In re E.D. , 2021 IL App (4th) 210267 ( 2021 )

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Appellate Court Date: 2022.07.14
09:54:58 -05'00'
In re E.D., 2021 IL App (4th) 210267Appellate Court In re E.D., a Minor (The People of the State of Illinois, Petitioner-
Caption Appellee, v. Nicole D., Respondent-Appellant).
District & No. Fourth District
No. 4-21-0267
Filed October 12, 2021
Decision Under Appeal from the Circuit Court of Woodford County, No. 19-JA-3; the
Review Hon. Charles M. Feeney III, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Peter J. Lynch and Siobhan L. Smith, of Hasselberg, Rock, Bell &
Appeal Kuppler LLP, of Peoria, for appellant.
Greg Minger, State’s Attorney, of Eureka (Patrick Delfino and Rosario
D. Escalera Jr., of State’s Attorneys Appellate Prosecutor’s Office, of
counsel), for the People.
Panel JUSTICE TURNER delivered the judgment of the court, with opinion.
Presiding Justice Knecht and Justice Holder White concurred in the
judgment and opinion.
OPINION
¶1 In March 2021, the State filed a motion for the termination of the parental rights of
respondent, Nicole D., as to her minor child, E.D. (born in November 2009). Respondent
admitted all the unfitness allegations in the petition. After an April 2021 hearing, the Woodford
County circuit court found it was in the minor child’s best interests to terminate respondent’s
parental rights.
¶2 Respondent appeals, asserting (1) reversible error occurred when she was represented by
the assistant public defender while the public defender served as guardian ad litem and took an
opposing position and (2) the circuit court erred by finding it was in the minor child’s best
interests to terminate respondent’s parental rights. We reverse and remand with directions.
¶3 I. BACKGROUND
¶4 The minor child’s father is deceased. In March 2019, the State filed a petition for the
adjudication of wardship of the minor child. The petition alleged the minor child was neglected
pursuant to section 2-3(1)(b) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS
405/2-3(1)(b) (West 2018)) in that his environment was injurious to his welfare due to
respondent’s unresolved issues (1) with alcohol use as respondent consumed alcohol while
exclusively caring for the minor child resulting in the minor child calling relatives for help
(count I) and (2) regarding her mental health that impacted respondent’s ability to properly
provide care and parenting skills for the minor child (count II). At the initial hearing, Andrew
Lankton appeared as the guardian ad litem, and the circuit court appointed Jason Netzley to
represent respondent. In April 2019, the court held the adjudicatory hearing, and respondent
admitted count I. The court accepted her admission, adjudicated the minor child neglected as
alleged in count I, and dismissed count II. At the dispositional hearing, the State asserted the
minor child should be made a ward of the court, and the guardian ad litem agreed with the
State’s position. Respondent’s counsel noted respondent understood one month of progress
was likely not enough to demonstrate her fitness to the court. After hearing the parties’
arguments, the court entered a written order finding respondent was unfit to care for, protect,
train, or discipline the minor child. The court also made the minor child a ward of the court
and appointed the Department of Children and Family Services as the minor child’s guardian
and custodian.
¶5 On April 6, 2020, the circuit court held a permanency review hearing. Netzley represented
respondent at the hearing and Lankton was the guardian ad litem. The State for the first time
requested the permanency goal be changed from return home to substitute care pending a
determination of the termination of parental rights. Lankton agreed with the State’s
recommendation. Netzley asserted the court should look at respondent’s efforts from a broader
perspective and keep the goal as return home. The court entered a permanency order changing
the goal to substitute care pending a determination of the termination of parental rights.
¶6 At the September 18, 2020, permanency review hearing, Lankton agreed with Netzley the
goal should be changed to return home. The circuit court agreed and changed the goal to return
home pending a status hearing.
¶7 At the March 1, 2021, permanency review hearing, respondent testified she had a relapse
in December 2020 and consumed alcohol. Respondent was arrested for a probation violation
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due to her alcohol consumption. Respondent had not consumed alcohol since her arrest. Based
on the relapse, the State again asked the circuit court to change the goal to substitute care.
Lankton agreed with the State’s recommendation. Netzley contended that, despite the relapse,
respondent had made reasonable efforts and reasonable progress. After hearing the parties’
arguments, the circuit court changed the goal to substitute care pending a determination of the
termination of parental rights.
¶8 Also, at the hearing, the State gave respondent a petition for termination of her parental
rights, and the circuit court read it in open court. The motion asserted respondent was unfit
because she failed to make (1) reasonable efforts to correct the conditions that were the basis
for the minor child’s removal from her during any nine-month period following the neglect
adjudication (750 ILCS 50/1(D)(m)(i) (West 2020)), specifically the period of July 6, 2019,
and April 6, 2020; (2) reasonable and substantial progress toward the minor child’s return
during any nine-month period after the neglect adjudication (750 ILCS 50/1(D)(m)(ii) (West
2020)), specifically the period of July 6, 2019, and April 6, 2020; (3) reasonable efforts to
correct the conditions that were the basis for the minor child’s removal from her during any
nine-month period following the neglect adjudication (750 ILCS 50/1(D)(m)(i) (West 2020)),
specifically the period of June 1, 2020, and March 1, 2021; and (4) reasonable and substantial
progress toward the minor child’s return during any nine-month period after the neglect
adjudication (750 ILCS 50/1(D)(m)(ii) (West 2020)), specifically the period of June 1, 2020,
and March 1, 2021. At a hearing later that same day, respondent admitted all four counts of the
termination petition.
