author: JUSTICE LINN

text:
      In re D.L., JR., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. D.L., Sr., Respondent-Appellant).
    First District (4th Division)
    No. 1—87—1491
    Opinion filed February 20, 1992.
    Rehearing denied March 23, 1992.

      M. Jacqueline Walther, of Kielian & Walther, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Mary Erigid Kenney, and Donald T. Layman, Assistant State’s Attorneys, of counsel), for the People.
    Ryan, Miller & Trafelet, of Chicago (Mary Ellen Dienes, of counsel), for other appellees.
    Patrick Murphy, Public Guardian, of Chicago, guardian ad litem.

   JUSTICE LINN

delivered the opinion of the court:

The Illinois Department of Children and Family Services petitioned the circuit court of Cook County for an adjudication of wardship of D.L. At the conclusion of separate adjudicatory and dispositional hearings, the trial court found that D.L. was a dependent minor; adjudged him to be a ward of the court; and awarded custody of D.L. to his maternal great-uncle and great-aunt, James and Judy Taylor, and appointed them D.L.’s guardians.

D.L.’s father, D.L., Sr., appeals. He contends the trial court erred by: (1) holding a temporary custody hearing without the presence of his counsel; and (2) ruling that the Taylors were necessary parties to the proceedings. D.L., Sr., contends the trial court also erred at the dispositional hearing by: (3) denying his motion to exclude witnesses; and (4) admitting into evidence improper opinion testimony.

We affirm the order of the trial court.

Background

A

The record contains the following pertinent facts. D.L.’s father, D.L., Sr., and D.L.’s mother, J.L., were married in 1982. J.L.’s family included two sisters (D.L.’s maternal aunts), Kathy Downs and Diane DeTratto, and an uncle and aunt (D.L.’s great-uncle and great-aunt), James and Judy Taylor.

D.L. was born in 1984. It is undisputed that the marriage of D.L.’s parents soured at least by the time D.L. was born. From February to September 1985, D.L.’s parents were separated. During that time, D.L. and his mother lived with the Taylors. Also, in August 1985, D.L., Sr., absconded with D.L. to Florida. He returned with the infant to Chicago when he and J.L. agreed to attempt a reconciliation.

In February 1986, J.L. separated from D.L., Sr., for the last time, taking D.L. with her. J.L. moved in with her sister, Kathy Downs. On May 21, 1986, J.L. went out alone and never returned. When J.L. failed to return the next day, Kathy entrusted D.L. to the Taylors to watch because she had to go to work. D.L. has been residing with the Taylors since that time.

J.L.’s corpse was found on June 1, 1986. The body was found in a river. The hands were bound. J.L. died of multiple gunshot wounds. D.L., Sr., was charged with killing her and was arrested.

B

On June 3, 1986, the Illinois Department of Children and Family Services (DCFS) filed in the trial court a petition for adjudication of wardship trader the old Juvenile Court Act, which has been replaced by the Juvenile Court Act of 1987. (Ill. Rev. Stat. 1985, ch. 37, par. 701—1 et seq., replaced by Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.) The petition alleged that D.L. was neglected, i.e., D.L., Sr., did not provide the care necessary for D.L.’s well-being (see Ill. Rev. Stat. 1985, ch. 37, par. 702—4(1)), and also that D.L. was dependent, i.e., D.L. lacked proper care due to the physical disability of D.L., Sr. (See Ill. Rev. Stat. 1985, ch. 37, par. 702—5(1)(b).) On the same day, the trial court appointed DCFS temporary custodian of D.L. and appointed a guardian ad litem for the child. The agency allowed D.L. to remain with the Taylors.

On August 11, 1986, the Taylors petitioned the trial court for temporary custody of D.L. and sought leave to intervene in the proceedings. At this time, three families sought appointment as temporary custodians of D.L.: the family of D.L.’s paternal uncle, Alfredo; the Taylors; and the family of Diane DeTratto.

A hearing on the motion was set for August 27 at 9 a.m. D.L., Sr., and his brother Alfredo were present, but not counsel for D.L., Sr. The trial court held over the case until 11:25 a.m. Counsel for D.L., Sr., had not yet appeared. The trial court denied the request of D.L., Sr., for a continuance and held the hearing.

The trial court heard from the Taylors’ counsel, a representative of DCFS, an assistant State’s Attorney, and D.L.’s guardian ad litem. The DCFS representative opined that the homes of all of the proposed temporary custodians were suitable. The other attorneys agreed that D.L. should remain with the Taylors. The court gave D.L., Sr., and Alfredo an opportunity to be heard. At the close of the hearing, the trial court appointed the Taylors temporary custodians of D.L. The court further found that the Taylors’ appointment as D.L.’s temporary custodians rendered their petition to intervene in the proceedings moot. The court reasoned that “temporary custodians are parties to these proceedings.”

The trial court held the adjudicatory hearing on November 26, 1986. (See Ill. Rev. Stat. 1985, ch. 37, par. 704—1 et seq.) After the court advised D.L., Sr., of his rights and with the assistance of his counsel, D.L., Sr., admitted that D.L. was a dependent child. To provide a factual basis for the admission, the State proffered the testimony of D.L.’s DCFS caseworker. She would testify that D.L., Sr., was incarcerated in Cook County jail and, consequently, unable to provide the necessary care to D.L. The trial court accepted the admission of D.L., Sr., and found that D.L. was a dependent minor, based on the physical disability of D.L., Sr.

The dispositional hearing began on February 10, 1987. (See Ill. Rev. Stat. 1985, ch. 37, par. 705—1 et seq.) The State, the Taylors, Alfredo, and D.L., Sr., each called witnesses. The State called Christine McGrath, a DCFS supervisor. McGrath reviewed the case in September 1986, prior to assigning it to DCFS caseworker Joan Brown. Mc-Grath reviewed the case with Brown every two to three weeks. Approximately one week prior to the hearing, McGrath assumed personal responsibility for the case because Brown went on medical leave. McGrath reviewed the file for the hearing, personally visited the homes of the Taylors and Alfredo, and prepared a supplemental report.

McGrath stated that D.L. received treatment from Colin Weber, a social worker at the Institute of Psychoanalysis trained in child psychotherapy. The counseling was believed necessary due to the death of D.L.’s mother and the allegation that his father had killed his mother. Weber opined to McGrath that D.L. had begun to bond to the Taylors and that it would be in D.L.’s best interests if he remained with the Taylors. Also, approximately three weeks prior to the hearing, caseworker Brown opined to McGrath that it would be in D.L.’s best interests if he remained with the Taylors. McGrath agreed with the agency’s written reports that all three households could supply D.L.’s needs. However, based on her conversations with Brown and Weber, and her own observations, McGrath also opined that it would be in D.L.’s best interests to remain with the Taylors.

During his cross-examination of McGrath, counsel for D.L., Sr., moved that the witnesses be excluded from the hearing when not testifying. The trial court denied the motion. The court reasoned that since all of the witnesses are interested in D.L., they should hear all of the evidence that pertains to him.

The Taylors called several witnesses at the dispositional hearing. Diane DeTratto testified that she, the Taylors, and D.L. shared a common ethnic heritage through his mother. Also, the Taylors lived in an ethnically integrated neighborhood. Approximately three days subsequent to J.L.’s disappearance, DeTratto and her husband met with her sister Kathy Downs, a brother, and the Taylors. They agreed that the Taylors should be appointed guardians of D.L. The family based its opinion on the fact that D.L. spent most of his life in or near the Taylors’ home. D.L. lived with the maternal side of his family for approximately one week in the summer of 1984, from January through September 1985, and from February 1986 through the time of the hearing.

DeTratto observed D.L. when he lived with the Taylors prior to his mother’s death. It appeared to DeTratto that the Taylors and their two daughters were affectionate to D.L. and he to them. If the Taylors were not appointed D.L.’s guardians, DeTratto and her husband wanted to be appointed guardians of the child.

Robert Schreck is an attorney and a friend of the Taylors. He met the Taylors through Kathy Downs and had known them for approximately two years. Schreck discussed with the Taylors’ neighbors the feasibility of a fundraiser, the proceeds of which to go to the Taylors’ expenses in seeking guardianship of D.L. Schreck stated: “The neighbors basically were outraged that a confessed murderer was trying to direct the placement of the child.” Neither the Taylors nor the De-Trattos requested or planned the fundraiser. Also, two bank accounts were established in Judy Taylor’s name. One account was devoted to the debts of D.L.’s mother, and the other was devoted to the costs of seeking guardianship of D.L.

Schreck visited the Taylors approximately two to three times per week. Schreck described the relationship between the Taylors and D.L. as “very warm and loving”; D.L. appeared to be “very happy.” Schreck opined that it would be in D.L.’s best interests if the Taylors were appointed his guardians.

James and Judy Taylor each testified at the dispositional hearing. Their marriage produced two daughters. They lived in an ethnically integrated, middle-class neighborhood in Chicago. James was a Chicago police officer, and Judy attended school 16 hours per week to become a registered nurse. During these hours, D.L. received care from James or DeTratto.

