People v. Eric K. (In re Tanner K.)
| Decision Date | 03 May 2017 |
| Docket Number | No. 2-16-1076,2-16-1076 |
| Citation | 2017 IL App (2d) 161076 -U |
| Parties | In re TANNER K., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Eric K., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Winnebago County.
Honorable Francis Martinez, Judge, Presiding.
¶ 1 Held: (1) Respondent forfeited argument that he was denied due process by trial court's failure to re-appoint a guardian ad litem to act on his behalf; (2) respondent was not denied due process by the trial court's failure to hold a competency hearing; (3) trial court did not fail to exercise its discretion in not re-appointing a guardian ad litem for respondent or to conduct a hearing as to respondent's competence; and (4) respondent was not denied the effective assistance of counsel by his attorneys' failure to move for the appointment of a guardian ad litem or a competency hearing.
¶ 3 Respondent, Eric K., is the father to Tanner K. (born October 9, 2005). On October 6, 2016, the circuit court of Winnebago County found respondent to be an unfit parent with respect to the minor. Subsequently, the court concluded that the termination of respondent's parental rights was in the minor's best interest.1 On appeal, respondent does not challenge the grounds identified by the trial court for finding him unfit or the court's conclusion that it is in the minor's best interest that respondent's parental rights be terminated. Rather, respondent contends that he was denied due process by the court's failure to appoint a guardian ad litem (GAL) for him or to hold a competency hearing "despite overwhelming evidence that he might be mentally incompetent." Respondent contends that even if due process did not require the trial court to appoint a GAL or hold a competency hearing, the trial court had the authority to take such action and it abused its discretion by failing to exercise that authority. Alternatively, respondent argues that he received ineffective assistance of counsel because none of his appointed attorneys moved for the appointment of a GAL or for a competency hearing. We are not persuaded by any of respondent's claims. Accordingly, we affirm the judgment of the circuit court.
¶ 5 Late in April 2014, the Illinois Department of Children and Family Services (DCFS) received a report concerning respondent and the minor. Among other things, the report indicated that respondent had been waking up the minor in the middle of the night with a nail gun and telling him that people were trying to break into their home. The minor reported that respondent was hearing voices and seeing shadows in the basement. The police visited the home for several welfare checks. During one of those visits, respondent stated that he saw a little girl on his porch, but when he went to talk to the girl, she disappeared. Respondent also told the police that the demons in his home do not allow him to sleep. Respondent felt that he needed to be taken for a mental evaluation.
¶ 6 On May 15, 2014, the State filed a three-count neglect petition. Count I of the neglect petition alleged that the minor was neglected in that he was subjected to an injurious environment, thereby placing him at risk of harm, in that the minor had access to harmful material, including prescription medications. 705 ILCS 405/2-3(1)(b) (West 2014). Count II alleged that the minor was neglected in that he was not receiving the proper support, education, or other care necessary for his well-being in that respondent prevented the minor from receiving the minor's prescribed medication, causing the minor to exhibit abnormal behavior. 705 ILCS 405/2-3(1)(a) (West 2014). Count III alleged that the minor is a dependent minor and was without proper care because of the physical or mental disability of his parent, in that his mother is deceased and respondent has mental health problems which prevent him from properly parenting. 705 ILCS 405/2-4(1)(b) (West 2014).
¶ 7 The matter proceeded to a shelter-care hearing on May 16, 2014. At that time, the court appointed attorney Ashley Marshall to represent respondent. Respondent received notice of the hearing, but was not present. At the conclusion of the hearing, the court found probable cause to believe that the minor was neglected and that there was an urgent and immediate necessity that the minor be placed in shelter care. The court granted temporary guardianship and custody of the minor to DCFS with discretion to place the minor. The minor was originally placed with the paternal grandmother, but was later transferred to a traditional foster home. Subsequently, a service plan was developed. Among the tasks required of respondent in the service plan were to complete a psychological evaluation, follow any resulting service recommendations, sign all necessary consents for release of medical information, maintain psychiatric monitoring, attend individual psychotherapy, remain clean and sober, complete random drug drops, and maintain stable housing and income.
