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In re Cari B.

February 01, 2002

IN RE CARI B., JACOB B., A.B., AND ANASTASIA B., MINORS,
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, V. JAMES B., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County. Nos. 96-JA-301; 96-JA-302; 96-JA-303; 96-JA-304; Honorable Janet Clark Holmgren, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

PUBLISHED

Following a bench trial, the trial court terminated the parental rights of respondent, James B., the father of Cari B., Anastasia B., A. B., and Jacob B. The trial court also terminated the parental rights of the minors' mother, Lisa C. Lisa C. is not a party to this appeal. On appeal, respondent raises a single contention--whether the State complied with the "active efforts" requirement of the Indian Child Welfare Act of 1978 (the ICWA) (25 U.S.C.A. §1912(d) (2001)). We affirm.

On August 28, 1996, the State filed petitions alleging the minors were neglected, inter alia, because their environment was injurious to their welfare after respondent stabbed their mother, Lisa C., while the children were present in the home. On October 24, 1996, the trial court adjudicated the minors neglected. On July 9, 1999, the State filed petitions for the termination of parental rights, alleging in three counts that respondent was unfit because (1) he abandoned the minors (750 ILCS 50/1(D)(a) (West 1998)), (2) he failed to maintain a reasonable degree of interest in the minors (750 ILCS 50/1(D)(b) (West 1998)), and (3) he substantially neglected the minors (750 ILCS 50/1(D)(d) (West 1998)). On September 9, 1999, the State filed an amended petition in Anastasia's case, adding allegations of unfitness against another man, Mark S., as the putative father. The State did not amend the allegations of unfitness against respondent. On June 28, 2001, the trial court terminated respondent's parental rights based on a finding of unfitness on the second count, i.e., that he failed to maintain a reasonable degree of interest.

Because respondent has raised no issue on appeal related to the trial court's substantive ruling on the termination petition, we have summarized only those facts relevant to his active efforts contention. The issues raised in this appeal are highlighted when the relevant facts are considered in light of the procedural requirements of the ICWA. Section 1912 of the ICWA provides in part:

"(d) Remedial services and rehabilitative programs; preventive measures

Any 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.

***

(f) Parental rights termination orders; evidence; determination of damage to child

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 U.S.C.A. §1912(d), (f) (2001).

In June 1997 the Department of Children and Family Services (DCFS) referred the minor's case to a caseworker at Family Advocate, a social service agency. On July 15, 1997, Family Advocate submitted a report to the trial court indicating that it had received information that the Oneida Indian Tribe (Oneida tribe) might have an interest in the case. In response, the trial court ordered DCFS to contact the Oneida tribe. On October 8, 1997, the Oneida tribe sent a letter to the trial court indicating that respondent was enrolled in the tribe and the minors were eligible for enrollment in the tribe. The Oneida tribe asserted that as a result the minors were "Indian children" within the meaning of the ICWA and indicated its intent to intervene. On July 8, 1999, the Oneida tribe sent a letter to the trial court indicating that it had not been given formal notice of the pending termination proceedings. On July 9, 1999, the trial court ordered the State to provide notice to the Oneida tribe. On October 22, 1999, the trial court granted the Oneida tribe leave to intervene and granted the tribe's attorney's motion for admission pro hac vice. The Oneida tribe indicated that it would not take a position on the termination proceedings at that time because it had insufficient information.

The trial court commenced the fitness hearing on July 31, 2000. Respondent's attorney objected and moved for a continuance. Respondent's attorney alleged that respondent was incarcerated in Missouri and was unavailable for trial. The trial court held that respondent was unavailable through his own fault and denied the motion for a continuance.

Lisa C. testified that respondent was the father of the minors. Lisa testified that her relationship with respondent was volatile and that he stabbed her in the shoulder with a knife in 1996. Lisa testified that all four minors were present and that she was holding Anastasia in her arms when respondent stabbed her.

The trial court continued the hearing until November 9, 2000. On that day, respondent's attorney informed the trial court that respondent was still incarcerated in Missouri, renewed his objection to proceeding in respondent's absence, and moved to continue the ...


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