2021 IL 125969

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 125969) 

In re Br. M. and Bo. M., Minors (The People of the State of Illinois, Appellant, 

v. Wendy M., Appellee). 

Opinion filed April 15, 2021.

JUSTICE THEIS delivered the judgment of the court, with opinion. 

Justices Garman, Michael J. Burke, Overstreet, and Carter concurred in the 

judgment and opinion. 

Chief Justice Anne M. Burke dissented, with opinion, joined by Justice Neville.

OPINION

¶ 1 The sole issue in this case is whether the appellate court erred in reversing the 

trial court’s decision to terminate respondent Wendy M.’s parental rights on the 

grounds that her privately retained attorney at several hearings on a neglect petition 

had a per se conflict of interest because the attorney was previously appointed as 
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guardian ad litem for one of Wendy’s children and appeared at three hearings on 

an earlier neglect petition. For the reasons that follow, we reverse the judgment of 

the appellate court.

¶ 2 BACKGROUND

¶ 3 In 2011, Wendy was charged with felony theft and subsequently placed on 

probation. In 2012, Wendy tested positive for cocaine and phencyclidine (PCP). 

Her probation was revoked, and she was sentenced to two years’ imprisonment. 

Prior to entering custody, Wendy arranged for her boyfriend, Jermaine Mirenda, to 

care for her six-year-old daughter, Br. M. According to a Department of Children 

and Family Services (DCFS) integrated assessment, Br. “came to the attention of 

DCFS on 7/31/13 due to concerns regarding the appropriateness of [Br.] remaining 

in Mr. Mirenda’s care while [Wendy] was incarcerated.” Those concerns related to 

pending allegations that Mirenda sexually abused a previous partner’s seven- and 

eight-year-old daughters.1 On August 9, 2013, the State filed a petition alleging 

that Br. was neglected. 

¶ 4 On August 16, 2013, the trial court conducted a shelter care hearing. Wendy 

and Assistant State’s Attorney Tina Filipiak were present. Assistant Public 

Defender Gail Bembnister was appointed as counsel for Wendy, and Assistant 

Public Defender Lea Drell was appointed as guardian ad litem (GAL) for Br. 

Filipiak informed the court that Wendy would stipulate to the State’s allegations 

because she “is currently in custody and has a substance abuse problem that requires 

treatment.” The trial court found probable cause that Br. was neglected due to an 

injurious environment. The court further found that shelter care was in the child’s 

best interests, and it placed her in the temporary custody of DCFS. The court asked 

if Wendy understood that she would need to comply with a service plan from DCFS

and correct the conditions that led to the neglect finding or risk termination of her 

parental rights. Wendy said yes. 

¶ 5 On December 17, 2013, the trial court held an adjudicatory hearing. Wendy, 

Bembnister, Drell, and Assistant State’s Attorney Misty Cavanaugh were present. 

The trial court again found Br. neglected due to an injurious environment. The 

1

Mirenda was later indicated for sexual molestation of Br.
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factual basis for that finding was Wendy’s incarceration and substance abuse 

problem. Guardianship remained with DCFS. The court asked Wendy if she had 

been able to access services in prison. Wendy stated that she had attended parenting 

classes, as well as Alcoholics Anonymous and Narcotics Anonymous meetings. 

According to Bembnister, Wendy could not obtain individual counseling because 

she would not be incarcerated long enough. The court again asked if Wendy 

understood that her parental rights could be terminated if she did not comply with 

the service plan. Wendy said yes. 

¶ 6 On January 17, 2014, the trial court held a dispositional hearing. Wendy, 

Bembnister, Br., Drell, and Cavanaugh were present. The State presented no 

witnesses and offered a DCFS integrated assessment, a DCFS service plan, and a 

DCFS dispositional report as evidence. The State asked the trial court to find 

Wendy unfit and unable to care for Br. The court asked Drell for her position as 

GAL, and she said: 

“[W]e would join in the argument of the State. The mother is going to be 

incarcerated until 2015. 

We need to have a stable place for [Br.] until her mother gets out and can 

engage in services. So we agree that DCFS custody and guardianship is the best 

situation right now.” 

Bembnister insisted that Wendy was not unfit but rather only “unable” to care for 

Br. The trial court found Wendy unfit, made Br. a ward of the court, and placed her 

in DCFS custody. The court noted that Wendy’s release date would be in May 2014 

and asked again if she understood that her parental rights could be terminated if she 

did not comply with the service plan. Wendy said yes. 

¶ 7 After Wendy was released from prison, Bembnister filed a motion to restore 

fitness. On August 22, 2014, the trial court held a hearing on that motion. Wendy, 

Bembnister, and Cavanaugh were present. Bembnister informed the court that Drell 

was still acting as GAL. Bembnister stated that she had spoken to Drell about the 

motion and that “she has no objection and she did specifically cite the bond between 

the mother and the child.” The trial court granted the motion, terminated DCFS’s 

custody and guardianship, and vacated Br.’s wardship. The court’s order instructed, 

“close file.”
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¶ 8 A month later, the State filed a supplemental petition, alleging that Br. was 

neglected. On September 9, 2014, the trial court held an initial hearing on that 

petition. Wendy, Br., Bembnister, and Cavanaugh were present. Cavanaugh asked 

the trial court to name a court appointed special advocate (CASA) as GAL for the 

child. Cavanaugh also asked the court to let “PC lapse” and return Br. to Wendy. 

Apparently, the supplemental petition was based on a hotline call, and Cavanaugh 

had developed some doubts about the veracity of the caller’s information because 

of “animosity between the parties.” Cavanaugh still wanted the CASA’s “eyes and 

ears on this,” and the court set another hearing. On October 15, 2014, the parties 

returned to court, and the State made a motion to withdraw the supplemental 

petition. The trial court granted that motion. The court’s order instructed, “close 

file.”

¶ 9 Two years later, on September 26, 2016, the State filed a second supplemental 

petition, again alleging that Br. was neglected. The State filed a companion petition, 

alleging that Br.’s half-brother, Bo. M., was also neglected. That day, the trial court 

held a shelter care hearing. Wendy and Assistant State’s Attorney Walter Ratajczyk 

were present. Assistant Public Defender Lea Norbut was appointed to represent 

Wendy, and a CASA was appointed as GAL for both children. At the hearing, 

DCFS investigator Monique Boozer testified about two incidents. On August 16, 

2016, police officers were called to Wendy’s house around midnight because one 

of her children was screaming. When the officers arrived at the house, Wendy, her 

boyfriend, and Br. were outside. According to Boozer, Wendy was “so intoxicated 

that the police felt she was not able *** to care for the children,” and the officers 

arranged for a relative to care for them. Wendy took a drug test later that day, and 

she was “positive for PCP.” 

