                                No. 2—10—1105
                            Opinion filed May 11, 2011
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re QUADAYSHA C., BOBBY P.,          ) Appeal from the Circuit Court of
ZARRIEA B., and ZYLISS H., Minors      ) Winnebago County.
                                       )
                                       ) Nos. 07—JA—233
                                       )      07—JA—234
                                       )      07—JA—235
                                       )      07—JA—236
                                       )      07—JA—237
                                       )
(The People of the State of Illinois,  ) Honorable
Petitioner-Appellee, v. Nicole H.,     ) Patrick L. Heaslip,
Respondent-Appellant).                 ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Hutchinson and Schostok concurred in the judgment and opinion.

                                            OPINION

       Respondent, Nicole H., appeals from the trial court’s order terminating her parental rights to

her minor children Quadaysha C., Bobby P., Zarriea B., and Zyliss H. We reverse and remand.

       This case involves 5 of Nicole’s 10 children. Quadaysha, Bobby, Zarriea, Zyliss, and Jarrell

H. (who is not a subject of this appeal) were under the guardianship of Nicole’s sister, Denise. On

September 7, 2007, the State filed petitions alleging that Quadaysha and Jarrell were abused and

neglected minors because Denise inflicted excessive corporal punishment upon them. The State

alleged that Bobby, Zarriea, and Zyliss were neglected because of the injurious environment caused

by the excessive punishment. The court appointed a “Conflicts I” attorney for Nicole and appointed
No. 2—10—1105


the office of the public defender as guardian ad litem (GAL) for the children. The children were

placed in shelter care, and the Department of Children and Family Services (DCFS) was granted

temporary custody and guardianship. On the next court date, the trial court appointed the Court

Appointed Special Advocate (CASA) as GAL for the children and appointed the office of the public

defender as counsel for CASA.

       After a trial, which Nicole did not attend because she had just given birth to another child, the

trial court found that Quadaysha and Jarrell were abused minors and that the other three children

were neglected. The case was continued to January 9, 2008, for a dispositional hearing. Nicole failed

to appear for the dispositional hearing. When the court asked everyone in the courtroom to identify

himself or herself, Assistant Public Defender Kristin Anderson stated that she was “in for Rob

Simmons on behalf of CASA.” Both CASA and Catholic Charities filed reports with the court and

included recommendations for the dispositions. Both recommended that guardianship and custody

be granted to DCFS; CASA also recommended, among other things, that Nicole have supervised

visitation with her children and that she be ordered to submit to random drug and alcohol testing.

Off-the-record conferences were held before the parties made their arguments and recommendations.

The State asked the court to take judicial notice of the reports and recommended that custody and

guardianship of the five children be granted to DCFS, with discretion to place them with a relative

or in traditional foster care. All parties would be required to cooperate with the service plan. When

asked by the court if she was “in agreement on behalf of the children,” Anderson replied, “Yes.” The

court then granted custody and guardianship to DCFS, with discretion to place the children with a

relative or in traditional foster care. The court entered “[g]eneral orders of cooperation.” The court




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also ordered the parents1 to remain drug- and alcohol-free, to submit to random drug drops and

Breathalyzer tests, to submit to all requested assessments, and to follow up with any recommended

treatments.

       Beginning with the first permanency hearing, held on July 8, 2008, Anderson, who had

appeared on behalf of CASA at the dispositional hearing, appeared on behalf of Nicole. This

representation lasted through March 12, 2010, by which time the State had filed petitions to terminate

Nicole’s parental rights. Another appointed attorney appeared on Nicole’s behalf during the hearing

on the petitions. The trial court subsequently found Nicole to be an unfit parent and concluded that

it was in the best interests of the children, except for Jarrell, that Nicole’s parental rights be

terminated. The permanency goal for Quadaysha, Bobby, Zarriea, and Zyliss was then changed to

adoption. This appeal followed.

       Nicole first contends that she received inadequate assistance of counsel because Anderson

represented both her and CASA, the children’s GAL, during the course of these proceedings.

       This court has held that a per se conflict of interest requiring the reversal of a termination of

parental rights arose when the same attorney appeared on behalf of both the respondent mother and

the minor at different times during the same proceedings. See In re Paul L.F., No. 2—10—0749 (Ill.

App. Mar. 24, 2011); In re Darius G., 406 Ill. App. 3d 727 (2010). In Darius G., we propounded

a “clear rule” that “the same attorney may not during the proceedings appear on behalf of different

clients.” (Emphases in original.) Darius G., 406 Ill. App. 3d at 738. In such a situation, “[p]rejudice

is presumed and respondent need not demonstrate that the conflict contributed to the judgments

entered against her.” Darius G., 406 Ill. App. 3d at 739. The application of such a rule will “inform



       1
           None of the childrens’ fathers is involved in this appeal.

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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. Both the trial

court and appointed counsel in juvenile proceedings must remain aware of the parties’ representation;

the termination of parental rights is a drastic measure, and the strict procedural requirements adopted

to regulate such proceedings “are paramount.” Darius G., 406 Ill. App. 3d at 739. The per se rule,

if properly followed, prevents attorneys from being placed in the untenable and potentially unethical

position of having their loyalties divided by representing multiple parties in the same proceedings.

