Opinion
4-23-0225 4-23-0226
07-12-2023
In re H.D. and C.D., Minors v. Ryan K., 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 Tazewell County Nos. 20JA135 20JA136 Honorable David A. Brown, Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Turner and Lannerd concurred in the judgment.
ORDER
DOHERTY JUSTICE
¶ 1 Held: The trial court did not err in disqualifying respondent's court-appointed counsel due to a conflict of interest.
¶ 2 In this consolidated appeal, respondent Ryan K. appeals from the trial court's judgment terminating his parental rights over his two minor children, H.D. and C.D. The essence of his argument on appeal is that his right to counsel of his choosing under the sixth amendment of the United States Constitution (U.S. Const., amend. VI) was violated where the court refused to accept his waiver of a conflict of interest with his appointed counsel and instead appointed new counsel in her place. For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Respondent and Jessica D. are the biological parents of H.D. (born in 2019) and C.D. (born in 2016). Both were parties to the proceedings below. In June 2020, the State filed a petition for temporary shelter care alleging that the minors' environment was injurious to their welfare (705 ILCS 405/2-3(1)(b) (West 2020)), in that the parents had a history of juvenile court proceedings as well as domestic violence issues. The petition set forth explicit allegations of domestic violence between respondent and Jessica D. Specifically mentioned in the petition was Tazewell County case No. 18-CF-486, among other cases, where Jessica D. was the victim of domestic violence at the hands of respondent. The trial court held a hearing and granted temporary custody of the minors to the Illinois Department of Children and Family Services (DCFS). Respondent retained private counsel and denied the allegations in the petition. The matter proceeded to an adjudicatory and dispositional hearing, where the court found the State proved the allegations in the petition by a preponderance of the evidence. The court made the minors wards of the court with DCFS appointed as guardian. Respondent was found unfit.
¶ 5 A permanency review followed in January 2021, where the trial court found that respondent had made reasonable efforts towards the return of the minors. However, he remained unfit due to uncompleted counseling services. At the third permanency review hearing in February 2022, the court changed the permanency goal to return home pending status of an anticipated petition to terminate parental rights to be filed by the State.
¶ 6 The State filed a petition to terminate respondent's parental rights shortly thereafter and amended the petition prior to the hearing. The amended petition alleged that respondent failed to make reasonable progress toward the return of the minors between July 6, 2021, and April 6, 2022. Respondent's privately retained counsel filed a motion to withdraw, which the trial court granted. The court ultimately appointed Tazewell County Assistant Public Defender Patty Roberts as counsel for respondent, and she filed a denial of the allegations in the petition to terminate respondent's parental rights.
¶ 7 In August 2022, Roberts informed the trial court of a potential conflict of interest in representing respondent in that, while employed as an assistant state's attorney, she prosecuted respondent for domestic battery against Jessica D. in Tazewell County case No. 18-CF-486. She advised the court that respondent had been informed of the prior representation and that he wished to waive any potential conflict. Respondent confirmed this to the court and waived the conflict on the record.
¶ 8 Jessica D. subsequently filed a motion to disqualify respondent's counsel based on the prior prosecution of the domestic violence matter. She argued a per se conflict of interest arose in allowing Roberts to represent respondent in that during the prosecution of the domestic battery case, "[Roberts] was representing the people of Tazewell County, including the victim, Jessica [D.]" Further, she did not waive the conflict and the Illinois Rules of Professional Conduct (Ill. R. Profl Conduct (2010) R. 1.9(a) (eff. Jan. 1, 2010)) prohibited the representation.
¶ 9 Roberts filed a response arguing there was no per se conflict of interest in relation to Jessica D. as there was no contemporaneous association with her as a victim in acting as defense counsel in the juvenile matter for respondent. Moreover, Rule 1.9(a) was inapplicable as, pursuant to the Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 2020)), a "victim is not a party to a case and has the right to employ his or her own counsel."
¶ 10 The trial court held a hearing on the motion to disqualify. Counsel for Jessica D. clarified that her objection to Roberts's representation of respondent was based on her prior prosecution of respondent, not the attorney-client relationship with Jessica D. as a victim. She conceded that pursuant to the sixth amendment, respondent could hire any counsel he desired; however, he had no right to select which public defender represented him. Counsel also directed the court's attention to Illinois Rule of Professional Conduct 1.11 (Ill. R. Profl Conduct (2010) R. 1.11 (eff Jan. 1, 2010)) as a basis for disqualification. Both the guardian ad litem and the State adopted the arguments of Jessica D. and also argued that allowing Roberts to continue as counsel for respondent could result in reversible error that would delay permanence and stability for the minors.
