In re M.H. , 2011 IL App (1st) 110196 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re M.H., 2011 IL App (1st) 110196Appellate Court In re M.H., A MINOR (The People of the State of Illinois, Petitioner-
Caption Appellee, v. Charlotte B. and Charles H., Respondents-Appellants (Bad
River Band of Lake Superior Tribe of Chippewa Indians, Intervenor-
Appellant)).
District & No. First District, Sixth Division
Docket Nos. 1-11-0196, 1-11-0259, 1-11-0375 cons.
Filed August 12, 2011
Held The trial court properly terminated respondents’ parental rights to their
(Note: This syllabus child, who was an Indian child under the Indian Child Welfare Act by
constitutes no part of virtue of the mother’s status as an enrolled member of a tribe, and the
the opinion of the court denial of the tribe’s petition to transfer the proceedings to the tribal court
but has been prepared was upheld.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 07-JA-716; the Hon.
Review Richard A. Stevens, Judge, presiding.
Judgment Affirmed.
Counsel on Abishi C. Cunningham, Jr., Public Defender, of Chicago (Robert C.
Appeal Drizin, Assistant Public Defender, of counsel), for appellant Charlotte B.
Brian Collins, of Chicago, for appellant Charles H.
Arthur D. Sutton, of Arthur D. Sutton & Associates, of Matteson, and
Joseph F. Halloran, pro hac vice, and Sara K. Van Norman, pro hac vice,
both of Jacobson, Buffalo, Magnuson, Anderson & Hogen, P.C., of St.
Paul, Minnesota, for appellant Bad River Band of Lake Superior Tribe of
Chippewa Indians.
Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and Susan
S. Wigoda, of counsel), and Jamie E. Knight, law student, guardian ad
litem.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Nancy
Kisicki, and Jessica R. Bargmann, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE CAHILL delivered the judgment of the court, with opinion.
Presiding Justice Garcia and Justice R. Gordon concurred in the judgment
and opinion.
OPINION
¶1 Respondents, Charlotte B. and Charles H., are the biological parents of M.H., a minor.
M.H. is an Indian child under the Indian Child Welfare Act of 1978 (Act) (25 U.S.C. § 1901et seq. (1994)) because she is eligible for membership in the respondent tribe, Bad River
Band of the Lake Superior Tribe of Chippewa Indians (Tribe), due to her mother’s status as
an enrolled member of the Tribe. See 25 U.S.C. § 1903(4) (1994). Respondents separately
appeal (Charlotte B., appeal No. 1-11-0196; Charles H., appeal No. 1-11-0375; Tribe, appeal
No. 1-11-0259) from a December 20, 2010, order of the circuit court of Cook County which
terminated Charlotte’s and Charles’s parental rights to M.H. on findings of unfitness under
sections 1(D)(b), (m) and (n) of the Adoption Act (750 ILCS 50/1(D)(b), (D)(m), (D)(n)
(West 2008)). The same order determined that it was in the best interest of M.H. that a
guardian be appointed with the right to consent to her adoption. The Tribe also appeals from
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the court’s May 18, 2010, order denying its petition to transfer the proceedings to the tribal
court. We have consolidated these appeals for review and affirm the judgment of the circuit
court.
¶2 M.H. was born on August 2, 2007, prenatally exposed to a controlled substance. The
Illinois Department of Children and Family Services (DCFS) took protective custody of
M.H. on August 27, 2007. On the next day, the State filed a petition for adjudication of
wardship, alleging Charlotte had five earlier indicated reports for having had a substance-
exposed infant and four minors in the care and custody of DCFS after findings of abuse and
neglect were entered against her. The State also alleged M.H. was neglected because her
environment was injurious to her welfare and abused due to a substantial risk of physical
injury under the Juvenile Court Act of 1987 (705 ILCS 405/2-3(1)(b), (2)(ii) (West 2008)).
M.H. was placed in the custody of a nonrelative foster parent on August 30, 2007.
¶3 On March 7, 2008, the State filed a motion to amend the adjudication petition, seeking
permanent termination of parental rights and appointment of a guardian with the right to
consent to M.H.’s adoption. The State alleged Charlotte and Charles were unfit parents under
sections 1(D)(a), (b), (l) and (t) of the Adoption Act because: (1) they abandoned M.H.
(subsection (a)); (2) they failed to maintain a reasonable degree of interest, concern or
responsibility for M.H.’s welfare (subsection (b)); (3) they failed to demonstrate a reasonable
degree of interest, concern or responsibility for M.H.’s welfare during the first 30 days of her
life (subsection l)); and (4) Charlotte had at least one child who was adjudicated neglected,
after which she had an opportunity to enroll in drug treatment and later gave birth to M.H.,
who was prenatally exposed to a controlled substance (subsection (t)) (750 ILCS 50/1(D)(a),
(D)(b), (D)(l), (D)(t) (West 2008)). The court granted the motion on March 18, 2008, and set
a trial date of July 10, 2008, for adjudication and termination of parental rights.
