People v. Amos

NO. 4-07-0785 Filed 2/15/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: T.A., Ta.A., and J.A., ) Appeal from
Minors, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Champaign County
Petitioner-Appellee, ) No. 06JA20
v. )
MICHAEL AMOS, ) Honorable
Respondent-Appellant. ) Holly F. Clemons,
) Judge Presiding.

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.

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 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

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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

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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

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 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

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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, 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, 546 N.E.2d

44, 47 (1989), citing Mississippi Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 32, 104 L. Ed. 2d 29, 36, 109 S. Ct.

1597, 1599-1600 (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,

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546 N.E.2d at 47, citing Holyfield, 490 U.S. at 35-36, 104 L. Ed.

2d at 38, 109 S. Ct. at 1061.

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 jurisdiction by the tribal

court. 25 U.S.C. §1911(b) (2000).

If the child is an Indian child, section 1912(e) of the

Act provides that no foster-care placement may be ordered absent

a determination, supported by both conclusive evidence and

qualified expert testimony, that the continued custody of the

child by the parent or Indian custodian is likely to result in

serious physical or emotional damage to the Indian child. 25

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U.S.C. §§1912(e), (f) (2000). Additionally, an Indian child

shall be placed in the least-restrictive setting, and preference

of placement shall be with the following:

"(i) a member of the Indian child's

extended family;

(ii) a foster home licensed, approved,

or specified by the Indian child's tribe;

(iii) an Indian foster home licensed or

approved by an authorized non-Indian

licensing authority; or

(iv) an institution for children

approved by an Indian tribe or operated by an

Indian organization which has a program

suitable to meet the Indian child's needs."

25 U.S.C. §1915(b) (2000).

Finally, the Act requires that the party seeking a

foster-care placement or termination of parental rights satisfy

the trial court (1) that active efforts had been made to provide

remedial services and rehabilitative programs designed to prevent

the breakup of the Indian family but (2) that those efforts were

unsuccessful. 25 U.S.C. §1912(d) (2000).

C. Trial Court Was Not Required To Make a
Determination on the Record Whether
J.A. Was an Indian Child

Respondent argues the trial court erred by failing to

make a determination on the record whether J.A. was an Indian

child. The State argues respondent forfeited this argument by

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failing to raise it in the trial court.

Whether any provisions of the Act can be forfeited is

unclear. Clearly, the notice provisions of the Act are intended

to serve the interests of the Indian tribes and cannot be

forfeited by a parent. See In re J.O., 170 P.3d 840, 842 (Colo.

App. 2007) (providing that the notice requirements cannot be

forfeited, and the issue may be raised for the first time on

appeal). However, a parent may be able to affirmatively waive

application of the procedural requirements of the Act, such as

the expert-testimony requirement, so long as the waiver is

knowingly and voluntarily made. See In re Jennifer A., 103 Cal.

App. 4th 692, 708, 127 Cal. Rptr. 2d 54, 65 (2002) (citing

California Court Rule 1439(i) and finding that a parent could

waive application of the Act's procedural requirements so long as

the waiver is knowing and voluntary); see also, e.g., In re Riva

M., 235 Cal. App. 3d 403, 412, 286 Cal. Rptr. 592, 597 (1991)

(finding the father forfeited any error in the use of the clear-

and-convincing standard and the failure to require expert

testimony by not objecting). The State does not cite, nor does

this court find, any case addressing whether a party can forfeit

the trial court's obligation to determine whether a child is an

Indian child. But see C.N., 196 Ill. 2d at 205, 752 N.E.2d at

1044 (addressing whether the trial court erred by failing to

determine whether the child was an Indian child even though the

respondent father did not raise the applicability of the Act in

the trial court and concluding that the court did not err).

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 Regardless of forfeiture, however, the trial court in

this case was not required to make a determination on the record

whether J.A. was an Indian child. The Act defines an "Indian

child" as follows:

"[A]ny unmarried person who is under age

eighteen and is either (a) a member of an

Indian tribe or (b) is eligible for

membership in an Indian tribe and is the

biological child of a member of an Indian

tribe[.]" 25 U.S.C. §1903(4) (2000).

