Tubridy v. Iron Bear

JUSTICE HARRISON delivered the judgment of the court and the following opinion: This appeal arises from a proceeding involving termination of the parental rights of a Native American Indian mother, Betty Jo Iron Bear, and the adoption of her minor children, S.S. and R.S., by two of their non-Indian relatives, Leslie and Patrick Tubridy. The issue before us is whether the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq. (1988)) requires the cause to be transferred to the tribal court of the Fort Peck tribe, on whose reservation Iron Bear is domiciled, even though the children’s non-Indian father had been granted sole physical custody of them prior to his death and the allegations of the Tubridys’ petition, if proven by clear and convincing evidence, would be sufficient to establish that Iron Bear had abandoned the children. Following a hearing, the circuit court of Kane County denied motions by Iron Bear and the Fort Peck tribe to have the cause transferred to the tribal court. On an interlocutory appeal pursuant to Supreme Court Rule 306(a)(l)(v) (134 Ill. 2d R. 306(a)(l)(v)), a divided appellate court held that the tribal court had exclusive jurisdiction over the matter under section 1911 of the ICWA (25 U.S.C. § 1911 (1988)). It therefore reversed and remanded with directions to transfer the cause to that court. (252 Ill. App. 3d 33.) We granted the Tubridys’ petition for leave to appeal (145 Ill. 2d R. 315) and now reverse and remand to the circuit court for further proceedings with respect to the question of the children’s domicile. There is no dispute that Iron Bear is a member of the Fort Peck tribe and lives on the Fort Peck reservation in Poplar, Montana. She is the biological mother of S.S. and R.S., who were fathered by Richard S., a non-Indian. Richard S. died on November 18, 1992, of a disease he contracted from Iron Bear. The two were never married. Although S.S. and R.S. are enrolled members of the tribe, they have been raised predominantly in Illinois by Richard and his family. Iron Bear has never played more than a sporadic role in their lives. In 1990, Richard filed a parentage action in Kane County which resulted in the approval of a joint custody and parenting agreement pursuant to which Richard was awarded physical custody of the children for 10 months of the year. Although Iron Bear was awarded physical custody of them for the remaining two months, the children visited the Fort Peck reservation only once after the agreement was reached. In April 1992, the circuit court of Kane County granted a petition by Richard for the termination of Iron Bear’s physical custody rights to the children. Iron Bear claims the order was entered by default because she was unable to appear due to indigence, but the Tubridys say this is not so. They assert that despite her poverty, Iron Bear has consistently had legal representation. Until shortly before Richard’s death, the children resided with him in Elgin. When Richard became too ill to care for the children and himself, the three moved in with one of Richard’s sisters, Shelly S., in Carpenters-ville, where, it appears, the children are still living. Richard was not a Native American and did not associate with any Indian tribe. In addition, neither child hás had any significant interaction with an Indian tribe beyond their one visit to the reservation. Six days after Richard’s death, the Tubridys filed a petition to terminate Iron Bear’s parental rights and to adopt the children, as Richard had requested in his will. Leslie Tubridy is another of Richard’s sisters, and she and Patrick are the paternal aunt and uncle of S.S. and R.S. The basis they asserted for termination of parental rights was that Iron Bear was an unfit parent. The Tubridys charged that Iron Bear had abandoned the children during the two years prior to the adoption proceedings. Before that time, the Tubridys alleged, she engaged in open and notorious fornication, habitually abused alcohol, and failed to provide the children with adequate food, clothing and shelter even though she was physically and financially able to do so. Iron Bear responded by filing a petition for an emergency order of protection. In that petition she asserted that she had traveled to Illinois upon learning of Richard’s death, but that Shelly S. had refused to allow her to see the children or to disclose their whereabouts. She further claimed, upon information and belief, that the Turbidys had fled with the children to the Tubridy home in Ohio. As a result, the court entered an order requiring immediate return of the children to Illinois, and there is no dispute that they are now back in this State. At the same time she sought the protective order, Iron Bear moved to transfer jurisdiction of the adoption proceeding to the