A divided Illinois Supreme Court has ruled there was no conflict of interest for a Joliet lawyer, who was a court-appointed guardian for a child, but later represented the same child's mother against neglect allegations.
The court's majority said rules determining conflict of interest in criminal cases can also apply to civil proceedings under the state's Juvenile Court Act.
However, a dissenting justice said this "cannot logically" be done.
The April 15 decision was drawn up by Justice Mary Jane Theis, with concurrence from Justices Rita Garman, Robert Carter, Michael Burke and David Overstreet.
Chief Justice Anne Burke dissented, joined by Justice P. Scott Neville Jr.
A woman identified in court papers as "Wendy M.," went to prison in 2012 for theft. Wendy left the care of her six-year-old daughter, identifed as "Br. M." to her boyfriend. However, the Illinois Department of Children and Family Services took action in Will County Circuit Court to remove Br. from the boyfriend, on grounds the boyfriend was alleged to have molested a previous girlfriend's daughters, court papers said.
For the ensuing court action, a judge appointed Assistant Public Defender Lea Drell as guardian to look out for Br.'s interests in the case. The child ended up being placed in DCFS custody, the action was closed and Drell was no longer needed as guardian.
After Wendy was released from prison, she regained custody. In late 2017, the state's attorney's office moved to terminate Wendy's parental rights, alleging she was unfit because of drug abuse, according to court documents. A court-appointed special advocate took on Br.'s guardianship.
At this point, Drell started representing Wendy as a private attorney. No mention was made Drell had been Br.'s guardian from 2013 to 2014, court papers said. By early 2019, the matter was moving toward resolution, when Drell withdrew from the case due to a medical emergency. An assistant public defender took over as Wendy's attorney. In September 2019, Circuit Judge Paula Gomora terminated Wendy's parental rights.
Wendy appealed to Illinois Third District Appellate Court, contending Drell had a conflict of interest, so the parental termination proceedings were improper. In a 2-1 ruling, the court determined both child and parent are entitled to counsel with undivided loyalty. As a result, the court ordered the parental rights case be reopened.
Will County prosecutors took the case to the state high court, finding enough justices receptive to their arguments to carry the day.
Justice Theis based her conclusion there was no conflict of interest, on rules governing conflict of interest in criminal cases. Namely, Theis found no evidence Drell represented Wendy and a prosecution witness at the same time, or that Drell ever prosecuted Wendy in a criminal matter or ever had an association with the prosecution.
Theis said, if Drell had a prior connection to the "victim" in Wendy's proceedings, there could have been a conflict. However, Theis concluded Br. was not a victim, according to the Illinois Juvenile Court Act that applied to Wendy's case. Rather, the child was a "subject of proceedings."
Theis noted the appellate court majority speculated Drell may have developed an unfavorable opinion about Wendy while serving as Br.'s guardian. However, Theis said such speculation was "demonstrably false," because Drell, while she was guardian, did not object when Wendy sought to retain her parental rights. In this regard, Theis said Drell pointed out to the judge the bond between Wendy and Br.
In summary, Theis noted Br. is now 14 years old, having spent most of her life in foster care. To reverse the appellate court and give Wendy another shot at custody, would mean the girl "would be sent back five years, as if none of this had ever happened," but "stability and finality are more important," according to Theis.
In dissent, Justice Anne Burke said it was not "logical" for the majority of the supreme court to have superimposed the terminology and rules for criminal cases on civil matters.
Burke additionally questioned whether Drell was biased against Wendy.
"Drell necessarily formed opinions regarding respondent [Wendy] and her behavior. Further, it is impossible to know whether Drell’s involvement as Br.’s [guardian] had any subtle, subliminal influence on her representation of respondent, which would not be detectable from the record or, perhaps, even to Drell herself but might have affected her ability to represent the respondent’s interests effectively," Burke said.
Burke also challenged the majority's definition of victim, asking, "In parental termination proceedings, who could possibly be 'the victim' if not the children who were abused or neglected to such an extent that they must be permanently removed from the care of their biological parent?"
Wendy was represented before the Supreme Court by attorney Kristen Messamore, of Hammel Law Offices in Joliet.
Will County was represented by Assistant Illinois Attorney General Chaya Citrin.