                                  Illinois Official Reports

                                          Appellate Court



                                 In re F.O., 2014 IL App (1st) 140954



Appellate Court              In re F.O., a Minor (The People of the State of Illinois, Petitioner-
Caption                      Appellee, v. Angela B., Respondent-Appellant).


District & No.               First District, Fifth Division
                             Docket No. 1-14-0954


Filed                        November 21, 2014


Held                         In proceedings arising from a petition for the adjudication of wardship
(Note: This syllabus         of a nine-year-old minor based on the claim that he was neglected and
constitutes no part of the   abused and subject to a substantial risk of physical injury at the hands
opinion of the court but     of respondent, his mother, the juvenile court, in subsequent
has been prepared by the     proceedings seeking to terminate respondent’s parental rights so that
Reporter of Decisions        the minor could be adopted by the foster parents he had been living
for the convenience of       with following the adjudication of wardship, properly found that the
the reader.)                 minor was not an Indian child and was not subject to the Indian Child
                             Welfare Act, since the juvenile court’s investigation of the
                             information provided by respondent about her alleged Indian heritage
                             received no confirmation from any tribal organizations that
                             respondent’s allegations were recognized, the juvenile court’s
                             investigation was proper under the Act, and its finding was affirmed.




Decision Under               Appeal from the Circuit Court of Cook County, No. 07-JA-865; the
Review                       Hon. Maxwell Griffin, Jr., Judge, presiding.



Judgment                     Affirmed.
     Counsel on                 Abishi C. Cunningham, Jr., Public Defender, of Chicago (Suzanne A.
     Appeal                     Isaacson, Assistant Public Defender, of counsel), for appellant.

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

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



     Panel                      JUSTICE GORDON delivered the judgment of the court, with
                                opinion.
                                Presiding Justice Palmer and Justice McBride concurred in the
                                judgment and opinion.


                                                  OPINION

¶1         The instant appeal concerns one issue: Did the juvenile court properly determine that the
       minor, nine-year-old F.O., was not subject to the Indian Child Welfare Act (ICWA) (25 U.S.C.
       § 1901 et seq. (2006)) prior to terminating respondent Angela B.’s parental rights? For the
       reasons that follow, we affirm.

¶2                                          BACKGROUND
¶3         Since the issues on appeal concern only compliance with the ICWA and respondent is not
       challenging the factual or legal basis of the termination of her parental rights, 1 we relate the
       facts of the termination proceedings briefly for context and set forth facts concerning
       respondent’s claimed Native American heritage in greater depth.

¶4                                    I. Adjudication of Wardship
¶5         On October 16, 2007, the State filed a petition for adjudication of wardship, asking for
       F.O., a male minor born November 24, 2004, to be adjudicated a ward of the court; the State
       also filed a motion for temporary custody the same day. The adjudication petition claimed that
       F.O. was neglected due to an “environment *** injurious to his welfare” and was abused in
       that his parent or immediate family member “[c]reate[d] a substantial risk of physical injury to
       such minor by other than accidental means which would be likely to cause death,
       disfigurement, impairment of emotional health, or loss of impairment of any bodily function.”
¶6         The facts underlying both claims are the same. Respondent, F.O.’s mother, had two prior
       investigations for “substance misuse,” “environment injurious to health and welfare,” and

             1
            We note, however, that if respondent was to prevail on her claims, the termination of her parental
       rights would need to be conditionally reversed.

                                                      -2-
       “substantial risk of physical injury.” On October 12, 2007, respondent “brought this minor’s
       sibling to Children’s Memorial Hospital. This minor’s sibling was deceased on arrival to the
       hospital. Medical personnel state that mother’s explanation as to when the child died is not
       consistent with the condition of the body.” Respondent admitted to a history of mental illness
       and that she threatened to kill herself and her children. “Mental health professionals” stated
       that respondent “has a mental health diagnosis of major depression with psychotic features,
       bi-polar and post traumatic stress disorder.” Respondent was psychiatrically hospitalized, and
       the whereabouts of F.O.’s father were unknown.2
¶7         Based on the facts alleged in the State’s petition for adjudication of wardship, on October
       16, 2007, the juvenile court found probable cause that F.O. was abused or neglected and that
       immediate and urgent necessity existed to support his removal from the home. The court
       granted temporary custody to the Department of Children and Family Services (DCFS)
       guardianship administrator with the right to place F.O.
¶8         On July 24, 2008, the juvenile court entered an adjudication order finding F.O. neglected
       due to “injurious environment,” in part because “the natural mother failed to recognize that the
       3 month old sibling of this minor was deceased for at least 2 hours while in her care and
       custody.” On August 21, 2008, the juvenile court entered a disposition order making F.O. a
       ward of the court and finding respondent unable for some reason other than financial
       circumstances alone to care for, protect, train, or discipline him. The court further found that
       reasonable efforts had been made to prevent or eliminate the need for removal of F.O. from his
       home. The court placed F.O. in the custody of a DCFS guardianship administrator with the
       right to place him.
¶9         Respondent appealed, and we affirmed the juvenile court. In re F.O., No. 1-08-2495 (2008)
       (unpublished order under Supreme Court Rule 23).

