Appeal from the Circuit Court of Winnebago County. No. 05-JA-352 Honorable Patrick L. Heaslip, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion.
Justice Hudson dissented, with opinion.
Respondent, Edith F., appeals from the trial court's order terminating her parental rights to her minor son, Paul L. F. We reverse and remand.
Paul L. F.. was born on April 6, 2005. On December 5, 2005, the State filed a three-count petition alleging that Paul was a neglected minor pursuant to section 2-3 of the Juvenile Court Act of 1987 (705 ILCS 405/2-3 (West 2004)), in that: (1) he was born with cocaine in his urine, blood, or meconium (705 ILCS 405/2-3(1)(c) (West 2004)); (2) his environment was injurious to his welfare because respondent had a substance abuse problem that prevented her from properly parenting him (705 ILCS 405/2-3(1)(b) (West 2004)); and (3) his environment was injurious to his welfare because his father, Paul F., Sr.,*fn1 had a substance abuse problem that prevented him from properly parenting him (705 ILCS 405/2-3(1)(b) (West 2004)). Respondent, for whom counsel was appointed, waived her right to a shelter care hearing, and the court granted temporary custody and guardianship of Paul to the Department of Children and Family Services (DCFS), with discretion to place him with a relative or in traditional foster care. Respondent subsequently stipulated to count I of the petition, and the State dismissed the remaining counts. The court adjudicated Paul a neglected minor and made him a ward of the court. Respondent was ordered to cooperate with DCFS and to remain drug-free. The initial permanency goal of short-term care with a return home in less than one year was established in September 2006.
There followed a series of seven more permanency reviews and various other hearings and court dates. Respondent was represented by six different attorneys during this period. On November 23, 2009, the State filed a five-count petition for termination of parental rights and for power to consent to adoption. From that point, one of the previous attorneys and four new attorneys represented respondent. After a hearing on April 8, the trial court found respondent unfit pursuant to four of the five counts. On June 23, following a hearing, the trial court found that it was in Paul's best interests that respondent's parental rights be terminated. This appeal followed.
Respondent first contends that she was denied effective assistance of counsel because two of her appointed counsel also represented other parties at various times in these proceedings. Respondent was represented by 10 different attorneys throughout the course of the proceedings in the trial court. Matthew Jura appeared on behalf of respondent on April 13, 2010, after previously appearing on behalf of Paul F., Sr., five times. Shannon Reeves-Rich appeared on respondent's behalf at an April 20, 2010, permanency hearing after having represented both Paul F., Sr., and Paul previously. Both Jura and Reeves-Rich made their appearances for respondent after the court had found respondent to be an unfit parent.
The State responds that Jura's representation of respondent was de minimis; indeed, Jura's only action on April 13 was to ask for a continuance "for a couple of reasons":
"[M]y understanding is [respondent] is in a jury trial over in Courtroom D this morning, um, which is why she's not here. And I also represented the father on this case, [Paul F., Sr.], for some time; so I have a conflict on this case. I don't know if there is anybody else available to come down here this morning.
I tried to do that yesterday, but to no avail."
However, the State fails to address the appearance of Reeves-Rich on respondent's behalf at a permanency hearing during which respondent and a caseworker testified.
This court recently held that a per se conflict of interest, requiring 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. In re Darius G., No. 2-10-0685
(Ill. App. Dec. 15, 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., slip op. at 15-16. 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., slip op. at 16. The application of such a rule will "inform 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., slip op. at 16. Both the trial court and counsel appointed in juvenile proceedings must remain aware of the parties' representation; the termination of parental rights ...