¶4 On April 18, 2008, the court entered a default order against Charlotte for want of
appearance. On the same date, under the Act, the court ordered the State to notify the Tribe
of the juvenile proceeding involving M.H. The State issued a notice on May 13, 2008, to
Eugene Bigboy, Sr., chairman of the Tribe. The Tribe received notice on May 19, 2008. The
notice informed the Tribe that it had a right to intervene and petition the court to transfer the
proceeding to the tribal court. The notice also admonished the Tribe of the importance of
attending the proceeding, which could result in the Indian parents’ loss of custody of the
child, a finding of unfitness and the child’s placement for adoption.
¶5 Charlotte and Charles appeared in court on July 10, 2008. The court vacated the default
order entered against Charlotte and appointed counsel for her and Charles. The State then
withdrew its motion for termination of parental rights without prejudice.
¶6 The court held an adjudicatory hearing on August 14, 2008. John Steele, a DCFS
investigator, testified that M.H. was born on August 2, 2007, and, along with Charlotte,
tested positive for opiates. The day after M.H. was born, Steele asked Charlotte to attend
inpatient drug treatment. Charlotte did not seek treatment. Steele spoke to Charlotte about
two weeks later. During their conversation, Charlotte expressed interest in reuniting with
M.H. Steele again advised Charlotte that she needed to undergo drug treatment. Four days
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later, Steele conducted a home assessment. Steele said that during the assessment Charlotte
appeared to be under the influence of drugs and admitted using heroin and methadone that
day. Steele determined that it was in the best interest of M.H. that DCFS take protective
custody of her because Charlotte’s drug addiction put M.H.’s safety in jeopardy and
Charles’s health, financial and transportation issues prevented him from meeting M.H.’s
needs.
¶7 The State entered into evidence Charlotte’s and M.H.’s medical records and Charlotte’s
five earlier indicated reports of neglect and abuse. The court found by clear and convincing
evidence that M.H. was a drug-exposed infant and neglected due to an injurious
environment.
¶8 The court held a disposition and permanency hearing also on August 14, 2008. Leslie
Jacob, a Children’s Home and Aid Society (CHAS) caseworker, testified about her efforts
to engage Charlotte and Charles in services designed to reunite them with M.H. Jacob said
CHAS recommended that Charlotte and Charles complete a “Juvenile Court Assessment
Program” (JCAP), visit M.H. and participate in parenting classes and individual therapy.
Charlotte did not make herself available for an assessment, visit M.H., request visitation or
seek treatment. Charles visited M.H. once during the first year of her life but did not make
himself available for a CHAS service assessment. Charles completed a JCAP assessment in
December 2007 but did not participate in outpatient services as recommended by the
assessment or cooperate with his treatment coach. He also did not visit M.H. regularly, attend
parenting classes, participate in individual therapy or undergo a second JCAP assessment as
recommended.
¶9 Jacob said LaVergne H., Charles’s mother, was granted monthly visitation in December
2007. LaVergne visited M.H. four times. Jacob said CHAS did not recommend M.H. be
placed in LaVergne’s custody because initially she refused custody. Since then LaVergne
wavered on the subject of placement.
¶ 10 Jacob further testified that when she learned of Charlotte’s membership in the Tribe, she
contacted Pamela Barningham, a case manager for the Tribe’s “Indian Child Welfare
Program.” Jacob told Barningham that Charlotte and Charles were not participating in the
recommended services for reunification with M.H. Barningham approved M.H.’s placement
in foster care in June 2008.
¶ 11 The State introduced into evidence an affidavit executed by Barningham on August 12,
2008. The court admitted the affidavit as expert testimony from an Indian witness under the
Act. Barningham said in the affidavit that the Tribe had been aware of the case since May
2008. Barningham also said that CHAS made active efforts to provide rehabilitative services
and programs designed to prevent the breakup of the Indian family and that the efforts were
unsuccessful because the parents did not take advantage of the services. Barningham opined
that continued custody of M.H. by Charlotte and Charles would likely result in serious
emotional or physical harm to M.H. Barningham averred that the Tribe wished for M.H. to
remain with her foster parents until reunification.
¶ 12 At the close of evidence, the court found Charlotte and Charles were unable to care for,
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protect, train or discipline M.H. The court determined that it was in M.H.’s best interest to
be adjudicated a ward of the court. The court changed the permanency goal from return home
within 12 months to return home pending status because Charlotte and Charles failed to
make substantial progress toward reunification. On May 22, 2009, the permanency goal was
changed to substitute care pending the court’s determination on termination of parental
rights.