¶9 On April 19, 2021, the circuit court held the best interests hearing. Netzley again
represented respondent, and Lankton was the guardian ad litem. After the presentation of
evidence, the State argued all the best interests factors weighed heavily in favor of terminating
respondent’s parental rights. Netzley asked the court to consider not terminating respondent’s
parental rights. Respondent had testified the minor child would do better with her because she
understood his educational needs and had the time to address them. Lankton agreed with the
State all the best interests factors weighed in favor of termination of respondent’s parental
rights. After hearing the parties’ arguments, the circuit court found it was in E.D.’s best
interests to terminate respondent’s parental rights. On April 21, 2021, the court entered a
written order terminating respondent’s parental rights to E.D.
¶ 10 On May 11, 2021, respondent filed a notice of appeal in sufficient compliance with Illinois
Supreme Court Rule 303 (eff. July 1, 2017). See Ill. S. Ct. R. 660(b) (eff. Oct. 1, 2001)
(providing the rules governing civil cases also govern appeals from final judgments in all
proceedings under the Juvenile Court Act, except for delinquency cases). Thus, this court has
jurisdiction of the appeal pursuant to Illinois Supreme Court Rule 307(a)(6) (eff. Nov. 1, 2017).
¶ 11 II. ANALYSIS
¶ 12 Respondent first asserts reversible error resulting from a conflict of interest because
respondent was represented by an assistant public defender while the public defender was the
guardian ad litem and they had opposing positions. The State contends respondent forfeited
that argument because she failed to raise the issue on appeal after the dispositional order. We
review the matter de novo. See In re Br. M., 2021 IL 125969, ¶ 37 (applying the de novo
standard of review to the question of whether a per se conflict of interest existed).
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¶ 13 In support of her argument, respondent cites our supreme court’s decision in People v.
Lackey, 79 Ill. 2d 466, 468, 405 N.E.2d 748, 748 (1980), in which it found reversible error
occurred in termination proceedings. There, the minor’s parents were represented by an
assistant public defender, and the public defender represented the minor as guardian ad litem.
Lackey, 79 Ill. 2d at 468. The public defender recommended termination of parental rights and
the appointment of a guardian with power to consent to the minor’s adoption, a position clearly
in conflict with the parents’ interest, who were represented by the assistant public defender.
Lackey, 79 Ill. 2d at 468.
¶ 14 In finding reversible error, the supreme court applied guidelines in prior cases regarding
whether members of the public defender’s staff can properly represent conflicting interests.
Lackey, 79 Ill. 2d at 468. It noted, “[w]here a conflict of interest between multiple parties
clearly appears and separate members of a public defender’s staff cannot effectively represent
all, other counsel must be appointed.” Lackey, 79 Ill. 2d at 468. The supreme court found that
rule was applicable to the case before it because the interests of the parents and the minor could
be diametrically opposed. Lackey, 79 Ill. 2d at 468. There, the conflict was apparent on the
face of the record. Lackey, 79 Ill. 2d at 468. The supreme court did clarify the appellate court’s
decision was written too broadly in suggesting the existence of a per se conflict of interest
where assistant public defenders represent differing interests. Lackey, 79 Ill. 2d at 468.
¶ 15 In this case, the State does not dispute the assertion both the public defender and the
assistant public defender were involved in this case. The Woodford County website lists
Netzley, who represented respondent as the assistant public defender, and Lankton, who was
the guardian ad litem, as the public defender. See Public Defender, County of Woodford, Ill.,
https://www.woodford-county.org/193/Public-Defender (last visited Oct. 12, 2021)
[https://perma.cc/AX4C-JRPF]. The record first shows the position of the two attorneys were
diametrically opposed at the April 6, 2020, permanency review hearing where Lankton agreed
with the State’s recommendation the goal of return home should be changed and Netzley
disagreed, asserting the goal should not be changed. A second situation of opposing positions
occurred at the March 1, 2021, permanency review hearing when Lankton again agreed with
the State’s recommendation the goal should be changed to substitute care and Netzley argued
against the goal change. Finally, like in Lackey, the two attorneys’ positions were diametrically
opposed at the best interests hearing when Lankton recommended termination of respondent’s
parental rights and Netzley asked the court to consider not terminating respondent’s parental
rights. Thus, as in Lackey, the face of the record shows a conflict of interest between the public
defender and the assistant public defender.
¶ 16 The State asserts respondent has forfeited her conflict of interest argument because she
could have raised the issue on appeal after the dispositional order. It cites In re Leona W., 228
Ill. 2d 439, 457, 888 N.E.2d 72, 81 (2008), where the supreme court found any error pertaining
to the dispositional order had been forfeited. However, respondent is asserting the conflict
arose first in April 2020, which is a year after the dispositional order. Respondent notes the
position of the public defender, who was the guardian ad litem, was contrary to the position of
the assistant public defender who was representing her. Respondent makes no mention of the
dispositional hearing. Thus, we disagree with the State respondent has forfeited her conflict of
interest argument.
¶ 17 Since the conflict of interest arose before respondent admitted the unfitness allegations in
the State’s petition for termination of parental rights, we reverse in toto the circuit court’s April
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2021 order terminating respondent’s parental rights to the minor child. We remand the cause
for the appointment of new counsel for respondent and a new guardian ad litem. On remand,
the proceedings on the State’s March 1, 2021, petition for termination of parental rights should
start anew. Given our resolution of respondent’s conflict of interest argument, we do not
address respondent’s other argument.
¶ 18 III. CONCLUSION
¶ 19 For the reasons stated, we reverse the Woodford County circuit court’s April 2021
judgment and remand the cause for further proceedings in accordance with this opinion.
¶ 20 Reversed and remanded.
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