¶ 10                                      II. Termination Petition
¶ 11       On July 10, 2012, the State filed a supplemental petition for the appointment of a guardian
       with the right to consent to adoption (termination petition). In its petition, the State alleged,
       inter alia, that respondent was unfit because she had “failed to make reasonable efforts to
       correct the conditions which were the basis for the removal of the child from [her] and/or ha[d]
       failed to make reasonable progress toward the return of the child to [her] within 9 months after
       the adjudication of neglect or abuse under the Juvenile Court Act, *** and/or within any 9
       month period after said finding,” in violation of section 1(D)(m) of the Adoption Act (750
       ILCS 50/1(D)(m) (West 2012)) and section 2-29 of the Juvenile Court Act of 1987 (705 ILCS
       405/2-29 (West 2012)). Additionally, the petition alleged that it would be in F.O.’s best
       interest to appoint a guardian with the right to consent to his adoption because he had resided
       with his foster parent since October 2007, the foster parent wished to adopt F.O., and adoption
       by the foster parent would be in F.O.’s best interest.
¶ 12       On January 25, 2013, the parties came before the juvenile court for a trial on the State’s
       termination petition, which lasted over several court dates. Prior to the start of trial on April 3,
       2013, the court stated that it wished to “address the ICWA concern.” The State indicated that
       respondent had testified in 2008 that she had Native American heritage through several tribes,

           2
            F.O.’s father is not a party to the instant appeal. Accordingly, we relate facts concerning F.O.’s
       father only where necessary to our consideration of the instant appeal.

                                                      -3-
       but also testified that she was not an enrolled member of any tribe and did not have any
       enrolled family members. The court noted that although respondent had previously made
       comments suggesting that she was not aware of any family member who was enrolled in an
       Indian tribe, under the ICWA, “even though the family member may not be enrolled, the child
       may be eligible for enrollment.”
¶ 13       The court explained:
                   “The standard for, or the requirements for eligibility in any particular Indian tribe,
               is dictated by that tribe, and it varies from tribe to tribe. Certain relations may make you
               eligible in one tribe for membership. Those same exact relations in another tribe might
               not make you eligible.
                   That’s why we give notice to the tribe, so they can make a determination as to
               whether they would claim that the child in question, in this case [F.O.], is eligible and
               entitled to the protections of the ICWA.”
       The court instructed respondent’s counsel that “I’m going to ask you to sit down with your
       client and specifically determine what the nature of her American Indian heritage is; okay?
       And then the parties will work together to confirm one way or the other what if anything was
       done to follow up.” The court stated that “before we conclude these proceedings, I’m going to
       make sure that we have complied with ICWA. It comes late in the game, but it’s–I think we
       need to do that.”
¶ 14       At that same court date, prior to presenting closing argument, respondent discussed her
       Native American heritage with the court:
                   “RESPONDENT’S COUNSEL: [T]he Court did direct me to talk to my client
               about the Native American Indian heritage and the issues that were brought up. I have
               spoken to my client in regards to those issues.
                   My client says that in January of 2008, she did specifically identify a number of
               tribes/nations of the–
                   THE COURT: Yeah. So, what are they?
                   RESPONDENT’S COUNSEL: That would be the Apat–Athabascan
               Muskogeon–Muskogeon, and that is Choctaw.
                   Correct?
                   RESPONDENT: May I speak, Judge?
                   THE COURT: Sure.
                   RESPONDENT: Okay. As I have told counsel here, Choctaw is Muskogeon.
               Seminole Creek is Muskogeon. Mescalero Apache is Athabascan.
                   With Native Americans, you have a nation and then the name is the tribe; and due
               to the U.S. government and some politics, you know, so…
                   RESPONDENT’S COUNSEL: What are the names?
                   RESPONDENT: The Athabascan is Mescalero Apache. Seminole Creek is
               Muscogee. Choctaw, C-h-o-c-t-a-w, is Muskogeon.
                   THE COURT: Thank you.
                   RESPONDENT: I’d just like to make that clear again, please. Sorry.




