In re C.D. ( 2023 )

NOTICE 2023 IL App (4th) 221085-U FILED
This Order was filed under July 24, 2023
Supreme Court Rule 23 and is NO. 4-22-1085 Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed Court, IL
under Rule 23(e)(1).
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: C.D., a Minor; ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Sangamon County
Petitioner-Appellee, ) No. 21JA129
v. )
Kendra B., ) Honorable
Respondent-Appellant). ) Dwayne A. Gab,
) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court.
Presiding Justice DeArmond and Justice Doherty concurred in the judgment.
ORDER
¶1 Held: The trial court’s adjudicatory and dispositional orders are affirmed.
¶2 On October 20, 2022, the trial court found C.D., born October 23, 2021, was a
neglected minor pursuant to the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West
2020)) because his environment was injurious to his welfare. Specifically, the court found the
environment was injurious to C.D.’s welfare because of respondent Kendra B.’s mental instability
and domestic violence issues between respondent and C.D.’s father, Justin D. On November 16,
2022, the court found it to be in C.D.’s best interests to be made a ward of the court. Respondent
appeals, raising a wide range of issues. We affirm.
¶3 I. BACKGROUND
¶4 On October 26, 2021, the State filed a petition alleging C.D. was a neglected,
abused, or dependent minor pursuant to section 2-3(1), (2) or 2-4 of the Act (705 ILCS 405/2-
3(1)(2), 2-4 (West 2020)). That same day, the trial court entered an order indicating the shelter
care hearing had been called and then continued on the “parents’ motion” until October 28, 2021,
to allow C.D.’s parents time to speak with their court appointed attorneys. The court’s order also
indicated both parents received notice and were present. Further, the order stated C.D. had been
brought before a judicial officer within the time required by section 2-9 of the Act (705 ILCS
405/2-9 (2020)) and remained in protective custody.
¶5 In a written order dated October 28, 2021, which was entered after the shelter care
hearing, the trial court found probable cause that C.D. was neglected and that it was a matter of
immediate and urgent necessity for C.D.’s protection that he be placed in shelter care. The order
indicated respondent claimed she had Native American ancestry and the State would contact the
department of “Native American Affairs.” The next hearing was scheduled for December 22, 2021.
¶6 On December 22, 2021, the trial court entered an order indicating the case had come
before the court for a pre-trial hearing, the investigation had been disclosed, and the case was being
continued until January 26, 2022. The order does not indicate that anyone objected to the
continuance. On January 26, 2022, the court entered a written order finding good cause to set the
adjudicatory hearing beyond the 90-day limit on March 10, 2022, because Justin D.’s attorney was
not unavailable. The order indicated the court was told no one objected to the continuance. The
order also indicated respondent stated she possibly had Cherokee ancestry.
¶7 On March 10, 2022, the trial court continued the case again until April 21, 2022,
on the State’s motion because its witnesses were not available. The court’s written order indicates
no one objected to the State’s motion.
¶8 On April 22, 2022, respondent’s attorney made a motion to continue the
adjudicatory hearing because respondent’s Native American ancestry had never been addressed.
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The guardian ad litem and the State objected to continuing the hearing. The State asked the court
to question respondent about her ancestry claims. The State indicated the assigned case worker
had made inquiries about tribal ties and expected a response by July.
¶9 The trial court then questioned respondent regarding C.D.’s ancestry. Respondent
claimed C.D. was eligible for membership in the Cherokee Nation because of respondent’s
grandparents. Respondent conceded neither she nor her parents were members of any Native
American tribe. According to respondent, she based her claim this case belonged in a tribal court
on her ancestry, her molecular DNA, and other things she did not name. The State asked
respondent which immediate grandparent she spoke to about his or her membership in the
Cherokee Nation. Respondent answered she spoke to all of them before they passed away, called
the State’s line of questioning crazy, and told the State to prove her claim wrong. When respondent
was asked what specific names she had seen “on the rolls” for the Cherokee Nation, she avoided
answering the question and said she was not going to continue answering these questions. When
asked if she had turned over to the Department of Children and Family Services (DCFS) any of
the ancestry records she claimed to have in her possession, respondent answered, “I have not
spoken to anybody from [DCFS] since they washed their hands, which they always do the first
day, and then pass it off to people who have no idea what they’re doing.” Justin D. testified he was
not a member of a Native American tribe.
¶ 10 The State argued C.D. could not be considered an “Indian child” under the
definition provided by the Indian Child Welfare Act (ICWA) (25 U.S.C. §§ 1901 to 1963 (2018))
because neither of C.D.’s parents were members of a Native American tribe. Based on the
representations respondent made under oath, the trial court granted respondent’s motion to
continue the case until July 14, 2022, over the objection of the State and C.D.’s guardian ad litem.
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The court’s written order indicates respondent testified she is not a member of a Native American
tribe but is eligible for membership. The court noted DCFS had sent letters to the Federal Bureau
of Indian Affairs and expected information by July.