While the definition speaks in terms of the child being a

"member" of a tribe or the biological child of a "member" of a

tribe, the absence of evidence of the child's or child's parent's

enrollment alone may not be determinative of whether the child or

parent is a member of a tribe. In re the Termination of Parental

Rights to Arianna R.G., 2003 WI 11 ¶17, 259 Wis. 2d 563, 575-76,

657 N.W.2d 363, 369 (2003) (noting that when the potential tribe

is unidentified, the criteria for membership may be unknown, and

therefore lack of enrollment in the tribe does not necessarily

preclude a person from being a member of a tribe). Tribes use a

wide range of membership criteria, and some tribes may

automatically include a person as a member if the person is a

descendant of a tribe member. Arianna R.G., 2003 WI 11 ¶17 &

n.13, 259 Wis. 2d at 575 & n.13, 657 N.W.2d at 369 & n.13. The

party asserting the applicability of the Act has the burden of

producing sufficient evidence for the court to determine if the

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child is an Indian child. C.N., 196 Ill. 2d at 205, N.E.2d at

1044.

The Bureau of Indian Affairs has promulgated nonbinding

guidelines to assist the state courts with applying the Act. See

Guidelines for State Courts: Indian Child Custody Proceedings, 44

Fed. Reg. 67,584 (1979) (hereinafter Guidelines) (noting that the

regulations were not intended to have binding legislative

effect). These Guidelines provide, in relevant part, as follows:

"When a state court has reason to

believe a child involved in a child custody

proceeding is an Indian, the court shall seek

verification of the child's status from

either the Bureau of Indian Affairs or the

child's tribe." Guidelines, 44 Fed. Reg. at

67,586, par. B.1(a).

The Guidelines also provide circumstances for when the state

court should have reason to believe a child is an Indian child.

These circumstances include when (1) a party, tribe, or agency

informs the court that the child is an Indian child; (2) a state-

licensed agency involved in child-protection services discovers

information suggesting the child is an Indian child; (3) the

child gives the court reason to believe the child is an Indian

child; (4) the residence of the child, biological parent, or

Indian custodian is known to be a predominantly Indian community;

and (5) an officer of the court involved in the proceeding has

knowledge the child may be an Indian child. See Guidelines, 44

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Fed. Reg. at 67,586, par. B.1(i) through (v).

Using, in part, those guidelines, the Illinois Supreme

Court, in C.N., held that the respondent father's unsubstantiated

statements regarding his alleged Indian heritage were

insufficient to implicate the Act. C.N., 196 Ill. 2d at 206, 752

N.E.2d at 1044. In C.N., the allegations of Indian heritage in

the record included (1) the DCFS caseworker's testimony that the

respondent father had told her he was "part of a Native American

tribe," asked her to pursue whether his family was registered,

and that she did so; and (2) a psychological assessment of

respondent father noted that the respondent father identified

himself as the son of a "'full-blooded Blackfoot Indian'"; the

report also noted that while respondent claimed to be Native

American, the caseworker provided information indicating, the

claim was not true. C.N., 196 Ill. 2d at 205, 752 N.E.2d at

1044. The supreme court held that the evidence was insufficient

to implicate the Act, and the trial court did not err by failing

to make a determination on the record regarding the applicability

of the Act. C.N., 196 Ill. 2d at 206, 752 N.E.2d at 1044.

Similarly here, the record contains only the two DCFS

reports and addendum indicating that Theresa stated "she is of

African[-]American and Native American descent." The addendum

also stated, "[Theresa] has stated that it is her understanding

that none of her family members are registered with any tribes."

