1 The trial cou rt also terminated the parental rights of Darius’s f ather, but that decision is not before us in this ap

peal. No. 2—10—0685

Opinion filed December 15, 2010

IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

In re Darius G., ) Appeal from the Circuit Court of ) Wi nn eb ag o C ou nt y. a Minor ) ) No. 07—JA—309 ) (The Peo ple of the State of I llinois, ) Honorable Petitioner-Appellee, v. Tracie G., ) Patrick L. Heaslip, Respondent-Appellant). ) Judge , Pres idin g.
PRESIDING

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Just ice McLaren concur red in t he judg ment and o pini on. Just ice H utch inso n diss ented, with opini on. OPINION Responde nt, Tracie G., appeals thetrial court’s June 30, 2010, order terminating her parental rightsto minor Darius G. 1 Respondent argues on appeal that she received ineffective assistance of counsel and that t

he trial c ourt’s fi

ndings that she is u

nfit and that termination is in D arius’s b est interest are contrary

to the manifest weight of the evidence. For the following reasons, weagree with respondent’s contention that she received ineffective assistance of counsel resulting from a per se conflic t of inter

est when , during

these proc eeding s, the same attorney from the public defender’s office a ppeared on her behalf at on eNo. 2—10—0685

-2-

hearing but then subsequently appea red on Darius’s behalf at another hea ri ng. Accordingly , we reverse and remand. I. BACKGROUND

A. Sh elter Care an d Perm anency Rev iew Hea rings OnDecember 4, 2007, the State petitioned the trial court to find Darius a ne glected minor under sections 2—3 and 2—4 of the Juvenile Court Act of 1987 (Juvenile Court Act). 70 5 ILC S 405/2—3(1)(a), 2—4(1)( a) (West 2006) . That day, the co urt he ld a sh elter -care h earing. Respondent

was not present. The court appointed “Conflicts I ” at to rn ey Ryan Swift, from the “Conflic ts Division of

the Public Defender’s office,” to repr esent Darius. Swift informed the court that, based on the statement of facts presented to him by the State, he belie

ved ther e existed probable

cause to find neglect. The court found probable cause to find neglect and f ound that it was a matter of urgent and immediate necessity to place Darius in

State cus tody

with the Department of Children and Family Servic es (DCFS). OnDecember 12, 2007, respondent appear ed for a shelter-care he aring, and the court appointed Robert

Simmons of the public defender’s office to re present her. Respondent provided the court with the identity of Darius’s fa ther, was advised by

the court of the pending petition, and waived her right to the shelter-car e hearing. Darius was place d in traditional foster care. OnMarch 20 , 2008, re spondent s tipulated to the neg

lect peti ti on. Darius was represented by Kristin Anderson (the reason for the chang e in attorneys is unclea r from the record, but

it appears that she, too, was a “conflicts” attorney ), who agreed with the stipulation. The court accepted the stipulation, finding

that a fa ctual ba sis supported it. The court adjudicated Darius a neglected minor, and custody and g

uardianship remained with DCFS.No. 2—10—0685

-3-

Thereafter, a series of permanency -review hearings were held to assess whethe r respondent

was making r

easonab le prog

ress toward the goal o f return ing Dar ius home to

her car e. At the f

irst hearin g, on September 8, 2008, respondent’s former counsel, Simmons, appeared on be half of Darius’s father. Respondent’s new counsel was Matthew Jura. Darius was repr esented by K ristin Anderson. Throughou

t t he remaining permanency -review hearings, Darius wa s represented by Anderson while respondent was represented by Jura (March 10, 2009) and Erin Buhl (September 1 and October 20, 2009). (On September 29, 2009, Shannon Reeves- Rich requ ested on B uhl’s beh alf a continuance, which was gra nted.) Insum, the e

vidence from thes e heari

ngs ref lected that respondent initi ally made re asonable progre ss but later

attende d only

half of her scheduled visits with Darius (sometimes missing without explanation), was evicted from her apar tment, wa s disc harged fro m counseling for lack of

a ttendance, and was u

nable to s

uccessf ully complete a paren ting cla ss until the

fourth time sh e enrolled. Ultimatel

y, on Octobe

r 20, 2009 , the State

argue d that it

had made

reasona ble efforts but that respondent had not. It requested that the g oal be changed. On Darius’s behalf, Anderso n also requested that the goal be changed. The court agreed , finding tha t respondent did not make

reasona ble efforts toward Darius’s return and cha ngingthe goal to su bsti tute c are pen ding a determination of p arenta

l rights. B. Term ination of Parenta l Rights OnNovember 24, 2009, the State petitioned for termination of parental rights and

power to consent to an adoption, arg

uing tha t termina tion was a ppropria te because , pursuan

t to the Adoption Act (750 IL CS 50/1 et seq . (West 2 00 8)), re spondent was an unf it person in that she : (1) fai led to maintain a reasonabledegre e of inte rest, co ncern, or respon sibility for Dar ius’s wel fare ( 750 I LCSNo. 2—10—0685