¶ 13 On September 1, 2009, the State filed a supplemental petition for the appointment of a
guardian with the right to consent to adoption. The State alleged in the supplemental petition
that Charlotte and Charles were unfit parents under sections 1(D)(b), (c), (l), (m) and (n) of
the Adoption Act because they: (1) failed to maintain a reasonable degree of interest, concern
or responsibility for M.H.’s welfare (subsection (b)); (2) deserted M.H. (subsection (c)); (3)
failed to demonstrate a reasonable degree of interest, concern or responsibility for M.H.’s
welfare during the first 30 days of her life (subsection (l)); (4) failed to make reasonable
efforts to correct the conditions that were the basis for removal of M.H. and/or failed to make
reasonable progress toward the return of M.H. within 9 months after adjudication of neglect
(subsection (m)); and (5) evidenced an intent to forego parental rights (subsection (n)) (750
ILCS 50/1(D)(b), (D)(c), D)(l), (D)(m), (D)(n) (West 2008)).
¶ 14 Two days later, on September 3, 2009, the court received the Tribe’s petition to transfer
the proceeding to the tribal court in Odanah, Wisconsin, and dismiss the state court action.
The State filed a motion opposing the transfer. The court held a hearing on the Tribe’s
petition, commencing on September 5, 2009, and continuing to December 9, 2009. On
December 9, 2009, the tribal attorney asked for a continuance because inclement weather
prevented him from traveling to Chicago from Odanah. The hearing was concluded on May
5, 2010.
¶ 15 At the hearing, Denise McCutcheon-Cloud, a caseworker for the Indian Child Welfare
Program, testified she was assigned to M.H.’s case after Barningham’s termination in June
or July 2009. McCutcheon-Cloud disagreed with Barningham’s approval of M.H.’s
placement in foster care because the foster mother was not a relative or a certified Native
American foster parent. McCutcheon-Cloud said M.H. could have been placed with Agnes
McGue, M.H.’s maternal grandmother.
¶ 16 McCutcheon-Cloud testified that in October 2009, Charlotte and Charles accepted her
offer to move to the Tribe’s reservation and receive rehabilitative services. She said Charlotte
and Charles wanted the case to be transferred to the tribal court. McCutcheon-Cloud
explained that if the case was transferred to the tribal court, the Tribe would hear witnesses
in person or by phone and allow the parties to submit documents by mail or fax. She said the
Tribe would provide transportation and lodging for the witnesses. McCutcheon-Cloud
acknowledged that the Tribe did not raise concerns about M.H.’s placement until July 2009.
¶ 17 Jacob testified that two weeks after M.H. was born, Steele asked McGue if she was
willing to take custody of M.H. McGue declined and said that no maternal relative was
willing or able to take custody of M.H. LaVergne also declined custody of M.H. Jacob said
CHAS learned that M.H. was an Indian child under the Act on October 22, 2007, when
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Charlotte told them that she was Native American. Charlotte did not know the name of her
tribe. Jacob said CHAS tried to identify the tribe but was unable to locate Charlotte or
Charles because their whereabouts was unknown between October 22, 2007, to August 2008.
Jacob asked Leslie Powless, a DCFS liaison, for help finding them. With Powless’s help,
Jacob learned that Charlotte was a member of the Tribe. Jacob notified Barningham on June
9, 2008, that M.H. had been placed with a nonrelative in a foster home. Jacob said
Barningham told her that the Tribe did not want to get involved in the proceedings unless the
permanency goal changed from reunification.
¶ 18 Jacob testified that she would suffer hardship if the case was transferred to Odanah,
Wisconsin. She explained that it would be difficult for her to rearrange her caseload to
appear for judicial proceedings 400 miles away.
¶ 19 Powless testified that she assisted Jacob in determining M.H.’s status under the Act.
Powless said McGue told her Charlotte was a member of the Tribe. Powless verified M.H.’s
eligibility for membership in the Tribe with the Tribe’s enrollment department. She then
spoke with Barningham to determine to what extent the Tribe would be intervening in the
proceedings. Powless said it was regular practice to communicate with tribes through their
Indian child welfare caseworkers. On June 10, 2008, Barningham told Powless that the Tribe
would not intervene in the case. In March 2009, Powless notified Barningham that the foster
mother was interested in adopting M.H. Powless said Barningham told her that the Tribe
would not oppose adoption as long as the foster parents kept M.H. connected to her culture
and the Tribe.
¶ 20 Powless said it would be a hardship for her to travel to Odanah, Wisconsin, because of
her large caseload.
¶ 21 Lynsey Sloan, a CHAS caseworker assigned to M.H.’s case, testified she contacted
McGue on February 6, 2009. Sloan said McGue expressed interest in taking custody of M.H.
Sloan conducted an assessment of McGue’s home on March 31, 2009. After the assessment,
Sloan recommended that M.H. not be placed with McGue. In July 2009, McCutcheon-Cloud
asked CHAS to reevaluate McGue’s home for placement and investigate other possible
relative placements. The Tribe agreed to forward to CHAS the criteria to be used for the
assessment. Sloan said she never received the Tribe’s assessment criteria. In October 2009,
McCutcheon-Cloud instructed CHAS to use its own assessment factors. McGue’s home was
reassessed on February 27, 2010. CHAS again did not recommend M.H. be placed with
McGue and recommended M.H. remain with her foster parents.