¶ 10 On September 22, 2016, DCFS received a hotline call with concerns about 

Wendy’s behavior when she picked up Bo. from school. The next day, when Wendy 

tried to pick up Bo. from school, her condition was reportedly “worse than she was 

the day before,” and school officials refused to let him go with her and called the 

police. Police officers drove Wendy and Bo. to her house. Later, Boozer went to 

the house to speak to Wendy, but she was not there. After several hours, Wendy 

eventually arrived with Br. Wendy “appeared to be out of it” and was “not 

responsive.” Boozer told Wendy that DCFS would find someone to watch the 

children overnight and would help her locate an inpatient substance abuse program 
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the next day. Boozer attempted to avoid taking protective custody of the children, 

but Br.’s paternal grandmother was unwilling to care for them, citing mistrust 

issues, and no other relative was available. Boozer called her supervisor and asked 

for help from the police. Police officers and Boozer told Wendy to get the children 

prepared to spend the night elsewhere, but she was unable to do so, so Br. did. The 

children then went to a neighbor’s house, but DCFS received a hotline call 

requesting their removal because Br. was hysterical and could not be calmed. A 

caseworker placed the children with another family.

¶ 11 At the conclusion of the hearing, the trial court found probable cause of an 

injurious environment for both children. The court also found an immediate and 

urgent necessity to place the children in temporary custody with DCFS. The court 

ordered DCFS to facilitate visitation between Wendy and the children and ordered 

Wendy to obtain a drug and alcohol evaluation. She indicated that she understood 

the court’s order.

¶ 12 That month, Wendy was incarcerated in the Will County Adult Detention 

Facility for driving under the influence. She was released in February 2017. 

¶ 13 On December 20, 2016, the trial court held an adjudicatory hearing. Wendy, 

Bo.’s putative father Gregory W., Boozer, a CASA as GAL for the children, and 

Ratajczyk were present. Wendy was represented by Assistant Public Defender 

Collette Safford, and Gregory was represented by Norbut standing in for her 

colleague Patricia Adair. The trial court admonished Wendy and Gregory, then 

accepted their stipulations to the allegations in the State’s second supplemental 

petition. The court found that the children were neglected due to an injurious 

environment. The court asked Wendy and Gregory if they understood that they 

must comply with their DCFS service plans or risk termination of their parental 

rights. They both said yes. 

¶ 14 On May 18, 2017, the trial court held a dispositional hearing. Wendy, Safford, 

a CASA as GAL for the children, and Filipiak were present. Gregory was also 

present and represented by Assistant Public Defender Bartholomew Markese on 

Adair’s behalf. The State offered four exhibits as evidence: a five-page 

dispositional report prepared by a DCFS representative, a 34-page service plan for 

both parents prepared by a DCFS representative, and two reports from Stepping 
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Stones, Wendy’s inpatient treatment center. Wendy and Gregory did not offer any 

further evidence.

¶ 15 The court found Wendy unfit because of her substance abuse problem. 

According to the court, “she has completed residential [treatment, but] she has 

failed to fully commit to an after-care plan and there are indications that she is 

continuing to use.” The court found Gregory unfit because he was incarcerated. The 

court made the children wards of the court and awarded custody and guardianship 

to DCFS. The permanency goal remained a return home for both children. The trial 

court asked the parents if they understood that their parental rights could be 

terminated if they failed to comply with their DCFS service plans. They said yes. 

¶ 16 On November 15, 2017, the trial court directed the State to review both cases 

for grounds to terminate the parental rights of Wendy and Gregory. On December 

14, 2017, the State filed termination petitions regarding both children. The petitions 

alleged that Wendy and Gregory were unfit in that they failed to (1) maintain a 

reasonable degree of interest, concern, or responsibility as to the children’s welfare; 

(2) protect the children from conditions within their environment injurious to the 

children’s welfare; (3) make reasonable efforts to correct the conditions that were 

the basis for the removal of the children; and (4) make reasonable progress toward 

the return of the children within nine months after the adjudication of neglect (from 

December 20, 2016, to September 20, 2017). 

¶ 17 At a March 21, 2018, status hearing, Wendy appeared with a new, privately 

retained attorney, Drell. Drell asked for a continuance to give Wendy “a chance to 

work on her services.” According to Drell, 

“She is doing really well and is very, very serious about rehabilitation and 

getting her children back. It’s very important to her and she is working very 

hard towards it, and I am here to see that she does that. We would like to have 

some time to get this all together.”

Drell added that Wendy is “willing to take her children back and desperately wants 

them back and is doing everything she can to do that.” The trial court agreed to a 

continuance. The fact that Drell appeared as Br.’s GAL at three hearings on the 

2013 neglect petition before the same trial judge was not mentioned. 
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¶ 18 On July 30, 2018, the parties returned to court. Drell asked the trial court to 

continue the trial date to give Wendy “a chance to get her act together.” Drell stated 

that she spoke to Wendy over a week earlier and that she had been evaluated by 

Stepping Stones. Drell also stated that Wendy “is now in a halfway house where 

she is getting substance abuse and parenting classes and doing everything that she 

is supposed to do.” The trial court refused to grant a continuance. 

¶ 19 On October 16, 2018, the trial court began a series of hearings on the State’s 

termination petitions. Wendy, Drell, Gregory, Norbut, a CASA as GAL for the 

children, DCFS case manager Josephina Reyes-Garcia, and Ratajczyk were 

present. Reyes-Garcia testified that Bo. was 3 years old and Br. was 11 years old. 

Both had been in protective custody for two years. The State asked Reyes-Garcia 

if Br. had been in foster care before; Drell objected, and the State withdrew the 

question. Reyes-Garcia had been the case manager for Br. and Bo. since March 

2017. At that time, Wendy’s integrated assessment showed that she suffered from 

substance abuse problems, and it recommended individual therapy and parenting 

classes. DCFS referred her to Stepping Stones. The center initially recommended 

outpatient treatment, but Wendy tested positive for drugs, so she entered an 

intensive residential treatment program in April 2017. At the end of that program, 

Stepping Stones recommended a 90-day extended residential treatment program. 

According to Reyes-Garcia, Wendy refused. She also refused a three-day-per-week 

intensive outpatient treatment program. Instead, she agreed to an outpatient 

recovery program that required one Stepping Stones meeting and one Alcoholics 

Anonymous meeting per week. Wendy did not attend any meetings for three weeks, 

and then she relapsed and tested positive for PCP in June 2017. 

¶ 20 Reyes-Garcia testified that she referred Wendy to Stepping Stones again for 

another assessment. Before that assessment, Wendy relapsed again and came to a 

supervised visit with Br. intoxicated. That visit was terminated immediately. 

Wendy spoke to Reyes-Garcia, blamed DCFS for taking her children, and denied 

being intoxicated. Ultimately, Wendy did the assessment at Stepping Stones, and 

the center recommended a 30-day residential treatment program. Wendy accepted 

that recommendation but discharged herself after 10 days. She refused to go back 

because she did not like the center, asserting that its staffers were “against her” and 

“lying about her.” Reyes-Garcia encouraged Wendy to seek treatment at another 

center called Brandon House, but Wendy chose to seek treatment at Women’s 
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Treatment Center in Chicago. She stayed 27 days of a 30-day inpatient program 

there, and the center recommended another intensive outpatient program. Wendy 

declined, telling Reyes-Garcia that “she felt she completed her treatment.” ReyesGarcia referred Wendy for two drug tests—one in November 2017 and one in 

December 2017. She did not attend the November test, but she attended the 

December one, and her result was “clean.” Reyes-Garcia then referred Wendy for 

four drug tests in February 2018. She attended none of them. Reyes-Garcia then 

requested that Wendy do a new substance abuse assessment at Stepping Stones. 