Such statements were insufficient to require the trial court to

make a determination on the record whether J.A. was an Indian

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child. No evidence or testimony suggests that either Theresa or

J.A. was even eligible for membership in a tribe. See, e.g., In

re H.D., 343 Ill. App. 3d 483, 489, 797 N.E.2d 1112, 1117-18

(2003) (finding that where neither parent presented evidence to

support a finding that the child was an Indian child, the Act did

not apply, and the trial court erred by assuming the Act applied

without establishing that the child was an Indian child); In re

M.S., 302 Ill. App. 3d 998, 1001, 706 N.E.2d 524, 527 (1999)

(finding the trial court properly exercised jurisdiction in

termination of respondent mother’s parental rights as to two

children; trial court concluded respondent’s alleged Native

American heritage was not an issue; the mother had interposed the

bare allegation but failed to provide any evidence that either

she or her children were eligible for membership in any

particular tribe; respondent’s caseworker contacted several

Cherokee tribes but obtained nothing to substantiate her claim);

In re M.N.W., 577 N.W.2d 874, 877 (Iowa App. 1998)) (finding an

"unsubstantiated" statement made by the caseworker that the

child's mother indicated that the child's father was part Native

American was insufficient to require the trial court to determine

whether the child was Indian).

D. The State Was Not Required to Send Notice to the Tribe
or Secretary of the Interior

Respondent also argues that section 1912(a) of the Act

was violated because notice of the pending action was not sent to

the Cherokee Nations. As previously noted, the notice

requirements cannot be forfeited by the parents' failure to raise

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the issue in the trial court. See J.O., 170 P.3d at 842.

The Act provides that if the trial court "knows or has

reason to know" that an Indian child is involved in an

involuntary custody proceeding, the party seeking the foster-care

placement of the Indian child must notify the parent or Indian

custodian and the Indian child's tribe by registered mail of the

pending proceeding and their right to intervene. 25 U.S.C.

§1912(a) (2000). If the identity of the child's tribe cannot be

determined, notice shall be given to the Secretary of the

Interior. 25 U.S.C. §§1912(a), 1903 (2000). Any parent or

Indian custodian from whom custody an Indian child was removed or

the Indian child's tribe may petition any court of competent

jurisdiction to invalidate the custody removal upon a showing

that the notice provisions of the Act were violated. 25 U.S.C.

§1914 (2000); see also J.O., 170 P.3d at 842 (holding that a non-

Indian biological parent has standing to argue that the notice

requirements of the Act were not followed).

The Indian status of a child need not be certain before

the Act's notice provisions are triggered. Notice is required

whenever the trial court knows or has reason to know the child is

an Indian child. See 25 U.S.C. §1912(a) (2000); In re Kahlen W.,

233 Cal. App. 3d 1414, 1420, 285 Cal. Rptr. 507, 511-12 (1991)

(wherein the respondent mother asserted she was a member of an

Indian tribe and asked for additional time to await the tribe's

determination). Specifically, Indian tribes, functioning as

autonomous communities, have a separate interest in the potential

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Indian child welfare proceedings from the parties involved. In

re M.C.P., 153 Vt. 275, 285, 571 A.2d 627, 632-33 (1989) (finding

the trial court erred by not providing notice to the Mohawk

Indian Tribe where the minor's father's membership in the tribe

gave the trial court reason to know the minor may be an Indian

child).

This court must determine whether the trial court had a

"reason to know" J.A. was an Indian child, thereby triggering the

notice requirements of the Act. No Illinois case has decided

what constitutes a "reason to know" that a child is an Indian

child. In C.N., the supreme court specifically noted that the

respondent father did not argue that the State violated the

notice provisions. C.N., 196 Ill. 2d at 207, 752 N.E.2d at 1045.

Looking at other jurisdictions, we note some courts

require only a mere suspicion that a child may be an Indian child

before the notice requirement is triggered. See In re Antoinette

S., 104 Cal. App. 4th 1401, 1407-08, 129 Cal. Rptr. 2d 15, 20-21

(2002) (wherein the father's bare assertion that he believed his

deceased grandparents might have Indian ancestry was sufficient

to trigger the notice requirements); In re T.M., 245 Mich. App.

