{ "id": 4265940, "name": "In re C.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kimberly A. Cundiff, Respondent-Appellant)", "name_abbreviation": "People v. Cundiff", "decision_date": "2006-11-20", "docket_number": "No. 4\u201406\u20140535", "first_page": "744", "last_page": "749", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 744" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1256" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "631 N.E.2d 341", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "258 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2882179 ], "year": 1994, "pin_cites": [ { "page": "673-74" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/258/0669-01" ] }, { "cite": "518 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "700", "parenthetical": "It would seem a useless gesture to recognize the right to counsel in termination proceedings but not require that counsel to perform effectively" }, { "page": "700-01" } ], "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3614547 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "127", "parenthetical": "It would seem a useless gesture to recognize the right to counsel in termination proceedings but not require that counsel to perform effectively" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0112-01" ] }, { "cite": "833 N.E.2d 915", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "359 Ill. App. 3d 173", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5596660 ], "year": 2005, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/359/0173-01" ] }, { "cite": "639 N.E.2d 1369", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "1373" }, { "page": "1372-73" } ], "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887227 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "600" }, { "page": "599-600" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0595-01" ] }, { "cite": "701 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "1079" }, { "page": "1079" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 366", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209962 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "397" }, { "page": "397-98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0366-01" ] }, { "cite": "688 N.E.2d 1156", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "page": "1162" } ], "opinion_index": 0 }, { "cite": "179 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801356 ], "year": 1997, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0297-01" ] }, { "cite": "466 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204502 ], "weight": 5, "year": 1984, "pin_cites": [ { "page": "659" }, { "page": "656-57" } ], "opinion_index": 0, "case_paths": [ "/us/466/0648-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 6, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "667 N.E.2d 548", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 558", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150190 ], "year": 1996, "pin_cites": [ { "page": "562-63" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0558-01" ] } ], "analysis": { "cardinality": 706, "char_count": 11687, "ocr_confidence": 0.775, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3660170921161813 }, "sha256": "7f1145757f81d921576da5cda915468203e15a473e56a755aaec4de97fb7df49", "simhash": "1:b7dffbcc54979285", "word_count": 1930 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re C.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kimberly A. Cundiff, Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nRespondent mother, Kimberly A. Cundiff, appeals the Champaign County circuit court\u2019s finding of unfitness and termination of parental rights pursuant to the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1 \u2014 1 through 7 \u2014 1 (West 2004)). Cundiffs only claim on appeal is that she was denied effective assistance of counsel. We affirm.\nI. BACKGROUND\nCundiff is the biological mother of C.C. (born November 21, 2002). The putative father, Eddie (last name unknown), has never been involved in C.C.\u2019s life, and Eddie\u2019s parental rights, though not at issue here, were terminated in the same proceeding as were Cundiffs. Cundiff also has another son, A.C. (born in 2004), who is not at issue in the present case. However, for the sake of recognizing Cundiffs lack of parental responsibility, we note that Cundiff left A.C., a newborn at the time, indefinitely in the care of her sister in Kentucky. Cundiffs sister reported that Cundiff was using cocaine and never came back for her child. Cundiffs sister subsequently obtained legal guardianship of A.C. through the Kentucky court system.\nOn November 4, 2004, Cundiff left C.C. with Jeanne Cooley, a non-relative friend, \u201cfor the evening.\u201d When Cundiff still had not returned as of November 9, 2004, apparently without giving any indication of her whereabouts, Cooley called the Department of Children and Family Services (DCFS). Investigators made several attempts to locate Cundiff, hearing that she was perhaps in a \u201ccrack house\u201d in Danville, Illinois. Cundiff called Cooley on November 25, 2004, but told Cooley that she would not meet with DCFS about this case. DCFS took protective custody of C.C. on November 30, 2004.