                                                    -4-
                  THE COURT: That’s all right. But what are you telling me about this? Are
              you–You’re not telling me you belong to any of those tribes. You have relatives that
              did?
                  RESPONDENT: No. I belong to the tribes. Meaning, by blood.”
       Respondent later explained further:
                  “I am an intertribal Native American. My mother and father have one tribe in
              common, which is Seminole Creek. My father’s side is Choctaw Seminole Creek. My
              mother’s side is Athabascan, which is the Mescalero Apache and also Seminole Creek,
              so I am more Seminole Creek than I am of the Choctaw and the Apache.”
       Respondent stated that her mother had her enrollment card, but that since her mother had
       abandoned her, respondent did not have it; respondent’s mother was not enrolled, but
       respondent’s father enrolled her on his side. She confirmed that the authorities would be able to
       give the tribe her name to verify enrollment, but stated that “[y]ou’ll have to go to the
       Oklahoma side. *** Durant, Oklahoma.”

¶ 15                                       III. ICWA Compliance
¶ 16       On April 23, 2013, the parties came before the court for a status hearing on, inter alia,
       compliance with the ICWA. The State was still investigating whether it had taken any action
       concerning the ICWA earlier in the proceedings, but indicated that “[s]ince the last court date,
       we’ve sent notice to all the tribes that [respondent] identified at trial. We’ve not received
       anything yet.” The court asked which tribes were sent notice, and the prosecutor responded:
                    “Apache, Choctaw, Seminole Creek, Muscogee, and we’ve tried Athabascan as
               well, but it’s not–it doesn’t seem[ ] to be recognized by the Bureau of Indian Affairs so
               we also did a notice with tribal affiliation unknown which my understanding is that
               when we do that, the Bureau of Indian[ ] Affairs checks an individual’s–the
               individual’s name that we give for any tribal affiliation et al.”
       The prosecutor further indicated that the searches were proceeding under the names of
       respondent and respondent’s parents.
¶ 17       At a status hearing on May 15, 2013, the prosecutor indicated that she had reviewed the
       State’s files and had determined that notice was given to several Native American tribes when
       the case began in 2008, and she presented six exhibits in support. People’s group exhibit No. 1
       was 18 return receipts from 2008 and was admitted into evidence without objection. People’s
       group exhibit No. 2 was 15 letters to the State’s Attorney’s office from various tribes in
       response to the notices sent out by the State in 2008, all of which stated that F.O. was not a
       member or not eligible for membership, and was admitted into evidence without objection.
       Respondent’s counsel noted for the record that some of the letters had the wrong year of birth
       for F.O., with the letters stating “11/29/94” as the date of birth instead of 2004, the actual year
       of F.O.’s birth. People’s group exhibit No. 3 was 11 return receipts for notices sent out by the
       State in 2013 and was admitted without objection. People’s group exhibit No. 4 was a letter
       received by the State’s Attorney’s office from the Mescalero Apache tribe, dated April 29,
       2013, and was admitted without objection. People’s group exhibits Nos. 5 and 6 were two
       envelopes sent to F.O.’s father containing copies of the ICWA notices and were admitted
       without objection.



                                                    -5-
¶ 18        People’s group exhibit No. 1, as noted, contained 18 return receipts from 2008. The return
       receipts indicated that the State had sent notices to: (1) the Bureau of Indian Affairs, Choctaw
       Agency; (2) the Yavapai-Apache Community Council; (3) the Choctaw Nation of Oklahoma;
       (4) the Tonto Apache Tribal Council; (5) the Mescalero Apache Tribe; (6) the Fort Apache
       Agency, Bureau of Indian Affairs; (7) the Yavapai/Apache Nation; (8) the Jicarilla Apache
       Nation; (9) the Apache Tribe of Oklahoma; (10) the Fort Sill Apache Tribe of Oklahoma; (11)
       the Muscogee (Creek) Nation; (12) the White Mountain Apache Tribal Council; (13) the
       Mississippi Band of Choctaw Indians; (14) the Jena Band of Choctaw Indians; (15) the Bureau
       of Indian Affairs, Office of Human Services; and (16), (17), and (18) the Midwest Region
       Office, Bureau of Indian Affairs.3
¶ 19        People’s group exhibit No. 2, as noted, contained 15 letters to the State’s Attorney’s office.
       A letter dated February 21, 2008, from the Jena Band of Choctaw stated that F.O. and his
       relatives were not members and were not eligible for membership.
¶ 20        A letter dated March 31, 2008, from the Mescalero Apache Tribe stated that according to
       its records, respondent was not a member of the tribe. Accordingly, F.O. did not meet the
       necessary requirements to become eligible for enrollment or to be recognized with the tribe.
       The letter listed F.O.’s date of birth as “11/24/94.”
¶ 21        A letter dated March 31, 2008, from the Jicarilla Apache Nation stated that the nation’s
       record showed a lack of valid proof that there was any association with the nation. Based on
       that information, F.O. was not eligible for enrollment. The letter listed F.O.’s date of birth as
       “11/24/94.”
¶ 22        A letter dated February 25, 2008, from the Muscogee (Creek) Nation stated that F.O. could
       not be traced in the nation’s tribal records “through the adult relatives listed.” Accordingly,
       F.O. would not be considered an Indian child with relation to the nation. The letter listed F.O.’s
       date of birth as “11-24-94.”
¶ 23        A letter dated February 21, 2008, from the Choctaw Nation of Oklahoma stated that the
       nation was “unable to establish Indian heritage,” so the ICWA did not apply. The letter
       indicated that “all records are pulled by maiden names and date of birth.” The letter further
       stated that, pursuant to the Constitution of the Choctaw Nation of Oklahoma, “[t]he Choctaw
       Nation of Oklahoma shall consist of all Choctaw Indians by blood whose names appear on the
       final rolls of the Choctaw Nation *** and their lineal descendants.” The letter listed F.O.’s date
       of birth as “11-24-94.”
¶ 24        A letter dated February 19, 2008, from the White Mountain Apache Tribe stated that
       neither F.O. nor his parents were enrolled members of the tribe, nor were they eligible to
       become members of the tribe. The letter listed F.O.’s date of birth as “11/24/1994.”
¶ 25        A letter dated February 19, 2008, from the Mississippi Band of Choctaw Indians stated that
       neither F.O. nor either of his parents was enrolled with the tribe or eligible for enrollment. The
       letter listed F.O.’s date of birth as “11/24/1994.”
¶ 26        A letter dated February 14, 2008, from the Yavapai/Apache Nation stated that F.O.’s
       parents were not enrolled members of the nation. Accordingly, F.O. was not eligible for
       enrollment by the nation. The letter listed F.O.’s date of birth as “11/24/94.”

