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FIFTH DIVISION
June 28, 2002

No. 1-01-2842

On June 20, 2001, the parental rights of the respondent, Shulanda D., were terminated asto her two children, J.D. and M.G. Respondent does not appeal the substance of the trial court'sdecision to terminate her parental rights; rather, respondent asks this court to review severalprocedural decisions made by the trial court. Upon review of the trial court's decisions, weaffirm.

At the time of her birth in September of 1996, J.D. tested positive for cocaine and, as aresult, was placed in the temporary custody of the Department of Children and Family Services(DCFS). M.G. was born in September of 1997 and came into the system shortly thereafterbecause respondent used drugs during her pregnancy. Since June of 1997, J.D. has resided withElizabeth DeJesus, her foster mother, and since September of 1997, M.G. has resided with herfoster mother, Ruth Dabney.

In December of 1998, the State filed supplemental petitions for appointment of a guardianwith right to consent to adoption. The State alleged that respondent was unfit due to her failureto maintain a reasonable degree of interest, concern or responsibility as to J.D. and M.G.'swelfare and that respondent failed to make reasonable efforts to correct the conditions whichwere the basis for removal within nine months after adjudication and/or failure to makereasonable progress toward the return of the children within nine months after adjudication. 750ILCS 50/1(D)(b), (D)(m) (West 2000).

At trial, George Udhub, a caseworker for DCFS, who was assigned to J.D's and M.G.'scases in August of 1999, testified that respondent was noncompliant with the services requestedof her. Specifically, Udhub testified that he was unsure of whether respondent participated in therequired programs to an extent that allowed her to learn essential parenting skills. Moreover,Udhub stated that respondent was inconsistent in visiting J.D. and M.G.

Elizabeth DeJesus and Ruth Dabney, J.D.'s and M.G.'s respective foster mothers, alsotestified at trial. DeJesus testified that respondent interacted inappropriately with J.D. duringtheir few visits, while Dabney testified that she never saw respondent interact inappropriatelywith M.G. Both foster mothers testified that respondent did not visit her children consistently.

Next, the State called Alicia Pickett to testify, but she was unavailable. Consequently, theState continued its case.

On February 20, 2001, the assistant public guardian called Baleria Baltazar, J.D.'stherapist, to testify. Respondent objected to Baltazar testifying because she was never listed as awitness prior to trial. Moreover, not until Baltazar was called as a witness did respondent receivea copy of the intake report that Baltazar prepared almost three weeks prior to being called as awitness. In response to defendant's objection to Baltazar testifying, the court allowed the partiesto file briefs and set the motion hearing for February 28, 2001.

The assistant public guardian called Patricia Hightower, a case manager at SullivanHouse, to testify. As the case manager for one of respondent's other children's cases, Hightowerhad the opportunity to observe several family visits between respondent and her children. Hightower testified that at these visits, respondent did not interact very much with J.D. and thatM.G. appeared very upset at these visits.

On February 28, 2001, the trial court was to hear arguments on respondent's request to barthe testimony of Baleria Baltazar. There is no transcript of what occurred on February 28, 2001,and there is no written order stating the trial court's decision; however, the record does includethe minors' response to interrogatories filed on March 12, 2001. The minors' response includesinformation on what Baltazar would testify to and Baltazar's intake report.

On March 20, 2001, respondent filed a motion to reconsider the trial court's decision toallow Baltazar to testify. The trial court's ruling on this motion is not included in the record.

On April 9, 2001, the State resumed its case and called Alicia Pickett, a DCFScaseworker assigned to the minors' cases from November of 1997 through December of 1998, totestify. Pickett testified that respondent completed a parenting program; however, it was not theintensive program in which the judge wanted respondent to enroll. Pickett also stated thatrespondent began counseling through the Salvation Army and enrolled in an aftercare program atHaymarket. Lastly, Pickett stated that respondent claimed she attended support meetings, butPicket never received proof of her attendance. The State rested.

Next, the assistant public guardian called Baleria Baltazar to testify. Baltazar testifiedthat she had been J.D.'s therapist since January of 2001 and that J.D. had been referred to her as aresult of the fear she experienced before visiting with respondent. Baltazar testified that at thesevisits respondent did not interact appropriately with J.D. For instance, Baltazar stated thatrespondent did not show genuine interest in her conversations with J.D. and continuously toldJ.D. not to forget that her last name is different from her foster mother's last name. Furthermore,Baltazar testified that at these visits M.G. refused respondent's requests for him to sit on her lap.

