2023 IL App (4th) 220930 FILED
June 16, 2023
Carla Bender
NOS. 4-22-0930, 4-22-0931, 4-22-1053, 4-22-1054 cons. 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re Cal. E. a Minor, ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Carroll County
Petitioner-Appellee, )
v. )
Demerle S. and Anthony E., )
Respondents )
)
(Traditional Council of Togiak, Intervenor-Appellee; )
Connie W. and David W., Intervenors-Appellants)). )
____________________________________________ ) Nos. 20JA3,
) 20JA4
In re Cas. E. a Minor, )
)
(The People of the State of Illinois, )
Petitioner-Appellee, )
v. )
Demerle S. and Anthony E., )
Respondents )
) Honorable
(Traditional Council of Togiak, Intervenor-Appellee; ) David M. Olson,
Connie W. and David W., Intervenors-Appellants)). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Harris and Doherty concurred in the judgment and opinion.
OPINION
¶1 In April 2020, the State filed petitions for adjudication of wardship alleging that
Cal. E. (a male born December 2012) and Cas. E. (a female born November 2014), the children of
Demerle S. and Anthony E., were neglected. Demerle was a member of the Native Village of
Kwinhagak and had aunts and uncles who were members of the Traditional Council of Togiak
(Tribe) (both groups being federally recognized Indian tribes located in Alaska); Anthony had no
known Native American ancestry.
¶2 In July 2020, at the adjudicatory hearing, Demerle and Anthony executed written
objections to the Tribe taking jurisdiction of the case under the Indian Child Welfare Act of 1978
(ICWA) (25 U.S.C. § 1901 et seq. (2018)). Also in July 2020, the trial court adjudicated the minors
neglected and made them wards of the court.
¶3 In September 2020, Anthony died, and in November 2020, Demerle died. In
December 2020, the State sent notice of the neglect proceedings to the Tribe, which was the Tribe’s
first notice. The Tribe began participating in the neglect proceedings in February 2021 and filed a
written motion to intervene in March 2021. In November 2021, the Tribe filed a motion to transfer
jurisdiction to the Togiak Tribal Court pursuant to section 1911(b) of ICWA (id. § 1911(b)).
¶4 In September 2022, following a June 2022 evidentiary hearing, the trial court
granted the Tribe’s motion to transfer jurisdiction. In October 2022, the foster parents of Cal. E.
and Cas. E., Connie W. and David W., filed a motion to intervene and motions to stay and
reconsider the transfer order. In November 2022, the court entered an order denying the foster
parents’ motions, concluding that they did not have standing to intervene. In that same order, the
court granted the request of the State and guardian ad litem (GAL) to stay the transfer order
pending appeal.
¶5 The foster parents appeal, arguing that the trial court erred by (1) finding that the
foster parents were not parties, (2) failing to admonish them of their right as parties to participate
in the transfer hearing, and (3) failing to apply the existing Indian family exception to ICWA.
¶6 The State, although technically an appellee, agrees generally with the foster parents
and argues that (1) the trial court erred when it found that the foster parents were not parties and
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(2) the court should have denied the motion to transfer jurisdiction because (a) the minors were
not “Indian children” subject to ICWA, (b) the minors’ biological parents formally objected to
tribal jurisdiction, and (c) good cause existed to deny the transfer.
¶7 The Tribe responds that (1) Illinois courts no longer have jurisdiction over these
matters, (2) the trial court correctly found that the foster parents were not parties, (3) the foster
parents do not have standing to appeal the transfer order, and (4) the court correctly found that
good cause to deny the transfer did not exist.
¶8 We conclude that the trial court erred when it found that (1) the foster parents
lacked standing to intervene, (2) the parents’ written objections to transfer were (a) rendered a
nullity by their deaths and (b) filed prematurely, and (3) good cause to deny the transfer did not
exist. Accordingly, we reverse and remand for further proceedings.
¶9 I. BACKGROUND
¶ 10 A. The Petitions, Adjudicatory Hearing, Parental Objections to Transfer, and
Dispositional Hearing
¶ 11 In April 2020, the State filed petitions for adjudication of wardship alleging that
Cal. E. and Cas. E., the children of Demerle S. and Anthony E., were neglected because their
environment was injurious to their welfare due to exposure to substance abuse. 705 ILCS
405/2-3(1)(b) (West 2020). That same month, the trial court conducted a shelter care hearing and
placed temporary custody and guardianship with the guardianship administrator of the Illinois
Department of Children and Family Services (DCFS).
¶ 12 In July 2020, the trial court conducted an adjudicatory hearing. At that hearing,
Demerle and Anthony executed and filed in open court a written “Parents’ Objection to Indian
Tribe Jurisdiction.” The objection stated that “[Anthony], the natural father, and [Demerle], the
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natural mother of [Cal. E.], the minor child, hereby objects to the Traditional Council of Togiak
(Indian Tribe) taking jurisdiction over the above named minor pursuant to [ICWA].” At the same
time, the parents executed an identical document relating to Cas. E. (We note that the transcript of
the hearing at which the execution occurred is not included with the report of proceedings. We
further note that although the parents were not represented by counsel, in April 2020, the court
advised both Anthony and Demerle in writing of their right to have counsel appointed for them. A
May 2020 docket entry states “parents to each retain att[orney],” but both parents thereafter
represented themselves.) The court then heard testimony in support of the petition for adjudication
of neglect. At the conclusion of the hearing, the court adjudicated Cal. E. and Cas. E. neglected
minors.
¶ 13 In August 2020, the trial court conducted a dispositional hearing. A report prepared
for the court by Lutheran Social Services of Illinois (LSSI) stated that the children were “currently
placed with Fictive Kin Connie [W.]” and the permanency goal was return home within 12 months.
(We note that the record does not state with specificity the date that the minors were first placed
with Connie W. and David W., but no party disputes the foster parents’ claim in their October
2022 filings that the children had been placed with them for 29 months.)
¶ 14 At the conclusion of the dispositional hearing, the trial court entered a written order
finding that it was in the best interests of Cas. E., Cal. E., and the public that the minors be made
wards of the court. The court further found Demerle and Anthony unfit or unable for reasons other
than financial circumstances alone to care for, protect, train, educate, supervise, or discipline the
minors. The court placed custody and guardianship of the minors with the guardianship
administrator of DCFS and set the case for a permanency hearing in February 2021.
¶ 15 B. Notice to the Tribe Under ICWA
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¶ 16 On December 29, 2020, the state’s attorney’s office filed with the trial court a
written “Notice of Rights Under [ICWA].” The notice was sent to Emma Wassillie, a “Tribal
Children’s Worker” of the Tribe, located in Togiak, Alaska.
¶ 17 The notice advised that (1) a petition had been filed in Carroll County circuit court
involving Cas. E. and Cal. E., (2) ICWA may apply because the minors may be members of or
eligible for membership in the Tribe, (3) the minors’ mother died in November 2020, (4) the
minors’ father died in September 2020, and (5) the Tribe had the right to intervene in the
proceedings and petition the court to transfer jurisdiction to tribal court. -(We note that in May
2020, the State mailed a notice of hearing for a June 2020 status hearing to “ICWA Representative,
Tribal Children’s Service Worker, P.O. Box 310, Togiak, AK 99678,” but this mailing did not
comply with the formal notice requirements of section 1912 of ICWA (25 U.S.C. § 1912 (2018)).
The parties do not dispute that proper notice under ICWA was not served upon the Tribe until
December 2020.)
¶ 18 C. The Tribe’s Motions To Intervene and Transfer Jurisdiction Under ICWA
¶ 19 In March 2021, the Tribe, without the assistance of counsel, filed a form document
requesting to intervene pursuant to section 1911(c) of ICWA (id. § 1911(c)).
¶ 20 In April 2021, the Tribe filed “Tribal Enrollment Verification” documents executed
March 23, 2021, enrolling Cas. E. and Cal. E. as members of the Traditional Village of Togiak.
¶ 21 In September 2021, the Tribe filed a “Verification of Enrollment,” stating that
Demerle was enrolled as a member of the Native Village of Kwinhagak as of December 14, 2016.
¶ 22 In October 2021, the Tribe, through local counsel, filed a written motion to
intervene, arguing that (1) Cas. E. and Cal. E. were “Indian children” and (2) the Tribe qualified
as the minors’ tribe under ICWA because the minors were either “member[s] of the Tribe, eligible
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for membership in the Tribe, or eligible for membership in more than one tribe and ha[d] more
significant contacts with [the Togiak] Tribe.”
¶ 23 In November 2021, the Tribe filed a “Motion to Transfer Jurisdiction and Dismiss
the Case” pursuant to section 1911(b) of ICWA (id. § 1911(b)), seeking transfer of jurisdiction
from the Carroll County circuit court to the Tribal Court of the Traditional Council of Togiak. The
Tribe asserted that (1) the minors were “Indian child[ren]” as defined in section 1903(4) of ICWA
(id. § 1903(4)), (2) the Tribe qualified as the “Indian child[ren]’s tribe” as defined in section
1903(5) of ICWA (id. § 1903(5)) because the minors were members of the Tribe, (3) the parents
of the children were deceased, and (4) good cause did not exist to deny transfer of the proceedings
to tribal court.
¶ 24 In January 2022, the trial court granted the Tribe’s motion to intervene.
¶ 25 1. The Tribe’s Motion for Recusal
¶ 26 In March 2022, the parties convened for hearing on the Tribe’s motion to transfer
jurisdiction. The Tribe made an oral motion asking the current trial judge, who had presided over
the minors’ cases since it was filed, to recuse himself because he had represented Anthony in a
previous case. The judge agreed to recuse himself, and the matter was reassigned to a new judge.
¶ 27 2. The Hearing on the Motion To Transfer Jurisdiction
¶ 28 On June 16, 2022, the trial court conducted a hearing on the Tribe’s motion to
transfer jurisdiction. The hearing was conducted in open court, but some individuals also attended
remotely via Zoom. The foster parents of Cal. E. and Cas. E. were present at the hearing but were
not represented by counsel and did not participate.