Alfredo visited D.L. weekly. Sometimes D.L. would cooperate during these visits, but other times he would cry and say that he did not want to accompany Alfredo. The Taylors would cooperate with any court order directing visitation by Alfredo. The Taylors opined that it would be in D.L.’s best interests if they were appointed D.L.’s guardians.

Frances Ryan was a neighbor of the Taylors for seven years. Ryan had taught for 17 years and was teaching first-grade students at a parochial school. From February 1986 until the date of her testimony, Ryan visited the Taylors four to five times per week. To Ryan, D.L. appeared to be “developing a good image of himself”; the Taylors appeared to be “loving, fair, and firm”; and the Taylors’ daughters appeared to be “loving and yet they fight and yet they make up and they love as all children do.”

Alfredo called several witnesses at the dispositional hearing. Maria Luna was Alfredo’s sister (D.L.’s paternal aunt). She visited D.L. almost weekly when Alfredo brought D.L. to his home. D.L. appeared to interact well with Alfredo and his family. She described both Alfredo’s immediate family and their extended family as very close and loving. Additionally, Alfredo was financially able to raise D.L. Alfredo owned his own business. He employed a housekeeper. His home was sufficiently large for D.L. Maria Luna opined that Alfredo’s family would take good care of D.L.

Maria was Alfredo’s wife. She had been married to Alfredo for four years and they had two, two-year-old daughters. Although Maria was a licensed beautician, she was a homemaker. Maria knew how to care for children. They also employed a part-time housekeeper. Alfredo’s family had known D.L. from his birth and enjoyed his visits. If they were appointed D.L.’s guardians, D.L. would have his own room and speak both English and Spanish. Maria would treat D.L. as she would treat her other children.

Alfredo testified that he was in regular contact with D.L. since his birth. Alfredo owned an auto parts and repair business. He could support D.L. if appointed his guardian. Alfredo had two children by a previous marriage, but these children lived with his ex-wife.

Alfredo noted that D.L. was treated for asthma. Alfredo opined that smoking affects asthma, and noted that he did not smoke while his wife smoked approximately one pack of cigarettes per month. However, he believed that Judy Taylor smoked “heavily.”

D.L. interacted well with his immediate family, and Alfredo would treat D.L. as his own. Alfredo would see that D.L. received an education “as far as [D.L.] could go,” and would raise the child bilingually and biculturally. Alfredo would love and care for D.L. whether or not he was appointed the child’s guardian. However, he believed that it would be in D.L.’s best interests if he were appointed D.L.’s guardian. Alfredo sought guardianship of D.L. not only to support the paternal side of D.L.’s family, but most importantly, to secure D.L.’s best interests.

On April 16, 1987, with all counsel present, the trial court interviewed D.L. in chambers. The child was nearly three years old. The interview shed no light on the matter. In essence, D.L. first stated that he certainly would like to live with the Taylors. He subsequently stated that he certainly would like to live with Alfredo. D.L. lastly stated that he would like to live with the Taylors.

D.L., Sr., presented one witness at the dispositional hearing. DCFS caseworker Linda Johnson was assigned to D.L.’s case in June 1986. She investigated the households of Alfredo and the Taylors, and interviewed D.L., Sr., in Cook County jail. She stated that Alfredo could financially support D.L. without State assistance, while the Taylors could qualify for public funds. Johnson concluded that the home of either the Taylors or Alfredo would adequately meet D.L.’s needs. However, in terms of D.L.’s emotional bonding, Johnson “saw the Taylors as one up on [Alfredo].”

At the close of the dispositional hearing, the trial court appointed the Taylors as D.L.’s guardians. The court stressed at the outset that the sole issue was the best interest of D.L. The court considered many factors in this determination. These factors included the bonding or emotional ties between the parties and D.L., and the lengths of time D.L. had “lived in a stable, satisfactory environment and the desirability of maintaining continuity.” The court concluded that both the Taylors and Alfredo’s family “are eminently qualified” to be appointed guardians of D.L. However, the trial court ruled that it was in D.L.’s best interest that the Taylors be appointed his guardians.

D.L., Sr., was subsequently convicted of the voluntary manslaughter of D.L.’s mother and is now serving a prison sentence on the conviction. D.L., Sr., appeals.

Opinion

We note at the outset the controlling law. The Juvenile Court Act codifies the well-recognized principle that parents have the inherent right to the custody of their children. In re Martin (1975), 31 Ill. App. 3d 288, 292, 333 N.E.2d 711, 714 (and authorities cited therein).

However, the rights of parents to the custody of their children are not absolute. “On the contrary, they must yield at all times to the paramount factor of the welfare and best interests of the child or children involved.” (Martin, 31 Ill. App. 3d at 292, 333 N.E.2d at 714.) In appropriate circumstances, the State, as parens patriae, may properly step in and substitute itself as the guardian of minors within its jurisdiction. Such circumstances include where parents are unable to care for children in their custody. (In re Wheat (1979), 68 Ill. App. 3d 471, 476, 386 N.E.2d 278, 282; Ill. Rev. Stat. 1985, ch. 37, pars. 702-1, 702—5(1)(b).) “[I]t is well established that the paramount consideration in all guardianship and child custody cases is the best interest of the child.” In re Violetta B. (1991), 210 Ill. App. 3d 521, 533, 568 N.E.2d 1345, 1353; see Ill. Rev. Stat. 1985, ch. 37, par. 701-2(3)(c).

We further note that D.L., Sr., who is currently serving a prison sentence, obviously does not seek custody of D.L. for himself. Rather, he seeks guardianship on behalf of his brother Alfredo. A parent’s inherent right to the custody of his or her child cannot be transferred by an absolute assignment to someone other than the other parent. This court will not allow the preference of D.L., Sr., to overcome the State’s legitimate interest in D.L. as parens patriae. See Bryant v. Lenza (1980), 90 Ill. App. 3d 275, 282-83, 412 N.E.2d 1154, 1159-60.

It is additionally well settled “that wide discretion is vested in the trial judge to an even greater degree than any ordinary appeal to which the familiar manifest weight principle is applied.” (Martin, 31 Ill. App. 3d at 293, 333 N.E.2d at 715.) This deference is justified by the delicacy and difficulty of child custody cases. (In re Stilley (1977), 66 Ill. 2d 515, 520, 363 N.E.2d 820, 822.) Thus, a court of review will not disturb a trial court’s determination in a child custody case unless the trial court exceeded its broad discretion, or the court’s determination results in manifest injustice or is palpably against the weight of the evidence. (Stilley, 66 Ill. 2d at 520, 363 N.E.2d at 822; Martin, 31 Ill. App. 3d at 293, 333 N.E.2d at 715.) Having noted these fundamental principles, we now address the specific assignments of error.

I

D.L., Sr., first contends the trial court erred by holding the temporary custody hearing without the presence of his counsel. D.L., Sr., claims that he was denied the procedural safeguards guaranteed by the Juvenile Court Act.

In In re E.L. (1987), 152 Ill. App. 3d 25, 504 N.E.2d 157, this court stated as follows:

“Due process is not a technical concept unrelated to time, place, and circumstances; rather, it is flexible and calls for such procedural protections as a particular situation demands. [Citation.] Procedural aspects of due process require that a person be given notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the case. [Citation.] Due process is not denied when a party fails to avail himself of the opportunity to be heard after it is offered to him. [Citation.] While section 1 — 20 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701—20(1)) entitles respondents to certain rights including the right to be present [and represented by counsel] and to cross-examine witnesses, the proceedings are not intended to be adversary in character. The primary concern is the best interests and welfare of the child. [Citation.]” 152 Ill. App. 3d at 33, 504 N.E.2d at 162.

Applying these principles to the case at bar, we conclude that D.L., Sr., received adequate procedural due process at the temporary custody hearing. D.L., Sr., and his counsel had notice of the hearing. On the scheduled day of the hearing, the trial court delayed the hearing for approximately 2V2 hours. Both D.L., Sr., and Alfredo spoke at the hearing. Thus, D.L., Sr., received notice and an opportunity to be heard and to defend. Further, the trial court cannot be said to have denied D.L., Sr., the right to counsel when it was his counsel who failed to appear at the scheduled time. In the context of this non-adversarial proceeding, which focused on the best interests of D.L., we cannot say that the trial court’s action resulted in manifest injustice.

II

D.L., Sr., next assigns error to the trial court’s ruling that the Taylors were proper parties to the proceedings. The parties to a juvenile proceeding are “the minor who is the subject of the proceeding and his parents, guardian, legal custodian or responsible relative.” (Ill. Rev. Stat. 1985, ch. 37, par. 701—20(1).) D.L., Sr., acknowledges that the Taylors were D.L.’s temporary custodians. However, D.L., Sr., argues that temporary custody does not equal legal custody, so as to confer party status on the temporary custodian. He reasons that “temporary custody is merely a temporary placement of the minor out of the custody of his or her parent or guardian [citations]; legal custody involves broader rights and obligations.”