¶ 11 On July 13, 2022, respondent’s court-appointed counsel, Salena R. Young, filed a
motion to withdraw, asserting the attorney-client relationship had deteriorated to a point where her
representation of respondent was not possible. At a hearing on July 14, 2022, the trial court allowed
attorney Young’s motion with respondent’s agreement. Respondent requested a new attorney, and
the court appointed attorney Brendan Harris and continued the case for 21 days on respondent’s
motion without objection. The court scheduled the adjudicatory hearing for August 18, 2022. With
regard to the applicability of ICWA, the State indicated a search for tribal membership had been
done using the names of C.D.’s parents and none was found. The State noted that for a child to
have tribal affiliation, one of the parents would have to have tribal affiliation. Then, respondent
told the court the tribe her family was associated with is now “considered extinct” and claimed to
be in the process of filing for recognition. However, the State asserted the ICWA only applies to
federally recognized tribes.
¶ 12 The adjudicatory hearing began on August 18, 2022, with testimony from several
officers from the Springfield Police Department. Officer Jeremy Roberts testified he responded to
a disturbance call at respondent’s home on March 9, 2021, indicating a white male was chasing a
female with an axe or a hammer. Respondent, who had a small laceration to one of her fingers,
was not cooperative. Justin D. claimed respondent hit him, causing the injuries to his face. Both
respondent and Justin D. were arrested. Officer Roberts testified respondent and Justin D. had a
history of domestic violence together.
¶ 13 Officers Rhet Spengel and Steven Baker testified they were each dispatched to
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respondent’s address on January 30, 2021, and February 19, 2021, respectively, in response to
reported batteries. Respondent claimed Justin D., who was not present on either occasion, hit her
with his fists. However, respondent had no observable injuries either day. Officer Spengel testified
an infant and a 13-year-old child were present when he was there in January. Respondent said the
infant was her child but refused to provide the child’s name. Upon Officer Spengel’s inquiry,
respondent denied living with or having a romantic relationship with Justin D. However,
respondent told Officer Baker that Justin D. had been her roommate for about five months and
they had a history of violence. Officer Baker did not recall seeing any children with respondent in
February.
¶ 14 Officer Tim Day testified he was dispatched to respondent’s address for a reported
battery on February 22, 2021. Initially, respondent talked about drugs being sold in the
neighborhood and several other topics Officer Day characterized as “odd” and “out of place.”
When he asked why she called 911, respondent indicated Justin D., who again was not present,
had punched her in the face approximately two hours earlier. Officer Day observed no injuries
consistent with a battery. Respondent said Justin D. had been her roommate for about five months
and reported five prior domestic violence incidents. Officer Day indicated respondent jumped from
topic to topic and was difficult to understand. Additionally, Officer Day testified he had many
contacts with respondent and had witnessed verbal altercations between respondent and Justin D.
According to Officer Day, he was concerned respondent might have mental health issues based on
statements she made. When he was present, he did not see any children at respondent’s home.
¶ 15 Officer Monica Dorsey testified she was dispatched to a small apartment above a
bar for a reported battery on October 11, 2021. Before entering the apartment, Officer Dorsey
heard a verbal disturbance occurring in the apartment. Once she was inside, both respondent and
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Justin D. said they were only having a verbal argument. However, respondent later claimed Justin
D. grabbed her face. Officer Dorsey did not observe any injury. Both respondent and Justin D.
claimed to live at the apartment, and both refused to leave. Respondent told Officer Dorsey she
was pregnant, had been in a dating relationship with Justin D. for approximately two years, and
had a history of domestic violence with Justin D. Neither party was arrested or forced to leave the
residence. Later, during the same shift, Officer Dorsey was again dispatched to the apartment,
where respondent indicated Justin D. had punched her in the face approximately six times. Officer
Dorsey again saw no injuries to respondent’s face and Justin D. denied any physical altercation
occurred. Officer Dorsey testified no children were present.
¶ 16 Apple Glover, a DCFS child protection specialist, testified DCFS received a report
regarding respondent’s mental health on October 24, 2021, which was the day after C.D.’s birth.
Glover went to the hospital and met with respondent. Respondent said she had completed a mental
health evaluation at Memorial Behavioral Health Center. Glover indicated this was a self-reporting
evaluation where the individual conducting the assessment asks questions and assesses the subject
based on the answers given. As a result, the subject can simply state she does not have any issues.
Glover indicated she was concerned with respondent’s mental health because of the way she spoke.
Respondent denied having any mental health issues but told Glover she had three other children
who were not in her care. As for C.D.’s father, respondent acknowledged she and Justin D. had a
history of domestic violence and had married in July 2021.
¶ 17 Because the investigation had just started and C.D. was a newborn, Glover had to
make a safety determination for C.D. without the ability to verify certain information because it
was a Sunday. On cross-examination, Glover indicated the hospital had initially discussed letting
C.D. leave the hospital with respondent and Justin D. However, Glover directed the hospital not
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to release the baby.
¶ 18 The adjudicatory hearing was continued until September 29, 2022, without any
objection from the parties. Respondent requested an earlier date, but the trial court did not have
dates available. On September 29, 2022, respondent and Justin D. moved to dismiss the petition
pursuant to section 2-14 of the Act (705 ILCS 405/2-14 (West 2020)) because the adjudicatory
hearing was not timely held. The court denied the motion, stating the State’s only motion to
continue was granted without objection and with good cause shown on March 22, 2022. The court
attributed the other continuances to either agreement or the parents.