At the conclusion of Baltazar's testimony, the assistant public guardian rested andrespondent called Jane Rooney, a counselor at the Salvation Army Family Services, to testify. Rooney testified that beginning in March of 1998, she counseled respondent on the issues of drugabuse and depression. Respondent reported to Rooney that she had not used drugs since June of1997 and that she had been participating in therapy consistently since the fall of 1998. Further,respondent told Rooney that during the fall of 1998 she received training as a certified nursingassistant and obtained a car. According to Rooney's testimony, in May of 1998, sherecommended that respondent complete an aftercare outpatient treatment program; however,respondent did not complete this program until June of 1999.

Rooney testified that she observed several visits between respondent and J.D. Morespecifically, Rooney observed visits that took place in November and December of 1998. Duringthese visits, Rooney noticed that J.D. reciprocated respondent's efforts at interacting with her. Moreover, Rooney stated that respondent seemed interested in J.D. and did not behaveinappropriately. In the fall of 2000, Rooney observed respondent and J.D. interact at a court date. Before the proceeding began, Rooney stated that she saw J.D. take a lollipop from the clerk ofthe court, unwrap it, and offer it to respondent.

Rooney went on to testify that she approached J.D.'s foster mother in an attempt to lessenthe tension between respondent and DeJesus, but DeJesus was not receptive. Rooney alsotestified that she spoke with respondent regarding her children's future and noted that respondentwas ambivalent on this topic. However, Rooney testified that on about six occasions, she andrespondent discussed the positive and negative aspects of releasing her parental rights. Respondent was primarily concerned that if her parental rights were terminated, J.D. would notbe allowed to continue visiting with her other siblings or with respondent. Rooney stated thatrespondent did not have the same concerns regarding M.G., because respondent's relationshipwith M.G.'s foster parents was not as tense as her relationship with J.D.'s foster parents.

Overall, Rooney testified that respondent had improved her life. For several months,Rooney stated that respondent had been working two jobs. Further, respondent leased anapartment, gained a good sense of self-esteem, and learned to better control her anger duringstressful situations. At the conclusion of Rooney's testimony, respondent rested.

On April 25, 2002, the trial court found respondent to be an unfit parent to both J.D. andM.G. for failure to maintain a reasonable degree of interest, concern, or responsibility regardingtheir welfare and for failure to make reasonable progress toward their return home. Although thetrial court judge found respondent to be unfit, she commended respondent for confronting herdrug problem and staying sober, but noted that her efforts came too late. The trial court judgewent on to state that as a result of respondent not making these efforts sooner, she was required,under the law, to hold that respondent is an unfit parent. The record reflects that at the momentthe trial court judge announced the ruling, respondent lost control of her emotions and attackedboth J.D.'s and M.G.'s foster mothers. In response to this physical altercation, the trial courtentered an order of protection that protected both foster mothers from respondent. The court thencontinued the case for a hearing to determine the best interests of the children.

Before the hearing to determine the best interests of the children, respondent filed amotion for substitution of judge. In the motion, respondent argued that since the trial court judgeobserved the altercation between respondent and the foster parents, she could be called as awitness against respondent, which leads to the appearance of impropriety. Furthermore,according to respondent's motion, since the trial court judge will be ruling on the best interests ofthe children, impartiality is of the utmost importance.

On June 20, 2001, the trial court judge transferred respondent's motion for substitution ofjudge to the presiding judge for a hearing. The presiding judge denied respondent's motion forsubstitution of judge. The record does not contain a transcript of the hearing.

Respondent's attorney filed a motion to withdraw as counsel, arguing that according tothe rules of professional conduct the motion should be granted because she could be called as awitness on behalf of respondent as well as against respondent. The trial court denied the motion,stating that if respondent's attorney was called to testify, her testimony would not violate the rulesof professional conduct because nothing that respondent's attorney would testify to would placethe attorney-client privilege in jeopardy since her testimony would involve the physicalaltercation she witnessed, which is independent from the case at bar.

The best interests hearing occurred on June 20, 2001. Nedra Jackson, J.D. and M.G.'sDCFS caseworker from March 30, 2001, through the time of her testimony, recommended thatrespondent's parental rights be terminated so that the children could be adopted by theirrespective foster parents.

