A.W., In Interest of
| Decision Date | 18 June 1993 |
| Docket Number | No. 1-92-3173,1-92-3173 |
| Citation | 188 Ill.Dec. 159,248 Ill.App.3d 971,618 N.E.2d 729 |
| Parties | , 188 Ill.Dec. 159 In the Interest of A.W., a Minor (The People of the State of Illinois, Petitioner, Frances W., Respondent). |
| Court | United States Appellate Court of Illinois |
Patrick T. Murphy, Lee Ann Lowder, Office of the Cook County Public Guardian, Chicago.
Barry A. Miller, Barbara S. Shulman, Diane F. Klotnia, Miller, Shakman, Hamilton & Kurtzon, Chicago; Diane Geraghty, Loyola University School of Law.
MODIFIED UPON THE DENIAL OF REHEARING
Pursuant to Supreme Court Rule 308, on the basis that there was a substantial ground for a difference of opinion, we granted leave to Patrick T. Murphy, Cook County Public Guardian, to appeal the juvenile court's grant of a motion allowing A.W., a 13-year-old minor, to substitute private counsel in his place, in an abuse and neglect proceeding. On March 24, 1986, the Public Guardian was appointed as guardian ad litem and attorney for A.W., following an adjudication of wardship wherein the Department of Children and Family Services ("DCFS") was granted temporary custody. DCFS placed A.W. in the custodial care of her maternal grandmother, with whom she has lived until the present time.
The sole issue before this court is whether the juvenile court erred when it granted A.W.'s motion to substitute the law firm of Miller, Shakman, Hamilton & Kurtzon as attorney in place of the Public Guardian in the pro bono representation of A.W. Under the order, the Public Guardian continues to act as guardian ad litem for A.W.
In March 1986, A.W., age six, reported that she had been sexually abused by her stepfather from the time she was two and one-half years old. A.W. had told her mother on several occasions that her stepfather had been touching her "private parts" and that he had put his penis inside her, but her mother refused to believe her. On March 4, 1987, the stepfather was convicted of aggravated criminal sexual assault and criminal sexual assault of A.W., and was sentenced to a term of eight years' imprisonment. His conviction was affirmed by this court on appeal. People v. Watson (1989), 178 Ill.App.3d 796, 127 Ill.Dec. 929, 533 N.E.2d 1011.
While the stepfather was incarcerated, A.W. and her mother participated in therapy at the Human Effective Living Program ("H.E.L.P."). The staff therapist recommended that A.W. remain in the custody of her maternal grandmother, have no contact with the stepfather, and have only supervised visits with her mother. In the counseling report, the therapist noted that the mother did not believe her husband had abused A.W. DCFS subsequently terminated the therapy at H.E.L.P. and transferred her to another therapist at Salem House due to "concerns of the mother."
Upon his release from prison on November 2, 1990, the stepfather returned to live with A.W.'s mother and brother in the family residence. The social worker at Salem House noted that his return to the family seemed to have a profound effect on the mother because during the period of incarceration she began to accept the possibility that A.W. may have been sexually abused by her husband. However, upon his release from prison, the mother reverted to her previous stance, and believed that A.W. had lied about the sexual abuse in an attempt to receive more maternal attention. The therapy at Salem House was terminated on January 31, 1991, and the case was transferred back to H.E.L.P. because Salem House could not provide sex offender treatment for the stepfather.
When H.E.L.P. also proved unable to provide service to the stepfather, the case was transferred by DCFS to the Community Mental Health Council. The case manager noted that the mother remained in denial that her husband had molested her daughter, and that she appeared more empathetic toward her husband than to A.W. The stepfather also maintained that he was not guilty, and believed that he had been falsely charged and convicted by improperly procured evidence. The therapist recommended that the stepfather attend family group therapy focusing on his sexual abuse of A.W., and that he attend group therapy for sexual offenders three times per week. While he did attend group therapy, he did not attend the prescribed sex offenders' therapy sessions.
