People v. D.D.

No. 3--08--0442

_________________________________________________________________
Filed November 5, 2008
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2008

In re D.D., JR.; S.D.; and C.D.,) Appeal from the Circuit Court
) of the 9th Judicial Circuit,
Minors ) Hancock County, Illinois,
)
(The People of the State of )
Illinois, )
)
Petitioner-Appellee, ) No. 03--JA--4
)
v. )
)
D.D., Sr., and A.D., ) Honorable
) Patricia A. Walton,
Respondents-Appellants). ) Judge, Presiding.
_________________________________________________________________

JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________

Respondent D.D., Sr., is the father of the minors at issue in

this case, and respondent A.D. is the mother. The trial court

found both respondents unfit to care for their minor children and

terminated their parental rights. The minors met the definition of

"Indian Child[ren]" under the federal Indian Child Welfare Act

(ICWA); thus, the ICWA governed this case. On appeal, the

respondents argue that the State did not meet its burden under

sections §1912(d) and (f) of the ICWA (25 U.S.C.A. 1912(d), (f)

(West 2001)), and that the mother's trial counsel provided
ineffective assistance. We affirm.

FACTS

On October 29, 2003, the State filed a juvenile petition

alleging that D.D., Jr. (D.D.), born June 6, 1997; S.D., born July

31, 1999; and C.D., born November 20, 2002, were neglected.

Specifically, the petition alleged that the minors were subjected

to an injurious environment because: (1) they were "filthy"; (2)

C.D. consumed Pepsi from a bottle with old formula stuck to the

inside of the bottle; and (3) D.D. and S.D. were scarred from a

candle they played with while the respondents slept. The petition

further alleged that the minors were abused and at substantial risk

of physical harm because, among other reasons, the father threw a

coffee mug at D.D. that hit him in the face. The court held a

shelter care hearing that day and placed temporary custody of the

minors with the Department of Children and Family Services (DCFS).

Since the minors met the definition of "Indian Child[ren]" under

the ICWA (25 U.S.C.A. §1911(b) (West 2001)), the Cherokee Nation

filed a notice of intervention pursuant to section 1911(c) of that

act (25 U.S.C.A. §1911(c) (West 2001)). Howard Paden, a

representative of the Cherokee Nation, indicated that the Cherokee

Tribe would not seek to remove the children from their non-Indian

foster placement, but he would monitor the progress of the

respondents and minors.

A family service provider filed a social history report in

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October 2003. She reported that the respondents' household

functioned in "total chaos"; the respondents did not possess "any

parenting skills"; and the minors would not "have the opportunity

to function in a normal environment as long as [they were]

subjected to the verbal abuse" of the respondents. Jerri

Niewohner, a DCFS caseworker, also noted that the respondents did

not understand the harm they were causing the minors by physical

and verbal abuse or why the instant juvenile case was opened.

On February 25, 2004, the respondents admitted the allegations

of neglect in the juvenile petition, and the father also admitted

to abuse by throwing a coffee mug at D.D.'s face. At the March 24,

2004, dispositional hearing, the court found that the minors were

neglected and abused, made them wards of the court, and granted

guardianship to DCFS. The court ordered the respondents to

complete their client service plan tasks.

Niewohner filed a client service plan that included the

following tasks: (1) attend parenting classes to learn to

discipline the minors without corporal punishment, to interact with

the minors in a nurturing way, and to understand D.D.'s special

needs of attention deficit hyperactivity disorder and posttraumatic

stress disorder; (2) learn budgeting and homemaking skills,

including appropriate hygiene and nutrition for the minors and

creating a nonhazardous home environment; (3) individual therapy

for each respondent, including mental health treatment for the

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mother and anger management and domestic violence classes for the

father; (4) visit the minors; and (5) implement what they learned.

Additionally, D.D. and the respondents also received instruction

from Screening Assessment and Support Services (SASS) and Chaddock

theraplay to learn how to interact with each other, given D.D.'s

special needs. The respondents also received psychiatric therapy

with Dr. Michael Schneider starting in 2006.

By February 3, 2005, the respondents had made sufficient

progress on their tasks to have the minors returned home. To

assist with this adjustment, Addus Health Care provided in-home

homemaking services five days per week. On the other two days per

week, a DCFS worker provided in-home assistance. However, on

September 20, 2005, the minors were placed back into foster care

because the respondents could not control the childrens' behavior,

and D.D.'s psychiatrist believed he would be in "grave danger" were

he to return to the respondents' home.