¶ 22 Sloan testified she lives in Illinois and works in Chicago. She said she would experience
hardship if the case was transferred to Odanah, Wisconsin.
¶ 23 Lisa M., M.H.’s foster mother, testified that M.H. has lived with her since August 30,
2007, when she was 28 days old. Lisa said Charlotte did not visit M.H. in 2007 and 2008.
She said Charles visited M.H. once during that period. Lisa testified to the cultural activities
and events she participated in with M.H. to foster her Indian heritage. Lisa said that because
of her work schedule and the schedule of her children, it would be burdensome for her to
travel to Odanah.
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¶ 24 McGue testified on Charlotte’s behalf. McGue said she refused placement in August
2007 because of financial reasons. She said she did not recommend other relatives to CHAS
for placement. McGue acknowledged that she knew M.H. was in the custody of DCFS.
McGue did not seek custody of M.H. when she regained financial stability in April 2008.
¶ 25 The court took judicial notice of Barningham’s affidavit and the evidence adduced at the
August 14, 2008, disposition and permanency hearing. The court also admitted into evidence
the May 13, 2008, notice of the juvenile proceeding which was received by Bigboy, Sr.,
chairman of the Tribe. The court then denied the Tribe’s petition. In its May 18, 2010,
written order, the court noted that because the bulk of the evidence and the majority of the
witnesses were located in Illinois, transfer would constitute an undue hardship. The court
also found the petition was untimely because the proceeding was at an advanced stage, given
that Charlotte’s and Charles’s parental rights had been in jeopardy since March 7, 2008, the
date the State moved to amend its adjudication petition and seek the termination of parental
rights. The court noted that the State’s motion was granted more than 18 months before the
Tribe filed its petition to transfer. The court also noted that the conclusion of the hearing was
delayed to May 5, 2010, because the Tribe’s attorney was unable to appear in court on two
occasions.
¶ 26 The case proceeded to an evidentiary hearing on the State’s supplemental petition for
termination of parental rights and the appointment of a guardian with the right to consent to
adoption on August 17, 2010. The hearing was separated into a fitness and best interest
hearing.
¶ 27 At the fitness hearing, Shira Belkov, a CHAS caseworker, testified she was assigned to
M.H.’s case from August 2007 to April 2008. Belkov said that she was unable to locate
Charlotte and Charles after M.H. was born. The parents were found in October 2007, living
in Lombard, Illinois. On October 22, 2007, Belkov visited the parents’ home and advised
them of their right to visitation with M.H. and that they needed to be assessed for services.
Belkov also told them when the next court date was and offered them bus passes for
transportation. Belkov said Charlotte appeared to be under the influence of drugs during the
visit.
¶ 28 Belkov testified that over the course of the next two months neither Charlotte nor Charles
visited M.H. or sent her letters or gifts. Charles completed a JCAP assessment on December
20, 2007, and expressed an interest in participating in reunification services. Charles did not
receive substance abuse treatment. On February 22, 2008, Charlotte called Belkov and told
her she was homeless, using heroin and needed substance abuse treatment. Belkov tried to
schedule visitation for Charlotte and M.H., encouraged Charlotte to undergo a JCAP
assessment and offered her bus passes to access those services. Charlotte did not visit M.H.,
pick up the bus passes from Belkov or take advantage of the CHAS services. Charlotte did
not complete a JCAP assessment or substance abuse treatment.
¶ 29 Jacob testified that she managed M.H.’s case from April 2008 to September 2008. She
said she performed a diligent search for the parents on April 7, 2008, but was unable to locate
them. Jacob said she first met Charles on May 30, 2008, when he accompanied LaVergne on
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her visit with M.H. During the visit, Jacob advised Charles of the importance of participating
in rehabilitative services, visiting M.H. and being assessed by CHAS. Charles agreed to
schedule a JCAP assessment but never did. Jacob said she maintained contact with Charles
through LaVergne.
¶ 30 Jacob also testified that neither Charlotte nor Charles sent cards, gifts or letters to M.H.
from April 2008 to September 2008. Jacob said that Charlotte’s whereabouts was unknown
during this period. Jacob acknowledged that Charlotte appeared in court on July 10, 2008.
On that date, Jacob asked Charlotte and Charles to participate in a JCAP assessment after the
hearing but they refused. On August 13, 2008, Charles called Jacob and expressed an interest
in reunification services. He also acknowledged receiving Jacob’s letter, informing him of
the upcoming court date and advising him of his assessment needs. Charles agreed to contact
CHAS but failed to do so.
¶ 31 Sloan testified that she was assigned to M.H.’s case in September 2008. Sloan said that
she tried on multiple occasions between September 2008 to July 2009 to locate Charlotte and
Charles but was unsuccessful. Sloan said she asked LaVergne and the parents’ attorneys for
the parents’ whereabouts and sent letters to seven different addresses for Charles and five
different addresses for Charlotte. Sloan did not have contact with the parents from September
2008 to July 2009 because their whereabouts was unknown. On July 10, 2009, Charlotte
contacted Sloan and Sloan advised her of the proceedings. At the next court date, Charlotte
expressed interest in visiting M.H. Charlotte did not schedule a visit.