¶ 11 After hearing arguments and reviewing caselaw from all parties, the trial court granted the motion to disqualify, ordered Roberts to withdraw, and ordered a new public defender appointed to represent respondent. The court reasoned that respondent could not waive the per se conflict given the "nuances and difficulties" in understanding such a conflict and that the conflict could undermine the integrity of the process, resulting in a defect ripe for appeal. Further, the court reasoned that Jessica D. may have an argument on appeal that she did not, and was not able to, waive the conflict.
¶ 12 The matter proceeded to a hearing on the petition for termination of parental rights. Following the hearing, the trial court found the State carried its burden by clear and convincing evidence, that respondent failed to make reasonable progress towards the return of the minors, and that he was unfit. At the best interest hearing, the court determined it was in the best interest of the minors to terminate respondent's parental rights.
¶ 13 This appeal followed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, respondent argues granting Jessica D's motion to disqualify was error in three respects: (1) on the merits, as respondent's waiver should have been respected; (2) granting the motion was not in the best interest of the minors; and (3) respondent was prejudiced throughout the remainder of the proceedings after his preferred counsel was disqualified.
¶ 16 In criminal proceedings, the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV), as well as article I, section 8 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 8) afford individuals the right to private counsel of their choosing. In re Br. M., 2021 IL 125969, ¶ 41. There is no absolute constitutional right to counsel in proceedings under the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2020)). See Lassiter v. Department of Social Services, 452 U.S. 18, 31 (1981). In Illinois, the right to counsel during these proceedings is purely statutory. 705 ILCS 405/1-5(1) (West 2020). State statute provides that an indigent parent of a minor subject to proceedings under the Act is entitled to court-appointed counsel. Id. Though the right to counsel in the proceedings at issue lacks a constitutional foundation, the right is still "closely linked to its constitutional counterpart." Br. M., 2021 IL 125969, ¶ 42.
¶ 17 Nonetheless, the right to counsel is not unfettered, and even an individual's right to counsel of choice under the sixth amendment is subject to limitations. People v. Ortega, 209 Ill.2d 354, 358 (2004) (citing Wheat v. United States, 486 U.S. 153, 159 (1988)). Generally, there is a plethora of justifications a court may assert to remove an individual's counsel of choice. See Burnette v. Terrell, 232 Ill.2d 522, 534 (2009) (collecting cases). Further, while an indigent defendant has the right to hire counsel of his choosing, there is "no right to choose his or her court-appointed counsel or insist on representation by a particular public defender." People v. Abernathy, 399 Ill.App.3d 420, 426 (2010). Decidedly relevant in this case is the "trial court's 'substantial latitude' to refuse to allow a defendant to waive his chosen counsel's actual or potential conflict of interest." Ortega, 209 Ill.2d at 358 (quoting Wheat, 486 U.S. at 163). We review the disqualification of counsel for an abuse of discretion. Id. at 361. We may affirm the judgment of the trial court on any basis contained in the record. In re Marriage of Heroy, 2017 IL 120205, ¶ 24.
¶ 18 Turning to respondent's arguments, we first dispense with his contentions that the disqualification of his appointed counsel was not in the best interest of the minors and that he suffered prejudice following his court-appointed counsel's withdrawal. Respondent, as the State notes, fails to cite authority supporting these alleged errors, and our research does not reveal any. "A court of review is entitled to have the issues clearly defined with relevant authority cited and cohesive arguments presented." McHenry Township v. County of McHenry, 2022 IL 127258, ¶ 61. Furthermore, as we explain below, the best interest of the minors and prejudice do not directly factor into an analysis of the disqualification of counsel due to a conflict of interest in this matter. Accordingly, respondent has forfeited these arguments and, to the extent they are not forfeited, they lack merit.
¶ 19 What remains of the arguments on appeal is that respondent's sixth amendment right to counsel was abridged where Jessica D. was allowed to assert a conflict of interest and the trial court did not allow him to waive the conflict. As laid out above, any violation of respondent's right to counsel in this matter does not rise to the level of a constitutional violation. His right to counsel is further diminished by the fact that, while as an indigent he was entitled to counsel, he was not entitled to appointment of the particular counsel of his choosing. We also note that, contrary to respondent's assertions, the trial court was not required to accept his waiver of the conflict, as a valid waiver by itself does not negate the court's authority to disqualify even privately retained counsel. Ortega, 209 Ill.2d at 364.
