Adoption of S.S., In re

Decision Date19 October 1995
Docket NumberNo. 76486,76486
CourtIllinois Supreme Court
Parties, 212 Ill.Dec. 590 In re ADOPTION OF S.S. & R.S. (Leslie Scarlotte Tubridy et al., Appellants, v. Betty Jo Iron Bear et al., Appellees).

Bruce D. Strom (argued), Strom & Repay, and Richard P. Bingham, Juergensmeyer, Strain & Associates, Elgin, for appellants.

Kathryn McGowan Bettcher, Sarah Megan and Bernard H. Shapiro, Prairie State Legal Services, Inc., St. Charles, for appellee Betty Jo Iron Bear.

Gary M. Beaudry, Williston, North Dakota, for appellees Fort Peck Assiniboine and Sioux Tribes.

Carole J. Grahn-Hayes, Geneva, for Guardian Barbara Carlson.

Justice HARRISON delivered the judgment of the court and the following opinion:

This appeal arises from a proceeding involving termination of the parental rights of a Native American Indian mother, Betty Jo Iron Bear, and the adoption of her minor children, S.S. and R.S., by two of their non-Indian relatives, Leslie and Patrick Tubridy. The issue before us is whether the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq. (1988)) requires the cause to be transferred to the tribal court of the Fort Peck tribe, on whose reservation Iron Bear is domiciled, even though the children's non-Indian father had been granted sole physical custody of them prior to his death and the allegations of the Tubridys' petition, if proven by clear and convincing evidence, would be sufficient to establish that Iron Bear had abandoned the children.

Following a hearing, the circuit court of Kane County denied motions by Iron Bear and the Fort Peck tribe to have the cause transferred to the tribal court. On an interlocutory appeal pursuant to Supreme Court Rule 306(a)(1)(v ) (134 Ill.2d R. 306(a)(1)(v )), a divided appellate court held that the tribal There is no dispute that Iron Bear is a member of the Fort Peck tribe and lives on the Fort Peck reservation in Poplar, Montana. She is the biological mother of S.S. and R.S., who were fathered by Richard S., a non-Indian. Richard S. died on November 18, 1992, of a disease he contracted from Iron Bear. The two were never married.

                [212 Ill.Dec. 593] court had exclusive jurisdiction over the matter under section 1911 of the ICWA (25 U.S.C. § 1911 (1988)).  It therefore reversed and remanded with directions to transfer the cause to that court.  (252 Ill.App.3d 33, 190 Ill.Dec. 802, 622 N.E.2d 832.)   We granted the Tubridys' petition for leave to appeal (145 Ill.2d R. 315) and now reverse and remand to the circuit court for further proceedings with respect to the question of the children's domicile
                

Although S.S. and R.S. are enrolled members of the tribe, they have been raised predominantly in Illinois by Richard and his family. Iron Bear has never played more than a sporadic role in their lives. In 1990, Richard filed a parentage action in Kane County which resulted in the approval of a joint custody and parenting agreement pursuant to which Richard was awarded physical custody of the children for 10 months of the year. Although Iron Bear was awarded physical custody of them for the remaining two months, the children visited the Fort Peck reservation only once after the agreement was reached.

In April 1992, the circuit court of Kane County granted a petition by Richard for the termination of Iron Bear's physical custody rights to the children. Iron Bear claims the order was entered by default because she was unable to appear due to indigence, but the Tubridys say this is not so. They assert that despite her poverty, Iron Bear has consistently had legal representation.

Until shortly before Richard's death, the children resided with him in Elgin. When Richard became too ill to care for the children and himself, the three moved in with one of Richard's sisters, Shelly S., in Carpentersville, where, it appears, the children are still living. Richard was not a Native American and did not associate with any Indian tribe. In addition, neither child has had any significant interaction with an Indian tribe beyond their one visit to the reservation.

Six days after Richard's death, the Tubridys filed a petition to terminate Iron Bear's parental rights and to adopt the children, as Richard had requested in his will. Leslie Tubridy is another of Richard's sisters, and she and Patrick are the paternal aunt and uncle of S.S. and R.S. The basis they asserted for termination of parental rights was that Iron Bear was an unfit parent. The Tubridys charged that Iron Bear had abandoned the children during the two years prior to the adoption proceedings. Before that time, the Tubridys alleged, she engaged in open and notorious fornication, habitually abused alcohol, and failed to provide the children with adequate food, clothing and shelter even though she was physically and financially able to do so.