¶ 19 Joseph Dabrowski testified he worked on this case as a child protective investigator
beginning on October 25, 2021. He determined respondent and Justin D. were C.D.’s parents and
respondent had a prior DCFS investigation dating back to January 2021, which started because of
domestic violence in the home. Respondent’s mental health was also at issue. Respondent’s other
three children were removed from her care and placed with their fathers. Dabrowski noted he was
the investigator on the prior case. In that case, respondent made irrational statements that
individuals were breaking into her house, sharing a key to her house, the State was drugging her,
and her daughter was a witch and making pornographic movies. Respondent also accused Justin
D. of human trafficking, including trafficking respondent’s daughter. In the prior case, Dabrowski
had offered respondent an intact case, but she wanted nothing to do with DCFS and denied both a
request for a toxicology screen and a mental health assessment from a licensed psychologist or
psychiatrist. When the fathers of the three children took custody of the children, Dabrowski’s
involvement in the prior case ended. Respondent was not allowed unsupervised contact with her
children while the case was active.
¶ 20 Turning to the October 2021 investigation at issue here, Dabrowski testified
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DCFS’s main concerns were respondent’s mental health and the domestic violence that had
occurred after January 2021. After meeting with respondent and Justin D. on October 25, 2021, at
their home, Dabrowski determined respondent had not completed an acceptable mental health
assessment. He told respondent she was going to be required to have a psychological evaluation.
Because respondent had not corrected the issues from the prior case and refused to work with
DCFS, Dabrowski did not institute a safety plan.
¶ 21 Jamie Bramblett, a public service administrator at DCFS, testified she was
Dabrowski’s supervisor in October 2021 and was also involved in respondent’s prior case. In
January 2021, she determined a safety plan needed to be implemented because respondent
presented as erratic and irrational. Bramblett was concerned about respondent’s mental health
because she made statements that small holes in her wall were being used by Justin D. and others
to control her daughter’s mind and engage her in child trafficking, Justin D. was part of a group
called “Shade Balls” that was trafficking children, and she was working with the Federal Bureau
of Investigation (FBI). Although respondent believed Justin D. was dangerous, she indicated a
need to keep him close to her so she could have access to evidence of trafficking on his phone.
¶ 22 According to Bramblett, in October 2021, C.D. was at risk of harm and DCFS
needed to determine if respondent’s mental health and domestic violence issues had been
corrected. They determined these issues had not been resolved. Despite Justin D.’s alleged
violence toward respondent, they continued in their relationship and the domestic violence issues
continued as well between January and October 2021. Further, respondent had not obtained an
appropriate mental health evaluation. Bramblett testified she decided to take protective custody of
C.D.
¶ 23 The adjudicatory hearing was continued again to October 20, 2022. Respondent
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and Justin D. objected to the continuance. On September 30, 2022, respondent filed a pro se motion
to dismiss the State’s adjudicatory petition even though she was represented by attorney Harris at
the time. Respondent’s motion again challenged the timing of the adjudicatory hearing. Then, on
October 3, 2022, respondent filed a pro se motion to vacate C.D.’s temporary custody order
pursuant to section 2-10 of the Act (705 ILCS 405/2-10 (West 2020)) because C.D. was not
brought before a judicial officer within 48 hours. According to respondent, C.D. was taken into
protective custody on October 24, 2021, at 4:00 p.m., the matter was brought before a trial judge
on October 26, 2021, and it was continued to October 28, 2021.
¶ 24 On October 20, 2022, at the continuation of the adjudicatory hearing, at
respondent’s request, attorney Harris indicated he had filed an agreed order to withdraw as
respondent’s counsel. Harris advised their communication had become so poor he did not believe
he could effectively represent her interests. Respondent told the court she would prefer not to have
anyone represent her. As a result, the court allowed attorney Harris’s motion to withdraw and
permitted respondent to represent herself. The court then addressed the pro se motions filed by
respondent, which it denied. As to the motion to vacate C.D.’s temporary custody order, the court
noted the minor did not have to be physically brought to court. Further, the court asserted the
shelter care hearing was timely held. After a break in the proceeding, respondent failed to return
to the courtroom when the adjudicatory hearing continued.
¶ 25 Justin D. testified C.D. was his only child. He denied ever being arrested for
domestic violence or battery, denied physically harming respondent, but admitted they argued. He
denied being told he could take C.D. home with him if he was not going to be with respondent. On
cross-examination, Justin D. said he and respondent were living together when C.D. was born.
After C.D.’s birth, he moved to his current address on Fourth Street in Springfield where
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respondent was currently also residing.
¶ 26 The trial court found the State proved by a preponderance of the evidence that C.D.
was a neglected minor and his environment was injurious to his welfare. In the court’s written
adjudicatory order, it found C.D.’s environment was injurious to his welfare as evidenced by
respondent’s instability and domestic violence between her and Justin D. The order indicated
C.D.’s parents were admonished they were required to cooperate with DCFS, comply with service
plans, and correct conditions requiring C.D. to be in care. Otherwise, they risked termination of
their parental rights.
¶ 27 On November 16, 2022, the trial court entered a dispositional order, finding it was
in C.D.’s best interest to be made a ward of the court, and placed him in the custody and
guardianship of the guardianship administrator for DCFS.
¶ 28 On December 8, 2022, respondent filed this appeal.
¶ 29 II. ANALYSIS
¶ 30 A. Illinois Supreme Court Rule 311(a) (eff. July 1, 2018)
¶ 31 Pursuant to Illinois Supreme Court Rule 311(a) (eff. July 1, 2018), our decision was
due to be filed on May 8, 2023. This court had good cause for not meeting this deadline. While
continuances are disfavored and shall be granted only for compelling circumstances pursuant to
Rule 311(a)(8), this case presented situations where this court found it necessary to grant
respondent’s multiple requests for extensions of time to file her appellant’s brief for various
reasons, including counsel’s need to be out of state for a family matter, counsel’s need to review
arguments and authority respondent wanted included in her brief to avoid potential disciplinary
action for the attorney, and the need to supplement the record with transcripts from the adjudicatory
hearing and hearings where ICWA was discussed and possibly ruled on by the trial court.
