People v. Dwight L. (In re N.L.)

• Decision Date: 09 September 2014
• Docket Number: Nos. 3–14–0172,3–14–0173.,s. 3–14–0172
• Citation: 17 N.E.3d 906
• Parties: In re N.L. and M.L., Minors (The People of the State of Illinois, Petitioner–Appellee, v. Dwight L., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

17 N.E.3d 906

In re N.L. and M.L., Minors (The People of the State of Illinois, Petitioner–Appellee,

v. Dwight L., Respondent–Appellant).

Nos. 3–14–0172

3–14–0173.

Appellate Court of Illinois, Third District.

Sept. 9, 2014.

Susan K. O'Neal, of Oak Park, for appellant.

James L. Hoyle, State's Attorney, of Macomb (Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice McDADE delivered the judgment of the court, with opinion.

¶ 1 The trial court found Dwight L., respondent-father, to be an unfit parent and terminated his parental rights with respect to the minor M.L. The trial court also found Dwight to be an unfit parent with respect to N.L., but terminated his legal relationship with N.L. based on a previous showing that he is not the biological father of N.L. The issues on appeal are (1) whether the trial court erred in allowing the State to supplement the record on appeal; (2) whether the trial court failed to adhere to the requirements of Indian Child Welfare Act (ICWA) (25 U.S.C. § 1911 to 1914 (2006) ) with respect to M.L. and N.L.; (3) whether the trial court exceeded its authority in finding that Dwight no longer retained a legal relationship with N.L.; and (4) whether Dwight was deprived of effective counsel due to a per se conflict of interest. For reasons that follow, we reverse and remand for proceedings in accord with this order.

¶ 2 Summary of Relevant Facts

¶ 3 Dwight and the respondent-mother, Emily L., were remarried on July 11, 2010. Their son N.L. was born on January 31, 2011, and four days later, on February 3, 2011, the State filed a petition of neglect against both parents alleging that the minor was neglected by reason of an injurious environment and a petition for temporary custody. Both petitions alleged that Emily had already been found to be an unfit parent as to earlier-born siblings and had failed to regain parental fitness. It was also alleged that both parents had a history of domestic violence and that Dwight had a history of criminal activity involving alcohol and illegal drugs.

¶ 4 A shelter care hearing was held on February 3, 2011. Both parents were present. Dwight responded to the court's inquiry that he had no objection to Emily's attorney, Ramon Escapa, representing both of them in the proceeding. Escapa had previously represented Emily in unrelated proceedings and had already been appointed to represent her in the instant case. Both parties stipulated to the minor being placed in the temporary custody of the Department of Children and Family Services (DCFS). On March 24, 2011, the parties appeared for a pretrial conference and admitted the allegations of the February 3 neglect petition. An adjudicatory order was entered by agreement on March 24, 2011, finding that the minor was neglected by reason of an injurious environment.

¶ 5 At the dispositional hearing on April 26, 2011, the trial court found Dwight to be unfit and awarded guardianship of N.L. to DCFS. Among the reports submitted for the court's consideration was a social history report, dated March 23, 2011, indicating that Dwight is a registered member of the Minnesota Chippewa Tribe, White Earth Reservation (the Tribe).

¶ 6 At the status hearing on July 21, 2011, an agent of Lutheran Social Services of Illinois (LSSI), the agency acting for DCFS, submitted a report stating that Dwight had consistently visited the minor and had faithfully participated in his court-ordered services. The court found that Dwight and Emily could have overnight visitation with N.L. at the agency's discretion.

¶ 7 However, at the October 25, 2011, permanency review hearing the court found that Dwight had failed to make satisfactory progress toward the goal for return home of the minor, citing reports of new domestic violence incidents between the parents, including one on October 4, which resulted in Dwight's arrest. The court set the permanency goal for return home in 12 months.

¶ 8 M.L. was born to Dwight and Emily on December 29, 2011. A petition for temporary custody was filed the same day and a petition for adjudication of wardship was filed on January 3. At a shelter care hearing for M.L. held on January 4, Dwight and Emily stipulated that neither of them had yet been restored to fitness. On February 16, the court, by dispositional order as to M.L., found that both parents remained unfit and awarded guardianship to DFCS.

