No. 2—10—1105
Opinion filed May 11, 2011
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re QUADAYSHA C., BOBBY P., ) Appeal from the Circuit Court of
ZARRIEA B., and ZYLISS H., Minors ) Winnebago County.
)
) Nos. 07—JA—233
) 07—JA—234
) 07—JA—235
) 07—JA—236
) 07—JA—237
)
(The People of the State of Illinois, ) Honorable
Petitioner-Appellee, v. Nicole H., ) Patrick L. Heaslip,
Respondent-Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Hutchinson and Schostok concurred in the judgment and opinion.
OPINION
Respondent, Nicole H., appeals from the trial court’s order terminating her parental rights to
her minor children Quadaysha C., Bobby P., Zarriea B., and Zyliss H. We reverse and remand.
This case involves 5 of Nicole’s 10 children. Quadaysha, Bobby, Zarriea, Zyliss, and Jarrell
H. (who is not a subject of this appeal) were under the guardianship of Nicole’s sister, Denise. On
September 7, 2007, the State filed petitions alleging that Quadaysha and Jarrell were abused and
neglected minors because Denise inflicted excessive corporal punishment upon them. The State
alleged that Bobby, Zarriea, and Zyliss were neglected because of the injurious environment caused
by the excessive punishment. The court appointed a “Conflicts I” attorney for Nicole and appointed
No. 2—10—1105
the office of the public defender as guardian ad litem (GAL) for the children. The children were
placed in shelter care, and the Department of Children and Family Services (DCFS) was granted
temporary custody and guardianship. On the next court date, the trial court appointed the Court
Appointed Special Advocate (CASA) as GAL for the children and appointed the office of the public
defender as counsel for CASA.
After a trial, which Nicole did not attend because she had just given birth to another child, the
trial court found that Quadaysha and Jarrell were abused minors and that the other three children
were neglected. The case was continued to January 9, 2008, for a dispositional hearing. Nicole failed
to appear for the dispositional hearing. When the court asked everyone in the courtroom to identify
himself or herself, Assistant Public Defender Kristin Anderson stated that she was “in for Rob
Simmons on behalf of CASA.” Both CASA and Catholic Charities filed reports with the court and
included recommendations for the dispositions. Both recommended that guardianship and custody
be granted to DCFS; CASA also recommended, among other things, that Nicole have supervised
visitation with her children and that she be ordered to submit to random drug and alcohol testing.
Off-the-record conferences were held before the parties made their arguments and recommendations.
The State asked the court to take judicial notice of the reports and recommended that custody and
guardianship of the five children be granted to DCFS, with discretion to place them with a relative
or in traditional foster care. All parties would be required to cooperate with the service plan. When
asked by the court if she was “in agreement on behalf of the children,” Anderson replied, “Yes.” The
court then granted custody and guardianship to DCFS, with discretion to place the children with a
relative or in traditional foster care. The court entered “[g]eneral orders of cooperation.” The court
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also ordered the parents1 to remain drug- and alcohol-free, to submit to random drug drops and
Breathalyzer tests, to submit to all requested assessments, and to follow up with any recommended
treatments.
Beginning with the first permanency hearing, held on July 8, 2008, Anderson, who had
appeared on behalf of CASA at the dispositional hearing, appeared on behalf of Nicole. This
representation lasted through March 12, 2010, by which time the State had filed petitions to terminate
Nicole’s parental rights. Another appointed attorney appeared on Nicole’s behalf during the hearing
on the petitions. The trial court subsequently found Nicole to be an unfit parent and concluded that
it was in the best interests of the children, except for Jarrell, that Nicole’s parental rights be
terminated. The permanency goal for Quadaysha, Bobby, Zarriea, and Zyliss was then changed to
adoption. This appeal followed.
Nicole first contends that she received inadequate assistance of counsel because Anderson
represented both her and CASA, the children’s GAL, during the course of these proceedings.
This court has held that a per se conflict of interest requiring the reversal of a termination of
parental rights arose when the same attorney appeared on behalf of both the respondent mother and
the minor at different times during the same proceedings. See In re Paul L.F., No. 2—10—0749 (Ill.
App. Mar. 24, 2011); In re Darius G., 406 Ill. App. 3d 727 (2010). In Darius G., we propounded
a “clear rule” that “the same attorney may not during the proceedings appear on behalf of different
clients.” (Emphases in original.) Darius G., 406 Ill. App. 3d at 738. In such a situation, “[p]rejudice
is presumed and respondent need not demonstrate that the conflict contributed to the judgments
entered against her.” Darius G., 406 Ill. App. 3d at 739. The application of such a rule will “inform
1
None of the childrens’ fathers is involved in this appeal.