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¶ 32 Then, on March 31, 2023, respondent’s appointed appellate counsel filed a motion
to withdraw as respondent’s attorney of record. Counsel indicated that on March 10, 2023,
respondent attempted to file a motion to represent herself and a pro se appellant’s brief. After
doing so, respondent contacted counsel and expressed her strong desire to represent herself on
appeal despite counsel’s attempt to dissuade her. On April 10, 2023, this court allowed counsel’s
motion to withdraw. That same day, respondent, pro se, filed a 50-page appellant’s brief. The State
filed its brief on May 1, 2023. Respondent had until May 8, 2023, to file a reply brief but failed to
do so. As a result, the case was not ready to be ruled on or assigned to this panel until after the
May 8, 2023, deadline had passed. Regardless, pursuant to the spirit of Rule 311, we have decided
the case as quickly as possible considering the numerous issues respondent raised in her lengthy
pro se brief.
¶ 33 After respondent filed her appellate brief, she also filed numerous motions, which
we have taken with the case. Two of these motions asked this court to expedite this appeal and
advance the case on our docket. We deny these motions as moot because we have expedited this
case pursuant to Rule 311.
¶ 34 B. Motion to Strike the State’s Brief
¶ 35 Before moving to the merits of respondent’s appeal, we note respondent filed a
motion, which we took with this case, asking this court to strike the State’s brief because it
summarized testimony from witnesses that was not part of the record. We deny this motion as the
testimony in question can be found in supplements to the record that were allowed by this court.
¶ 36 C. General Appellate Principals
¶ 37 Respondent chose to proceed pro se in this appeal. Illinois courts treat pro se
litigants the same as licensed attorneys. A pro se litigant must comply with the same rules and is
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held to the same standard as licensed attorneys. Holzrichter v. Yorath, 2013 IL App (1st) 110287,
¶ 78, 987 N.E.2d 1.
¶ 38 We first note issues not raised in the trial court are forfeited on appeal. In re Z.J.,
2020 IL App (2d) 190824, ¶ 50, 168 N.E.3d 210. While the plain-error doctrine can be applied in
abuse and neglect cases (In re Andrea D., 342 Ill. App. 3d 233, 242, 794 N.E.2d 1043, 1050-51
(2003)), respondent makes no argument regarding its applicability here. Further, “[a] party cannot
complain of error which he induced the court to make or to which he consented.” McMath v.
Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1, 3 (2000). “ ‘It is fundamental to our adversarial process
that a party waives his right to complain of an error where to do so is inconsistent with the position
taken by the party in an earlier court proceeding.’ ” McMath, 191 Ill. 2d at 255, 730 N.E.2d at 3(quoting Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 543, 475 N.E.2d 817, 818 (1984)).
¶ 39 Further, even if an issue was raised in the trial court, Illinois Supreme Court Rule
341(h)(7) (eff. October 1, 2020) requires an appellant’s brief to include “[a]rgument, which shall
contain the contentions of the appellant and the reasons therefor, with citation of the authorities
and the pages of the record relied on.” A reviewing court is not a depository for which the
appellant, in this case respondent, may unload her burden of argument and research. People v.
Macias, 2015 IL App (1st) 132039, ¶ 88, 36 N.E.3d 373. Pursuant to Rule 341(h)(7), “[p]oints not
argued are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing.”
¶ 40 It is also the appellant’s burden to provide this court with a complete record to
decide the issues raised on appeal. In Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958,
959 (1984), our supreme court stated:
“[A]n appellant has the burden to present a sufficiently complete record of the
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proceedings *** to support a claim of error, and in the absence of such a record on
appeal, it will be presumed that the order entered by the trial court was in
conformity with law and had a sufficient factual basis. Any doubts which may arise
from the incompleteness of the record will be resolved against the appellant.”
We note the record on appeal does not contain transcripts of any hearings held prior to April 2022.
¶ 41 Respondent forfeited most of the issues she raises on appeal or is precluded from
now arguing the trial court erred in several respects.
¶ 42 D. ICWA
¶ 43 Because respondent’s argument regarding ICWA challenges the trial court’s right
to exercise its jurisdiction in this case, we address this issue first. Respondent provides no cogent
legal analysis why the trial court erred by exercising its jurisdiction. As a result, we find respondent
failed to comply with Rule 341(h)(7). However, considering ICWA is intended to serve the
interests of Native American tribes, it is unclear whether a parent can forfeit the applicability of
provisions under this federal law. In re T.A., 378 Ill. App. 3d 1083, 1089, 883 N.E.2d 639, 644
(2008). As a result, regardless of respondent’s failure to comply with Rule 341(h)(7), we will
consider whether the trial court erred in exercising its jurisdiction. Essentially, the question of
whether ICWA applies is one of statutory interpretation. Therefore, we will apply a de novo
standard of review. T.A., 378 Ill. App. 3d at 1087, 883 N.E.2d at 643.
