Find Legal Information

PRESIDING JUSTICE CHAPMAN delivered the opinion of the court:

Minors S.G., M.L., and T.L. were placed into the custody of the Illinois Department ofChildren and Family Services (Department) on October 19, 1998, after it was reported thattheir mother, respondent T.O., had neglected and abused them by subjecting them to physicalviolence in their home while she was intoxicated. The minors were adjudicated neglected andabused pursuant to sections 2-3(1) and (2) of the Juvenile Court Act of 1987 (Act) (705 ILCS405/2-3(1), (2) (West 1998)), made wards of the court, and placed with a foster family, wherethey have remained. On August 22, 2002, the trial court determined that T.O. was an unfitparent, and it terminated her parental rights, as well as the rights of the putative fathers. T.O.appeals the trial court's judgments finding the minors to be abused and neglected, finding herto be an unfit parent, and terminating her parental rights, based on the existence of a per seconflict of interest. We reverse and remand for new proceedings.

The facts pertinent to this appeal are simple. The trial court appointed counsel for T.O.and a guardian ad litem (GAL) for the minors at the first of several hearings that occurred inthis matter. The transcript of the hearing reflects that the trial court appointed BrianWernsman to represent T.O. because he had represented her earlier in the day in a criminalmatter. (Wernsman, however, was not present at the hearing, and T.O. examined the State'ssole witness herself.) Michael McHaney, a Marion County public defender, was appointed asthe GAL for the minors and cross-examined the State's witness. The trial court concluded thatthere was probable cause to believe that the minors were abused, and the court placed them inthe temporary custody of the Department.

Two months after the first hearing, the trial court vacated Wernsman's appointment ascounsel for T.O. and appointed McHaney to represent T.O. Another attorney was appointedas the minors' GAL. The record does not reflect the trial court's reason for making thesechanges. McHaney represented T.O. at the remaining hearings, which culminated in T.O.'sparental rights being terminated. In sum, McHaney represented the minors as their court-appointed GAL from October 19, 1998, until December 17, 1998, and represented T.O. as hercourt-appointed counsel from December 17, 1998, through May of 2002.

T.O. contends that she was denied the effective assistance of counsel because McHaneyhad represented the minors as their GAL earlier in the proceedings. The sole issue for ourreview is whether McHaney's status as the GAL for the minors and his subsequentrepresentation of T.O. in proceedings brought under the Act created a per se conflict ofinterest that rendered counsel's assistance ineffective. The issue of whether counsel laboredunder a per se conflict of interest is subject to de novo review. People v. Miller, 199 Ill. 2d541, 544, 771 N.E.2d 386, 387 (2002). We find that McHaney's prior representation of theminors created a per se conflict of interest in this case, which requires a reversal of the trialcourt's judgments.

Section 1-5 of the Act (705 ILCS 405/1-5 (West 2002)) provides that minors and theirparents have the right to be represented by counsel in a juvenile proceeding. If a party requestscounsel and is unable afford the fees, the trial court must appoint the public defender or othercounsel as the case may require. 705 ILCS 405/1-5(1) (West 2002). Although proceedingsunder the Act are not intended to be adversarial (705 ILCS 405/1-5(1) (West 2002)), the Actcontemplates the likelihood of conflicts of interest arising between minors and their parents. Section 2-17 requires the trial court to appoint a GAL in certain circumstances and permitsthe court to appoint a GAL whenever a conflict arises. 705 ILCS 405/2-17 (West 2002).

"Implicit within the right to counsel is that such representation be effective." In reJohnson, 102 Ill. App. 3d 1005, 1011, 429 N.E.2d 1364, 1370 (1981); In re R.G., 165 Ill.App. 3d 112, 127, 518 N.E.2d 691, 700 (1988). A parent's right to the effective assistance ofcounsel entitles her to the "undivided loyalty" of her attorney. In re Lackey, 71 Ill. App. 3d705, 707, 390 N.E.2d 519, 521 (1979), aff'd sub nom. People v. Lackey, 79 Ill. 2d 466, 468,405 N.E.2d 748, 749 (1980); In re Johnson, 102 Ill. App. 3d 1005, 1011, 429 N.E.2d 1364,1370 (1981). To protect this right, counsel may not represent conflicting interests orundertake the discharge of inconsistent duties. People v. Lawson, 163 Ill. 2d 187, 209, 644N.E.2d 1172, 1182 (1994). This concept is so central to our profession that it is embodiedin our Rules of Professional Conduct. 134 Ill. 2d R. 1.9(a).