           3
            There were three return receipts with different tracking numbers and different receipt dates, all
       sent to the same office.

                                                     -6-
¶ 27       A letter dated February 13, 2008, from the Tonto Apache Tribe stated that F.O. was not
       enrolled with the tribe, nor was he eligible for enrollment. Additionally, there was no
       indication of ancestral history with the tribe.
¶ 28       A letter dated April 28, 2008, from the Fort Sill Apache Tribe stated that F.O. was not
       eligible for tribal membership as “none of the family members whom you identified can be
       linked to the Fort Sill Apache Tribe.” The letter listed F.O.’s date of birth as “11/24/94.”
¶ 29       People’s group exhibit No. 3, as noted, contained 11 return receipts from 2013. The return
       receipts indicated that the State had sent notices to: (1) the Apache Tribe of Oklahoma; (2) the
       Muscogee (Creek) Nation; (3) the Fort Apache Agency, Bureau of Indian Affairs; (4) the
       Mescalero Apache Tribe; (5) the Fort Sill Apache Tribe of Oklahoma; (6) the Bureau of Indian
       Affairs, Choctaw Agency; (7) the Choctaw Nation of Oklahoma; (8) the Mississippi Band of
       Choctaw Indians; (9) the Jena Band of Choctaw Indians; and (10) and (11) respondent.4
¶ 30       People’s group exhibit No. 4, as noted, consisted of a letter dated April 29, 2013, from the
       Mescalero Apache Tribe. The letter stated that respondent and respondent’s parents were not
       members of the Mescalero Apache Tribe and, therefore, F.O. did not meet the necessary
       requirements needed to become eligible for enrollment or recognized as a member of the
       Mescalero Apache Tribe. The letter also stated that the Mescalero Apache Tribe did not wish
       to intervene through court proceedings on the matter.
¶ 31       At a July 3, 2013, status hearing, two additional return receipts and a letter were admitted
       into evidence without objection. However, the State indicated that a recent letter from the
       Muscogee (Creek) Nation indicated that respondent was eligible for enrollment and F.O.
       would be considered an Indian child, but due to an incorrect date on the letter, the State had
       “reached out” to the tribe to clarify the issue.
¶ 32       The return receipts admitted into evidence showed that two notices had been sent to the
       Bureau of Indian Affairs, Office of Human Services. The letter admitted into evidence was
       dated May 13, 2013, and was from the Mississippi Band of Choctaw Indians. The letter stated
       that F.O., respondent, and respondent’s parents were not enrolled members of the Mississippi
       Band of Choctaw Indians and were not eligible for enrollment with the tribe. The letter
       suggested that “[y]ou may want to check with the Choctaw Nation of Oklahoma.”
¶ 33       At a July 11, 2013, status hearing, the State informed the court that it had been in contact
       with the Muscogee (Creek) Nation and it was the State’s position that the ICWA applied. The
       parties agreed that there was no need to reopen the proofs in the unfitness portion of the
       termination proceedings and that they would reargue the issue in light of the higher standard of
       proof required in ICWA cases.
¶ 34       On August 9, 2013, the parties came before the court to reargue the issue of respondent’s
       fitness in light of the ICWA standard. However, the State indicated that since the last court
       date, there had been additional ICWA developments. The public guardian stated that she had
       contacted the Muscogee (Creek) Nation, and they reran the records and determined that neither
       respondent nor F.O. was enrolled or eligible for enrollment with the nation.5 Three exhibits
       were entered into evidence.

