Opinion
3-21-0523
03-30-2022
In re A.B., a Minor v. John B., Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 16-JA-28 Honorable Terence M. Patton, Judge, Presiding.
JUSTICE LYTTON delivered the judgment of the court. Justices Daugherity and McDade concurred in the judgment.
ORDER
LYTTON JUSTICE
¶ 1 Held: (1) Appointed counsel on petition for relief from judgment exercised due diligence. (2) Any deficiency in section 2-1401 counsel's performance was harmless. (3) Trial court properly dismissed section 2-1401 petition where respondent failed to set forth specific factual allegations supporting the existence of a meritorious claim.
¶ 2 Respondent, John B., filed a petition for relief from judgment seeking reversal of an order terminating his parental rights to his daughter, A.B, and alleging ineffective assistance of trial counsel. The State moved to dismiss the petition, and the trial court granted the motion. Respondent appeals, claiming that his section 2-1401 counsel was ineffective. He also claims that the circuit court erred in dismissing the petition for relief from judgment because his allegations of error and ineffective assistance in the underlying termination proceedings established the existence of a meritorious claim. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On December 6, 2016, the State filed a petition for adjudication of wardship, alleging that A.B.'s environment was injurious to her welfare because she tested positive for amphetamine and methamphetamine at the time of her birth and those substances were not used in her medical treatment or the medical treatment of her mother. The petition named respondent as A.B. 's putative father.
¶ 5 On February 8, 2017, the trial court held an adjudicatory hearing where respondent stipulated to the allegations in the petition. The trial court granted the petition and instructed both parents to comply with the Department of Children and Family Services (DCFS) recommendations. At the dispositional hearing, respondent was found unfit in that he was unable to care for, protect, train, educate, supervise, or disciple A.B. The trial court also found that it was not in A.B.'s best interest to place her in respondent's custody. Respondent did not appeal from that judgment, and the record on appeal does not contain a report of proceedings from the adjudication or the disposition.
¶ 6 On December 11, 2018, the State filed a petition to terminate respondent's parental rights. The petition alleged that respondent failed to make reasonable progress and reasonable efforts to correct the conditions that served as the basis for removal during the nine-month periods from April 2017 through January 2018 and December 2017 through September 2018. It also alleged that respondent was a habitual drunkard due to his history of abusing alcohol.
¶ 7 At the termination hearing, respondent was represented by appointed counsel, Attorney Jacob Hoelscher. During the proceedings, caseworker Sherry Koerperich testified that she was involved with this case from December 2017 through October 2018. She indicated that when the case was transferred to her in December 2017, respondent was cooperative and doing all his services until January of 2018, when he gradually decreased services. On cross-examination, Koerperich acknowledged that she had filed a report on January 30, 2018, indicating respondent was making reasonable efforts and reasonable progress during the time period of November 2017 to January 2018. She had indicated in the report that respondent cooperated with therapy through May 2018, but he had failed to complete six random urinalyses drug tests between January and May 2018. She testified that respondent failed to make continued progress after January 2018.
¶ 8 At the conclusion of the hearing, the trial court found that respondent was unfit on the grounds of (1) failing to make reasonable efforts from December 2017 through September 2018, (2) failing to make reasonable progress from December 2017 through September 2018, and (3) habitual drunkenness for at least one year prior to commencement of the proceedings. His parental rights were terminated following a best interest hearing on May 22, 2019.
¶ 9 On direct appeal, we affirmed the trial court's finding of unfitness. In re A.B., 2019 IL App (3d) 190293-U, ¶ 2. This court held that respondent "failed to complete his obligations under the service plan during the relevant nine-month period-including drug drops, counseling, and visitation." Id. ¶ 30. We concluded that the trial court's finding that respondent was unfit for failing to make reasonable progress within the relevant nine-month period was not against the manifest weight of the evidence, noting that only one ground is necessary to uphold a finding of unfitness. Id. This court further rejected respondent's contention that he should not have been required to complete substance abuse treatment, therapy, and drug drops and found that those services were reasonably related to the conditions that gave rise to A.B.'s removal, i.e., her exposure to drug abuse and drug use in her home. Id. ¶ 28. We affirmed the termination on appeal and the mandate issued on March 17, 2020.
