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10/24/89 In Re Rueben Stiarwalt Et Al.

October 24, 1989

IN RE RUEBEN STIARWALT ET AL., MINORS (THE PEOPLE OF THE


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

State of Illinois, Petitioner-Appellee, v.

Jeanne Stiarwalt, Respondent-Appellant)

546 N.E.2d 44, 190 Ill. App. 3d 547, 137 Ill. Dec. 420 1989.IL.1665

Appeal from the Circuit Court of Kane County; the Hon. R. Peter Grometer and the Hon. Joseph M. McCarthy, Judges, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Respondent, Jeanne Stiarwalt, mother of Rueben (a/k/a Rubin), Julio, and Rachel (a/k/a Rachael) Stiarwalt, appeals from an order of the circuit court of Kane County terminating her parental rights and authorizing the guardianship administrator of the Illinois Department of Children and Family Service to consent to the minors' adoption. Respondent contends that (1) the trial court proceedings did not comply with the requirements of the Indian Child Welfare Act of 1978 (Act) (25 U.S.C. 1901 et seq. (1982)); and (2) the trial court's finding of parental unfitness was not supported by clear and convincing evidence. We affirm.

On June 23, 1983, the State filed a petition for an adjudication of wardship based on the neglect of the three minor children, Rueben (born November 24, 1975), Julio (born April 30, 1979), and Rachel (born October 7, 1981). On August 9, 1983, the court granted the petition. However, on July 17, 1984, the court vacated the adjudication and set the cause for a hearing. On September 10, 1984, an adjudication hearing was held at which respondent entered an admission to the contents of the State's petition based on the fact that she was unable to provide the necessary care and support of the children. On the same date, the court entered an order placing six conditions upon respondent for a return of her children. These six conditions were that respondent would obtain adequate housing, maintain regular contact with DCFS, continue scheduled visitation with the children, be gainfully employed, attend counseling, and maintain a stable home environment for a three-month period.

On October 22, 1985, the State filed a petition to terminate respondent's parental rights with respect to the three minor children. The petition alleged that respondent was unfit due to her failure to make reasonable efforts and progress to correct the conditions which were the basis for the removal of the minor children from her custody. On September 25, 1986, after two fitness hearings, the court entered an order finding that the State proved by clear and convincing evidence that respondent failed to make reasonable progress toward the return of her children. The court then ordered a hearing to determine whether the termination of respondent's parental rights would be in the best interests of the minor children.

On January 5, 1988, respondent filed a motion to invalidate the court proceedings, including the adjudicatory and unfitness hearings and findings, based on the allegation that the court lacked jurisdiction in this case. Respondent argued that she was a member of an Indian tribe, that the minors were Indian children, and, as such, that the Act applied in this case. On March 30, 1988, a hearing was held on respondent's motion. At the Conclusion of the hearing, the court took the matter under advisement. On July 19, 1988, the court entered an order denying respondent's motion to invalidate, finding that the Act was inapplicable in the case at bar.

On October 31, 1988, an evidentiary hearing was conducted to determine what placement would be in the best interests of the minor children. The hearing concluded on November 1, 1988, after which the court ordered that the termination of respondent's parental rights would be in the best interests of the children. The court also appointed a guardian to consent to the minors' adoption. Respondent filed a timely notice of appeal.

On appeal, respondent first contends that the trial court proceedings did not comply with the requirements of the Act. Specifically, she contends that there is a possibility that the Canadian tribe of which she is a member is affiliated with some Sioux Indian tribe within the United States and recognized by the Department of the Interior (Department). She further contends that the State had an obligation to contact respondent's Indian tribe to determine whether the tribe claims some affiliation with a tribe recognized by the United States government.

During the hearings on the termination of respondent's parental rights, respondent filed a motion to invalidate the proceedings, contending that the State did not comply with the provisions of the Act. An evidentiary hearing was held on respondent's motion. At the hearing, Nancy Zimmerman, a DCFS caseworker, testified that DCFS was aware of respondent's Indian heritage and attempted to determine if the Act applied to respondent and her children. Zimmerman stated that a letter was written to the Department requesting advice on the applicability of the Act. In the letter, DCFS informed the Department that respondent was born in Canada and "appears to be part of a Sioux Indian Tribe." DCFS also enclosed a copy of respondent's birth certificate with the letter. The Department responded by stating:

"From the information which you provided, it appears that these [Stiarwalt] children possess only Indian blood from Tribes in Canada. This Act (PL -- 95 -- 608) applies only to children of Indians who are members of an Indian Tribe recognized by the United States Government and who are themselves eligible for membership. It appears that these children do not meet this requirement of the Act. Therefore, the Act would not apply to these children."

After receiving the letter, DCFS concluded that it would not be necessary to comply with the procedural requirements of the Act because ...


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