Court of Appeals of Illinois, First District, Sixth Division
from the Circuit Court of Cook County Nos. 12 JA 158, 12 JA
159 Honorable Nicholas Geanopoulos, Judge, Presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion. Justices Cunningham and Rochford
concurred in the judgment and opinion.
HOFFMAN PRESIDING JUSTICE
1 The respondent-appellant, Soleil S. (S.S.) appeals from the
orders of the circuit court terminating her parental rights
as to the minors-respondents-appellees, H.S. and E.S. (No.
1-16-1589), arguing that the record does not demonstrate
compliance with the Indian Child Welfare Act (ICWA) (25
U.S.C. § 1901 et seq. (2012)) and, as a
consequence, the orders affecting H.S. and E.S. must be
reversed. The respondent-appellant, Julio R. (J.R.) filed a
separate appeal (No. 1-16-1727) from the order of the circuit
court terminating his parental rights as to the
minor-respondent-appellee, H.S., arguing that the factual
findings supporting the circuit court's order of parental
unfitness and the best interest of H.S. are against the
manifest weight of the evidence. This court consolidated the
appeals. For the reasons which follow, we: (1) find that the
court's determination of J.R.'s parental unfitness as
to H.S. and its finding that it is in her best interest to
terminate his parental rights are not against the manifest
weight of the evidence; (2) vacate the circuit court's
order terminating the parental rights of S.S. and J.R. as to
H.S.; (3) vacate the circuit court's order terminating
the parental rights of S.S. as to E.S; and (3) remand the
matter back to the circuit court with directions to make a
factual determination as to whether H.S. and E.S. are, or are
not, Indian children within the meaning of the ICWA and,
after the determination is made, for further proceedings
consistent with this opinion.
2 On February 9, 2012, the State filed petitions for
adjudication of wardship and motions for temporary custody of
H.S., born May 5, 2011, and E.S., born March 2, 2010. S.S. is
the mother of both H.S. and E.S., and J.R. is the father of
H.S. The petitions alleged that both children were abused and
neglected by reason of having been left alone in their home
where illegal drugs and drug paraphernalia were present, an
injurious environment, and a lack of due care. During the
course of the temporary custody hearing held that same day,
the court inquired as to whether S.S., or any member of her
immediate family, was of Indian or Native American descent.
S.S. told the court that she was descended from the
"Cherokee, Creek, Blackfoot, Choctaw and Pawnee"
tribes. Following the hearing, the circuit court took
temporary custody of both children from S.S. And on February
15, 2012, following a temporary custody hearing, the court
took temporary custody of H.S. from J.R.
3 On September 5, 2012, the circuit court held a hearing,
during which it was stipulated that, if called, witnesses
would testify that a Chicago police officer arrived at the
family home on February 6, 2012, and found the front door
broken and open. H.S. and E.S. were found alone in the home
which was in a state of disarray. When S.S. arrived at the
home, she told the police officer that J.R. had kicked the
door down. She also told the officer that there was a history
of violence between herself and J.R and provided copies of
the police reports from previous incidents. On February 7,
2010, an investigator from the Department of Children and
Family Services (DCFS) visited the home and observed the
children in soiled clothing and diapers. She also observed
that the front door to the home was still broken and the
lights were not working. In addition, the investigator
detected a strong odor of urine and feces in the home and saw
empty drug bags and two marijuana cigarettes. S.S. admitted
to using marijuana and crack cocaine. J.R. admitted that he
had used marijuana in the presence of the children and told
the investigator that the marijuana in the home was his. He
also admitted to having kicked down the front door. S.S.
admitted that she had been hospitalized for psychiatric
issues. She also admitted leaving the children home alone.
Following the hearing, the circuit court entered adjudication
orders, finding that H.S. and E.S were neglected due to lack
of care, an injurious environment, and being left without
supervision for an unreasonable period of time.
4 On October 31, 2012, the circuit court entered
dispositional orders, finding that S.S. and J.R. were unable
to care for H.S. and E.S., and adjudicating the children
wards of the State. The DCFS Guardianship Administrator was
appointed as the guardian of both children, and the court set
a permanency goal of returning the children home in 12
5 On March 25, 2013, a permanency planning hearing was held,
during which the court heard evidence that S.S. had tested
positive for marijuana at every drug drop since the
dispositional hearing of October 31, 2012. The court was also
advised that J.R failed to tell the DCFS case worker that
S.S. was living with him and that she was present when he
visited with H.S. Following that hearing, the court found
that S.S. had not made substantial progress toward the
permanency goal and entered a new permanency goal of
returning both children home in 12 months.
6 The circuit court conducted another permanency hearing on
November 2, 2013. The court heard testimony that J.R. had not
completed parent coaching and family therapy classes, and
that he was unwilling or unable to parent H.S. without S.S.
The court found that neither S.S. nor J.R. had made
substantial progress toward the previous permanency goal and
again set a goal of returning the children home in 12 months.
7 During a permanency hearing held on January 5, 2014, the
court heard testimony that S.S. failed to comply with the
services offered to her, that she continued to abuse drugs,
and that her relationship with J.R. continued to be plagued
by domestic violence. Following that hearing, the goal for
E.S. was changed to substitute care pending a determination
on termination of parental rights.
8 Following a permanency hearing on April 4, 2014, the court
found that neither S.S. nor J.R. was making substantial
progress toward the goal of returning H.S. home, and the
court again set a permanency goal of returning H.S. home in
12 months. In addition, the court found that S.S. had failed
to make progress in any of the recommended services,
including therapy, psychiatric care, and substance abuse
9 When the case was heard on January 5, 2015, the court was
advised that S.S. was non- compliant with the services she
had been offered. Following that hearing, the goal for H.S.
was also changed to substitute care pending a determination
on termination of parental rights.
10 On July 8, 2015, the State filed supplemental petitions
seeking to permanently terminate the parental rights of S.S.
as to both H.S. and ES. and J.R.'s parental rights as to
H.S. The State also sought the appointment of guardians with
the right to consent to the adoptions of both children. The
petitions alleged that S.S. and J.R. were unfit based upon
their failure to maintain a reasonable degree of interest,
concern and responsibility for the children's welfare
(ground (b)) (see 750 ILCS 50/1(D)(b) (West 2014)), and their
failure to make reasonable efforts to correct the conditions
which were the basis for the children's removal and to
make reasonable progress towards the children's return
home within the immediately preceding nine months, or within
a nine month period after the adjudication of neglect or
abuse (ground (m)) (see 750 ILCS 50/1(D)(m) (West 2014)).
11 During the course of a hearing on October 1, 2015, the
State introduced into evidence certified mail receipts for
notices of the pendency of the instant proceedings that were
sent to the United Keetoowa Band of Cherokee Indians and the
Bureau of Indian Affairs, in North Carolina, Minnesota and
Washington D.C. The State also introduced the responses it
received from three tribes; namely, the Cherokee Nation, the
United Keetoowa Band of Cherokee Indians, and the Eastern
Band of Cherokee Indians. The State did not introduce copies
of the notices it had sent. Following that hearing, the
circuit court entered an order finding that the ICWA did not
apply to the proceedings "based upon the notices and
reports received from the various Indian tribes that were
part of the record today." The court made no finding as
to whether H.S or E.S are Indian children within the meaning
of the ICWA.
12 On March 16, 2016, the State gave notice that they were
pleading the following nine-month periods pursuant to ground
(m) for both S.S. and J.R.: September 6, 2012, to June 6,
2013; June 7, ...