In re T.A.

• Decision Date: 15 February 2008
• Docket Number: No. 4-07-0785.,4-07-0785.
• Citation: 378 Ill.App.3d 1083,883 N.E.2d 639
• Parties: In re T.A., Ta.A., and J.A., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Michael Amos, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

883 N.E.2d 639

378 Ill.App.3d 1083

In re T.A., Ta.A., and J.A., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Michael Amos, Respondent-Appellant).

No. 4-07-0785.

Appellate Court of Illinois, Fourth District.

February 15, 2008.

Justice MYERSCOUGH delivered the opinion of the court:

In August 2007, the trial court entered a dispositional order finding J.A., born January 26, 2007, neglected. The court granted custody and guardianship of J.A. to the guardianship administrator of the Illinois Department of Children and Family Services (DCFS). J.A.'s father, respondent Michael Amos, appeals, arguing the matter should be remanded for a determination of whether J.A. is an Indian child under the Indian Child Welfare Act of 1978(Act) (25 U.S.C. §§ 1901 through 1923 (2000)). We disagree and affirm.

I. BACKGROUND

In March 2006, prior to J.A.'s birth, the State filed a petition alleging that J.A.'s siblings, T.A., born July 16, 2003, and Ta. A., born August 2, 2005, were neglected minors because their environment was injurious to their welfare while under the care of their mother, Theresa Jones, and their father, respondent (705 ILCS 405/2-3(1)(b) (West 2006)). The children's mother, Theresa, is not a party to this appeal.

In August 2006, the trial court found T.A. and Ta.A. neglected. Thereafter, DCFS filed a dispositional report. According to the report, Theresa reported she was of African-American and Native American descent. In September 2006, the court entered a dispositional order adjudicating T.A. and Ta.A. neglected, making T.A. and Ta.A. wards of the court, and awarding custody and guardianship to DCFS. However, the record indicates that by January 2007, custody of T.A. and Ta.A. had been returned to Theresa but guardianship remained with DCFS.

On January 26, 2007, J.A. was born. In March 2007, the State filed a supplemental petition for adjudication of wardship. The petition alleged that J.A. was a neglected minor because (1) Theresa did not provide the medical care recognized under state law as being necessary for the child's well-being (705 ILCS 405/2-3(1)(a) (West 2006)) (count I); and (2) an injurious environment exposed J.A. to the risk of physical harm when J.A. lived with Theresa (705 ILCS 405/2-3(1)(b) (West 2006)) (count II). Apparently, the allegations were limited to Theresa because respondent was incarcerated. The petition also contained allegations regarding T.A. and Ta.A., but those allegations were later stricken because T.A. and Ta.A. had previously been adjudicated neglected and made wards of the court. In March 2007, the trial court entered a temporary custody order awarding temporary custody of J.A. to the guardianship administrator of DCFS.

In May 2007, the trial court held the adjudicatory hearing. Theresa stipulated to count I (failure to provide necessary medical care). Respondent waived the adjudicatory hearing. In June 2007, the court entered a written adjudicatory order finding J.A. neglected based on count I and dismissing count II (injurious environment exposed J.A. to the risk of physical harm).

On June 20, 2007, DCFS filed a dispositional report prepared by Catholic Charities. The report noted that Theresa stated she was of African-American and Native-American descent. The report also provided as follows:

"This worker has contacted the * * * Act * * * Liaison at DCFS with this information so they can determine if the [Act's] laws would apply in [Theresa's] case."

The report indicated that further information would be provided when it became available. Additionally, the report noted that respondent had been paroled from prison in May 2007.

The dispositional hearing was scheduled for June 21, 2007. The record does not contain a transcript of this hearing. According to the June 21, 2007, docket entry, the trial court continued the matter until July 30, 2007.

On July 26, 2007, DCFS filed an addendum to the dispositional report prepared by Catholic Charities. The addendum provided that the American Indian Child Welfare Advocacy Program was working with Catholic Charities "to research the eligibility of T.A., Ta.A., and J.A. as being with one of the three Cherokee Nations within the United States." The report noted that the process was lengthy, and the date the process would be completed was unknown. The report indicated that Theresa had stated her understanding that none of her family members were registered with any tribes.

On July 30, 2007, the trial court held the dispositional hearing. The following discussion ensued:

"THE COURT: * * * Counsel, one of the reasons we had set this over was developments with respect to [the Act]. Apparently we don't have any further information at this juncture. Ms. Geller, as to how you wish to proceed.