¶ 10 On July 2, 2020, respondent filed a petition for relief from judgment, alleging that counsel was ineffective for several reasons, including failing to appeal the dispositional order, refusing to call relevant witnesses, and failing to introduce "important documents." He also alleged that his appointed attorney, Hoelscher, had a conflict of interest because (1) he was appointed as guardian ad litem (GAL) in a case involving a family member who made accusations against respondent, and (2) he was discussing a job offer with DCFS before the conclusion of his case. In addition, he alleged that he was unable to attend visits after June 26, 2018, because he was serving a five year prison term in the Department of Corrections (DOC) for aggravated driving under the influence. Further, he claimed that these issues were not included on direct appeal because appellate counsel refused to present them.
¶ 11 Respondent attached two documents in support of his petition: (1) a WestCare Illinois Treatment Plan, and (2) a DOC job assignment sheet. The WestCare plan showed that respondent had been evaluated for "substance use disorder" and that a treatment plan had been developed with a "start date" of September 10, 2018, and a "target date" of November 10, 2018. The plan included several short-term objectives and long-term goals, none of which had been marked completed. The DOC job assignment sheet indicated that respondent received a "substance abuse earned time" transfer on August 31, 2018.
¶ 12 At the first hearing on the petition, respondent requested the assistance of counsel and the trial court refused, stating more than once that respondent was "not entitled to an appointed attorney." The court then concluded that respondent failed to meet his burden of proof and denied the petition. Respondent appealed, and the judgment was reversed and remanded on the basis that the trial court erred in failing to exercise its discretion to determine whether to appoint counsel to assist respondent. See In re A.B., No. 3-20-0438 (June 7, 2021) (summary order pursuant to Supreme Court Rule 23(c)(4) (eff. Jan. 1, 2021)).
¶ 13 On remand, the trial court appointed Attorney Clark Miljush to represent respondent in his section 2-1401 petition. At the initial status hearing on September 8, 2021, Miljush requested a short continuance. He stated that he had the wrong contact information for respondent and noted that respondent's presence in court was the first time counsel had been able to converse with him. The trial court granted the continuance and allowed counsel three weeks to file an amended petition.
¶ 14 At the next hearing, the Assistant State's Attorney and Miljush appeared before the court and acknowledged that they were past the previously set filing dates. Miljush informed the court that he had been unable to reach respondent and was therefore unable to file an amended petition in a timely manner. The prosecutor echoed his statement, noting that Miljush's delay, in turn, caused the State's delay. Miljush stated that he had been in frequent communication with the Assistant State's Attorney but had been unable to file an amended pleading. He expressed to the court that, without having any communication with his client, he was hesitant to file an amended petition. Noting that A.B. had already been adopted, the court recognized Miljush's dilemma but encouraged him to "[d]o the best you can." The court suggested that counsel draft an amended petition with the information that he had, including respondent's pro se petition, and granted a short continuance.
¶ 15 Miljush filed an amended petition on respondent's behalf on October 25, 2021. The amended petition alleged that Hoelscher was aware of information and documents relevant to respondent's defense but failed to introduce them in the termination proceedings, resulting in ineffective assistance of counsel. The petition also realleged that Hoelscher was ineffective based on a conflict of interest because he worked as GAL on a different case against respondent and sought employment with DCFS while representing respondent. It further claimed that Hoelscher failed to obtain the "names of witnesses with critical knowledge of personnel whom [r]espondent had contact with that are/were employed with agencies directly involved in the matter regarding the core of the underlying case (of which were not called to testify)."
¶ 16 In addition, the amended petition alleged that Hoelscher failed to locate records, subpoena witnesses, and appeal the dispositional order, citing to respondent's previously self-filed petition. It also reasserted counsel's deficiencies and the other errors asserted in respondent's pro se pleading. Miljush attached respondent's handwritten petition to the amended petition he filed.