Fort Peck tribal court in Poplar, Montana, and to dismiss the State-court proceeding. Shortly thereafter, the tribe filed a substantially identical motion. The motions invoked section 1911(a) of the ICWA, which states that the tribe has "jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law.” (25 U.S.C. § 1911(a) (1988).) Iron Bear and the tribe argued that S.S. and R.S. are "Indian children,” as that term is defined in section 1903(4) of the Act (25 U.S.C. § 1903(4) (1988)) and that, like Iron Bear, both children are enrolled members of the Fort Peck tribe, a federally recognized "Indian tribe,” as defined by section 1903(8) of the ICWA (25 U.S.C. § 1903(8) (1988)). Iron Bear alleged that because she is the sole parent of S.S. and R.S. and because she is domiciled on the Fort Peck reservation, the domicile of the children is also on the reservation (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597), and that the tribe therefore has exclusive jurisdiction over the matter of the children’s adoption. In their response, the Tubridys contended that the ICWA is inapplicable. They argued that the purpose of the Act is to prevent the breakup of Indian families, and that S.S. and R.S. are not domiciliaries of an Indian reservation or part of an Indian family. They alleged that R.S. was born in Elgin, Illinois, and that both R.S. and S.S. had lived substantially all of their lives there with their non-Indian father, who did not associate with or encourage the children’s association with an Indian tribe. The Tubridys claimed that the children’s part-Indian ancestry has no relation to their average suburban upbringing because neither child had ever resided on or near an Indian reservation for any significant period of time or had any significant contact or interaction with an Indian tribe. According to the Tubridys, jurisdiction belongs in the State court because Richard had sought and obtained sole physical custody of the children and had stated prior to his death that he did not want Iron Bear or her relatives to obtain custody of the children, which actions constituted a "parental objection” under section 1911(b) of the ICWA to the transfer of jurisdiction to the tribal court. The Tubridys also argued that the ICWA permits State courts to retain jurisdiction if there is "good cause,” and that the facts of this case establish that the best interests of the children constitute such "good cause.” After arguments on the issue of jurisdiction, the circuit court denied the motions to transfer, finding that the children are not and have never been domiciled on the reservation and that the ICWA was inapplicable. The appellate court, with one justice dissenting, held that the provisions of the ICWA did apply here and that the children were domiciliaries of the reservation. The court therefore reversed and remanded the cause to the trial court with directions to transfer jurisdiction to the Fort Peck tribal court. We begin our review of the case with the provisions of the ICWA. That legislation was enacted by Congress in 1978 in response to extensive evidence indicating that large numbers of Indian children were being separated from their families and their tribes and were being placed in non-Indian homes through State foster care placement and adoption proceedings. (Holyfield, 490 U.S. at 32, 104 L. Ed. 2d at 36, 109 S. Ct. at 1600.) This practice caused serious harm to the Indian children, their parents and their tribes. Evidence at congressional hearings included testimony concerning problems experienced by the children during adolescence, such as difficulty coping in a white society even where they had been raised in a purely white environment. There was also considerable emphasis during the hearings on how placements of Indian children into non-Indian families adversely affected the tribes’ ability to function as self-governing communities. Sponsors of the ICWA noted that Indian tribes and Indian people were being drained of their children and, as a result, the future of the tribes and Indian people was being placed in jeopardy. Holyfield, 490 U.S. at 33-34 & n.3, 104 L. Ed. 2d at 36-37 & n.3, 109 S. Ct. at 1600-01 & n.3. In enacting the ICWA, Congress incorporated the following statement of findings: "Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds— (1) that *** [through the authority of the United States Constitution], Congress has plenary power over Indian affairs; (2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources; (3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe; (4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and (5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” (25 U.S.C. § 1901 (1988).) Congress declared it to be the policy of the United States: "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 ***.” 