MS. GELLER [(assistant State's Attorney)]: Your honor, in light of the fact that there is no—nobody's been able to identify a tribe or nobody is—seems to know whether or not they are, in fact, registered with a tribe, I don't think [the Act] is going to apply in this situation and the State would be ready to proceed.

THE COURT: Mr. Fitton.

MR. FITTON [(Theresa's attorney)]: Your honor, at this point, I don't have anymore to add than what was in the most recent report received July 26th. Just that the Catholic Charities is researching eligibility to three different Cherokee nations. So I don't have anything more to add than that.

THE COURT: All right. Mr. Appleman.

MR. APPLEMAN [(respondent's attorney)]: Judge, I think at this point we should proceed—yeah, I'll leave it at that.

THE COURT: Ms. Geller.

MS. GELLER: And your Honor, as I understand it, if each of the [r]espondent parents were to, I believe under [the Act], the only reason in which a tribe would get involved is if the tribe wanted to get involved, and/or if the parents wanted the tribe to be involved. I think the parents might be able to waive the involvement of the tribe, and therefore, we could continue to the dispositional hearing without that concern.

THE COURT: I think if the tribe wants to intervene, they can intervene, if a tribe is identified.

MS. GELLER: I believe the tribe has the right to intervene; however, I was under the impression from the last time we researched this issue, that if the [r]espondent—if one of the [r]espondent parents objected and wanted this matter to remain in this circuit court, that it [sic] would have to do so. I'm not saying that with significant authority, that's just the thing that I recall, we might have discussed the last time this issue arose.

THE COURT: Ms. Pennacchi, as to how would you wish to proceed.

MS. PENNACCHI: We can proceed today.

THE COURT: At this juncture, if nobody has any objection, I'll proceed today. And if necessary, at some future point, the [c]ourt will vacate its orders if it becomes necessary."

At the conclusion of the hearing, the trial court found J.A. neglected and made her a ward of the court. The court placed custody and guardianship of J.A. with the guardianship administrator of DCFS. The court provided that a written dispositional order would follow. On August 23, 2007, the trial court entered the written dispositional order.

This appeal followed.

II. ANALYSIS

Respondent argues that the trial court should have made a determination of whether J.A. was an Indian child. Respondent also argues that because the court knew or should have known that J.A. was an Indian child, notice should have been given in accordance with the Act. Respondent asks this court to invalidate the court's order and remand for a determination of whether J.A. is an Indian child.

A. Standard of Review

Whether the trial court was required, under the facts of this case, to make a determination on the record as to the applicability of the Act or to give notice under the Act involves issues of statutory interpretation and, as such, this court reviews the issues de novo. See, e.g., In re C.N., 196 Ill.2d 181, 203, 256 Ill.Dec. 788, 752 N.E.2d 1030, 1043 (2001) (involving whether the trial court was required to make a determination of whether the minor was an Indian child); In re IEM, 233 Mich.App. 438, 443, 592 N.W.2d 751, 755 (1999) (involving whether the notice requirements were satisfied).

B. The Purpose of the Act

"The Act was adopted to respond to a crisis occurring in Indian tribes in which large numbers of Indian children were being separated from their families and placed in non-Indian homes." In re Stiarwalt, 190 Ill.App.3d 547, 550, 137 Ill.Dec. 420, 546 N.E.2d 44, 47 (1989), citing Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1599-1600, 104 L.Ed.2d 29, 36 (1989). This deprived the children of their Indian heritage and threatened "the tribes' ability to function as an autonomous community." Stiarwalt, 190 Ill.App.3d at 551, 137 Ill. Dec. 420, 546 N.E.2d at 47, citing Holyfield, 490 U.S. at 35-36, 109 S.Ct. at 1601, 104 L.Ed.2d at 38.

The Act governs child-custody proceedings involving Indian children, including foster-care placements, terminations of parental rights, and adoptive placements; and it provides minimum federal standards for the removal of Indian children from their families. See 25 U.S.C. §§ 1902, 1903 (2000). Under the Act, tribal courts are granted exclusive jurisdiction over a child-custody proceeding involving an Indian child who resides or is domiciled within the tribe's reservation or who is a ward of a tribal court. 25 U.S.C. § 1911(a) (2000). State courts and tribal courts have concurrent jurisdiction over proceedings involving an Indian child who is not domiciled or residing within the reservation of the Indian child's tribe. 25 U.S.C. § 1911(b) (2000). In the case of concurrent jurisdiction, the state court must transfer the proceedings to the tribal court upon the petition of either parent, an Indian custodian, or the Indian child's tribe absent good cause to the contrary, objection by either parent, or declination of...