rights. Though the record is devoid of a hearing transcript from this date, the court's written order indicates that mother was not present and had not had "contact" since December 14, 2018. On February 10, 2020, the court entered an order providing that PD Henneberry had resigned from his post. The order appointed Bureau County Assistant Public Defender Thomas Tonozzi (APD Tonozzi), to act as the GAL in subsequent proceedings.
¶ 8 On May 11, 2020, the State filed motions to terminate mother's parental rights as to the minors. The State's motions to terminate alleged mother was an unfit parent under a multitude of statutory grounds enumerated in section 50/1(D) of the Adoption Act. 750 ILCS 50/1(D) et seq. (West 2020). Thereafter, a docket entry dated January 20, 2021, provided that Bureau County Assistant Public Defender Timothy Gatza (APD Gatza), was serving as the minors' GAL.
¶ 9 The fitness portion of the termination proceeding commenced on June 14, 2021. Mother was present. Based on the agreement of all parties, the State presented stipulated evidence related to several counts alleged in the motions to terminate. Based on the stipulated evidence, the court found mother unfit by clear and convincing evidence.
¶ 10 The court conducted a best interest hearing that began on July 27, 2021, and concluded on September 14, 2021. Mother was present on both dates. Following the close of evidence, the 3 court entered written orders finding it was in the best interest of the minors to terminate mother's parental rights. Mother appeals.
¶ 11 II. ANALYSIS
¶ 12 On appeal, mother argues reversible error exists in this record where an irreconcilable conflict of interest existed between her appointed counsel, APD May, and the minors' GAL, PD Henneberry. Mother contends this conflict of interest existed from the time the Bureau County Public Defender's office was appointed to represent mother and the minors, until February 10, 2020, the date PD Henneberry was replaced by APD Tonozzi. Mother asks this court to set aside the circuit court's order terminating her parental rights and to remand the case with instructions to begin anew. The State argues that a conflict of interest did not exist, where the interests of PD Henneberry and APD May were never diametrically opposed.
¶ 13 We begin our analysis by highlighting that the right to counsel in proceedings under the Juvenile Court Act is provided by statute. 705 ILCS 405/1-5(1) (West 2020). Though this statutory right "lacks constitutional footing," the right is closely linked to the sixth amendment, in that both imply a right to effective assistance of counsel. In re Br. M., 2021 IL 125969, ¶ 42; U.S. Const., amend. VI. The sixth amendment provides that litigants are entitled to the effective assistance of counsel, an entitlement which necessarily includes conflict-free assistance. Id. ¶ 44. Conflict-free assistance may be defined as"' assistance by an attorney whose allegiance to his client is not diluted by conflicting interests or inconsistent obligations.' " People v. Green, 2020 IL 125005, ¶ 20 (citing People v. Spreitzer, 123 Ill.2d 1, 13-14 (1988)).
¶ 14 Our supreme court recognizes two types of conflicts - per se and actual. In re Br. M., 2021 IL 125969, ¶ 45. The supreme court instructs that the individual attorneys comprising the staff of the public defender do not comprise an entity sufficiently similar to a law firm to invoke 4 a per se conflict of interest rule whenever several members of the public defender's office separately represent related parties. People v. Robinson, 79 Ill.2d 147, 155-59 (1979); see People v. Lackey, 79 Ill.2d 466, 468 (1980); see In re A.P., 277 Ill.App.3d 592, 1009 (1996). "Similarly, the fact that the appointed public defender has supervisory authority over his or her assistant public defenders does not override an assistant public defender's undivided loyalty to his client." People v. Cole, 2017 IL 120997, ¶ 42. In other words, our supreme court does not espouse the existence of a per se conflict of interest rule in cases where public defenders from the same office represent the differing interests of several clients. See People v. Lackey, 79 Ill.2d 466, 468 (1980). Instead, our supreme court has held that reversal based on a conflict may be warranted in situations where the public defender, a person with power and authority over the assistant, holds a position that is diametrically opposed to that of his assistant during termination proceedings. Id.; see In re A.P., 277 Ill.App.3d at 1009-10. Whether a conflict of interest exists is a legal question subject to de novo review. In re E.D., 2021 IL App (4th) 210267, ¶ 12; see In re Br. M., 2021 IL 125969, ¶ 37.
¶ 15 In support of her argument on appeal, mother submits that the Fourth District's recent decision in In re E.D. is consistent with the instant case. In re E.D., 2021 IL App (4th) 210267. In that case, like the instant case, the public defender acted as guardian ad litem for the minor child, and an assistant public defender represented mother in termination proceedings on the basis of neglect. Id. ¶ 15. The court, in In re E.D., held that a conflict of interest existed between the public defender and the assistant public defender, where the attorneys held opposing positions at various points in the proceedings, which warranted reversal and remand for further proceedings. Id. ¶¶ 15, 20. In support of its holding, the court noted that the attorneys held differing positions regarding changing permanency goals at two separate permanency review 5 hearings and that the attorneys gave opposing recommendations following the best interest hearing. Id. ¶ 15. Unlike In re E.D., PD Henneberry and APD May never took opposing positions.
¶ 16 In her brief, mother argues that during the time that PD Henneberry acted as GAL, the minors were adjudicated neglected, a dispositional order finding mother unfit was entered, and the permanency goal shifted to substitute care pending termination of parental rights. Mother argues that during this time period, PD Henneberry "either acquiesced or concurred with the State's position" at these procedural junctures, constituting a conflict of interest. We disagree.
¶ 17 During the adjudicatory hearing, PD Henneberry took no position regarding APD May's request for a continuance. During the adjudicatory hearing, APD May took no position regarding adjudication. Similarly, during the dispositional hearing, neither PD Henneberry, nor APD May, took positions regarding disposition.
¶ 18 Mother asserts that APD May took an opposing position to PD Henneberry on June 20, 2019, when the court changed the minors' permanency goals from return home within 12 months to substitute care pending court determination on termination of parental rights. However, the court's written order from this date does not provide that any arguments were made by the parties. As the State notes, a hearing transcript from this date is not contained within the record, and we are to resolve any doubts arising from the incompleteness of the record against appellant. Foutch v. O'Bryant, 99 Ill.2d 389, 391-92 (1984). Accordingly, we will not speculate as to the positions of the parties on that date.
¶ 19 Moreover, an exhaustive review of the record provides that following PD Henneberry's withdrawal, APD May and APD Gatza held contrary positions on only one occasion, during argument at the best interest hearing. However, mother lodges no argument regarding the 6 simultaneous representation by two assistant public defenders. This is likely due to the fact that representation of a parent by one assistant public defender and representation of the children by another assistant public defender is not a per se conflict of interest, even when adverse positions are taken. Robinson, 79 Ill.2d at 155-59; see Cole, 2017 IL120997, ¶¶ 25-44.
¶ 20 Ultimately, it is clear that the per se conflict of interest rule is inapplicable to this set of facts. It is also clear that the record is devoid of evidence that PD Henneberry and APD May took opposing positions during the proceedings. For this reason, mother fails to establish that an actual conflict of interest existed. We affirm the termination of mother's parental rights.
¶ 21 III. CONCLUSION
¶ 22 The judgment of the circuit court of Bureau County is affirmed.
¶ 23 Affirmed. 7