Bo. M. v. Wendy M. (In re BR)

• Citation: 450 Ill.Dec. 881,2021 IL 125969,182 N.E.3d 693
• Decision Date: 15 April 2021
• Docket Number: Docket No. 125969
• Parties: IN RE BR. M. and Bo. M., Minors (The People of the State of Illinois, Appellant, v. Wendy M., Appellee).
• Court: Supreme Court of Illinois

2021 IL 125969

182 N.E.3d 693

450 Ill.Dec. 881

IN RE BR. M. and Bo. M., Minors(The People of the State of Illinois, Appellant,

v.Wendy M., Appellee).

Docket No. 125969

Supreme Court of Illinois.

Opinion filed April 15, 2021.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Chaya M. Citrin, Assistant Attorney General, of Chicago, of counsel), for the People.

Ted P. Hammel and Kristen Messamore, of Hammel Law Offices, P.C., of Joliet, for appellee.

Lisa L. Kinser, of Kinser Law, P.C., of Joliet, for other appellees.

OPINION

JUSTICE THEIS delivered the judgment of the court, with 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 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 Her probation was revoked, and she was sentenced to two years’ imprisonment.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 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."

¶ 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 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,...