Opposition Brief — Fort Peck Assiniboine & Sioux Tribes v. Tubridy

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(2B 23 1996

No. 95-1185

In The

Supreme Court of the United States

October Term, 1995

Fort Peck Assiniboine and Sioux Tribes

Petitioner,

Leslie Scarlotte Tubridy and Patrick Tubridy

Respondents.

On Petition For Writ Of Certiorari

To The Illinois Supreme Court

RESPONDENTS' BRIEF IN OPPOSITION

BRUCE D. STROM*

JEFFREY S. McCUTCHAN

Strom, Repay & McCutchan

920 Davis Road, Suite 302

Elgin, Illinois 60123

(847) 888-1616

Counsel for the Respondents

*Counsel of Record

QUESTION PRESENTED

Whether the Indian Child Welfare Act requires that

Indian tribal courts have exclusive jurisdiction over the

custody of children who have not been raised as part of an

existing Indian family, but rather have been abandoned by a

parent under well established common law principles to be

raised by a non-Native American parent in a non-Native

American environment.

TABLE OF CONTENTS

Question Presented

Table of Authorities

Objection to Jurisdiction

Statutory Provision Involved

Statement of the Case

Reasons For Denying the Writ

1. The United States Supreme Court lacks

jurisdiction to review the Illinois Supreme

Court ruling, because it is not a final

judgment.

2. The ruling by the Illinois Supreme Court is

consistent with the objectives of the

Congressional scheme set forth in the Indian

Child Welfare Act, well established common

law principles and the reasoning of this court

in Mississippi Band of Choctaw Indians v.

Holyfield given the dramatically different

circumstances.

Conclusion

ii

15

TABLE OF AUTHORITIES

Cases Page

Matter of Adoption of Baade,

462 N.W.2d 485 (S.D. 1990) 13

742 P.2D 1059 (Okl. 1985) 13

849 P.2d 925 (Idaho 1993) 13

645 P.2d 168 (Kan. 1982) 13

x Vv :

420 U.S. 469 (1975) 6,8

bi

617 P.2d 121 (Mont. 1980) 13

C.E.H. v. L.M.H.,

837 S.W.2d 947 (Mo. App. 1992) 13

In re Interest of C.W..

479 N.W.2d 105 13

384 U.S. 436 (1966) 7

iil

Matter Indi itage,

543 A.2d 925 (N.J. 1988) 13

Claymore v. Serr,

405 N.W.2d 650 (S.D. 1987) 13

Matter of Adoption of Crews,

825 P.2d 305 (Wash. 1992) 13

Matter of D.S.,

577 N.E.2d 572 (Ind. 1991) 13

Donlon v. Miller,

42 Ill.App.3d 64 (1976) 11

Inr ni -

193 Cal.Rptr. 40 (Cal.App. 1983) 13

Mills v. Alabama,

384 U.S. 214 (1966) 6

Mississippi Ban hoctaw Indians v. lyfield,

490 U.S. 48 (1989) passim

N _ of Pharm v. Snyder’

Drug Stores, Inc., 414 U.S. 156 (1973) 5

Radi ion WOW, Inc. v. Johnson,

326 U.S. 120 (1945) 7

S.A. v,E..P..

571 So.2d 1187 (Ala. Civ. App. 1990) 13

1V

a ena

In Interest of S.A.M..,

703 S.W.2d 609 (Mo. App. 1986)

Matter of S.C.,

833 P.2d 1249 (1992)

Matter of Adoption of T.N.F.,

781 P.2d 973 (Alaska (1989)

Matter of Adoption of T.R.M..,

525 N.E.2d 298 (Ind. 1988)

Quinn v. Walters,

320 Ore. 233 (Ore. 1994)

Law Review Articles

13

13

13

13

Page

Note: The Indian Child Welfare Act: Does it Cover

Custody Disputes Among Extended Family Members? 1

Alaska Law Review 157 (1984).

Statutes

28 U.S.C. §1257(a)

28 U.S.C. §1257

25 U.S.C. §§1901 et seq.

25 U.S.C. §1911

14

25 U.S.C. §1912(d)

25 U.S.C. §1914

25 U.S.C. §1916(b)

25 U.S.C. §1920

25 U.S.C. §1922

Miscellaneous

Restatement (Second) Conflict of Laws

§22, (1971)

vi

13

13

10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

Fort Peck Assiniboine and Sioux Tribes

Petitioner,

Vv.

Leslie Scarlotte Tubridy and Patrick Tubridy

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITIONER’S PETITION FOR

WRIT OF CERTIORARI

OBJECTION TO JURISDICTION

The judgment of which Petitioner seeks review by its

Petition for writ of certiorari is not a final judgment, because

the Illinois Supreme Court merely reversed earlier

jurisdictional decisions and remanded the case to the circuit

court for further proceedings to properly determine

jurisdiction. 28 U.S.C. §1257(a) confers upon the United

States Supreme Court jurisdiction to review by writ of

certiorari only final judgments rendered by the highest court

of a State in which a decision could be had. The judgment

herein lacked finality, and thus the matter is not properly

before the Court on a petition for writ of certiorari at this

time.