She refused.

¶ 21 Reyes-Garcia testified that Wendy was arrested for theft on April 11, 2018, and 

released on June 1. Wendy did an assessment at Stepping Stones in July 2018, and 

the center recommended outpatient treatment. Reyes-Garcia did not know whether 

Wendy completed that program. Reyes-Garcia testified about other aspects of 

Wendy’s service plan, including parenting classes and individual therapy. She did 

not complete the former, and the latter was terminated for poor attendance.

¶ 22 Drell then cross-examined Reyes-Garcia. Drell focused on Wendy’s initial 

integrated assessment, which another DCFS caseworker had completed prior to 

Reyes-Garcia’s involvement in the case. Drell noted that Wendy was incarcerated 

from September 2016 until February 2017 in the Will County jail, which was a 

sizeable portion of the nine-month period in which she could show reasonable 

progress regarding the service plan. Reyes-Garcia said that some services were 

available in the jail. Drell asked Reyes-Garcia whether Wendy took advantage of 

those services. Reyes-Garcia acknowledged that Wendy received a certificate for 

active participation in the jail’s drug recovery program and completed a total of 12 

classes. Reyes-Garcia also acknowledged that she never gave Wendy credit for 

those classes, though she did give her credit for attending therapy sessions. 

According to Reyes-Garcia, Wendy’s therapist said that she was making progress 

during the year that he saw her. The therapy required by the service plan, however, 

was not completed because Wendy stopped attending sessions due to an illness. 

Regarding parenting classes, Wendy participated in them at the center in Chicago 

but did not complete the entire parenting program. And she took parenting classes 

at the jail. 
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¶ 23 Reyes-Garcia stated that Wendy and Br. had a strong relationship “to an 

extent.” On redirect examination by the State, Reyes-Garcia explained:

“The relationship with [Wendy] and [Br.] is complicated based on the child 

where she has mixed emotions, where is most of the time worried, concerned 

about her mom’s whereabouts and safety and her well-being, causing her some 

stress, anxiety.” 

Reyes-Garcia expressed some “concerns” about Bo.’s relationship with Wendy. 

After visits with her, he would exhibit negative behaviors—tantrums, hitting, and 

biting. 

¶ 24 Kaitlin Nolan, an advocate supervisor with the CASA, testified about her 

concerns with Wendy as a parent. Nolan stated that, since September 2016, 

“Wendy seemed to have a drug addiction that continues to this day. She has 

been in and out of multiple rehab facilities, detox facilities. She’s visited 

multiple emergency rooms for PCP overdoses.

 She’s had the Joliet Fire Department called due to being unresponsive due 

to a drug overdose. She consistently says that she does not have a drug problem. 

She’s transient as to where she is living. She has multiple cases of domestic 

violence all the way up until the last month ***.” 

Nolan described three overdoses—one on April 7, 2017, another during the first 

week of May 2017, and another on June 6 or 7, 2017. On cross-examination by 

Drell, Nolan conceded that Wendy was “working at” addressing her substance 

abuse problem, but she did not complete treatment. 

¶ 25 After Nolan’s testimony, Drell made an oral motion for a directed verdict, 

arguing that the State had not proved that Wendy did not comply with her service 

plan. The State responded that it had demonstrated by clear and convincing 

evidence that Wendy did not make reasonable progress toward the return of her 

children during the nine-month period from December 20, 2016, to September 20, 

2017. Drell replied that Wendy was incarcerated for part of that period and still 

pursued services while in jail. The trial court denied the motion. 
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¶ 26 On November 20, 2018, the hearing continued. Tara Alexander from Help at 

Home, an organization that supervises visits for DCFS, testified that she was 

present for more than 10 visits between Wendy and her children. Drell asked 

Alexander about those visits. According to Alexander, Wendy brought them clothes 

and toys, and the three would play and interact together for two hours. Alexander 

noticed a strong bond between Wendy and the children, and the children did not 

want to leave at the end of those visits. Alexander repeated, “you could tell that 

they had a strong bond together.” 

¶ 27 Drell then called Wendy as a witness. Wendy stated that, while she was 

incarcerated for five months in late 2016 and early 2017, she took substance abuse 

and parenting classes in jail. Wendy then did an inpatient program at Stepping 

Stones when she was released. When the program was over, Wendy visited a 

therapist for a year on the recommendation of Reyes-Garcia. Wendy discussed the 

program at the Chicago center. There, she attended meetings and “learned a lot.” 

She also went to Alcoholics Anonymous meetings at a nearby church. According 

to Wendy, she found a sponsor and still attends meetings. She affirmed that she has 

maintained her sobriety for more than a year. 

¶ 28 Drell asked Wendy if she had satisfied all the requirements of her service plan 

when she left the Chicago center, and Wendy said yes. Her visits with her children 

were shortened to one hour per month when the State filed its termination petitions. 

When that happened and Reyes-Garcia recommended that Wendy return to 

substance abuse treatment, she checked herself into Tabitha House from July 17, 

2018, until October 9, 2018. Wendy called that facility “a recovery home for when 

you’re sober and trying to live a sober life and you go to meetings.” She had to do 

random drug tests while there. All were negative. Wendy testified that she moved 

out of Tabitha House after she found a home of her own in Joliet. She also found a 

job to support herself and her children. Wendy insisted that she had done everything 

that Reyes-Garcia asked.

¶ 29 On December 10, 2018, the trial court ruled that the State had proved by clear 

and convincing evidence that Wendy and Gregory were unfit. As to Wendy, the 

court stated: “[A]t the heart of the case is mother’s substance abuse. Mother has 

failed to successfully complete substance abuse treatment within the time period 
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alleged by the State.” The court recognized that she had completed inpatient 

treatment thereafter. The court scheduled a best interests hearing.

¶ 30 On January 25, 2019, the trial court convened a hearing. George Stuhr appeared 

on behalf of Wendy. According to Ratajczyk, Drell had a medical emergency and 

would not be able to participate in further proceedings for an extended period of 

time. The court asked Stuhr to draft a motion to withdraw and gave Wendy the 

option of a 21-day continuance to obtain other counsel or proceed with a public 

defender. Wendy chose the latter option. On April 26, 2019, the trial court held 

another hearing. Wendy; Margaret Naal, her new public defender; Gregory; 

Norbut; a CASA for both children; and Ratajczyk were present. The court agreed 

to appoint an attorney to represent Br., whose wishes diverged from the 

recommendation of the CASA. 

¶ 31 On September 25, 2019, the trial court found by a preponderance of the 

evidence that it was in the best interests of Br. and Bo. to terminate the parental 

rights of Wendy and Gregory. The court ordered that DCFS would still be the 

children’s guardian and custodian with power to consent to adoption. Wendy 

appealed.

¶ 32 A divided panel of the appellate court reversed the trial court’s decision and 

remanded for further proceedings, holding that a per se conflict existed because 

Drell served as Br.’s GAL before she served as Wendy’s attorney. 2020 IL App 

(3d) 190603. Although Wendy did not raise the conflict-of-interest issue before the 

trial court, the appellate court majority chose to address it, stating that forfeiture is 

a limitation on the parties and not on a reviewing court. Id. ¶ 23. 