Although there is no constitutional right to counsel in cases brought under the Act(People v. Lackey, 79 Ill. 2d 466, 468, 405 N.E.2d 748, 749 (1980)), Illinois courts apply thestandard utilized in criminal cases to gauge the effectiveness of counsel in juvenileproceedings. See In re R.G., 165 Ill. App. 3d at 127, 518 N.E.2d at 701-02; In re J.C., 163 Ill.App. 3d 877, 891, 516 N.E.2d 1326, 1335 (1987); In re D.M., 258 Ill. App. 3d 669, 673-74,631 N.E.2d 341, 344 (1994). Thus, it would follow that our resolution of T.O.'s ineffective-assistance-of-counsel claim would be guided by the standards set out in Strickland v.Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and adopted by theIllinois Supreme Court in People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Generally, in order to establish ineffective assistance of counsel, one must show both thatcounsel's representation fell below an objective standard of reasonableness and that areasonable probability exists that, but for the error, the result would have been different. People v. Peeples, 205 Ill. 2d 480, 511-13, 793 N.E.2d 641, 661-62 (2002). However,Illinois courts apply a different standard to determine whether certain conflicts of interestresult in the ineffective assistance of counsel. The supreme court has recognized that in caseswhere a conflict is created by defense counsel's prior or contemporaneous association witheither the prosecution or the victim, the effect of counsel's conflict may be so subtle orimperceptible that the record on appeal may not reveal the extent of the influence. In such acase, the complainant will not be able to demonstrate that counsel acted unreasonably or thatthe outcome of the case would have been different absent the conflict. This led the supremecourt to develop what has been coined the "per se conflict of interest" rule. People v.Spreitzer, 123 Ill. 2d 1, 13-23, 525 N.E.2d 30, 34-39 (1988) (the supreme court explains andclarifies the different classes of conflicts, the per se rule, and related terminology).

First adopted by the supreme court in People v. Stoval, 40 Ill. 2d 109, 239 N.E.2d 441(1968), the per se conflict-of-interest rule as applied in that case provides that when a criminaldefendant's court-appointed counsel also represented the victim, the defendant is not requiredto establish actual prejudice in order to have his conviction reversed and to be entitled to a newtrial. Stoval, 40 Ill. 2d at 113, 239 N.E.2d at 444. Put another way, to obtain a reversal, a partycomplaining of such a conflict need not show that her counsel's performance was affected bythe existence of the conflict. Spreitzer, 123 Ill. 2d at 15, 525 N.E.2d at 35. In Stoval, thedefendant's court-appointed counsel was simultaneously representing the defendant's victimin an unrelated civil suit, and defense counsel himself, as well as other members of his firm,had represented the victim in the past. Stoval, 40 Ill. 2d at 112, 239 N.E.2d at 443. The Stovalcourt stated:

"[S]ound policy disfavors the representation of an accused, especially whencounsel is appointed, by an attorney with possible conflict of interests. It is unfair tothe accused, for who can determine whether his representation was affected, at least,subliminally, by the conflict. Too, it places an additional burden on counsel, howeverconscientious, and exposes him unnecessarily to later charges that this representationwas not completely faithful. In a case involving such a conflict there is no necessity forthe defendant to show actual prejudice." Stoval, 40 Ill. 2d at 113, 239 N.E.2d at 444.

As we mentioned above, the per se conflict-of-interest rule is not limited to conflictsthat arise as a result of counsel's simultaneous representation of criminal defendants and theirvictims. The rule has been applied to other conflicts, including where court-appointed defensecounsel previously appeared in the same proceeding on behalf of the prosecution as anassistant State's Attorney. See People v. Kester, 66 Ill. 2d 162, 361 N.E.2d 569 (1977). InKester, the supreme court acknowledged this factual distinction yet held that its rationale inStoval controlled. The court stated as follows:

"[T]he attorney might be subject to subtle influences which could be viewed as adverselyaffecting his ability to defend his client in an independent and vigorous manner. Itmight be contended, for example, that the advice and performance of court-appointedcounsel in such a situation was affected by a subliminal reluctance to attack pleadingsor other actions and decisions by the prosecution which he may have been personallyinvolved with or responsible for. *** As we noted in Stoval, it would be extremelydifficult for an accused to show the extent to which this may have occurred." Kester,66 Ill. 2d at 167-68, 361 N.E.2d at 572.

