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(Cite
as: 302 Ill.App.3d 998, 706 N.E.2d 524, 235 Ill.Dec. 969)
Appellate
Court of Illinois,
Second
District.
In
re M.S. et al., Minors (The People of the State
of Illinois, Petitioner-
Appellee,
v. A.S., Respondent-Appellant).
No.
2-98-0292.
Feb.
5, 1999.
Indian
Child Welfare Act (ICWA) seeks to provide Native American tribes
with ability to preserve their culture and identity by granting
tribal courts either exclusive or concurrent jurisdiction over child custody
and adoption matters involving "Indian child." Indian Child Welfare Act,
§ 2
et seq., 25 U.S.C.A. § 1901
et seq.
Indian
Child Welfare Act (ICWA) is not applicable in custody or
adoption proceeding until party asserting its applicability establishes that child
meets one or both of the statutory criteria defining "Indian
child". Indian Child Welfare Act, § 4(4),
25 U.S.C.A. § 1903(4).
In
absence of conclusive finding of child's eligibility for membership in
particular tribe, either by that tribe or by Bureau of
Indian Affairs, trial court in child protection proceeding must determine
if child is "Indian child" within meaning of Indian Child
Welfare Act (ICWA). Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Court
must initially determine if child involved in custody or adoption
proceeding is "Indian child" within meaning of Indian Child Welfare
Act (ICWA), where party claims applicability of ICWA. Indian Child
Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Mother's
unsubstantiated assertion, four years after commencement of child protection proceeding,
that her children were of Native American heritage was insufficient
to invoke tribal jurisdiction under Indian Child Welfare Act (ICWA),
or to warrant full evidentiary hearing on mother's claim; caseworker
sent notice to two different bands of tribe in which
mother claimed eligibility for membership for either herself or her
children, one band replied that children were not members and
that tribe had no interest in interceding in proceeding, and
other band did not respond. Indian Child Welfare Act, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Standard
of review in cases of parental unfitness is limited to
determining whether trial court's decision was against manifest weight of
evidence.
Cases
concerning parental unfitness are unique unto themselves, and Appellate Court
will not make factual comparisons between cases.
State
must prove by clear and convincing evidence one statutory factor
of unfitness for termination of parental rights to ensue.
Appellate
Court, in reviewing termination of parental rights, need not consider
other findings of unfitness where sufficient evidence exists to satisfy
any one statutory ground.
Reviewing
court accords great deference to trial court's finding of parental
unfitness,and will not disturb such finding unless it is against
manifest weight of evidence.
Function
of appellate court reviewing determination of parental unfitness is not
to substitute its judgment for that of trial court on
questions regarding evaluation of witnesses' credibility and inferences to be
drawn from their testimony; trial court is in best position
to observe conduct and demeanor of parties and witnesses as
they testify.
Evidence
in proceeding for termination of parental rights was sufficient to
support finding that mother was unfit parent; evidence indicated that
detailed service plan was prepared for children's mother, that mother
had every opportunity to comply therewith and demonstrate interest in
her children, and that mother failed to maintain weekly budget,
cooperate with her own foster mother and child welfare agency,
follow rules in foster home, clean up after herself, comply
with her probation, enroll in parenting classes, complete her high
school equivalency courses, and pass drug and alcohol evaluations, or
even to visit children for months at a time.
Evidence
that mother cared properly for two children born to her
after her first two children were adjudicated neglected and placed
in foster care was insufficient to counter substantial evidence of
her disinterest in her first two children and of her
lack of parental fitness with respect to those children.
Even
if parent has been found unfit to have custody of
child, it does not necessarily follow that parent cannot remain
child's legal parent with attendant rights and privileges.
Once
trial court has made a finding of parental unfitness, all
considerations must yield to best interests of child or children.
Once
parent has been found unfit by clear and convincing evidence,
decision to terminate that individual's parental rights rests within sound
discretion of trial court and will not be reversed absent
abuse of that discretion.
Termination
of mother's parental rights with respect to two children previously
adjudicated neglected was in best interests of children, where state
proved mother to be unfit parent by clear and convincing
evidence, mother evidenced little interest in securing children's return, and
foster mother had at time of best interest hearing provided
stable and loving home for children for over four years
and wished to adopt them.