¶ 33 The appellate court majority stated that both children and parents have a 

statutory right to counsel under section 1-5 of the Juvenile Court Act of 1987 (705 

ILCS 405/1-5 (West 2016)). 2020 IL App (3d) 190603, ¶ 24. That right to counsel 

includes the right to undivided loyalty by counsel. Id. (citing In re S.G., 347 Ill. 

App. 3d 476, 479 (2004)). Counsel may not represent “conflicting interests or 

undertake the discharge of inconsistent duties.” Id. The majority then maintained 

that the same per se conflict of interest rule that originated in criminal law also 

applies to proceedings under the Juvenile Court Act. Id. ¶ 25 (citing In re W.R., 

2012 IL App (3d) 110179, ¶ 29). The majority summarized that rule:
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“A per se conflict arises when a defense attorney has ties to a person that would 

benefit from an unfavorable verdict for the defendant because the attorney’s 

knowledge of her other client’s favorable result might conflict with the 

defendant’s interest and affect counsel’s performance in ways that are difficult 

to detect.” Id.

¶ 34 The majority discussed S.G., where the appellate court found a per se conflict 

of interest because the mother’s court-appointed attorney previously represented 

the children as the GAL in the same juvenile proceeding, and In re Darius G., 406 

Ill. App. 3d 727 (2010), where the appellate court found a per se conflict of interest 

because the parent’s court-appointed attorney later represented the child in the same 

juvenile proceeding. The majority followed those two cases in concluding that 

Drell’s representation of Br. as GAL from 2013 to 2014 and her later representation 

of Wendy constituted a per se conflict. 2020 IL App (3d) 190603, ¶ 28. The 

majority reasoned: 

“Although Drell’s representation of different clients was not simultaneous, the 

goal of the juvenile proceedings was clearly compromised. Any opinion Drell 

may have developed regarding [Br.’s] best interests in her prior capacity as 

GAL might have conflicted with [Wendy’s] position and affected counsel’s 

ability to represent [Wendy] in the termination proceeding with ‘undivided 

loyalty.’ ” Id.

¶ 35 Justice Wright dissented, asserting that a per se conflict of interest exists only 

when a court-appointed attorney has a contemporaneous relationship with a third 

party that makes undivided loyalty very difficult. Id. ¶ 35 (Wright, J., dissenting) 

(citing In re D.B., 246 Ill. App. 3d 484, 491 (1993)). Here, there was never 

contemporaneous representation of Br. and Wendy by Drell. Id. Justice Wright 

highlighted the fact that litigation of the first petition was completed in 2014 and 

the second petition was not filed until 2016. Id. ¶ 38. And in 2018, Wendy “made 

a choice that gave rise to an argument about [her] attorney’s undivided loyalty.” Id.

¶ 41. 

¶ 36 According to Justice Wright, vacating the trial court’s order created a perverse 

incentive:
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“[I]f a per se conflict of interest exists in this case, then every parent would be 

wise to replace nonconflicted court-appointed counsel with private counsel, 

arguably previously tied to another party. This approach *** would guarantee 

every parent a right to relief from adverse rulings by choosing private counsel 

with arguable conflicts.” Id. ¶ 42. 

¶ 37 This court allowed the State’s petition for leave to appeal. See Ill. S. Ct. R. 

315(a) (eff. Oct. 1, 2019). Our review of the legal issue presented here proceeds 

de novo. People v. Green, 2020 IL 125005, ¶ 19. 

¶ 38 ANALYSIS

¶ 39 Before addressing the merits, we must decide whether Wendy forfeited 

consideration of her per se conflict of interest claim by not raising it before the trial 

court. In effect, Wendy created the conflict by hiring Drell, then waited until she 

lost her parental rights to raise her conflict claim for the first time on appeal. The 

appellate court majority excused any procedural default, however, by briefly 

mentioning the proposition that forfeiture is a limitation on the parties and not on 

the reviewing court. See 2020 IL App (3d) 190603, ¶ 23 (citing In re D.F., 208 Ill. 

2d 223, 239 (2003)). While the proposition remains true, the exception to forfeiture 

principles that it provides is narrow. 

¶ 40 “Parents have a fundamental liberty interest in raising and caring for their 

children ***.” Sharpe v. Westmoreland, 2020 IL 124863, ¶ 15 (citing In re N.G., 

2018 IL 121939, ¶¶ 24-25); see Obergefell v. Hodges, 576 U.S. 644, 668 (2015) 

(stating that the right to “ ‘ “bring up children” is a central part of the liberty 

protected by the Due Process Clause’ ” (quoting Zablocki v. Redhail, 434 U.S. 374, 

384 (1978), quoting Meyer v. Nebraska, 262 U.S. 390, 399 (1923))). “Because of 

the liberty interests involved, courts will not easily terminate those rights.” In re 

M.H., 196 Ill. 2d 356, 363 (2001). And a reviewing court should not easily declare 

forfeiture of an argument directed at a decision to terminate those rights—

particularly where, as here, there is some tension about that argument in the 

appellate court. Compare Darius G., 406 Ill. App. 3d 727, and S.G., 347 Ill. App. 

3d 476, with D.B., 246 Ill. App. 3d 484; see In re Quadaysha C., 409 Ill. App. 3d 

1020, 1025 (2011) (describing representation of multiple parties by the same 

attorney in juvenile proceedings as a “recurring problem”). In order to maintain a 
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uniform body of precedent and reach a just result, we choose to reach the merits. 

See In re Tamera W., 2012 IL App (2d) 111131, ¶ 30. 

¶ 41 While the sixth and fourteenth amendments to the United States Constitution 

(U.S. Const., amends. VI, XIV) and article I, section 8, of the Illinois Constitution 

of 1970 (Ill. Const. 1970, art. I, § 8) guarantee the right to counsel in criminal 

proceedings, the right to counsel in proceedings under the Juvenile Court Act is 

provided by statute. Section 1-5(1) of the Juvenile Court Act states:

“[T]he minor who is the subject of the proceeding and his parents *** have the 

right to be present, to be heard, to present evidence material to the proceedings, 

to cross-examine witnesses, to examine pertinent court files and records and 

also, although proceedings under this Act are not intended to be adversary in 

character, the right to be represented by counsel.” 705 ILCS 405/1-5(1) (West 

2016). 

See In re Adoption of K.L.P., 198 Ill. 2d 448, 461 (2002) (“an indigent parent in a 

termination proceeding brought under the Juvenile Court Act is entitled to courtappointed counsel, not because the due process clause of the Illinois or United 

States Constitutions mandates it, but because the legislature has chosen to guarantee 

the assistance of counsel to indigent parents”). 

¶ 42 The sixth amendment right to counsel implies the right to effective assistance. 