The Juvenile Court Act defines legal custody as follows:

“§1 — 12. Legal Custody. ‘Legal Custody’ means the relationship created by an order of court which imposes on the custodian the responsibility of physical possession of a minor and the duty to protect, train and discipline him and to provide him with food, shelter, education and ordinary medical care, except as these are limited by residual parental rights and responsibilities and the rights and responsibilities of the guardian of the person, if any.” Ill. Rev. Stat. 1985, ch. 37, par. 701—12.

We agree with the Taylors that, as D.L.’s temporary custodians, they were effectively his legal custodians. Therefore, they were proper parties to the proceedings. The record shows that, as a consequence of their appointment as temporary custodians, the Taylors undertook all of the responsibilities included in the statutory definition of legal custody. “Where the circumstances of a case indicate that a person other than a parent has a substantial interest in a minor in proceedings in the juvenile court, then under the contemplation of the Act that person is a necessary party to the proceedings.” (In re Anast (1974), 22 Ill. App. 3d 750, 756, 318 N.E.2d 18, 22.) The fact that the Taylors were appointed D.L.’s temporary custodians and were effectively his legal custodians distinguishes this case from In re Winks (1986), 150 Ill. App. 3d 657, 502 N.E.2d 35. After reviewing the entire record, we cannot say that the trial court exceeded its discretion.

Ill

D.L., Sr., next contends the trial court erred at the dispositional hearing by denying his motion to exclude witnesses from the hearing when they were not testifying. He claims that each of the Taylors’ witnesses “structured” his or her testimony to conform to that of the others.

We cannot accept this contention. It has long been settled that proceedings under the Juvenile Court Act are civil in nature. (In re J.J. (1991), 142 Ill. 2d 1, 8, 566 N.E.2d 1345, 1348-49 (and cases cited therein).) Thus, the general rules of civil practice apply. (In re Harpman (1986), 146 Ill. App. 3d 504, 512, 496 N.E.2d 1242, 1246.) It is quite settled that the exclusion of witnesses from a courtroom is a matter resting in the sound discretion of the trial court. In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 29, 500 N.E.2d 612, 616-17; Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 322, 200 N.E.2d 149, 184.

In the case at bar, the trial court reasoned that since all of the witnesses were interested in D.L., they should hear the evidence that pertained to him. We cannot say that the trial court exceeded its discretion.

IV

D.L., Sr., lastly assigns error to the trial court’s admission of improper opinion testimony. D.L., Sr., argues that: (1) McGrath’s testimony of Weber’s expert opinion constituted hearsay; (2) the opinion of each of the Taylors’ witnesses that it would be in D.L.’s best interests if he remained with the Taylors constituted impermissible speculation about matters outside of their knowledge; and (3) Schreck’s references to the views held by the Taylors’ neighbors were irrelevant.

Section 5 — 1(1) of the Act allows the trial court at a dispositional hearing to admit into evidence “[a]ll evidence helpful in determining [the] question[] [of disposition].” (Ill. Rev. Stat. 1985, ch. 37, par. 705—1(1).) This provision “shows a clear intention that juvenile courts have wide latitude in admitting evidence at dispositional hearings.” (In re White (1982), 103 Ill. App. 3d 105, 111, 429 N.E.2d 1383, 1389.) Although hearsay and other types of incompetent evidence may not be admissible at the adjudicatory hearing, they are admissible at the dispositional hearing. (In re Brooks (1978), 63 Ill. App. 3d 328, 341, 379 N.E.2d 872, 882; In re Prough (1978), 61 Ill. App. 3d 227, 231, 376 N.E.2d 1078, 1082.) Further, we presume that the trial court relied only upon competent evidence in making its determination. See Prough, 61 Ill. App. 3d at 232, 376 N.E.2d at 1082.

Based on these principles, we cannot accept this contention. We conclude that the admission of all of the evidence of which D.L., Sr., complains was well within the discretion of the trial court. After carefully reviewing the entire record, from which we recited at length, we cannot say that the trial court exceeded its discretion or that the trial court’s determination resulted in manifest injustice or was palpably against the weight of the evidence.

For the foregoing reasons, the order of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEROME WILLIAMS, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—2850
    Opinion filed February 21, 1992.

      Randolph N. Stone, Public Defender, of Chicago (James N. Perlman, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William P. Pistorius, and David B. Franks, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LaPORTA

delivered the opinion of the court:

Defendant Jerome Williams was convicted of three counts of aggravated battery and one count of armed violence. He was sentenced to 15 years in prison on the armed violence conviction, the term to run consecutively with an unrelated three-year conviction for possession of a controlled substance and concurrently with an unrelated 20-year murder conviction.

Defendant’s appeal does not involve the propriety of the aggravated battery and armed violence convictions per se but asks this court to vacate defendant’s conviction because he did not waive representation by a “conflict-free” attorney, who at the time of defendant’s trial had a disciplinary proceeding pending against him before the Illinois Supreme Court.

Prior to defendant’s trial, the Illinois Supreme Court ordered that the law license of Leo Fox, defendant’s counsel, be suspended for 18 months because of his failure to prosecute two appeals. Fox filed a petition for rehearing and that petition was pending when defendant’s armed violence case went to trial. Therefore, at the time of trial, counsel was licensed to practice law in the State.

On the day of defendant’s trial, May 18, 1988, defendant and counsels for defendant and the State appeared in chambers together with the trial judge to apprise defendant of Fox’s situation. Though no court reporter was present, the parties stipulated to a written re-creation of what occurred in chambers. The stipulation read:

“On May 18, 1988, Jerome Williams, his attorney Leo Fox, and Assistant State’s Attorney Edward Ronkowski met in the chambers of Circuit Court Judge Romie Palmer. No court reporter was present.
Judge Palmer informed Jerome Williams his attorney was under investigation and that Mr. Fox’s license may be suspended as a result of the investigation. Judge Palmer did not disclose the nature of the investigation. Judge Palmer wanted Jerome to know about the investigation so Jerome could decide whether he still wished Fox to remain his attorney. Judge Palmer informed Jerome Williams that if he no longer wanted Mr. Fox to continue as counsel, Jerome could have a continuance to obtain new counsel. It is Assistant State’s Attorney Edward Ronkowski’s recollection that Judge Palmer also told Jerome if he could not afford counsel one would be appointed. Neither Judge Palmer [n]or Mr. Fox recall whether Judge Palmer did or did not make this statement; however, it was Judge Palmer’s practice to include this court appointed counsel admonition in similar situations.
Jerome Williams answered Judge Palmer’s question by stating ‘Yes’ he wanted Mr. Fox to continue to be his lawyer. Judge Palmer told Jerome that by answering ‘Yes’ he couldn’t thereafter use Mr. Fox’s professional problems on appeal. Jerome Williams then asked Judge Palmer whether Mr. Fox was eligible to represent him (Williams). Judge Palmer answered ‘Yes.’
Whereafter, the parties returned to the courtroom. (Stipulated Statement of facts.)”

In open court Judge Palmer admonished defendant again with regard to his counsel’s pending disciplinary proceeding. The following colloquy occurred:

“THE COURT: I would like to admonish him a little bit more. Can I do that? Any objection to me doing this?
[DEFENSE COUNSEL]: No, sir.
THE COURT: Mr. Williams, you were in the chambers not too long ago with your attorney, and the State’s Attorney, is that correct, and the Court? At that time I advised you as to certain things relating to your attorney. Is that right?
MR. WILLIAMS: Yes.
THE COURT: And I also advised you, I believe I did, that if for some reason this matter comes up, you were convicted and this matter comes up in the future, you would have then waived your right to bring this up as a matter of appeal, insofar as the attorneys’ [s-ic] qualifications. Do you recall that?
MR. WILLIAMS: Yes.
THE COURT: I’m again advising you. Do you understand that?
MR. WILLIAMS: Yes.
THE COURT: I asked you then, do you want your attorney to represent you?
MR. WILLIAMS: Yes.
[DEFENSE COUNSEL]: For the record, by your attorney you are referring to me, Leo Fox?
MR. WILLIAMS: Yes.”

Defendant then waived his right to a jury and his trial proceeded. The trial judge found defendant not guilty of attempted murder and guilty of one count of armed violence and three counts of aggravated battery. The trial judge set the sentencing for June 2, commenting to defendant that: “I understand we are continuing it to June 2. Mr. Williams, this case, Counsel may not be able to finish it. Do you understand it? *** That he may have to bring in another attorney or a Public Defender. You understand that? *** That is agreeable?” Three times defendant responded, “Yes.”

Fox’s license was suspended for 18 months on April 25,1988.

On June 2, 1988, defendant appeared before the trial court and agreed to be represented by a public defender. The trial judge admonished defendant: “The attorney that you had will not be representing you. *** You were admonished before that he might not represent you at the sentencing, is that correct?” The defendant responded in the affirmative and stated that he wanted the public defender to represent him at the sentencing.