¶ 32 In November 2009, Sloan met with Charlotte and Charles. During the meeting, Sloan
advised the parents of their visitation rights. Charlotte visited M.H. in November 2009.
Charlotte and Charles visited M.H. in February 2010. After the visit, Sloan reviewed the
service plan with the parents and explained that CHAS was no longer financially responsible
for providing services because the permanency goal had changed from reunification to
termination of parental rights. Charlotte told Sloan that she and Charles had moved to
Ashland, Wisconsin in October 2009 to be near the Tribe. Sloan said that neither Charlotte
nor Charles was able to provide proof of completion of substance abuse treatment, parenting
education or therapy.
¶ 33 Sloan further testified that she was unable to refer the parents to treatment because their
whereabouts was unknown during the pendency of the case and they failed to make
themselves available for an assessment. Sloan said she asked the parents and the Tribe to
provide documentation of the rehabilitative services rendered. In June 2010, the Tribe
provided Sloan with a negative drug test for the parents and a statement from Memorial
Medical Center, saying the parents had undergone a three-day drug detoxification.
¶ 34 CHAS rated Charlotte unsatisfactory in the client service plan from August 2009 to
February 2010 because she only visited M.H. once. Charles was also rated unsatisfactory for
the same period because he failed to provide CHAS with a proof of completion of
rehabilitative services.
¶ 35 After reviewing the testimony presented, the court found the State proved the parents
unfit beyond a reasonable doubt by: failing to maintain a reasonable degree of interest,
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concern and responsibility for M.H.; failing to make reasonable efforts for reunification
during the nine months following adjudication of neglect; and evidencing an intent to forego
their parental rights.
¶ 36 At the best interest hearing, the court took notice of the evidence adduced at the fitness
hearing. The State then presented the testimony of Charles and Charlotte. Charles testified
that he was unemployed and lived in subsidized housing in Ashland, Wisconsin. He said he
completed a three-day heroin detoxification program in October 2009.
¶ 37 Charlotte testified that she used heroin and methadone for 15 years. She said she moved
to Wisconsin with Charles in October 2009. At that time, she was using heroin and
methadone daily. Charlotte completed a drug detoxification program on December 7, 2009.
On the day of her testimony, Charlotte was arrested on an open warrant.
¶ 38 Doctor Adelle Sanders testified as an Indian child welfare cultural expert. Sanders said
she spent more than 33 hours reviewing CHAS’s and the Tribe’s case files and meeting with
Charlotte, McCutcheon-Cloud, Sloan, Powless and M.H.’s foster mother. Sanders also
observed M.H. in her foster home. In a report filed with the court and admitted into evidence,
Sanders concluded that CHAS made active efforts under the Act to provide services and
rehabilitative programs designed to prevent the breakup of the Indian family. Sanders noted
that CHAS made a number of inquiries as to the parents’ whereabouts, conducted diligent
relative searches, maintained ongoing contact with the Tribe through Barningham and
received the Tribe’s approval for the foster placement. Charlotte and Charles did not
complete the services or make themselves available for a service assessment. Sanders
explained that “it is very difficult to provide services to unwilling participants.”
¶ 39 Dr. Sanders opined that continued custody of M.H. by the parents would likely result in
serious emotional or physical harm to M.H. because Charlotte and Charles had not
established a history of being able to change their behavior. Sanders said Charlotte and
Charles needed to engage in counseling, substance abuse treatment, parenting education and
random drug tests for at least six months before an opposite conclusion could be reached.
Sanders recommended counseling, drug treatment, parental education and a medical
assessment for both Charlotte and Charles. She also recommended that Charlotte receive
extensive trauma counseling and monthly drug tests.
¶ 40 Dr. Sanders also opined that M.H.’s removal from her foster home after three years of
bonding with her foster family would retraumatize her and possibly have long-term effects.
Sanders based her opinion on research on attachment and observations of M.H. with her
foster family. Sanders saw a seamless, loving mother-daughter relationship between Lisa M.
and M.H. M.H. referred to Lisa M. as her mother and interacted lovingly with her foster
sisters.
¶ 41 Dr. Sanders explained that the Act was not intended to allow a tribe to wait to intervene
in a custody proceeding until an Indian child has become attached to a non-Native foster
family. She said that M.H. did not need to be raised in a Native American home to maintain
her cultural identity.
¶ 42 Margaret Waugh, M.H.’s therapist, testified as an expert in the field of clinical social
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work. Waugh said M.H. started therapy around the time Charlotte and Charles began visiting
her. Waugh said around that time, M.H. experienced nightmares and disruptions in her eating
habits. Waugh said M.H. was most comfortable around her foster mother, whom she called
“mom” and looked to for care. Waugh opined that M.H. would be negatively impacted if she
were removed from her foster mother, who was her primary attachment.