¶ 29 At the beginning of the hearing, the trial court asked which parties were objecting
to the transfer and noted that the biological parents had “objected or vetoed the transfer” in a
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written filing in July 2020. The State and GAL then announced that they, too, objected to the
transfer.
¶ 30 The trial court, after consulting with the parties and without objection, then took
judicial notice of the entire contents of the court file and admitted the Tribe’s 12 exhibits into
evidence. (The exhibits consisted of the following: (1-2) tribal enrollment verifications for the
minors, (3-6) photographs of unidentified people, (7) notice of rights, (8) certificate of service,
(9) motion to intervene, (10) notice of intervention, (11) affidavit of tribal membership for
Demerle, and (12) “Dee Dee S[.]” Facebook message.)
¶ 31 The following witnesses then testified.
¶ 32 a. Tricia Patterson
¶ 33 The State called Tricia Patterson to testify. (We note that the Tribe also called
Patterson in its case-in-chief. We include all of her testimony below.) Patterson stated that she
was the GAL for Cas. E. and Cal. E. (We note that in September 2021, the trial court entered an
order appointing Patterson as GAL for the minors and appointing David Weismiller as attorney
for the GAL. Patterson was affiliated with Court Appointed Special Advocates for Children for
Lee, Carroll, and Ogle Counties in Illinois.) Patterson testified that she visited with the minors
once a month. Patterson testified that, although she had never spoken with the minors about their
Indian heritage, she knew that the foster parents had done so. Patterson did not know the content
of the conversations between the foster parents and the minors on that topic. In response to
questions by Weismiller, Patterson testified that she had talked to the minors about 12 times and
at no time did the minors bring up the topic of their Indian heritage or their relatives on their
mother’s side.
¶ 34 The Tribe questioned Patterson about her position on transfer. Patterson stated
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that she objected.
¶ 35 b. Amy McChesney
¶ 36 The State called Amy McChesney to testify. McChesney stated that she was a
child welfare specialist and had been assigned to the minors’ case for “at least a year.” (We note
that, according to court reports, McChesney was employed by LSSI.) She testified that the
children were placed in a “licensed fictive kin” placement and she met with the minors once a
month. At her most recent visit with the children, she discussed with the minors their Indian
heritage. She said she “wanted to start to see where their knowledge was so [she] asked basic
questions.” McChesney stated that “the youngest [(Cas. E.)] … [said] that Indians live in
teepees and they wear their hat with feathers and they have gowns” and that she had read stories
in school. McChesney further stated that “[t]he older one [(Cal. E.)]” expressed a more negative
view of Indians, that “Indians [were] aggressive and violent and they have guns.” McChesney
stated that the children did not express any understanding that they possessed Native American
heritage. She spoke to them about their heritage, being part of a tribe, and having family in
Alaska. McChesney testified that she had not informed herself where Togiak, Alaska, was
located prior to the hearing.
¶ 37 On cross-examination by the Tribe, McChesney stated that “[a]fter asking the
children … if they would like to speak to their great aunt, they both said they would like that”
and that “[t]hey do want to know about their heritage.” McChesney testified that the
conversation “sparked more questions about biological mom. C[al].[ ]E. had mentioned that he
did not have pictures of mom, [but] had pictures of dad,” and that the children were “asking a lot
of questions now about the family and extended family.” McChesney testified that because the
children have expressed a desire to know about their heritage, “moving forward with the transfer
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would be appropriate at this time.”
¶ 38 On cross-examination by the GAL, McChesney testified that she had been the
caseworker for over a year and had written many reports for the court. She could not recall if, in
any reports prior to the most recent, she had raised the issue of the children asking about their
heritage. McChesney also testified that she had not had any training regarding how to discuss
family heritage with children. She also stated that she had not done any research about the Tribe
and had no personal knowledge about the Tribe. McChesney testified that in May 2022, the
foster parents told her that they had spoken to the children about their Native American heritage.
¶ 39 c. Emma Wassillie
¶ 40 The State called Emma Wassillie to testify. (We note that the Tribe also called
Wassillie to testify in its case-in-chief. We include all of Wassillie’s testimony below.) Wassillie
testified remotely from Alaska. She stated that she was Demerle’s maternal aunt and the
children’s great-aunt. She lived in Togiak, Alaska, and was part of the Tribe. Wassillie stated
that (1) Togiak was located in the Bristol Bay area of Alaska, (2) it takes about two days to get
there from Illinois, and (3) one has to fly into Togiak because there are no roads. (We note that,
according to United States Census Bureau data, the population of Togiak, Alaska, in 2020 was
817. City and Town Population Totals: 2020-2022, U.S. Census Bureau (May 15, 2023)
https://www.census.gov/data/datasets/time-series/demo/popest/2020s-total-cities-and-towns.html
[https://perma.cc/PGK3-TKTF]).
¶ 41 Wassillie testified that neither Cas. E. nor Cal. E. had ever been to Togiak. The
State then asked about Wassillie’s contacts with the children. The Tribe objected, arguing that
the children’s contacts with the Tribe were not relevant to whether good cause existed to deny
the transfer. The court overruled the objection, stating that the Tribe may be correct, but if the
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court determined that the existing Indian family exception applied, the minors’ contacts with the
Tribe could be relevant.
¶ 42 The State then asked Wassillie the following questions:
“Q. [H]ave you had any conversations with [Cas. E. or Cal. E.]?
A. No.
…
Q. Do you know if [Cas. E. or Cal. E.] have had any other contact with
members of [the] tribe, other than Demerle, their mother?
A. Yeah.
Q. And who is that?
A. My brothers and sisters.
Q. Okay. Did they travel down to Illinois to visit them?
A. No.
Q. Was it just a telephone conversation?
A. Telephone, probably Face Timing, Facebook.
Q. Sure, okay. That’s all the questions I have.”
¶ 43 The GAL then questioned Wassillie further about her contacts with the minors, over
the Tribe’s continuing objection. Wassillie testified that she had never seen the children. To her
knowledge, other members of the Tribe had seen the children only “over the phone and pictures
and Facebook.”
¶ 44 The Tribe questioned Wassillie about her conversations with Demerle. Wassillie
identified a printout of a Facebook message, testifying that she received the message from Demerle
on November 18, 2020. Wassillie stated that Demerle “was sending me a message, reaching out
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to me, asking for help.” (We note that the Facebook message was admitted as an exhibit and stated,
“Hi I need to speak with u, please call me whenever u have some free time it’s regarding my
children. Thanks.”) Wassillie stated that she followed up with Demerle by phone. According to
Wassillie, “[Demerle] was stating that she needed help, that the foster parents [were] trying to
adopt the children and she wanted me to help her, that she didn’t want her kids adopted out to—
she didn’t want the kids adopted to that [sic] foster parents.”
¶ 45 Wassillie testified that Demerle wanted the family to know what was going on, so
Wassillie met with her brothers and sisters—Demerle’s aunts and uncles—but that same month,
Demerle died. Wassillie stated that she “told [Demerle] to send the notices that she ha[d] because
I didn’t receive any notices nor my tribe didn’t receive any notices.” According to Wassillie,
Demerle wanted the Tribe to get involved.
¶ 46 Wassillie testified that after learning that Demerle had died, she made calls to the
courthouse. (We note that the record does not state which courthouse Wassillie called or the result
of those calls.) Wassillie stated that she currently worked as an “ICWA Case Worker 2” with the
Tribe and had been working in that position since 2008. She stated that, when she gets “notices
from any cases,” she meets with the tribal judges, who then decide whether to intervene. Wassillie
would also notify the families and try to find families for placement. Wassillie had been involved
in 12 to 15 cases that had been transferred to tribal court.
¶ 47 On cross-examination by the State, the prosecutor asked how the tribal court makes
a “best interest determination of what should happen to the child?” Wassillie answered as follows:
“They have a Tribal Court Clerk, and once the case is transferred, they’re supposed
to be working with the family, like with—have a safety plan. They will do the
walkthrough, come look at the home and work with the family, and they are
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supposed to review the case for so many months and—you know, until its closed.”
¶ 48 Wassillie also testified that out of the 12 to 15 cases that had been transferred to
tribal court while she was a tribal caseworker, only two or three were transferred from out of state.
(The record does not reflect from which other states those two or three cases were transferred.)
The State asked, “And would the Tribal Court, then travel to that state to determine what the best
interests are of that child?” Wassillie answered, “No, we’ve done it over the phone.” She recalled
one case where a caseworker brought the child to Anchorage and Wassillie picked up the child at
the airport. Wassillie stated, “That was the only time—no, I didn’t have to travel. We just did
everything over the phone.”
¶ 49 d. Ryann Unabia
¶ 50 Counsel for DCFS called Ryann Unabia to testify. Unabia stated that she was an
ICWA specialist for DCFS. Unabia stated that she had never met with the children and had not
reviewed the entire case file but had communicated with McChesney about the case.
¶ 51 Unabia testified that it was “extremely concerning” to her that the children had been
with the foster family for “several years, and during that time, it was not mentioned that they were
specifically Alaskan Native[,] even more specifically towards the Togiak community.” Unabia
was concerned that “the children had not had the opportunity to know about their culture” and
“how that would affect their self-esteem and self-image as they grow up.” When asked her position
on transfer, Unabia answered that it would be best for the Tribe to decide, but added that her
personal experience of growing up on a reservation had a positive impact on her development.
¶ 52 On cross-examination by the GAL, Unabia testified that she had never talked to the
children and did not have any personal knowledge about what information the children had
regarding their Native American ancestry. She stated that, based upon what she has been told by
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McChesney, the minors were “learning a historical point of view from the eastern side of the
country rather than an actual current … knowledge of the community in Alaska.”
¶ 53 At the conclusion of the evidence, the trial court asked the parties to submit written
closing arguments, addressing (1) the validity of the biological parents’ written objections and
(2) the existing Indian family exception.
¶ 54 3. The Closing Arguments
¶ 55 In July and August 2022, the parties filed written closing arguments.