\nThe State of Illinois charged Cundiff with abandonment on December 1, 2004. At a hearing in March 2005, the circuit court adjudicated C.C. a neglected minor and ordered Cundiff to engage in a variety of services. Cundiff did not attend the hearing.\nLikewise, Cundiff did not attend the hearing on the motion seeking a finding of unfitness held on March 22, 2006. At the hearing, Cundiff s attorney stipulated to 27 requests to admit filed by the guardian ad litem (GAL). The stipulation was based on four reports: (1) a home and background report submitted on February 28, 2006; (2) a permanency-review report submitted on May 27, 2005; and (3) a permanency-review report dated October 3, 2005, with an addendum dated November 15, 2005. Also, Cundiff s attorney stipulated that the authors of the four reports would testify consistently with the reports.\nThe admitted facts stated in sum that Cundiff (1) missed 3 of 7 visits between January 1, 2005, and February 24, 2005; (2) missed 10 of 15 visits between February 28, 2005, and March 27, 2005; (3) missed 4 of 9 visits between June 30, 2005, and September 21, 2005; (4) missed 4 of 5 visits between October 7, 2005, and November 15, 2005; (5) did not supply a permanent or current address or telephone number to service providers between March 3, 2005, and June 3, 2005; (6) did not sign any of the authorizations for release of information necessary for referral to services between March 3, 2005, and June 3, 2005; (7) exhibited poor cooperation with Prairie Center Health Systems in that Cundiff twice failed to undergo her scheduled drug and alcohol assessment, twice failed to submit a urine sample, missed 7 of 10 counseling sessions, and was later dropped for nonattendance; (8) was dropped from parenting class for poor attendance; and (9) was later referred to another parenting class but missed the first session of that one as well. The record is unclear as to whether Cundiff ultimately completed this second parenting class.\nCundiff\u2019s counsel presented no evidence and waived argument, stating:\n\u201cYour Honor, at this point, I\u2019m going to waive argument. I have not had enough contact with my client to be able to rebut any of these things.\u201d\nThe circuit court found Cundiff was unfit in that Cundiff failed to make reasonable efforts to correct the conditions that were the basis of C.C.\u2019s removal; failed to make reasonable progress toward the return of C.C.; and failed to maintain a reasonable degree of interest, concern, or responsibility as to C.C.\u2019s welfare. 750 ILCS 50/l(D)(b), (D)(m)(i), (D)(m)(ii) (West 2004).\nCundiff also failed to attend the best-interest hearing in April 2006. The State tendered reports from DCFS and from Lutheran Social Services. The defense did not present any evidence. The State and the GAL argued that it was in C.C.\u2019s best interest that parental rights be terminated. The GAL argued that Cundiff s missed visits devastated C.C. Cundiff had not completed any services. Further, C.C. was established in a stable, loving foster home with foster parents that wanted to adopt him. Cundiff s attorney did not enter a closing argument, instead stating:\n\u201cYour Honor, I have not had any contact with Ms. Cundiff. I believe she contacted me before the March 22 date several days prior to that, indicated that she would be at that hearing and then was not. That\u2019s the only contact I\u2019ve had with her. That was a very brief conversation. And I have no real idea of what her wishes are in this so I would waive argument at this point beyond that.\u201d\nIn reaching its decision in the best-interest hearing, the circuit judge noted that he had presided over this entire case from start to finish and was familiar with the record. The judge noted that the only thing Cundiff had ever done that was in C.C.\u2019s best interest was to make some attempt at visitation. However, the judge seemed puzzled that Cundiff s participation in visitation had stopped for unknown reasons, stating:\n\u201c[Either] she truly is no longer interested which I would find surprising or *** she just thought it was a losing battle so to speak.\u201d\nUltimately, the judge found by a preponderance of the evidence that it was in the interest of both C.C. and the public that Cundiff s parental rights be terminated. This appeal followed.\nII. ANALYSIS\nCundiff s only claim on appeal is that her trial counsel was ineffective. As alluded to by both parties, ineffective assistance of counsel can be established two ways. See People v. Montanez, 281 Ill. App. 3d 558, 562-63, 667 N.E.2d 548, 551 (1996), citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and United States v. Cronic, 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984).