**526
*999
***971
Michael Kalland (Court-appointed), Law Offices of
Josette Skelnik, Elgin, for A.S., Mother.
David R. Akemann, Kane County State's Attorney, St. Charles, Martin
P. Moltz, Deputy Director, Peggy F.J. Bradford, State's Attorneys Appellate
Prosecutor, Elgin, for the People
Justice HUTCHINSON delivered the opinion of the court:
Respondent, A.S., appeals from the order of the trial court
terminating her parental rights pursuant to the Adoption Act (750
ILCS 50/0.01 et
seq.
(West 1996)). Respondent argues that the trial court erred in
exercising jurisdiction contrary to the provisions of the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901
et
seq.
(1982)). Respondent also argues that the trial court erred in
finding respondent to be an unfit parent and in finding
that the termination of respondent's parental rights was in the
best interests of her minor children. We affirm.
Respondent and her minor daughters, M.S.1 and M.S.2, were *1000
placed in protective custody on August 21, 1993. On September
28, 1993, the trial court adjudged the two children neglected.
Respondent was ordered to complete and comply with a client
service plan and to follow all of the recommendations of
the Illinois Department of Children and Family Services (DCFS). Respondent,
also a minor, and her children were placed into foster
care with Lubertha P., the
paternal grandmother of M.S.1.
During the next few years, DCFS and the Catholic Social
Services (CSS) reported on respondent's progress. Some reports indicated progress,
but most of them indicated that respondent was uncooperative and
failed to meet almost all of the goals in the
client service plan. Respondent was placed into two additional foster
homes because she ran away on several occasions.
On September 7, 1995, DCFS recommended to the trial court
the termination of respondent's parental rights. The State filed a
petition for the termination of respondent's parental rights on February
20, 1996. At a hearing on June 3, 1997, respondent
alleged that the children were of Native American heritage and
that proper jurisdiction rested with a tribal court pursuant to
the ICWA. Because respondent alleged the children were of Cherokee
heritage, her caseworker sent notice to the Cherokee tribes in
North Carolina and Oklahoma. The North Carolina tribe responded and
stated that the children were not registered members of their
tribe. Furthermore, the letter stated that "the Eastern Band of
Cherokee Indians had neither the power nor inclination to intervene."
The Oklahoma tribe did not respond. In July 1997 the
trial court determined that respondent's alleged Native American heritage was
not an issue.
On October 3, 1997, the trial court heard evidence regarding
respondent's parental fitness. The trial court subsequently ruled that respondent
was unfit.
On January 29, 1998, the trial court heard evidence concerning
the best interests of the children. The trial court heard
testimony of the foster mother of the children and found
that it was in the children's best interests to terminate
**527
***972
respondent's parental rights. Respondent timely appeals.
On appeal, respondent first asserts
that jurisdiction over this matter properly resides with a tribal court
pursuant to the ICWA. The ICWA was enacted by Congress to:
"protect
the best interests of Indian children and to promote the
stability and security of Indian tribes and families by the
establishment of minimal Federal standards for the removal of Indian
children from their families and the placement of such children
in foster or adoptive homes which will reflect the unique
values of Indian culture, and by providing for assistance to
Indian tribes in the *1001
operation of child and family service programs." 25 U.S.C. § 1902
(1982).
The ICWA was enacted as a response to the disproportionate
removal of Native American children from their families and tribes.
H.R.Rep. No. 95-1386, at 19 (1978), reprinted in 1978 U.S.C.C.A.N.
7530, 7541. "The importance of tribal primacy in matters of
child custody and adoption cannot be minimized, for the ICWA
is grounded on the premise that tribal self-government is to
be fostered and that few matters are of more central
interest to a tribe seeking to
preserve its identity and traditions than the determination of who
will have the care and custody of its children." In
re Adoption of Halloway,
732 P.2d 962, 966 (Utah 1986). The ICWA seeks to
provide Native American tribes with the ability to preserve their
culture and identity by granting tribal courts either exclusive or
concurrent jurisdiction over child custody and adoption matters involving an
"Indian child." In
re Adoption of S.S.,
167 Ill.2d 250, 257, 212 Ill.Dec. 590, 657 N.E.2d 935
(1995).