Iron Bear responded by filing a petition for an emergency order of protection. In that petition she asserted that she had traveled to Illinois upon learning of Richard's death, but that Shelly S. had refused to allow her to see the children or to disclose their whereabouts. She further claimed, upon information and belief, that the Turbidys had fled with the children to the Tubridy home in Ohio. As a result, the court entered an order requiring immediate return of the children to Illinois, and there is no dispute that they are now back in this State.

At the same time she sought the protective order, Iron Bear moved to transfer jurisdiction of the adoption proceeding to the Fort Peck tribal court in Poplar, Montana, and to dismiss the State-court proceeding. Shortly thereafter, the tribe filed a substantially identical motion. The motions invoked section 1911(a) of the ICWA, which states that the tribe has "jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law." (25 U.S.C. § 1911(a) (1988).) Iron Bear and the tribe argued that S.S. and R.S. are "Indian children," as that term is defined in section 1903(4) of the Act (25 U.S.C. [212 Ill.Dec. 594] *939s 1903(4) (1988)) and that, like Iron Bear, both children are enrolled members of the Fort Peck tribe, a federally recognized "Indian tribe," as defined by section 1903(8) of the ICWA (25 U.S.C. § 1903(8) (1988)). Iron Bear alleged that because she is the sole parent of S.S. and R.S. and because she is domiciled on the Fort Peck reservation, the domicile of the children is also on the reservation (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29), and that the tribe therefore has exclusive jurisdiction over the matter of the children's adoption.

In their response, the Tubridys contended that the ICWA is inapplicable. They argued that the purpose of the Act is to prevent the breakup of Indian families, and that S.S. and R.S. are not domiciliaries of an Indian reservation or part of an Indian family. They alleged that R.S. was born in Elgin, Illinois, and that both R.S. and S.S. had lived substantially all of their lives there with their non-Indian father, who did not associate with or encourage the children's association with an Indian tribe. The Tubridys claimed that the children's part-Indian ancestry has no relation to their average suburban upbringing because neither child had ever resided on or near an Indian reservation for any significant period of time or had any significant contact or interaction with an Indian tribe. According to the Tubridys, jurisdiction belongs in the State court because Richard had sought and obtained sole physical custody of the children and had stated prior to his death that he did not want Iron Bear or her relatives to obtain custody of the children, which actions constituted a "parental objection" under section 1911(b) of the ICWA to the transfer of jurisdiction to the tribal court. The Tubridys also argued that the ICWA permits State courts to retain jurisdiction if there is "good cause," and that the facts of this case establish that the best interests of the children constitute such "good cause."

After arguments on the issue of jurisdiction, the circuit court denied the motions to transfer, finding that the children are not and have never been domiciled on the reservation and that the ICWA was inapplicable. The appellate court, with one justice dissenting, held that the provisions of the ICWA did apply here and that the children were domiciliaries of the reservation. The court therefore reversed and remanded the cause to the trial court with directions to transfer jurisdiction to the Fort Peck tribal court.

We begin our review of the case with the provisions of the ICWA. That legislation was enacted by Congress in 1978 in response to extensive evidence indicating that large numbers of Indian children were being separated from their families and their tribes and were being placed in non-Indian homes through State foster care placement and adoption proceedings. (Holyfield, 490 U.S. at 32, 109 S.Ct. at 1600, 104 L.Ed.2d at 36.) This practice caused serious harm to the Indian children, their parents and their tribes.

Evidence at congressional hearings included testimony concerning problems experienced by the children during adolescence, such as difficulty coping in a white society even where they had been raised in a purely white environment. There was also considerable emphasis during the hearings on how placements of Indian children into non-Indian families adversely affected the tribes' ability to function as self-governing communities. Sponsors of the ICWA noted that Indian tribes and Indian people were being drained of their children and, as a result, the future of the tribes and Indian people was being placed in jeopardy. Holyfield, 490 U.S. at 33-34 & n. 3, 109 S.Ct. at 1600-01 & n. 3, 104...

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