¶ 56 a. The Tribe’s Closing Argument
¶ 57 The Tribe asked the trial court to transfer jurisdiction to the Togiak Tribal Court,
arguing that “good cause not to transfer does not exist.” Specifically, the Tribe argued that (1) the
parental objection was filed prior to notification to the Tribe and was later rescinded by Demerle,
(2) the delay in hearing the Tribe’s motions was “almost entirely the result of the State and GAL’s
actions” as opposed to the Tribe’s and the parents’ actions, (3) any lack of contacts between the
children and the Tribe did not constitute good cause because the existing Indian family exception
is not good law, and (4) “the issue of transfer of jurisdiction [should not] be a matter of best interest
of the children.” (We note the existing Indian family doctrine is a judicially created doctrine under
which, when the minors have no social, cultural, or political connection to an Indian tribe, ICWA
does not apply because the stated policy of ICWA is to prevent the removal of Indian children
from Indian families. See In re Adoption of S.S., 167 Ill. 2d 250, 265-70,
657 N.E.2d 935, 942-45
(1995) (Heiple, J., concurring, joined by Bilandic, C.J., and Miller, J.).)
¶ 58 Counsel for DCFS filed a written closing argument that reiterated the points argued
by the Tribe. On appeal, DCFS has adopted the Tribe’s brief.
¶ 59 b. The GAL’s Closing Argument
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¶ 60 The GAL objected to the transfer of jurisdiction. Regarding the parental objections,
the GAL argued that (1) both parents objected to tribal jurisdiction, (2) the trial court heard no
evidence that Demerle rescinded her objection, (3) Anthony never rescinded his objection, and
(4) “there has been no evidence or testimony that the death of the father supersedes his prior written
objection.” The GAL also argued that, because the children in this case “have no connection to the
tribe other than the fact that their mother was Native American,” the existing Indian family doctrine
should be applied.
¶ 61 c. The State’s Closing Argument
¶ 62 The State also objected to transferring jurisdiction to the tribal court. First, the State
argued that both parents objected to the transfer and there was no evidence that either parent
rescinded their objection. Second, the State argued that good cause existed to deny the transfer.
Specifically, the State asserted that (1) the objection of the GAL should be considered as a factor
against transfer and (2) transfer to Togiak, Alaska, would present an undue hardship on the parties
and witnesses in this case. Third, the State argued that the existing Indian family exception should
apply because the children (1) had never been to Alaska, (2) had no knowledge of their Indian
ancestry, and (3) did not become members of the Tribe until after the proceedings had been
initiated and their becoming members happened without their request or input.
¶ 63 4. The Trial Court’s Ruling
¶ 64 In August 2022, the trial court filed a written “Memorandum Opinion and Order,”
granting the Tribe’s motion to transfer jurisdiction. However, the court made clear that it was not
“entering” the order at that time; instead, the court would formally enter a final judgment on
September 15, 2022, thereby giving the parties time to react and respond to the court’s decision.
¶ 65 The memorandum first recited “background information,” noting that the children
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had been the subjects of a 2016 neglect proceeding. The trial court wrote, “Although this Court
has not confirmed, it is abundantly clear that the 2016 cases ended with the restoration of custody
with the biological parents—because these 2020 cases would assuredly not exist otherwise.” The
court noted that the Tribe sought to intervene in the 2016 cases, but the court did not state
(1) whether the Tribe successfully intervened, (2) what relief it sought, if any, or (3) whether any
relief sought was granted or denied. The court did note that included in the 2016 case file was an
affidavit generated by the Tribe stating that the children were eligible for membership. (We note
that an August 2020 court report states that the 2016 cases were closed in 2018 with the children
being returned to Anthony. Although the children were returned to Anthony, Demerle’s parental
rights were not terminated. The 2020 cases are clearly new proceedings, independent from the
2016 proceedings.)
¶ 66 The trial court then recited the procedural history of this case, which was consistent
with our earlier description. Regarding the parental objections to tribal jurisdiction, the trial court
noted that (1) both parents executed a written objection to the Tribe taking jurisdiction of the
children pursuant to ICWA, (2) Demerle was “of Indian descent and … a member of an Indian
Tribe, but she [was] not a member of Togiak,” and (3) both children were enrolled in the Tribe
after the neglect proceedings began.
¶ 67 The trial court also wrote that “the first known formal Notice sent to the Tribe was
sent by the Carroll County State’s Attorney’s Office and directed to the Tribe on December 29,
2020,” after both parents had died. The Tribe “actively participated” in permanency hearings in
February and March 2021. The court wrote that that Tribe “filed to formally intervene and was
granted intervenor status” at the March 2021 hearing.
¶ 68 The trial court then (1) found that the children qualified as “Indian children” under
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ICWA, (2) declined to apply the “existing Indian family exception,” and (3) addressed (a) the
parental objections and (b) whether there was good cause to deny transfer.
¶ 69 a. The Parental Objections to Transfer
¶ 70 The trial court first addressed the Tribe’s argument that the parents’ written
objections to transfer were void because they were executed prior to the Tribe receiving notice of
the neglect proceedings pursuant to section 1912 of ICWA (25 U.S.C. § 1912 (2018)). (We note
that the parental objections were made pursuant to section 1911 of ICWA, which provides that a
state court shall transfer a foster care proceeding to the jurisdiction of a requesting tribe, absent
objection by either parent.
Id. § 1911(b). We discuss this section in more detail infra ¶¶ 130, 141-
53.) The court examined the language of section 1914 of ICWA, upon which the Tribe relied,
which provides that “[a]ny Indian child who is the subject of any action for foster care placement
or termination of parental rights … [or] the Indian child’s tribe may petition … to invalidate
such action upon a showing that such action violated [among other things, the notice requirements
of section 1912] of [ICWA].”
25 U.S.C. § 1914 (2018). The court stated it was not readily apparent
what Congress meant by “such action,” but it was clear that “such action” “[did] not apply to a
parent filing their own declaration of their desire to resist exercise of tribal jurisdiction.” The court
continued, “A parent’s ‘Objection’ to a transfer to tribal jurisdiction is not an ‘action’ that a Court
can declare void under this section, any more than it could declare an Answer or other responsive
pleading (like a Motion to Dismiss) filed by either parent to be ‘void.’ ”
¶ 71 Regarding Demerle’s alleged oral recission of her written objection to transfer, the
trial court noted that “[t]his evidence was scant and completely non-definitive—it was a hearsay
statement made to a party with an interest in the outcome of this case … and in no way would the
Court think that this evidence would support a finding that the Mother actually revoked her written,
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signed, and court-filed Objection to tribal jurisdiction.” The court noted that even if Demerle
rescinded her objection, it would be irrelevant because Anthony never revoked his objection, and
under section 1911(b) of ICWA (id. § 1911(b)), “either parent can object to the assertion of tribal
jurisdiction, and either parent holds the ‘trump card,’ and ICWA does not require both parents to
do so, and if the Father’s Objection stands, it is a nullity that Mother’s Objection was revoked.”
¶ 72 However, the trial court went on to discuss the effect of the parents’ deaths on their
objections. The court mused that if the mother wanted tribal jurisdiction and the father did not,
then the father died, “[i]n what realm would it make sense that Dad’s objection still holds
unassailable sway after his death? That scenario appears markedly unfair to everyone else (and to
everyone who is alive).” On this basis, the court found that “it would make more sense to treat a
deceased parent’s objection to a transfer to tribal jurisdiction as a nullity under ICWA.”
¶ 73 The trial court also found that the language of section 1911 of ICWA required that
a petition for transfer be on file before a parent “can register an effective objection to the transfer.”
Again, the court cited no authority for this proposition, but stated that it “certainly made sense”
that a parent could not object to a transfer before a party requested a transfer. On this basis, the
court found that the parents’ July 2020 objection to tribal jurisdiction was premature and “the
parents would need to definitely reiterate their preemptive objection after the Petition to transfer
[was] filed, an option unavailable here because both parents died before that Petition was filed.”
The court wrote, “All told, the Court believes that the Objections signed by the parents are a
nullity.”
¶ 74 b. Good Cause To Deny Transfer of Jurisdiction
¶ 75 The trial court found that the GAL and State failed to demonstrate good cause to
deny transfer. The court focused primarily on what it could not consider pursuant to regulations
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issued by the Bureau of Indian Affairs (BIA). Namely, the court noted it could not consider
(1) whether the transfer could impact placement of the children, (2) the nature and extent of the
minors’ connection with the tribe seeking transfer, and (3) the best interests of the children. The
court mused at some length about the prohibited factors and then considered the “distance between
Northwest Illinois, where these children have spent their lives, and Alaska, where the Togiak Tribe
is located.” The court determined that the ability to hold proceedings remotely via Zoom meant
that “[t]he participation in Alaska of the interested persons living here in Illinois is no more
burdensome than the participation of interested persons living in Alaska participating in Court
proceedings in Illinois.”
¶ 76 On September 15, 2022, the trial court entered its written “Final Judgment,”
granting the motion to transfer jurisdiction “for the reason stated in the August 12, 2022,
Memorandum Opinion and Order.”
¶ 77 D. The Foster Parents’ Notice of Party Status and Motion To Stay Transfer
¶ 78 On October 13, 2022, Connie W. and David W., the foster parents of Cal. E. and
Cas. E., through counsel, filed a “Notice of Party Status,” providing notice they were intervening
as a matter of right pursuant to section 1-5(2)(c) of the Juvenile Court Act of 1987 (Juvenile Court
Act) (705 ILCS 405/1-5(2)(c) (West 2020)). Specifically, the foster parents alleged that Cal. E.
and Cas. E. had been in their care for 29 months and placement of the minors was being terminated
from their home.
