(Cite
as: 190 Ill.App.3d 547, 546 N.E.2d 44, 137 Ill.Dec. 420)
Appellate
Court of Illinois,
Second
District.
In
re Rueben STIARWALT, et al., Minors. (The People of the
State of Illinois,
Petitioner-Appellee,
v. Jeanne Stiarwalt, Respondent-Appellant).
No.
2-88-1141.
Oct.
24, 1989.
Indian
Child Welfare Act does not apply merely because children are
"Indian" but applies only where there is proof that children
are members, or are eligible for membership, in Indian tribe
as defined by Act. Indian Child Welfare Act of 1978,
§ 2
et seq., 25 U.S.C.A. § 1901
et seq.
Evidence
was insufficient to establish that Indian Child Welfare Act applied
to proceeding terminating parental rights of mother who was member
of Canadian Indian tribe, absent evidence that Canadian tribe was
affiliated with any tribe recognized under Act. Indian Child Welfare
Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Mother
who claimed membership in Canadian Indian tribe had burden of
proving that
tribe was recognized as eligible for services to Indians by
Department of Interior under Indian Child Welfare Act. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
Evidence
in proceeding to terminate mother's parental rights was sufficient to
support finding that mother had not made reasonable progress toward
fulfillment of conditions set out for return of her children
at time order adjudicating neglect was entered; mother did not
regularly attend counseling and was consuming alcohol during time she
was directed to abstain from alcohol and drugs and did
not secure suitable housing for her and her children. S.H.A.
ch. 40, ¶ 1501(D)(m).
Whether
parent's progress to return of children was reasonable involves objective
determination based upon amount of progress measured from conditions existing
at time custody was taken from parent; at minimum, reasonable
progress
requires measurable or demonstrable movement toward goal of reunification. S.H.A.
ch. 40, ¶ 1501(D)(m).
It
is essential for trial court to consider situation triggering minor
children's initial removal as benchmark for measuring reasonable progress in
proceeding to terminate parental rights. S.H.A. ch. 40, ¶ 1501(D)(m).
**45
*548
***421
Phyllis J. Perko (argued), Harlovic & Perko, West Dundee, Ill.,
Judith M. Brawka, Trial Counsel, for Jeanne Stiarwalt.
Gary V. Johnson, Kane County State's Atty., William L. Browers,
Deputy Director, State's Attys. Appellate Prosecutor, Eleesha Pastor O'Neill (argued),
Chicago, Ill., for People.
Glenn M. Sowa, Law Offices of John F. Donahue, Geneva,
Ill., for Est. of Rodriguez.
Patricia Reid Lindner, Aurora, Ill., Guardian Ad Litem.
Justice INGLIS delivered the opinion of the court:
Respondent, Jeanne Stiarwalt, mother of Rueben (a/k/a Rubin), Julio, and
Rachel
(a/k/a Rachael) Stiarwalt, appeals from an order of the circuit
court of Kane County terminating her parental rights and authorizing
the guardianship administrator of the Illinois Department of Children and
Family Service (DCFS) to consent to the minors' adoption. Respondent
contends that (1) the trial court proceedings did not comply
with the requirements of the Indian Child Welfare Act of
1978 (Act) (25 U.S.C. § 1901
et
seq.
(1982)); and (2) the trial court's finding of parental unfitness
was not supported by clear and convincing evidence. We affirm.
**46
***422
On June 23, 1983, the State filed a petition for
an adjudication of wardship based on the neglect of the
three minor children, Rueben (born November 24, 1975), Julio (born
April 30, 1979), and Rachel (born October 7, 1981). On
August 9, 1983, the court granted the petition. However, on
July 17, 1984, the court vacated the adjudication and set
the cause for a hearing. On September 10, 1984, an
adjudication hearing was held at which respondent entered an admission
to the contents of the State's petition based on the
fact that she was unable to provide the necessary care
and support of the children. On the same date, the
court entered an order placing six conditions upon respondent for
a return of her children. These six conditions were that
respondent would obtain adequate housing, maintain regular contact with DCFS,
continue scheduled visitation with the children, be gainfully employed, attend
counseling, and maintain a stable home environment for a three-month
period.