¶ 43 Powless testified that she made concerted efforts to locate M.H.’s extended family but
was unsuccessful. Powless said she asked McGue and LaVergne for the names and contact
information of relatives who might be interested in custody of M.H. McGue and LaVergne
did not provide Powless with this information. Powless also asked the Tribe to identify
members of M.H.’s extended family who were living on the reservation. Powless said she
spoke to seven people from the Tribe and asked them if M.H. had family members residing
on the reservation who were interested in custody of M.H. The Tribe said M.H. had no
family members residing on the reservation.
¶ 44 Powless, a Menomonee Indian, further testified that she believed Lisa M. made efforts
to expose M.H. to her Indian ancestry. Powless said Lisa visited the Tribe’s reservation and
the “American Indian Center Powwow” with M.H. Lisa and M.H. also attended the
American Indian Center Thanksgiving feast. Powless said she provided Lisa with a list of
events from the American Indian Center and a directory of statewide Native American
programs, activities and schools. Powless and Lisa frequently exchange information about
upcoming Indian cultural programs. Powless said the Tribe has yet to comply with her
request for tribal information to share with Lisa.
¶ 45 Lisa testified that when she took custody of M.H. on August 30, 2007, M.H. was
inconsolable and suffering from symptoms of drug withdrawal. Lisa said M.H. is now a
healthy, outgoing three-year-old girl. Lisa said that M.H. has bonded with Lisa’s 16- and 11-
year-old daughters and considers them to be her sisters. M.H. has also bonded with Lisa’s
large extended family. Lisa said she wanted to adopt M.H. and would continue to expose her
to her culture, Tribe and extended family.
¶ 46 Sloan testified that when she received the case in September 2008, Charlotte’s and
Charles’s whereabouts was unknown. Sloan performed diligent searches for the parents every
few months. She sent Charlotte two letters, left voicemail messages and performed an in-
person search in July 2009. Sloan first established contact with Charlotte and Charles in July
2009. Sloan advised the parents of the proceedings and the permanency goal change from
reunification to termination of parental rights. Sloan said she tried to engage the parents in
rehabilitative services despite the permanency goal change. She said she did not have an
opportunity to refer the parents to community-based service providers in Illinois because they
left the state shortly after she made contact with them.
¶ 47 Sloan further testified that the parents did not begin visiting M.H. until November 2009.
She said that during the visits, M.H. was quiet and reserved. M.H. referred to Charles as
“daddy” and did not address Charlotte. Sloan said that at the time of her testimony, she had
visited M.H. in her foster home 26 times, during which M.H. interacted positively with her
foster family and referred to Lisa as “mommy.” Sloan said it was the recommendation of
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CHAS that parental rights be terminated and the permanency goal be changed to adoption.
¶ 48 McGue testified on Charlotte’s behalf. McGue related to the court the history of
Charlotte’s substance abuse and her efforts to get treatment. McGue said she had seen a
“dramatic change” in Charlotte and that Charlotte had resolved her drug problem. McGue
had visited M.H. regularly since August 2009 and wished to stay in contact with M.H. if
M.H. is adopted.
¶ 49 Doctor Dorene Wiese also testified on Charlotte’s behalf. The court precluded Wiese
from offering an opinion on whether CHAS made active efforts to prevent the breakup of the
Indian family and whether custody by the parents would cause M.H. serious physical or
emotional harm. Wiese opined that M.H. should be removed from her foster home. She
based her opinion on conversations with Charlotte, Charles and McCutcheon-Cloud.
¶ 50 Charles testified on his own behalf. He said he had visited M.H. regularly since February
2010. Charles said he and Charlotte had been sober for 18 months and had custody of their
twin boys, who were born after M.H.
¶ 51 Doctor Alton Smart testified as an expert in Indian child welfare social work on behalf
of the Tribe. Smart opined that it would not cause M.H. “immediate harm” to be removed
from her foster home and placed with Charlotte and Charles. Smart based his opinion in part
on conversations with McCutcheon-Cloud and her representation that the parents had been
sober since May 2009. Smart acknowledged that he did not visit the foster home or speak to
CHAS caseworkers about M.H.’s case. He also acknowledged that he did not know the
parents were admitted into a hospital for heroin detoxification in October 2009 or that
Charlotte relapsed in December 2009 and was again admitted into the hospital.
¶ 52 On December 20, 2010, the court issued its written order, finding “beyond a reasonable
doubt” that it was in M.H.’s best interests to terminate parental rights and appoint a guardian
with the right to consent to her adoption. The court also found by “clear and convincing”
evidence that CHAS made active efforts to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family as required by the Act. On the
same date, the court entered a permanency order for M.H., showing that parental rights were
terminated and that it was in M.H.’s best interest to be adopted by her foster mother.