People v. Peterson, 2017 IL 120331, ¶ 79. Though the statutory right to counsel in 

proceedings under the Juvenile Court Act lacks constitutional footing (see People 

v. Lackey, 79 Ill. 2d 466, 468 (1980) (per curiam) (citing In re Adoption of 

Hoffman, 61 Ill. 2d 569, 579-80 (1975)), that right is closely linked to its 

constitutional counterpart (In re R.G., 165 Ill. App. 3d 112, 127 (1988) (stating that 

the constitutional right to counsel “has been codified and extended to the parents of 

a minor who are parties respondent in a proceeding under the Juvenile Court Act”)). 

Both rights imply a right to effective assistance. In re D.M., 258 Ill. App. 3d 669, 

673 (1994) (stating that “inherent in the Juvenile Court Act’s right to counsel is the 

right that such counsel be effective”); accord In re M.D.B., 121 Ill. App. 3d 77, 84 

(1984); In re Johnson, 102 Ill. App. 3d 1005, 1011 (1981). To hold otherwise would 

render the statutory right illusory. See R.G., 165 Ill. App. 3d at 127 (“It would seem 

a useless gesture on the one hand to recognize the importance of counsel in 

proceedings to terminate parental rights—as evidenced by our statutory right for 
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same—and, on the other hand, not require that counsel perform effectively.”); cf. 

In re Barbara H., 183 Ill. 2d 482, 496 (1998) (refusing to allow the statutory right 

to counsel in civil proceedings under the Mental Health and Developmental 

Disabilities Code (405 ILCS 5/3-800 et seq. (West 1996)) to be “reduced to no more 

than an empty formality”). 

¶ 43 Our rubric for evaluating ineffective assistance claims in criminal cases is the 

two-prong standard in Strickland v. Washington, 466 U.S. 668 (1984). See People 

v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting the Strickland standard). Under 

that standard, a defendant must show substandard performance by defense counsel 

and resulting prejudice. Peterson, 2017 IL 120331, ¶ 79 (citing People v. Patterson, 

192 Ill. 2d 93, 107 (2000)). We recognize that there are differences between 

criminal law proceedings and proceedings under the Juvenile Court Act, but the 

Strickland standard, because of its familiarity and simplicity, offers a helpful 

structure to guide our analysis. 

¶ 44 One aspect of effective assistance is conflict-free assistance—that is “assistance 

by an attorney whose allegiance *** is not diluted by conflicting interests or 

inconsistent obligations.” People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988); accord 

People v. Hernandez, 231 Ill. 2d 134, 142 (2008); see People v. Coslet, 67 Ill. 2d 

127, 134 (1977) (stating that the right to counsel “entitles the person represented to 

the undivided loyalty of counsel”). A conflict-of-interest claim is a specific form of 

an ineffective assistance claim. Essentially, the party asserting such a claim is 

arguing that a conflict rendered the attorney’s performance substandard and that the 

substandard performance caused prejudice. 

¶ 45 We have recognized two types of conflicts—per se and actual. Green, 2020 IL 

125005, ¶ 20. A per se conflict arises when the attorney had or has “a tie to a person 

or entity” that would benefit from a verdict unfavorable to the client. Spreitzer, 123 

Ill. 2d at 16. Pursuant to long-standing precedent, there are only three situations in 

which that occurs: 

“(1) when defense counsel has a prior or contemporaneous association with the 

victim, the prosecution, or an entity assisting the prosecution [citations]; 

(2) when defense counsel contemporaneously represents a prosecution witness 

[citations]; and (3) when defense counsel was a former prosecutor who had 
- 16 - 

been personally involved in the prosecution of the defendant [citation].” 

Hernandez, 231 Ill. 2d at 143-44. 

Accord Fields, 2012 IL 112438, ¶ 18; Green, 2020 IL 125005, ¶ 43. 

¶ 46 In those situations, the tie “may have subtle or subliminal effects on counsel’s 

performance that are difficult to detect and demonstrate.” Peterson, 2017 IL 

120331, ¶ 103. A party alleging a per se conflict need only show that one of those 

ties exists (see People v. Hillenbrand, 121 Ill. 2d 537, 544 (1988)) and need not 

show that it affected the attorney’s performance (see Spreitzer, 123 Ill. 2d at 15). 

Under Strickland, prejudice is presumed. Green, 2020 IL 125005, ¶ 21 

(“ ‘allegations and proof of prejudice are unnecessary in cases where a defense 

counsel *** might be restrained in fully representing the defendant’s interests due 

to *** commitments to others’ ” (quoting Coslet, 67 Ill. 2d at 133)); Hernandez, 

231 Ill. 2d at 142-43. And the remedy is automatic reversal unless the client waives 

the conflict. Green, 2020 IL 125005, ¶ 24.2

 

¶ 47 In reaching its ultimate holding that there was a per se conflict, the appellate 

court majority followed S.G. and Darius G., so we will discuss them. In S.G., the 

trial court initially appointed one public defender, Brian Wernsman, to represent 

the mother and one public defender, Michael McHaney, to serve as GAL for her 

children at the shelter care hearing in neglect proceedings. S.G., 347 Ill. App. 3d at 

478. At a subsequent hearing, the trial court vacated the appointment of Wernsman 

and appointed McHaney to represent the mother and another attorney to serve as 

GAL. Id. In sum, McHaney served as the children’s GAL for almost 2 months, and 

2

The notion that Wendy did not know of Drell’s involvement in proceedings on the 2013 neglect 

petition before hiring her at the key moment in proceedings on the 2016 neglect petition defies 

credulity. Wendy was present in court at the shelter care hearing, the adjudicatory hearing, and the 

dispositional hearing in the former case, and Drell introduced herself at all three hearings and agreed 

with the State’s argument in the dispositional hearing. Wendy was also present at the hearing on the 

motion to restore her fitness, where her attorney Bembnister indicated that Drell as GAL had no 

objection and spoke of the “bond” between Wendy and Br. All of the hearings at which Drell 

appeared, on both neglect petitions, were before the same trial judge.

The record, however, does not indicate that Drell’s work as GAL for Br. was mentioned when 

she appeared in 2018. We have intimated that there is more scrutiny of potential conflicts when 

counsel is appointed, rather than retained (see People v. Stoval, 40 Ill. 2d 109, 113 (1968)), but we 

have also cautioned about the need to ensure knowledgeable assent to conflicts of interest (see 

Coslet, 67 Ill. 2d at 135). In the absence of facts to show such assent, it is not possible to say that 

Wendy waived any conflict.
- 17 - 

he served as the mother’s attorney for almost 31⁄2 years. Id. At the close of the 

proceedings, the mother’s parental rights were terminated, and she appealed. Id.

¶ 48 The appellate court reversed and remanded. Id. The appellate court referred to 

a parent’s statutory right to counsel under the Juvenile Court Act and the 

accompanying right to effective assistance. Id. at 478-79. That right, in turn, entitles 

the parent to undivided loyalty from the attorney. Id. at 479. Consequently, 

“counsel may not represent conflicting interests or undertake the discharge of 

inconsistent duties.” Id. According to the appellate court, that concept is “so central 

to our profession” that it was formalized in the Rules of Professional Conduct. Id.

(citing Ill. R. Prof’l Conduct R. 1.9 (eff. Aug. 1, 1990)). The court continued, 

describing our development of the per se conflict of interest rule for “cases where 

a conflict is created by defense counsel’s prior or contemporaneous association with 

either the prosecution or the victim.” Id.