¶ 20 We first address respondent's argument Jessica D. did not have standing to raise the conflict of interest as a basis for the motion to disqualify. The lack of standing was an affirmative defense to the motion to disqualify, and respondent bore the burden of proving Jessica D. lacked standing to assert the conflict of interest between respondent and his appointed counsel. Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 252 (2010). In the trial court, the standing argument was raised in a cursory fashion, with no authority cited to support the allegation, and respondent did not seek a ruling on the defense. On appeal, his approach to the argument is the same. He fails to cite authority supporting his assertion or present cohesive arguments supporting reversal. As a consequence, and as the State notes, the claim that Jessica D. lacked standing is forfeited on appeal. Id. at 252-53; Ill. S.Ct. R. 341(h)(7) (eff. Jan. 1, 2016).
¶ 21 Next, although not entirely analogous to this situation, we take guidance from the supreme court's analysis in Ortega setting forth a two-step process for analyzing the disqualification of a criminal defendant's chosen counsel. In that case, the court noted that the United States Supreme Court in Wheat found a trial court may properly decline a waiver of conflict of interest of counsel "not only when it has reason to find an actual conflict of interest, but also when there is a showing of 'serious potential for conflict.'" Ortega, 209 Ill.2d at 361 (quoting Wheat, 486 U.S. at 164). Our supreme court followed Wheat in People v. Holmes, 141 Ill.2d 204, 223 (1990), finding a trial court properly exercised its discretion in disqualifying defendant's counsel of choice in light of a" 'showing of a serious potential for conflict.' "Id. (quoting Wheat, 486 U.S. at 164).
¶ 22 The first step is to determine whether there is an actual or serious potential for conflict. Ortega, 209 Ill.2d at 361. Our supreme court has recognized a per se conflict of interest will occur when "defense counsel was a former prosecutor who was personally involved in the prosecution of the defendant." People v. Yost, 2021 IL 126187, ¶ 66. This is the exact scenario the trial court faced where respondent's counsel previously prosecuted him in Tazewell County case No. 18-CF-486. To muddy the waters further, Jessica D. was the victim in the criminal case and the case was cited to support the allegations of an injurious environment that brought the minors into substitute care. The court did not abuse its discretion in finding a per se conflict of interest.
¶ 23 Having found a per se conflict of interest, the second step is to determine whether the interests threatened by the conflict or potential conflict overcome the presumption favoring the respondent's chosen counsel. Ortega, 209 Ill.2d at 361. We believe it would be logical to diverge from the guidance in Ortega at this point, as there is no presumption in favor of chosen counsel. As explained above, it is well established respondent had no right to choose his own court-appointed counsel or insist on representation by Roberts. See Abernathy, 399 Ill.App.3d at 426. Once the trial court confirmed that representation of respondent by Roberts gave rise to a per se conflict of interest that threatened the integrity of the proceedings, we cannot say there was an abuse of discretion in appointing new counsel.
¶ 24 Even if we continued the analysis outlined in Ortega, our conclusion would not differ. What would normally follow in the analysis of a defendant's sixth amendment right to chosen counsel in the face of a real or potential conflict is the application of the following factors, which the trial court had discretion in weighing:
"(1) the defendant's interest in having the undivided loyalty of counsel; (2) the State's right to a fair trial in which defense counsel acts ethically and does not use confidential information to attack a State's witness; (3) the appearance of impropriety should the jury learn of the conflict; [and] (4) the probability that continued representation by counsel of choice will provide grounds for overturning a conviction." Ortega, 209 Ill.2d at 361-62.
¶ 25 The trial court focused on the fourth factor in rejecting respondent's waiver. The court reasoned that respondent could not waive the per se conflict given the "nuances and difficulties" in understanding such a conflict, and that the conflict could undermine the integrity of the process, resulting in a defect ripe for appeal, possibly depriving the minors of permanency. We find this eminently reasonable, as permanency and stability are the primary concerns in the lives of children involved in termination proceedings. See Br. M., 2021 IL 125969, ¶ 61 (quoting In re Paul L.F., 408 Ill.App.3d 862, 870 (2011) (Hudson, J., dissenting)). Accordingly, the court did not abuse its discretion in granting the motion to disqualify court-appointed counsel following the finding of a per se conflict of interest.
¶ 26 III. CONCLUSION
¶ 27 For the reasons stated, we affirm the judgment of the trial court.
¶ 28 Affirmed.