¶ 53 On appeal, we first consider the Tribe’s argument that the court erred in denying the
Tribe’s petition to transfer the proceeding to the tribal court. The Tribe claims the court’s
findings that transfer would cause undue hardship to the parties and witnesses and that the
proceeding was at an advanced stage were not supported by the record.
¶ 54 The Act determines jurisdiction over Indian child custody proceedings. In re C.N., 196
Ill. 2d 181, 203, 752 N.E.2d 1030 (2001). Under section 1911(b) of the Act, state courts and
tribal courts have concurrent jurisdiction over proceedings for the placement or the
termination of parental rights of an Indian child not domiciled or residing within the
reservation of the child’s tribe. In re C.N., 196 Ill. 2d at 203-04; 25 U.S.C. § 1911(b) (1994).
In such cases, when the tribe or a parent petitions the court for transfer, the state court must
transfer the proceeding to the tribal court absent “good cause.” In re C.N., 196 Ill. 2d at 204.
¶ 55 What constitutes good cause not to transfer jurisdiction is set forth by the Department of
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the Interior, Bureau of Indian Affairs (BIA). In re Armell, 194 Ill. App. 3d 31, 38, 550 N.E.2d
1060 (1990). The BIA has published guidelines to aid state courts in the appropriate
application of the Act. Recommended Guidelines for State Courts: Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979) (Guidelines); In re C.N., 196 Ill. 2d at
204. The Guidelines provide that good cause not to transfer exists when the child’s tribe does
not have a tribal court or when any of the following circumstances exists:
“(i) The proceeding was at an advanced stage when the petition to transfer was
received and the petitioner did not file the petition promptly after receiving notice of
the hearing.
***
(iii) The evidence necessary to decide the case could not be adequately presented
in the tribal court without undue hardship to the parties or the witnesses.” 44 Fed.
Reg. 67,584, 67,591 (Nov. 26, 1979).
¶ 56 We consider the undue hardship circumstance first. The tribal court is located in Odanah,
Wisconsin, more than 400 miles from Chicago, where M.H. resides. Traveling this distance
for the proceeding would be unduly burdensome on M.H., Lisa, Jacob, Sloan and the other
potential witnesses involved in M.H.’s case, the majority of whom reside in Chicago. See In
re Adoption of S.S., 167 Ill. 2d 250, 264, 657 N.E.2d 935 (1995). Although Charlotte and
Charles reside on the reservation, they spent a majority of their life in Chicago and did not
move to the reservation until after the Tribe filed its petition to transfer. Because the bulk of
the evidence and the majority of the witnesses necessary to the proceeding are located in
Illinois, a transfer would constitute an undue hardship. Adoption of S.S., 167 Ill. 2d at 264.
We cannot say that the circuit court erred in denying the Tribe’s petition on this ground.
¶ 57 We next consider whether the proceeding was at an “advanced stage.” Neither the parties,
the Guidelines nor the case law defines when a proceeding is at an “advanced stage.” The
Tribe argues that the proceeding was not at an advanced stage because it filed its petition to
transfer “before the State filed its termination petition and promptly after the State changed
the [permanency] goal” from reunification to termination. The Tribe claims that the State’s
filing on September 1, 2009, of the supplemental petition to terminate parental rights
initiated a new proceeding under the Act, independent of the proceeding placing M.H. in
foster care. The Tribe maintains that because its petition to transfer was filed just days after
the State’s supplemental petition, it was timely. In support of this argument, the Tribe relies
on In re A.B., 663 N.W.2d 625 (N.D. 2003).
¶ 58 We first note that we are unpersuaded by In re A.B. because this court is not bound by
decisions from other jurisdictions. See Klitzka v. Hellios, 348 Ill. App. 3d 594, 599, 810
N.E.2d 252 (2004). In Illinois, “the filing of a petition to terminate parental rights does not
initiate an entirely new proceeding within an existing case number.” In re Abner P., 347 Ill.
App. 3d 903, 908, 807 N.E.2d 1145 (2004). The Act also does not make this distinction.
Section 1903 defines a “child custody proceeding” to include:
“(i) ‘foster care placement’ which shall mean any action removing an Indian child
from its parent or Indian custodian for temporary placement in a foster home or
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institution or the home of a guardian or conservator where the parent or Indian
custodian cannot have the child returned upon demand, but where parental rights
have not been terminated; [and]
(ii) ‘termination of parental rights’ which shall mean any action resulting in the
termination of the parent-child relationship[.]” 25 U.S.C. §§ 1903(1)(i), (1)(ii)
(1994).