           4
             There were two return receipts with different tracking numbers and different delivery dates, both
       sent to respondent at the same address.
           5
             The record indicates that an individual with the same name as respondent, but a different birthdate,
       was an enrolled member of the Muscogee (Creek) Nation, leading to the confusion. Once respondent’s

                                                       -7-
¶ 35        First, a letter dated July 3, 2013, from the Muscogee (Creek) Nation stated that F.O. “can
       be traced within our tribal citizenship enrollment or is eligible for enrollment through the
       immediate family member [respondent] (bio-mother).” The letter stated that F.O. would be
       considered an “ ‘Indian child’ ” with regard to the Muscogee (Creek) Nation, but that the
       Muscogee (Creek) Nation would not intervene in the matter.
¶ 36        Next, a letter dated August 8, 2013, from the Muscogee (Creek) Nation stated that based on
       “additional information recently provided,” F.O. “cannot be traced within our tribal records.”
       The letter explained that the “related immediate family members,” respondent and F.O.’s
       father, were not found to be enrolled members. The letter stated that F.O. would not be
       considered an “ ‘Indian child[ ]’ ” in relation to the Muscogee (Creek) Nation and the
       Muscogee (Creek) Nation was not empowered to intervene in the matter.
¶ 37        Finally, a letter dated July 8, 2013, from the Apache Tribe of Oklahoma stated that F.O.’s
       name was submitted to the Apache Tribe of Oklahoma enrollment office for confirmation of
       enrollment or eligibility, and the enrollment office concluded that “the child and members
       listed on the ancestral chart are not located in the enrollment records.” The letter explained that
       “[i]n order to be eligible for enrollment, a blood quantum of one-eighth (1/8) degree is
       required. For the child to be eligible, at least one of the great-grandparents must be or must
       have been enrolled with a blood quantum of four-fourths (4/4) degree.” The letter concluded
       that “[a]dditional notice to the Apache Tribe of Oklahoma Indian Child Welfare [Program]
       regarding this child will not be necessary.”
¶ 38        The matter was continued until August 19, 2013. On that date, respondent’s attorney stated
       that “I have not been able to obtain any information through my conversations that ICWA
       would apply at this point besides the representations of my client that she has made on the
       record.” The public guardian asked the court whether it would be willing to make a finding that
       ICWA did not apply, but the court responded that “I’m still not willing to make a finding. I’m
       not going to put it in order form. I don’t do that in any other case, and they’re not maintaining
       that it does. *** So, as I’ve said on the record, at this point in time based on the information we
       have, there’s no indication that ICWA applies. The Court will use the burden of proof reflected
       in the Juvenile Court Act in making determinations on this proceeding.”
¶ 39        On December 30, 2013, the parties came before the juvenile court for the court’s ruling on
       the unfitness portion of the termination proceedings. The court summarized the history of the
       proceedings, noting that after testimony had concluded at the termination trial, there was
       concern as to whether the ICWA applied and “the Court wanted to be clear and give the mother
       every benefit of the doubt as to whether we could establish her claim to American Indian
       heritage.” After inquiring with respondent and various tribes and waiting for responses, “we
       were finally at a point where the Court was comfortable saying that appropriate efforts had
       been made to establish or rule out this case and this child falling under the Indian Child
       Welfare Act. And we were not able to show that, that it applies.”
¶ 40        On March 11, 2014, the juvenile court entered an order finding by clear and convincing
       evidence that respondent was unfit due to failure to make reasonable progress to correct the
       conditions that were the basis of the removal during five nine-month periods: July 25, 2008,
       through April 25, 2009; April 26, 2009, through January 26, 2010; January 26, 2010, through

       birthdate was provided, the nation determined that respondent was not an enrolled member of the
       nation.

                                                    -8-
       September 27, 20106; September 28, 2010, through June 28, 2011; and June 28, 2011, though
       March 29, 2012. The court further found that it was in F.O.’s best interest to terminate
       respondent’s parental rights. Accordingly, the court ordered the parental rights of respondent
       terminated. This appeal follows.

¶ 41                                          ANALYSIS
¶ 42       On appeal, respondent claims that the juvenile court did not properly determine whether
       F.O. was an Indian child subject to the ICWA and, therefore, the order finding her unfit and
       terminating her parental rights must be reversed and the cause remanded for a proper ICWA
       determination.