Next, respondent called Mrs. DeJesus to testify. Mrs. DeJesus testified that from 1998through 2000, J.D. cried before her visits with respondent. DeJesus also testified that shedecided it was in J.D.'s best interest to no longer attend the visits because J.D. now had anawareness of the tension between her foster mother and respondent. Mrs. DeJesus stated that shehas never stated anything negative about respondent and that she wants J.D. to maintainrelationships with her siblings.

Lastly, respondent testified on her own behalf. Respondent stated that she wants tocontinue a relationship with J.D. and M.G. as their mother, companion, and friend. Respondentexpressed concern over J.D. and M.G. not having ongoing relationships with her other children ifher parental rights are terminated.

The trial court ruled that it is in the best of interest of J.D. and M.G. to have respondent'sparental rights terminated. The trial court specifically noted that by terminating respondent'sparental rights, the children would develop a better sense of attachment and security toward theirrespective foster families. A permanency goal of adoption was entered for both children on June20, 2001.

The first issue before us is whether the trial court properly allowed the trial testimony ofBaleria Baltazar. Second, we consider whether the respondent's motion for substitution of judgewas properly denied. Third, we examine whether the trial court properly denied respondent'sattorney's motion to withdraw as counsel for respondent. We affirm the trial court's ruling oneach of these issues.

Initially, we note that respondent has not produced an adequate record for review. It iswell established that it is the appellant's duty to file an adequate record on appeal. In re K.S., 317Ill. App. 3d 830, 832 (2000). Moreover, Supreme Court Rule 321 provides (155 Ill. 2d R. 321):

"The record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common law record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less. The common law record includes every document filed and judgment and order entered in the cause and any documentary exhibits offered and filed by any party. Upon motion the reviewing court may order that other exhibits be included in the record. The record on appeal shall also include any report of proceedings prepared in accordance with Rule 323. There is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court."

Without knowledge of the evidence or arguments at trial, or the basis for the trial court'sdecision, the reviewing court presumes that the trial court's decision was proper. Webster v.Hartman, 195 Ill. 2d 426, 433 (2001); In re K.S., 317 Ill. App. 3d at 832-33.

In regard to the first issue, respondent has included her attorney's oral objection to thetestimony of Baleria Baltazar; however, respondent has failed to include a written motion byrespondent and a transcript of the hearing indicating that the trial court heard arguments andruled on this motion. A review of the record also indicates that there is no written orderindicating how the trial judge ruled.

In regard to the second issue, the common law record includes respondent's writtenmotion for substitution of judge and a written order indicating the presiding judge, PatriciaHolmes, denied respondent's motion. The written order states that "[t]he transcript of ruling ishereby incorporated as written part of this order"; however, a review of the record indicates thatrespondent has failed to include the transcript from this hearing.

Additionally, we note that the common law record is devoid of the State's four exhibits,the children's group exhibit, the respondent-father's three exhibits, and the respondent-mother'sseven exhibits.

First, we examine the issue of whether the trial court properly allowed the trial testimonyof Baleria Baltazar. Respondent argues that the trial testimony of Baleria Baltazar prejudiced herand should have been barred by the trial court. At trial, respondent objected to Baltazar'stestimony on the basis of unfair surprise and noncompliance with the discovery rules, inparticular Supreme Court Rule 213 (177 Ill. 2d R. 213), which mandates disclosure and is subjectto strict compliance by the parties. Respondent does not specify which subsection of Rule 213was allegedly violated. Respondent also argues that allowing Baleria Baltazar to testify violatedSupreme Court Rule 218(c) (166 Ill. 2d R. 218) which provides that discovery must becompleted 60 days prior to the commencement of trial. According to respondent, the assistantpublic guardian knew about the possibility of Baltazar testifying before the close of discovery,and, therefore, the trial court should have barred her testimony since no disclosure was made bythe assistant public guardian.

We hold that the trial court did not abuse its discretion in allowing Baltazar to testify. Admission of evidence pursuant to Rule 213 is within the sound discretion of the trial court, andthe trial court's ruling will not be reversed absent an abuse of discretion. Seef v. Ingalls MemorialHospital, 311 Ill. App. 3d 7 (1999).