¶ 44 “[ICWA] 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.” In re Stiarwalt, 190 Ill. App. 3d 547, 550, 546 N.E.2d 44, 47 (1989) (citing Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)). This separation potentially
deprived the children of their Indian heritage and threatened “the tribes’ ability to function as an
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autonomous community.” Stiarwalt, 190 Ill. App. 3d at 551, 546 N.E.2d at 47 (citing Holyfield,
490 U.S. at 35-36).
¶ 45 Section 1911(b) of ICWA (25 U.S.C. § 1911(b) (2018)) states:
“In any State court proceeding for the foster care placement of, or termination of
parental rights to, an Indian child not domiciled or residing within the reservation
of the Indian child’s tribe, the court, in the absence of good cause to the contrary,
shall transfer such proceeding to the jurisdiction of the tribe, absent objection by
either parent, upon the petition of either parent or the Indian custodian or the Indian
child’s tribe: Provided, That such transfer shall be subject to declination by the
tribal court of such tribe.” (Emphasis in original.)
Further, section 1912(a) of ICWA (25 U.S.C. § 1912(a) (2018)) states in part:
“In any involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child shall notify the
parent or Indian custodian and the Indian child’s tribe, by registered mail with
return receipt requested, of the pending proceedings and of their right of
intervention.” (Emphasis added.)
It appears respondent believes C.D. should be considered an “Indian child.” However, Congress
specifically defined who is considered an “Indian child” under ICWA. Section 1903(4) of ICWA
(25 U.S.C. § 1903(4) (2018)) states an “Indian child” is “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.”
¶ 46 This court has held “[t]he party asserting the applicability of the Act has the burden
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of producing sufficient evidence for the [trial] court to determine if the child is an [‘]Indian
child.[’] ” T.A., 378 Ill. App. 3d at 1090, 883 N.E.2d at 644. Respondent did not seem to understand
it was her burden to present evidence C.D. qualified as an “Indian child.” Instead, she took the
approach it was the State’s obligation to prove C.D. was not an “Indian child.”
¶ 47 Based on the record on appeal, neither respondent nor anyone else provided the
trial court with evidence which established the court knew C.D. was an “Indian child” as defined
by ICWA. No one presented evidence C.D. was a member of a tribe. Further, both respondent and
Justin D. each testified they were not members of a tribe.
¶ 48 Turning to whether the trial court had reason to know C.D. was an “Indian child,”
section 23.107(c) of Title 25 of the Code of Federal Regulations (25 C.F.R. § 23.107(c) (2021))
provides:
“A court, upon conducting the inquiry required in paragraph (a) of this
section, has reason to know that a child involved in an emergency or child-custody
proceeding is an Indian child if:
(1) Any participant in the proceeding, officer of the court involved
in the proceeding, Indian Tribe, Indian organization, or agency informs the
court that the child is an Indian child;
(2) Any participant in the proceeding, officer of the court involved
in the proceeding, Indian Tribe, Indian organization, or agency informs the
court that it has discovered information indicating that the child is an Indian
child;
(3) The child who is the subject of the proceeding gives the court
reason to know he or she is an Indian child;
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(4) The court is informed that the domicile or residence of the child,
the child's parent, or the child’s Indian custodian is on a reservation or in an
Alaska Native village;
(5) The court is informed that the child is or has been a ward of a
Tribal court; or
(6) The court is informed that either parent or the child possesses
an identification card indicating membership in an Indian Tribe.”
Once again, when section 23.107(c) (25 C.F.R. § 23.107(c) (2021)) refers to an “Indian child,” it
is referring to the term as defined by both ICWA and section 23.2 of Title 25 of the Code of Federal
Regulations (25 C.F.R. § 23.2 (2021)). According to the Guidelines for Implementing ICWA
found on the Bureau of Indian Affairs website:
“[Rule 23.107] reflects the statutory definition of ‘Indian child,’ which is
based on the child’s political ties to a federally recognized Indian Tribe, either by
virtue of the child’s own citizenship in the Tribe, or through a biological parent’s
citizenship and the child’s eligibility for citizenship. ICWA does not apply simply
based on a child or parent’s Indian ancestry. Instead, there must be a political
relationship to the Tribe.
Most Tribes require that individuals apply for citizenship and demonstrate
how they meet that Tribe’s membership criteria. Congress recognized that there
may not have been an opportunity for an infant or minor child to become a citizen
of a Tribe prior to the child-custody proceeding, and found that Congress had the
power to act for those children’s protection given the political tie to the Tribe
through parental citizenship and the child’s own eligibility.” See U.S. Department
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of Interior, Bureau of Indian Affairs, Guidelines for Implementing the Indian
Child Welfare Act (Dec. 2016),
https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf.
None of these events occurred in this case. Instead, respondent simply tried to rely on her
unsubstantiated claims of tribal ancestry. This court has held “the mere mention of Indian heritage
does not give a trial court reason to know that the child is an Indian child.” T.A., 378 Ill. App. 3d
at 1092, 883 N.E.2d at 646-47.
¶ 49 We note this is not a situation where the trial court ignored respondent’s assertion
C.D. had Native American ancestry. This matter was extensively discussed during proceedings
before the court. At a hearing on April 21, 2022, respondent claimed C.D. was eligible for
membership in the Cherokee Nation because “all” her grandparents are “listed on the rolls.”