¶ 17 The State filed a supplemental motion to dismiss the amended petition. It noted that respondent's pleadings did not offer specific facts to support his claims that Hoelscher was seeking employment with DCFS or that he served as GAL in another case. Consequently, the State maintained that the petition did not meet any of the requirements of a per se conflict of interest and that it did not set forth any specific facts to establish an actual conflict of interest. The motion further asserted that respondent's incarceration did not serve as a defense and that the remaining issues raised in the petition for relief from judgment were untimely and barred by res judicata.
¶ 18 On November 9, 2021, the court conducted a hearing on respondent's petition. At the hearing, Miljush argued that respondent's pro se petition was verified and attested to under oath, which met the statutory requirements for a section 2-1401 petition. He further claimed that respondent's ineffective assistance of counsel arguments were valid, substantive claims that could not have been raised earlier. He informed the court that most of the documents to which respondent referred had been destroyed or wrongfully withheld from him by his landlord, and reiterated respondent's claim that his counsel at the termination proceedings refused to listen to him and failed to present the issues in full. Miljush argued that had Hoelscher pursued these documents and records and had he presented witnesses as respondent suggested, the results of the termination proceeding would have been different. Following the parties' arguments, the trial court granted the State's motion and dismissed respondent's section 2-1401 petition.
¶ 19 II. ANALYSIS
¶ 20 A. Assistance of Appointed Counsel
¶ 21 Respondent first claims that Miljush's assistance as section 2-1401 counsel was ineffective. Respondent relies on the standard under Strickland v. Washington, 466 U.S. 668 (1984), and argues that Miljush failed to subpoena records or witnesses to properly supplement his pro se petition. He acknowledges that his section 2-1401 counsel had difficulty communicating with him but alleges that counsel should have asked for a continuance and that his failure to do so affected the outcome of the proceedings.
¶ 22 A petitioner seeking to collaterally attack a judgment under section 2-1401 has no constitutional right to the assistance of counsel. People v. Stoecker, 2020 IL 124807, ¶ 35. Moreover, unlike the Post-Conviction Hearing Act (725 ILCS 5/122-4 (West 2020)), section 2-1401 provides no express statutory right to the assistance of counsel, nor does it specify the level of assistance required if counsel is appointed by the court. See 735 ILCS 5/2-1401 (West 2020); Stoecker, 2020 IL 124807, ¶ 36. Thus, courts are under no obligation to appoint counsel to represent a section 2-1401 petitioner but may do so at their discretion. Id.
¶ 23 In Stoecker, our supreme court recognized that the statutory provisions of section 2-1401 neither expressly address appointment of counsel nor specify the level of assistance required if counsel is appointed in the court's discretion. Id. ¶ 37. After comparing the "reasonable assistance" standard required in postconviction proceedings to the "due diligence" standard applied in the context of petitions for habeas corpus and mandamus, the court determined that the discretionary appointment of counsel in a section 2-1401 proceeding requires due diligence. See id. ¶ 42 (citing the due diligence standard referenced in Tedder v. Fairman, 92 Ill.2d 216, 226 (1982)). In further defining the due diligence standard, the court held that section 2-1401 counsel "has an obligation, to the best of his or her legal ability, to make a cogent argument in support of petitioner's section 2-1401 claims and to overcome any procedural hurdles where it can legally and ethically be done." Id. The court further noted that such due diligence "might include amending a petition, responding to any motions to dismiss, or alternatively withdrawing as counsel." Id. ¶ 43.
¶ 24 Under the due diligence standard, any deficiency in counsel's performance is harmless if a petitioner's section 2-1401 claims are meritless. See id. ¶ 43 ("a claim of lack of due diligence sufficient to warrant remand depends on an arguably meritorious claim"). Counsel is not required to amend a section 2-1401 petition or raise a meritless claim. People v. Pinkonsly, 207 Ill.2d 555, 568 (2003) (counsel's failure to pursue claim that was not cognizable under section 2-1401 did not amount to deficient representation). Thus, unless counsel's deficient performance reasonably affects the outcome of the section 2-1401 proceedings, remand is not warranted. See Stoecker, 2020 IL 124807, ¶ 47 (appointed counsel's failure to appear or file any pleadings did not warrant remand where defects in section 2-1401 petition could not be cured).
