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In re K.T.

Court of Appeals of Illinois, Third District

June 7, 2013

In re K.T.,
v.
Victoria S., Respondent-Appellant. a Minor The People of the State of Illinois, Petitioner-Appellee,

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 12-JA-230 Honorable Mark E. Gilles, Judge, Presiding.

Justices O'Brien and Schmidt concurred in the judgment and opinion.

OPINION

LYTTON JUSTICE

¶ 1 Respondent is the mother of K.T. K.T. is a member of the Seminole Indian tribe. The State filed a juvenile petition alleging that K.T. was neglected because her environment was injurious to her welfare, in part, as a result of respondent's behavior. At respondent's combined adjudication and dispositional hearing, the Illinois Department of Children and Family Services (DCFS) notified the court that K.T.'s Indian tribe was interested in becoming a party to the case. Respondent then moved for a continuance so that the tribe could enter the case. The trial court denied respondent's motion.

We reverse and remand.

¶ 2 On September 27, 2012, the State filed a juvenile petition, alleging that K.T. was neglected because her environment was injurious to her welfare. Specifically, the petition alleged that (1) on September 24, 2012, respondent and her husband, David S., became involved in a domestic violence incident with K.T. that resulted in K.T. being struck and injured, (2) David S. has a criminal history that includes many convictions, dating back to 1984; and (3) respondent refused to cooperate with DCFS to develop a safety plan. The trial court entered an order for temporary shelter care placing K.T. in the temporary custody of DCFS.

¶ 3 On October 5, 2012, respondent stipulated that the State could prove the allegations contained in the petition. On the same date, respondent notified the court that K.T.'s father was a full-blood Indian of the Seminole Creek Nation.

¶ 4 The combined adjudication and dispositional hearing was held on November 16, 2012. At the beginning of the hearing, the attorney for DCFS notified the court that it received confirmation that K.T. is a member of the Seminole tribe. A "Certificate of Degree of Indian Blood" issued by the United States Department of the Interior, Bureau of Indian Affairs, states that K.T. is of 5/32 degree Seminole-Creek Indian blood. In 2005, K.T. was issued a membership card for the Seminole Nation Tribe of Oklahoma. The Seminole Nation of Oklahoma's enrollment office determined that K.T.'s Seminole Indian blood quantum is one-eighth and that she is a member of the Hecete Band of the Seminole Nation.

¶ 5 DCFS explained that its coordinator for Indian children spoke to a representative of K.T.'s Indian tribe. The tribe indicated that it was interested in becoming a party to K.T.'s case but had not yet officially done so. According to DCFS, the tribe was informed of the court date for the combined adjudication and dispositional hearing. Based on the information DCFS provided to the court, respondent requested a continuance so that the tribe could enter the case before the hearing took place. The State objected to a continuance, stating: "This could be a very lengthy process before [the tribe] pull[s] the trigger on whatever it is they're going to do." DCFS also objected to a continuance, arguing that there was no reason to delay the hearing since the tribe was informed of the hearing date and took no action to intervene before the hearing. The trial court denied respondent's request for a continuance and proceeded with the hearing.

¶ 6 After the State presented its case, the trial court found that all of the allegations of the juvenile petition had been proven and that K.T. was a neglected minor and her environment was injurious to her welfare. The court then proceeded to the dispositional phase of the hearing. After considering the evidence presented, the trial court ruled that respondent was unfit based on the contents of the juvenile petition. The trial court made K.T. a ward of the court and named DCFS as her guardian.

¶ 7 In its dispositional order, the court found that K.T. "is an enrolled member of Seminole tribe." Nevertheless, the court ordered that K.T.'s current foster home placement with a non-Indian family was not to be changed without court approval "unless DCFS finds imminent danger to the minor's physical or emotional well-being."

¶ 8 Respondent argues that the court's adjudication and dispositional orders should be invalidated because the court violated the Indian Child Welfare Act of 1978 (Act) (25 U.S.C. § 1901 et seq. (2006)) by failing to give K.T.'s Indian tribe proper notice and adequate time to intervene before the combined adjudication and dispositional hearing. ¶ 9 Whether the trial court was required by the Act to give notice to K.T.'s Indian tribe and the sufficiency of any such notice are issues of statutory interpretation, which we review de novo. See In re T.A., 378 Ill.App.3d 1083, 1087 (2008).

¶ 10 In 1978, Congress enacted the Act in response to growing concerns over "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). The stated purpose of the Act is "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." 25 U.S.C. § 1902 (2006).

¶ 11 The Act establishes various substantive and procedural protections intended to govern child custody proceedings involving Indian children. See 25 U.S.C. §§ 1911 through 1915 (2006). The term "child custody proceeding" includes " '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 where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated." 25 U.S.C. § 1903(1)(i) (2006). The Act defines "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) ...


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