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01/19/96 A.P. & N.C. v. ANNE M. COOLEY

January 19, 1996

IN THE INTEREST OF A.P. & N.C., ALLEGED TO BE NEGLECTED MINORS, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ANNE M. COOLEY, RESPONDENT-APPELLANT.



Appeal from Circuit Court of McLean County. No. 92J119. Honorable William D. DeCardy, Judge Presiding.

Released for Publication February 22, 1996.

Honorable Robert W. Cook, P.j., Honorable Robert J. Steigmann, J., Honorable James A. Knecht, J., Concurring, Presiding Justice Cook delivered the opinion of the court:

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

On July 2, 1992, the McLean County State's Attorney filed a petition for adjudication of wardship, alleging that A.P. (born July 3, 1985) and N.C. (born September 4, 1987) were neglected minors. At the shelter-care hearing on that date, Assistant Public Defender Tracy Smith was appointed to represent the petitioner, Anne Cooley, the minors' mother. Assistant Public Defender Brian Goldrick was appointed guardian ad litem (GAL) for the children. The adjudicatory hearing was held August 18, 1992. At that hearing, Anne admitted that she had unresolved drug and alcohol problems and that the children had been neglected in that she had allowed contact between the children and Dan Cooley (N.C.'s natural father) despite being advised not to by the Department of Children and Family Services (DCFS). Dan Cooley had been accused of committing physical and sexual abuse upon the children.

The dispositional hearing was conducted September 23, 1992. At that hearing, it was determined the children would be temporarily placed in foster care with the ultimate goal of returning them to their parents. DCFS developed a client-service plan that required Anne to (1) secure stable income, either through a job or through public aid; (2) establish a stable home; (3) seek a drug and alcohol evaluation and follow up with recommended treatment; (4) seek personal as well as marital counseling; (5) complete parenting classes; (6) seek a psychological assessment; and (7) maintain weekly visits with the children.

On September 2, 1994, the State filed a petition to terminate parental rights. The parties were represented by the same attorneys who had represented them at the dispositional hearing. Anne, through one assistant public defender, opposed the termination of her parental rights. Another assistant public defender, acting as GAL for the minors, recommended the termination of parental rights. Both attorneys are full-time assistant public defenders in McLean County, and both maintain offices in the office of the McLean County public defender.

During the course of the previous two years, Anne failed to establish a stable home for the children. During that time, she lived in motels, shelters, and with friends and family. She had also continued to live with her husband, who had been arrested on several occasions for beating her. The Cooleys' DCFS caseworker, Terri Gerber, gave Anne an unsatisfactory rating on establishing a stable home. With regard to employment, Anne had worked as a waitress from March until November 1993, when she quit due to family and drug problems. Anne then claims to have worked from November 1993 until November 1994 cleaning houses with a friend; however, this information was not documented with DCFS. One week before the hearing on the petition to terminate, Anne started work at a factory in Bloomington. Anne was also given an unsatisfactory rating in her progress on achieving her employment goal.

In March 1993, Anne sought a drug and alcohol evaluation. It was recommended that she follow up with outpatient treatment. Anne failed to participate in that program, claiming it would have conflicted with her job and that she needed the money to live. In February or March 1994, Anne again sought an evaluation. This time, however, she failed to complete the exam. Anne once more sought treatment, immediately prior to the hearing on the petition to terminate. She underwent a 72-hour detoxification program and was recommended for residential treatment, but was told all beds were full. Again Anne received an unsatisfactory rating in regard to her progress on drug treatment.

The record is not clear when Anne and her husband began counseling. The record indicates the Cooleys were counseled at the Family Counseling Center (Center), and that the counseling began sometime prior to June 1993, and was terminated at the beginning of December 1993 for the Cooleys' failure to attend scheduled appointments. During that time, Anne attended only four of the approximately 24 scheduled appointments. In January 1994, with the assistance of DCFS, the Cooleys were again allowed to seek counseling at the Center, but two months later, the counseling was terminated due to the Cooleys' failure to notify the Center when they needed to cancel appointments. Anne was given an unsatisfactory rating in her progress on personal counseling.

The record is silent on the frequency of Anne's visits with the children prior to August 1993, but indicates that between August 1993 and February 1994, she visited with the children one to two times a month. From February to June 1994, Anne missed more visits than she attended, and missed one month entirely. Again, Anne was given an unsatisfactory rating on visitation. Anne never did complete either a psychological assessment or a parenting class.

During closing arguments, the assistant public defender representing the minors argued in favor of terminating Anne's parental rights. The court found that the State had proved the allegation of the petition as to Anne and ordered her parental rights terminated. She raises two issues on appeal: (1) whether the trial court committed reversible error in appointing one assistant public defender to represent a parent and another to represent the children, where the two took adverse positions to one another; and (2) whether the trial court's order finding her to be an unfit parent and terminating her parental rights was against the manifest weight of the evidence.

I. CONFLICT OF INTEREST

Rule 1.10 of the Rules of Professional Conduct provides that no lawyer associated with a firm shall represent a client when another lawyer associated with that firm would be prohibited from doing so. (134 Ill. 2d R. 1.10.) The individual attorneys who comprise the staff of a public defender are not members of a "firm" for purposes of Rule 1.10. ( People v. Robinson (1979), 79 Ill. 2d 147, 155-56, 402 N.E.2d 157, 161, 37 Ill. Dec. 267.) However, although there is no per se rule that a conflict on the part of one lawyer on the public defender's staff will disqualify other lawyers associated with that office, the facts of a particular case may show an actual conflict. ( Robinson, 79 Ill. 2d at 168, 402 N.E.2d at 167.) In one of the three consolidated cases disposed of in Robinson, Bogay and Ishman were represented at separate trials by different members of the public defender's staff. Ishman complained his attorney failed to offer testimony that Bogay was the "'triggerman,'" in order not to prejudice Bogay's sentencing. ( Robinson, 79 Ill. 2d at 169-70, 402 N.E.2d at 168.) The court held such evidence was irrelevant to Ishman's defense that he was not a participant, and in fact might have been detrimental to that defense. The court held that to prevail on a claim of ineffective assistance of counsel due to joint representation a defendant must show "'an actual conflict of interest manifested at trial'" ( Robinson, 79 Ill. 2d at 169, 402 N.E.2d at 168, quoting People v. Berland (1978), 74 Ill. 2d 286, ...


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