On October 22, 1985, the State filed a petition to
terminate respondent's parental rights with respect to the three minor
children. The petition alleged that respondent was unfit due to
her failure to make reasonable efforts and progress to correct
the conditions which *549
were the basis for the removal of the minor children
from her custody. On September 25, 1986, after two fitness
hearings, the court entered an order finding that the State
proved by clear and convincing evidence that respondent failed to
make reasonable progress toward the return of her children. The
court then ordered a hearing to determine whether the termination
of respondent's parental rights would be in the best interests
of the minor children.
On January 5, 1988, respondent filed a motion to invalidate
the court proceedings, including the adjudicatory and unfitness hearings and
findings, based on the allegation that the court lacked jurisdiction
in this case. Respondent argued that she was a member
of an Indian tribe, that the minors were Indian children,
and, as such, that the Act applied in this case.
On March 30, 1988, a hearing was held on respondent's
motion. At the conclusion of the hearing, the court took
the matter under advisement. On July 19, 1988, the court
entered an order denying respondent's motion to invalidate, finding that
the Act was inapplicable in the case at bar.
On October 31, 1988, an evidentiary hearing was conducted to
determine what placement
would be in the best interests of the minor children.
The hearing concluded on November 1, 1988, after which the
court ordered that the termination of respondent's parental rights would
be in the best interests of the children. The court
also appointed a guardian to consent to the minors' adoption.
Respondent filed a timely notice of appeal.
On appeal, respondent first contends that the trial court proceedings
did not comply with the requirements of the Act. Specifically,
she contends that there is a possibility that the Canadian
tribe of which she is a member is affiliated with
some Sioux Indian tribe within the United States and recognized
by the Department of the Interior (Department). She further contends
that the State had an obligation to contact respondent's Indian
tribe to determine whether the tribe claims some affiliation with
a tribe recognized by the United States government.
During the hearings on the termination of respondent's parental rights,
respondent filed a motion to invalidate the proceedings, contending that
the State did not comply with the provisions of the
Act. An evidentiary hearing was held on respondent's motion. At
the hearing, Nancy Zimmerman, a DCFS caseworker, testified that DCFS
was aware of respondent's Indian heritage and attempted to determine
if the Act applied to respondent and her children. Zimmerman
stated that a letter was written to the Department requesting
advice on the applicability of the Act. In the letter,
DCFS informed the Department *550
that respondent was born in Canada and "appears to be
part of a Sioux Indian Tribe." DCFS also enclosed a
copy of respondent's birth certificate with the letter. The Department
responded by stating:
**47
***423
"From the information which you provided, it appears that these
[Stiarwalt] children possess only Indian blood from Tribes in Canada.
This Act (PL-95-608) applies only to children of Indians who
are members of an Indian Tribe recognized by the United
States Government and who are themselves eligible for membership. It
appears that these children do not meet this requirement of
the Act. Therefore, the Act would not apply to these
children."
After receiving the letter, DCFS concluded that it would not
be necessary to comply with the procedural requirements of the
Act because the Act would not apply in this case.
Respondent also testified at the hearing. She stated that she
was born in 1960 on the Rolling River Band Indian
Reservation in Canada. She was placed in a foster home
at age seven and was adopted at age 10 by
a non-Indian family in Illinois. She stated that she has
not lived on an Indian reservation since she was adopted.
Respondent also introduced a letter from the Rolling River Band
into evidence at the hearing. The letter was written to
respondent's attorney and stated:
"[Y]our
client [respondent] and her children are entitled to Treaty Status
and
Canadian Citizenship and should be treated as such."
The trial court determined that the Act was not applicable
to the case at bar, stating:
"The
evidence introduced at the evidenciary [sic
] hearing establishes clearly that the Mother is a member
of a Canadian Indian Tribe. The evidence established that Leona
Angella McKay, which was the Mother's birth name, was a
member of the Rolling River Band of Canadian Indians.
