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In Re Ross

JUNE 4, 1975.

IN RE ELAINE ROSS ET AL., MINORS.


APPEAL from the Circuit Court of Will County; the Hon. ANGELO F. PISTILLI, Judge, presiding.

PER CURIAM (PANEL CONSISTING OF ALLOY, P.J., STENGEL, J., AND SCOTT, J.):

This is an appeal of Elaine Ross and Susan Ross, minors, from a custody decision of the Juvenile Division of the Circuit Court of Will County by which it was determined that the minors, Elaine Ross and Susan Ross, should be returned to their natural parents. The basis of the decision was founded upon the finding that the children had been physically and emotionally neglected while in the care of their foster parents.

On appeal in this court, it is contended that the order of the trial court erred in not finding that it was in the best interests of the minors that custody be awarded to the foster parents. This cause has aroused considerable interest by reason of the fact that the children concerned had been in the foster home of Mr. and Mrs. Jack Reeves of Park Forest for a period of 6 1/2 years. The appeal challenges the order of the Will County Circuit Court which required the Department of Children and Family Services (hereinafter referred to as "Department") to remove Elaine Ross and Susan Ross from their foster parents (the Reeves) and take all necessary steps to accommodate the return of the children to their natural parents. The two girls involved are 14 and 12 1/2 years old respectively. The Department is guardian for the children and it also challenges the order of the Circuit Court of Will County.

A review of the salient facts is essential in an understanding of the issues before us. The record discloses that Elaine and Susan Ross were first removed from the home of their parents in 1966, following a finding of neglect. They were placed in the foster home of Mr. and Mrs. Jack Reeves, in Park Forest, where they spent the next 6 1/2 years, as we have indicated. The younger sisters, LuAnne and Gail, lived with Mr. and Mrs. Reeves for much of this time also, while their older sisters, Debbie and JoAnne, spent some time in other foster homes.

In early 1972, the Rosses were found to be sufficiently rehabilitated to provide a proper environment for their children. All of the girls, except Elaine and Susan, were returned to the Ross home shortly thereafter. Elaine and Susan, however, continued to manifest considerable hostility toward their natural parents and expressed the desire to remain with the Reeves family.

In March of 1973, Elaine and Susan were placed in the Guardian Angel Home for the purpose of beginning the transition for return to the Ross home. Following several months of separation from the Reeves, however, the girls still remained adamant about not returning to their natural parents.

In the order of the circuit court (which is challenged by this appeal) which was entered on November 21, 1973, the trial court found that Mrs. Reeves had physically and emotionally neglected the children and psychologically abused them. The trial court found that it was in the best interest of the girls to be kept away from their foster home and to be returned to the Rosses as soon as practicable. The trial judge noted that due to what he termed "governmental neglect" on part of the Department, the children would be required to remain in a neutral environment such as the Guardian Angel Home, in order to gradually make the transfer from the Reeves home to the Rosses.

While the appeal generally questions all of the findings of the court and the propriety of the court order, it particularly attacks the trial court's use of in camera interviews with the children without revealing the substance thereof for the record. More specific facts of the case relating to these issues will be referred to hereafter.

Initially we are confronted with a new issue which has risen in the course of this appeal. The trial court determined in 1972 that the interests of the Department as guardian of the children were in conflict with the interests of the minors themselves, and accordingly appointed a guardian ad litem to represent the girls, as provided by statute. (Ill. Rev. Stat. 1973, ch. 37, § 704-5(2)). Notice of appeal on behalf of the children, however, was filed by Ms. Barbara Caulfield who was not previously the attorney of record in this cause. The Will County State's attorney, appellee in this cause, sought to dismiss the appeal on the ground that Professor Caulfield was not authorized to represent the minors since they already had a guardian ad litem. We directed that the motion to dismiss be taken with the case for consideration and ordered the parties to brief the issue and argue it with the rest of the case. We also granted leave to the American Civil Liberties Union to file a brief on this issue as amicus curiae. Such brief was filed in support of the right of the minors to engage counsel to appeal on behalf of the children. The Attorney General of the State of Illinois, also appears on behalf of the Department and in support of a contention that custody should be awarded to the Reeves as foster parents, in the best interests of the minors.