STATUTORY PROVISION INVOLVED

28 U.S.C. §1257. STATE COURT; CERTIORARI

Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari where

the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any

State is drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of the United

States, or where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution or the

treaties or statutes of, or any commission held or authority

exercised under, the United States.

STATEMENT OF THE CASE

On November 24, 1992, Leslie Scarlotte (Sansaver)

Tubridy and Patrick Tubridy filed a Verified Petition for

Adoption in the Circuit Court of Kane County, Illinois,

seeking to adopt their niece and nephew, Sandra (Sandy)

Ann Sansaver (then age 9) and Richard (Ricky) Joseph

Sansaver (then age 5). (Resp. App. A, p.2.)' The aunt and

uncle filed this proceeding just days after the children’s

father, Richard Sansaver, died on November 18, 1992.

(Resp. App. A, p.2.) The petition alleged Ms. Ironbear was

an unfit person who only sporadically resided with the

children, had abandoned them for at least two years prior to

the initiation of these proceedings, suffered from the HIV

virus, was habitually drunk, and was otherwise unfit, and

therefore sought to terminate Ironbear’s parental rights.

(Resp. App. A, p.3.) Ms. Ironbear died on December 22,

1995.

The children’s father was not Native American and

had no associations with any Indian Tribe. The children

have Indian blood because their natural mother, Ms.

Ironbear, was an American Indian. Mr. Sansaver and Ms.

Ironbear were never married. Ricky Sansaver was born in

Elgin, Illinois, and has lived in the northwest suburban

Chicago area his entire life, far removed from any American

Indian traditions. Sandy Sansaver was born in Poplar,

Montana, but moved with her parents shortly after her birth

to the Elgin area, where she has resided and continues to

reside. The children were raised by their father, whose last

name they chose to assume, in their suburban Chicago

community and have had virtually no contact with any Indian

Reservation. (Pet. App. F, pp.5-6.)

The Kane County Circuit Court first obtained

jurisdiction over the children in February, 1990, in Case No.

90 FKA 82. The father filed a parentage action, involving

"References to the Respondent’s appendix are denoted Resp. App. A

followed by the page number. References to the record filed with

Petitioner’s Petition for Writ of Certiorari to the Illinois Supreme Court

are denoted Pet. App. A,B,C,D,E, or F followed by the page number.

3

a custody dispute and an order of protection against Ms.

Ironbear, which resulted in a joint parenting agreement being

entered on April 12, 1990. The Kane County Court later

terminated Ms. Ironbear’s visitation rights, and she had

virtually no contact with the children in the intervening two

years. (Pet. App. F, pp.6,7,12.)

On December 4, 1992, Ms. Ironbear filed her motion

to transfer jurisdiction pursuant to Section 1911 of the Indian

Child Welfare Act of 1978 (ICWA)(25 U.S.C. §§1901 et

seg. at §1911). On December 18, 1992, the Fort Peck

Tribes filed their separate motion to transfer jurisdiction

pursuant to the same provision of the ICWA. Following the

denial of the motions, Ms. Ironbear and the Fort Peck Tribes

separately petitioned the Second District Appellate Court for

Leave to Appeal pursuant to Supreme Court Rule

306(A)(1)(5). On October 22, 1993, that court, over the

dissent of one justice, reversed the decision of the trial court

and ruled the matter should be remanded and transferred to

the Fort Peck Tribal Court. This decision was appealed to

the Illinois Supreme Court which in a 4-3 opinion issued

October 19, 1995, reversed and remanded to the trial court

the matter for further hearings to determine jurisdiction.

REASONS FOR DENYING THE WRIT

1. The United States Supreme Court lacks

jurisdiction to review the Illinois Supreme Court

ruling, because it is not a final judgment.

Petitioner brings this petition for writ of certiorari

pursuant to 28 U.S.C. §1257(a). Section 1257(a) authorizes

the Supreme Court to hear cases only where the highest state

court has rendered a "final judgment or decree." The

Illinois Supreme Court’s order of October 19, 1995, is not

a final judgment or decree, fully disposing of this matter,

and therefore Petitioner’s petition should be denied as

premature.

In this case, the Illinois Supreme Court entered an

order remanding the case to the trial court for further

proceedings in order to properly determine how the ICWA

would apply to the specific set of facts presented by this

matter. Depending upon the outcome of these further

proceedings, this case may, in fact, be transferred to the

jurisdiction of a tribal court, or may be found to be properly

before the Illinois state court, for further adoption

proceedings. In either event, all parties to the matter will

have the opportunity following the trial court’s ruling to

pursue timely relief from the appropriate courts.