The
ICWA defines an "Indian child" as "any unmarried person
who is under age eighteen and is either (a) a member of an Indian tribe
or (b) is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe." 25 U.S.C. § 1903(4)
(1982). The ICWA is not applicable until the party asserting
its applicability establishes that the child meets one or both of the
criteria. In re
A.G.-G., 899 P.2d 319,
321 (Colo.Ct.App.1995). In the absence of a conclusive finding
of the child's eligibility in a particular tribe, either by that tribe
or by the Bureau of Indian Affairs, the trial court must determine if
the child is an "Indian child." In
re Baby Boy Doe, 123
Idaho 464, 469, 849 P.2d 925, 929 (Idaho 1993). In fact, the
court must initially determine if a child is an "Indian child"
within the meaning of the ICWA. People
ex rel. South Dakota Department of Social Services, In re C.H.
510 N.W.2d 119, 123 (S.D.1993).
In
the present case, the trial court was only presented with the unsubstantiated
assertion that the children were of Native American heritage. Respondent
did not provide any evidence that either she or her children were eligible
for membership in any particular tribe but did allege that she was part
Cherokee. The caseworker apparently sent notice to two different
bands of the Cherokee tribe. One responded that the children
were not members of the tribe and that the tribe had no inclination to
intercede in the proceedings. The other band failed to respond
entirely. Respondent provided no explanation for allowing
almost four years to pass before notifying the trial court of the children's
alleged Native American heritage. Although not clear from
the record, it is certainly possible that the trial court believed respondent's
claims of Native American heritage to be incredible. After *1002
all, respondent allowed her children to be placed into foster care for
years and challenged the trial court's jurisdiction only when a hearing
was about to be held on her parental fitness. The trial court
continued the parental fitness hearing to afford respondent an opportunity
to provide some evidence that the ICWA was applicable to her and her children.
The trial court did not provide a full evidentiary hearing on this eleventh-hour
motion, and it does not appear from the record that such a hearing was
warranted. Respondent has failed even to allege that her children
would fall within the meaning of "Indian children" under the
ICWA. If her children are not eligible for membership in an "Indian
tribe," then the ICWA is inapplicable. Upon
our review of the record, we determine that the trial court properly exercised
jurisdiction over this matter.
**528
***973
Respondent also argues that the trial court erred in finding respondent
to be an unfit parent. Our standard of review in cases of
parental unfitness is limited to determining whether the trial court's
decision was against the manifest weight of the evidence. In
re Adoption of Syck,
138 Ill.2d 255, 274, 149 Ill.Dec. 710, 562 N.E.2d 174 (1990); In
re R.B., 297 Ill.App.3d
97, 99, 231 Ill.Dec. 688, 696 N.E.2d 1259 (1998). Cases concerning
parental unfitness are unique unto themselves; we will not make
factual comparisons between cases. See In
re S.J., 233 Ill.App.3d
88, 113, 174 Ill.Dec. 259, 598 N.E.2d 456 (1992). It is necessary
that the State prove by clear and convincing evidence one statutory factor
of unfitness for the termination of parental rights to ensue. In
re A.J., 296 Ill.App.3d
903, 913, 231 Ill.Dec. 34, 695 N.E.2d 551 (1998). Therefore,
this court need not consider other findings of unfitness where sufficient
evidence exists to satisfy any one statutory ground. In
re A.S.B., 293 Ill.App.3d
836, 843, 228 Ill.Dec. 238, 688 N.E.2d 1215 (1997). A reviewing
court accords great deference to a trial court's finding of parental unfitness
and will not disturb such a finding unless it is against the manifest
weight of the evidence. In
re G.V., 292 Ill.App.3d
301, 306, 226 Ill.Dec. 303, 685 N.E.2d 406 (1997). Finally,
our function is not
to substitute our judgment for that of the trial court on questions regarding
the evaluation of the witnesses' credibility and the inferences to be
drawn from their testimony; the trial court is in the best position
to observe the conduct and demeanor of the parties and witnesses as they
testify. in
rE adoption oF J.R.G.,
247 ilL.app.3d 104, 109, 187 ilL.dec. 169, 617 N.E.2d 377 (1993).