¶ 49 The appellate court reasoned that the policy concerns behind the per se conflict 

rule were present there because McHaney “represented parties with adverse 

objectives at different times in the same proceeding.” Id. at 480-81. The court noted 

that the State did not contest that the interests of the mother and her children were 

“diametrically opposed.” Id. at 481. The mother sought to retain her parental rights, 

while McHaney, as the children’s GAL, “advocated otherwise.” Id. The brevity of 

that appointment did not affect the court’s conclusion that the rule applied because 

the attorney may have formulated opinions about the children’s best interests that 

were not reflected by the record. Id.

¶ 50 In Darius G., attorney Erin Buhl represented the mother at two permanencyreview hearings in neglect proceedings. Darius G., 406 Ill. App. 3d at 729. A month 

later at the arraignment on the State’s parental rights termination petition, attorney 

Mike Herrmann represented the mother. Id. at 730. Three months later at a pretrial 

conference, Buhl again represented the mother, and Herrmann appeared on behalf 

of the child. Id. Nothing substantive happened at that hearing; the court simply 

scheduled a trial date. Id. Hermann never made another appearance in the case, but 

Buhl continued to represent the mother. Id. At the close of the proceedings, her 

rights were terminated. She appealed. Id. at 731. 

¶ 51 A divided panel of the appellate court reversed and remanded. Id. at 739. The 

appellate court majority stated that, “when the same attorney represents opposing 
- 18 - 

parties in the course of the same litigation, a per se conflict of interest arises and 

prejudice is presumed.” Id. at 731. The majority explained that a per se conflict 

occurs when defense counsel has ties to a person or entity that would benefit from 

an unfavorable verdict for the defendant. Id. at 732. The majority recited the three 

situations of per se conflicts identified by this court in that case. Id. (citing 

Hernandez, 231 Ill. 2d at 143-44). The majority then dismissed the State’s argument 

that none of the three situations occurred and instead relied upon S.G. in holding 

that the per se conflict rule applied because Herrmann appeared on behalf of both 

the mother and the child. Id. at 738. 

¶ 52 The appellate court majority acknowledged that, “if there is a spectrum upon 

which scenarios suggesting conflict might be measured in cases of dual, 

nonsimultaneous representation in termination cases, this case arguably presents 

the threshold.” Id. at 736-37. Herrmann represented the mother at one hearing and 

represented the child at another hearing. Id. at 737. At both hearings, he made no 

substantive, on-the-record argument. Id. The majority found that irrelevant. Id.

(citing S.G., 347 Ill. App. 3d at 481). Though “the shared goal in juvenile 

proceedings is to serve the child’s best interest,” what that best interest may entail 

“often depends on whose perspective is being considered.” Id. at 738. According to 

the appellate court majority, “competing positions clearly may exist within the 

unified goal of best interest.” Id.

¶ 53 S.G. predated Hernandez, where we first used the three-situation formulation 

of the per se conflict rule, so the appellate court’s loose application of the rule in 

that case is perhaps understandable. The appellate court majority opinion in Darius 

G. postdated Hernandez. The majority there correctly presented the holding in 

Hernandez and the three situations when a per se conflict occurs, then ignored those

situations in favor of its own sense of what constitutes a conflicting interest. The 

analyses in those cases clearly depart from our approach to per se conflicts. S.G.

and Darius G. are, therefore, overruled. 

¶ 54 Worse still, the appellate court majority in this case did not even mention our 

approach to per se conflicts and the three situations at all. Instead, the majority 

stated the per se conflict rule like this: 

“A per se conflict arises when a defense attorney has ties to a person that would 

benefit from an unfavorable verdict for the defendant because the attorney’s 
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knowledge of her other client’s favorable result might conflict with the 

defendant’s interest and affect counsel’s performance in ways that are difficult 

to detect.” 2020 IL App (3d) 190603, ¶ 25 (citing Darius G., 406 Ill. App. 3d at 

732, citing Hernandez, 231 Ill. 2d at 142-43).

In Fields, 2012 IL 112438, ¶ 40, we called a similar statement “the justification for 

the per se conflict rule,” as opposed to the rule itself, and strongly rejected any 

interpretation of the statement that would create a fourth situation or an alternate 

basis for finding a per se conflict. The majority in this case did not cite Fields. 

¶ 55 The appellate court majority had the benefit of Hernandez and Fields; it just 

chose not to use them. The State contends that the appellate court majority’s 

analysis was flawed, and we agree. The majority failed to identify which of the 

three narrow situations created a per se conflict here. As we recently reiterated, 

“this court recognizes only three situations in which a per se conflict of interest will 

be found to exist.” Green, 2020 IL 125005, ¶ 43. That is a closed set, and any other 

situations may be examined for an actual conflict of interest. Id. ¶ 38. Obviously, 

the second and third situations did not occur. Drell did not contemporaneously 

represent Wendy and a prosecution witness, and Drell was not a former prosecutor 

involved in a criminal case against Wendy. The question becomes whether the first 

situation occurred. That is, we must determine whether Drell had a prior association 

with the victim, the prosecution, or an entity assisting the prosecution. 

¶ 56 The State argues that Br. was not a victim. Although she was adjudicated 

neglected, the Juvenile Court Act does not refer to a neglected child as a victim but 

rather as “the subject of the proceeding.” 705 ILCS 405/1-5(1) (West 2016). The 

State observes that Br. does not meet the definition of “crime victim” under the 

Rights of Crime Victims and Witnesses Act (725 ILCS 120/1 et seq. (West 2016)). 

That statute defines “crime victim” as “any natural person determined by the 

prosecutor or the court to have suffered direct physical or psychological harm as a 

result of a violent crime perpetrated or attempted against that person or direct 

physical or psychological harm as a result of” a driving under the influence offense 

or an involuntary manslaughter/reckless homicide offense. Id. § 3(a)(1).

¶ 57 Wendy argues that Drell had a prior association with “the victim”—the 

children. According to Wendy, her “untreated drug issues *** rendered the minors 

unwilling recipients of [her] actions which placed them in a position of harm and/or 
- 20 - 

threat of harm.” Wendy quotes definitions of “victim” from Black’s Law 

Dictionary and Webster’s dictionary. The former states that a victim is “[t]he person 

who is the object of a crime or tort.” Black’s Law Dictionary 1567 (6th ed. 1990). 

The latter states that a victim is “one that is subjected to oppression, hardship, or 

mistreatment.” Merriam-Webster’s Online Dictionary, https://www.merriamwebster.com/dictionary/victim (last visited Feb. 22, 2021) [https://perma.cc/7T52-

998U]. Wendy also asserts that Drell’s cooperation with the State at the 

dispositional hearing on the 2013 neglect petition amounted to assistance for the 

prosecution. 

¶ 58 After making a “ ‘realistic appraisal’ ” of Drell’s professional relationship with 

Br. (see People v. Austin M., 2012 IL 111194, ¶ 83 (quoting People v. Daly, 341 

Ill. App. 3d 372, 376 (2003))), we hold that Drell was not associated with the victim 

for purposes of the per se conflict rule when she acted as Br.’s GAL at three 

hearings on the 2013 neglect petition. An allegedly neglected minor is not a victim 

but “the subject of the proceeding” under the Juvenile Court Act, and such 

proceedings “are not intended to be adversary in character.” 705 ILCS 405/1-5(1) 

(West 2016). 