¶ 25 Here, applying the appropriate standard of due diligence, we cannot say that counsel's performance was deficient. The trial court appointed Miljush as respondent's section 2-1401 counsel on July 21, 2021. At the status hearing on September 8, 2021, Miljush informed the court of his difficulty contacting and communicating with respondent and requested a continuance for adequate time to prepare an amended petition with respondent's input. The court admonished respondent, who was present in court, to stay in contact with his attorney. Six weeks later, Miljush appeared before the court and apologized for the continued delay. He stated that he had been unable to reach respondent, trying multiple avenues unsuccessfully, and that his inability to reach respondent prevented him from drafting an amended petition in a timely manner. Following the court's suggestion, Miljush then filed a five-page amended petition as well as a response to the State's motion to dismiss, using respondent's self-filed petition and prior communications as his guide. Given counsel's substantial efforts, we find he acted with due diligence in attempting to communicate with respondent and in filing an amended petition for relief from judgment under section 2-1401.
¶ 26 B. Merits of 2-1401 Petition
¶ 27 We next address respondent's claim that the trial court erred in dismissing his section 2- 1401 petition.
¶ 28 A section 2-1401 petition must set forth specific factual allegations supporting each of the following elements: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 51; Pinkonsly, 207 Ill.2d at 566. In considering a petition for relief from judgment, the trial court "must determine whether facts exist that were unknown to the court at the time of trial and would have prevented judgment against the defendant." People v. Welch, 392 Ill.App.3d 948, 952 (2009). A meritorious defense under section 2-1401 involves errors of fact, not law. Pinkonsly, 207 Ill.2d at 565. As such, unsupported, conclusory allegations are inadequate to meet the requirements of a petition for relief from judgment and insufficient to warrant relief under section 2-1401. In re Estate of Barth, 339 Ill.App.. 3d 651, 664 (2003).
¶ 29 Claims that counsel was ineffective in termination proceedings are evaluated using the Strickland standard. In re Ca. B., 2019 IL App (1st) 181024, ¶ 42. A parent must show both that (1) counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for the error, the result of the proceedings would have been different. In re Charles W., 2014 IL App (1st) 131281, ¶ 32.
¶ 30 A key element of effective assistance is conflict-free representation, which can be demonstrated as per se or actual. In re Br. M., 2021 IL 125969, ¶ 44. A per se conflict is limited to three specific situations: (1) when counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution, (2) when counsel contemporaneously represents a prosecution witness, and (3) when counsel was a former prosecutor who was personally involved in the prosecution of the defendant. Id. ¶ 45. Where a per se conflict is established, prejudice is presumed. Id. ¶ 46.
¶ 31 A section 2-1401 petition is "not designed to provide general review of all trial errors nor to substitute for direct appeal." People v. Berland, 74 Ill.2d 286, 314 (1978). "Issues which could have been raised in a motion for rehearing or on direct appeal are res judicata and may not be relitigated in [a] section 2-1401 proceeding." In re Marriage of Baumgartner, 226 Ill.App.3d 790, 794 (1992). We review the dismissal of a 2-1401 petition de novo. People v. Vincent, 226 Ill.2d 1, 18 (2007).
¶ 32 Respondent argues that Attorney Hoelscher's representation was ineffective based on a per se conflict of interest. He claims that a per se conflict existed because Hoelscher was (1) seeking employment with DCFS while representing him in the termination case, and (2) acting as GAL in a case "in which an allegation had been made against respondent" and that as GAL "he would have to make reports and possibly assist the prosecution or DCFS."
¶ 33 These conclusory allegations fail to show a per se conflict. A per se conflict is limited to the three scenarios listed by our supreme court in Br. M. Here, respondent is claiming a conflict based on the first scenario, claiming that Hoelscher had a prior or contemporaneous association with the prosecution or an entity assisting the prosecution. However, seeking or obtaining employment with DCFS, an agency that may or may not be assisting the prosecution, does not qualify as a per se conflict of interest. Moreover, even if we assume Hoelscher served as GAL in another case against the respondent, a GAL acts on behalf of the minor at the behest of the trial court, not the State. Thus, respondent failed to demonstrate a per se conflict of interest sufficient to establish ineffective assistance of counsel. See In re Br. M., (declining to remand termination proceedings based on ineffective assistance where respondent's attorney acted as GAL for minor daughter three years earlier).