25 U.S.C. § 1902 (1988). At the heart of the ICWA are its provisions concerning jurisdiction over Indian child custody proceedings. (Holyfield, 490 U.S. at 36, 104 L. Ed. 2d at 38, 109 S. Ct. at 1601.) A "child custody proceeding” as defined by the ICWA refers to any proceeding involving foster care placement, termination of parental rights, preadoptive placement or adoptive placement. (25 U.S.C. § 1903(1) (1988).) The only two exceptions from that definition are awards of custody to one of the parents in divorce proceedings and delinquency proceeding placements. (25 U.S.C. § 1903(1) (1988).) The ICWA defines an "Indian child” as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4) (1988).) The definition of an "Indian child’s tribe” relevant to this appeal is "the Indian tribe in which an Indian child is a member or eligible for membership.” 25 U.S.C. § 1903(5) (1988). Under section 1911(a) the tribal court possesses exclusive jurisdiction "over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe.” (25 U.S.C. § 1911(a) (1988).) In the case of Indian children not domiciled or residing within the reservation of the child’s tribe, section 1911(b) creates concurrent but presumptively tribal jurisdiction, and requires State courts to transfer jurisdiction over the proceedings to the tribal court, except in cases of "good cause,” objection by either parent, or declination of jurisdiction by the tribal court. 25 U.S.C. § 1911(b) (1988). It is undisputed that the proceeding before us is a "child custody proceeding” and that S.S. and R.S. qualify as "Indian children” within the meaning of the ICWA. For the purposes of determining who should have jurisdiction of the proceeding under the Act, the initial question we must resolve is the location of their domicile. In reversing the circuit court, the appellate court ruled, based on Holyfield, that the children’s domicile was the same as that of their mother, Iron Bear, i.e., the Fort Peck reservation. In our view, however, Holyfield does not compel that result. In Holyfield, the United States Supreme Court considered the issue of the domicile of twin infants born to unmarried Indian parents. The parents, enrolled members of the Choctaw tribe and domiciliaries and residents of the Choctaw reservation in Nashoba County, Mississippi, traveled 200 miles off the reservation, to Harrison County, Mississippi, for the twins’ birth, and immediately thereafter executed consent-to-adoption forms. Two months after a final decree of adoption was entered by the State court, the tribe moved to vacate the decree on the ground that the ICWA vested it with exclusive jurisdiction over the adoption proceeding because the parents were members of the tribe and domiciliaries of the reservation. Recognizing that the jurisdictional question turned on whether the children were domiciled on the reservation, the Supreme Court of Mississippi determined that they were not and, thus, affirmed the decree of the lower court. Before reaching the specific issue of domicile, the United States Supreme Court in Holyfield examined the previously discussed legislative history and underlying policies of the ICWA. Noting, then, that "domicile” is not defined in the ICWA, the United States Supreme Court stated that the meaning of "domicile” is a matter of Congress’ intent. (Holyfield, 490 U.S. at 43, 104 L. Ed. 2d at 43, 109 S. Ct. at 1605.) The Court rejected the notion that Congress intended the definition of "domicile” to be a matter of State law. First, the Court determined that the purpose of the ICWA gave no reason to believe that Congress intended to rely on State law for the definition of a critical statutory term. To the contrary, the Court found from the text of the ICWA and its legislative history and hearings that the purpose of the ICWA was, in part, to make clear that in certain situations the State courts did not have jurisdiction over child custody proceedings (Holyfield, 490 U.S. at 43-45, 104 L. Ed. 2d at 43-44, 109 S. Ct. at 1606-07), and that the main effect of the ICWA was to curtail the authority of individual States (Holyfield, 490 U.S. at 45 n.17, 104 L. Ed. 2d at 44 n.17, 109 S. Ct. at 1606 n.17). The Court observed: "Indeed, the congressional findings that are part of the statute demonstrate that Congress perceived the States and their courts as partly responsible for the problem it intended to correct. [Citation.] Under these circumstances, it is most improbable that Congress would have intended to leave the scope of the statute’s key jurisdictional provision subject to definition by state courts as a matter of state law.” (Holyfield, 490 U.S. at 45, 104 L. Ed. 2d at 44, 109 S. Ct. at 1606-07.) In further support of its position, the Holyfield Court also noted that resort to State-law definitions of