¶ 59 Further, Drell was never associated with the prosecution. Section 2-17(1) of the 

Juvenile Court Act provides that, when the State files an abuse or neglect petition, 

the trial court must appoint a guardian ad litem to represent the best interests of the 

child and to offer recommendations to the court consistent with that duty. Id. § 2-

17(1). In an abuse or neglect proceeding, “a GAL is, in essence, an arm of the 

court.” Austin M., 2012 IL 111194, ¶ 69; see In re Mark W., 228 Ill. 2d 365, 374 

(2008) (“A guardian ad litem functions as the ‘eyes and ears of the court’ and not 

as the ward’s attorney.”). Traditionally, a GAL is not an advocate for the ward but 

an adviser to the court as to what is in the ward’s best interest. Id.; accord Nichols 

v. Fahrenkamp, 2019 IL 123990, ¶ 35 (stating that most Illinois cases treat the GAL 

as “a reporter or a witness and not as an advocate”). 

¶ 60 As GAL for Br., Drell acted at the behest of the trial court, not the State. Drell’s 

only substantive comment during proceedings on the 2013 neglect petition 

indicated that Br.’s best interests aligned with the State’s argument simply because 

her mother was incarcerated. Drell added that Br. needed a stable home until Wendy 

was released and could engage in services. The appellate court majority speculated 
- 21 - 

that any opinion that Drell may have developed regarding Br.’s best interests in her 

prior capacity as GAL in proceedings on the 2013 neglect petition might have 

conflicted with Wendy’s position in proceedings on the 2016 neglect petition. That 

reasoning is demonstrably false. Drell’s opinion about Wendy was favorable. She 

declined to object to the motion to restore Wendy’s fitness, citing the bond between 

Wendy and Br. We conclude that the appellate court majority erred in holding that 

Drell operated under a per se conflict of interest when she represented Wendy. We 

repeat: That conclusion would not preclude a parent from asserting an actual 

conflict of interest claim in a similar context. See Hernandez, 231 Ill. 2d at 144 (“If 

a per se conflict does not exist, a defendant may still establish a violation of [the] 

right to effective assistance of counsel by showing an actual conflict of interest that 

adversely affected *** counsel’s performance.”). Wendy did not do that here, so 

our inquiry ends. 

¶ 61 Today, Br. is more than 14 years old. She has spent most of her life in foster 

care. Reversal here would not affect the 2013 neglect proceedings, which ended 

when Wendy’s rights were restored. Reversal, however, would undo the result of 

the 2016 neglect proceedings, which ended when Wendy’s rights were terminated. 

Br. would be sent back five years, as if none of this had ever happened. Perhaps 

that is what she wants, judging from her argument in this case, but we believe that 

stability and finality are more important. See In re Kenneth F., 332 Ill. App. 3d 674, 

679-80 (2002) (“Of primary concern is permanency and stability in the lives of 

children involved in termination proceedings.”); In re Paul L.F., 408 Ill. App. 3d 

862, 870 (2011) (Hudson, J., dissenting) (“A per se rule that allows—indeed, 

requires—reversal for an error that is not prejudicial does not strike a proper 

balance between a party’s right to counsel and a child’s need for finality.”).

¶ 62 CONCLUSION

¶ 63 For the reasons that we have stated, the judgment of the appellate court is 

reversed, and the judgment of the circuit court is affirmed. 

 

¶ 64 Appellate court judgment reversed. 
- 22 - 

¶ 65 Circuit court judgment affirmed.

¶ 66 CHIEF JUSTICE ANNE M. BURKE, dissenting:

¶ 67 The issue before this court is whether the doctrine of per se conflict of interest 

extends to proceedings under the Juvenile Court Act of 1987 (Act) (705 ILCS 

405/1-1 et seq. (West 2016)) and, if so, whether in this case attorney Lea Drell 

labored under a per se conflict of interest when she represented Wendy M. 

(respondent) in proceedings to terminate respondent’s parental rights. The appellate 

court held that, because Drell had previously served as guardian ad litem (GAL) for 

one of respondent’s children, a per se conflict existed. Accordingly, the appellate 

court reversed the termination of respondent’s parental rights and remanded for 

new proceedings. 2020 IL App (3d) 190603. 

¶ 68 A majority of this court now reverses the appellate court’s judgment and 

overrules two appellate cases the court below relied upon. The majority concludes 

that, although claims of per se conflict of interest are cognizable in proceedings 

under the Act, there was no per se conflict in this case. The majority reaches this 

conclusion because it finds that there are only three situations where a per se

conflict is recognized and that the circumstances of this case do not fit within the 

strict parameters of any of those three situations.

¶ 69 I disagree with the majority’s conclusion that the circumstances of this case do 

not give rise to a per se conflict of interest. I would affirm the appellate court 

judgment, reverse the termination of respondent’s parental rights, and remand for 

further proceedings. Therefore, I respectfully dissent. 

¶ 70 The rules concerning per se conflicts were developed in the context of criminal 

prosecutions. As we noted in People v. Green, 2020 IL 125005, ¶ 21, the term 

“per se” conflict was first coined in People v. Coslet, 67 Ill. 2d 127 (1977), to 

describe a conflict rule that had been adopted in some earlier criminal cases 

“whereby allegations and proof of prejudice are unnecessary *** where a defense 

counsel, without the knowledgeable assent of the defendant, might be restrained in 

fully representing the defendant’s interests due to his or her commitments to 

others.” Id. at 133 (citing People v. Stoval, 40 Ill. 2d 109, 113 (1968)). The per se

conflict rule recognizes that the constitutional right to effective assistance of 
- 23 - 

counsel is a fundamental right, which must not be “ ‘diluted by conflicting interests 

or inconsistent obligations.’ ” Green, 2020 IL 125005, ¶ 20 (quoting People v. 

Spreitzer, 123 Ill. 2d 1, 13-14 (1988)). Therefore, a per se conflict claim is a special 

type of ineffective assistance of counsel claim.

¶ 71 Since Coslet, the per se conflict rule has been applied in a number of situations. 

People v. Lawson, 163 Ill. 2d 187, 210 (1994). The common denominator in each 

of these situations is that we found certain “facts about a defense attorney’s status 

*** engender[ed], by themselves, a disabling conflict.” (Emphasis in original.) 

Spreitzer, 123 Ill. 2d at 14-15 (listing cases); see also People v. Hernandez, 231 Ill. 

2d 134, 142 (2008). It is now well established that, in criminal matters, when a 

defense attorney has ties to a person or entity that might benefit from an unfavorable 

verdict for the defendant, the “ ‘situation is too fraught with the dangers of 

prejudice, prejudice which the cold record might not indicate, that the mere 

existence of the conflict is sufficient to constitute a violation of [defendant’s] rights 

whether or not it in fact influences the attorney or the outcome of the case.’ ” Stoval, 

40 Ill. 2d at 113 (quoting United States ex rel. Miller v. Myers, 253 F. Supp. 55, 57 

(E.D. Pa.1966)). 