¶ 79 At the same time, the foster parents filed a motion to stay enforcement of the
transfer order. The foster parents alleged that at the time of the hearing on the motion to transfer,
they did not understand their rights as parties to the proceedings to “present evidence,
cross-examine witnesses, testify on behalf of the minors, or have counsel separate and apart from
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the GAL.” The foster parents also asserted that there was “nothing in the record before this court
[to establish] that [Cal. E. and Cas. E.] were ever part of an ‘Indian family’ as recognized by
ICWA, other than that their mother was a tribal member,” and cited Justice Heiple’s concurring
opinion in S.S., 167 Ill. 2d at 265 (Heiple, J., concurring, joined by Bilandic, C.J., and Miller, J.),
in which Justice Heiple wrote that, “[w]here … there is no existing Indian family and the children
have never been part of an Indian cultural setting or lived on a reservation, there is no justification
for applying the ICWA.”
¶ 80 The foster parents further asserted that “the laudable policy goals of ICWA ought
not to be asserted to exercise dominion over a 7- and 9-year-old child who [do not] know, and have
never known, anything regarding Togiak customs or culture” or “the people who ostensibly intend
to raise the minors.” The foster parents continued, “It cannot be reasonably said that the instant
case furthers Congress’ policy goals or legislative intent, which is to prevent the breakup of Indian
families.”
¶ 81 The foster parents also alleged that Cas. E. had been diagnosed with several
behavioral health concerns that were not fully explored at the hearing, and which would have been
relevant to whether there was good cause to deny the transfer, “at least on the ground that Cas. E.
ought to continue to receive medical … treatment on an uninterrupted basis.”
¶ 82 Finally, the foster parents asserted that a 2016 neglect case involving the same
parents and minors ended with custody being restored to Anthony, and not Demerle, which further
supported their argument that there was no “Indian family” to protect within the meaning of ICWA.
The foster parents asked the trial court to stay the order for transfer of jurisdiction and allow them
the opportunity to present evidence consistent with the allegations in the motions.
¶ 83 The following day, on October 14, 2022, the foster parents filed a motion to
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reconsider the transfer order. This motion asserted that because the foster parents were not
“formally arraigned as to their rights as parties at the moment they understood the minors would
be moved from their foster placement (at some time before the commencement of the hearing),
they had no notice of their ability to, inter alia, call witnesses and present evidence and testimony
at the hearing.” The foster parents (1) asserted that these facts warranted reconsideration of the
transfer order and (2) requested that the order be vacated and a new hearing be held, at which the
foster parents could participate substantively. The foster parents incorporated by reference the
allegations and arguments contained within their motion to stay enforcement of the transfer order.
¶ 84 The Tribe filed a response, arguing that the motion to stay should be denied because
(1) the foster parents were not parties; (2) even if they were parties, the Tribe had already accepted
jurisdiction before they filed their motions to stay and reconsider; and (3) the existing Indian
family exception is not applicable. The Tribe attached to their response an “Order Accepting
Transfer of Jurisdiction” entered by the Togiak Tribal Court on October 12, 2022. The order stated
the following:
“Based on the information provided by the State of Illinois, the continuation of the
child(ren) in the home of the parent/guardian/custodian is contrary to the
child(ren)’s welfare and removal from the home is in the best interest of the child.
There is probable cause to believe that the conditions of the home are likely to
continue until efforts can be made to improve or correct them.
IT IS HEREBY ORDERED that the Togiak Tribal Court … hereby
accepts jurisdiction of these proceedings under 25 U.S.C. § 1911(b).
IT IS FURTHER ORDERED that the child(ren) shall be placed with Emma
and Roger Wassillie.”
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¶ 85 The foster parents filed a written reply asserting that they have been parties “since
October 12, 2022 (at the very latest, but likely as of August 12, 2022 or earlier).” The foster parents
also asserted that the Tribe’s October 12, 2022, filing of the order transferring jurisdiction, which
transferred custody of the minors to the Wassillies, “established the Party Foster Parents as parties
to this case” because “the necessary and sufficient preconditions to confer party status upon the
[foster parents] pursuant to 705 ILCS 405/1-5(2)(c) are, and were, objectively present as soon as
the [Tribe’s] October 12, 2022 order entered.”
¶ 86 Additionally, the foster parents contended they filed their motion to stay within the
30-day period to for a party to file a motion to reconsider a final judgment (in this case, the
September 15, 2022, transfer order). They further argued that the Code of Civil Procedure confers
the right to seek a stay of a judgment “precisely to give parties an opportunity to determine their
legal rights and recourse.” They also argued that good cause existed for the trial court to reconsider
its transfer order because (1) the minors desired to remain with the foster parents, (2) Cas. E.’s
medical needs required care beyond what the Tribe could provide, and (3) the Wassillies were an
unsuitable placement because they had never even spoken with the minors. The foster parents
asked the court to vacate its transfer order.
¶ 87 In November 2022, the trial court entered a written order, finding that the foster
parents did not have standing to present a motion to reconsider the transfer order because they did
not have party status “before or at the time of that Judgment, and do not currently.” The court
wrote that it was “mak[ing] no ruling of any kind as to their standing to effectuate an Appeal of
said Judgment.”
¶ 88 The trial court further ordered, “As a conditional ruling, [the foster parents’] Motion
to Reconsider the [transfer order] entered herein is denied in its entirety.” However, “[b]ecause the
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State and the [GAL] joined in and adopted [the foster parents’ motion to stay the transfer order]
… the Judgment transferring jurisdiction in this cause … entered on September 15, 2022, is
stayed until finalization of the pending Appeal.”
¶ 89 This appeal followed.
¶ 90 II. ANALYSIS
¶ 91 The foster parents appeal, arguing that the trial court erred by (1) finding that the
foster parents were not parties, (2) failing to admonish them of their right as parties to participate
in the transfer hearing, and (3) failing to apply the existing Indian family exception to ICWA.
¶ 92 The State, although technically an appellee, agrees generally with the foster parents
and argues that (1) the trial court erred when it found that the foster parents were not parties and
(2) the court should have denied the motion to transfer jurisdiction because (a) the minors were
not “Indian children” subject to ICWA, (b) the minors’ biological parents formally objected to
tribal jurisdiction, and (c) good cause existed to deny the transfer.
¶ 93 The Tribe responds that (1) Illinois courts no longer have jurisdiction over these
matters, (2) the trial court correctly found that the foster parents were not parties, (3) the foster
parents do not have standing to appeal the transfer order, and (4) the court correctly found that
good cause to deny the transfer did not exist.
¶ 94 We conclude that the trial court erred when it found that (1) the foster parents
lacked standing to intervene, (2) the parents’ written objections to transfer were (a) rendered a
nullity by their deaths and (b) filed prematurely, and (3) good cause to deny transfer did not exist.
Accordingly, we reverse and remand for further proceedings.
¶ 95 A. Accelerated Appeal Filing Deadline
¶ 96 We note that this is an accelerated appeal under Illinois Supreme Court Rule 311(a)
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(eff. July 1, 2018). Under that rule, this court is required to issue its decision in an accelerated case
within 150 days after the filing of the notice of appeal unless there has been “good cause shown.”
Ill. S. Ct. R. 311(a)(5) (eff. July 1, 2018).
¶ 97 Here, the foster parents filed notices of appeal from the September 15, 2022,
transfer order on October 14, 2022. They also filed notices of appeal from the trial court’s
November 7, 2022, order denying their motions to stay and reconsider the transfer order on
December 6, 2022. (The appeals have been consolidated.) Accordingly, this court’s disposition
was due to be filed by May 5, 2023, which has passed. However, we note that the foster parents
filed three motions for extension of time to file their brief and requested oral argument, which was
conducted on May 16, 2023.
¶ 98 Given the motions for extensions of time and the need to schedule and hold oral
argument, we conclude there is “good cause” for issuing our disposition after the 150-day deadline.
¶ 99 B. Jurisdiction
¶ 100 As an initial matter, the Tribe argues that Illinois courts have no jurisdiction over
the minors’ cases because the trial court transferred jurisdiction to the tribal court on September
15, 2022. In support, the Tribe cites two cases from other states—Alaska (J.P. v. State, 506 P.3d
3-4, 6 (Alaska 2022)) and California (In re M.M.,
65 Cal. Rptr. 3d 273, 275 (Ct. App. 2007)).
¶ 101 In J.P., the Alaska Supreme Court declined to address the merits of an appeal by
the foster parents of a minor whose child welfare case was transferred from the Alaska Superior
Court to the Sun’aq Tribe’s tribal court. J.P.,
506 P.3d at 4. The Alaska Supreme Court found that
the appeal was moot because “a ruling in this case that the superior court erred in transferring
jurisdiction to the Sun’aq Tribe could not afford [the foster parents] any relief because we have no
power to force the tribal court to vacate its placement order and return jurisdiction to the superior
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court.” Id. at 5. The court addressed whether the public interest exception to the mootness doctrine
would apply and found that it would not, reasoning that, because judges and litigants are careful,
in most cases, to fashion orders transferring jurisdiction in a manner that preserves appellate rights,
the circumstances present in J.P. were unlikely to recur.
Id. at 6.
¶ 102 In M.M., the California Court of Appeal similarly determined that it lacked
jurisdiction to hear an appeal of an order transferring jurisdiction to a tribal court. M.M.,
65 Cal.
Rptr. 3d at 275. In reaching its conclusion, the M.M. court first searched for guidance in cases
involving appellate review of transfer orders under ICWA and found only one case directly
addressing whether a transfer order affects the jurisdiction of the transferring court, Comanche
Indian Tribe of Oklahoma v. Hovis,
847 F. Supp. 871 (W.D. Okla. 1994). M.M.,
65 Cal. Rptr. 3d
at 283. In Hovis, the state court transferred jurisdiction, and the tribal court accepted, in 1987.
Id.
Nearly four years later, in 1991, the mother asked the state court to vacate its transfer order.
Id.
Relying on Oklahoma state law governing transfers of venue, the federal district court concluded
that, at the time the motion to vacate was filed in 1991, because the state court had transmitted the
case file to the tribal court, the state court no longer had jurisdiction to reconsider and vacate its
transfer order.
Id. at 284.
¶ 103 Apparently unwilling to rely solely on Hovis, the M.M. court looked for additional
guidance in cases involving removal from state court to federal court.