-4-

50/1(D)(b) (West 2008)); (2) failed to protect Darius from conditions within his environment that

were injurious to his welfare (750 IL CS 50/1(D)(g) (West 2008)); and (3) failed to make reasona ble progre ss toward Darius’s return to her during “ any 9-month period a fter the end of the initial 9- month period following the a

djudi cati on of

neg lect [] or abuse []” (750 I LCS 50/ 1(D)(m) (iii) (Wes t 2008)). That

same day, r

espondent appeared

b efore the court for arraig nment on the petition. Respon dent was re presented by Mike Herrmann. Anderson continued to represe nt Darius. The court informed respondent of

the petiti on’s alle gations , the bifur cated na ture of the proce edings (

unfitnes s followed by best interest), the State’ s burden of proof, and responde nt’s right to

counsel a

nd to present evidence on her

own behalf. Thereafter, the par ties discussed locating Darius’s father so that he could be served with the petition. A brief hearing was held on Dec ember 18, 2009. At that hearing, respo ndent wa s again represented by

Buhl, not Herrmann. However, at the ne xt substantiv e heari ng, the pretria l confer ence he ld on February

19, 2010, Herrmann

reappeared, although he no l onger re presented respondent. I nstead, he appeared on Darius’s behalf. No explana tion was p rov ided for why H errmann replaced Anderson as D arius’s at to rn ey. Respondent was present and Buhl appeare d on her beh al f. As it wa s the father’s first appearance, the trial court arraigned him on the petition to terminate pare ntal rights. Afterwards, the trial date w as sch edule d. Not hing el se of s ubst ance ha ppene d at th is hea ring. OnMarch 19, 2010, at a brief appeara nce before the court on a discovery status, respondent was again represented by Buhl and Dar

ius was ag ain

represented by

Anderson. Herrmann did not appear.No. 2—10—0685

-5-

OnMay 27, 2010, trial commenc ed on the unfitness portion of t h e State’s petition. Respondent

was represented by

Buhl; Da

riu s w as re pr es en te d b y Er ic Ar nq ui st . T he se at to rn eys represented

their respective parties through the rema inder of these proceedings (a gain on June 17, 2010, and, finally, on June 30, 2010). After present ing evid ence, th e State a

rgued that it had proved respondent

unfit as alleged in the petition. Arnquist agreed. On June 17, 2010, the court found that the State had

established by

cle a r and convincing evidence that re spondent was unfit on the three grounds alleged in the State’s petition. Imme diately

thereafter, a hearing

commenced on the best-interest por tion of t he State’s petition. Insum, the State argued that it would be in Darius’s best interest for respondent’s parental rights to be terminated. Again, Arnquist agre ed. On June 30, 2010, the court found tha

t it was in Darius’ s best inte

rest that responde nt’s par ental rig hts be ter minated. Responde

nt appea ls. II. AN ALYS IS Responde ntargues first that she was denied ef fective assistance o f counsel because Herrman n represented

both her and Darius at diffe

rent time s during

the proc eeding s. In

juvenile procee dings, ineffective-assistance-of-counse l claims are considered under the same stan

dard as t hat appli ed in criminal procee din gs; namely, that, to establish ineffe ctive assistance, one must show both that counsel’ s repres entation

fell below an obje ctive sta ndard of reasona bleness and

a reasonab l e probabil ity

that, but for the error, the result would have been different. In re S.G. , 347 Ill. App. 3d 476, 479 (2004). Here, howev er, res pondent a rgues t hat she ne ed not est

ablish an y pr ejudice to succeed on her ineffective-assistance claim bec ause, when the s ame attorney re presents opposing parties in the course of the same litigation, a per se conflict of int erest a rises and prejudi ce is presumed. Respondent argues that suc h repre sentation is per se ineffe ctive an

d that her right toNo. 2—10—0685

-6-

pr ivileged and confidential communication wi th Herrmann was violated when, after re presenting her, he appe ared on D arius’s behalf. The State disa