However, she did not indicate she had personally seen their names “on the rolls.” Instead,
respondent explained she believed her grandparents were members of a Native American tribe
based on ancestry, molecular DNA, and other things she did not name. In addition, it appears the
State also looked into respondent’s claims of Native American ancestry and found nothing
requiring application of ICWA.
¶ 50 Even assuming, arguendo, respondent could have established one or more of her
grandparents were members of a Native American tribe, that fact would not qualify C.D. as an
“Indian child” as defined by ICWA. Based on the evidence contained in the record on appeal,
respondent failed to establish C.D. meets the statutory definition of an “Indian Child” and as a
result ICWA was inapplicable. Consequently, the trial court had jurisdiction to hear this case.
¶ 51 We note respondent filed two motions, which we took with this case, asking this
court to vacate the trial court’s orders and return custody of C.D. to respondent because of ICWA.
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Because we have determined ICWA does not apply based on the available evidence in the record,
we deny these motions for the reasons set forth herein.
¶ 52 E. Timeliness of the Adjudicatory Hearing
¶ 53 We next turn to respondent’s claim the State’s petition should have been dismissed
without prejudice because the adjudicatory hearing was not held within the time allowed by section
2-14(b) of the Act (705 ILCS 405/2-14(b) (West 2020)) and the trial court continued the case on
more than one occasion in excess of 30 days. Section 2-14(b) of the Act (705 ILCS 405/2-14(b)
(West 2020)) provides:
“When a petition is filed alleging that the minor is abused, neglected or
dependent, an adjudicatory hearing shall be commenced within 90 days of the date
of service of process upon the minor, parents, any guardian and any legal custodian,
unless an earlier date is required pursuant to Section 2-13.1. Once commenced,
subsequent delay in the proceedings may be allowed by the court when necessary
to ensure a fair hearing.”
Respondent ignores that the statute also provides the time limits of section 14 may be waived with
the consent of all parties and the court’s approval (705 ILCS 405/2-14(d) (West 2020)).
¶ 54 In the trial court, respondent orally raised this issue in a motion to dismiss.
However, she failed to do so until September 29, 2022, which was after the adjudicatory hearing
was underway. In denying the motion to dismiss, the court indicated the only motion to continue
filed by the State was on March 22, 2022. It was granted without objection and also for good cause
shown. The court attributed all other continuances to either agreement of all the parties or to the
parents. Respondent’s brief does not address the court’s reasoning for denying the motion to
dismiss based on the time requirements found in section 2-14 of the Act (705 ILCS 405/2-14 (West
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2020)).
¶ 55 We find respondent’s argument forfeited for several reasons. First, she failed to
make timely objections to the continuances and did not make a timely objection to the adjudicatory
hearing itself. Z.J., 2020 IL App (2d) 190824, ¶ 50. Second, pursuant to Rule 341(h)(7), she failed
to provide this court with any cogent legal analysis explaining why the adjudicatory hearing was
untimely considering she requested, agreed to, or did not object to the multiple continuances.
Finally, even assuming, arguendo, respondent could establish the trial court erred in allowing so
many continuances, respondent could not take advantage of the error pursuant to the invited error
doctrine. McMath, 191 Ill. 2d at 255, 730 N.E.2d at 3. As a result, we decline to address this issue
further.
¶ 56 F. Adjudication of Neglect
¶ 57 We next turn to respondent’s arguments regarding the trial court’s October 20,
2022, adjudicatory order, where the court found C.D. was neglected because his environment was
injurious to his welfare as evidenced by respondent’s mental instability and her domestic violence
issues with Justin D. Respondent argues C.D. had never been in an environment injurious to his
welfare with respondent because they had never been together outside the hospital before C.D.
was taken into protective custody. In addition, respondent asserts the State had no evidence C.D.
had been neglected, respondent suffered from a mental illness, respondent had been injured by
domestic violence, or that any child had witnessed the alleged domestic violence. Further,
respondent claims the State had no evidence respondent had ever blatantly disregarded her parental
responsibilities. At most, according to respondent, the State had evidence respondent had erratic
thoughts and communication, which she contends are protected under the first amendment.
¶ 58 “There is no fixed meaning for the term ‘neglect,’ but it has been generally defined
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as the failure to exercise the level of care that is required under the circumstances and it
encompasses both the willful and the unintentional disregard of parental duty.” In re An.W., 2014
IL App (3d) 130526, ¶ 57, 17 N.E.3d 878. “[N]eglect may be found where a minor’s environment
is injurious to his or her welfare.” An.W., 2014 IL App (3d) 130526, ¶ 57. The term “injurious
environment,” like the term “neglect,” does not have a fixed meaning. An.W., 2014 IL App (3d)
130526, ¶ 57. “In general, the term ‘injurious environment’ has been defined as the breach of a
parent’s duty to ensure a safe and nurturing shelter for his or her children.” An.W., 2014 IL App
(3d) 130526, ¶ 57.
¶ 59 “When faced with evidence of prior neglect by a parent or parents, a trial court need
not wait to take action until after each particular minor suffers an injury.” An.W., 2014 IL App (3d)
130526, ¶ 58. Our supreme court has explained:
“Under the anticipatory neglect theory, the State seeks to protect not only
children who are the direct victims of neglect or abuse, but also those who have a
probability to be subject to neglect or abuse because they reside, or in the future
may reside, with an individual who has been found to have neglected or abused
another child.” In re Arthur H., 212 Ill. 2d 441, 468, 819 N.E.2d 734 (2004).