domicile would result in the lack of nationwide uniformity and could even produce a situation where the ICWA would be applied differently to the same child simply as a result of where the child was located or transported. Reasoning that Congress could hardly have intended such a result, the Court concluded that Congress must have intended a uniform Federal law of domicile for the ICWA. Holyfield, 490 U.S. at 45-47, 104 L. Ed. 2d at 44-45, 109 S. Ct. at 1607. The Court then looked to the generally accepted meaning of the term "domicile,” borrowing from "established common-law principles of domicile to the extent that they are not inconsistent with the objectives of the congressional scheme.” (Holyfield, 490 U.S. at 47-48, 104 L. Ed. 2d at 46, 109 S. Ct. at 1608.) Citing the Restatement (Second) of Conflict of Laws, sections 11 through 23 (1971), and other commentaries and decisional law, the Court noted that it was generally uncontroverted that "domicile” is not necessarily synonymous with "residence” and that one can reside in one place but be domiciled in another. In the case of adults, domicile is established by physical presence in a place in connection with an intention to remain there. Because most minors are legally incapable of forming the requisite intent to establish a domicile, however, their domicile is usually determined by that of their parents. Traditionally, in the case of children born out of wedlock, the child takes the domicile of the mother. (Holyfield, 490 U.S. at 48, 104 L. Ed. 2d at 46, 109 S. Ct. at 1608.) Observing that the domicile of the twins’ mother, as well as the father, had at all times been on the reservation, the Court found it indisputable that the domicile of the twins was also on the reservation even though they had never been there. Holyfield, 490 U.S. at 48-49, 104 L. Ed. 2d at 46-47, 109 S. Ct. at 1608. See also In re Adoption of a Baby Child (1985), 102 N.M. 735, 737-38, 700 P.2d 198, 200-01 (child’s domicile was that of the mother on the reservation). The situation in this case is distinguishable. Although Iron Bear was domiciled on the reservation, the children’s father was not, had never been, and did not want to be. His domicile was in Illinois. Because he had sole custody of the children, that was their domicile as well. Upon the father’s death, the domicile of the children would normally have reverted to that of their mother. People ex rel. Noonan v. Wingate (1941), 376 Ill. 244, 249 (at common law upon the death of the father an infant took the domicile of its mother); 25 Am. Jur. 2d Domicil § 67 (1966) (upon the death of the parent to whom custody of a child has been awarded the domicile of the child becomes that of the surviving parent); Restatement (Second) of Conflict of Laws § 22, Comment b, at 63 (1971) (upon the death of the parent who has been awarded legal custody of the child or with whom the child has been living, the child’s domicile shifts to that of the other parent even though the latter is domiciled in another State). An exception to this general rule has been recognized, however, where the surviving parent has abandoned the child. (Restatement (Second) of Conflict of Laws § 22, Comments e, i (1971).) If a child is left parent-less as a result of death and/or abandonment, and no legal guardian of the child’s person has been appointed, the child takes the domicile of the person who stands in loco parentis to him and with whom he lives. Restatement (Second) of Conflict of Laws § 22, Comment i (1971); see Donlon v. Miller (1976), 42 Ill. App. 3d 64, 71. An important limitation on this rule is that the doctrine of abandonment cannot be used by Native American Indian parents as part of a scheme to facilitate adoption of their children by non-Indians while they remain domiciliaries of the reservation. Otherwise, the purpose of the ICWA would be undermined, and the tribe’s ability to assert its interest in its children would be weakened. (Holyfield, 490 U.S. at 52, 104 L. Ed. 2d at 49, 109 S. Ct. at 1610; In re Adoption of Halloway (Utah 1986), 732 P.2d 962, 969.) In this case, however, there plainly was no such scheme, and application of the common law abandonment doctrine can do no possible violence to the purposes of the Act. Accordingly, if Iron Bear were found to have abandoned her children, the children’s domicile would remain in Illinois even after their father’s death. For the purposes of establishing domicile, abandonment occurs when the parent deserts the child or when the parent gives custody of the child to another with the intention of relinquishing his parental rights and obligations. To determine whether an abandonment has taken place, the rules of the forum are normally applied. (Restatement (Second) of Conflict of Laws § 22, Comment e (1971).) If substantiated at a hearing