grees that this si

tuation pr esents a per se

conflic t of inter

est. The S tate notes that the cas e law en umerat ing per se conflict s of interest has been developed in the criminal-law context, where the adversarial natureof the proceedings has a fundame ntal impact on constitutional due process protections. Here, the Sta te notes, proceedings under the Juvenile Court Act are not meant to be adversarial, a guar dian ad litem does not

re pr es en t t he mi no r i n a tr ad it io na l a tt or ne yclient manner, and

a res pondent’s right to counsel in termination proceedings der ives from the JuvenileCourt Act, not the constitution. Accordingly , the State argues that the per se conflic t rule should be applied with restraint in the “unique three-party setting of a termination

proceeding

where the objective is not merely to sec ure a judgment

that bene fits one p arty

at the expe

nse of an other, bu t, rather, to ascertain and order proc edures to secure the best interests of the minor child.” Although respondent did not raise this issue before the trial court, forfeiture is a limitation

on the parties, not the reviewing court. In re D.F. , 208 Ill. 2d 223, 239 (2003)

. Here, we relax the forfeiture rule to: address a plain error affec ting the

fundame ntal fair ness of a proceeding (see In re Jay. H. , 395 Ill. App. 3d 1063, 1067 (2009)); maintain a uniform body of precedent (see Dillon v. Evanston Hospital , 199 Ill. 2d 483, 505 (2002)); and reach a just result (see In re D.F. , 208 Ill. 2d at 239). We review de novo the question of whether counsel’s repres entati on constituted a per se conflict of interest. People v. Miller , 199 Ill. 2d 541, 544 (2002). As the State correctly notes, the per se conflict-of-interest inquiry originated in criminal law and is based upon a criminal defendant’s sixth amen dment right to effective assistance, i.e. , conflict-free representation. People v. Hernandez ,No. 2—10—0685

-7-

231 Ill. 2d 134, 142 (2008). A per se conflict arises when a defense attorne y has ties to a person or entity that would benefit from an unfavorable verdict for the defendant, because the attorney ’s knowl edge that his or her other client’s favora ble resu lt would conflict with the defenda

nt’s inter est “might ‘subliminally’ affec

t counsel’s performance in way s [that are] difficult to detect and demonstrate.” Id. at 142-43. Inthe criminal context, our supreme court has identified three per se conflic ts requiring reversal: (1) def ense counsel has a prior or contemporaneous a ssociation with the victim, the prosec ution, or an entity assisting the prosecution; (2) defense counsel contemporaneous ly

repres ents a

prosecu tion witne ss; or (3)defense counsel i s a

former prosecutor who had been personally

involved in the defendant’s prosecution. Id. The “threshold inquiry in any conflic t-of-int

erest c ase is whethe

r, in fact, defen se counse l repre sented or repres ents a pa

rty with conflicting interests to those of the defendant.” People v. Graham , 206 Ill. 2d 465, 472 (2003). The State argue s th at none of the thre e circu

mstance s identifi ed above exists here , but it concedes that two appellate court opinions have applied the per se conflict an aly sis o utside the criminal context an

d, specif ically, in cases involving terminat

ion of par ental rig hts: In re D.B. , 246 Ill. App. 3d 484, 492 (1993) (no per se conflict established), and S.G. , 347 Ill. App. 3d at 481 ( per

se conflict established). The State argue s that both

cases a re wron gly reasone d becau se they

fail to fully consider that the pur pose of the per se

conflict rule is to address adversarial situations where an attorney’ s commitment to others undermines his or her loya lty to the defendant’ s interest. The State urges t

hat such a situation i s not present here because of the nature of three-party

termination procee dings an

d the fact that Her

rmann re present ed Dariu s after

repres enting r

esponde nt. Fir st, we note that, to the extent the S tate sug gests th at a par ent’s rig ht to couns el i n a termination case— a right

derived from the Juv enile Cour

t Act, not t he consti tution—doe s not

r equir eNo. 2—10—0685

-8-

the representation to be conflict-free, we disag ree. Implicit in the right to effective assistance of counsel is the right

to undivided loyalty

from one’s attorney. In re Johnson , 102 Ill. App. 3d 1005, 1011 (1981). In other

w ords, regardless of the source of a client’s right to representation—the constitution or the Juve nile Court Act —the rig ht to effe ctive re

present ation inc ludes the

right to undivided lo ya lty fr om one’s attorney; that one ’s counsel not undertake conflicting interests or inconsiste nt duties “ is so cent

ral to our profess ion that it i s embodied inour Rules of Professional Conduct.” S.G. , 347 Ill. App. 3d at 479, citing Supreme Court Rule 1.9(a) (eff. Jan. 1, 2010). Moreover, it is clear that