The motion of the State's attorney points out that Elaine and Susan Ross have been wards of the court since May 1967 under the guardianship of the Department. It is also noted that a guardian ad litem was appointed by the court on June 8, 1972, to represent the minors in the ensuing custody hearings. The motion states that the guardian ad litem has neither withdrawn nor been removed by the court, and concludes that the children, as wards of the court, lack the capacity to effectively dismiss their court appointed attorney and retain their own counsel for the purposes of appeal. On behalf of the children, Professor Caulfield responds that the children contacted her as early as October 1973, and that the Department itself officially retained her on behalf of the two girls. She points out that the Department as guardian of the children has authority to supervise their legal affairs. (Ill. Rev. Stat. 1973, ch. 37, § 701-11(a).) In the alternative she contends that the minors have a constitutional right to counsel of their own choice and have a right to contract for counsel in this State. She also states that Elaine and Susan Ross have sufficient intellectual capacity to act in selecting their own attorney. On the basis of the record, we find it unnecessary to decide the larger issue of whether a minor has an absolute constitutional right to counsel of a minor's own choice in a dispositional hearing under the Illinois Juvenile Court Act, where it is obvious that Ms. Caulfield properly represents the girls on appeal by virtue of her engagement to do so by the Department.

• 1 The "right to counsel" in a constitutional sense refers to the right granted by the Sixth Amendment of the United States Constitution and by the Illinois Constitution (Ill. Const. art. I, § 8 (1970)), to an accused in a criminal proceeding. We realize it is not clear to what extent this right to counsel, generally speaking, would apply in a proceeding regarding custody of dependent or neglected children under the Juvenile Court Act. We note that the right to counsel has been found applicable in delinquency proceedings (In re Gault (1967), 387 U.S. 1, 41, 18 L.Ed.2d 527, 554, 87 S.Ct. 1428). We realize, however, that delinquency cases under the Illinois Act are akin to criminal cases, while dependency and neglect cases are civil in nature. (Cf. Ill. Rev. Stat. 1973, ch. 37, § 704-6 (burden of proof)). That there are similarities has been noted in many cases such as the observation of Judge Reeves in Brown v. Chastain (5th Cir. 1969), 416 F.2d 1012, 1027, where he states in his dissenting opinion:

"A change in parental bondage during the tender years is hardly less upsetting of one's pattern of life than is the denomination and possible commitment of a child as a `juvenile delinquent.'"

• 2 We, therefore, invoke the well-established principle that a oase will not be decided on a constitutional basis if there is some other ground upon which the case may be disposed of. (Ashwander v. Tennessee Valley Authority (1936), 297 U.S. 288, 347, 80 L.Ed. 688, 711, 56 S.Ct. 466.) The principle has also been recognized by the Illinois Supreme Court in determining its jurisdiction over alleged constitutional issues. (Cf. Moran v. Zoning Board of Appeals (1957), 11 Ill.2d 374, 377, 143 N.E.2d 16.) We believe that the principle is properly applicable here. This narrows the question before us to a consideration of a situation where the court enters an order in a dispositional hearing which runs contrary to the desires of the minors, and the guardian ad litem appointed for them does not prosecute the appeal, are the children then unable to prosecute the appeal in any manner through employment of an attorney or through the good offices of the Department as guardian? Obviously, the children should be afforded an opportunity to appeal. The minor, in a dispositional hearing, is guaranteed the right to counsel and the right to appeal (Ill. Rev. Stat. 1973, ch. 37, §§ 701-20(1)(3)). Generally these rights should be enforced by the guardian of the child, which in this case is the Department acting under its authority to supervise the child's legal affairs (§ 701-11(a)).

• 3 In the situation in the case before us, according to the affidavit of the legal counsel for the Department, such counsel conferred with the guardian ad litem, after the entry of the court order, and the guardian ad litem indicated he did not intend to appeal nor did he believe he was authorized to proceed beyond the trial court level. It is also alleged, in the answer to the motion of the State's attorney, that the court did not inform the minors of their right to appeal the order. The Department also retained Ms. Caulfield to represent the children even though the children had originally contacted her to prosecute the appeal. It is obvious that the Department could properly retain counsel of the children's choice to prosecute the appeal, when the guardian ad litem indicated he would not appeal the order. If, it could be said, that the better procedure would be for the Department to go before the court for approval before so proceeding, we do not believe such procedure was indispensable under the facts in this case and such failure should not now prejudice the interests of the minors. We also note that the possible conflict of interest, which at one time existed, does not appear to exist at this time since the Department has changed its ...


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