{ "id": 4280486, "name": "In re D.D., Jr., et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. D.D., Sr., et al., Respondents-Appellants)", "name_abbreviation": "People v. D.D.", "decision_date": "2008-11-05", "docket_number": "No. 3\u201408\u20140442", "first_page": "1053", "last_page": "1062", "citations": [ { "type": "official", "cite": "385 Ill. App. 3d 1053" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "763 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "327 Ill. App. 3d 743", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 79347 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/327/0743-01" ] }, { "cite": "384 N.W.2d 843", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1986, "opinion_index": 0 }, { "cite": "148 Mich. App. 682", "category": "reporters:state", "reporter": "Mich. App.", "case_ids": [ 2256179 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/mich-app/148/0682-01" ] }, { "cite": "44 Fed. Reg. 67,584", "category": "reporters:federal", "reporter": "Fed. Reg.", "weight": 3, "year": 1979, "pin_cites": [ { "page": "67,593" }, { "page": "67,593" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a71902", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "opinion_index": 0 }, { "cite": "490 U.S. 30", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605240 ], "weight": 3, "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/0030-01" ] }, { "cite": "752 N.E.2d 1030", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "1043" } ], "opinion_index": 0 }, { "cite": "196 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351282 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0181-01" ] }, { "cite": "25 U.S.C. \u00a71911", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(b)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a7\u00a71912", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 6, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" }, { "page": "(1)" }, { "page": "(f)" }, { "page": "(f)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "25 U.S.C. \u00a71903", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 2000, "pin_cites": [ { "page": "(4) et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 854, "char_count": 20170, "ocr_confidence": 0.799, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14368521099106552 }, "sha256": "d1ae6e650dd4579c51e07033f722cc96ef62087965ad76319678531464f5f369", "simhash": "1:0da3e743b0a1c5eb", "word_count": 3238 }, "last_updated": "2023-07-14T18:58:06.429737+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re D.D., Jr., et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. D.D., Sr., et al., Respondents-Appellants)." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nRespondent 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 \u201cIndian Child [ren]\u201d under the federal Indian Child Welfare Act (ICWA) (25 U.S.C. \u00a71903(4) et seq. (2000)); 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. \u00a7\u00a71912(d), (f) (2000)), and that the mother\u2019s trial counsel provided ineffective assistance. We affirm.\nFACTS\nOn 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 \u201cfilthy\u201d; (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 \u201cIndian Childfren]\u201d under the ICWA (25 U.S.C. \u00a71911(b) (2000)), the Cherokee Nation filed a notice of intervention pursuant to section 1911(c) of that Act (25 U.S.C. \u00a71911(c) (2000)). 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.\nA family service provider filed a social history report in October 2003. She reported that the respondents\u2019 household functioned in \u201ctotal chaos\u201d; the respondents did not possess \u201cany parenting skills\u201d; and the minors would not \u201chave the opportunity to function in a normal environment as long as [they were] subjected to the verbal abuse\u201d 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.\nOn 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.\u2019s 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.\nNiewohner 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.\u2019s 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 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.\u2019s special needs. The respondents also received psychiatric therapy with Dr. Michael Schneider starting in 2006.\nBy 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 children\u2019s behavior and D.D.\u2019s psychiatrist believed he would be in \u201cgrave danger\u201d were he to return to the respondents\u2019 home.\nOn May 31, 2007, the State filed a petition to terminate the respondents\u2019 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/l(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/l(D)(m)(iii) (West 2002)).\nThe 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 \u201cpotential 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.\u201d 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.\u2019s 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.\nMartha 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 \u201ccustomary.\u201d 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.\nButler, 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 \u201ctime-out\u201d as a form of discipline. Estes observed the father strike his youngest daughter, A.D., in a struggle over juice. Butler, Hopping and Estes each opined that the respondents were unwilling to accept constructive criticism regarding their parenting techniques.\nLisa 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.\u2019s special needs. She expressed concern that the respondents were loud and displayed anger towards A.D.\nDr. Robert Lusk, the clinical director of The Baby Fold, testified as an expert in clinical psychology. His testimony centered on D.D.\u2019s progress. He believed that D.D. had progressed on reducing his anger and improving his social skills.\nNiewohner, 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.\nTricia 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 \u201cwithout [the respondents\u2019] ability to address this [abuse], *** thier [sic] children will be at further risk of harm.\u201d She was also concerned that the father did not believe D.D. had special needs.\nBecause 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 plan, Bough-ton specifically addressed the respondents\u2019 progress regarding discipline and nurturing of the minors. She noted that further abuse could occur \u201cwithout the [respondents\u2019] ability to acknowledge the [physical] abuse as well as thier [sic] ability to be realistic regarding the significant needs of [D.D.]