“the statutory rig

ht to counsel in juvenile proceedings is violated when one attorney is appointed to represent parties with conflicting interests.” Johnson , 102 Ill. App. 3d at 1011-12. Second, to address the State’s argumen t that S.G . a nd D.B. should not apply here, we

summa rize their holdings. In S.G. , the trial court appointed an attorney (a

n assistant public defender)

as guardian ad

litem for the minors. The attorney represented the minors for a total of two months and appeared at one hearing

where he cross -examined a State wi

tness. After that hearing, with no

reason for the change appearing

in the record, the trial court vacated the a ttorney’s appointment as guardian ad litem and instead appointed him to represent the mother. The attorney re presented the mother for the next four y

ears. Although the record did not reflect that the attorne y repre sented

the mother in anything but a “ co mpete nt and ded icated ma nner with complete loy alty ,” the ap

pellate court agreed with the mother that the fact that he had first represente d her children in the sam e proceedings created a per se conflict. S.G. , 347 Ill. App. 3d at 481. Sp ec if ic al ly, the court noted

that it was uncontested that the attorney repres ented pa

rties with adverse objectives at different times in the same proceedi ngs; the State did not disagree that theNo. 2—10—0685

-9-

mother’s interest and the minors’ interests were diametrically opposed (the mother so

ught to r etain her custody and par

ental rights, while the State, DCFS, and the guardian ad litem advocated otherwise). Id. The court asserted that it could “think of no reason that a party in a proc eeding brought pursuant to the [Juvenile Court] Act should not be afforded the same standard of legal representation

as a cri minal defendant.” Id. The court rejected the arg ument that the record’s evidence of the attorney ’s limited activity on the minors’ behalf re flected tha t no per se

c onflict

arose. “[T]he State’s argument belies the underlying

purpose of the per

se conflict-of-interest rule. 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-intere st rule in this case. Our concern is with the opinions [the at to rn ey] had

already formulated about the ‘best interests of the children’ when representing them and how those opinions might adversely impact his ability to later

effectively

represent [the mother] with ‘undivided loyalty .’ ” (Emphases added.) Id. The S.G. court fu

rther re jecte d t he State’s reliance on D.B. , which had found no per se

co nf li ct wh er e t he mo th er ’s at to rn ey, who had previously ser ved as the minor’s guardian ad litem , did not simultaneously represent the minor a nd the mother, and the mother continued the attorney ’s representation

after h e informe d her tha t he had r eprese nted th e m inor but did not think that there would be a conflict of interest. D.B. , 246 Ill. App. 3d at 492. The S.G. court declined to follow D.B. because it disagreed that only simultaneous represe ntation can create a per se conflict of interest and because nothing in the record revealed any consultation between

the attorney a

nd the mother about the potential for a conflict or a knowing wa iver of t he potential conflict. S.G. , 347 Ill. App. 3d at 482.No. 2—10—0685

-10-

We similarly

conclude that D.B. does not control here. Like the court in S.G. , we see nothing inthe record reflecting that re spondent was informed of a conflict of interest or waived her right to

con flict-free representation. Further, we disag ree with D.B. ’s conclusion that only simultaneo u s representation

can create a per se

conflict of interest. Clearly , a per se conflict would exist if, fo r example, the assist

ant State ’s Attorn ey

assigne d to petition for the t ermination of a respondent’s parental rights le ft that o ffice and was later appointed in the same proceeding s to represent the responde nt. See People v. Kester , 66 Ill. 2d 162, 167-78 (1977) ( per se ru le applied in criminal cont ext where appointed defense counsel had pr eviously appear

ed in sameproceeding as assistant State’s Attorney). Obvious ly, such repre sentation is not simultaneous, but any off-the-r ecord opinio n the attorne

y ma y ha ve deve loped abo

ut the re spondent i

n his or he

r prior r eprese ntation of the State might affec t his or he

r abili ty to represent the respondent with “undivided loy alty.” In re Lackey , 71 Ill. App. 3d 705, 707 (1979) (right to ef fective assistance of

counsel entitles parent to “undivided loyalty ” of his or her attorney

). To determine whether S.G. should con trol here , howeve

r, we ad dress thr ee consi deratio ns: (1) Herrmann

represented respondent first and then Dar ius, not the other

way ar ound as in S.G. ; (2) the record reflects that Herrmann’ s representation was even more limited than t he gu ardian ad litem ’s representation in S.G. ; and (3) as th e State pu

