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In Re M.H., A Minor v. Charlotte B. and Charles H

August 12, 2011

IN RE M.H., A MINOR
THE PEOPLE OF THE STATE OF ILLINOIS,
PETITIONER-APPELLEE,
v.
CHARLOTTE B. AND CHARLES H.,
RESPONDENTS-APPELLANTS BAD RIVER BAND OF LAKE SUPERIOR TRIBE OF CHIPPEWA INDIANS,
INTERVENOR-APPELLANT.



Appeal from the Circuit Court of Cook County No. 07 JA 716 Honorable Richard A. Stevens, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

Consolidated

JUSTICE CAHILL delivered the judgment of the court, with opinion.

Presiding Justice Garcia and Justice Robert E. 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. § 1901 et 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 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 non-relative 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 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, protect, train or discipline M.H. The court determined that it was in M.H.'s best interest to be adjudicated 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 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 non-relative 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.

ΒΆ 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 ...


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