The finality requirement of §1257(a) promotes

important interests of judicial economy and state and federal

jurisdiction. As previously noted by the Court,

(1) It avoids piecemeal review by federal courts of

State court decisions;

(2) It avoids giving advisory opinions in cases where

there may be no real "case" or "controversy" in the

sense of Art. III;

(3) It limits federal review of state court

determinations of federal constitutional issues to leave

at a minimum federal intrusion in state affairs.

f v. Snyder’s D

Stores, Inc., 414 U.S. 156, 159 (1973). Those ends are

furthered by allowing the state trial court in this case to

proceed on remand to a final determination of the

jurisdictional issues raised by Petitioner in its brief.

Despite the straightforward wording of §1257(a), the

Court has, on prior occasions, set forth a very few

exceptions to the finality requirement. However, none of

those exceptions apply in this case.

The recognized exceptions to the finality requirement

may be summarized as follows:

(1) Cases in which the federal issue is conclusive of

the case, or the outcome of the further state court

proceedings has been preordained for all practical

purposes,

(2) Cases in which the federal issue has been finally

decided by the highest court in the state and will

survive to require a decision by this Court regardless

of the outcome of the further proceeding;

(3) Cases in which the federal issue has been finally

adjudicated, and in which the federal issue cannot be

later reviewed regardless of the outcome of further

state proceedings; and

(4) Cases in which the federal issue has been finally

adjudicated, where further proceedings might result

in the party seeking review prevailing on the merits

on non-federal grounds, and where reversal of the

state court decision on the federal issue would

preclude any further litigation on the relevant cause

of action.

See generally Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 479-483 (1975). None of the exceptions enumerated by

the Court in Cox apply to this case, and thus Petitioner’s

request for review is premature.

The first exception, set forth in Mills v. Alabama,

384 U.S. 214 (1966), applies only where the remanded

proceedings will, by necessity, result in a preordained

outcome. Obviously, that is not the case here, where the

Illinois trial court has been asked to conduct an evidentiary

hearing to determine the legal domicile of the minor

children. If it is determined at that hearing that the minor’s

domicile was with their natural mother, then in accordance

with the decision of the Illinois Supreme Court this matter

will be transferred to the tribal court. In the absence of any

allegations that the Illinois trial court’s ruling on domicile is

preordained, Petitioner cannot rely on the first exception to

the finality requirement to justify its petition for writ of

certiorari.

Likewise, the second exception, that the federal

question will survive regardiess of the outcome of the

remanded state proceedings, is of no help to Petitioner. This

exception, set forth in Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945), has been applied only in cases where

the remand concerns solely state law questions that “could

not remotely give rise to a federal question . . .” that may

later be properly brought before the U.S. Supreme Court.

Id., 326 U.S. at 127. In this case, further Illinois trial court

proceedings are for the express purpose of determining what

court has proper jurisdiction of this case pursuant to the

federal statute, and therefore the outcome of those

proceedings will directly implicate a question of federal law.

The Radio Station WOW exception does not apply.

The third exception applies only in a case where the

outcome of the further state court proceedings cannot

possibly lead to an opportunity for this Court to review the

matter in the future. The prime example of such a situation

is California v. Stewart, 384 U.S. 436 (1966), in which a

criminal case was remanded for a new trial. As the Court

noted, should the state lose that new trial, it could not, by

law, bring any appeal from that acquittal. Further, if the

state won the new trial, the state’s constitutional claims

would be moot. Thus, under those particular facts, there

was no way in which the federal question decided by the

state court could ever be brought before this Court following

a new hearing on remand. In this particular case, the facts

do not support such an allegation. It is true that further state

court proceedings may moot Petitioner’s claims, if the case

winds up being transferred to the tribal court based on a

determination by the trial court. Of course, that is true in

any case that is remanded for further proceedings.

However, such an outcome would provide Respondents with

an opportunity to present this Court with the issue, and a

contrary decision in this case will result in a final and

appealable order from which Petitioner can, at a later date,

pursue relief before this Court. The third exception to the

finality requirement does not support Petitioner’s request for

writ of certiorari at this time.

Finally, the fourth exception is likewise inapplicable.

This exception applies where: (a) there has been a final

decision on some federal issues: (b) the case has been

remanded for further proceedings unrelated to the federal

issue; (c) the party seeking review before this Court could

possibly prevail on the merits of the case on non-federal

grounds; and (d) a decision by this Court in favor of that

party on the federal grounds would conclude the litigation

without any further proceedings on the state issues. See

Cox, 420 U.S. at 482-483. This exception does not apply,

because Petitioner cannot prevail in the further state court

proceedings on a non-federal issue. The question remanded

for further proceedings is a determination of what court has

proper jurisdiction pursuant to the ICWA. The outcome of

that proceeding will, necessarily, entail an interpretation and

application of the federal statute at question. Therefore, the

first prong of this exception is not satisfied by the Petitioner.