ts it, termination proceedings are unique in that the single g oal is the b est interest of t he child a nd, as suc h, they are not m eant to be

adversa rial. While we address each in turn, we ultimately conc lude that no ne of the se consid eration s prevai ls and, accordingly , that the per se ru le mu st ap pl y. First, unlike in S.G ., Herrmann appeared on respondent’s behalf and then appeare d on Darius’s behalf. A conflict and resulting prejudic e are c lear if a

n attorne y r eprese nts the ch ild first,No. 2—10—0685

2 We note that , in contr

asting t his case to S.G. , the State argues that the order of representation here did not prejudice responden t becaus e the real question is whether Herrmann’s prior representation

of respondent

impacted his ability to adequately represent to the court

what would be inDarius’ s best

interest, a question that it asserts respondent has no standing to raise. After a

ll, it argue s, “[a] guardian ad litem functions as the ‘ey es and ears of the court’ and not as the ward’s,” and the guardian’s role “is not to advocate for what the ward wants but, instead, to make a recommendation to the court as to what is i n the war d’s best interests.” In r e Ma rk W. , 228 Ill. 2d 365, 374 ( 2008) . We disagr ee that th is scena rio is dev oid of pre

judice to respondent. A guardian ad litem has the op

portunity to direc tly

advise the court about the best interest of the child unfettered -11- possibly forming the opinio n that it wo

uld be in th e child’ s best inte rest for the resp ondent’s

rights to be terminated, and then the sam e at to rne y in t he s ame pro cee di ngs rep res ent s t he r esp ond ent . In contras t, the prej udice to r esponde nt here i s less obvi ous. Is r espondent’s right to conflict-free repres entation

prejudic ed if Her

rmann no l onger

repres ents her? We conclude that it is. We consider

that off -the-record confidential communications betwee n respondent and Herrmann

likely occurr ed, that, in those

conversations, Herrmann likely learned information that

he would not otherwise have learned, and that he might ha ve, i n his intera

ctions wit h respond

ent, formed an opinion of her th at h e would not otherwise have had the opportunity to formulate. Ce rt ai nl y, it is reasonable to presume that, as respondent’s counsel, Her rmann at a minimum interviewed

her and reviewed her file. As such, if H errmann concluded from this conf identiall y gleaned i nforma tion that respondent was unfit or that her rights should be terminated, he wa s subseque ntly placed in the unique position of being able to usethis information when he represented Darius. 2 In contrast, if Herr mann repres ented onl

y r esponde nt, his obligation wou

ld have be en toNo. 2—10—0685

by the const raints of client wi shes. Ar

guably , this direct

access to provide the court with information

or impressions that we re develop ed in part while representing a re spondent would be more prejudicial to the respondent who, if he or she had remained the attorney ’s client, would have retained some measure of control over the a ttorney’s actions via the attorney-c lient relationship.

3 We realize t

hat our aforeme

ntioned c onclusion

regar ding the prejudic e he re is arg

uably speculative and based on potential conversations, information gleaned, opinions formed, and use of the informat

ion. We fe el compe lled to note that our supreme court, in Mar k W. , rejec ted an ap pellate court’s findi ngs of an actual conflict and attorney-client-privilege violations based, in part, on speculation. Nevertheless, while Mark W. and other cases (see, e.g. , Hernandez , 231 Ill. 2d at 144) cautionagainst finding an actual conflict based on specula tive pre judice, t he issue h ere wa

rrants a -12- advoca te only for responde

nt’s interests. Thus, he would not have had th e opportu nity to use confidential informat ion ag ainst respondent, his first client, even if unintentionally . Again, the critical focus of the per se conflict rule is the presumption that the circ umstance s themselv es impair the attorne

y’ s ability to repres ent the f

irst client, and the later client, with undivided loy alty. The per

se nature of the rule, which requires no proof of prejudice, reflects that, in such a case, it would be impossible

for the respondent to establish the prejudice, either because the pre judice does not appear in the record ( e.g. , less aggressive tactics used to def end than otherwise would have been used) or

even because the impact on the attorney wa s subconscious ( e.g. , subconscious reluctance to attack pleadings). S.G. , 347 Ill. App. 3d at 480-81. Thus, we do not think that the order of representation here—wh ere Herrmann had the opportunity to use against respondent’s interests information o r impressions he acquired in their confidential relationship—prec ludes appl ication of the per se conflict rule. 3No. 2—10—0685

different conclusi on. First , while spe culative allega tions are impermiss ible in establishing an actual conflict—where a

showing of preju dice is re quired—a

showing of preju dice is irrelevant in a per se conflict situation. Hernandez , 231 Ill. 2d at 144. Second, the conflict issue tha t arose in Mark W

. involved the attorney’s

potential representation of the same party in dual roles (as both her attorney and her guardian ad litem ) not, as here, different partie s with cle arly defined competin

g inter ests. Third, the supreme court’s opinion in Mar k W. was partially ba sed onthe fact that the attorney neve r actually represented the client as her attorney , but only as her g uardian ad litem . Here, we have an attorney who a

ctually appea

red on behalf of both parties.