Paul L.F., slip op. at 7.

        The State argues that Darius G. also propounded an exception to the per se rule that should

apply in this case if this court follows the precedents set in Darius G. and Paul L.F. In Darius G.,

this court noted:

                “The State asserts that Herrmann [the conflicted attorney] ‘stepped up’ at these

        proceedings, suggesting that he merely appeared to assist his colleagues who could not be

        present. To the contrary, Herrmann appeared on behalf of his clients. He did not, for

        example, represent to the court that respondent’s (or Darius’s) counsel was unavailable and

        that a continuance was needed. This distinction is critical because, in the latter example,

        Herrmann would be representing his office or his colleague, not a client. Accordingly, there

        would be no conflict.” (Emphasis in original.) Darius G., 406 Ill. App. 3d at 738 n.4.

The State asserts that, because Anderson stated that she was “in for” her colleague, there was no per

se conflict. We first note that, when Anderson was called upon to identify herself at the dispositional

hearing, her full answer was, “Kristin Anderson in for Rob Simmons on behalf of CASA.” (Emphasis

added.) Second, Anderson did not merely ask for a continuance because Simmons was unavailable,



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No. 2—10—1105


as in the hypothetical in Darius G.; she agreed “on behalf of the children” with the proposed

dispositions of the abuse and neglect petitions. The State’s attempt to apply the Darius G.

“exception” is disingenuous, improperly applies the quoted text to the record in this case, and is not

well taken.

         The State further attempts to distinguish Darius G., but to no avail. In Darius G., the

conflicted attorney appeared first on the respondent’s behalf and later on the minor’s behalf; this court

noted:

                “We consider that off-the-record confidential communications between respondent

         and Herrmann likely occurred, that, in those conversations, Herrmann likely learned

         information that he would not otherwise have learned, and that he might have, in his

         interactions with respondent, formed an opinion of her that he would not otherwise have had

         the opportunity to formulate. Certainly, it is reasonable to presume that, as respondent’s

         counsel, Herrmann at a minimum interviewed her and reviewed her file. As such, if Herrmann

         concluded from this confidentially gleaned information that respondent was unfit or that her

         rights should be terminated, he was subsequently placed in the unique position of being able

         to use this information when he represented Darius. In contrast, if Herrmann represented only

         respondent, his obligation would have been to advocate only for respondent’s interests. Thus,

         he would not have had the opportunity to use confidential information against respondent, his

         first client, even if unintentionally.” (Emphasis in original.) Darius G., 406 Ill. App. 3d at

         735-36.

The State notes that the record clearly reflects that Nicole was not present at the dispositional hearing

and does not reflect whether the minors were present. According to the State, it is important that



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No. 2—10—1105


Anderson never saw Nicole, and presumably could not form an opinion of her, before she began to

represent her. This argument misses the point; that portion of the Darius G. analysis was necessary

because the attorney in that case represented the respondent before he represented the minor. Where,

as here, the attorney represents the minor first, “possibly forming the opinion that it would be in the

child’s best interest for the respondent’s rights to be terminated,” the “conflict and resulting prejudice

are clear.” Darius G., 406 Ill. App. 3d at 735.

        The State also points out that the “record reflects nothing less than zealous advocacy by

Anderson on respondent’s behalf.” Again, this argument misses the point. The per se nature of the

rule requires no proof of prejudice. Darius G., 406 Ill. App. 3d at 736; see also In re S.G., 347 Ill.

App. 3d 476, 481 (2004). “It is what is not in the record, or what is incapable of being reflected by

the record, that prompts us to apply the per se conflict-of-interest rule in this case.” S.G., 347 Ill.

App. 3d at 481. Thus, while the record may show numerous examples of Anderson’s zealous and

capable advocacy on Nicole’s behalf, such examples do not overcome the presumed prejudice that

arises from the divided loyalties entailed by representing more than one party in a proceeding, and

they are not relevant to our analysis.

        The State proposes an alternative process to follow when an attorney has represented multiple

parties in a juvenile proceeding, including, at most, a “limited remand” with the burden on the

respondent to show “ ‘whether the risk of a conflict colored the [parties’] representation.’ ” See

People v. Hardin, 217 Ill. 2d 289, 302 (2005). However, we have concluded that applying the per

se rule is the simple way to resolve this recurring problem, and it should be followed. Paul L.F., slip

op. at 7. Therefore, we conclude that the clear rule of Darius G. applies here. Prejudice to Nicole

is presumed in Anderson’s prior representation of the children’s GAL, and we reverse the judgments



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of the trial court finding her to be an unfit parent and terminating her parental rights and remand the

cause for further proceedings.

       Because of our disposition of this issue, we need not consider respondent’s other contentions.

       Reversed and remanded.




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