¶ 43                                              I. ICWA
¶ 44       Under the ICWA, “[i]n any involuntary proceeding in a State court, where the court knows
       or has reason to know that an Indian child is involved, the party seeking the foster care
       placement of, or termination of parental rights to, an Indian child shall notify the parent or
       Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested,
       of the pending proceedings and of their right of intervention. If the identity or location of the
       parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the
       Secretary [of the Interior] in like manner ***.” 25 U.S.C. § 1912(a) (2006). “ ‘Indian child’ ”
       is further defined as “any 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) (2006).
¶ 45       “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 T.A., 378 Ill. App. 3d 1083, 1089 (2008). “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.” In re T.A., 378 Ill. App. 3d at 1090. “The party
       asserting the applicability of the [ICWA] has the burden of producing sufficient evidence for
       the court to determine if the child is an Indian child.” In re T.A., 378 Ill. App. 3d at 1090.
¶ 46       If a child is subject to the ICWA, upon the petition of either parent or the Indian child’s
       tribe, the termination proceeding is to be transferred to the tribal court unless there is good
       cause to the contrary or the tribe declines jurisdiction. 25 U.S.C. § 1911(b) (2006).
       Additionally, if a child is subject to the ICWA, “[n]o termination of parental rights may be
       ordered in such proceeding in the absence of a determination, supported by evidence beyond a
       reasonable doubt, including testimony of qualified expert witnesses, that the continued custody
       of the child by the parent or Indian custodian is likely to result in serious emotional or physical
       damage to the child.” 25 U.S.C. § 1912(f) (2006). “[I]f a court fails to provide notice as
       required by section 1912 of the [ICWA], the proper remedy is to reverse the trial court’s orders
       concerning foster care placement or termination of parental rights and begin the proceedings
       anew in compliance with the requirements of the [ICWA].” In re K.T., 2013 IL App (3d)
       120969, ¶ 15.


          6
           This is actually an eight-month period, not a nine-month period.

                                                    -9-
¶ 47       Whether the juvenile court was required to give notice to an Indian tribe under the ICWA
       and the sufficiency of such notice are issues of statutory interpretation, which we review
       de novo. In re K.T., 2013 IL App (3d) 120969, ¶ 9; In re N.L., 2014 IL App (3d) 140172, ¶ 31.
       De novo consideration means we perform the same analysis that a trial judge would perform.
       Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 48                                         II. Notice to Tribes
¶ 49       In the case at bar, respondent argues that the juvenile court did not comply with the ICWA
       because (1) there was no copy of the notice sent by the State contained in the record on appeal,
       and (2) there was a “lack of conclusiveness [to] the determination that F.O. was not an Indian
       child subject to ICWA, especially in the case of Seminole and possibly in the cases of Choctaw
       and the two Oklahoma Apache tribes as well.” We do not find respondent’s arguments
       persuasive.
¶ 50       First, respondent relies on several cases in which courts have found that lack of sufficient
       documentation in the record led to reversal of the termination proceedings. For instance, in
       In re K.T., 2013 IL App (3d) 120969, ¶ 14, the Third District Appellate Court, relying on a
       Michigan Supreme Court case, held that “[i]n order to establish compliance with the [ICWA’s]
       notice provision, trial courts have a duty to ensure that the record includes, at a minimum, (1)
       the original or a copy of the actual notice sent by registered mail pursuant to section 1912, and
       (2) the original or a legible copy of the return receipt or other proof of service.” See also In re
       N.L., 2014 IL App (3d) 140172, ¶ 34 (citing In re K.T., 2013 IL App (3d) 120969, ¶ 14).
       However, in the cases respondent cites, there was no question that the child was an Indian child
       subject to the ICWA. See In re K.T., 2013 IL App (3d) 120969, ¶ 16 (noting that “there is no
       dispute that K.T. is an ‘Indian child,’ ” with evidence including a membership card); In re N.L.,
       2014 IL App (3d) 140172, ¶ 5 (at the dispositional hearing, a social history report was
       submitted to the juvenile court indicating that the father “is a registered member of the
       Minnesota Chippewa Tribe, White Earth Reservation”).
¶ 51       In the case at bar, however, as respondent’s counsel acknowledged before the juvenile
       court, the only evidence that F.O. might be an Indian child came from respondent’s claim of
       Native American heritage. Our courts have, in the past, concluded that such claims are not
       necessarily sufficient to trigger the ICWA’s notice requirements. In re C.N., 196 Ill. 2d 181,
       206 (2001) (concluding that “the brief references in the record to [the father’s] unsubstantiated
       statements concerning his alleged Indian heritage were simply insufficient to implicate the
       provisions of the ICWA” and that “[t]he circuit court had no reason to believe that C.N. may be
       an Indian child and no reason to raise the issue”); In re Anaya J.G., 403 Ill. App. 3d 875,
       881-82 (2010) (finding that the “bare assertions without any evidence” that the parents had
       relatives with Indian blood “did not give the circuit court reason to know that Anaya is an
       Indian child” and accordingly finding that “the circuit court did not err in failing to notify the
       Cherokee tribe of the proceeding and its right to intervene”); In re T.A., 378 Ill. App. 3d 1083,
       1091 (2008) (two DCFS reports that the mother had indicated she was of Native American
       descent “were insufficient to require the trial court to make a determination on the record
       whether J.A. was an Indian child,” noting that “[n]o evidence or testimony suggests that either
       [the mother] or J.A. was even eligible for membership”).
¶ 52       Furthermore, even if the ICWA’s notice requirements were triggered, we cannot find that
       the absence of the actual notices sent to the tribes establishes a lack of compliance with the