-13- Our second consideration regarding whether to apply the per se

rule in this case arises from the limited nature of Herrmann’s representation. I n our view, if the re is a spectrum upon which scenarios suggesting c onflict might be measured in cases of dual, nonsimultaneous representation interminat

ion case s, this ca se arguably presents the threshol d. On the r ecord, H errman

n’s role in t his case was very

minimal: the record reflects that he appeare d once for responde nt and once fo r Darius, each time at proceedings wher e he did not perform any substantive, on-the-record representation. Ho we ve r, He rr ma nn ’s li mi te d a ct iv it y on the record is not dispositive. It is the offthe-record conduct that would have impacted He rrmann’s decision s to act as he did on the record. Si mi la rl y, Herrmann’s actions off therecord might havedirectly pre judiced respondent. Again, we

assume that Herrmann prepared, read the file, and spoke with respondent about the case. We do not know if Herrmann’s thoughts or impressions formed while repr esenting respondent were in any way communicated

to Arnquist, who, on the record, agreed with the State that respondent

was unfit and that her rights should be terminated.No. 2—10—0685

-14-

The point, as previously discussed, is that the p er se natu re of the conflict rule makes irrelevant the leng thor nature of the representation, and it necessa rily includes situations where prejudice might be impossible to establish. Indeed, in S.G. , the attorney, a fte r representing the minor, represented the mother forfour year s with no signs in the record of any thing but compete nt, dedicated, and completely loy al representation. S.G. , 347 Ill. A pp. 3d at 481. Nevertheless, the brevity of the attorney ’s representation of the minor did not preclude application of the rule or alter the fact tha

t the rule ’s purpos e is to prote ct aga inst what i s not

reflected in

the record. Id. Si mi la rl y, the court in Hernande

z, rejecti ng the Sta

te’s arg ument tha

t the attor

ney did n ot have an active relation ship with the party who cr eated the conflict, stated, “the very nature of a per se

conflic t rule precludes inquiry

into the specific facts of a case.” Hernandez , 231 Ill. 2d at 150. The court cited other cases where the attorney ’s status alone engendered the conflict and inquiries into the degree

or extent of the representation were unnecessar y. Id. Fu rther, the court held that “active representation” was s imply un necessary , and that conflicts may a rise from counsel’s “ ‘prior or

curren t’ ” or “ ‘previous or current’ ” a ssociation, relationship, co mmitm ent, professional connection, or “ ‘some tie’ ” with both the “victim” and the defend ant. Id. at 15 1. Ac co rd in gl y, here, Herrma

nn’s limite d appea

rance a nd his fai lu re to per form on th e recor d any obviously prejudicial representation are irrele vant to a finding of a per se conflict. Our third consideration in deciding whether to apply the per se

conflic t rule is t hat, as the State points out, the rule originated in criminal law and in relation to constitutional protections and, therefore, might

not p erfect ly fit th e uniq ue thr ee-par ty termin ation procee dings contemplated by the JuvenileCourt Act and

the Adoption Act. Proceedings under the Juvenile Court Act are not meant to be adve

rsarial (705 I LCS 405 /1—5(1) (

West 2008) ) and if, as the st atutes c ontemplate, theNo. 2—10—0685

-15-

purpose of the proceedings is to consider the best inter est o f the child, the parties arguably do not have conflic ting inte

rests. Ne verthel ess, while

this might be

true in the ory , we are

hard-pr essed to say that where the State and the guardian ad litem seek to terminate the parent’s rights to the child, and the pare nt seeks t o keep his or her rights, those interests are not conflicting . Indeed, and as noted in S.G. , the Juveni le Court A ct itse lf co ntemplates the likelihood of conflicts of interest arising between minors and their

parents and acc ordingl

y pe rmits, and sometimes

require s, courts to appoint guardians ad litem to serve the minors ’ intere sts. 705 I LCS 405 /2—17 (Wes t 2008); S.G. , 347 I ll. App. 3d at 478. Presumably, the trial cour t here r e cognized this inherent possibility and pursuant to the Juven