* * * * * *
The
Rolling River Band is not recognized by the Secretary of
the Bureau of Indian Affairs of the Department of the
Interior. The Act as it was written and in existence
at the time of the adjudications as to the Stiarwalt
Minors did not include Canadian Indians. It is the finding
of this Court, therefore, that the Act is not applicable
to these proceedings and the Motion To Invalidate is denied."
The Act was adopted to respond to a crisis occurring
in Indian tribes in which large numbers of Indian children
were being separated from their families and placed in non-Indian
homes. (Mississippi
*551
Band of Choctaw Indians v. Holyfield
(1989), 490 U.S. 30, ----, 109 S.Ct. 1597, 1600, 104
L.Ed.2d 29, 36. As a result, the children were being
deprived of their cultural heritage, and the tribes' ability to
function as an autonomous community was being severely threatened. (490
U.S. at ----, 109 S.Ct. at 1601, 104 L.Ed.2d at
37-38.) The
Act incorporated these considerations, finding:
"(3)
that there is no resource that is more vital to
the continued existence and integrity of Indian tribes than their
children and that the United States has a direct interest,
as trustee, in protecting Indian children who are members of
or are eligible for membership in an Indian tribe;
(4)
that an alarmingly high percentage of Indian families are broken
up by the removal, often unwarranted, of their children from
them by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed in non-Indian
foster and adoptive homes and institutions; and
(5)
that the States, exercising their recognized jurisdiction over Indian child
custody proceedings through administrative and judicial bodies, have often failed
to recognize the essential tribal relations of Indian people and
the cultural and social standards prevailing in Indian communities and
families." 25 U.S.C. §§ 1901(3)
through 1901(5) (1982).
The Act sets forth minimum Federal
standards for the removal of an Indian child from his or her family. (25
U.S.C. § 1902 (1978); In
re A.E. (Colo.App.1987),
749 P.2d 450, 451.) However, the Act does not apply unless
it is established that the child is an "Indian child." (In
re Appeal in Maricopa County Juvenile Action No. A-25525
(1983), 136 Ariz. 528, 531, 667 P.2d **48
***424
228, 231.) The Act defines "Indian child" as:
"[A]ny
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 Act goes on to define "Indian tribe" as:
"[A]ny
Indian tribe, band, nation, or other organized group or community
of Indians recognized as eligible for the services provided to
Indians by the Secretary because of their status as Indians,
including any Alaska Native village as defined in section 1602(c)
of title 43." (25 U.S.C. § 1903(8)
(1982).)
Thus, the Act does not apply merely because the children
are "Indian," but applies only where there is proof that
the children are members, or are eligible for membership, in
an Indian tribe, as defined by the Act. In
re Smith
(1987), 46 Wash.App. 647, 650, 731 *552
P.2d 1149, 1152-53.
In
the present case, the State introduced evidence indicating that the children
were not "Indian" within the context of the Act. Respondent
argues that the State's evidence did not negate the possibility that the
Canadian tribe in which she is a member is affiliated with some tribe
which is recognized under the Act. However, the burden of
proof is on respondent to prove that the Indian tribe in which she claims
membership is recognized as eligible for services to Indians by the Department.
(In re Angus
(1982), 60 Or.App. 546, 549, 655 P.2d 208, 210, cert.
denied (1983), 464
U.S. 830, 104 S.Ct.
107, 78 L.Ed.2d 109; In
re K.A.B.E. (S.D.1982),
325 N.W.2d 840, 843.) Respondent failed to offer any evidence
that the Canadian tribe is affiliated with any tribe recognized under
the Act.
Respondent cites In
re Junious M.
(1983), 144 Cal.App.3d 786, 193 Cal.Rptr. 40, to support her
position that the Act applies in the case at bar.
In Junious
M.,
the trial court determined that the minor child was a
member of the Nooksack Tribe, but that the Act would
not apply because the minor was not an "Indian child."