¶ 34 Respondent's petition also alleged that Hoelscher was ineffective by failing to present certain arguments, provide necessary documents, and examine potential witnesses in efforts to oppose the termination proceedings. Specifically, respondent claims that Hoelscher failed to argue that he was unable to complete substance abuse services between December 2017 and September 2018 because the location where he was incarcerated did not offer services. As this court noted on direct appeal respondent's incarceration and inability to access services is not an excuse for his lack of progress. See A.B., 2019 IL App (3d) 190293-U, ¶ 27. It is well-settled that a respondent's incarceration during the relevant nine-month period for demonstrating reasonable progress will not excuse lack of progress or toll the relevant period. In re J.L., 236 Ill.2d 329, 341-43 (2010).
¶ 35 Respondent also claimed that Hoelscher failed to subpoena documents showing that he completed treatment and was making reasonable progress. Although respondent supported his claim by attaching two substance abuse documents to his section 2-1401 petition, those documents are not definitive examples of reasonable progress. They show that substance abuse services were recommended and that respondent started substance abuse counseling, but they do not demonstrate that respondent completed the substance abuse treatment required during the relevant nine-month period. The documents fail to support respondent's claim that he made reasonable progress to such a degree that, had counsel introduced them, the outcome of the termination proceedings would have been different. See In re A.S., 2014 IL App (3d) 140060, ¶ 17 (to establish reasonable progress, trial court must find some "measurable or demonstrable movement toward the goal of return of the child."); In re C.N., 196 Ill.2d 181, 216-17 (2001) (parent's reasonable progress is measured by overall compliance with service plan and directives).
¶ 36 Respondent's claim that Hoelscher was ineffective for failing to subpoena witnesses and phone records related to a negative drug test must also fail. "[E]vidence of indulgence without intermission is not necessary to prove addiction." In re Precious W., 333 Ill.App.3d 893, 899 (2002). One negative test would not have disproven habitual drunkenness. In addition, habitual drunkenness was one of three grounds alleged by the State in support of unfitness, and respondent made no claim that the negative drug test would have demonstrated reasonable progress or reasonable efforts.
¶ 37 Next, respondent argues that Hoelscher's failure to challenge the service plan's requirement of drug testing fell below an objective standard of reasonableness. We rejected defendant's claim on direct appeal that he should not have been required to complete substance abuse treatment, therapy, and drug drops, finding that those services were "reasonably related to remedying the condition that gave rise to A.B. being removed from the home - her exposure to drug abuse and drug use in the home." A.B., 2019 IL App (3d) 190293-U, ¶ 28. Our holding on direct appeal indicates that even if Hoelscher had challenged the drug testing requirement, the result of the termination proceedings would not have changed. Respondent therefore failed to show that Hoelscher's decision to forego the argument resulted in ineffective assistance.
¶ 38 Last, respondent claims his appellate counsel was ineffective in failing to raise Hoelscher's ineffectiveness on direct appeal. "Claims of ineffective assistance of appellate counsel are measured against the same standard as those dealing with ineffective assistance of trial counsel." People v. Childress, 191 Ill.2d 168, 175 (2000). Appellate counsel renders ineffective assistance by failing to raise an issue on direct appeal if that failure was objectively unreasonable and the decision prejudiced the defendant. People v. Easley, 192 Ill.2d 307, 328-29 (2000). Nevertheless, counsel is not obligated to brief every possible issue on appeal, and "it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." Id. at 329. Unless the underlying issues are meritorious, a petitioner suffers no prejudice from counsel's failure to raise them on appeal. Id. In this case, we have reviewed respondent's claims that Hoelscher was ineffective and have determined that they are without merit. Accordingly, appellate counsel was not ineffective for failing to raise them on direct appeal.
¶ 39 III. CONCLUSION
¶ 40 The judgment of the circuit court of Henry County is affirmed.
¶ 41 Affirmed.