2020 IL App (3d) 190603
Ill. App. Ct.2020Background
- 2013: State filed neglect petition as to Br. M.; respondent (Wendy M.) was represented by public defender and Lea Drell was appointed guardian ad litem (GAL) for the child. Court found neglect based on respondent's incarceration and substance abuse.
- January 2014: Court adjudicated Br. M. neglected, found respondent unfit, and made the child a ward of the court; respondent’s fitness was later restored in August 2014 and DCFS custody terminated.
- 2016: State filed new supplemental petitions alleging neglect of Br. M. and of his half-brother Bo. M.; CASA was appointed GAL for both children and both children were again placed in DCFS custody.
- December 2017: State filed petitions to terminate parental rights; Drell later entered appearance as respondent’s private counsel in March 2018 (having previously served as GAL for Br. M. in 2013–2014).
- October 2018 fitness hearing: trial court found respondent unfit by clear and convincing evidence; September 2019 best-interest hearing: court terminated respondent’s parental rights to both children and awarded DCFS custody with power to consent to adoption.
- Appellate disposition: Third District reverses and remands, holding Drell’s prior role as GAL for Br. M. created a per se conflict of interest when she later represented respondent in the termination proceedings; dissent argued no contemporaneous conflict and private retention changes analysis.
Issues
| Issue | Plaintiff's (People) Argument | Defendant's (Wendy M.) Argument | Held |
|---|---|---|---|
| Whether counsel's prior service as GAL for Br. M. created a per se conflict when counsel later represented respondent in termination proceedings | No per se conflict; prior GAL role was not disqualifying / not contemporaneous and respondent chose private counsel | Per se conflict exists because Drell previously served as GAL for Br. M., creating divided loyalties and presumed prejudice | Reversed: per se conflict applied; counsel’s prior GAL role presumed to prejudice representation and case remanded for new proceedings |
| Whether respondent was properly admonished of right to appeal a dispositional order | State: trial court complied with required admonishments or any failure was harmless | Wendy: trial court failed to admonish of right to appeal dispositional order (claimed error) | Not reached (court reversed on conflict ground; remaining issues left unaddressed) |
| Whether fitness and best-interest findings were against the manifest weight of the evidence | State: evidence supported unfitness and that termination was in children’s best interests | Wendy: findings were unsupported and alleged procedural defects (including counsel conflict) undermined those findings | Not reached on merits (resolution of conflict claim required new proceedings) |
Key Cases Cited
- In re S.G., 347 Ill. App. 3d 476 (2004) (applies per se conflict rule where counsel previously served as GAL for children)
- In re Darius G., 406 Ill. App. 3d 727 (2010) (same-attorney representation for different clients in juvenile proceedings disallowed)
- In re D.F., 208 Ill. 2d 223 (2003) (forfeiture is a limitation on parties; courts may relax forfeiture for plain error)
- In re D.B., 246 Ill. App. 3d 484 (1993) (no per se conflict where prior GAL role was disclosed and client continued representation)
- People v. Hernandez, 231 Ill. 2d 134 (2008) (discusses per se conflict doctrine origins from criminal law)
- People v. Flores, 128 Ill. 2d 66 (1989) (contemporaneous representation by counsel of conflicting clients relevant to per se rule)
- In re Quadaysha C., 409 Ill. App. 3d 1020 (2011) (conflict-of-interest principles applied in juvenile context)
- In re Lackey, 71 Ill. App. 3d 705 (1979) (parent’s right to counsel includes right to undivided loyalty)