We find that the policy concerns addressed by the supreme court in Stoval and Kesterare equally present in the case before us. McHaney represented parties with adverse objectivesat different times in the same proceedings. The State does not contest that the interests of T.O.and the minors were diametrically opposed in the proceedings below. Indeed, T.O. sought toretain the custody of her children and her parental rights while the State, the Department, andMcHaney (as the GAL for the minors) advocated otherwise. The record may not reflect thenature and extent of the conflict's effect on McHaney's advocacy, thereby eliminating anypossibility that T.O. could establish prejudice. Only McHaney can tell us to what degree, ifany, his representation of the minors affected his representation of T.O. This situation shouldnot be tolerated by our courts in any proceeding, civil or criminal. We can think of noreason that a party in a proceeding brought pursuant to the Act should not be afforded the samestandard of legal representation as a criminal defendant. Further, because this case involvescourt-appointed counsel rather than retained counsel, it demands closer scrutiny for conflictsof interest. People v. Berland, 74 Ill. 2d 286, 303, 385 N.E.2d 649, 656 (1978). Consequently, we apply the per se conflict-of-interest rule in this case to advance the soundadministration of justice. Although the record does not reveal that McHaney did not representT.O. in a competent and dedicated manner with complete loyalty, we find that a per se conflictexisted in this case as a result of his prior representation of the minors as their GAL and thatT.O. need not show prejudice to secure a reversal.

In arguing that no per se conflict exists in this case, the State emphasizes the brevityof McHaney's GAL appointment on behalf of the minors and the limited activity he engagedin on the minors' behalf. Although it is true that the record reflects that McHaney appeared incourt on behalf of the minors only once, at the shelter-care hearing, the State's argument beliesthe underlying purpose of the per se conflict-of-interest rule. It is what is not in the record,or what is incapable of being reflected by the record, that prompts us to apply the per seconflict-of-interest rule in this case. Our concern is with the opinions McHaney had alreadyformulated about the "best interests of the children" when representing them and how thoseopinions might adversely impact his ability to later effectively represent T.O. with "undividedloyalty". Therefore, we decline to evaluate how actively McHaney represented the minors inassessing T.O.'s conflict-of-interest claim.

The State relies solely on In re D.B., 246 Ill. App. 3d 484, 615 N.E.2d 1336 (1993),to support its argument that no per se conflict was created in this case. In that case, themother, whose parental rights had been terminated, argued that she had been prejudiced by aconflict of interest of her attorney, who had previously served as the minor's GAL. Herattorney, however, had informed her of his prior representation of the minor and told her thathe did not believe there would be a conflict of interest. The court held that there was no perse conflict of interest because counsel had not simultaneously represented the minor and themother and because the mother continued to have her attorney represent her even though hehad disclosed to her his prior representation of the minor. In re D.B., 246 Ill. App. 3d at 492,615 N.E.2d at 1341-42. We decline to follow In re D.B. for the proposition that onlysimultaneous representation can create a per se conflict of interest. Additionally, unlike thefacts in In re D.B., the record here does not reveal any consultation between T.O. and McHaneyabout the potential for a conflict of interest, let alone a knowing waiver of her right to conflict-free counsel.

Under the circumstances in this case, where T.O.'s court-appointed counsel hadpreviously served in the same juvenile proceedings as the GAL for the minors, we hold thatprejudice is presumed and that T.O. is not required to demonstrate that the conflict contributedto any of the judgments entered against her. For the foregoing reasons, we reverse thejudgments of the trial court finding that the minors are abused and neglected, finding T.O. tobe unfit, and terminating T.O.'s parental rights, and we remand for the appointment of newcounsel for T.O. and a new hearing on the amended petition. The trial court's judgmentsterminating the parental rights of the putative fathers, Duane L. and Claude O., are affirmed.

Affirmed in part and reversed in part; cause remanded.

WELCH and KUEHN, JJ., concur.