On December 19, 1991, the court ordered an unsupervised day visit by A.W. on Christmas Day with her mother and stepfather. Following the visit, the court ordered the family to participate in a joint therapeutic family counseling session with counselor Pamela Goodson, prior to December 31, 1991. Should Goodson so recommend, the parties were permitted an unsupervised overnight visit for New Year's Day. These visits transpired without incident. On January 29, 1992, over the objection of the Public Guardian, the court granted the mother's motion for unsupervised overnight visits on alternating weekends for A.W. during February 1992.
On March 5, 1992, Goodson submitted a report to the court recommending that A.W. begin weekly unsupervised visitation commencing in March. Assuming the success of those visits and subsequent therapeutic sessions, Goodson recommended that A.W. return home by June 1992. Goodson believed that A.W.'s anxiety "decreased tremendously as her visits with family increased" and that her level of comfort with her stepfather is "more than adequate for a successful transition back into the family unit."
Ellen Epstein, the assistant Public Guardian assigned to represent A.W., objected to the acceleration of unsupervised visits. She believed that A.W. would not be protected because both parents were in denial that she had been sexually abused, and the stepfather refused to participate in treatment for sex offenders.
A.W. became upset when unsupervised visitation was terminated in late March. In a letter to the judge dated March 27, 1992, A.W. stated:
"...
Goodson's supervisor, Denise Snyder, met with Denise Kane, the Associate Director of the Citizens Committee On The Juvenile Court, and discussed the possibility of A.W. obtaining other representation. Thereafter, A.W. telephoned Barbara Shulman, an attorney associated with Miller Shakman, and told her that the Public Guardian was advocating a position contrary to her direction, and that she had repeatedly asked that office to advocate for visitation with her parents.
On April 21, 1992, a motion for substitution of counsel was filed in which Miller Shakman argued that it was A.W. who selected the firm to act as her counsel, and that she had an absolute right to choose her own attorney. The Public Guardian argued that while there is "no question that the child is both mature and competent," she had been manipulated by others to seek the change in counsel. Acknowledging its responsibility to act in the "best interest" of the child, the court ordered that a hearing be conducted to determine whether A.W. was coerced into making the motion for substitution of counsel.
In opening statement at trial, the Public Guardian stated that in many cases, the office of the Public Guardian would "step aside and gladly welcome the offer of additional counsel" both as lawyer and guardian ad litem. However, under the factual circumstances in this case, in which the therapist, mother and attorney conspired to coerce and manipulate the minor into changing counsel, the Public Guardian believed that he was the appropriate party to represent A.W.
At the evidentiary hearing, Shulman testified that she was first contacted by A.W., and that she made no promises regarding benefits she could obtain for her in the case. Denise Kane of the Citizens Committee On The Juvenile Courts testified that during March 1992 she had several conversations with Denise Snyder, a supervisor with the Community Mental Health Council. Snyder told Kane that A.W. was depressed because she felt that her viewpoint was not being represented, and that she really did want visitation to continue. Kane suggested to Snyder that she ask A.W. whether she wanted another lawyer to represent her. She suggested that the therapist, Goodson, present this option to A.W. If A.W. really wanted another attorney Kane would try to find someone to represent her on a pro bono basis.
Pamela Goodson testified that she became A.W.'s therapist in the summer of 1991. She suggested to A.W. that she might want to seek alternative counsel pursuant to her supervisor's suggestion. Goodson telephoned Shulman, and made arrangements for A.W. to meet with Shulman.
Doctor Alan Ravitz, a child psychologist, was called as a witness by the Public Guardian, and opined that in the overwhelming majority of situations, a 12-year-old child does not have the capacity to choose an attorney. Doctor Ravitz stated that children of that age are psychologically immature, have a tendency toward impulsivity and have difficulty understanding the...
To continue reading
Request your trial