People v. Soleil S. (In re H.S.)

2016 IL App (1st) 161589

67 N.E.3d 412

In re H.S., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Soleil S. and Julio R., Respondents–Appellants).

In re E.S., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Soleil S., Respondent–Appellant).

Nos. 1–16–1589

1–16–1727.

Appellate Court of Illinois, First District, Sixth Division.

Nov. 4, 2016.

Cook County Public Defender's Office, of Chicago (Amy P. Campanelli, Public Defender, of counsel), for appellant Soleil S.

Marv Raidbard, of Chicago, for appellant Julio R.

Robert F. Harris, Public Guardian, of Chicago (Kass A. Plain and John David Jarrett, of counsel), guardian ad litem.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Nancy Kisicki, and Michele Lavin, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice HOFFMAN delivered the judgment of the court, with opinion.

¶ 1 The respondent-appellant, Soleil S. (S.S.) appeals from the orders of the circuit court terminating her parental rights as to the minors, H.S. and E.S. (No. 1–16–1589), arguing that the record does not demonstrate compliance with the Indian Child Welfare Act of 1978 (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, 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 (4) 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, 2012, 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 months.

¶ 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 treatment.

¶ 9 When the case was heard on January 5, 2015, the court was advised that S.S. was noncompliant 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 E.S. 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. were 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, 2013, to March 7, 2014; and March 9, 2014, to December 8, 2014.

¶ 13 On April 27, 2016, a fitness hearing commenced. Testifying for the State was Sulma Garcia–Mora, the DCFS case worker assigned the cases of H.S. and E.S. from February 2014 to February 2015. Garcia–Mora testified that, when she took over the cases, S.S. was in need of individual therapy, medication monitoring, and psychiatric services. She also recommended parent coaching due to the argumentative behavior of both S.S. and J.R. She stated that, although S.S. had participated in substance abuse services, she relapsed after treatment. In addition, S.S. did not successfully complete...