Id. The court observed that
“ ‘a removal petition deprives the state court of jurisdiction as soon as it is filed and served upon
the state court.’ ”
Id. (quoting People v. Bhakta,
37 Cal. Rptr. 3d 652, 655 (Ct. App. 2006)).
¶ 104 Accordingly, applying the reasoning of Hovis and general federal removal
principles, the M.M. court concluded that “[t]he Humboldt County[, California, Superior Court]
lost jurisdiction over [the minor’s] dependency proceeding once the case was transferred to the
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[tribal court] and the latter court accepted jurisdiction.” Id.
¶ 105 However, after recognizing that its disposition deprived the minor from having his
claims heard on the merits, the M.M. court went on to advise future litigants how to preserve their
right to appeal transfer orders in state court. The court advised that the dismissal of the minor’s
appeal “might have been averted had Minor’s counsel sought an immediate stay of the transfer
order pending Minor’s exhaustion of his appellate remedies.” (Emphasis omitted.) Id. at 287.
¶ 106 J.P. and M.M. are factually distinguishable. In the present case, the foster parents,
the State, and the GAL asked the trial court to stay its order transferring jurisdiction pending
appeal, and the trial court granted that request. In J.P., the Alaska Superior Court denied the foster
parents’ request for a stay pending appeal, and in M.M., no such motion was made. Indeed, in the
present case, the foster parents did precisely what the M.M. court advised—they sought an
immediate stay. The Tribe asserts that taking four weeks to request the stay was too long, but under
the circumstances of this case—particularly when weighed against the nearly four years that passed
in Hovis—we conclude that the foster parents, who were attempting to assert their statutory rights,
acted sufficiently promptly.
¶ 107 In short, the Tribe has failed to cite any binding authority that would divest this
court of jurisdiction to hear this appeal. Similarly, the Tribe has failed to cite any persuasive
authority that would convince us to deviate from established Illinois law, which generally holds
that a trial court retains jurisdiction over a cause for 30 days after entry of a final judgment or
order. Brewer v. National R.R. Passenger Corp.,
165 Ill. 2d 100, 105,
649 N.E.2d 1331, 1334
(1995); see also Ill. S. Ct. R. 303 (eff. July 1, 2017) (stating a notice of appeal must be filed within
30 days after entry of the final judgment appealed from). Here, the foster parents filed their motion
to stay within 30 days of the September 15, 2022, transfer order, while the trial court retained
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jurisdiction. Illinois law also permits appellate review of trial court orders of dismissal on
forum non conveniens grounds that result in interstate transfer. See, e.g., Quaid v. Baxter
Healthcare Corp., 392 Ill. App. 3d 757, 763,
910 N.E.2d 1236, 1241-42 (2009) (holding the
appellate court had jurisdiction to hear an appeal from trial court order of dismissal on
forum non conveniens grounds resulting in transfer to California from Illinois).
¶ 108 We also note that the Illinois Appellate Court has, on at least one occasion,
reviewed a trial court’s order transferring jurisdiction under ICWA, although it did not directly
address the question of jurisdiction. See In re Armell,
194 Ill. App. 3d 31, 45,
550 N.E.2d 1060,
1069 (1990) (affirming the trial court’s order transferring jurisdiction of juvenile proceedings to
tribal court under ICWA).
¶ 109 C. The Foster Parents’ Standing
¶ 110 1. The Applicable Law
¶ 111 Section 1-5 of the Juvenile Court Act (705 ILCS 405/1-5 (West 2020)) governs the
rights of parties in juvenile court proceedings. Regarding foster parents, subsection (2)(a) provides
the general rule that current and former foster parents, although not parties to the proceedings,
have the right to (1) receive adequate notice of any hearing or proceeding and (2) be heard by the
court.
Id. § 1-5(2)(a).
¶ 112 Subsection (2)(c), however, goes further and confers party status in some
circumstances upon foster parents who have cared for a minor for over one year in some
circumstances. The statute provides as follows:
“If a foster parent has had the minor who is the subject of the [abuse or neglect]
proceeding … in his or her home for more than one year … and if the minor’s
placement is being terminated from that foster parent’s home, that foster parent
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shall have standing and intervenor status except in those circumstances where
[DCFS] or anyone else authorized under Section 5 of the Abused and Neglected
Child Reporting Act has removed the minor from the foster parent because of a
reasonable belief that the circumstances or conditions of the minor are such that
continuing in the residence or care of the foster parent will jeopardize the child’s
health or safety or presents an imminent risk of harm to the minor’s life.” (Emphasis
added.) Id. § 1-5(2)(c).
¶ 113 2. This Case
¶ 114 The Tribe argues that the trial court correctly found that the foster parents did not
have standing and intervenor status. The Tribe does not dispute that the foster parents had the
minors in their home for more than one year, but it does dispute that the second requirement of
section 1-5(2)(c)—namely, that the minors’ placement was being terminated from the foster
parents’ home—existed. The Tribe alternatively argues that, even if both prongs were met, the
foster parents “never filed a timely motion to intervene.” We disagree.
¶ 115 We conclude that In re R.J., 2022 IL App (1st) 211542, a recent decision of the
First District Appellate Court, is instructive. There, the minor had been placed with the foster
parents since birth when, more than two years later, the trial court, upon the respondent father’s
recommendation, entered an order placing custody and guardianship with the minor’s paternal
aunt. Id. ¶¶ 1-2. The foster parents moved to intervene pursuant to section 1-5(2)(c), and the trial
court denied their motion, believing it had discretion in the matter. Id. ¶¶ 3-4.
¶ 116 On appeal, the father argued in R.J., as the Tribe does here, that the second
requirement of section 1-5(2)(c) was not met because the court’s order, which changed only
custody and guardianship, was not a “placement” order terminating the minor’s placement with
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the foster parents; instead, the father argued, section 1-5(2)(c) applied only to situations in which
DCFS, in its role as guardian, was terminating a child’s placement in the foster home. Id. ¶ 64.
¶ 117 The appellate court disagreed, reasoning that DCFS “ ‘placed’ the minor in the
temporary custody of the foster parents under section 2-7(1) of the Juvenile Court Act.” Id. ¶ 65.
The court noted that “temporary custody” under that section means “ ‘the temporary placement of
the minor out of the custody of his or her guardian or parent’ and includes placement in [a] foster
home designated by DCFS.” (Emphasis in original.) Id. (quoting 705 ILCS 405/2-7(1) (West
2020)). The First District held that the trial court’s order transferring custody from the foster
parents to the aunt was a placement decision that terminated the minor’s placement with the foster
parents. Id. ¶ 66.
¶ 118 Concluding that both requirements of section 1-5(2)(c) had been met, the appellate
court reversed the judgment of the trial court, holding that “foster parents who have had a minor
in their home for over a year have an absolute statutory right to intervene when that placement has
been terminated.” Id. ¶ 5. The court wrote unequivocally that
“the term ‘shall’ refers to an obligatory duty a governmental entity is required to perform
…. [Citation.] When the foster parents moved to intervene, only six days after the October
28 order began the process of terminating the minor’s placement with them, the trial court
was required to permit the foster parents’ intervention under subsection 2(c).” (Emphases
added.) Id. ¶ 70.
¶ 119 We agree with the First District’s analysis and, in the present case, similarly
conclude that the trial court’s September 15, 2022, order began the process of terminating the
minors’ placement with the foster parents. That order vested the foster parents with standing and
the right to intervene.
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¶ 120 We further conclude that the foster parents, by filing their “Notice of Party Status,”
sufficiently invoked their right to intervene. The Tribe argues that the foster parents were required
to file a “motion to intervene” but offers as authority for this proposition only section 2-408(a) of
the Code of Civil Procedure (735 ILCS 5/2-408(a) (West 2020)), which provides that, “[u]pon
timely application[,] anyone shall be permitted as of right to intervene in an action … when a
statute confers an unconditional right to intervene.” Section 2-408(e) requires that “[a] person
desiring to intervene shall present a petition setting forth the grounds for intervention,
accompanied by the initial pleading or motion which he or she proposes to file.” Id. § 2-408(e).
¶ 121 We conclude that the foster parents met the requirements of section 2-408 of the
Code of Civil Procedure. Although they titled their filing as a “Notice of Party Status” instead of
a motion or petition to intervene, “the character of the pleading should be determined from its
content, not its label.” In re Haley D., 2011 IL 110886, ¶ 67,
959 N.E.2d 1108. The foster parents’
“Notice of Party Status” met the substantive requirements of section 2-408 because it (1) set forth
the grounds for intervention—namely, that the requirements of section 1-5(2)(c) of the Juvenile
Court Act had been satisfied—and (2) was accompanied by the motion they proposed to file—
namely, their motion to stay the transfer order and motion to reconsider.
¶ 122 We further conclude that the foster parents’ filing of their notice of party status and
motion to stay were timely because they were filed within 30 days of the trial court’s order
transferring jurisdiction. See 735 ILCS 5/2-1203(a) (West 2020) (“In all cases tried without a jury,
any party may, within 30 days after the entry of the judgment … file a motion for a rehearing, or
a retrial, or modification of the judgment or to vacate the judgment or for other relief.”).
¶ 123 Accordingly, we conclude that the trial court erred when it determined that the
foster parents did not have standing to intervene.
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¶ 124 Federal regulations promulgated by the BIA regarding ICWA require that “[a]ny
party to the child-custody proceeding must have the opportunity to provide the court with views
regarding whether good cause to deny transfer exists.” 25 C.F.R. § 23.118(b) (2022). Because the
foster parents had standing to intervene in the child custody proceedings and they were denied that
right, along with the right to provide the court with their views regarding good cause, they have
standing to appeal and we will consider the merits of their appeal.
¶ 125 D. ICWA
¶ 126 1. The Applicable Law
¶ 127 Congress enacted ICWA in 1978 to address the problem of “Indian children …
being separated from their families and their tribes and … being placed in non-Indian homes
through State foster care placement and adoption proceedings.” S.S.,
167 Ill. 2d at 255-56; see also
25 U.S.C. § 1902 (2018) (declaring that the public policy of ICWA is “to protect the best interests
of Indian children and to promote the stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes which will reflect the unique values
of Indian culture.”).
