Appeal from the Circuit Court of Winnebago County. No. 09-JA-34 Honorable Mary Linn Green, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justice Bowman concurred in the judgment and opinion.
Presiding Justice Jorgensen dissented, with opinion.
¶ 1 In 2009, the State filed a neglect petition against respondents, Anthony F. and Crista E., alleging that A.F. (the minor) was neglected. During the proceedings, both respondent and Crista E. were represented by different attorneys from the same conflicts division of the public defender's office. The trial court found the minor neglected and adjudicated her a ward of the court and placed her in the guardianship of the Department of Children and Family Services (the Department). Thereafter, the trial court found respondent unfit and terminated his parental rights. Respondent now appeals, contending that: (1) he was denied the effective assistance of counsel due to a per se conflict based on attorneys from the same conflicts division representing him and Crista E.; (2) the trial court abused its discretion by denying his motion for a continuance of the termination hearing; (3) the trial court's finding of unfitness was against the manifest weight of the evidence; and (4) the trial court's finding that it was in the minor's best interest to terminate respondent's parental rights was against the manifest weight of the evidence. We affirm.
¶ 3 The minor was born on November 14, 2008, and is the biological child of respondent and Crista E. Respondent and Crista E. were not married to each other. On January 26, 2009, the State brought a neglect petition alleging that the minor's environment was injurious as a result of Crista E. allowing contact between the minor and respondent, in violation of a previously established safety plan. Brandon Sanchez, an attorney from the Conflicts II division of the public defender's office, represented Crista E. The trial court ordered respondent to retain private counsel and submit to a paternity test.
¶ 4 The trial court conducted the next hearing on March 16, 2009, but respondent failed to appear. On April 9, 2009, Crista E. stipulated to the allegation of neglect, and, as a result, the minor was adjudicated neglected and made a ward of the court. The trial court entered an order providing that respondent was not permitted to have contact with the minor until he appeared in court.
¶ 5 On May 20, 2009, the trial court heard testimony from Rachel Kocher, a caseworker with the Children's Home and Aid Society, regarding a protective service plan. Kocher testified that Crista
E. and respondent had an "on and off" relationship. Kocher testified that she could not meet with respondent because he was uncooperative. Kocher testified that, after respondent failed a number of drug tests, he was court ordered in July 2008 to comply with a safety plan or move out of Crista
E.'s house. Kocher testified that, after respondent failed another drug test, it was ordered that he could have only supervised visits with the minor. Kocher testified that respondent subsequently passed a substance abuse assessment but failed a parenting course due to lack of attendance. On June 2, 2009, the trial court ordered that Crista E. should retain guardianship and custody of the minor.
¶ 6 On May 10, 2010, Crista E. and her husband were shot to death in their home. On May 11, 2010, the State petitioned the trial court for an emergency modification of guardianship. Sanchez's appointment to represent Crista E. was vacated. The trial court appointed attorney Michael Hermann from the Conflicts III division of the public defender's office to represent respondent, who appeared in court for the first time. Respondent consented to the minor's guardianship and custody with the State, and the trial court lifted the no-contact order with respect to respondent.
¶ 7 At a December 20, 2010, permanency review hearing, attorney Amy Zalud from the Conflicts II division of the public defender's office advised the trial court that she was standing in for Hermann on behalf of respondent. During the hearing, Kocher testified that the minor was living with Robin
W., her maternal grandmother. Kocher testified that the minor had "adjusted very well" to her living environment and that she was developmentally on track. Kocher testified that respondent was incarcerated and that he had not visited with the minor. Zalud cross-examined Kocher. Robin W. testified that she was the minor's foster mother and that she took good care of her. The trial court found that it was in the best interest of the minor that the "permanency goal be changed to that of substitute care pending court determination on termination of parental rights."
¶ 8 At the conclusion of the hearing, Zalud asked the trial court to vacate Hermann's appointment and appoint her as respondent's public defender. Zalud advised the trial court that respondent had requested that she represent him. After noting that a Conflicts II attorney had previously represented Crista E., the trial court denied the request.
¶ 9 On February 1, 2011, the State filed a three-count petition for termination of parental rights and power to consent to adoption. Count I alleged that respondent failed to maintain a reasonable degree of interest, concern, or responsibility as to the minor's welfare. Count II alleged that respondent failed to protect the minor from conditions within her environment that were injurious to her welfare. Count III alleged that respondent was depraved.
¶ 10 On September 30, 2011, trial on the State's petition commenced. Respondent's counsel requested a continuance, claiming that "[respondent] does not feel that we're ready, we need to speak further. Also, [respondent] has left notes and things that he has put together for this in his cell, so we're asking that the matter be continued." The trial court denied the motion, noting that the matter had already been continued "numerous times."
¶ 11 Kocher testified at trial that respondent had been incarcerated since May 13, 2010. Kocher testified that she had received two letters from respondent, on approximately August 31, 2009, and April 12, 2011, respectively. Kocher testified that she had not received any other letters or phone calls from respondent since his incarceration. Kocher testified that, to her knowledge, respondent had not otherwise attempted to contact her. Kocher testified that she had authority to make decisions allowing visitation for incarcerated parents but that respondent had not requested visitation with the minor. Kocher testified that respondent had not explained to her why he had not requested visitation. Kocher testified that respondent had not asked for any information regarding the minor's welfare, including doctor's visits.
¶ 12 Kocher further testified that she met with respondent before the minor's birth. After the minor was born, Kocher made "several phone calls" to respondent, but respondent refused to communicate with her. Kocher testified that respondent had not requested visitation for more than 18 months and that, to her knowledge, respondent had not provided any financial support for the minor. With respect to having the minor returned to respondent's custody, Kocher testified that she wanted respondent to comply with drug screening, get a substance abuse assessment, provide a stable home, and provide the minor with basic needs, including being involved with medical and school appointments. Kocher testified that she was not "any closer" to placing the minor back with respondent because respondent was still incarcerated, the minor had not visited respondent in "a long time," he had not completed substance abuse treatment, and, although respondent attended Narcotics Anonymous meetings, "that doesn't *** qualify for the treatment that he may need." Kocher also emphasized that respondent would not be able to provide the minor with a stable home, attend medical appointments, or make sure that the minor was well cared for during his incarceration. Kocher testified that she visited respondent in prison in May 2011 and advised him that the minor was doing well in foster care, but that respondent did not request that she visit him again.
¶ 13 During cross-examination from respondent's attorney, Kocher admitted that when she met with respondent in May 2011, she did not specifically ask respondent whether he wanted the minor brought to the prison to visit him. Kocher further acknowledged that she did not explain to respondent his options for visiting with the minor while he was incarcerated, such as phone calls.
¶ 14 Prior to resting, the State asked the trial court to take judicial notice of the previous court orders in the case, including the temporary custody order from May 11, 2010. Respondent did not proffer evidence. After further argument, the trial court found that the State proved the allegations in counts I and II of the petition by clear and convincing evidence.
¶ 15 The trial court proceeded to the best-interest-of-the-minor phase of the proceedings. The State called Kocher as a witness. Kocher testified that the minor had been residing with Robin W. and her family since May 26, 2010. Kocher testified that when the minor was placed in foster care, she was "very emotionally unstable" from witnessing her mother being shot. Kocher testified that the minor was doing very well in the foster home and that "[h]er development was really good." Kocher testified that the foster parents were aware of the minor's background and would be able to provide counseling ...