In re Davon R.

2017 IL App (1st) 170426

• Court: Appellate Court of Illinois
• Decided: September 29, 2017
• Docket: 1-17-0426
• Status: Unpublished

Opinion

2017 IL App (1st) 170426

FIFTH DIVISION Filing Date September 29, 2017

No. 1-17-0426

In re DAVION R., ) Appeal from the ) Circuit Court of a Minor ) Cook County. ) ) ) (People of the State of Illinois, ) No. 15 JA 420 ) Petitioner-Appellee, ) v. ) ) Davon R., ) Honorable ) John L. Huff, Respondent-Appellant). ) Judge Presiding.

JUSTICE HALL delivered the judgment of the court, with opinion. Justices Lampkin and Rochford concurred in the judgment and opinion.

OPINION

¶1 Following a dispositional hearing, minor Davion R. was adjudged to be a ward of the

court and respondent, Davon R., the natural father of the child, was found to be unable only

to parent him. 1 On appeal, respondent contends that (1) the circuit court erred in not

appointing counsel after vacating the initial appointment of counsel prior to the adjudication

and dispositional hearings and (2) the circuit court’s findings were against the manifest

weight of the evidence. For the reasons that follow, we reverse and remand.

1 Respondent was given court-ordered custody of the minor on February 11, 2015. The minor’s natural mother was added as a party to the proceedings at some point and was subsequently found to be unfit and unable to care for the minor. No. 1-17-0426

¶2 I. BACKGROUND

¶3 On April 29, 2015, the State filed a Petition for Adjudication of Wardship, alleging that

the minor, born July 13, 2013, was abused and neglected. The petition alleged that the minor

had been taken into custody on April 27, 2015, after medical personnel observed him to be

emaciated and malnourished. At a prior doctor’s appointment on April 16, 2015, the doctor

expressed concern about the minor’s lack of weight gain and suggested hospitalization.

Respondent became agitated and left with the minor against medical advice. The minor was

located on April 22, 2015, and hospitalized. During the hospitalization, the minor was

diagnosed with failure to thrive, non-organic, due to inadequate nutrition. At a temporary

custody hearing held on April 29, 2015, the circuit court found probable cause that the minor

was abused/neglected and an imminent/urgent necessity to remove him from the home.

¶4 The circuit court appointed Monica Torres as counsel for respondent on May 4, 2015,

because he was indigent. The minor was initially placed in a relative foster home with

respondent’s cousin, but on June 29, 2015, the minor was moved to a traditional, non-relative

foster home.

¶5 The record indicates that on July 6, 2016, respondent filed four motions, all of which

were continued by the circuit court: (1) a motion to return home, (2) a motion for

unsupervised day visits, (3) a motion to change caseworkers, and (4) a motion to return the

child to relative foster care. There were several other status hearings, during which time

respondent subsequently received unsupervised visitation of six hours each for three days per

week, in addition to some supervised visitation. Although respondent was granted overnight

visitation, it never occurred. Unfortunately, the minor still did not gain weight consistently,

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and was hospitalized twice while in foster care. During court hearings, respondent appeared

agitated and repeatedly questioned why the minor was not gaining weight while in foster

care, since that was the reason for the child’s removal from his care.

¶6 Appointed counsel filed a written motion to withdraw as respondent’s counsel on

September 29, 2015, citing respondent’s failure to communicate since August 31, 2015.

According to the motion, respondent was notified by a letter advising him that he had 21

days to find other counsel or enter a supplemental appearance. On November 10, 2015,

counsel withdrew her motion and her representation of respondent continued.

¶7 During an evidentiary hearing on December 29, 2015, the circuit court allowed a recess

for an attorney-only conference. At the conference, appointed counsel indicated to the court

that respondent was upset about the GAL’s motion to suspend his unsupervised visitation.

Appointed counsel stated that she discussed the motion with respondent at length, even

though he indicated during the hearing that he did not know about the motion. Appointed

counsel further indicated that she had tried to withdraw from the case before and that

respondent told her he did not want her to represent him.

¶8 The circuit court indicated that it was not in respondent’s best interests to represent

himself, and that it would not grant a motion to withdraw. The court further indicated that

respondent was obviously distraught and had some personality issues that were “somewhat

aggravating to people, and so you know, this is one of the reasons why I’m not going to

allow you to withdraw because he needs a filter.”