On August 19, 1988, defendant, represented by a public defender, was sentenced to 15 years. His motion for a new trial was also denied and the court noted that Fox’s involvement in the case was not grounds for reversal.

On appeal, defendant contends he is entitled to a new trial without regard to his trial counsel’s actual performance because he did not waive his right to be represented by conflict-free counsel. Defendant concedes that “[a] review of the appellate record reveals Mr. Fox’s performance was within acceptable perameters.” However, defendant contends that in certain circumstances, citing Peo ple v. Williams (1982), 93 Ill. 2d 309, 444 N.E. 2d 136, pending disciplinary proceedings against defendant’s counsel may subject defendant to representation by an attorney with an actual or possible conflict of interest.

In Williams, defendant was sentenced to death following his conviction for murder, rape and aggravated kidnapping. The supreme court upheld the conviction but reconsidered defendant’s case when defendant’s petition for rehearing detailed his attorney’s subsequent disbarment. The supreme court ordered a new trial for Williams because the court found that though his counsel’s trial court actions were competent it could not say with “any degree of assurance” that defendant had received effective assistance of counsel. Williams, 93 Ill. 2d at 324.

The Williams court noted the unique circumstances of the Williams case because defendant’s counsel had represented three defendants in capital cases before two juries simultaneously. The court characterized the circumstances as “unique” and stated that the “sequence of events in this capital case, *** will rarely, if ever, be duplicated.” Williams, 93 Ill. 2d at 325.

Defendant urges this court to find, first, that defendant’s counsel too faced a conflict of interest and, second, that defendant did not waive his right to representation by conflict-free counsel.

A defendant is not required to show prejudice to his case in order to justify reversal of his conviction where his counsel has had an actual or possible conflict in professional conduct. (People v. Thomas (1989), 131 Ill. 2d 104, 545 N.E. 2d 654.) A defendant may waive his right to a conflict-free counsel if the court admonishes defendant regarding the existence and the significance of the conflict and takes into consideration the defendant’s background, experience and conduct. People v. Olinger (1986), 112 Ill. 2d 324, 339, 493 N.E. 2d 579; People v. Washington (1984), 101 Ill. 2d 104, 114, 461 N.E. 2d 393.

Defendant asks this court to find defendant’s counsel had a conflict of interest and contends the record is devoid of any statement as to the nature of the conflict, a consideration of Williams’ background and an indication that Williams was told the nature of his lawyer’s disciplinary charges and what effect it might have on defendant.

Defendant contends that in light of this court’s decision in People v. Washington (1990), 210 Ill. App. 3d 147, 568 N.E. 2d 1279, this court should find defendant did not waive his right to representation by a conflict-free attorney. The Washington court relied on Williams and held that defendant’s counsel had a conflict of interest because he had a disciplinary proceeding pending before the Attorney Registration and Disciplinary Commission at the time of defendant’s trial. The appellate court found defendant did not waive his right to a conflict-free counsel and ordered the case reversed and remanded. However, after briefs were filed in this case, the supreme court vacated and remanded the Washington decision to the appellate court. People v. Washington (1991), 142 Ill. 2d 663, 582 N.E. 2d 183.

The State contends that, even if we were to find that a conflict existed, the stipulated facts establish defendant voluntarily waived his right to representation by a conflict-free counsel. The State argues that defendant was advised that defense counsel might be suspended from the practice of law, putting defendant on notice that his counsel might not be able to represent him at a later date. The trial judge offered him the opportunity to seek and obtain other counsel and indicated that he would grant a continuance should defendant wish to do so. The State contends that defendant was admonished repeatedly about the situation and warned that his counsel’s disciplinary case could not be raised on appeal.

The State contends that defendant was not represented by counsel facing a conflict of interest and that the Williams case is factually distinguishable from defendant’s case. The State notes that the supreme court characterized Williams as a “rarely, if ever *** duplicated” capital case where the attorney represented three defendants in two trials held simultaneously. In addition, the attorney in Williams never appeared before the Attorney Registration and Disciplinary Commission on his own case and explained later to the supreme court that he “did not feel mentally or physically capable of presenting his case.” In re Weston (1982), 92 Ill. 2d 431, 436, 442 N.E. 2d 236.

In support of its position, the State cites People v. Perry (1989), 183 Ill. App. 3d 534, 540 N.E. 2d 379, where the appellate court rejected the argument made by defendant that the mere pendency of disciplinary proceedings brands an attorney incompetent to defend a person charged with a crime. (Perry, 183 Ill. App. 3d at 540.) As the court aptly noted, the fact that attorneys still are permitted to continue practicing law until they are suspended or disbarred “is a clear answer to that argument.” Perry, 183 Ill. App. 3d at 540.

This identical argument was also rejected in People v. Long (1990), 208 Ill. App. 3d 627, 567 N.E. 2d 514, and People v. Bernardo (1988), 171 Ill. App. 3d 652, 525 N.E. 2d 857. In Bernardo, the appellate court rejected defendant’s contention that Williams established a per se rule permitting all criminal defendants a new trial when their attorneys are subject to disbarment proceedings. Bernardo, 171 Ill. App. 3d at 659.

The appellate court in Perry, Long and Bernardo instead found defendants’ counsel’s conduct proper by applying the standard used to review an ineffective assistance of counsel claim as enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.

In Strickland the court stated that a defendant must show that his counsel’s performance was so deficient that it fell below an objective standard of reasonableness and that the performance prejudiced the defense of the case. (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) The Strickland standard was adopted by the Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E. 2d 1246.

The supreme court, aware of the anomaly it created, emphasized the limitations of Williams in People v. Szabo (1991), 144 Ill. 2d 525, 529-30, 582 N.E. 2d 173. In Szabo, not decided at the time the parties filed briefs in this case, the defendant contended that he should be granted a new trial solely on the basis of his attorney’s disciplinary troubles. The defendant relied on Williams, but the court held that “the Williams decision was an aberration peculiar to the facts of that case.” (144 Ill. 2d at 529.) Two days after Szabo was published, the court vacated the Washington decision, citing the Szabo decision in support of its action.

We find defendant’s case in line with Szabo, Perry, Long and Bernardo where the courts found no unique circumstances such as existed in Williams to warrant a departure from the Strickland/Albanese standard. Defendant was advised fully in chambers and again in open court prior to trial. He repeatedly indicated to the court that he wished Fox to represent him and at no time expressed dissatisfaction with his counsel’s representation. Defendant acknowledges in his appellate brief that a review of the appellate record reveals “Mr. Fox’s performance was within acceptable parameters.” Defendant has pointed to no deficiencies in his counsel’s representation. Our review of the trial record establishes that counsel’s performance did not fall below the Strickland!Albanese objective standard of reasonableness nor did his representation prejudice the defendant. We find no grounds to reverse the decision of the trial court because of defense counsel’s disciplinary problems.

Defendant also asks this court to order a resentencing of his case if his murder conviction in an unrelated case is reversed on appeal. This court affirmed the murder conviction in an unpublished opinion (People v. Williams (1st Dist. 1990), No. 1—88—1303 (unpublished order under Supreme Court Rule 23)) and therefore this issue is moot.

We therefore affirm defendant’s conviction and 15-year sentence for armed violence.

Affirmed.

McNAMARA and RAKOWSKI, JJ., concur.


author: JUSTICE RAKOWSKI

text:
    DERBY MEADOWS UTILITY COMPANY, INC., Plaintiff-Appellee and Cross-Appellant, v. THE VILLAGE OF ORLAND PARK, Defendant (Camelot Homes, Inc., Defendant-Appellant and Intervenor-Cross-Appellee; La Salle National Bank, as Trustee, Intervenor-Appellant and Cross-Appellee).
    First District (6th Division)
    No. 1—91—1237
    Opinion filed February 21, 1992.

      Cowan & Minetz, Chartered, of Chicago (Robert S. Minetz and Sarah S. Hirsen, of counsel), for appellants.
    Ross & Hardies, of Chicago (Jeffery M. Cross and P. Matthew Glavin, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

At issue in this case are cross-motions for sanctions brought pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—611). The relevant facts pertaining to the substantive action below are to be found in our recent opinion Derby Meadows Utility Co. v. Inter-Continental Real Estate (1990), 202 Ill. App. 3d 345, 559 N.E.2d 986 (Derby I).

The facts pertaining to the issues we resolve are as follows. On September 28, 1987, plaintiff Derby Meadows Utility Company, Inc. (Derby Meadows), filed suit against defendant Village of Orland Park (Orland Park). Count IV of the complaint in that case sought injunctive relief to prevent Orland Park from providing utility services to the Pinewood North subdivision (the subdivision). Count IV alleged that Orland Park had tortiously interfered with an oral contract between Derby Meadows and defendant Camelot Homes, Inc. (Camelot), the developer of the subdivision, whereby Derby Meadows was to provide utility service to the subdivision.