On May 31, 2007, the State filed a petition to terminate the

respondents' parental rights. The State alleged that the

respondents were unfit parents because, among other allegations,

they failed to make: (1) reasonable efforts to correct the

conditions that were the basis for removal of the minors (750 ILCS

50/1(D)(m)(i) (West 2002)); and (2) reasonable progress toward the

return home of the minors during any nine month period after the

adjudication of neglect and abuse (750 ILCS 50/1(D)(m)(iii) (West

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2002)).

The court conducted fitness hearings from August 1 to October

31, 2007. Schneider testified as an expert in psychology. He had

provided family therapy for the respondents since February 2006.

In his opinion, the respondents showed the "potential for being

able to provide at least minimally adequate parenting skills for

[S.D. and C.D.] in the presence of an adequate support network."

Schneider felt that the respondents had made slow but steady

progress on improving their parenting skills through counseling.

However, he did not believe they had progressed to a point where

they could benefit from specialized training to parent a child with

D.D.'s special needs. Schneider felt that when the respondents

were not rewarded for their progress, such as through additional

visitation, they would become frustrated and less engaged.

Schneider testified that he viewed the case through the eyes of the

respondents, not in the best interest of the minors.

Martha Butler provided parenting classes to the respondents.

She testified that the respondents had completed a parenting

course. However, because Butler felt the respondents needed

additional instruction, she had provided in-home training, which

was not "customary[.]" Overall, Butler felt that the respondents

had made some efforts, but they had struggled to implement the

techniques they had learned, and they needed to continue working on

most areas of parenting.

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 Butler, as well as family support specialists Sheryl Hopping

and Fran Estes, attended visits between the respondents and the

minors. Both Hopping and Estes observed the children were left

unsupervised and without life jackets while playing near a lake.

Both also observed inconsistent parenting techniques and a failure

to implement what they were taught in parenting classes. For

example, the respondents continued to scream at the minors instead

of using consequences or "time-out" as a form of discipline. Estes

observed the father strike his youngest daughter, A.D., in a

struggle over juice.1 Butler, Hopping and Estes each opined that

the respondents were unwilling to accept constructive criticism

regarding their parenting techniques.

Lisa Abbey was a family services coordinator at The Baby Fold,

where D.D. currently resided and was receiving treatment. She

testified that she supervised visits between the respondents and

D.D. She believed the respondents needed to master basic parenting

skills before learning to parent D.D.'s special needs. She

expressed concern that the respondents were loud and displayed

anger towards A.D.

Dr. Robert Lusk, the clinical director of The Baby Fold,

testified as an expert in clinical psychology. His testimony

centered on D.D.'s progress. He believed that D.D. had progressed

on reducing his anger and improving his social skills.

1
A.D. is not involved in this case.

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 Niewohner, the DCFS caseworker assigned to this case from

September 2003 until August 2006, also testified. She acknowledged

that the minors were returned home to the respondents in January

2005, and that the respondents improved on their parenting skills

while under the in-home monitoring of Addus and DCFS. However, the

respondents regressed on their parenting skills once the in-home

assistance was reduced. The respondents also unilaterally

discontinued some services, including family therapy and Chaddock

theraplay. In a report dated June 2006, Niewohner believed that

the respondents were not capable of providing nurturing care and

management of the minors on a full-time basis.

Tricia Boughton, the caseworker from July 2006 until the time

of the hearing, testified she was concerned because the respondents

had not addressed the issues that initiated the opening of the

case, especially failing to take responsibility for the verbal and

physical abuse they inflicted on the minors. In a client service

plan she filed in April 2007, Boughton stated that "without [the

respondents'] ability to address this [abuse], *** thier (sic)

children will be at further risk of harm." She was also concerned

that the father did not believe D.D. had special needs.

Because the respondents were not consistently performing their

service plan tasks or implementing what they had learned, Boughton

rated their overall progress on each service plan from September

2005 to the present as unsatisfactory. In the April 2007 service

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plan, Boughton specifically addressed the respondents' progress

regarding discipline and nurturing of the minors. She noted that

further abuse could occur "without the [respondents'] ability to

acknowledge the [physical] abuse as well as thier (sic) ability to

be realistic regarding the significant needs of [D.D.]"