¶ 8 On June 27, 2014, attorney David Vella entered an appearance on behalf of respondent. On July 8, 2014, the court vacated the appointment of attorney Marshall and adjudicated respondent the biological father of the minor pursuant to DNA testing. Also on July 8, 2014, Children's Home + Aid, a contracting agency of DCFS, filed a parent-child visitation plan with the court. In a report dated August 19, 2014, caseworker Rachel León noted that respondent had yet to undergo a psychological evaluation because he had not yet signed all the necessary releases. León also recounted a phone call she received from respondent on August 8, 2014. During the call, respondent told León that his grandfather had signed the Declaration of Independence and that this country had betrayed him. Respondent also informed León that if she felt that the minor was better off with foster parents, he would sign the necessary paperwork at the next court date. He added, however, that he would also spend the rest of his life making sure people knew that he had been mistreated by DCFS. Respondent then hung up on León, but called back shortly later, yelling profanities. Respondent made a similar phone call to the foster parent. León reported that between August 10 and August 13, 2014, respondent made 14 calls to her, some of which were threatening in nature. On August 13, 2014, respondent was arrested for criminal damage to property.
¶ 9 In a report dated October 14, 2014, León noted that respondent's visits with the minor were suspended pending a family meeting to discuss respondent's mental health after he left her threatening voicemails. Respondent cancelled the family meeting due to his mother's illness. León also noted in her report that on September 9, 2014, respondent was arrested for possession of a controlled substance, driving under the influence, and driving on a revoked license. Following his arrest, respondent was placed in the Winnebago County jail.
¶ 10 The adjudicatory hearing on the neglect petition was held on October 21, 2014. At that hearing, the court asked Vella whether he needed to talk to respondent. Vella responded that he and respondent had already spoken. The court then briefly recessed to allow the parties to confer. When the parties reconvened, the State announced that respondent had agreed to stipulate to count III of the neglect petition.2 In return, the State agreed to dismiss counts I and II of the petition with the understanding that services would be required for all counts. The court asked Vella whether his client agreed. Vella responded in the affirmative. Respondent then asked the court to speak. Vella directed respondent to remain quiet and conferred with him off the record. The proceedings then concluded, with both Vella and respondent thanking the court.
¶ 11 On November 26, 2014, respondent filed pro se a "Motion to Vacate Admission." In the motion, respondent asserted that his stipulation to count III of the neglect petition was not knowingly made in that he did not understand the consequences of said action. Respondent also claimed that he had a "meritorious defense." That same day, Vella filed a motion to withdraw as counsel on the basis that respondent did not have the financial means to pay him. At a hearing on December 10, 2014, respondent told the court he had no objection to Vella's withdrawal and that he wanted to represent himself. The trial court granted Vella's motion to withdraw and thenquestioned respondent regarding his level of education and his ability to read and write. Respondent told the court that he did not graduate high school, but "went through *** ninth grade." He stated that he speaks English, he is able to read, and that he understands the proceedings. The court informed respondent that even though he is not trained in the law, he would be held to the same standard as an attorney. Respondent was incarcerated at the time, and the court pointed out that respondent's status as a prisoner did not entitle him to any special accommodations. The court later removed respondent from the courtroom when he refused to heed the court's admonishment to remain quiet. The court then appointed attorney Nicholas Meyer as standby counsel for respondent.
¶ 12 On January 22, 2015, the court held a hearing on respondent's pro se motion to vacate admission. At the hearing, respondent requested the appointment of counsel. The court appointed Meyer to represent respondent. The court denied respondent's pro se motion, finding that it did not state a legal basis to vacate his admission, but granted Meyer leave to file a motion to vacate on res...
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