¶9 When the hearing resumed, respondent indicated that he did not want appointed counsel

to represent him anymore and he wanted another attorney. The circuit court responded that

the matter would be continued to another court date then, and respondent questioned that.

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The court indicated that if respondent absolutely insisted on terminating appointed counsel, it

would enter the order, but that it was not in respondent’s best interests in the court’s opinion.

¶ 10 Respondent indicated to the court that he felt he was being penalized for the minor’s

continued failure to thrive while under DCFS’s care, and he only had 18 hours’ per week

visitation with the minor. Respondent again reiterated that he was not informed that the

motion was to take away his unsupervised visits; he simply thought that the motion was to

suspend overnight visits, which he did not currently have anyway. After more dialog, the

court asked if respondent was going to let appointed counsel question the witness, and

respondent stated “you’re not going to continue with the court proceeding if I don’t.” The

court then indicated that it would be willing to allow respondent to hire his own attorney. 2

Respondent indicated that appointed counsel could proceed, and the hearing continued. At

the conclusion of the hearing, respondent’s unsupervised visits were temporarily terminated

and the matter was continued until January 29, 2016.

¶ 11 On January 29, 2016, during an attorney-only conference prior to the hearing, appointed

counsel indicated that she had received several phone calls from respondent. During one call

on January 4, 2016, respondent made an inappropriate threat, according to appointed counsel.

Although it did not rise to the level of threatening her physical safety, appointed counsel

wanted to make the court aware. Additionally, on January 11, 2016, respondent called

appointed counsel inappropriate names. According to appointed counsel, respondent stated

that she was not his attorney. However, when appointed counsel checked the file, no other

attorney had filed an appearance.

2 The record indicates throughout that respondent remained indigent. 4 No. 1-17-0426

¶ 12 When all parties were inside the courtroom and the hearing commenced, respondent

stated that he did not know why appointed counsel was there because he fired her, that he did

not have another attorney, and that he would do it himself. The court then admonished

respondent about representing himself. Appointed counsel indicated that she had no objection

to vacating her appointment and the circuit court subsequently vacated the appointment. 3 The

hearing then commenced regarding a status on visitation, after which, the matter was

continued to March 11, 2016, for a status on discovery.

¶ 13 Subsequently, an adjudication hearing was scheduled for June 23, 2016. At that time,

respondent was still pro se. The circuit court offered the assistance of a bar attorney, and

respondent declined. The adjudication hearing commenced and was continued until August

25, 2016. Respondent again appeared pro se. The circuit court again offered him a bar

attorney, and he again declined. At a subsequent court date of October 20, 2016, where

respondent again appeared pro se, the matter was set for a later date due to the attorney for

the minor’s natural mother being on medical leave. On January 4, 2017, respondent was not

present due to incarceration, although he had been writ in from Cook County Jail. 4 The

circuit court issued an order continuing the matter to another day when respondent could be

present.

¶ 14 On January 13, 2017, respondent was not present and the courtroom deputy indicated that

respondent refused to come. The dispositional hearing commenced in respondent’s absence.

At the close of the hearing, the circuit court found the minor to be a ward of the court and

3 The record indicates that a written order, prepared by appointed counsel, was entered indicating that appointed counsel’s representation was vacated on oral motion by appointed counsel. 4 Lieutenant Martin testified under oath via telephone that respondent refused to board the bus to court because he did not want the other inmates to know of his personal business. 5 No. 1-17-0426

further found respondent unable only to parent him. Respondent’s timely appeal of both the

adjudication and dispositional hearings followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, respondent contends that (1) the circuit court erred in not appointing counsel

after vacating the initial appointment of counsel prior to the adjudication and dispositional

hearings and (2) the circuit court’s findings were against the manifest weight of the evidence.

¶ 17 A. Timeliness

¶ 18 Before discussing the arguments respondent raises in his appeal, we address the

timeliness of our decision. This is an accelerated appeal under Illinois Supreme Court Rule

311(a) (eff. Feb. 26, 2010). Pursuant to Rule 311(a)(5), we are required to issue our decision

within 150 days after the filing of the notice of appeal, except for good cause shown.

Respondent’s notice of appeal was filed on February 23, 2017, making the deadline to issue

our decision July 23, 2017. Respondent filed two motions for extension of time to file his

opening brief, and the State subsequently filed a motion for an extension of time to file its

brief. Accordingly, we revised the briefing schedule pursuant to those requests. Because this

case was not ready for disposition until August 3, 2017, we find good cause for issuing our

decision after the 150-day deadline.