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       ICWA. As set forth in detail in the facts, the record contains numerous return receipts for the
       notices sent, as well as the tribes’ responses to the State’s letters. There is no question that
       these notices were sent and that the tribes responded; moreover, most of the letters in return
       reference the information sent to the tribe (for instance, F.O.’s name and date of birth, as well
       as those of respondent and her parents). On the facts before us, finding that the absence of the
       initial piece of paper sent to the tribes establishes noncompliance would be exalting form over
       substance.
¶ 53        We turn, then, to the determination of whether there was noncompliance in the “lack of
       conclusiveness [to] the determination that F.O. was not an Indian child subject to ICWA,
       especially in the case of Seminole and possibly in the cases of Choctaw and the two Oklahoma
       Apache tribes as well.” When asked about her tribal affiliations, respondent made two
       statements to the juvenile court. First, she stated: “As I have told counsel here, Choctaw is
       Muskogeon. Seminole Creek is Muskogeon. Mescalero Apache is Athabascan.” Later, she
       stated: “I am an intertribal Native American. My mother and father have one tribe in common,
       which is Seminole Creek. My father’s side is Choctaw Seminole Creek. My mother’s side is
       Athabascan, which is the Mescalero Apache and also Seminole Creek, so I am more Seminole
       Creek than I am of the Choctaw and the Apache.”
¶ 54        With regard to the Seminole, we must first address respondent’s motion to strike a footnote
       and the appendix from the State’s brief, which we have taken with the case and which concerns
       the Seminole. Footnote 6 of the State’s brief states: “[O]n August 4, 2014, the State’s
       Attorney’s Office sent an inquiry to the Seminole Nation of Oklahoma concerning [F.O.] and
       respondent. In a letter dated August 5, 2014, the Seminole Nation of Oklahoma stated that
       [F.O.] and his parents are not enrolled members of the Seminole Nation, that [F.O.] will not be
       considered an Indian child under ICWA, and that the Seminole Nation does not wish to
       intervene in the state court proceedings. See Appendix.” The appendix, in turn, contains copies
       of the correspondence. In her motion, respondent argues that the footnote and the appendix
       must be stricken, since Illinois Supreme Court Rule 342(a) (eff. Jan. 1, 2005), requires that an
       appendix include “materials from the record” and the materials in the State’s appendix were
       not even in existence at the time the termination order was entered. We agree with respondent
       that this information should not have been included in the appendix or in the State’s brief, even
       as a footnote. However, we have not considered it in reaching our decision and therefore deny
       respondent’s motion to strike as moot.
¶ 55        Turning to the merits of respondent’s argument concerning the Seminole, respondent
       admits that she stated that she had “Seminole Creek” heritage and that “Seminole Creek” is not
       a tribe recognized by the Bureau of Indian Affairs (the BIA). However, she nevertheless claims
       that notices should have been sent to the Seminole Tribe of Florida and the Seminole Nation of
       Oklahoma. We do not find this argument persuasive. As the public guardian notes, “[t]he party
       asserting the applicability of the [ICWA] has the burden of producing sufficient evidence for
       the court to determine if the child is an Indian child.” In re T.A., 378 Ill. App. 3d at 1090. Here,
       as the party asserting the applicability of the ICWA, respondent had the burden of sufficiently
       identifying the tribes to which she was claiming affiliation, and she did not identify either the
       Seminole Tribe of Florida or the Seminole Nation of Oklahoma but instead repeatedly referred
       to “Seminole Creek.” Additionally, the State sent notices to the BIA, as is the proper procedure