in a trial court, the allegations made by the Tubridys would be sufficient under Illinois law to find abandonment. Because of the procedural posture of this case, however, there has never been a hearing to determine whether Iron Bear has abandoned her children. Given the importance of the abandonment issue to resolution of where the children are domiciled, the judgments of the circuit and appellate courts must therefore be reversed, and the cause must be remanded to the circuit court for a finding as to whether Iron Bear abandoned R.S. and S.S. If the hearing discloses that there has not been abandonment, then the children would have to be deemed domiciliaries of the reservation, the tribe would have exclusive jurisdiction under section 1911(a) of the ICWA (25 U.S.C. § 1911(a) (1988)), and the circuit court of Kane County would be required to transfer the cause to the Fort Peck tribal court. On the other hand, if Iron Bear were proven to have abandoned her children, then the tribe would not have exclusive jurisdiction under section 1911(a) because the children would then neither reside nor be domiciled on the reservation. Instead, the operative provision would be section 1911(b) of the ICWA (25 U.S.C. § 1911(b) (1988)), which confers concurrent jurisdiction on the State courts along with the tribal court where the child is not domiciled and does not reside on the reservation. Under section 1911(b), there is still a presumption that the tribal court should hear the case, but transfer to the tribal court is not required where there is objection by either parent or where the trial court finds good cause to deny such a transfer. In order to assist State courts in determining what constitutes good cause to deny a request to transfer a custody dispute to a tribal court under section 1911(b), the Bureau of Indian Affairs has promulgated nonbinding guidelines. (Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (1979) (hereinafter, Guidelines).) Among the several possible "good cause” reasons for refusing to transfer an Indian child custody case to the tribal court is that the evidence could not be presented in tribal court without undue hardship to the parties or witnesses. (Guidelines, 44 Fed. Reg. at 67,591.) Although the guidelines are not binding, the courts have recognized that section 1911(b) of the ICWA (25 U.S.C. § 1911(b) (1988)) authorizes use of a modified version of forum non conveniens when deciding whether to retain or transfer jurisdiction in Indian child custody proceedings. See In re C.W. (1992), 239 Neb. 817, 825-26, 479 N.W.2d 105, 113; In re Maricopa County Juvenile Action No. JS — 8287 (1991), 171 Ariz. App. 104, 107, 110, 828 P.2d 1245, 1248, 1251; Chester County Department of Social Services v. Coleman (1990), 303 S.C. 226, 229-32, 399 S.E.2d 773, 775-76. We can take judicial notice of the fact that Poplar, Montana, where the Fort Peck tribal court is located, is more than 1,100 miles from the Chicago metropolitan area where S.S. and R.S. reside. Traveling this distance for the termination / adoption hearing would be unduly burdensome on the children, their custodians, the adoption petitioners, and all the other potential witnesses involved with the children’s lives, all of whom, apart from Iron Bear, reside in Illinois. Because the bulk of the evidence and the majority of the witnesses necessary to the termination of parental rights action are located in Illinois, a transfer would assuredly constitute an undue hardship. Accordingly, under section 1911(b) of the ICWA, good cause would exist to allow the circuit court of Kane County to retain jurisdiction over the Tubridys’ custody petition. See In re Maricopa County Juvenile Action, 171 Ariz. App. 104, 828 P.2d 1245 (good cause existed to deny transfer from Arizona to out-of-state tribal court); In re J.R.H. (Iowa 1984), 358 N.W.2d 311 (because of geographical obstacles, transfer from Iowa to tribal court in South Dakota would cause undue hardship to parties and witnesses and constituted good cause not to transfer); Chester County Department of Social Services, 303 S.C. 226, 399 S.E.2d 773 (where most of the witnesses and evidence were in South Carolina, good cause existed to deny transfer to tribal court in South Dakota). For the foregoing reasons, the judgment of the appellate court is reversed, and the cause is remanded to the circuit court for a hearing on whether Iron Bear abandoned R.S. and S.S. If the court finds that there was no abandonment, it shall enter an order transferring this cause to the Fort Peck tribal court. If it determines by clear and convincing evidence that abandonment did occur, it shall reinstate its prior orders denying transfer to the tribal court and retain jurisdiction over the Tubridys’ cause of action. Reversed and remanded with directions.