(144 Cal.App.3d at 792, 193 Cal.Rptr. at 43.) Apparently, the
trial court based this ruling on the allegation that the
Nooksack tribe was Canadian. However, evidence was also adduced at
trial indicating that the tribe was also located within the
United States and was recognized by the Department of the
Interior. (144 Cal.App.3d at 792, 193 Cal.Rptr. at 43.) The
appellate court reversed the trial court, holding that the trial
court erred when it failed to notify the Nooksack Tribe
concerning the custody proceedings. (144 Cal.App.3d at 794, 193 Cal.Rptr.
at 44.) The court noted that guidelines established by the
Bureau of Indian Affairs (Bureau) stated that "[a]bsent a contrary
determination by the tribe that is alleged to be the
Indian child's tribe, a determination by the Bureau of Indian
Affairs that a child is or is not an Indian
child is conclusive." 144 Cal.App.3d at 794, 193 Cal.Rptr. at
44, citing 44 Fed.Reg. 67584-67586 (Nov. 26, 1979).
We believe that the Junious
M.
decision does not support respondent's position in the case at
bar. In Junious
M.,
the Bureau informed the parties that the Nooksack Tribe was
officially recognized by the United States government. Indeed, a review
of the Federal register indicates that the Nooksack Indian Tribe
of Washington is listed as a federally recognized tribe. (51
Fed.Reg. 25116 (July 10, 1986).) However, in the case at
bar, the Bureau determined that respondent's tribe, the Rolling River
Band, is not a federally recognized tribe. The bureau made
this determination after reviewing the Federal register and not finding
the Rolling River Band listed as eligible for Federal *553
recognition. We believe that the Bureau's unrefuted determination concerning respondent's
Indian status in this case is conclusive. (See In
re Tucker
(1985), 76 Or.App. 673, 677-79 n. 3, 710 P.2d 793,
796 n. 3; Junious
M.,
144 Cal.App.3d at 794, 193 Cal.Rptr. at 44.) Thus, we
agree with the trial court's determination that the Act does
not apply in the case at bar.
Respondent next contends that the trial court's finding of parental
unfitness was not supported by clear and convincing evidence.. **49
***425
Respondent argues that the six conditions set out for a
return of her children were either not reasonably related to
the question of fitness, or that the evidence did not
support the court's conclusion that there was not reasonable progress
toward the fulfillment of the conditions. We disagree.
It is well established that a finding of parental unfitness
must be supported by clear and convincing evidence. (In
re Paul
(1984), 101 Ill.2d 345, 352, 78 Ill.Dec. 149, 461 N.E.2d
983; In
re Henry
(1988), 175 Ill.App.3d 778, 790, 125 Ill.Dec. 413, 530 N.E.2d
571.) The trial court's findings must be given great deference,
and its decision should not be reversed on appeal unless
it is contrary to the manifest weight of the evidence.
Henry,
175 Ill.App.3d at 790, 125 Ill.Dec. 413, 530 N.E.2d 571;
In
re R.G
(1988), 165 Ill.App.3d 112, 133-34, 116 Ill.Dec. 69, 518 N.E.2d
691.
In
the instant case, the minor children were taken into temporary custody
in June 1983 after respondent made a telephone call to DCFS. Respondent
told DCFS that she was an alcoholic and a drug addict and that she did
not have a place for her and the children to live. The children
were placed in three different foster homes. On July 15, 1983,
respondent telephoned her DCFS caseworker, Betsy Nemeth, and told Nemeth
that she was moving to Texas. Nemeth told respondent that
she should schedule an appointment with DCFS before she left Illinois
so that a case plan could be worked out and to allow her to visit with
her children. Respondent scheduled an appointment for later
in the afternoon on the same day, and a six-month client-service plan
(plan) was developed. The first plan set up goals for respondent
to achieve, including obtaining drug counseling and abstaining from alcohol
and drug usage, finding suitable housing and maintaining stable employment.
On July 20, 1983, respondent had visitation with her children
and brought a box of their clothing. Nemeth testified that
respondent did not separate the clothing, even though the children
were living in three different foster homes. Nemeth further stated
that "the clothes were in terrible condition, that they were--most
of them didn't even fit the kids, that they were
dirty and that they had a terrible odor to them
and the boxes had cockroaches that were in them and
I believe *554
Julio--some of the clothes of the children's were caked with
like feces and they were just very dirty."