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the trial court not to accept an appearance from an attorney who already, at some point during the
proceedings, appeared on behalf of another party.” Darius G., 406 Ill. App. 3d at 738. Both the trial
court and appointed counsel in juvenile proceedings must remain aware of the parties’ representation;
the termination of parental rights is a drastic measure, and the strict procedural requirements adopted
to regulate such proceedings “are paramount.” Darius G., 406 Ill. App. 3d at 739. The per se rule,
if properly followed, prevents attorneys from being placed in the untenable and potentially unethical
position of having their loyalties divided by representing multiple parties in the same proceedings.
Paul L.F., slip op. at 7.
The State argues that Darius G. also propounded an exception to the per se rule that should
apply in this case if this court follows the precedents set in Darius G. and Paul L.F. In Darius G.,
this court noted:
“The State asserts that Herrmann [the conflicted attorney] ‘stepped up’ at these
proceedings, suggesting that he merely appeared to assist his colleagues who could not be
present. To the contrary, Herrmann appeared on behalf of his clients. He did not, for
example, represent to the court that respondent’s (or Darius’s) counsel was unavailable and
that a continuance was needed. This distinction is critical because, in the latter example,
Herrmann would be representing his office or his colleague, not a client. Accordingly, there
would be no conflict.” (Emphasis in original.) Darius G., 406 Ill. App. 3d at 738 n.4.
The State asserts that, because Anderson stated that she was “in for” her colleague, there was no per
se conflict. We first note that, when Anderson was called upon to identify herself at the dispositional
hearing, her full answer was, “Kristin Anderson in for Rob Simmons on behalf of CASA.” (Emphasis
added.) Second, Anderson did not merely ask for a continuance because Simmons was unavailable,
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as in the hypothetical in Darius G.; she agreed “on behalf of the children” with the proposed
dispositions of the abuse and neglect petitions. The State’s attempt to apply the Darius G.
“exception” is disingenuous, improperly applies the quoted text to the record in this case, and is not
well taken.
The State further attempts to distinguish Darius G., but to no avail. In Darius G., the
conflicted attorney appeared first on the respondent’s behalf and later on the minor’s behalf; this court
noted:
“We consider that off-the-record confidential communications between respondent
and Herrmann likely occurred, that, in those conversations, Herrmann likely learned
information that he would not otherwise have learned, and that he might have, in his
interactions with respondent, formed an opinion of her that he would not otherwise have had
the opportunity to formulate. Certainly, it is reasonable to presume that, as respondent’s
counsel, Herrmann at a minimum interviewed her and reviewed her file. As such, if Herrmann
concluded from this confidentially gleaned information that respondent was unfit or that her
rights should be terminated, he was subsequently placed in the unique position of being able
to use this information when he represented Darius. In contrast, if Herrmann represented only
respondent, his obligation would have been to advocate only for respondent’s interests. Thus,
he would not have had the opportunity to use confidential information against respondent, his
first client, even if unintentionally.” (Emphasis in original.) Darius G., 406 Ill. App. 3d at
735-36.
The State notes that the record clearly reflects that Nicole was not present at the dispositional hearing
and does not reflect whether the minors were present. According to the State, it is important that
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Anderson never saw Nicole, and presumably could not form an opinion of her, before she began to
represent her. This argument misses the point; that portion of the Darius G. analysis was necessary
because the attorney in that case represented the respondent before he represented the minor. Where,
as here, the attorney represents the minor first, “possibly forming the opinion that it would be in the
child’s best interest for the respondent’s rights to be terminated,” the “conflict and resulting prejudice
are clear.” Darius G., 406 Ill. App. 3d at 735.
The State also points out that the “record reflects nothing less than zealous advocacy by
Anderson on respondent’s behalf.” Again, this argument misses the point. The per se nature of the
rule requires no proof of prejudice. Darius G., 406 Ill. App. 3d at 736; see also In re S.G., 347 Ill.
App. 3d 476, 481 (2004). “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 se conflict-of-interest rule in this case.” S.G., 347 Ill.
App. 3d at 481. Thus, while the record may show numerous examples of Anderson’s zealous and
capable advocacy on Nicole’s behalf, such examples do not overcome the presumed prejudice that
arises from the divided loyalties entailed by representing more than one party in a proceeding, and
they are not relevant to our analysis.
The State proposes an alternative process to follow when an attorney has represented multiple
parties in a juvenile proceeding, including, at most, a “limited remand” with the burden on the
respondent to show “ ‘whether the risk of a conflict colored the [parties’] representation.’ ” See
People v. Hardin, 217 Ill. 2d 289, 302 (2005). However, we have concluded that applying the per
se rule is the simple way to resolve this recurring problem, and it should be followed. Paul L.F., slip
op. at 7. Therefore, we conclude that the clear rule of Darius G. applies here. Prejudice to Nicole
is presumed in Anderson’s prior representation of the children’s GAL, and we reverse the judgments
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of the trial court finding her to be an unfit parent and terminating her parental rights and remand the
cause for further proceedings.
Because of our disposition of this issue, we need not consider respondent’s other contentions.
Reversed and remanded.
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