Granted, “there is no per se rule that the neglect of one child conclusively establishes the neglect
of another child in the same household.” Arthur H., 212 Ill. 2d at 468, 819 N.E.2d at 749. “Each
case concerning the adjudication of minors, including those cases pursued under a theory of
anticipated neglect based upon the neglect of a child’s sibling, must be reviewed according to its
own facts.” Arthur H., 212 Ill. 2d at 468-69, 819 N.E.2d at 750.
¶ 60 Turning to respondent’s evidentiary arguments, the State has the burden of proving
allegations of neglect by a preponderance of the evidence at the adjudicatory hearing. Arthur H.,
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212 Ill. 2d at 463-64, 819 N.E.2d at 747. We will only reverse a trial court’s finding of neglect if
it is against the manifest weight of the evidence. A.P., 2012 IL 113875, ¶ 17. “A finding is against
the manifest weight of the evidence only if the opposite conclusion is clearly evident.” A.P., 2012
IL 113875, ¶ 17.
¶ 61 The State presented the testimony of several police officers who indicated they had
responded to reports of domestic violence between respondent and Justin D. during the year prior
to C.D.’s birth. Both respondent and Justin D. told responding police officers they had been struck
by the other. The State also presented evidence some of the police officers found it difficult to
comprehend what respondent was saying because she would jump from one topic to another while
speaking.
¶ 62 Apple Glover, a DCFS child protection specialist, who spoke with respondent at
the hospital after C.D.’s birth also testified respondent indicated she and Justin D. had a history of
domestic violence. Glover also indicated she was concerned about respondent’s mental health
because respondent jumped from topic to topic during their conversation.
¶ 63 Joseph Dabrowski, a DCFS investigator, testified he began working on this case on
October 25, 2021, and learned another DCFS investigation was already under way involving
respondent and her other children because of domestic violence issues in the home and
respondent’s mental health. During the prior January 2021 DCFS investigation, respondent made
odd statements that the State was drugging her, one of her daughters was a witch and making
pornographic movies, and Justin D. was involved in human trafficking and was trafficking
respondent’s daughter. Respondent also indicated she wanted nothing to do with DCFS and
refused to submit to a toxicology screen and a mental health assessment from a licensed
psychologist or psychiatrist. When investigating this case, Dabrowski determined respondent had
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not undergone an acceptable mental health assessment and told respondent she was going to be
required to complete a psychological evaluation.
¶ 64 Jaime Bramblett, a public service administrator at DCFS who was also involved in
both the prior investigation and this case, indicated respondent appeared erratic, irrational, and
unable to maintain a clear train of thought when Bramblett had contact with her during the January
2021 case. During the January 2021 investigation, respondent claimed Justin D. and others were
using small holes in her walls to control her daughter’s mind and also traffic her. Respondent also
stated the “mark of the beast” had formed and later fell off her neck. Moreover, respondent was
concerned about “the end of days.” In addition, although respondent believed Justin D. was a
danger to her because of domestic violence issues, respondent indicated she needed to keep him
close to gather evidence of his child trafficking. According to respondent, she was working with
the FBI. However, she stated the FBI refused to accept information she tried to provide them.
Bramblett testified respondent’s statements during the January investigation made Bramblett
concerned for respondent’s mental health. Further, it appeared respondent’s mental issues had
escalated to a point where her three children at the time were in danger. According to Bramblett,
respondent made statements she punished her daughter for being a witch, a statement a rational
person would have known was not the case.
¶ 65 During the October 2021 investigation, Bramblett indicated DCFS was
investigating whether C.D. was subject to a risk of harm, considering the removal of the other
children nine months earlier and respondent’s inability to be around those children without
supervision. DCFS was concerned about respondent’s mental health and the ongoing domestic
violence issues between respondent and Justin D. Bramblett testified C.D. was not safe in the care
of either respondent or Justin D. because they were still in a relationship despite the domestic
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violence respondent alleged. According to Bramblett’s testimony, the police had continued to
respond to domestic violence calls from respondent during the period from January 2021 until
C.D.’s birth. Further, Bramblett testified respondent had not obtained an appropriate mental health
evaluation.
¶ 66 When Bramblett was asked why she was concerned about respondent parenting
C.D., Bramblett responded children in respondent’s care could be in danger because respondent
had used corporal punishment on one of her children in the past for alleged behavior a rational
person would know was not true. Specifically, Bramblett said respondent’s nine-year-old daughter
reported that respondent had subjected her to corporal punishment because respondent believed
the young girl was engaging in child pornography and trafficking. Bramblett testified,
“Unfortunately, mental health is not something we can predict, so if a parent has already
established that their beliefs will result in a child being punished, including corporal punishment,
that’s a very serious concern.”
¶ 67 The evidence in this case was sufficient to establish by a preponderance of the
evidence that C.D.’s environment with respondent and Justin D. would be injurious to his welfare
based on respondent’s mental instability and the domestic violence issues between respondent and
Justin D. Based on this evidence, it is not clearly evident the trial court erred in finding C.D.’s
environment was injurious to his welfare.
¶ 68 G. Other Issues
¶ 69 Respondent raised a host of other procedural issues in her pro se brief. However,
many of these issues are forfeited, others are moot, and some are meritless. For example,
respondent contends the investigation was arbitrary and the State engaged in malicious
prosecution. She also argues the case was subject to involuntary dismissal because the facts had
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already been adjudicated in a prior hearing. Considering the evidence described above and the fact
C.D. was not born during the prior adjudication referred to by respondent, these are meritless
claims we need not address further.