\u201d\nBoughton also testified that the respondents were sometimes hostile toward 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.\nThe 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/l(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)).\nAfter the fitness hearing, the mother\u2019s trial counsel sent her a letter that alleged she had not been truthful with him and offered a critical opinion of the respondents\u2019 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.\nAt the best interest hearing, Brian Joe, a representative of 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\u2019s degree, and was currently working toward a master\u2019s 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\u2019s family is to be held in \u201chigh importance\u201d to them, and \u201cchildren are [their] main concern.\u201d 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.\nAccording to Joe, DCFS met the requirement of using \u201cactive efforts\u201d in providing services to keep the family intact, although these services had ultimately been unsuccessful. 25 U.S.C. \u00a71912(d) (2000). Joe noted that DCFS had provided \u201cquite a few services\u201d since the opening of the case in 2003. Joe believed that the respondents would not have benefited from courses regarding D.D.\u2019s 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 \u201cweren\u2019t able to take what resources they had been given *** and *** apply more positive parenting style for the children.\u201d Thus, the Cherokee Tribe did not oppose termination of the respondents\u2019 parental rights.\nThe court found that it was in the best interest of the minors to terminate the respondents\u2019 parental rights. The court based this finding on: (1) the respondents\u2019 lack of progress on their tasks; (2) S.D.\u2019s and C.D.\u2019s bond with their foster parents, whom they had resided with since the outset of the case, and the foster parents\u2019 desire to adopt them; and (3) the minors\u2019 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. \u00a71912(1) (2000).\nANALYSIS\nI. Expert Testimony\nThe 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.\nA. ICWA\nThe ICWA was enacted by Congress in response to the \u201cgrowing concern over the consequences to Indian children, families and 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.\u201d 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).\nThe ICWA articulates the minimum federal standards for the removal of an Indian child from his or her family. 25 U.S.C. \u00a71902 (2000); 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 \u201cqualified expert witnesses,\u201d 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. \u00a71912(f) (2000).\nB. Expert Witness Testimony\nThe ICWA does not define \u201cqualified expert witness.\u201d 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\u2019s 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 the delivery of child and family services to Indians, and extensive knowledge of prevailing cultural and social customs of the Indian child\u2019s 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 (b)(iii) (1979).\nThe commentary to the guidelines provide that the expert should determine: (1) whether the parents\u2019 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).\nIn this case, Joe testified that he had substantial practical knowledge and education regarding the Cherokee Tribe. Thus, he met the \u201cqualified expert witness[ ]\u201d requirement of section 1912(f). 25 U.S.C. \u00a71912(f) (2000).\nJoe 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 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 \u201cbe at further risk of harm.\u201d Thus, Joe\u2019s 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.\nC. Trial Court Finding\nThe 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\u2019 parental rights, the court found that \u201cthe 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.\u201d Thus, we find the court complied with the requirements of section 1912(f) of the ICWA.\nII. Active Efforts\nNext, the respondents contend that the State failed to prove that active efforts were made to prevent the breakup of their family.\nSection 1912(d) of the ICWA provides that in a termination proceeding, the party \u201cshall 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.\u201d 25 U.S.C. \u00a71912(d) (2000). 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).\nThe record supports the court\u2019s 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 homemating 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.\nAlthough the respondents argue that \u201cDCFS provided no services or assistance to the [respondents] for their special needs children,\u201d the record shows that these services were offered through SASS and Chaddock theraplay. The father refused to recognize D.D.\u2019s 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.\u2019s special needs, could not be offered.\nThus, the record supports the trial court\u2019s holding that the State met its burden under section 1912(d) of the ICWA and established active efforts by a preponderance of the evidence.\nStill, the record does not show the counsel\u2019s representation of the mother fell below an objective standard of reasonableness.\nCONCLUSION\nThe judgment of the circuit court of Hancock County is affirmed.\nAffirmed.\nO\u2019BRIEN and WRIGHT, JJ., concur.\nA.D. is not involved in this case.", "type": "majority", "author": "JUSTICE LYTTON" } ], "attorneys": [ "Stephen B. Morris, of Hamilton, for appellant D.D., Sr.", "Thomas Hartzell, of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for appellant A.D.", "Jim Drozdz, State\u2019s Attorney, of Carthage (Terry A. Mertel and Richard T. Leonard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re D.D., Jr., et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. D.D., Sr., et al., Respondents-Appellants).\nThird District\nNo. 3\u201408\u20140442\nOpinion filed November 5, 2008.\nStephen B. Morris, of Hamilton, for appellant D.D., Sr.\nThomas Hartzell, of Hartzell, Glidden, Tucker & Hartzell, of Carthage, for appellant A.D.\nJim Drozdz, State\u2019s Attorney, of Carthage (Terry A. Mertel and Richard T. Leonard, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1053-01", "first_page_order": 1069, "last_page_order": 1078 }