Boughton also testified that the respondents were sometimes

hostile towards her. During a visit in April 2007, she recommended

to the respondents that they watch videos with the minors only once

per month. The respondents disagreed and yelled at Boughton,

causing A.D. to cry and hide beneath a blanket.

The trial court found that the State had proven, beyond a

reasonable doubt, that the respondents were unfit for failing to

make: (1) reasonable efforts to correct the conditions that were

the basis for removal of the minors (750 ILCS 50/1(D)(m)(i) (West

2002)); and (2) reasonable progress toward the return home of the

minors during any nine month period after the adjudication of

neglect and abuse (750 ILCS 50/1(D)(m)(iii) (West 2002)).

After the fitness hearing, the mother's trial counsel sent her

a letter that alleged she had not been truthful with him and

offered a critical opinion of the respondents' efforts on their

service plan tasks and their parenting skills. The mother sent

this letter to the court. The court appointed different counsel to

represent the mother for the best interest hearing.

At the best interest hearing, Brian Joe, a representative of

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the Cherokee Tribe, was qualified as an expert in the Cherokee

Tribe. Although Joe was a member of the Navajo Tribe, he had

completed 40 hours of coursework on the history of the Cherokee

Nation, possessed a bachelor's degree, and was currently working

towards a master's degree. He attended courses conducted by the

Cherokee Nation on the ICWA, and also participated in Cherokee

powwows and holidays. According to Joe, a Cherokee Indian's family

is to be held in "high importance" to them, and "children are

[their] main concern." Joe testified that he and Paden had worked

with DCFS to monitor the case for the Cherokee Tribe.

Specifically, they ensured that the court and DCFS complied with

the mandates of the ICWA.

According to Joe, DCFS met the requirement of using "active

efforts" in providing services to keep the family intact, although

these services had ultimately been unsuccessful. 25 U.S.C.A.

§1912(d) (West 2001). Joe noted that DCFS had provided "quite a

few services" since the opening of the case in 2003. Joe believed

that the respondents would not have benefited from courses

regarding D.D.'s special needs because they did not accept that

D.D. had special needs and had not mastered basic parenting skills.

Joe further testified that he had reviewed the reports of the other

service providers in the case. He said that the respondents

"weren't able to take what resources they had been given *** and

*** apply more positive parenting style for the children." Thus,

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the Cherokee Tribe did not oppose termination of the respondents'

parental rights.

The court found that it was in the best interest of the minors

to terminate the respondents' parental rights. The court based

this finding on: (1) the respondents' lack of progress on their

tasks; (2) S.D. and C.D.'s bond with their foster parents, whom

they had resided with since the outset of the case, and the foster

parents' desire to adopt them; and (3) the minors' need for

permanence and stability. The court also specifically found that

the return home of the children would likely result in potential

serious emotional or physical harm to them, as stated in section

1912(f) of the ICWA. 25 U.S.C.A. §1912(f) (West 2001).

ANALYSIS

I. Expert Testimony

The respondents first contend that the State failed to meet

the requirements of section 1912(f) of the ICWA because no

qualified expert witness testified that continued custody by the

parents was likely to result in serious emotional or physical

damage to the children. They also assert that the trial court

failed to determine whether custody by the parents was likely to

result in serious emotional or physical damage to the children.

A. ICWA

The ICWA was enacted by Congress in response to the "growing

concern over the consequences to Indian children, families and

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tribes of abusive welfare practices which separated large numbers

of Indian children from their families and tribes through adoption

or foster care placement, usually in non-Indian homes." In re

C.N., 196 Ill. 2d 181, 203, 752 N.E.2d 1030, 1043 (2001), citing

Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 104

L. Ed. 2d 29, 109 S. Ct. 1597 (1989).

The ICWA articulates the minimum federal standards for the

removal of an Indian child from his or her family. 25 U.S.C.A.

§1902 (West 2001); C.N., 196 Ill. 2d 181, 752 N.E.2d 1030.

Pursuant to section 1912(f), no termination of parental rights may

be ordered in the absence of a finding, beyond a reasonable doubt

and supported by the testimony of "qualified expert witnesses,"

that the continued custody of the children by their parents is

likely to result in serious emotional or physical damage to them.