¶ 128 “At the heart of the ICWA are its provisions concerning jurisdiction over Indian
child custody proceedings.” S.S.,
167 Ill. 2d at 257. “[C]hild custody proceeding[s]” include any
“foster care placement,” “termination of parental rights,” “preadoptive placement,” or “adoptive
placement.”
25 U.S.C. § 1903(1) (2018). A “foster care placement” is “any action removing an
Indian child from its parent or Indian custodian for temporary placement in a foster home or
institution or the home of a guardian or conservator where the parent or Indian custodian cannot
have the child returned upon demand, but where parental rights have not been terminated.”
Id.
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§ 1903(1)(i). An “adoptive placement” is “the permanent placement of an Indian child for
adoption.” Id. § 1903(1)(iv).
¶ 129 An “Indian child” is “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.” Id. § 1903(4). An “Indian child’s tribe” is “(a) the
Indian tribe in which an Indian child is a member or eligible for membership or (b) in the case of
an Indian child who is a member of or eligible for membership in more than one tribe, the Indian
tribe with which the Indian child has more significant contacts.” Id. § 1903(5).
¶ 130 Section 1911 of ICWA governs “Indian tribe jurisdiction over Indian child custody
proceedings.” Id. § 1911. Section 1911(b) applies when the Indian child does not live on the
reservation of his tribe and provides as follows:
“In any State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled or residing within
the reservation of the Indian child’s tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent
objection by either parent, upon the petition of either parent or the Indian custodian
or the Indian child’s tribe[.]” Id. § 1911(b).
The Illinois Supreme Court has stated, “Under section 1911(b), there is … a presumption that the
tribal court should hear the case, but transfer to the tribal court is not required where there is [an]
objection by either parent or where the trial court finds good cause to deny such a transfer.” S.S.,
167 Ill. 2d at 263; see also
25 C.F.R. § 23.117 (2022) (“Upon receipt of a transfer petition … the
State court must transfer the child-custody proceeding unless … (a) [e]ither parent objects to such
transfer; (b) [t]he Tribal court declines the transfer; or (c) [g]ood cause exists for denying the
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transfer.”).
¶ 131 Neither ICWA nor the federal regulations promulgated thereunder by the BIA
define what constitutes “good cause” to deny a transfer. The BIA regulations, however, provide
factors that state courts may not consider when making a good cause determination:
“(1) Whether the foster-care or termination-of-parental-rights proceeding is
at an advanced stage if the Indian child’s parent, Indian custodian, or Tribe did not
receive notice of the child-custody proceeding until an advanced stage;
(2) Whether there have been prior proceedings involving the child for which
no petition to transfer was filed;
(3) Whether transfer could affect the placement of the child;
(4) The Indian child’s cultural connections with the Tribe or its reservation;
or
(5) Socioeconomic conditions or any negative perception of Tribal or BIA
social services or judicial systems.” 25 C.F.R. § 23.118(c) (2022).
¶ 132 In 2016, the BIA published on its website nonbinding guidelines to assist state
courts in determining whether “good cause” to deny transfer exists. See U.S. Dep’t of Interior,
Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act (Dec. 2016),
https://www.bia.gov/sites/default/files/dup/assets/bia/ois/pdf/idc2-056831.pdf [https://perma.cc/
Q6JV-YUR6]. Although the guidelines are nonbinding, they “must be accorded great weight in
construing the ICWA.” Armell,
194 Ill. App. 3d at 38 (citing Batterton v. Francis,
432 U.S. 416,
424 (1977)).
¶ 133 Regarding “good cause,” the BIA guidelines state that “the statute [(ICWA)] and
the rule [(
25 C.F.R. § 23.118 (2016))] provide State courts with the discretion to determine ‘good
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cause’ based on the specific facts of a particular case.” U.S. Dep’t of Interior, supra, at 49. The
guidelines further state that “[t]he regulation’s limitations on what may be considered in the ‘good
cause’ determination do not limit State judges from considering some exceptional circumstance as
the basis of good cause.” Id. Last, the guidelines provide that “the ‘good cause’ determination
whether to deny transfer to Tribal court should address which court is best positioned to adjudicate
the child-custody proceeding, not predictions about the outcome of that proceeding.” Id.
¶ 134 Questions of law are reviewed de novo. In re C.N., 196 Ill. 2d 181, 203,
752 N.E.2d
1030, 1043 (2001). Whether the trial court properly applied ICWA to the facts of a case is reviewed
de novo. In re M.H.,
2011 IL App (1st) 110196, ¶ 64,
956 N.E.2d 510 (citing In re Cari B.,
327
Ill. App. 3d 743, 749,
763 N.E.2d 917, 922 (2002) (where the “relevant facts are undisputed, and
the resolution of [the issues on appeal] depends primarily on [the appellate court’s] interpretation
of the ICWA,” whether the trial court properly applied ICWA to the facts of the case is a question
of law that is reviewed de novo)).
¶ 135 2. This Case
¶ 136 The foster parents and the State both argue that the trial court’s order transferring
jurisdiction should be reversed. The foster parents contend that the court erred by failing to apply
the “existing Indian family exception” to ICWA. The State asserts that (1) the children were not
“Indian children” subject to ICWA, (2) both parents objected to tribal jurisdiction, and (3) good
cause to deny transfer existed because (a) the minors lacked any connection to the Tribe,
(b) holding the proceedings in Alaska would be more burdensome than holding them in Illinois,
and (c) the proceedings were at an advanced stage by the time the Tribe sought transfer.
¶ 137 The Tribe responds that (1) this court should decline to apply the “existing Indian
family exception” and (2) good cause to deny the transfer does not exist.
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¶ 138 We agree with the State that the trial court erred by transferring jurisdiction because
(1) the parents objected to tribal jurisdiction and (2) good cause existed to deny transfer.
¶ 139 a. The Parental Objections
¶ 140 The State argues that the trial court should have denied transfer because the minors’
parents formally objected to tribal jurisdiction. The Tribe responds that the court correctly
concluded that the parents’ objections to transfer did not extend beyond their deaths. The Tribe
contends that “[o]nce both parents had passed away, they do not continue to have ongoing rights
to choose a forum. … There is no reason why an objection to transfer would survive them, as
there are no rights this objection protects.” Notably, the Tribe cites no authority supporting its
position (nor did the trial court).
¶ 141 The plain language of ICWA and the BIA’s implementing regulations grant parents
the express right to veto a transfer of jurisdiction. ICWA requires that a state court, “in the absence
of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent
objection by either parent.” 25 U.S.C. § 1911(b) (2018). The BIA regulations are similarly clear,
stating as follows:
“[T]he State court must transfer the child-custody proceeding unless the court
determines that the transfer is not appropriate because one or more of the following
criteria are met:
(a) Either parent objects to such transfer;
(b) The Tribal court declines the transfer; or
(c) Good cause exists for denying the transfer.” 25 C.F.R. § 23.117 (2022).
¶ 142 The BIA guidelines further explain the parental objection provision as follows:
“[Rule 23.117] reflects ICWA section 1911(b)’s requirement that a child-custody
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proceeding be transferred to Tribal court upon petition of either parent or … the
Indian child’s Tribe, except in three circumstances: (1) where either parent
objects; (2) where the Tribal court declines the transfer; or (3) where there is good
cause for denying the transfer.
…
The rule mirrors the statute in respecting a parent’s objection to transfer of
the proceeding to Tribal court. As Congress noted, ‘[e]ither parent is given the
right to veto such transfer.’ [H.R. Rep. No. 95-1386, at 21 (1978).] However, if a
parent’s parental rights have been terminated and this determination is final, they
would no longer be considered a ‘parent’ with a right under these rules to object.
While[ ] this criterion addresses the objection of either parent, nothing
prohibits the State court from considering the objection of the guardian ad litem
or child himself under the third criteria (good cause to deny transfer), where
appropriate.” U.S. Dep’t of Interior, supra, at 48.
¶ 143 The statute, regulation, and guidelines make eminently clear that a trial court must
deny transfer if either parent has objected to the transfer. In the present case, both parents executed
written objections to transferring jurisdiction to specifically the Togiak Tribal Court, and not to
tribal jurisdiction generally. The trial court allowed some evidence at the hearing that Demerle
subsequently reached out to Wassillie asking for some form of assistance because Demerle did not
want the foster parents to adopt the children, but the court properly rejected that evidence as a
hearsay statement to an interested party that “in no way supported a finding that the Mother
actually revoked her written, signed, and court-filed objection.” Even if we were to conclude that
evidence was admissible and amounted to a rescission of her prior objection (which we, like the
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trial court, do not), Anthony’s objection would still be on record. And, as the BIA makes clear,
either parent may veto a transfer of jurisdiction.
¶ 144 We agree with the State that the trial court erred by concluding that Anthony’s death
rendered his objection a “nullity.” Neither the court nor the Tribe (who urges us to affirm the court
on this point) offers any authority to support the conclusion that death renders a parental objection
void. “Where the statutory language is clear and unambiguous, we will enforce it as written and
will not read into it exceptions, conditions, or limitations that the legislature did not express.”
(Internal quotation marks omitted.) Lintzeris v. City of Chicago, 2023 IL 127547, ¶ 26. We
conclude that the court erred by reading into ICWA a limitation that the statute does not contain.
To be clear, our holding is limited to the circumstances in this case, where both parents made
specific objections and died shortly thereafter.
¶ 145 Although the BIA guidelines address the effect of a trial court’s termination of the
parental rights of a parent who states his or her objection to transfer of jurisdiction to a tribe—
pointing out that the objection of such a parent is of no effect—those guidelines say nothing of a
parent’s death, likely because the effect of a termination of a parent’s rights is far different than
the effect of a parent’s death. Termination occurs only after a trial court has found (1) a parent
unfit and (2) the child’s best interests would be served without the parent in the child’s life.
Accordingly, any decisions, plans, or hopes of that parent for that child are rendered meaningless.
The objection of an unfit parent to transfer is likewise of no effect.