Shortly thereafter, respondent was arrested, charged with theft, and placed
in the Kane County jail (jail). Nemeth testified that she
had regular contacts with respondent in August and September 1983
while respondent was at the jail. In October 1983, respondent
was sentenced to 18 months' imprisonment and sent to the
Dwight Correctional Center (Dwight).
On December 9, 1983, a second plan was set up
for respondent and continued the goals of the previous plan
due to respondent's incarceration. On April 25, 1984, respondent was
released from Dwight. On May 11, 1984, respondent visited with
the children and, later in the month, moved to Texas.
It was respondent's intention to move the children to Texas
after she had established suitable housing and employment.
On June 15, 1984, a third plan was developed for
respondent. In July 1984, respondent
returned to Illinois for a court hearing and to visit
with the children. Respondent stayed in Illinois after the hearing
and did not return to Texas. Respondent missed several scheduled
visits with the children in August 1984 because she was
late for the appointments. She also failed to show up
for one visit in September 1984 and did not call
Nemeth to inform DCFS that she would be unable to
make the appointment. Nemeth further testified that respondent did not
provide any verification concerning compliance with the counseling, employment or
housing goals set for her in the plans.
Debra Mourning, a DCFS caseworker, testified that she took over
respondent's case after Nemeth left DCFS. Mourning stated that a
fourth plan was developed for respondent on December 20, 1984.
This plan included a two-hour-per-week visitation **50
***426
schedule for respondent to be with her children. Respondent was
to provide her children with a nutritional meal and was
to bring toys and books for them during the visitation
periods. The plan also included a goal of attending drug
and alcohol counseling and obtaining adequate housing for her and
the children.
On February 6, 1985, Mourning had an in-person contact with
respondent at the DCFS office. Respondent stated that she was
not attending counselling and was "still drinking, but not getting
drunk." Respondent told Mourning that she was not attending counselling
because she had too many other things to do, including
baby-sitting and searching for employment. In addition, respondent
stated that she was unemployed.
Respondent moved several times during January to March 1985. *555
On April 26, 1985, respondent informed DCFS that she was
pregnant. On May 10, 1985, respondent was confronted with reports
that she was drinking "heavily." Respondent did not reply but
instead only cried. On June 12, 1985, a fifth plan
was set up for respondent. On August 26, 1985, Mourning
told respondent that no progress was being made on the
plans and that a petition to terminate her parental rights
would be filed. On September 23, 1985, respondent gave birth
to her fourth child.
Ruth Burton, a substance abuse counselor at the Passage Program
for Women (Passage), testified that she was respondent's counselor. Burton
stated that respondent's attendance at the Passage counseling sessions was
very erratic and that "she came in on crisis, when
things were bad. She would come for a while and
then not come." Burton also stated that respondent did not
have "a real willingness to work on any issues."
Respondent testified at the hearing that she does not consider
herself to have a drug or alcohol problem anymore and
has "been clean" ever since her release from Dwight. However,
she admitted that no independent drug or alcohol counselor had
told her that she no longer had a drug or
alcohol problem. She also stated that she has experienced problems
with Frank Rodriguez, the father of Julio, which resulted in
her having to spend two weeks in a woman's crisis
center.
In addition, respondent stated that she was unable to maintain
stable employment due to a lack of transportation to get
to work, and because she experienced various problems with her
pregnancy.
At the conclusion of the hearing, the court determined that
respondent did make a reasonable effort, but failed to make
reasonable progress, toward the return of her minor children. (See
Ill.Rev.Stat.1987, ch. 40, par. 1501(D)(m).) The court then ordered respondent's
parental rights terminated. At a later hearing, the court determined
that it would be in the best interests of the
minor children to terminate respondent's parental rights.
The trial court made these findings after determining that respondent's
one-bedroom apartment was not suitable housing for her and her
four minor children. The court also determined that respondent was
not gainfully employed at any particular time "so as to
provide for the basic needs of the children." In addition,
the court stated that respondent never regularly attended drug and
alcohol counseling, thus not giving her counselor an opportunity to
determine whether she needed to attend counseling at all. As
a final point, the court stated that respondent did not
maintain a stable home or work environment for a three-month
period, as required under the last condition *556
of the order entered at the adjudication hearing.