On February 18, 1988, Derby Meadows filed suit against Camelot, based on the same oral contract pleaded in count IV of the complaint against Orland Park. On August 31, 1988, Camelot and La Salle National Bank (La Salle), as trustee under trust agreement dated April 2, 1987, and known as trust No. 112194, were allowed to intervene in the Orland Park case, and the cases were consolidated. Camelot first asserted the affirmative defense that the contract between it and Derby Meadows was unenforceable due to the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1 et seq.) on June 13, 1988. Camelot and La Salle filed a motion for summary judgment based on this affirmative defense, which the trial court granted on May 25, 1989. Derby Meadows appealed, and we affirmed in Derby I.

Meanwhile, on June 21, 1989, Camelot and La Salle filed their motion for sanctions. Derby Meadows filed a motion for sanctions against Camelot and La Salle, and the trial court denied both motions on July 10, 1989. A Rule 304(a) finding (134 Ill. 2d R. 304(a)) was entered on March 15, 1991.

During the summer of 1987, Derby Meadows retained counsel to represent it in the Orland Park litigation. Derby Meadows believed that Orland Park was interfering with, among other contracts, its oral contract with Camelot. Counsel for Derby Meadows interviewed Anthony Perino, Derby Meadows’ president, prior to filing suit. Perino told counsel that he had met with Camelot’s president, Robert Kaup, and that Kaup asked whether Derby Meadows would provide sewer, water and utility service to the Pinewood North subdivision. Perino responded affirmatively, and the two discussed the procedure for obtaining authorization from the Illinois Commerce Commission, routes for utility lines and the price and timing for the provision of such utility services. Perino further told counsel that Kaup told him [Perino] “we’ve got a deal,” and the two shook hands.

Additionally, on August 20, 1987, counsel for Derby Meadows interviewed Kaup. The fact that Derby Meadows was preparing a lawsuit against Orland Park was discussed. According to counsel for Derby Meadows, Kaup related that Orland Park was giving him a hard time concerning the Pinewood North subdivision, and that according to Kaup, Camelot “ha[d] a contract with Derby Meadows.” Kaup, in fact, indicated that if Derby Meadows did not provide water and sewer services to the subdivision, Camelot “would sue.”

As indicated, Derby Meadows sued Orland Park on September 28, 1987. During discovery on the Orland Park case, counsel for Derby Meadows obtained documents which corroborated the existence of an oral contract with Camelot. These included: (1) minutes of a March 20, 1987, hearing of the Cook County Zoning Board of Appeals, wherein it was stated that Derby Meadows would provide the water and sewer utility service; (2) minutes from a July 28, 1987, meeting of the Orland Park Plan Commission, wherein it was stated that the water and sewer utility service would be provided through a route necessarily Derby Meadows’; (3) and the purchase contract for the Pinewood North property, dated October 15, 1986, which stated that the contract was contingent upon “the certification of real estate for service by Derby Meadows Utility Company with sewer and water service.”

On October 12, 1987, Kaup wrote to counsel for Derby Meadows and suggested that no enforceable contract between Camelot and Derby Meadows existed. On October 15, 1987, counsel for Derby Meadows wrote to Kaup in response and advised Kaup that if Camelot breached the oral contract with Derby Meadows, Derby Meadows would take appropriate legal action. Kaup thereafter advised Derby Meadows that Camelot would not purchase water and sewer services for the Pinewood North subdivision from Derby Meadows, and Derby Meadows filed suit for specific performance on the oral contract.

The record reveals that Camelot had knowledge of Derby Meadows’ suit against Orland Park from the case’s inception. In May of 1988, the Orland Park case went to trial. At no point had Camelot sought leave to intervene in the case. On July 12, 1988, the trial court in the Orland Park case issued post-trial findings, ruling that a valid, enforceable contract between Derby Meadows and Camelot existed, and that Orland Park had tortiously interfered with the contract. On July 21, 1988, before an order on the verdict in the Orland Park case had been entered, Camelot and La Salle filed a petition to intervene in the Orland Park case, which the trial court granted. The cases were consolidated.

We held in Derby I that the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, pars. 1, 2) rendered the oral contract unenforceable. We further held that Kaup’s statements in his deposition, and Camelot’s statements in answer to Derby Meadows’ complaint, did not qualify as judicial admissions, and thus the exception to the Statute of Frauds where the existence of the contract is admitted did not apply. Hence, summary judgment was properly granted in favor of Camelot and La Salle, and dismissal of Orland Park was proper as well. See Derby, 202 Ill. App. 3d at 354-57.

The first issue we address is whether the trial court erred in denying Camelot and La Salle’s section 2 — 611 motion for sanctions.

The foregoing substantive issues are not at issue in this appeal. Rather, we are concerned solely with whether sanctions should have been granted below under section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). In People ex rel. Village of Buffalo Grove v. Village of Long Grove (1990), 199 Ill. App. 3d 395, 557 N.E.2d 643, the court discussed section 2 — 611, observing:

“Section 2 — 611 requires that an attorney or a pro se party sign every pleading, motion, or other paper filed with the court. [Citation.] This signature constitutes a certificate that the attorney or pro se party has read the document, has made a reasonable inquiry into its basis, and believes that it is well grounded in fact, warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and the paper is not [filed] for any improper purpose, such as harassment or delay. [Citations.] If a pleading, motion, or other paper is signed in violation of this provision, ‘the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.’ [Citation.]” 199 Ill. App. 3d at 418.

Contrary to the brief argument of defendant-intervenors that we should review the trial court’s denial of the sanctions motion de novo, it is well settled that the granting or denial of sanctions under section 2 — 611 is within the sound discretion of the trial court, and the trial court’s ruling will not be overturned absent an abuse of that discretion. (See Jackson v. Pellerano (1991), 210 Ill. App. 3d 464, 569 N.E.2d 167; Couri v. Korn (1990), 202 Ill. App. 3d 848, 855, 560 N.E.2d 379, citing In re Estate of Wernick (1989), 127 Ill. 2d 61, 77-78, 535 N.E.2d 876, 883.) In Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 570 N.E.2d 361, the court defined the abuse of discretion standard in the sanctions context:

“A trial court exceeds its discretion only where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the trial court’s actions, then a reviewing court cannot say that the trial court abused its discretion.” 211 Ill. App. 3d at 334-35, citing In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.

Camelot and La Salle make several arguments in support of their position that sanctions should have been imposed against Derby Meadows. Initially, they complain that it was “reprehensible” for Derby Meadows not to include them in Derby Meadows’ initial complaint against Orland Park, because they had such a great interest in the provision of water and sewer service to their property. What this argument ignores is the evidence in the record to support Derby Meadows’ argument that at the time of the filing of suit against Or-land Park, the president of Camelot had apparently informed counsel for Derby Meadows that Camelot wanted to abide by the oral agreement. Camelot and La Salle have provided no authority to suggest that a party is compelled to sue someone to protect the other’s interest, especially when the other party has indicated that the relief sought by the suing party is unopposed by the other party.

Next, Camelot and La Salle argue that it was improper for Derby Meadows not to join them in the Orland Park suit, for the same reason it was improper for Derby Meadows not to sue them in the first instance. Once again, Camelot and La Salle have cited no authority which supports their argument, and it does not seem that sanctions are warranted, particularly in light of the fact that the president of Camelot, Kaup, knew about the Orland Park litigation from the inception, yet Camelot and La Salle waited until after the trial to petition to intervene.

Defendants next state their main contention in this case, when they state: “The issue in this case is whether Derby Meadows should be sanctioned for filing a suit barred by the Statute of Frauds.” As defendants acknowledge, the relevant point in time is the prefiling-ofcomplaint time frame. The primary authority defendants rely on is Wren v. Feeney (1988), 176 Ill. App. 3d 364, 531 N.E.2d 155. There the Third District Appellate Court, over a dissent, held that the dismissal of a medical malpractice complaint barred by the medical malpractice statute of limitations was a proper ground for sanctions under section 2 — 611.

Without addressing the propriety of Wren, however, we find it readily distinguishable. First, it might be said that the affirmative defense of a statute of limitations is generally easier to anticipate and analyze than the affirmative defense at issue in this case. This is so due to the many exceptions to the Statute of Frauds. Second, in this case, as opposed to the Wren case, there exists affirmative evidence in the record that an exception to the subsequently asserted affirmative defense was known to the plaintiff at the time of filing suit.

Camelot and La Salle claim that Derby Meadows had no right to expect that an exception to the Statute of Frauds might apply to this case, namely, that Camelot would admit the existence of the oral contract. This even though Camelot and La Salle do not at any point in the briefing dispute that Camelot’s president, Kaup, told counsel for Derby Meadows that a contract existed and Camelot expected and desired Derby Meadows to perform its part of the bargain. While Kaup did not admit this in the case sub judice, given that Derby Meadows had the prefiling information that a contract existed, it seems clear that it was not unreasonable for Derby Meadows to rely on the exception to the Statute of Frauds when the complaints were filed. Contrary to Camelot and La Salle’s arguments, Derby needn’t have pleaded the affirmative defense in its complaint and the defense was not in issue until defendants pleaded it (see Cutsinger v. Cullinan (1979), 72 Ill. App. 3d 527, 391 N.E.2d 177); thus, Derby Meadows was under no obligation to plead an exception to the potential affirmative defense.