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       when the tribe is not one which is recognized by the BIA.7 See 25 U.S.C. § 1912(a) (2006) (“If
       the identity or location of the parent or Indian custodian and the tribe cannot be determined,
       such notice shall be given to the Secretary [of the Interior] in like manner ***.”). Thus, the
       State complied with its duties under the ICWA and we find no basis for reversal.
¶ 56       Next, with respect to the Choctaw, respondent claims that the 2008 letter from the Choctaw
       Nation of Oklahoma gives inaccurate information for F.O., including his date of birth and
       surname. She acknowledges a 2013 letter from the Mississippi Band of Choctaw Indians, but
       appears to claim that the lack of a 2013 letter from the Choctaw Nation of Oklahoma requires
       reversal. We do not find this argument persuasive.
¶ 57       As noted, a letter dated February 21, 2008, from the Choctaw Nation of Oklahoma stated
       that the nation was “unable to establish Indian heritage,” so the ICWA did not apply. The letter
       indicated that “all records are pulled by maiden names and date of birth.”8 The letter further
       stated that, pursuant to the Constitution of the Choctaw Nation of Oklahoma, “[t]he Choctaw
       Nation of Oklahoma shall consist of all Choctaw Indians by blood whose names appear on the
       final rolls of the Choctaw Nation *** and their lineal descendants.” There was a return receipt
       for a 2013 notice sent to the Choctaw Nation of Oklahoma, but the letter from the nation is not
       included in the record on appeal. While the 2008 letter listed incorrect information for F.O., the
       State indicated to the juvenile court that a copy of the termination petition (with the accurate
       information) was sent along with the notices to the tribes. Thus, the nation had the correct
       information in its possession. Furthermore, the nation indicated that it is respondent’s
       information that is relevant to determining membership and not F.O.’s information (this was
       also the case for most of the tribes). As explained in its letter, the nation was searching for
       “Indian heritage” through a search for respondent’s maiden name and birth date. There is no
       indication that respondent’s information was incorrect.9 Thus, there is no basis for reversal
       with regard to respondent’s Choctaw argument. See In re Trever I., 2009 ME 59, ¶ 22 n.5, 973
       A.2d 752 (rejecting a similar argument about the absence of the child’s birth date from the
       ICWA notice, noting that “the critical information needed to begin to determine Trever’s status
       as an ‘Indian child’ is not Trever’s birth date but the father’s relationship information”).
¶ 58       Finally, with respect to the Apache, respondent takes issue with the notification as to the
       Apache Tribe of Oklahoma and the Fort Sill Apache Tribe of Oklahoma; she does not
       challenge the notification to the Mescalero Apache Tribe. However, respondent specifically
       stated that she was Mescalero Apache. Thus, the notification to that tribe was sufficient to
       comply with the ICWA and notification to the other two tribes was not necessary.
¶ 59       Furthermore, the State contacted both the Apache Tribe of Oklahoma and the Fort Sill
       Apache Tribe of Oklahoma. A letter dated July 8, 2013, from the Apache Tribe of Oklahoma

           7
             We also note that on April 23, 2013, the State informed the juvenile court that a notice had been
       sent to “Seminole Creek.” However, no return receipt or letter is included in the record on appeal other
       than to the Muscogee (Creek) Nation.
           8
             It is not entirely clear from the letter whether it is the mother’s date of birth or the child’s date of
       birth that is searched for. However, as the search is for lineal descendants of members, the mother’s
       maiden name and her date of birth would make the most sense.
           9
             While respondent claims that the nation’s response “does not mention” her, again, the State
       indicated that it sent the termination petition along with the notice. Thus, the nation would have had
       respondent’s information from both the notice and the petition.

                                                        - 12 -
       stated that F.O.’s name was submitted to the Apache Tribe of Oklahoma enrollment office for
       confirmation of enrollment or eligibility, and the enrollment office concluded that “the child
       and members listed on the ancestral chart are not located in the enrollment records.” The letter
       explained that “[i]n order to be eligible for enrollment, a blood quantum of one-eighth (1/8)
       degree is required. For the child to be eligible, at least one of the great-grandparents must be or
       must have been enrolled with a blood quantum of four-fourths (4/4) degree.” The letter
       concluded that “[a]dditional notice to the Apache Tribe of Oklahoma Indian Child Welfare
       [Program] regarding this child will not be necessary.” Respondent acknowledges this letter but
       claims that “if [F.O.] is 1/8 Oklahoma Apache (with a great-grandparent enrolled), he is
       eligible. The possibility of eligibility does not appear to be foreclosed based on this letter.”
       However, respondent never claimed that F.O. had a great-grandparent enrolled in the Apache
       Tribe of Oklahoma and does not do so on appeal. Accordingly, we do not find this argument
       persuasive.
¶ 60       Additionally, a letter dated April 28, 2008, from the Fort Sill Apache Tribe stated that F.O.
       was not eligible for tribal membership as “none of the family members whom you identified
       can be linked to the Fort Sill Apache Tribe.” There was a return receipt for a 2013 notice sent to
       the tribe, but the letter from the tribe is not included in the record on appeal. Respondent’s
       arguments concerning the 2008 letter are identical to the arguments she makes with respect to
       the Choctaw, and we similarly find them unpersuasive.

¶ 61                                        CONCLUSION
¶ 62       For the reasons set forth above, we find that the juvenile court did not err in determining
       that F.O. was not an Indian child subject to the ICWA.

¶ 63      Affirmed.




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