¶ 146 On the other hand, it would be absurd to say that a deceased parent’s wishes for his
or her child should be ignored solely because of that parent’s death. The deceased parent’s
concerns for the best interests of that child survive the parent’s death, especially, as here, when
that parent has expressed his or her views or concerns in writing, usually in a will.
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¶ 147 We also reject the Tribe’s argument that the objections had no effect because they
were executed prematurely, before the petition for transfer was filed. This argument echoes the
trial court’s finding that “the Statute requires that a Petition to Transfer needs to be filed and
pending … before the parents can object to the requested transfer.” By reaching this conclusion,
the court has again read a condition into the statute that Congress did not put there. Moreover,
neither the court nor the Tribe offer any authority for the existence of such a requirement. ICWA
contains no language that prohibits a parent from recording his or her objection to a transfer prior
to a formal petition for transfer being filed.
¶ 148 Nor does the structure of the statute support the trial court’s finding. The court
found that inclusion of the words “upon the petition of” in section 1911(b) meant that the petition
must be filed before a parent may object. We disagree. The section reads as follows:
“In any State court proceeding for the foster care placement of, or
termination of parental rights to, an Indian child not domiciled or residing within
the reservation of the Indian child’s tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent
objection by either parent, upon the petition of either parent or the Indian custodian
or the Indian child’s tribe[.]” 25 U.S.C. § 1911(b) (2018).
The structure of the statute, in particular the placement of the phrase “absent objection by either
parent” before the words “upon the petition of” suggests that the statute does not contemplate a
petition being filed before an objection may be raised.
¶ 149 On this record, it is not surprising that the parents here would have anticipatorily
executed their objections to the Tribe’s participation. After all, Anthony and Demerle had been
involved in a 2016 neglect case in which the Tribe also sought to intervene, and one could easily
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foresee that the Tribe would seek to intervene again. The fact that Anthony and Demerle executed
their written objections at the very beginning of the 2020 case, before the Tribe even had the chance
to request a transfer, further supports giving their parental objections great weight. A reasonable
inference from the fact that one of the first actions Anthony and Demerle took in this case was to
object to transfer to Togiak and only Togiak is that they wished to execute their parental veto at
the earliest opportunity to prevent the Tribe from ever seeking transfer.
¶ 150 We emphatically reject the Tribe’s arguments that (1) a parent can object to transfer
only after a petition to transfer is filed and (2) a parent’s death renders his or her objection
nugatory. First, as we have pointed out, the Tribe offers no authority for these positions. Second,
to accept the Tribe’s argument would lead to absurd results in juvenile cases, which can often take
many years to resolve. Under the Tribe’s reading of ICWA, which would prohibit an anticipatory
parental objection and render it void upon death, a five-year-long juvenile court case could be
effectively undone if an objecting parent died.
¶ 151 And what about an objecting parent who is diagnosed with a terminal disease? The
Tribe’s position is that the objection of that parent to transfer would become nugatory when he or
she died, no matter how concerned that parent may be about which court would be deciding his or
her children’s future after the parent’s death.
¶ 152 It is firmly rooted in Illinois and federal law that “[o]ne of the fundamental rights
protected under the fourteenth amendment is the right of parents to make decisions concerning the
care, custody, and control of their children without unwarranted state intrusion.” Wickham v.
Byrne, 199 Ill. 2d 309, 316,
769 N.E.2d 1, 5 (2002). The Tribe’s argument in this case twists this
foundational legal principle from one that recognizes and protects a fundamental human right to
one that restricts and curtails it. Under the Tribe’s reasoning, a person’s fundamental right to make
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decisions regarding his or her children, rather than simply being protected by the fourteenth
amendment, becomes limited to that person’s lifetime is and is terminated upon his or her death.
The Tribe’s argument is antithetical to centuries of societal customs, norms, and attitudes, which
give great weight and significance to a parent’s wishes and decisions regarding the care, custody,
and upbringing of his or her child, even after an untimely death.
¶ 153 For the foregoing reasons, we conclude that the trial court erred when it found that
the parental objections to transfer were premature and rendered a nullity by the parents’ deaths.
Moreover, as we discuss (infra ¶¶ 179-83), even if the parental objections lacked veto effect, the
GAL’s objection, in conjunction with the parents’ objections, constituted good cause to deny
transfer.
¶ 154 b. Good Cause To Deny Transfer
¶ 155 The State contends that good cause to deny transfer existed because (1) the minors
lacked any connection to the Tribe, (2) conducting the proceedings in Alaska would be more
burdensome than conducting them in Illinois, and (3) the proceedings were at an advanced stage
when the Tribe sought transfer.
¶ 156 As noted (supra ¶ 134), our review is de novo because (1) the relevant facts are not
disputed and (2) the appeal depends primarily on our interpretation of ICWA and whether the trial
court properly applied the statute to the facts of the case. See M.H., 2011 IL App (1st) 110196,
¶ 64.
¶ 157 i. The Minors’ Connection to the Tribe
¶ 158 The State argues that the minors in this case lacked any personal connection to the
Togiak Tribe. The State correctly observes that the only connection the minors have to the Togiak
Tribe is that their mother (1) was a member of a related, neighboring tribe and (2) was eligible for
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membership in the Togiak Tribe. Not only had the minors never lived on a reservation or in an
Indian cultural setting, they were not even aware of their mother’s, and therefore their own, native
ancestry until the spring of 2022, when McChesney discussed it with them. At that time, Cal. E.
was nine years old, and Cas. E. was seven years old. McChesney testified that both minors had
very limited knowledge of Native American culture in general and had no knowledge of their own
native ancestry or family. The children were happy to hear that they had relatives on their mother’s
side of the family and stated that they did not have pictures of their mother.
¶ 159 McChesney opined that transfer would be appropriate because the children
expressed a desire to know about their heritage. Their great aunt, Wassillie, testified that she had
never spoken with the children. She testified that her brothers and sisters had spoken with them
over the telephone, but she did not state who, when, how many times, or for how long. Moreover,
the children’s mother was not a member of the Togiak Tribe, but instead a member of the
Kwinhagak Tribe. (We note that the Tribe in its filings before the trial court asserted that Demerle
was eligible for membership in the Tribe.) The Togiak Tribe unilaterally enrolled the children as
members of the Tribe in March 2021, without input from the children, their parents (who were
deceased at that time), or the GAL.
¶ 160 Nonetheless, the BIA has issued binding regulations that prohibit a state court from
considering “[t]he Indian child’s cultural connections with the Tribe or its reservation” when
determining whether good cause exists to deny transfer of jurisdiction to tribal court. 25 C.F.R.
§ 23.118(c)(4) (2022); see also Brackeen v. Haaland,
994 F.3d 249, 352-58 (5th Cir. 2021)
(holding that the BIA possessed authority under ICWA to issue binding regulations).
¶ 161 In support of its argument that the trial court erred by failing to consider the minors’
lack of contacts with the Tribe, the State relies on outdated, nonbinding BIA guidelines from 1979,
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which stated that good cause to deny transfer may exist if, among other things, “[t]he parents of a
child over five years of age are not available and the child has had little or no contact with the
child’s tribe or members of the child’s tribe.” Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,591 (Nov. 26, 1979). As the Tribe correctly points out, the
BIA has withdrawn the 1979 guidelines, replacing them with binding regulations and new
guidelines in 2016, and state courts can no longer consider a minor’s lack of cultural connection
to the tribe seeking transfer.
¶ 162 Accordingly, the minors’ lack of connection to the Tribe does not constitute good
cause to deny transfer.
¶ 163 ii. The Advanced Stage of the Proceedings When the Tribe Intervened
¶ 164 The State also argues that good cause to deny transfer existed because the
proceedings were at an advanced stage by the time the Tribe intervened.
¶ 165 The Tribe responds that it is irrelevant that it did not intervene and seek to transfer
the case until the proceedings were at an advanced stage because it (1) did not receive notice of
the proceedings in a timely manner and (2) filed the transfer motion within three months of being
permitted to intervene. In support of its argument, the Tribe points to the 2016 regulations, which
prohibit state courts from considering “[w]hether the … proceeding is at an advanced stage if the
… Tribe did not receive notice of the child-custody proceeding until an advanced stage.”
25
C.F.R. § 23.118(c)(1) (2016). (We note that the State did not address this regulation in its brief.)
¶ 166 We agree with the Tribe. Although the Tribe received notice of the hearings in
December 2020 and did not file its motion for transfer until November 2021, the State was
responsible for an eight-month delay in sending the Tribe notice in the first place. Although it
could fairly be said that the proceedings were at an advanced stage by the time the Tribe sought
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transfer, because the State sent late notice to the Tribe, the applicable regulation prohibits us from
holding this factor against the Tribe.
¶ 167 iii. The Burden of Conducting Proceedings in Alaska Versus in Illinois
¶ 168 The State also argues that the trial court erred by finding that conducting
proceedings in Alaska would be no more burdensome than conducting them in Illinois. The State
contends that “[e]veryone involved in this case, except the Togiak [T]ribe … [is] located in
Illinois,” including “the foster parents and foster home [that the minor children] have known for
as long as they can remember.”
¶ 169 The BIA guidelines state that “[t]he legislative history [of ICWA] indicates that
this [good cause] provision is intended to permit a State court to apply a modified doctrine of
forum non conveniens, in appropriate cases, to insure that the rights of the child as an Indian, the
Indian parents or custodian, and the Tribe are fully protected.” U.S. Dep’t of Interior, supra, at 48-
49.
¶ 170 The forum non conveniens doctrine “allows a court to decline jurisdiction … if it
appears that another forum can better serve the convenience of the parties and the ends of justice.”
Fennell v. Illinois Central R.R. Co., 2012 IL 113812, ¶ 12,
987 N.E.2d 355. Illinois courts
conducting a forum non conveniens analysis evaluate private interest factors and public interest
factors to determine whether the balance of factors favors another forum. Id. ¶ 17. Public interest
factors typically include considerations such as (1) the administrative burden of litigating in a
congested venue, (2) the unfairness of imposing jury duty on residents of a community with no
connection to the litigation, and (3) the interest in having local controversies decided locally. Id.
