2012 IL App (2d) 111079
Ill. App. Ct.2012Background
- Neglect petition filed in 2009 against Anthony F. and Crista E. alleging minor A.F. was neglected; minor adjudicated a ward of the court and DCFS was given guardianship.
- Two different conflicts-divisions attorneys represented the parents: Sanchez represented Crista E.; respondent initially ordered to obtain private counsel.
- Respondent failed to appear at a March 16, 2009 hearing; Crista E. stipulated to neglect on April 9, 2009, resulting in ward status and a no-contact order.
- In May 2010 Crista E. and her husband were shot; emergency modification petition filed; Sanchez’s appointment vacated; Hermann from the Conflicts III division appointed for respondent.
- December 20, 2010 permanency review: respondent’s attorney Zalud stood in for Hermann; minor lived with maternal grandmother Robin W.; respondent was incarcerated.
- February 1, 2011 State filed three-count petition to terminate parental rights; September 30, 2011 trial occurred; continuance denied; trial court found unfitness and ultimately best interests favored termination; adoption as permanency goal was set.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Conflict of interest per se in representation | Sanchez and Zalud from same conflicts division; conflict created. | Not a per se conflict; distinguishable from Darius G. and Quadaysha C. | No per se conflict; only actual conflict claim remains. |
| Discretionary denial of continuance | Continuance denied unjustly, hindering preparation. | Trial court acted within discretion given prior continuances. | No abuse of discretion; no prejudice shown. |
| Unfitness finding supported by evidence | Respondent showed some visitation and efforts. | Incumbent incarceration and lack of contact undermined fitness. | Unfitness finding not against manifest weight of the evidence. |
| Best interests termination supported | Need for stability and permanency; foster care progress favorable. | Termination in minor’s best interest affirmed. |
Key Cases Cited
- In re Darius G., 406 Ill. App. 3d 727 (2010) (per se conflict when same attorney represents respondent and child in termination)
- In re Quadaysha C., 409 Ill. App. 3d 1020 (2011) (per se conflict where same attorney represents multiple conflicting parties)
- In re Paul L.F., 408 Ill. App. 3d 862 (2011) (discussed per se conflict and leading to debate on finality vs. prejudice)
- In re S.G., 347 Ill. App. 3d 476 (2004) (per se conflict framework in juvenile proceedings)
- Hernandez, 231 Ill. 2d 134 (2008) (per se conflict justification and potential prejudice)
- In re Tamera W., 2012 IL App (2d) 111131 (2012) (no per se conflict where conflicts division representation across noncontemporaneous proceedings)