¶ 59 Under the plain language of the Act, M.H.’s case commenced on August 30, 2007, the
date she was placed in foster care. The State filed a petition for adjudication of wardship on
August 29, 2007. The State filed a formal motion to amend the petition to seek termination
of parental rights on March 7, 2008. The court granted the motion and set a trial date of July
10, 2008, for adjudication and termination of parental rights. In the meantime, on May 19,
2008, the Tribe was notified of the proceedings. The notice admonished the Tribe that “[t]he
court hearing may result in the biological Indian parent or Custodian temporarily or
permanently losing custody of this minor.” Despite this, the Tribe did not file its motion to
transfer until September 3, 2009,–more than 2 years after M.H. was placed in foster care and
more than 15 months after the Tribe received notice of the proceedings. During this time, the
court held adjudication, disposition and permanency hearings. The court also held a status
hearing on May 22, 2009, after which it changed the permanency goal to substitute care
pending determination on termination of parental rights because the parents failed to make
progress toward reunification. Given these circumstances, the Tribe’s petition was not timely.
Under section 1911(b) of the Act, good cause existed to allow the circuit court of Cook
County to retain jurisdiction over M.H.’s case. 25 U.S.C. § 1911(b) (1994). The court
properly denied the Tribe’s petition to transfer.
¶ 60 The Tribe also contends that the court committed reversible error by failing to place M.H.
in an Act-compliant home. The Tribe claims the court should have held an evidentiary
hearing to determine whether good cause existed to deviate from the Act placement
requirements.
¶ 61 As pointed out by the State, the Tribe has forfeited review of this issue by not raising it
in the court below. See In re Marriage of Holthaus, 387 Ill. App. 3d 367, 377, 899 N.E.2d
355 (2008) (issues not raised in the trial court are forfeited and cannot be argued for the first
time on appeal).
¶ 62 Forfeiture aside, M.H.’s placement was in compliance with the Act. Under section
1915(b)(ii), in the absence of good cause to the contrary, preference of placement shall be
given to a placement with “a foster home licensed, approved, or specified by the Indian
child’s tribe.” 25 U.S.C. § 1915(b)(ii) (1994). The record shows that Barningham, a
caseworker for the Tribe’s Indian child welfare program, executed an affidavit approving of
M.H.’s placement in a nonrelative, non-Native foster home. The court admitted the affidavit
into evidence as expert testimony from an Indian witness under the Act.
¶ 63 The Tribe, Charlotte and Charles next contend that the court erred in terminating parental
rights. They claim that the evidence was insufficient to prove that CHAS made active efforts
to provide remedial services and rehabilitative programs designed to prevent the breakup of
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the Indian family.
¶ 64 Under section 1912(d) of the Act, a party “seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State law shall satisfy the court that
active efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.” 25 U.S.C. § 1912(d) (1994). The State has the burden to show compliance with
the active-efforts requirement by a preponderance of the evidence. In re Cari B., 327 Ill. App.
3d 743, 751, 763 N.E.2d 917 (2002). We review de novo whether the court properly applied
the Act to the facts. In re Cari B., 327 Ill. App. 3d at 749.
¶ 65 Here, the record supports the court’s determination that the State met its burden of
establishing active efforts by a preponderance of the evidence. CHAS offered a number of
services to both parents, including service assessments, drug treatment, psychiatric
evaluations, individual therapy, random urinalysis, parenting classes and visitation with M.H.
See In re D.D., Jr., 385 Ill. App. 3d 1053, 1061-62, 897 N.E.2d 917 (2008). CHAS also tried
to provide the parents with bus passes to attend scheduled court dates, kept in regular contact
with M.H.’s grandmothers and attempted to contact the parents on numerous occasions.
CHAS’s efforts were frustrated because the parents’ whereabouts was unknown during most
of the case. When Charlotte and Charles were finally located, they did not make themselves
available for an assessment and failed to take advantage of the services offered by CHAS.
Although Charles completed a service assessment, he failed to participate in outpatient
services as recommended by the assessment or cooperate with his treatment coach. He also
did not attend parenting classes, participate in individual therapy or undergo a second service
assessment as recommended.
¶ 66 The Tribe, Charlotte and Charles also contend that the court erred in terminating parental
rights based on a finding that the evidence showed beyond a reasonable doubt that custody
of M.H. by Charlotte and Charles is likely to result in serious emotional damage to M.H. They
claim that the court improperly considered the threat of emotional harm to M.H. as a factor
in reaching its decision because such considerations are not relevant to the court’s obligation
to place an Indian child consistent with federal law.
¶ 67 Among other requirements, the Act requires the court to find that reunification presents
a risk of serious emotional or physical harm to the child. 25 U.S.C. § 1912 (1994). Here, the
court did just that. Dr. Sanders, an Indian child welfare cultural expert, testified that custody
of M.H. by Charlotte and Charles would likely result in serious emotional or physical harm
to M.H. because they had not established a history of being able to change their behavior. In
reaching this conclusion, Sanders noted the parents’ continued drug use and their failure to
take advantage of the services offered by CHAS. Sanders also filed a written report with the
court, detailing her findings. The court did not err in considering the risk of emotional or
physical harm reunification would present to M.H. and basing its decision to terminate
parental rights in part on this factor.
¶ 68 We affirm the judgment of the circuit court of Cook County.
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¶ 69 Affirmed.
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