Here, the trial court was presented
with ample evidence that respondent was an unfit parent for M.S.1 and
M.S.2. A detailed DCFS service plan was created for respondent in 1993.
Respondent had every opportunity to comply with this service
plan and demonstrate her interest in her children. The record reflects
that, since 1993, respondent has made little progress towards completing
this goal. She continually received unsatisfactory ratings
on the service plans for failing to maintain a weekly budget, cooperate
with her foster mother *1003
and CSS/DCFS, follow rules in the foster home, clean up after herself,
comply with her probation, enroll in parenting classes, and pass drug/alcohol
evaluations. Respondent failed even to visit her children
for months at a time. The foster mother testified that respondent
almost never visited the children except when the children were taken
by the foster mother to respondent's mother's home for holidays and birthdays.
Respondent ran away from her foster homes on several occasions
and failed to complete her high school equivalency courses. The
State presented expert testimony that it was
highly doubtful that respondent would be able to parent her children.
Respondent argues that she has shown her fitness by caring for her two
boys, who were born since M.S.1 and M.S.2 were placed into foster care.
However, this is insufficient to counter the substantial evidence
of respondent's disinterest in her children and unfitness as a parent
to M.S.1 and M.S.2. Upon our review of the record, we determine that the
trial court did not err in finding respondent unfit and terminating her
parental rights.
Respondent
finally argues that the trial court erred in finding that terminating
her parental rights was in the best interest of her minor children. Even
if a parent has been found unfit to have custody of a child, it does not
necessarily follow that the parent cannot remain the child's legal parent
with attendant rights and privileges. In
re B.C., 247 Ill.App.3d
803, 806, 187 Ill.Dec. 486, 617 N.E.2d 1207 (1993). Once the
trial court has made a finding of unfitness, all considerations must yield
to the best interests of the child or children. In
re M.C., 197 Ill.App.3d
802, 806, 144 Ill.Dec. 214, 555 N.E.2d 111 (1990). "It is not
until after a parent has been found to be unfit that the court may consider
evidence of the child's best interest." In
re V.S., 285 Ill.App.3d
372, 375, 220 Ill.Dec. 894, 674 N.E.2d 437 (1996). Once a
parent has been found unfit by clear and convincing evidence, the decision
to terminate that individual's parental rights rests within the sound
discretion of the trial court and will not be reversed absent an
abuse of that discretion. In
re V.O., 284 Ill.App.3d
**529
***974
686, 691, 220 Ill.Dec. 527, 673 N.E.2d 439 (1996).
Upon our review of the record,
we determine that the trial court did not abuse its discretion in terminating
respondent's parental rights. As we set forth above, the trial
court found that the State proved respondent to be an unfit parent by
clear and convincing evidence. Respondent failed to visit
her children for months at a time, despite the fact that she lived less
than five miles away from them for a period of time. The trial
court found respondent's contrary testimony to be incredible and believed
the testimony of the CSS and the foster mother regarding visitation. Respondent
has failed to demonstrate a reasonable degree of interest, concern, or
responsibility. She has also shown a lack of reasonable progress
in working towards the return of *1004
her children. We do note that, as of the best interest hearing,
respondent has obtained an apartment for herself and is currently living
with her two other children. Overall, however, respondent
has shown little interest in securing the return of M.S.1 and M.S.2. On
the other hand, the foster mother has provided a stable, loving home for
the two girls for over four years and wishes to adopt them. We
determine that the trial court did not abuse its discretion in terminating
respondent's parental rights.
For the foregoing reasons, the judgment of the circuit court
of Kane County is affirmed.
Affirmed.
BOWMAN, P.J., and THOMAS, J., concur.
302 Ill.App.3d 998, 706 N.E.2d 524, 235 Ill.Dec. 969
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