\nThe first and more common way was set forth in Strickland, which held that to prevail on an ineffective-assistance claim, a defendant must show that (1) counsel\u2019s performance fell below an objective standard of reasonableness and (2) but for counsel\u2019s unprofessional errors, the result of the proceedings would have been different. People v. Reid, 179 Ill. 2d 297, 310, 688 N.E.2d 1156, 1162 (1997), citing Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. A defendant must overcome the strong presumption that counsel\u2019s challenged actions were part of a sound trial strategy and not due to incompetence. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998).\nCundiff asks this court to apply the second way to establish ineffective assistance of counsel, as set forth in Cronic. In Cronic, the court held that where counsel entirely fails to subject the prosecution\u2019s case to meaningful adversarial testing, there is a denial of sixth-amendment rights that makes the adversarial process itself unreliable. People v. Kozlowski, 266 Ill. App. 3d 595, 600, 639 N.E.2d 1369, 1373 (1994), citing Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668, 104 S. Ct. at 2047. Under this exceptional circumstance wherein a criminal proceeding loses its character as a confrontation between adversaries, prejudice is presumed, and as a logical consequence, the two-part test stated in Strickland need not be applied. Kozlowski, 266 Ill. App. 3d at 599-600, 639 N.E.2d at 1372-73; see also Cronic, 466 U.S. at 656-57, 80 L. Ed. 2d at 666-67, 104 S. Ct. at 2045-46 (regarding criminal proceeding\u2019s character as a confrontation between adversaries).\nWe decline to extend the Cronic test to termination proceedings. It seems counterintuitive to apply a test that depends upon a determination of whether the proceeding was sufficiently adversarial in nature when the legislature has specified that proceedings under the Act are not meant to be adversarial in nature. See 705 ILCS 405/1 \u2014 5 (West 2004). A respondent parent\u2019s right to counsel in termination proceedings derives from the Act, not the constitution. In re A.H., 359 Ill. App. 3d 173, 182, 833 N.E.2d 915, 922 (2005); 705 ILCS 405/1 \u2014 5 (West 2004). Hence, the sixth-amendment analysis and rationale delineated by Cronic and its progeny, stating that \u201c[t]he right to effective assistance of counsel is thus the right of the accused to require the prosecution\u2019s case to survive the crucible of meaningful adversarial testing,\u201d does not apply here. Cronic, 466 U.S. at 656, 80 L. Ed. 2d at 666, 104 S. Ct. at 2045.\nCundiff is, however, entitled to effective assistance of counsel. In re R.G., 165 Ill. App. 3d 112, 127, 518 N.E.2d 691, 700 (1988) (It would seem a useless gesture to recognize the right to counsel in termination proceedings but not require that counsel to perform effectively). In determining whether Cundiff s counsel was effective, we are to employ the standard Strickland test. R.G., 165 Ill. App. 3d at 127, 518 N.E.2d at 700-01; In re D.M., 258 Ill. App. 3d 669, 673-74, 631 N.E.2d 341, 344 (1994).\nWe choose to resolve Cundiff\u2019s ineffective-assistance claim by reaching only the prejudice prong of the Strickland test, for lack of prejudice renders irrelevant the issue of counsel\u2019s performance. Coleman, 183 Ill. 2d at 397-98, 701 N.E.2d at 1079, citing People v. Albanese, 104 Ill. 2d 504, 527, 473 N.E.2d 1246, 1256 (1984). Cundiffs claim clearly fails the second prong of the Strickland test. The State presented overwhelming evidence of Cundiffis unfitness. Cundiff disappeared from authorities and service providers for indefinite periods of time, failing to provide adequate contact information. Cundiff failed to participate in drug-treatment programs and parenting classes and often missed visits with her son without providing an excuse. It seems as though no winning argument could be made to dispute Cundiffis failure to make reasonable progress toward C.C.\u2019s return home, to make reasonable efforts to improve the conditions that led to C.C.\u2019s removal, or to maintain a reasonable degree of concern, interest, or responsibility. Cundiffis participation in services only worsened as time passed. Likewise, it is difficult to see how the result of the best-interest hearing would be any different, regardless of counsel\u2019s performance. Psychological experts stated in admitted reports that Cundiff required at least two years of treatment before she would be capable of caring for a child. However, Cundiff has not demonstrated any ability to follow through with treatment. Moreover, C.C. has been placed with a loving foster family who wishes to adopt him.\nIII. CONCLUSION\nFor the aforementioned reasons, Cundiffis ineffective-assistance claim fails. We affirm the trial court\u2019s judgment.\nAffirmed.\nTURNER, PJ., and APPLETON, J., concur.", "type": "majority", "author": "JUSTICE COOK" } ], "attorneys": [ "Daniel B. Kennedy, of Champaign, for appellant.", "Julia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re C.C., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Kimberly A. Cundiff, Respondent-Appellant).\nFourth District\nNo. 4\u201406\u20140535\nOpinion filed November 20, 2006.\nDaniel B. Kennedy, of Champaign, for appellant.\nJulia Rietz, State\u2019s Attorney, of Urbana (Norbert J. Goetten and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0744-01", "first_page_order": 762, "last_page_order": 767 }