The record on appeal does not contain the transcript of the proceedings regardingrespondent's motion to bar Baltazar's testimony; however, the following chronology of events canbe gathered from the existing record. On November 16, 2000, a pretrial conference was heldwhere the trial court decided that discovery was to remain open so that respondent could obtainfurther documents. There is no record of discovery ever being closed. On February 20, 2001, theunfitness hearing commenced, during which the assistant public guardian called Baltazar as awitness and respondent objected. There is no record that respondent served either the State or theminors with any interrogatories prior to February 20, 2001. The trial court continued the motionto a later date so that the parties could file written motions and briefs on the issue. The record isdevoid of a written motion or brief filed by respondent. The children filed a written response torespondent's motion which is included in the record. The trial court heard arguments on themotion on February 28, 2001; however, there is no transcript of this hearing included in therecord. The record contains a motion to reconsider, filed by respondent, asking the trial court toreconsider its February 28, 2001, decision to allow the Baltazar's testimony. According torespondent's motion to reconsider, the trial court granted respondent leave to depose Baltazarand/or serve the children with interrogatories. The record does not include any interrogatoriesserved on the children or a deposition transcript; however, on March 12, 2001, the children filedtheir answer to respondent's interrogatories. Consequently, we assume that sometime afterFebruary 28, 2001, the children were served with an interrogatory. On April 9, 2001, theunfitness hearing resumed and Baltazar testified.

We are precluded from determining whether the trial court properly allowed Baltazar totestify because key documents are missing from the record on appeal. Specifically, the transcriptfrom the hearing held on February 28, 2001, is not included in the record; thus, we do not knowwith certainty how the trial court judge ruled on respondent's objection to Baltazar's testimony. From the material included in the record, it appears that the trial court allowed respondentadditional time to serve the children with interrogatories and, if she wished, to depose Baltazar. In the absence of key documents, however, our judgment is premised on mere speculation, ratherthan on a concrete record. Without a transcript of the parties' arguments and the trial court'sruling on respondent's objection, we do not know the basis of the trial court judge's ruling, whichmakes it impossible for us to determine whether the trial court abused its discretion. At theappellate level, there is no room for speculation as to what occurred in the court below. SeeWebster v. Hartman, 195 Ill. 2d 426, 433 (2001); In re K.S., 317 Ill. App. 3d at 832-33. As aresult, we affirm the trial court's decision to allow Baltazar's testimony.

Even if the record on appeal were complete, respondent would be unsuccessful in arguingthat the minors violated Rule 213. The subject of Rule 213 is written interrogatories. Anexamination of Rule 213 reveals that the rule is predicated on the complaining party servingwritten interrogatories during discovery. A party must first serve the opposing party with awritten interrogatory before it can allege a violation of Rule 213. In the case at bar, prior to thetrial court hearing arguments on respondent's objection to Baltazar's testimony, respondent hadnot served any interrogatories on either the State or the children. Since respondent never servedthe children with a written interrogatory prior to the commencement of the fitness hearing,respondent cannot successfully argue that the minors violated any portion of Rule 213. Consequently, we hold that respondent has waived her right to argue that the minors haveviolated Rule 213.

Next, we consider whether the respondent's motion for substitution of judge was properlydenied. Respondent's motion for substitution of judge is based on Supreme Court Rule 62 (155Ill. 2d R. 62). Supreme Court Rule 62 provides that a judge should avoid impropriety and theappearance of impropriety. In her motion for substitution of judge, respondent argues that sincethe trial court judge, Noreen Daly, observed the altercation between respondent and the fosterparents, she should have recused herself; however, the trial court judge did not recuse herself. Rather, she transferred respondent's motion for substitution of judge to the presiding judge,Patricia Holmes.

The record on appeal only includes respondent's motion for substitution of judge and theorder denying respondent's motion. The presiding judge's order clearly indicates that the motionwas denied, but does not contain the basis for the denial. The order states the "[t]ranscript ofruling is hereby incorporated as written part of this order"; however, the transcript from thishearing is not included in the record. Since we have no knowledge of the arguments that are thebasis for the presiding judge's decision, we cannot find that the trial court abused its discretion. As a result, we affirm the trial court's denial of respondent's motion for substitution of judge. SeeWebster v. Hartman, 195 Ill. 2d 426, 433 (2001); In re K.S., 317 Ill. App. 3d at 832-33.