A litigant or counsel will not be liable for sanctions merely because a claim is ultimately unsuccessful or because the facts are ultimately found to be adverse to the pleadings. (Couri v. Korn, 202 Ill. App. 3d 848, 560 N.E.2d 379.) It is not “ ‘per se unreasonable to initiate a lawsuit and pursue a possible claim where the defendant may have a strong defense.’ ” (Emphasis added.) (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 622, 532 N.E.2d 595, quoting Mihalik v. Pro Arts, Inc. (6th Cir. 1988), 851 F.2d 790, 794.) Given that counsel for Derby Meadows investigated the claim not only by talking with his client, but by interviewing Kaup as well, and given the information those individuals supplied counsel with, we hold that ample evidence in the record supports the trial court’s determination that sanctions were unwarranted, and the trial court’s ruling was not in excess of its discretion.

We next address whether the trial court erred in denying Derby Meadows’ section 2 — 611 motion for sanctions. Derby Meadows argues that the trial court abused its discretion in denying sanctions against Camelot and La Salle for alleged untrue allegations of fact and arguments unwarranted by law in their initial section 2 — 611 motion. According to Derby Meadows, defendants made untrue statements of fact in their motion, to the effect that they were “necessary” parties, and that the judge in the Orland Park case had found them to be so. Derby Meadows further argues that defendants pleaded an untrue statement of fact in their motion when they claimed that Derby Meadows was the single cause of the procedural morass that resulted in the action below. Finally, Derby Meadows argues that defendants should be sanctioned for claiming that Derby Meadows’ complaint was sanctionable in the first instance.

We disagree. The contention of Derby Meadows, that defendants erroneously claimed that the procedural difficulties were Derby Meadows’ fault, is not even an allegation of fact. Nor can we say, based on the record before us, that it was untrue for defendants to assert that they had previously been found a necessary party. We likewise reject the claim that Camelot and La Salle should be sanctioned for bringing the motion on the grounds that they did. In sum, we cannot say that no reasonable person could take the view adopted by the trial court. We therefore hold that the trial court did not abuse its discretion in denying Derby Meadows’ section 2 — 611 motion.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and LaPORTA, JJ., concur.


author: JUSTICE MURRAY

text:
      In re M.M., a Minor (Gary T. Morgan, Appellant).—In re M.E.B. et al., Minors (Gary T. Morgan, Appellant).—In re A.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.B., a Minor, Respondent-Appellant).
    First District (5th Division)
    Nos. 1—90—1955, 1—90—1956, 1—90—2570 cons.
    Opinion filed February 21, 1992.

      Neil F. Hartigan, Attorney General, of Springfield (Cathy Ann Pilkington, Special Assistant Attorney General, of Chicago, of counsel), for appellant Department of Children and Family Services.
    Rita A. Fry, Public Defender, of Chicago (John T. Kennedy, Assistant Public Defender, of counsel), for appellees M.E.B., B.B., A.B., T.B., and M.M.
    Patrick T. Murphy, Public Guardian, of Chicago (Kim Albert and Annette Appell, of counsel), for Office of the Cook County Public Guardian.
   JUSTICE MURRAY

delivered the opinion of the court;

The three above-named cases have been consolidated by this court for review because each of them presents the same issue, i.e., whether a circuit court, when terminating parental rights and appointing a guardian with the power to consent to adoption, may place within the order appointing the guardian a limitation or condition so that the guardian may exercise his authority to consent to adoption only if the adoptive parents agree to continue to permit “contact” with the freed child’s biological family. Before we discuss the various arguments and our resolution of this dilemma, we shall give a brief background of the facts of each case.

1 — 90—1955: In re M.M. (the M.M. case)

On May 8, 1985, the Department of Children and Family Services (DCFS) filed a petition for adjudication of wardship on behalf of M.M. and her six siblings based upon neglect by their parents, Carol and Steven M. Temporary custody was granted to DCFS at that time and the children were placed in various foster homes. On December 11, 1985, M.M. and her six siblings were found to be neglected and adjudicated wards of the State. On January 23, 1986, Gary T. Morgan (Morgan) was appointed as guardian with the right to place and the children remained in foster care.

Subsequently, DCFS petitioned to terminate the parental rights of. Carol and Steven M., alleging that the parents were unfit due to their failure to correct conditions that led to the children’s removal. On April 7, 1989, and July 31, 1989, hearings were held regarding the petitions filed. However, the court terminated the parents’ rights with regard to M.M. and three of her siblings, not on the basis of their unfitness, but rather, based upon a surrender and consent signed by the parents.

Although the court terminated the parental rights of the parents, the court went on to find that it would be “in the best interests of the children” for them to continue to have contact with their biological parents and siblings. Consequently, in its orders terminating parental rights and appointing a guardian with the power to consent to adoption, pursuant to section 2 — 29 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1989, ch. 37, par. 802—29), the court inserted the provision, as follows:

“Gary T. Morgan is appointed guardian of the person of said minor, [M.M.], and is expressly authorized and empowered, without further order of this court for that purpose, to consent to the legal adoption of said minor should any proceedings for the minor’s legal adoption be commenced in any court at any time during this guardianship provided that the adoptive parents agree to continue to permit contact by the minor with her biological family ***.” (Emphasis added.)

Subsequently, M.M.’s foster parents, with whom she had lived for several years, petitioned to adopt her. Although they had always facilitated contact between M.M. and her biological parents and siblings, and agreed to continue to do so on an informal basis, they declined to agree to any court order that would enforce continued contact with the parents and siblings.

At a hearing on M.M.’s adoption, the guardian ad litem (GAL) petitioned the adoption court to enforce the juvenile court’s termination order and require that Morgan agree to adoption only by adoptive parents who would agree to an order of visitation. M.M.’s foster parents refused to go through with the adoption if such an order was enforced.

Due to these circumstances, Morgan petitioned the juvenile court to remove the restriction from the order of termination. The juvenile court denied the motion. Morgan, represented by the Attorney General, appealed.

1 — 90—1956: In re M.E.B., B.B., A.B., and T.B. (the M.E.B. case)

A petition for the adjudication of wardship for the four children named in this case was filed by DCFS on November 29, 1983, and, upon a finding of urgency, all four children were placed in the custody of Gary T. Morgan, with the right to place.

At a hearing on May 6, 1986, the children’s mother admitted to allegations of physical abuse lodged against her, allegations of sexual abuse were stricken by agreement, and the court found that the children were abused and neglected on the basis of excessive corporal punishment and injurious environment. On June 3, 1986, the four children were made wards of the court and Morgan was appointed guardian with the right to place. The four children were then placed in two foster homes, i.e., two children in each home.

In May 1988 DCFS filed petitions for the appointment of a guardian with the power to consent to the adoption of the four children. Hearings were held, after which the court found that both biological parents were unfit and unwilling or unable to discharge their parental duties.

In an order dated March 7, 1990, the court terminated the parents’ rights and ordered that Morgan be appointed as guardian empowered to consent to the legal adoption of the children “provided that the adoptive parents agree to continue to permit contact” between the siblings.

The State objected to the restriction entered in the order and on April 4, 1990, filed a motion to reconsider and modify the order to delete the restriction on Morgan’s power to consent. The trial court denied the motion and Morgan, represented by the Attorney General, appealed.

In this case, too, the prospective adoptive parents, who were the children’s foster parents for some years, agreed to facilitate continued contact between the biological siblings, but did not wish to have it made mandatory or part of the adoption order.

1 — 90—2570: In re A.B. (the A.B. case)

In November 1986 A.B., who was two years old, was removed from her mother’s custody, along with two brothers and four sisters. Nearly three years later, on July 28, 1989, the State petitioned to have A.B.’s parents’ rights terminated and a guardian appointed with the power to consent to her adoption.

On May 3, 1990, A.B., through her GAL, petitioned the court to consider whether, in the event that her parents’ rights were terminated, it would condition the guardian’s power to consent to adoption upon the adoptive parents’ agreement that A.B. be allowed to have continued contact with her six siblings.

After hearings were held, the trial court terminated the parental rights of A.B.’s biological parents and appointed Morgan as guardian with the power to consent to adoption. Although A.B.’s foster parents, i.e., her potential adoptive parents, stated that they were willing to cooperate with continued visitation between A.B. and her biological siblings, the juvenile court refused to include in its order appointing a guardian with the power to consent to adoption the condition that consent only be granted to adoptive parents who would permit continued contact between A.B. and her biological siblings. The court indicated that it was without authority to place restraints upon the power of the guardian with consent to adopt.

