In re PAUL L.F., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Edith F., Respondent-Appellant).
Second District No. 2-10-0749
Appellate Court of Illinois, Second District
March 24, 2011
408 Ill. App. 3d 862
Balancing the Factors
In deciding a forum non conveniens motion, the trial court “must balance the private and public interest [] factors.” Dawdy, 207 Ill. 2d at 172; Gridley, 217 Ill. 2d at 169-70; Vivas, 392 Ill. App. 3d at 663. The balancing should be done “without emphasizing any one factor.” Langenhorst, 219 Ill. 2d at 443; Gridley, 217 Ill. 2d at 169; Dawdy, 207 Ill. 2d at 180. “On review, the trial court‘s decision will be reversed only if *** the court abused its discretion in balancing the relevant factors.” Dawdy, 207 Ill. 2d at 176-77; Griffith, 136 Ill. 2d at 106.
In the case at bar, we find that the trial court did not abuse its discretion in balancing the relevant factors. First, Tim‘s choice of forum merited some deference, although he resides in both counties. Second, the private and public interest factors weighed strongly in favor of transfer. Langenhorst, 219 Ill. 2d at 433; Vivas, 392 Ill. App. 3d at 663.
CONCLUSION
For the foregoing reasons, we affirm the trial court‘s order granting respondent‘s motion to dismiss on forum non conveniens grounds. We find that the trial court did not abuse its discretion in finding that Du Page County was the more convenient forum.
Affirmed.
Tricia L. Smith, of Law Offices of John H. Maville, of Belvidere, for appel-
Joseph P. Bruscato, State‘s Attorney, of Rockford (Lawrence M. Bauer and Scott Jacobson, both of State‘s Attorneys Appellate Prosecutor‘s Office, of counsel), for the People.
JUSTICE MCLAREN delivered the judgment of the court, with opinion.
Justice Zenoff concurred in the judgment and opinion.
Justice Hudson dissented, with opinion.
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 (
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 at-
This case presents a scenario similar to, but even more convoluted than, that presented in Darius G.: 1 of respondent‘s 10 attorneys represented two other parties and another of her attorneys represented one other party during the course of the proceedings. The clear rule of Darius G. applies here; prejudice is presumed in the unacceptable rotation of representation and mandates that we reverse the judgments of the trial court finding respondent to be an unfit parent and terminating her parental rights and that we remand the cause for further proceedings.
REPLY TO THE DISSENT
Without citation to authority, the dissent rejects the per se standard and argues that a showing of prejudice should be required in such situations. 408 Ill. App. 3d at 869-70. Contrary to the implications and presumptions contained in the per se rule, the dissent determines that Reeves-Rich‘s conflict in this case is ”de minimis,” without the benefit of any evidence as to what transpired when she counseled both Paul and Paul F., Sr., before representing respondent. 408 Ill. App. 3d at 870. The dissent flips the rule on its head: prejudice is presumed not to have occurred even in the absence of an opportunity to establish prejudice.
The dissent cites for support only one case involving a conflict of interest in a juvenile case, In re D.B., 246 Ill. App. 3d 484 (1993). However, D.B. is clearly distinguishable. In that case, the respondent mother hired an attorney who had earlier appeared as the minor‘s appointed guardian ad litem for over two years of the proceedings.
The dissent also laments the “tremendous waste of the resources of the parties and the court system,” supposedly caused by the application of the per se rule. 408 Ill. App. 3d at 870. However, the dissent‘s undefined, nondescript procedure for making a showing of prejudice is not designed to stop this ongoing problem of attorneys representing multiple parties in the same proceedings; it casually compromises the integrity of representation by appointed counsel and leaves the issue to be resolved down the road by some higher authority. Which system makes such waste less likely to occur: one that prevents the potential of conflict by “inform[ing] 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., 406 Ill. App. 3d at 738), or one that waits until after the improper representation occurs, then requires, at best, the opportunity for a hearing to determine if prejudice occurred, and, if it has, requires the appointment of new counsel and a new termination proceeding?
Further, the dissent fails to address how such a showing should be made. What type of hearing would be held? Would discovery be allowed? What would be the nature and extent of discovery? Who would bear the burden of going forward? What would be the burden of proof? Who would bear the burden of proof? If the burden is on the parent, then must the parent waive the attorney-client privilege in order to establish that, first, there was a conflict, and, second, it prejudiced the parent? Is prejudice determined by a showing of a lack of undivided loyalty and a different result or merely an undivided loyalty? If the State must establish lack of prejudicial error, must it do so by clear and convincing evidence? Must additional unconflicted attorneys be appointed to represent the parent and the potentially conflicted attorneys? What happens if unconflicted attorneys are appointed to represent multiple parties in conflicts that create subsequent per se conflicts? May a parent force a conflicted attorney to testify about
Contrary to the dissent, the imposition of the per se rule in no way hamstrings the ” ‘well-intentioned public defenders whose only desire was to represent unrepresented indigent parties.’ ” 408 Ill. App. 3d at 870. The rule, if properly followed, prevents these attorneys from being placed in the untenable and potentially unethical position of having their loyalties divided by representing multiple parties in the same proceeding. See, e.g.,
Occam‘s razor—”Pluralitas non est ponenda sine neccesitate” (“plurality should not be posited without necessity“)—is popularly interpreted to mean, “the simpler the explanation, the better.”