¶ 19 B. Waiver

¶ 20 As an initial matter, we address the State’s contention that respondent’s issue concerning

the circuit court’s vacatur of the appointment of counsel is waived because he failed to object

at any time during or after the hearings and because he acquiesced in the court’s conduct.

¶ 21 A review of the record does reveal that respondent has in fact raised this issue for the first

time on appeal. However, it is well-settled that the rules of waiver and forfeiture are

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limitations on the parties and not the courts. In re Madison H., 215 Ill. 2d 364, 371 (2005);

In re Marriage of Sutton, 136 Ill. 2d 441, 446 (1990); In re Darius G., 406 Ill. App. 3d 727,

732 (2010). Our concern for reaching a just result may override considerations of waiver.

In re Timpone, 208 Ill. 2d 371, 382 (2004).

¶ 22 There is no doubt that the right of a parent to control the upbringing of his or her children

is a fundamental constitutional right. In re D.W., 214 Ill. 2d 289, 310 (2005); see also Troxel

v. Granville, 530 U.S. 57, 65 (2000); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535,

541 (1942). As such, under the circumstances presented by this case, where the well-being of

a child and parental rights are at issue, we elect not to apply the rule of waiver and will

consider the issue on its merits. Madison H., 215 Ill. 2d at 371.

¶ 23 C. Vacatur of Counsel’s Appointment

¶ 24 Respondent first contends that the circuit court abused its discretion in vacating the

appointment of his court-appointed counsel prior to the adjudication hearing. Specifically,

respondent argues that (1) his court-appointed counsel improperly filed a motion to

withdraw, which poisoned the relationship between him and counsel; (2) the circuit court

erred in allowing him to proceed pro se because there was no valid reason to vacate the

appointment; and (3) counsel’s withdrawal had a material, adverse effect on respondent’s

interests—namely, the unchallenged introduction of Dr. Glick’s testimony.

¶ 25 Although there is no constitutional right to counsel in proceedings pursuant to the

Juvenile Court Act of 1987 (705 ILCS 405/1 et. seq. (West 2014)), a statutory right is

granted under the Act. In re Charles W., 2014 IL App (1st) 131281, ¶ 32. “When the Illinois

legislature enacted the Juvenile Court Act of 1987, it provided that the parent of a minor who

is the subject of proceedings under the Act will be provided with the assistance of court-

7 No. 1-17-0426

appointed counsel if the parent is financially unable to employ counsel.” In re Adoption of

K.L.P., 198 Ill. 2d 448, 461 (2002); see also 705 ILCS 405/1-5 (West 2014). The statute

provides that the appointed counsel must appear at all stages of the proceedings and the

appointment shall continue through the permanency review hearings and termination of

parental rights proceedings, “subject to withdrawal or substitution pursuant to Supreme Court

Rules or the Code of Civil Procedure.” 705 ILCS 405/1-5(1) (West 2014).

¶ 26 Illinois Supreme Court Rule 13 (eff. July 1, 2013) governs the withdrawal of attorneys. It

specifies the procedures an attorney must follow before the trial court will grant his or her

leave to withdraw an appearance for a party. Ill. S. Ct. R. 13(c) (eff. July 1, 2013). Counsel

must, among other things, submit a written motion to withdraw and provide notice to the

represented party by personal service or certified mail. Ill. S. Ct. R. 13(c)(2) (eff. July 1,

2013). The motion may be denied by the court if the granting of it would delay the trial of the

case, or would otherwise be inequitable. Ill. S. Ct. R. 13(c)(3) (July 1, 2013).

¶ 27 Here, the record reveals that the circuit court appointed counsel for respondent on May 4,

2015. The record further reveals that appointed counsel first filed a written motion to

withdraw as respondent’s counsel on September 29, 2015. According to the motion,

respondent was notified by letter which advised him that he had 21 days from the date of the

withdrawal to find other counsel or enter a supplemental appearance. On November 10,

2015, counsel’s motion was withdrawn and her representation of respondent continued.

¶ 28 However, during an attorney-only conference on December 29, 2015, appointed counsel

indicated to the court that respondent was upset and reminded the court that she had

previously tried to withdraw from the representation. The court indicated that it would not

grant a request for withdrawal at that point. When the hearing resumed, respondent indicated

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that he wished to have another attorney, but after being faced with a continuance, he relented

to appointed counsel’s continued representation.