¶ 16.
¶ 171 Typical private interest factors include “[(1)] the convenience of the parties;
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[(2)] the relative ease of access to sources of testimonial, documentary, and real evidence; [(3)] the
availability of compulsory process to secure attendance of unwilling witnesses; … and [(4)] all
other practical considerations that make a trial easy, expeditious, and inexpensive.” Id. ¶ 15.
¶ 172 In M.H., 2011 IL App (1st) 110196, ¶ 56, the First District Appellate Court
addressed undue hardship to the parties when affirming the trial court’s finding that good cause
existed to deny transfer of jurisdiction from Illinois to a tribal court located in Wisconsin. The
appellate court noted that the tribal court was located 400 miles from Chicago, where the minor
resided, and concluded that “[t]raveling this distance for the proceeding would be unduly
burdensome on [the minor] … and the other potential witnesses involved in [the minor’s] case,
the majority of whom reside in Chicago.”
Id. The court also wrote the following:
“Although [the mother and father (who were members of the Bad River
Band of Lake Superior Tribe of Chippewa Indians)] reside on the reservation, they
spent a majority of their life in Chicago and did not move to the reservation until
after the Tribe filed its petition to transfer. Because the bulk of the evidence and the
majority of the witnesses necessary to the proceeding are located in Illinois, a
transfer would constitute an undue hardship.” Id.
¶ 173 Similarly, in S.S.,
167 Ill. 2d at 264, the supreme court found that litigating the
termination and adoption proceedings in Montana (the location of the tribal court) would be unduly
burdensome on “the children, their custodians, the adoption petitioners, and all the other potential
witnesses,” who resided in Illinois, because (1) the distance from Chicago to Montana was over
1100 miles and (2) “the bulk of the evidence and the majority of the witnesses necessary to the
termination of parental rights action are located in Illinois.”
¶ 174 The present case is similar to M.H. and S.S. because (1) Cal. E. and Cas. E. live in
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Illinois and have never lived in Alaska and (2) nearly all of the witnesses and evidence necessary
to determining their best interests are located in Illinois. Moreover, nothing in the record suggests
that Anthony ever lived in or near Togiak, Alaska, or tribal lands. And although the information
about Demerle’s history of residence is lacking, the record demonstrates that she (1) was not a
member of the Togiak Tribe, (2) became a member of the Kwinhagak Tribe in 2016, and (3) was
not living on an Indian reservation in the immediate period prior to the filing of the petition for
adjudication of wardship or after its filing in 2020. Moreover, the distance from Illinois to Alaska
is significantly greater than Wisconsin or Montana. And, once one travels to Alaska, Togiak is
accessible only by air.
¶ 175 On the other hand, M.H. was decided in 2011, before the technology to conduct
remote proceedings was as available as it is today. The trial court correctly noted that
videoconferencing technologies such as Zoom have made it much easier to conduct meetings or
proceedings anywhere in the country. Indeed, during the COVID-19 pandemic, courts routinely
conducted proceedings via Zoom, and they have continued to do so in the years since. The Illinois
Supreme Court recently adopted Illinois Supreme Court Rule 45 (eff. Jan. 1, 2023), which
facilitates remote participation in juvenile neglect proceedings.
¶ 176 Nonetheless, the trial court in this case considered only the availability of Zoom
technology to conclude that litigating in Alaska versus Illinois presented no undue hardship. In
doing so, the court reasoned that “multiple parties” attended the June 2022 hearing remotely. We
can discern from the transcript that Wassillie and her supervisor attended remotely, as did the
“official keeper of records and official reporter” for Carroll County. We note that (1) the transcript
of the hearing contains nine notations by the reporter of “technical difficulties” and six notations
of “unintelligible” and (2) the court itself stated, “[O]ne problem with Zoom is I can never tell
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when somebody’s done talking,” and “Zoom … isn’t great with external audio.”
¶ 177 More importantly, however, the trial court considered only the “geographical
distance” between Illinois and Alaska. In doing so, the court failed to consider that, with the
addition of the foster parents as parties, five parties reside in Illinois (Cal. E., Cas. E., the State,
DCFS, and the foster parents) and just one party resides in Alaska (the Tribe). Furthermore, this
case centers on the lives of two minors—now ages 10 and 8—who have spent their entire lives in
Illinois. The witnesses located in Alaska, who have never seen the children in person, comprise a
very small part of the evidence in this case. When Wassillie was asked whether she would travel
to Illinois to make a best interest determination for the children, she stated that she had never
traveled (except to pick up a child at the airport) and that she and her coworkers usually “did
everything over the phone.”
¶ 178 By considering only that the geographical distance between Illinois and Alaska was
neutralized by the ability of the case participants in Illinois to attend by Zoom, the trial court did
not conduct a proper analysis of the forum non conveniens factors. Properly considered, the private
interest factors weigh heavily in favor of Illinois as the preferred forum.
¶ 179 iv. The Objection of the GAL
¶ 180 Although not raised in the State’s brief, we note that, in its written closing argument
before the trial court, the State additionally argued that good cause to deny transfer existed, in part,
because the GAL objected to transfer on behalf of the children. The State cited the “Guidelines for
Implementing the Indian Child Welfare Act,” published by the Department of the Interior in
December 2016 in support of its argument. The BIA guidelines state, “While[ ] this criterion [(25
C.F.R. § 23.117(a) (2016))] addresses the objection of either parent, nothing prohibits the State
court from considering the objection of the guardian ad litem or the child himself under the third
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criteria (good cause to deny transfer), where appropriate.” U.S. Dep’t of Interior, supra, at 48.
¶ 181 We can hardly imagine a more appropriate case in which the trial court should have
given the GAL’s objection significant, if not determinative, weight. Both parents executed written
objections to tribal jurisdiction at the initiation of the case. Within months thereafter, both parents
died. Despite the parental objections, the Tribe sought a transfer. The GAL—at this point, the sole
representative of the children—objected to transfer.
¶ 182 Although the State urged the trial court to consider the GAL’s objection and pointed
the court to the authority permitting the court to do so, the court did not address in its order what
weight, if any, it gave to the fact that the GAL was objecting. The court may have considered the
GAL’s arguments against transfer, but the record does not suggest that the court viewed the mere
fact of the GAL’s objection as a good cause factor, despite the BIA’s guidelines specifically
identifying the GAL’s objection as such.
¶ 183 We conclude that the GAL’s objection to transfer should have been afforded weight
in the trial court’s good cause analysis in this case because (1) the GAL was the voice of the minors
and (2) the GAL’s objection was consistent with the parents’ written objections. Even if the
parents’ written objections alone did not operate to veto the transfer, the court at a minimum should
have given their objections significant weight in its good cause analysis.
¶ 184 v. Cumulative Effect
¶ 185 We conclude that the trial court did not properly apply ICWA to the facts of this
case when it found that good cause to deny transfer did not exist. As we noted (supra ¶ 131), the
BIA regulations do not define “good cause” and identify only factors that a court cannot consider
when determining if good cause exists to deny transfer. The BIA guidelines expressly state that
“good cause” should be determined “based on the specific facts of a particular case” and the court
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may consider “exceptional circumstance[s]” as the basis of good cause. U.S. Dep’t of Interior,
supra, at 49.
¶ 186 In the present case, the trial court failed to consider the unique facts of this case
when determining that good cause to deny transfer did not exist. To the contrary, the court
considered almost exclusively the strictures placed upon it by ICWA. In doing so, the court failed
to identify those facts present that it could consider, namely, (1) nearly all of the witnesses and
evidence necessary to determine the best interests of Cal. E. and Cas. E. are located in Illinois,
(2) five of the six parties to the litigation are located in Illinois, (3) the biological parents of Cal.
E. and Cas. E. executed written objections specifically to Togiak tribal jurisdiction, and (4) the
GAL also objected to Togiak tribal jurisdiction.
¶ 187 We also note that the trial court erred by denying the foster parents’ motions to
intervene and reconsider the transfer order. The foster parents alleged in their motion that Cal. E.
and Cas. E. wished to stay in Illinois. The wishes of the children, particularly at 10 and 8 years
old, would have contributed to the court’s good cause analysis and should have been allowed.
¶ 188 All of these factors cumulatively establish that (1) the trial court did not properly
apply ICWA to the facts of this case and (2) good cause to deny transfer existed.
¶ 189 Accordingly, we reverse the trial court’s judgments (1) finding that the foster
parents did not have standing and (2) granting the Tribe’s motion to transfer jurisdiction.
Furthermore, we remand this case with directions for the trial court to (1) vacate its September 15,
2022, order transferring jurisdiction; (2) enter an order denying the Tribe’s motion to transfer
jurisdiction, consistent with this opinion; and (3) grant the foster parents’ motion to intervene.
¶ 190 Because Illinois courts will retain jurisdiction and Illinois law will continue to
apply, we remand for further proceedings under the Juvenile Court Act (705 ILCS 405/1-1 et seq.
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(West 2020)).
¶ 191 III. CONCLUSION
¶ 192 For the reasons stated, we reverse the judgment of the trial court and remand for
further proceedings.
¶ 193 Reversed and remanded.
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In re Cal. E., 2023 IL App (4th) 220930
Decision Under Review: Appeal from the Circuit Court of Carroll County, Nos. 20-JA-3,
20-JA-4; the Hon. David Olson, Judge, presiding.
Attorneys Brendan W. Caver, of Law Office of Brendan W. Caver, Ltd., of
for Rockford, for appellants.
Appellant:
Attorneys Aaron Kaney, State’s Attorney, of Mt. Carroll (Patrick Delfino,
for David J. Robinson, and James Ryan Williams, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
Bradley R. Tengler, of Law Office of Bradley R. Tengler, P.C., of
Rockford, Kathryn E. Fort, of Indian Law Clinic at Michigan State
University College of Law, of East Lansing, Michigan, and
Rebecca Patterson, of Sonosky, Chambers, Sachse, Miller &
Monkman, LLP, of Anchorage Alaska, for intervenor-appellee.
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