The office of the public guardian appealed the court’s refusal to enter the limiting provision on the order appointing a guardian with the power to consent to adoption.

ARGUMENTS

The Attorney General, counsel for DCFS, brought the appeal in the two cases wherein the court placed the restrictive provision into the order appointing a guardian with the power to consent to adoption. It is the Attorney General’s position that the trial court exceeded its jurisdiction and authority by placing the restriction upon the guardian’s power to consent to adoption and that the restrictive portion should be deemed void.

The office of the public guardian, on the other hand, argues, as appellee in the first two cases and as appellant in the A.B. case, that the circuit court has plenary power over children under the “ancient equitable doctrine of parens patriae” so that it may enter any order to provide relief that is in the child’s best interest.

Opinion

A single issue is presented in this consolidated appeal and we caution the parties that it is this very limited issue that we address. The issue here is not, as the parties seem to believe, whether visitation with biological parents and/or siblings can or should be ordered by a court after parental rights have been terminated. Nor is the issue whether visitation with the biological parents and/or siblings can or should be ordered subsequent to, or as a part of, any adoption order. This is so despite the fact that continued visitation or other contact with the biological family after adoption was clearly the intent of the juvenile court’s ruling which is presently before this court.

The issue that is before the court is limited to the question of whether the juvenile court, when presented with a petition to terminate parental rights and appoint a guardian with the power to consent to adoption, pursuant to section 2 — 29 of the Juvenile Court Act of 1987 (herein referred to as the Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802—29), has the authority to restrict, condition or limit the power of the appointed guardian in such a manner that would make that authority contingent upon the adoptive parents’ willingness to consent to continued visitation or contact between the adopted child and his or her biological parents and/or siblings.

This question is one of first impression. No cases decided in Illinois, or any other State for that matter, are directly on point. Out-of-State cases which have been brought to this court’s attention by the public guardian have been informative. However, to a large extent each State has different statutory schemes in regard to adoption and termination of parental rights, and because the issues raised in these cases are often ones involving statutory construction, the out-of-State cases, although instructive as to trends in the area of adoption, do not impact strongly upon this court’s decision on the limited issue presented here.

In this consolidated appeal we must determine the nature and scope of the juvenile court’s authority when appointing a guardian with the power to consent to adoption. This requires that we interpret the statute that authorizes the juvenile court to act, i.e., section 2 — 29 of the Juvenile Court Act of 1987, entitled “Adoption-Appointment of guardian with power to consent.” This section of the Act provides that a ward of the court may be the subject of a petition for adoption and, in paragraph (2), states:

“If the petition prays and the court finds that it is in the best interest of the minor that a guardian of the person be appointed and authorized to consent to the adoption of the minor, the court with the consent of the parents, if living, or after a finding, based upon clear and convincing evidence, that a non-consenting parent is an unfit person as defined in Section 1 of ‘An Act in relation to the adoption of persons, and to repeal an Act therein named’, approved July 17, 1959, as amended, may empower the guardian of the person of the minor, in the order appointing him or her as such guardian, to appear in court where any proceedings for the adoption of the minor may at any time be pending and to consent to the adoption. Such consent is sufficient to authorize the court in the adoption proceedings to enter a proper order or judgment of adoption without further notice to, or consent by, the parents of the minor. An order so empowering the guardian to consent to adoption terminates parental rights, deprives the parents of the minor of all legal rights as respects the minor and relieves them of all parental responsibility for him or her, frees the minor from all obligations of maintenance and obedience to his or her natural parents.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 37, par. 802—29(2).

It is clear, then, that a very specific set of circumstances is at play when the juvenile court is authorized to appoint a guardian with the power to consent to adoption. The minor, for whom the guardian is being sought, is already a ward of the court by virtue of some other provision of the Act, and the court is being called upon to determine whether the parents’ custody of that minor, which had already been temporarily suspended, should be permanently terminated and whether it is in the best interests of the minor that he or she be freed for adoption.

The juvenile court is required to make two separate and distinct rulings: (1) whether (a) the biological parents of the child(ren) have validly executed a voluntary surrender and consent to adoption or (b) whether the parents are unfit; and (2) whether it is in the best interest of the child(ren) that parental rights be terminated and a guardian be appointed to consent to adoption. See In re Adoption of Syck (1990), 138 Ill. 2d 255, 562 N.E.2d 174.

We note that in none of the cases on appeal is any party questioning the propriety of the trial courts’ preliminary rulings, i.e., that a valid consent was given or that the parents were unfit. The sole question is whether the juvenile court, when appointing a guardian with the power to consent to adoption, had the ability to place a particular restriction or condition upon that power. After much consideration of the matter and after careful review of the case law and statutes, we find that the court does not have this authority.

Adoption did not exist at common law; therefore, the juvenile court’s authority to appoint a guardian with the power to consent to adoption must be statutorily derived. (See In re Estate of Edwards (1982), 106 Ill. App. 3d 635, 435 N.E.2d 1379.) Since the statute does not specifically provide for a conditional appointment of a guardian with the power to consent to adoption, a strict construction of the Act would cause one to conclude that it is not authorized.

We realize that the public guardian espouses a liberal construction of the Act and suggests that the juvenile court may issue any order which is in the best interest of the child, although not specifically provided for by statute. He then argues that this court should sanction the juvenile court’s order limiting the power of the guardian because it furthers the best interest of the child. However, even if we were to accept the basic premise that courts are free to issue innovative orders based upon the “best interests” mandate (see Ill. Rev. Stat. 1989, ch. 40, par. 1525), we are not convinced that the “best interests” objective is served by the juvenile court’s inclusion of provisional language in the order terminating parental rights and appointing a guardian with the power to consent to adoption.

When construing the Act in concert with the Adoption Act, as we must (see Ill. Rev. Stat. 1987, ch. 40, par. 1503), it is clear that when the child is a ward of the court, it is the order appointing the guardian with the power to consent to adoption that is the definitive act which terminates the rights of the parents, just as, in all other cases, it is the order of the adoption court granting the adoption petition which terminates the rights of the parents. (See Ill. Rev. Stat. 1987, ch. 40, par. 1521.) Therefore, allowing the court to limit, restrict, or make conditional the order appointing the guardian with the power to consent to adoption is tantamount to allowing the court to limit, restrict, or make conditional the termination of parental rights.

The public guardian does not deny that such a connection would be drawn. In fact, this is exactly what he argues in his brief on appeal in the A.B. case, stating that “the order terminating her [A.B.’s] parents’ parental rights and authorizing Morgan to consent to her adoption are not in her best interest without the condition that sibling contact be allowed to continue.” We believe, however, that this confusion and intermingling of the issues of termination of parental rights and post-adoption visitation does not benefit the child because it calls into question the finality of the order.

The finality of an order terminating parental rights should be of primary concern since the termination order is the first step in the adoption procedure and there is a strong public policy favoring finality and stability in adoptions. (In re Adoption of Hoffman (1975), 61 Ill. 2d 569, 338 N.E.2d 862; In re Adoption of Baby Girls Mandell (1991), 213 Ill. App. 3d 670, 572 N.E.2d 359.) If we were to allow for a conditional termination of parental rights, it would leave the question of termination of parental rights open to attack indefinitely, thereby jeopardizing the entire adoption scheme. Therefore, construction of section 2 — 29 of the Act in such a way that would allow for this result cannot be sanctioned.

Apart from the finality issue, permitting provisional language in a juvenile court order appointing a guardian with the power to consent to adoption upsets the statutory scheme for adoption in other ways. According to the Adoption Act, once a guardian with the power to consent to adoption has been appointed, both that guardian and the adoption court are mandated to take into consideration the best interests of the child before an adoption can occur. They are directed to consider a number of relevant factors, including “the wishes of the child’s parent as expressed in writing prior to that parent’s execution of a consent or surrender for adoption” and “the value of preserving family ties between the child and the child’s relatives, including siblings.” (See Ill. Rev. Stat. 1989, ch. 40, par. 1519.1(b).) Section 15.1 of the Adoption Act also provides in paragraphs (c) and (d) that:

“(c) The final determination of the propriety of the adoption shall be within the sole discretion of the court, which shall base its decision on the welfare and best interest of the child. In arriving at this decision, the court shall consider all relevant factors including but not limited to the factors in subsection (b).
(d) If the court specifically finds that the guardian has abused his discretion by withholding consent to an adoption in violation of the child’s welfare and best interests, then the court may grant adoption, after all of the other provisions of this Act have been complied with, with or without the consent of the guardian with power to consent to adoption. If the court specifically finds that the guardian has abused his discretion by granting consent to an adoption in violation of the child’s welfare and best interests, then the court may deny an adoption even though the guardian with power to consent to adoption has consented to it.” Ill. Rev. Stat. 1989, ch. 40, pars. 1519.1(c), (d).