ile Court A ct appoin

ted couns el from th e “conf licts division” of the public defender’s office to repre sent Dar

ius. We also note that, while the shared goal in juvenile procee dings is to serve the child’s b est interest , what that

best inter est is often depends on whose perspective is being c onsidered. Here, as in S.G. , the State and the guardian ad litem (although not Herrma nn, at l east not o n th e record) agreed that it wa s in Darius ’s best interest that respondent’s rights be terminated—a position diametri cally

opposed to

responde nt’s. Thus , competi

ng positi ons c learly

ma y exist within the unified g oal of be st intere st. Insum, we find S.G. ’s reasoning sound and see no compelling r eason to depa rt from its conclusion. From a pragmatic standpoint, we a gree w it h S.G. that the better rule is to find that Herrmann’s repres entation of both re spondent a

nd Dariu s in

these termination proceedings crea ted

a per se co nf li ct . A s s ta te d b y the courtin Hernande z, “[a]pplication of the per se rule is not unworka ble but rather straightforward and si mple.” Hernande

z, 231 I ll. 2d at 14 7. A clea r rule b et ter informs attorneys that, while multiple attorney s from the public defender’s office mayNo. 2—10—0685

4 The State asserts that Herrmann “stepped up” a t these proceedings, sugge sting that he merely appeared to assist his co lleag ues who could not be present. To the contrary , Herrmann appeared on behalf of

his client s. He did not, for example, represent to the court that respondent’s (or Darius’s) counsel was unavailable and that a c ontinuance was needed. This distinctionis critical because, in the latter example, Herrmann would be repre senting his offic e or his c olleag

ue, not a client. A ccordin

gly , there would be no

conflic t. -16- substitute to repre sent the s ame client, the same attorney may not during the proceedings appear on behalf of different

clients. 4 Further, a clear rule wi ll inform the trial court not to accept an appearancefrom an attorney who alread

y, a t some point duri

ng the proceed

ings, ap peared on behalf of an ot he r p ar ty. Thus, here , we conclude that a per se conflic t of inter

est requiring revers a l

arose when Herrmann appeared on both re spondent’s and Darius’s behalf at different times during the same proceedings. Prejudice is presumed and re spondent need not demonstrate that the conflict contributed

to the judg

ments ente

red ag ainst her . As Herr

mann’s first

appearance occurre d after the petition to termina

te parenta

l rights was filed, we reverse the judg ments of the trial court finding respondent unfit and

terminating her parental rights. We re mand for new

hearings on the petition to terminate and for the appointment of new counsel consistent with this opinion. Our conclusion should no t be c onstrued as insens itive to the

importanc e of fina

lity in juvenile procee dings. Rather, as the State conceded at oral argume nt, we do not pursue “finality a t any cost.” We remain

mindful tha

t a proce eding to

terminat e paren tal righ ts is a dras tic measure and that the strict procedu res c ontain ed in the Juvenile Court and Adoption Acts, including the right to be represented by

counsel, are paramount. In re E.B. , 231 Ill. 2d 459, 463-64 (2008).

III. CONCL

USIONNo. 2—10—0685

-17-

For the fore going

reasons , the judg

ment of the

circuit c ourt of Win

nebago Co unty is reverse d, and the cause is remanded. Reversed and remanded. JUS TICE HUT CHINSON , dis senti ng: I g eneral ly a

gree w iththe analysis prese

ntedby the majority

concerning the per se conflict of interest issue. I do not ag ree, however, that

this court should have reviewed the issue. I do not believe that we should address the issue because the issue was neve r raised in the trial cou

rt, either during th e serie s of hear ings tha t followe d the eve

nts in ques tion or upon any motio n fo r reconsideration. Accordingly , I do not believe that this issue has been pre served for review. This court should not overlook forfeiture because the rules of civil procedure do not direct our consideration of this issue. See In re Samantha V. , 234 I ll. 2d 359 (2009). In In r e M. W. , 232 Ill. 2d 408, 430