Reversed and remanded.
JUSTICE HUDSON, dissenting:
In this case as well as the recent case of In re Darius G., 406 Ill. App. 3d 727 (2010), this court has applied a per se rule holding that even a theoretical conflict of interest, no matter how insignificant, serves as a basis for undoing a lengthy juvenile court proceeding concerning the care and custody of a minor. I disagree with these holdings; accordingly, I respectfully dissent.
While there are cases that support the majority‘s position, as well as the position of the court in In re Darius G. (see In re S.G., 347 Ill. App. 3d 476, 479 (2004)), there is also conflicting authority. In In re D.B., 246 Ill. App. 3d 484, 492 (1993), the Fourth District of this appellate court limited the per se conflict rule, declining to apply it to a case where an attorney represented a minor and a respondent mother, because the representations were not simultaneous and the mother was aware that the attorney had previously represented the minor. Under such circumstances, the Fourth District concluded, a showing of prejudice was necessary. D.B., 246 Ill. App. 3d at 492.
In re C.C., 368 Ill. App. 3d 744 (2006), also provides sound guidance. In that case, the court considered whether to apply in a termination proceeding the standard set forth in United States v. Cronic, 466 U.S. 648 (1984), for assessing the performance of counsel. Under Cronic, a criminal case, counsel‘s representation is inadequate where counsel completely fails to subject the State‘s case to meaningful adversarial testing. Cronic, 466 U.S. at 659. Prejudice is presumed. In re
“It seems counterintuitive to apply a test that depends upon a determination of whether the proceeding was sufficiently adversarial in nature when the legislature has specified that proceedings under the Act are not meant to be adversarial in nature. See
705 ILCS 405/1-5 (West 2004) . A respondent parent‘s right to counsel in termination proceedings derives from the Act, not the constitution. In re A.H., 359 Ill. App. 3d 173 (2005);705 ILCS 405/1-5 (West 2004) . Hence, the sixth-amendment analysis and rationale delineated by Cronic and its progeny, stating that ‘[t]he right to effective assistance of counsel is thus the right of the accused to require the prosecution‘s case to survive the crucible of meaningful adversarial testing,’ does not apply here. Cronic, 466 U.S. at 656 ***.” In re C.C., 368 Ill. App. 3d at 748.
The court then applied the more familiar standard taken from Strickland v. Washington, 466 U.S. 668 (1984), and found that the respondent had not shown prejudice. In re C.C., 368 Ill. App. 3d at 747-48. If prejudice cannot be presumed from an actual breakdown of the adversarial system, it would be incongruous to presume prejudice where an attorney simply has some theoretical conflict of interest.
In re Kenneth F., 332 Ill. App. 3d 674 (2002), is also instructive. There, this court applied a harmless-error analysis to the failure of the trial court to properly admonish a respondent in a termination case. We explained:
“In proceedings of the present kind, where a primary purpose is to protect the best interests of the children, a harmless-error analysis is particularly appropriate. See In re Smith, 77 Ill. App. 3d 1048, 1052 (1979). An error that prejudices no one should not prevent children, who are the objects of these proceedings, from attaining some level of stability in their lives.” In re Kenneth F., 332 Ill. App. 3d at 679-80.
Hence, in In re Kenneth F., we recognized the importance of finality in a termination proceeding over the procedural rights of a respondent where the violation of those rights did not prejudice the respondent.