¶ 29 At a subsequent attorney-only conference on January 29, 2016, appointed counsel

indicated that respondent had called her several times and that he did not want her to

represent him. According to appointed counsel, respondent told her that she was not his

attorney. However, when appointed counsel checked the record, no other attorney had filed

an appearance on counsel’s behalf. Later, at the hearing, respondent questioned why

appointed counsel was there and stated that he did not want her representation. He also stated

that he did not have another attorney. Appointed counsel stated that she did not mind

withdrawing from the case, and the trial court vacated its appointment of counsel in a written

order prepared by appointed counsel. The written order stated that the appointment was

vacated on the “oral motion” of counsel. The circuit court then continued with the hearing.

¶ 30 We find that this was error. The Act clearly states that counsel is to be provided through

all stages of a child adjudication matter. Additionally, Rule 13 clearly requires a motion for

the withdrawal of counsel to be in writing and served on the party. Further, “ ‘Rule 13

requires a continuance of at least 21 days after the order granting withdrawal so that the party

can retain other counsel or enter [his or] her own supplementary appearance.’ ” In re Robert

S., 357 Ill. App. 3d 214, 218 (2005) (quoting In re Marriage of Miller, 273 Ill. App. 3d 64,

69 (1995)). Here, counsel alluded to her previously filed and withdrawn written motion to

withdraw at an attorney conference a month prior to the date the appointment was vacated,

but at no time did she file another written motion to withdraw, even after she checked the

record and found there was no other counsel of record. That is the minimum requirement of

Rule 13. In re J.P., 316 Ill. App. 3d 652, 660 (2000).

9 No. 1-17-0426

¶ 31 Indeed, the written order, which appointed counsel prepared, indicated that the

withdrawal was granted on her oral motion. The trial court then immediately continued with

the hearing, even though respondent stated that he did not have another attorney. At no point

was respondent told that he had 21 days to secure other counsel nor was there any other

appointed counsel offered to him when the record clearly indicated that he was indigent

throughout the proceedings. Additionally, the hearing was not continued to allow for the

appointment of other counsel or to allow respondent time to secure other counsel. The trial

court erred by granting counsel’s oral motion to withdraw and then immediately continuing

the evidentiary hearing, when there is no indication in the record that any of the requirements

of Rule 13 were met. See Robert S., 357 Ill. App. 3d at 218; J.P., 316 Ill. App. 3d at 660.

¶ 32 This is not a situation like that presented in In re Travarius O., 343 Ill. App. 3d 844, 852

(2003), where the trial court appointed counsel on three different occasions, and respondent

was dissatisfied with each of them. Nor is it the situation presented in In re S.W., 2015 IL

App (3d) 140981, ¶ 32, where the court held an unfitness hearing after appointing four

different attorneys to represent respondent. The circuit court continued the hearing twice to

allow the fourth court-appointed counsel time to prepare for the hearing, before finally

conducting the hearing after respondent fired counsel and requested a 90-day continuance to

secure private counsel. S.W., 2015 IL App (3d) 140981, ¶ 32. 5

¶ 33 Here, there was but one court-appointed attorney, and despite their differences, when

respondent requested that another attorney be appointed for him on December 29, 2015, the

circuit court let the then-current representation continue. Although the record does show that

5 Although the court in S.W. ultimately concluded that Rule 13 did not apply because respondent fired the fourth court-appointed counsel and requested a continuance to secure other counsel, we distinguish the case at bar on the facts presented—namely, that the court entered an order vacating appointed counsel’s appointment on counsel’s oral motion. 10 No. 1-17-0426

the circuit court eventually offered respondent the services of court-appointed counsel at

subsequent hearing dates after counsel’s withdrawal, this does not remedy the error in

allowing counsel to withdraw on an oral motion on January 29, 2016, without giving

respondent time to secure other counsel.

¶ 34 Because the trial court erred by granting counsel’s oral motion to withdraw and then

immediately continuing with the proceedings, we need not address respondent’s remaining

argument.

¶ 35 III. CONCLUSION

¶ 36 For the foregoing reasons, we reverse the circuit court’s judgment and remand for further

proceedings consistent with this opinion.

¶ 37 Reversed and remanded.