These passages from the Adoption Act tend to support the notion that the propriety of terminating parental rights is a preliminary determination that must be made, after which it is the responsibility of the guardian and the adoption court to take whatever steps may be available to protect the child’s need for post-adoptive contact with his or her biological family. Furthermore, it would appear that if the juvenile court were allowed to limit the guardian’s power to consent to adoption, the juvenile court would be restricting the guardian’s ability to exercise discretion in considering all of the relevant statutory factors. Although the adoption court does have the ability to review the guardian’s exercise of discretion in consenting to adoption, the juvenile court’s order would create an imbalance in the statutory scheme for adoption.

Although we sympathize with the juvenile court and laud its intentions, we do not believe that it is proper for the juvenile court to attempt to protect whatever right a child may have to continued contact with his or her biological family by including provisional language in an order appointing a guardian with the power to consent to adoption, thereby making it part of the final order terminating parental rights. Although it may be true that an adopted child’s psychological welfare would be better served by allowing the adopted child to maintain contact with his or her disintegrated biological family, the question of whether this should occur, as well as the many questions of when, where, and how this should occur, are complex matters that may change over time. Therefore, if these decisions are to be made by the court at all, they should be well-supported by competent testimony and made tangential to the termination decision, not part and parcel with it.

There are other reasons, aside from our construction of the statutes, which lead us to believe that the provisional language in the order appointing a guardian with the power to consent to adoption was improper. In cases such as the M.M. case, where the biological parents consent to surrender their children for adoption and the court intends that visitation with the biological parents be permitted after their rights are terminated, the validity of the order terminating parental rights could be called into question. First of all, since visitation rights are parental rights, the order terminating parental rights would be internally inconsistent and contradictory. See In re Adoption of Schumacher (1983), 120 Ill. App. 3d 50, 458 N.E.2d 94 (after an order of adoption, the natural parents are relieved of all parental responsibilities and deprived of all parental rights, including the right of visitation).

Secondly, allegations of fraud or duress could be used to subsequently attack the termination or adoption. For example, in the M.M. case, although M.M. and her siblings were earlier found to be neglected and the petition to terminate parental rights was originally based upon the parents’ unfitness, the parents’ rights were not terminated on that basis. Instead, the parents agreed to voluntarily execute a surrender and consent to the adoption of four of their seven children. Also, at the time the surrenders were executed, an informal agreement providing for continued visitation was signed by the biological parents and two of the foster couples who intended to file to adopt the children placed with them. These facts could give rise to the inference that the parents’ consent to the surrender of their children was quid pro quo for the State’s agreement not to prosecute them for neglect, or that consent was given in exchange for the agreement to allow continued visitation. We can understand, therefore, why foster parents would hesitate or refuse to proceed with an adoption as long as provisional language was part of the termination order. Such ambiguities could lead to protracted litigation for the adoptive parents.

Perhaps, though, just as important as the fact that the provisional language subjects the order to attack is the fact that the order does not accomplish the goal that was intended. In the two cases where the limiting provision was included in the termination order, the juvenile court first found that continued contact with the biological parents and/or siblings was in the best interests of the children. Even if we were to assume that such continued contact was in the best interests of the children (a decision that we are not called upon to review), the order does not provide for this result.

The juvenile court merely stated that the guardian could not consent to adoption unless the adopting parents agreed to permit continued contact between the adopted child and the biological family. The court did not define “contact” or “biological family” as used in its orders. Nor did the the court explain in what manner the adoptive parents were to “agree.” Although the adoptive parents in all of the cases on appeal agreed, informally, to permit continued contact with the biological parents and/or siblings, the public guardian believed that the juvenile court’s order was not satisfied unless a written agreement or order was entered. Thus, the order creates certain ambiguities and may be susceptible to different interpretations.

Furthermore, although it seems fairly obvious that the goal of the juvenile court in entering the limiting language in the order appointing the guardian was to ensure that the freed minor be allowed to maintain a relationship with his or her biological parents and/or siblings subsequent to the termination of parental rights, no plan for visitation or “contact” was incorporated into the order nor did it direct that such an agreement be created. Instead, the juvenile court order only limited the potential pool of adoptive parents available to the freed minor, a result that goes against public policy (see In re T.G. (1986), 147 Ill. App. 3d 484, 490, 498 N.E.2d 370), but did not actually facilitate its objective.

Of course, we hasten to add that we do not mean to imply by anything we have said in this opinion that we sanction or condone post-termination or post-adoption visitation orders or agreements. Nor do we necessarily disapprove of them either. No visitation order or agreement is before the court.

We do point out, however, that our review of Illinois case law has revealed no cases where post-termination or post-adoption visitation orders have been allowed, except in cases where grandparents have petitioned pursuant to statute. These cases have generally been decided based upon a strict reading of statutory language which allowed for such orders. (See Lingwall v. Hoener (1985), 108 Ill. 2d 206, 483 N.E.2d 512; Loveless v. Michalak (1988), 168 Ill. App. 3d 598, 522 N.E.2d 873; In re T.G. (1986), 147 Ill. App. 3d 484, 498 N.E.2d 370.) Although this might lead one to conclude that post-termination or post-adoption orders granting visitation to biological parents and/or siblings, not being specifically provided for by statute, are not contemplated by the statutes, we again remind the parties that this issue is not before this court. We decline to determine at this time whether courts should take it upon themselves, without specific legislative authority, to liberally interpret the “best interest” directive contained within the statutes so as to allow a freed or adopted child to maintain ties with his disintegrated biological family.

We are also not determining here whether a formal visitation agreement or contract could or should be enforced by courts of law or incorporated into termination or adoption orders. This, too, is an issue not yet tested in Illinois, and we do not address it here since it is not presented as an issue. But see Loveless v. Michalak (1988), 168 Ill. App. 3d 598, 522 N.E.2d 873 (where the court seemingly approved of an agreement incorporated into an adoption decree which allowed for grandparent visitation based upon the fact that the parties had agreed that such visitation would be in the best interests of the child to be adopted).

We would, however, take this opportunity to caution other courts who are asked to decide these difficult questions to consider carefully whether it is appropriate for courts to involve themselves in the decision making for adopted children or whether this is better left to the adoptive parents, in whom we have entrusted the lives of these adopted children.

Certainly courts of law do get involved in family matters, including visitation issues, when necessary. However, courts usually intercede on a child’s behalf when, due to dysfunction, parents are no longer capable of being relied upon to make decisions that are in the best interest of their children. For example, in situations where children are abused or neglected, courts are called upon to act in place of parents because the natural parents have demonstrated an inability to act as caring parents. Also, in instances where the family unit is separated because of divorce or separation, our legal system has been selected to act as arbitrator when the two competing interests, that is, the two parents, cannot resolve matters pertaining to their children on their own. We wonder, however, whether it is wise for courts of law to attempt to impose their own concepts of “best interests” upon appropriate, competent and loving adoptive parents, who, themselves, have the best interests of the child at heart. As noted in Bush v. Squellati (1988), 122 Ill. 2d 153, 522 N.E.2d 1225, adoptive parents may allow anyone to have visitation, even if the persons seeking visitation are not entitled to have visitation rights enforced. Perhaps at some point we must trust in the adoptive parents to do what is in the best interest of the adopted child.

Finally, it would appear that provisions within the Adoption Act support the idea that adoptive parents have the right to make decisions concerning a minor’s contact with his or her biological family. (See Ill. Rev. Stat. 1989, ch. 40, par. 1522.3(f).) An elaborate system has been devised by our legislature to provide for the exchange of information between adopted children and their biological parents. This system appears to give adoptive parents of minor adoptees the control over the decision to reveal information to biological parents.

For all the reasons discussed above, we must find that the juvenile court is without authority to limit the power of the guardian appointed to consent to adoption. We affirm the order of the court in case number 1 — 90—2570. In cases 1 — 90—1955 and 1 — 90—1956, because we find that the court exceeded its authority in adding the provisional language, we find that the provisional language within those orders is void. We remand cases 1 — 90—1955 and 1 — 90—1956 to the juvenile court so that it may determine whether a nonprovisional appointment of a guardian with the power to consent to adoption is in the best interests of the children.

No. 1 — 90—2570, Affirmed.

Nos. 1 — 90—1955 and 1 — 90—1956, Reversed and remanded.

McNULTY, P.J., and GORDON, J., concur.

      M.M.’s foster parents filed an affidavit with the court explaining that, although they desired to adopt M.M., they had been advised by legal counsel that an adoption containing a visitation order would be invalid and, for this reason they refused to enter into such an arrangement. They further stated that they believed that a visitation order within the adoption order could forever cloud the adoption and expose them to an on-going potential for litigation, which could drain their very limited financial resources.
      There is some indication in the record that three of M.M.’s siblings have already been adopted by their foster parents, who agreed to a visitation stipulation, and that these adoptions are now being challenged because of the visitation provision.

      As an aside we note that in the M.M. case an agreement had been entered into between the biological parents and certain prospective adoptive parents. If this agreement had been incorporated into the termination order, we would have been presented with a different issue.