Respondent
argues that she did make reasonable progress toward satisfying the six
conditions. Whether a parent's progress toward the return
of
the children was reasonable involves an objective determination based
upon the amount of progress measured from the conditions existing at the
time custody was taken from the parent. (In
re Allen (1988), 172
Ill.App.3d 950, 956, 123 Ill.Dec. 184, 527 N.E.2d 647; In
re Doolan (1981), 101
Ill.App.3d 322, 324, 56 Ill.Dec. 802, 427 N.E.2d 1348.) At
a minimum, reasonable progress requires measurable or demonstrable **51
***427
movement toward the goal of reunification. In
re Henry, 175 Ill.App.3d
at 791, 125 Ill.Dec. 413, 530 N.E.2d 571; In
re Allen, 172 Ill.App.3d
at 956, 123 Ill.Dec. 184, 527 N.E.2d 647.
Respondent contends that In
re Perez
(1988), 173 Ill.App.3d 922, 123 Ill.Dec. 693, 528 N.E.2d 238,
supports her position that she did make reasonable progress toward
the return of her children. In In
re Perez,
the trial court terminated the mother's parental rights because she
failed to make reasonable progress with respect to the conditions
imposed upon her at the dispositional hearing. This court reversed
the trial court, holding that the absence of evidence as
to the mother's status at the time of the removal
of her children made it impossible for the court to
determine whether the mother had in fact made reasonable progress
toward the return of her children. In
re Perez,
173 Ill.App.3d at 936, 123 Ill.Dec. 693, 528 N.E.2d 238.
We agree with the In
re Perez decision and
believe that it is essential for the trial court to consider the situation
triggering the minor children's
initial removal as a benchmark for measuring reasonable progress. (In
re Perez, 173 Ill.App.3d
at 936, 123 Ill.Dec. 693, 528 N.E.2d 238; see also In
re Bennett (1980),
80 Ill.App.3d 207, 212, 35 Ill.Dec. 669, 399 N.E.2d 735; In
re Austin (1978), 61
Ill.App.3d 344, 350, 19 Ill.Dec. 37, 378 N.E.2d 538.) In the
case at bar, respondent's status at the time of the removal of her children
was well documented. Respondent admitted that she was an alcoholic
and a drug addict and did not have a place for her and her children to
live at the time the children were removed from her custody. The
court took these factors into consideration when it determined that respondent
did not make reasonable progress with respect to her substance abuse counseling
and inability to maintain stability with respect to housing and employment.
Thus, we believe that the trial court could properly determine whether
respondent made reasonable progress toward the return of her children,
unlike the situation in In
re Perez.
We agree with respondent that parental rights are fundamental and
cannot be lightly terminated. (In
re Paul,
101 Ill.2d at 352-55, 78 Ill.Dec. 149, 461 N.E.2d 983.)
However, DCFS provided respondent with five different client-service plans, two
of which were after the court entered the adjudication of
neglect order, in an attempt to allow respondent to regain
custody of *557
her children. Respondent received an "unsatisfactory" grade as to one
or more of the conditions for each of the plans,
including the two plans after the
court order adjudicating neglect. Respondent never did regularly attend counseling
and was apparently still consuming alcohol during the time she
was directed to abstain from alcohol and drugs. In addition,
respondent did not secure housing suitable for her and the
children, even though this was one of the reasons why
she originally relinquished custody of the children. While respondent may
have made some slight progress during this time, the trial
court's finding that she failed to make reasonable progress toward
the return of her children in the nearly 14 months
since the order adjudicating neglect is not contrary to the
manifest weight of the evidence. See In
re A.C.B.
(1987), 153 Ill.App.3d 704, 708-09, 106 Ill.Dec. 653, 506 N.E.2d
360 (some progress may not be reasonable given the right
of the children to not be left in limbo for
an unreasonable amount of time).
For the above stated reasons, the judgment of the circuit
court of Kane County is affirmed.
Affirmed.
REINHARD and McLAREN, JJ., concur.
190 Ill.App.3d 547, 546 N.E.2d 44, 137 Ill.Dec. 420
|