(2009), o

ur supre me court explained

that the f

orfeitur e princi ples t hat appl y in criminal procee dings also apply in proce edings under the Juvenile Court Act. A criminal defendant preserves an error for re

view by objectin g to the c laimed er

ror at tr ial and r ais ing t he issue in a posttrial motion. Samantha V. , 234 Ill . 2d at 368, c itin g M.W. , 232 Ill. 2d at 430. As the M.W. court stated, a responde nt’s fail ure to object a

t trial fo rfeits c onsidera

tion of the

claimed e

rror on a ppeal, unless the respondent can demonstrate plain error. M.W. , 232 Ill. 2d at 430. Inthe present case, respondent forfe ited review of this issue by

not objecting at trial and by notincluding it in a posttrial mot ion. See In re Madison H. , 215 Ill. 2d 364, 379 (2005), citing People v. En och , 122 Ill. 2d 176, 186 (1988) (both a trial objection and a w ritten posttrial motion raising the i ss ue are necessary to preserve an issue for appellate re view) . This same premise was recent ly addressed by

the Illinois Supreme Court. See People v . Taylor , 237 Ill. 2d 356 (2010)No. 2—10—0685

-18-

(where a potential conflict of interest is not brought to the attention of the trial court, a defe ndant

mus testablish that an actual conflict of interest adversely affected his lawy

er’s representation )

. Fi na ll y, anopinion rendered without trial court review of the issue would be purely a

dvisory. See In re Robert S. , 213 I ll. 2d 30, 45 (2004) ( stating that reviewing

courts should

not render advisory opinions). The record in this case is complete as to the evidence pre sented and the trial court’s finding s. A careful review of that recor d reveals no actual conflict of interest that impacted re spondent’s case. Counsel who appeared

consistently on behalf of r espondent after

attorney He

rrmann was present for respondent’s arraig

nment wag ed a stea

dy a nd solid ca se on behalf of respondent. I ndeed, respondent does not even raise the argument that an a ctual conflict of interest occurred. Rather, the majority and re spondent are concerned about what happe ned outside the record when the same assistant publi c de fender stepped up on behalf of respondent one day and then stepped up appro ximately

three months later on behalf of the minor. Had this repr esentat ion of both parties during the termination of parental rights proceeding s been addressed to the trial court during those proceedings or in a postjudgment motion, thetrial c ourt coul d have ta ken evide

nce, if

ne ce ss ar y, to determine whether during Herrmann’s brie f representation any information had be en revealed that compromised either

respondent’s case or the minor’s case. Dur ing oral argument, the State noted tha

t this c ase c ontinued on for several months after Herrmann’ s representation of the minor and that during this time, no one raised the i ssue or a pparent ly c onsidere d that the

scenar io raised a n ethica l problem or a conf

lict of int erest. By this dissent, I am not excusing this administrative mistake nor am I condoning it. The majority clearly ide

ntifies the dangers and potential constituti onal dime

nsions of s

uch conf usion in representation

during a terminat ion of par ental rig hts case . Furthe

rmore, it is also obvious that theNo. 2—10—0685

-19-

office of the public defender involved in this case recog nizes that it must be cautious in representing parties in complicated, multiparty case s, as it has created various "Conflicts" di visi ons within i

ts ranks. However, without more information and a proper resolution at

the trial court level, I believe that respondent has forfeited this issue. Finally, I remain very

concerned about stability on behalf of the minor her e. Our su preme court ha s established rule s for tria l courts and rule s for re

viewing courts to expedite these matte

rs, to give minors, whose lives are hanging in the balance, a decent chance at a stable, solid future as quickly as possible. See Ill. S. Ct. R. 311 (eff. Feb. 26, 2010). The majority is remanding

this case for new hearing s on the pe

tition to te

rminate r esponde nt’s par ental rig hts. The la st hearin

g in this

casetook place approximately six months ago, and base d upon responses from counsel during oral argume nt, respondent

and her e fforts have not been monitored by any child welfa

re entity since the closeof the proceedings. Furthermore , the trial court was emphatic in its ruling that respondent had “never been to a point whe

re the child

could be returned to her care” during t he monitor

ed perio ds. Ad di ti on al ly, the child

welf are repres entative

testifie d emphati cally

that it wa s in the be st intere st of the minor

to be adopted into a loving and stabl e home an

d that such an oppor

tunity was ava ilable for him. If this matter must be remanded, and as I have earlier

indicated, I do not believe that it should because the issue of a per se conflict of interest was not preserved, a more limited hea ring appears appropriate. Assuming that the trial court and the attorney s involved in the pre sentation

of this ca se are available, I

would recommend upon remand that the trial court conduct a hearing to determine what, if any, information

or knowledge was exchanged that could have compromised respondent’s

caseor the minor’s cas e. I f the tria l court de termined that a conflict of

inte rest did exist, then I believe new hearings on the petition to terminate re spondent’s parental rights should be held.