¶ 72 The rationale for adopting a per se conflict rule is that the defense attorney’s 

past or present commitments “may have subtle or subliminal effects on counsel’s 

performance that are difficult to detect and demonstrate” but raise the possibility 

that the attorney is unable to effectively represent his or her client. People v. 

Peterson, 2017 IL 120331, ¶ 103. In these situations, prejudice will be presumed, 

and there is no need—indeed, it may be impossible—to show actual prejudice 

resulting from the conflict. Spreitzer, 123 Ill. 2d at 16. As a result, when a per se

conflict exists, the court on appeal must reverse unless the conflict was 

affirmatively waived. Id. at 14-17. 

¶ 73 In Hernandez, we examined cases in which a per se conflict was alleged and 

identified three categories of cases in which a defense attorney representing a 

defendant in criminal proceedings had been found to have labored under a per se

conflict of interest: 

“(1) when defense counsel has a prior or contemporaneous association with the 

victim, the prosecution, or an entity assisting the prosecution (Spreitzer, 123 Ill. 

2d at 14; see also People v. Lawson, 163 Ill. 2d 187, 210-11 (1994) (collecting 
- 24 - 

cases)); (2) when defense counsel contemporaneously represents a prosecution 

witness (see People v. Moore, 189 Ill. 2d 521, 538 (2000); People v. Thomas, 

131 Ill. 2d 104, 111 (1989)); and (3) when defense counsel was a former 

prosecutor who had been personally involved in the prosecution of the 

defendant (see Lawson, 163 Ill. 2d at 217-18).” Hernandez, 231 Ill. 2d at 143-

44 (2008). 

These situations are not the per se conflict rule itself but a distillation of the 

circumstances that will give rise to a per se conflict. In criminal cases, efforts to 

expand these situations or add new ones have been rejected by this court. See 

Green, 2020 IL 125005, ¶¶ 37-43; People v. Fields, 2012 IL 112438, ¶ 41. 

¶ 74 The case before us is not a criminal case. Moreover, until this case, this court 

had never before even considered whether the doctrine of ineffective assistance of 

counsel—which includes recognition of per se conflicts of interest—could be 

extended to proceedings under the Act. Today, by analogizing a criminal 

defendant’s constitutional right to effective assistance of counsel to the statutory 

right to counsel provided for in section 1-5(1) of the Act (705 ILCS 405/1-5(1) 

(West 2016)) and by finding that the statutory right to counsel would be 

meaningless unless it implied the right to effective assistance of counsel, the 

majority holds that claims of per se conflict of interest are cognizable in 

proceedings under the Act. On this point I agree with the majority. Where I part 

company is with the majority’s application of the per se conflict doctrine to this 

case.

¶ 75 Rather than consider how the purposes and concepts underpinning the per se

conflict doctrine in the criminal context might translate to this new context, the 

majority simply lifts the rules for finding a per se conflict in criminal cases and 

superimposes them, verbatim, on these civil proceedings. This is undeniably not 

possible. As the majority itself acknowledges, criminal proceedings and 

proceedings under the Act are quite different. The terminology and rules used to 

determine whether a per se conflict exists in a criminal proceeding logically cannot 

be applied to the parental termination proceedings in this case. 

¶ 76 The majority holds that Drell did not operate under a per se conflict when she 

represented respondent in parental termination proceedings. The reason offered for 

this conclusion is that Drell’s previous association was with Br., one of 
- 25 - 

respondent’s children, when Drell acted as Br.’s guardian ad litem in prior neglect 

proceedings and that “[an] allegedly neglected minor is not a victim but ‘the subject 

of the proceeding’ under the Juvenile Court Act, and such proceedings ‘are not 

intended to be adversary in character.’ 705 ILCS 405/1-5(1) (West 2016).” Supra

¶ 58. 

¶ 77 This reasoning clearly demonstrates the flaw in the majority’s analysis. The 

majority’s mechanical application of the per se conflict rules for criminal cases to 

the parental termination proceedings in this case is illogical and improper. In my 

view, the proper procedure for determining whether Drell labored under a per se

conflict of interest in this case is to apply the per se conflict doctrine first set out in 

Coslet. That is, we should consider whether this is a case where allegations and 

proof of prejudice are unnecessary because respondent’s counsel, without the 

knowledgeable assent of respondent, might have been restrained in fully 

representing respondent’s interests due counsel’s prior commitment as GAL. 

Undertaking such an analysis, I would find that a per se conflict did exist.

¶ 78 Drell’s past commitment as Br.’s GAL gave Drell full access to court records 

and the State’s allegations of neglect, as well as information about respondent’s 

background, behavior, and parenting ability. As GAL, it was Drell’s responsibility 

to formulate recommendations regarding the best interests of respondent’s child. 

As such, Drell necessarily formed opinions regarding respondent and her behavior. 

Further, it is impossible to know whether Drell’s involvement as Br.’s GAL 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.

¶ 79 Even if we were to simply analogize the per se conflict situations in criminal 

cases to this case, I would find the majority erred. The majority finds that Drell did 

not labor under a per se conflict of interest because Br., as the subject of neglect 

proceedings, was not a “victim.” However, 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? 

¶ 80 Finally, I note that the majority also rejects the appellate court’s judgment, 

stating:
- 26 - 

“The appellate court majority speculated that any opinion that Drell may have 

developed regarding Br.’s best interests in her prior capacity as GAL in 

proceedings on the 2013 neglect petition might have conflicted with Wendy’s 

position in proceedings on the 2016 neglect petition. That reasoning is 

demonstrably false. Drell’s opinion about Wendy was favorable.” Supra ¶ 60. 

This statement demonstrates a fundamental misunderstanding of per se conflicts in 

proceedings under the Act. As noted above, it has been firmly established that a 

per se conflict will be found when facts concerning the attorney’s status gives rise 

to the possibility of a conflict. Spreitzer, 123 Ill. 2d at 14; Hernandez, 231 Ill. 2d at 

142. We have repeatedly acknowledged that finding a per se conflict based on the 

attorney’s status is appropriate because the attorney’s past or present commitments 

“may have subtle or subliminal effects on counsel’s performance that are difficult 

to detect and demonstrate” but raise the possibility that the attorney is unable to 

effectively represent his or her client. Peterson, 2017 IL 120331, ¶ 103; Spreitzer, 

123 Ill. 2d at 16. Reviewing the record to evaluate the level of Drell’s involvement 

when she acted as GAL or searching the record for evidence of an actual conflict is 

improper. See People v. Kester, 66 Ill. 2d 162, 168 (1977) (fact that defendant’s 

attorney previously served as prosecutor against defendant in same case 

necessitated application of per se rule; inquiry into nature and extent of his 

involvement as prosecutor was not necessary or desirable); Lawson, 163 Ill. 2d at 

216 (fact of actual commitment to another, not degree or extent of that commitment, 

dictated application of per se rule).

¶ 81 For the reasons set forth above, I would find that Drell operated under a per se

conflict of interest when she represented respondent at her parental termination 

proceedings. Accordingly, I respectfully dissent. 

¶ 82 JUSTICE NEVILLE joins in this dissent.