Absent a showing of prejudice, the same result should obtain here (and I would remand this case to allow respondent to attempt to make such a showing). Instead, the majority undoes nearly five years of litigation because an attorney (Reeves-Rich) made a single appearance on behalf of the minor on September 11, 2006, and an appearance on respondent‘s behalf on April 20, 2010.2 Thus, as far as one can tell from the record, the conflict upon which the majority relies is an
Undoubtedly, the effective assistance of counsel is an important right; however, finality—always an important consideration (see, e.g., In re Liquidation of Legion Indemnity Corp., 373 Ill. App. 3d 969, 974 (2007))—takes on added significance in termination cases. These cases are among the small class of cases subject to mandatory acceleration on appeal. See
Accordingly, I would reject the per se standard in cases like this one. The per se standard was imported from criminal cases, and I, too, would seek guidance from the criminal law and its well-developed framework for dealing with conflicts of interest. In People v. Flores, 128 Ill. 2d 66, 84 (1989), our supreme court held, “Where a per se conflict of interest is not established, it is the defendant‘s burden to show an actual conflict of interest and to demonstrate prejudice.” Under such circumstances, “If a per se conflict does not exist, a defendant may still establish a violation of his right to effective assistance of counsel by showing an actual conflict of interest that adversely affected his counsel‘s performance.” People v. Hernandez, 231 Ill. 2d 134, 144 (2008).3 It is not necessary to make the additional showing that the deficiency contributed to the result of the proceeding. People v. Taylor, 237 Ill. 2d 356, 375-76 (2010). I would apply that
The majority‘s response to this dissent proves too much.4 It posits that “[w]hen a per se conflict is recognized, it should immediately be brought to the trial court‘s attention to be remedied, either by having the party waive the conflict or by discharging the attorney.” 408 Ill. App. 3d at 868. By the time the conflict is recognized, however, it is too late to remedy it (unless the party waives the conflict, a prospect upon which one cannot depend). In such a case, even if the trial court were to immediately discharge the conflicted attorney, the per se rule would allow a party to successfully raise this issue on appeal, for it holds that, once a conflict arises, we are not allowed to inquire into its severity. The trial court may as well start over. On appeal, we will not be able to consider things like whether the attorney was involved in the case for only a short time and promptly acted to be removed from the case once the conflict became apparent. The majority‘s suggestion to the contrary notwithstanding, discharging a conflicted attorney is no remedy unless we can consider the nature and extent of the attorney‘s representation.
The majority sets up a straw man, asking, “[w]hich system makes *** waste [of the resources of the parties and the court] less likely to occur: one that prevents the potential of conflict by ‘inform[ing] 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., 406 Ill. App. 3d at 738), or one that waits until after the improper representation occurs, then requires, at best, the opportunity for a hearing to determine if prejudice occurred, and, if it has, requires the appointment of new counsel and a new termination proceeding?” (Emphasis in original.) 408 Ill. App. 3d at 866. The question is not which is the better practice. I wholeheartedly agree that trial courts should strive to ensure conflict-free representation for all parties, and I trust that courts and counsel will conscientiously seek to follow the ethical rules regarding conflicts (see, e.g.,
The majority further chides that this dissent does not “address how such a showing should be made.” 408 Ill. App. 3d at 866. It then goes on to pose a plethora of questions regarding subjects as esoteric as whether a trial judge will have to “recuse himself or herself” to avoid an appearance of impropriety after the disclosure of privileged information and what contempt power a trial court should use to allow the parties to present evidence. 408 Ill. App. 3d at 866-67. It is generally improper for a court to give legal advice regarding future events. Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 266 (2010). Addressing the many varied questions asked by the majority might run afoul of this principle. That said, as explained above, the requirement that a litigant show an actual conflict of interest that adversely affected counsel‘s performance is not something foreign to the law. See, e.g., Taylor, 237 Ill. 2d at 375-76. These principles do not reflect a particularly recent development, having been articulated over 30 years ago by the Supreme Court in Cuyler, 446 U.S. at 350. As this body of law has been in existence for a considerable period, trial courts likely have adequate guidance regarding how to handle such matters. Furthermore, it is noteworthy that, when the Supreme Court announced Cuyler, it nowhere provided the detailed blueprint the majority now demands. See also People v. Krankel, 102 Ill. 2d 181, 189 (1984) (announcing a new rule requiring what would come to be known as a Krankel hearing whereby a case is remanded for a post-trial hearing on a pro se ineffective-assistance-of-counsel claim, without providing detailed directions on how to conduct such a hearing). I further observe that the majority raises these questions in the context of considering whether the per se rule causes a relative waste of resources of the court and the parties. I would point out that mitigating such a waste is but one benefit of requiring a showing of prejudice, and a collateral one at that. Of primary concern is permanency and stability in the lives of the children involved in termination proceedings. See In re Kenneth F., 332 Ill. App. 3d at 679-80.
Ironically, the majority, invoking Occam‘s razor, charges that the dissent fails “to set forth the pluralities that would arise in attempting to determine if a prejudicial violation occurred.” 408 Ill. App. 3d at 868. It then extols the virtue of the per se rule as a “simple explanation of how to resolve this recurring problem.” 408 Ill. App. 3d at 868. Presumably, the “recurring problem” to which the majority refers is
In sum, I would reject the per se standard in the present context just as the In re C.C. court declined to presume prejudice in termination cases. See In re C.C., 368 Ill. App. 3d at 746-47. Instead, I would apply the long-standing principles used to assess actual conflicts of interest in criminal cases. See Cuyler, 446 U.S. at 350; Hernandez, 231 Ill. 2d at 144.