A closer review of respondent's motion for substitution of judge reenforces ourdetermination that respondent's motion was properly denied by the trial court. On appeal, thedecision on a petition for substitution of judge will not be reversed unless the trial court'sdecision was against the manifest weight of the evidence. In re Marriage of Schweihs, 272 Ill.App. 3d 653, 659 (1995). Section 2-1001(a)(3)(i) of the Code of Civil Procedure provides that aparty may move for a substitution of judge for cause. 735 ILCS 5/2-1001(a)(3)(i) (West 2000). Under the statute, an application for substitution of judge must be made by petition and verifiedby the applicant's affidavit. This court has held that where a petition for substitution of judge isnot verified by an affidavit, it is properly denied by the trial court. County of Cook v.Renaissance Arcade & Bookstore, 150 Ill. App. 3d 6, 21 (1986). In the case at bar, respondent'smotion for substitution of judge is not verified by an affidavit and, therefore, does not satisfy therequirements of section 2-1001(a)(3)(ii) (735 ILCS 5/2-1001(a)(3)(ii) (West 2000)). For thisreason, even a more detailed examination of this issue would lead us to find that respondent'smotion for substitution of judge was properly denied.

Lastly, we consider whether the trial court properly denied respondent's attorney's motionto withdraw as counsel. Respondent argued to the trial court that she should be allowed towithdraw because she could be a potential witness in a separate criminal matter arising out ofrespondent's emotional outburst and attack on the foster mothers. The State argued to the trialcourt that this is not a valid reason for respondent's attorney to withdraw from the case. Weagree with the State.

A trial court's ruling on a motion to withdraw will not be overturned on appeal absent anabuse of discretion. People ex rel. Burris v. Maraviglia, 264 Ill. App. 3d 392, 398-400 (1993). Amotion to withdraw as counsel is governed by Supreme Court Rule 13(c)(3) (134 Ill. 2d R. 13),which provides in pertinent part:

"(3) Motion to Withdraw. The motion for leave to withdraw shall be in writing and, unless another attorney is substituted, shall state the last known address of the party represented. The motion may be denied by the court if the granting of it would delay the trial of the case, or would otherwise be inequitable."

"Illinois courts have determined that Supreme Court Rule 13(c)(3) gives circuit courts the optionof denying an attorney's motion to withdraw only if the granting of the motion would improperlydelay the trial or would otherwise be inequitable." (Emphasis omitted.) In re Rose Lee Ann L.,307 Ill. App. 3d 907, 912 (1999), citing Ali v. Jones, 239 Ill. App. 3d 844, 849 (1993).

In the case at bar, the trial court judge denied counsel's motion to withdraw because it wasbrought in the middle of trial and granting the motion would deny the mother competentrepresentation. The trial court stated:

"THE COURT: I do not think it [granting the motion] would only delay [this matter]. This matter's been pending long enough and quite frankly also Ms. [D] needs competent representation and consistent representation that you have given her. Anything less at this juncture and an important stage would work to her detriment so I am going to deny the motion."

In light of the trial court's reasoning, we find that pursuant to Supreme Court Rule 13(c)(3) andthe well established law of this State, the trial court did not abuse its discretion in denyingcounsel's motion to withdraw.

Additionally, we find that under the Rules of Professional Conduct, the trial courtproperly denied counsel's motion to withdraw. Illinois Rules of Professional Conduct 3.7(a) and3.7(b) (134 Ill. 2d Rs. 3.7(a), (b)) prohibit an attorney from acting as both an advocate and as awitness on behalf of her client in the same proceeding. This interpretation of Rules 3.7(a) and3.7(b) was followed in People v. Blue, 189 Ill. 2d 99, 136 (2000), where the supreme court foundthat "the State's objections violated the 'advocate-witness rule,' which bars attorneys fromassuming a dual role as advocate and witness in the same proceeding." See People v. Young, 128Ill. 2d 1, 24-25 (1989); People v. Beals, 248 Ill. App. 3d 19, 25 (1992). In the case at bar,respondent's attorney would not be called to testify in the child protection proceeding now onappeal. If respondent's attorney was called as a witness it would be in an entirely differentproceeding; the criminal proceeding involving her attack on the foster mothers. Since we findthat respondent's attorney failed to show that her continued representation would lead to aviolation of the rules of professional conduct, we affirm the trial court's decision to denyrespondent's attorney's motion to withdraw as counsel.

For the foregoing reason, we affirm the decision of the trial court.

Affirmed.

QUINN and REID, J J., concur.