25 U.S.C.A. §1912(f) (West 2001).

B. Expert Witness Testimony

The ICWA does not define "qualified expert witness." However,

the Bureau of Indian Affairs has issued nonbinding guidelines to

assist state courts in their application of the ICWA. 44 Fed. Reg.

67,584 (1979); see C.N., 196 Ill. 2d 181, 752 N.E.2d 1030. Under

those guidelines, an expert witness may be: (1) a member of the

Indian child's tribe who is recognized by the tribe as possessing

knowledge of tribal customs as they pertain to family structure and

child rearing; (2) a lay witness having substantial experience in

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the delivery of child and family services to Indians, and extensive

knowledge of prevailing cultural and social customs of the Indian

child's tribe; or (3) professionals who have substantial education

in their area of specialty. 44 Fed. Reg. at 67,593, pars.

D.4(b)(i) through (iii) (1979).

The commentary to the guidelines provide that the expert

should determine: (1) whether the parents' conduct will cause

serious physical or emotional harm to the child; and (2) if the

parent can be persuaded to change the damaging conduct. 44 Fed.

Reg. at 67,593, par. D.4 (1979). Courts have considered the

testimony of an expert witness, in conjunction with the testimony

of lay witnesses, sufficient to meet section 1912(f) of the ICWA.

See In re Kreft, 148 Mich. App. 682, 384 N.W.2d 843 (1986).

In this case, Joe testified that he had substantial practical

knowledge and education regarding the Cherokee Tribe. Thus, he met

the "qualified expert witness[]" requirement of section 1912(f).

25 U.S.C.A. §1912(f) (West 2001).

Joe stated that he performed an independent review of the case

by reading reports filed by the other caseworkers and speaking with

them. In his opinion, the respondents did not implement the skills

they were taught to apply a more positive parenting style for the

children and had not achieved basic parenting skills. Other

service providers agreed that the respondents had not achieved

basic parenting skills and had not accepted the reasons why the

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instant juvenile case was opened. Further, Boughton noted that

because the respondents were unwilling to acknowledge the past

physical and verbal abuse they inflicted on the minors, the minors

would "be at further risk of harm." Thus, Joe's testimony, in

conjunction with the testimony of the other caseworkers,

sufficiently met the requirements of section 1912(f) that the

record show that continued custody of the children by the parents

was likely to result in serious emotional or physical harm.

C. Trial Court Finding

The respondents also allege that the court did not determine

that continued custody of the children by the respondents would

likely result in serious emotional or physical damage to the

minors. However, in the order providing for the termination of the

respondents' parental rights, the court found that "the return of

the children to the parents is likely to result in potential

serious emotional or physical damage to the children; therefore, a

termination of parental rights is warranted." Thus, we find the

court complied with the requirements of section 1912(f) of the

ICWA.

II. Active Efforts

Next, the respondents contend that the State failed to prove

that active efforts were made to prevent the breakup of their

family.

Section 1912(d) of the ICWA provides that in a termination

13
proceeding, the party "shall satisfy the court that active efforts

have been made to provide remedial services and rehabilitative

programs designed to prevent the breakup of the Indian family and

those efforts have proved unsuccessful." 25 U.S.C.A. §1912(d)

(West 2001). The State has the burden to show compliance with the

active efforts requirement by a preponderance of the evidence. In

re Cari B., 327 Ill. App. 3d 743, 763 N.E.2d 917 (2002).

The record supports the court's determination that the State

met its burden of establishing active efforts by a preponderance of

the evidence. DCFS offered a number of services to the

respondents, including extensive homemaking services, mental health

counseling, and classes in parenting, anger management, and

domestic violence. The evidence indicates, however, that the

respondents failed to learn from the programs.

Although the respondents argue that "DCFS provided no services

or assistance to the [respondents] for their special needs

children," the record shows that these services were offered

through SASS and Chaddock theraplay. The father refused to

recognize D.D.'s special needs. Also, Schneider testified that

because the respondents had not been consistent in implementing

basic parenting skills, further services, such as those concerning

D.D.'s special needs, could not be offered.

Thus, the record supports the trial court's holding that the

State met its burden under section 1912(d) of the ICWA and

14
established active efforts by a preponderance of the evidence.

Still, the record does not show the counsel's representation

of the mother fell below an objective standard of reasonableness.

CONCLUSION

The judgment of the circuit court of Hancock County is

affirmed.

Affirmed.

O'BRIEN and WRIGHT, JJ., concurring.

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