¶ 70 Turning to respondent’s argument the seizure of C.D. violated the Illinois
Reproductive Health Act (775 ILCS 55/1-20 (West 2020)) and section 3.4(a)(15) of the Medical
Patient Rights Act, we find respondent forfeited this argument pursuant to Rule 341(h)(7) because
she provided no cogent legal analysis explaining how DCFS’s actions violated either of these
statutes based on the facts in this case.
¶ 71 Respondent also claims she was denied her constitutional right to a jury trial.
However, as the First District explained in In re K.J., 381 Ill. App. 3d 349, 351-53, 885 N.E.2d
1116, 1118-1120 (2008), respondent did not have a right to a jury trial in this type of case. Thus,
this issue is meritless.
¶ 72 Moving on, respondent argued the trial judge had a duty to recuse himself. First,
respondent provides no indication she filed a motion seeking a substitution of judge as a matter of
right or a petition seeking the judge’s recusal for cause. As a result, this issue is forfeited on that
basis. Z.J., 2020 IL App (2d) 190824, ¶ 50. In addition, respondent forfeited this issue pursuant to
Rule 341(h)(7) because she failed to provide this court with any legal analysis why her allegations
regarding the trial judge necessitated his removal. Regardless, we find no reason in the record to
support why the trial judge would have been removed for cause or had a duty to recuse himself.
¶ 73 Additionally, respondent argues the State’s petition was not properly drafted. This
argument is forfeited because she did not raise it in the trial court. Z.J., 2020 IL App (2d) 190824,
¶ 50.
¶ 74 Next, respondent contends her due process rights were violated at the shelter care
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hearing. She asserts she was not provided notice of the shelter care hearing or counsel at the
hearing. Further, she claims C.D.’s right to counsel was violated. The trial court’s written order on
October 26, 2021, contradicts these claims. The order indicates respondent did receive notice, was
present, counsel was appointed to represent her, and a guardian ad litem was present on behalf of
C.D. Respondent also claims the shelter care hearing was not timely held. However, the court’s
order indicates the shelter care hearing was continued from October 26, 2021, until October 28,
2021, at the request of respondent and Justin D. so they could consult with their respective
appointed attorneys. As a result, we need not look at this issue further because the alleged error
was invited by respondent. See McMath, 191 Ill. 2d 251 at 255, 730 N.E.2d at 3 (“A party cannot
complain of error which he induced the court to make or to which he consented.”).
¶ 75 Further, respondent takes issue with the fact C.D. was not physically brought to the
shelter care hearing and argues C.D. should be immediately released. The written order from the
October 26, 2021, hearing indicates a guardian ad litem was present but C.D. was not. We do not
have a transcript from the hearing to see if an explanation was given for C.D.’s absence and do not
know whether respondent objected to or agreed to it. Regardless, based on this court’s decision in
In re J.W., 386 Ill. App. 3d 847, 852, 898 N.E.2d 803, 808 (2008), this issue is moot because we
have ruled the trial court did not error in adjudicating C.D. a neglected minor and respondent did
not challenge the court’s dispositional finding. Respondent filed a motion that we took with the
case also seeking C.D.’s immediate release because C.D. did not appear personally at the shelter
care hearing. For the reasons stated above, we also deny this motion as moot.
¶ 76 Turning to the portion of respondent’s briefs with the heading, “W[h]ether the
Integrated Assessment and Other Hearsay Evidence was Admissible,” it is not clear what
respondent is requesting from this court. As for the portion of her brief alleging breach of contract
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and child abduction, it appears she is discussing things that did not occur in this particular case.
Finally, she makes claims throughout her brief regarding federal funding and alleges this case
constitutes a false claim as a matter of law. While not entirely clear, it does not appear these claims
have any relevance to our review of the trial court’s findings at issue in this appeal. As a result, we
conclude, based upon the record before us, that said claims are without merit and decline to address
these issues further.
¶ 77 H. Additional Motions
¶ 78 Finally, we address respondent’s four remaining motions that were taken with the
case. In the first of these motions, respondent asks this court to strike confidential health
information from the record. We deny the motion because it is unclear the information is even
contained in the record because she failed to provide a record citation. Respondent’s next two
motions ask this court to order DCFS to return C.D. to her custody and to strike evidence in the
record from Sangamon County case Nos. 21-OP-169, 21-OP-163, and 19-F-513. We deny both of
these motions pursuant to Rule 341(h)(7) because issues regarding the trial court’s dispositional
ruling and evidentiary rulings should have been raised and argued in respondent’s appellant’s brief
instead of in motions filed after respondent filed her appellant’s brief. Although Rule 341(h)(7)
does not specifically state forfeited points shall not be raised in motions filed by an appellant after
she has filed her appellant’s brief, a contrary ruling would create an unacceptable exception to the
forfeiture provision in Rule 341(h)(7). Finally, respondent filed a motion to compel DCFS to
produce the case file for her case that began in January 2021. We deny this motion because it is
unclear respondent raised this issue in the trial court. Assuming, arguendo, she did raise the issue
and the trial court denied her request, the issue should have been argued in her appellant’s brief,
not in a motion.
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¶ 79 III. CONCLUSION
¶ 80 For the reasons stated, we affirm the trial court’s judgment.
¶ 81 Affirmed.
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