¶ 9 On March 8, 2012, Dwight was convicted and sentenced to one year in prison for the domestic abuse arrest of October 4, 2011. Prior to his incarceration and notwithstanding the domestic violence incidents, Dwight had been showing improvement by participating in marital counseling and sex offender group therapy. He reported during counseling that not having his family together caused him the most stress.

¶ 10 At a permanency review hearing on April 12, 2012, relative to both minors, Emily was restored to fitness. However, because of Dwight's incarceration, the court prohibited all visits between him and the minors, except for times he was back in McDonough County for court appearances.

¶ 11 On August 10, while Dwight was still in prison, Emily called LSSI and stated that N.L. was not Dwight's child, that he was conceived as the result of rape, and that she wanted to surrender N.L. for adoption. She requested DNA testing and the results, reported on September 19, established that Dwight was not the biological father of N.L. Dwight and Emily began to consider a separation. At some point, Emily contacted LSSI regarding a divorce, advised it that a male friend, James, was cohabitating with her, and inquired about the affect the cohabitation would have on her visitation with the minors in her home.

¶ 12 On October 18, 2012, Escapa, asserting a conflict of interest in representing both parents, was permitted to withdraw as Dwight's attorney and the public defender was appointed as Dwight's counsel. The trial court questioned the State about the children's eligibility for tribal registry and was advised that the State had already received notices that both minors were ineligible for registry with the Tribe. The State was ordered to provide documentation of its compliance with the statute at the status hearing on December 18. No documents addressing the issue of tribal registry for the minors were submitted at that or any subsequent proceeding until the hearing on the State's motion to supplement the record during the pendency of this appeal.

¶ 13 Dwight's domestic violence conviction was dismissed and he was released from prison on October 30. His arrival at the marital home and discovery that Emily was cohabitating with another man resulted in police involvement. While incarcerated for that incident, Dwight advised LSSI of Emily's various amoral actions.

¶ 14 The permanency goal was changed again on February 14, 2013, to substitute care pending a court determination of parental rights. On March 4, the State filed a petition to terminate Dwight's parental rights as to M.L. A similar petition was filed as to N.L., but Dwight was not named as father in that petition despite the statutory presumption that he is the child's legal father. The petition listed the father as unknown and alleged him to be an unfit parent for failure to have any contact N.L.

¶ 15 On May 9, following its receipt of new DNA results, the trial court found James Smith to be the biological father of N.L. The State filed an amended termination petition on June 4, naming James Smith the father of N.L. and alleging his unfitness for a variety of reasons.

¶ 16 After lengthy hearings the trial court found Emily, Smith, and Dwight all to be unfit parents. A best interest hearing was held on November 25. As a result of that hearing, the trial court found it to be in M.L.'s best interest that Emily's and Dwight's parental rights be terminated, and that it was in N.L.'s best interest that Emily's and Smith's parental rights be terminated. In a separate order, Dwight's legal relationship to N.L. was severed because he was not N.L.'s biological father.

¶ 17 On December 20, Dwight's attorney filed a motion to reconsider. That motion was denied and the written order to that effect was entered on February 6, 2014. A timely notice of appeal was then filed.

¶ 18 In compliance with this court's briefing schedule. Dwight filed his opening brief by April 10. Shortly thereafter, on April 29, the State filed a motion in the trial court seeking to supplement the appellate record. That motion was granted on May 8, despite Dwight's motion to dismiss it. The State's supplementation included several documents from various Indian registries, including the Tribe, showing that N.L. and M.L. were not eligible for membership. The State's Tribe letters suggest that the Tribe was provided with the minors' names and dates of birth and imply that Dwight's name was provided with reference to N.L. The State's Tribe letter for N.L. is dated September 16, 2011, and that for M.L. is dated February 25, 2013. In its order granting the State's motion to supplement the record, the court expressed concern with Dwight's solicitation of new evidence while the case was on appeal. However, many of the documents the State was allowed to include with its supplementation were dated after the termination hearing and after Dwight's notice of appeal.

¶ 19 Dwight filed a motion with this court to supplement the record with his own Tribe letter—from the same person who had signed the State's letters—showing that N.L. and M.L. were eligible for tribal membership. He acquired this letter as a result of his solicitation for evidence related to the appeal. This court allowed Dwight to submit his Tribe letter with his case pending our decision of the propriety of its inclusion in the record.

Dwight's Tribe letter states that the minors are eligible for tribal membership and suggests that the Tribe was provided with the dates of birth for both minors, the correct spelling...