181, 187, 628 N.W.2d 570, 573 (2001) (finding the notice

provisions triggered where the respondent testified that although

she was not a member of a tribe, she was of Native American

heritage and believed she had Cherokee ancestry). This court

agrees, however, with those cases holding that the mere mention

of Indian heritage does not give a trial court reason to know

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that the child is an Indian child. See Arianna R.G., 2003 WI 11

¶¶29 through 36, 259 Wis. 2d at 580-83, 657 N.W.2d at 371-73

(finding the notice provisions were not triggered where the

father did not assert his children were members of or eligible

for membership in a federally recognized tribe or the biological

children of a tribe member); In re A.L., 2001 ND 59, 63, 623

N.W.2d 418, 422 (2001) (finding that the respondent mother's

counsel raising unsupported and vague assertions during a

termination hearing about the child's potential eligibility for

enrollment in a specific tribe was insufficient to invoke the

notice requirement of the Act); In re Johanson, 156 Mich. App.

608, 613, 402 N.W.2d 13, 15-16 (1986) (where respondent mother

made several references to the Saginaw Tribe of Chippewa Indians

but stated that she was not a member of the tribe, the court held

that it did not know or have reason to know that the child was an

Indian child); In re Guardianship of J.O., 327 N.J. Super. 304,

316, 743 A.2d 341, 347 (2000) (finding that vague and casual

references to Indian ancestry made by respondent mother's counsel

were insufficient to trigger the Act's notice requirement).

Membership in a tribe is not easily determined because membership

depends upon each tribe's particular rules. However, where the

record contains no suggestion that the child is an Indian child,

that is, a member of a tribe or the biological child of a member

of a tribe, the notice requirements are not triggered.

In this case, the only "evidence" presented consisted

of Theresa's statements to the caseworker that she was of Native

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American descent and that, to her knowledge, none of her family

members were registered with any tribes. These bare assertions

of Indian heritage, without any suggestion that either J.A.,

Theresa, or any of Theresa's relatives were members of a tribe or

possibly eligible for membership in a tribe, did not give the

trial court reason to know that J.A. was an "Indian child" as

that term is defined in the Act.

DCFS properly sought additional information regarding

Theresa's claim by attempting to contact the three Cherokee

nation tribes. After an initial continuance of the dispositional

hearing, the parties all agreed to proceed with the understanding

that any order could be vacated if information became available

showing J.A might fall within the Act's definition of "Indian

child." By agreeing to continue, the parties, including

respondent, implicitly recognized that the record afforded

insufficient evidence to trigger the notice requirements of the

Act. See Guardianship of J.O., 327 N.J. Super. at 317, 743 A.2d

at 347 (holding that "vague and casual reference to Indian

ancestry" did not trigger the notice requirements, particularly

in light of the parties' failure to provide the court with any

information suggesting Indian ancestry after being afforded the

opportunity to do so); see also, e.g., In re Z.H., 740 N.W.2d

648, 654 (Iowa Ct. 2007)) (finding no "reason to believe" child

was an "Indian child," and therefore no need to follow the notice

requirements given (1) the timing of the respondent's claim--on

the eve of termination, (2) his previous denial of Native

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American ancestry, and (3) his inability after a continuance to

provide the court with any specific information as to why he now

believed he was of Native American ancestry). Given the

unsubstantiated and vague evidence in this case, the trial court

did not have "reason to know" that J.A. may be an Indian child.

As such, the notice provisions of the Act were not triggered.

If, at some later point in response to DCFS's inquiry,

the Cherokee nation indicates the possibility that J.A. is

eligible for membership and therefore may be an "Indian child" as

defined in the Act, or if other evidence comes to light

suggesting J.A. is an Indian child, any parent, Indian custodian,

or the tribe may petition any court of competent jurisdiction to

invalidate the dispositional order upon showing that section 1912

of the Act was violated. See 25 U.S.C. §1914 (2000); Kahlen W.,

233 Cal. App. 3d at 1424, 285 Cal. Rptr. at 513 (where the

respondent did not allege she was a member of the Miwok Tribe

until after the proceedings had already begun, the court held

that notice is mandatory regardless of how late in the proceeding

a child's potential eligibility for membership in the tribe is

uncovered). However, on this record, and in light of the current

lack of evidence pertaining to J.A.'s status as an Indian child,

this court will not invalidate the trial court's dispositional

ruling.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

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Affirmed.

APPLETON, P.J., and TURNER, J. concur.

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