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In re F.O.

Court of Appeals of Illinois, First District, Fifth Division

November 21, 2014

In re F.O., a Minor
v.
Angela B., Respondent-Appellant) (The People of the State of Illinois, Petitioner-Appellee,

Appeal from the Circuit Court of Cook County. No. 07 JA 865. The Honorable Maxwell Griffin, Jr., Judge Presiding.

SYLLABUS

In proceedings arising from a petition for the adjudication of wardship of a nine-year-old minor based on the claim that he was neglected and abused and subject to a substantial risk of physical injury at the hands of respondent, his mother, the juvenile court, in subsequent proceedings seeking to terminate respondent's parental rights so that the minor could be adopted by the foster parents he had been living with following the adjudication of wardship, properly found that the minor was not an Indian child and was not subject to the Indian Child Welfare Act, since the juvenile court's investigation of the information provided by respondent about her alleged Indian heritage received no confirmation from any tribal organizations that respondent's allegations were recognized, the juvenile court's investigation was proper under the Act, and its finding was affirmed.

For APPELLANT: Abishi C. Cunningham, Jr., Public Defender of Cook County; Suzanne A. Isaacson, Assistant Public Defender, Chicago, Illinois.

For APPELLEES: Robert F. Harris, Kass A. Plain, Cook County Office of the Public Guardian, Appelas Unit, Chicago, Illinois; Anita M. Alvarez, State's Attorney; Alan J. Spellberg, Mary Needham, Nancy Kisicki, Assistant State's Attorney, Chicago, Illinois.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.

OPINION

GORDON, JUSTICE.

Page 457

[¶1] The instant appeal concerns one issue: Did the juvenile court properly determine that the minor, nine-year-old F.O., was not subject to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq. (2006)) prior to terminating respondent Angela B.'s parental rights? For the reasons that follow, we affirm.

[¶2] BACKGROUND

[¶3] Since the issues on appeal concern only compliance with the ICWA and respondent is not challenging the factual or legal basis of the termination of her parental rights,[1] we relate the facts of the termination proceedings briefly for context and set forth facts concerning respondent's claimed Native American heritage in greater depth.

[¶4] I. Adjudication of Wardship

[¶5] On October 16, 2007, the State filed a petition for adjudication of wardship, asking for F.O., a male minor born November 24, 2004, to be adjudicated a ward of the court; the State also filed a motion for

Page 458

temporary custody the same day. The adjudication petition claimed that F.O. was neglected due to an " environment *** injurious to his welfare" and was abused in that his parent or immediate family member " [c]reate[d] a substantial risk of physical injury to such minor by other than accidental means which would be likely to cause death, disfigurement, impairment of emotional health, or loss of impairment of any bodily function."

[¶6] The facts underlying both claims are the same. Respondent, F.O.'s mother, had two prior investigations for " substance misuse," " environment injurious to health and welfare," and " substantial risk of physical injury." On October 12, 2007, respondent " brought this minor's sibling to Children's Memorial Hospital. This minor's sibling was deceased on arrival to the hospital. Medical personnel state that mother's explanation as to when the child died is not consistent with the condition of the body." Respondent admitted to a history of mental illness and that she threatened to kill herself and her children. " Mental health professionals" stated that respondent " has a mental health diagnosis of major depression with psychotic features, bi-polar and post traumatic stress disorder." Respondent was psychiatrically hospitalized, and the whereabouts of F.O.'s father were unknown.[2]

[¶7] Based on the facts alleged in the State's petition for adjudication of wardship, on October 16, 2007, the juvenile court found probable cause that F.O. was abused or neglected and that immediate and urgent necessity existed to support his removal from the home. The court granted temporary custody to the Department of Children and Family Services (DCFS) guardianship administrator with the right to place F.O.

[¶8] On July 24, 2008, the juvenile court entered an adjudication order finding F.O. neglected due to " injurious environment," in part because " the natural mother failed to recognize that the 3 month old sibling of this minor was deceased for at least 2 hours while in her care and custody." On August 21, 2008, the juvenile court entered a disposition order making F.O. a ward of the court and finding respondent unable for some reason other than financial circumstances alone to care for, protect, train, or discipline him. The court further found that reasonable efforts had been made to prevent or eliminate the need for removal of F.O. from his home. The court placed F.O. in the custody of a DCFS guardianship administrator with the right to place him.

[¶9] Respondent appealed, and we affirmed the juvenile court. In re F.O., No. 1-08-2495, 385 Ill.App.3d 1122, 970 N.E.2d 125, 361 Ill.Dec. 125 (2008) (unpublished order under Supreme Court Rule 23).

[¶10] II. Termination Petition

[¶11] On July 10, 2012, the State filed a supplemental petition for the appointment of a guardian with the right to consent to adoption (termination petition). In its petition, the State alleged, inter alia, that respondent was unfit because she had " failed to make reasonable efforts to correct the conditions which were the basis for the removal of the child from [her] and/or ha[d] failed to make reasonable progress toward the return of the child to [her] within 9 months after the adjudication of neglect or abuse under the Juvenile Court Act, *** and/or within any 9 month period after said finding," in violation of section 1(D)(m) of the Adoption Act (750 ILCS 50/1(D)(m) (West 2012)) and section 2-29 of the Juvenile Court Act of

Page 459

1987 (705 ILCS 405/2-29 (West 2012)). Additionally, the petition alleged that it would be in F.O.'s best interest to appoint a guardian with the right to consent to his adoption because he had resided with his foster parent since October 2007, the foster parent wished to adopt F.O., and adoption by the foster parent would be in F.O.'s best interest.

[¶12] On January 25, 2013, the parties came before the juvenile court for a trial on the State's termination petition, which lasted over several court dates. Prior to the start of trial on April 3, 2013, the court stated that it wished to " address the ICWA concern." The State indicated that respondent had testified in 2008 that she had Native American heritage through several tribes, but also testified that she was not an enrolled member of any tribe and did not have any enrolled family members. The court noted that although respondent had previously made comments suggesting that she was not aware of any family member who was enrolled in an Indian tribe, under the ICWA, " even though the family member may not be enrolled, the child may be eligible for enrollment."

[¶13] The court explained:

" The standard for, or the requirements for eligibility in any particular Indian tribe, is dictated by that tribe, and it varies from tribe to tribe. Certain relations may make you eligible in one tribe for membership. Those same exact relations in another tribe might not make you eligible.
That's why we give notice to the tribe, so they can make a determination as to whether they would claim that the child in question, in this case [F.O.], is eligible and entitled to the protections of the ICWA."

The court instructed respondent's counsel that " I'm going to ask you to sit down with your client and specifically determine what the nature of her American Indian heritage is; okay? And then the parties will work together to confirm one way or the other what if anything was done to follow up." The court stated that " before we conclude these proceedings, I'm going to make sure that we have complied with ICWA. It comes late in the game, but it's -- I think we need to do that."

[¶14] At that same court date, prior to presenting closing argument, respondent discussed her Native American heritage with the court:

" RESPONDENT'S COUNSEL: [T]he Court did direct me to talk to my client about the Native American Indian heritage and the issues that were brought up. I have spoken to my client in regards to those issues.
My client says that in January of 2008, she did specifically identify a number of tribes/nations of the --
THE COURT: Yeah. So, what are they?
RESPONDENT'S COUNSEL: That would be the Apat -- Athabascan Muskogeon -- ...

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