Further, reversal of the Illinois Supreme Court decision by

this Court will not be preclusive of any further litigation on

the relevant cause of action, but, rather, will simply

determine in which court, the Illinois state courts or the

tribal court, this matter can proceed. Because the Illinois

Supreme Court decision has not finally decided that question,

this case is not properly before the Court at this time.

For the foregoing reasons, review of this case at this

time is premature. It is entirely possible that the Illinois trial

court will, in fact, rule in favor of the tribal court having

jurisdiction of this matter pursuant to the ICWA, and thus

the Court would be spared the need for hearing Petitioner’s

request at all. This petition does not meet the finality

requirement of §1257(a), and therefore Petitioner’s petition

for writ of certiorari should be denied.

y & The ruling by the Dlinois Supreme Court is

consistent with the objectives of the Congressional

scheme set forth in the Indian Child Welfare Act,

well established common law principles, and the

reasoning of this court in Mississippi Band of

Choctaw ___Indians__v. Holyfield given the

dramatically different circumstances.

The Illinois Supreme Court carefully reviewed both

the ICWA and this court’s Holyfield opinion in reaching its

determination that well-established common law principles of

domicile should be applied to determine whether the Illinois

courts were automatically divested of jurisdiction under the

circumstances of this case. In so doing, the Illinois Supreme

Court followed the guidance of this court, which has

indicated that in reviewing the issue of domicile: "[w]e find

it helpful to borrow 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 48 (1989).

The Illinois Supreme Court looked to well-established

common law principles of domicile as set forth in the

Restatement (Second) of Conflict of Laws §22, Comments e,

i (1971).?. The Illinois Supreme Court correctly applied

The Restatement (Second) Conflict of Laws §22, Comment e, states:

' Abandoned child. An abandonment, as the term is used here,

occurs in two Situations. It occurs when the parent deserts the child; it

likewise occurs when the parent gives the custody of the child to another

with the intention of relinquishing his parental rights and obligations.

Whether a child has been abandoned so as to bring the case within the

scope of this Comment is a question involving the rules of domicil. The

rules of the forum are applied, except as stated in § 8, to determine

whether an abandonment has taken place (see § 13).

If a child is abandoned by his father, he takes the domicil of his

mother if he has not been abandoned by her. So too, a child domiciled

with his mother and abandoned by her takes the domicil of his father if

he has not been abandoned by him. Except as stated in Comments f.-i,

a child abandoned by both parents retains the domicil possessed by the

parent who last abandoned him at the time of the abandonment; a child

abandoned by both parents simultaneously retains the domicil of the

father at the time of the abandonment.

Under the local law of many states, a child who has attained

years of discretion becomes emancipated upon being abandoned by both

parents (see Comment f)

The Restatement (Second) Conflict of Laws §22 Comment i

States, in part:

If both parents of a child are dead, or if the child is abandoned

by both parents or by a surviving parent, and no guardian of the child’s

10

well-established common law principles of abandonment to

the circumstances of this case. This conclusion is perfectly

consistent with the Congressional scheme set forth in the

ICWA and does nothing to undermine the rights of tribes.

These children have had virtually no contact with an Indian

reservation or Indian relatives through the conscious choice

of their parents and the tribes. Neither Ms. Ironbear nor the

tribes took any interest in the manner and location that father

chose to raise the children. But for the father’s untimely

demise, these children would likely never have had any

contact with the reservation. If, as alleged in a verified

pleading (Res. App. A.), the children’s mother had in fact

abandoned them to their non-Native American father, then

well-established common law principles dictate that the

domicile of the children was with their father prior to his

death and should now be with the individual who stands in

loco parentis to them. This individual is the father’s sister.

Under these circumstances, the Illinois Supreme Court’s

conclusion is entirely consistent with the Congressional

scheme, state law’ and well established common law

principles.

The conclusion reached by the Illinois Supreme Court

is also consistent with this court’s opinion in Mississippi

band of Choctaw Indians v. Holyfield, 490 U.S. 30, (1989).

In Holyfield, the court interpreted the provisions and policies

of the ICWA as it applied to two Indian parents who lived

on a reservation and intentionally left the reservation

person is appointed, the child should acquire a domicil at the home of a

grandparent or other person who stands in loco parentis to him and with

whom he lives.

> See Donlon v. Miller (1976), 42 Ill. App.3d 64,71.

11

temporarily to give birth to twins who were placed for

adoption with a non-Native American family. The Court

recognized the important interest tribes have in raising Indian

children and concluded that the Indian parents involved could

not hide behind state law technicalities to avoid the purposes

of Congress in adopting the ICWA. This reasoning followed

because the Indian children at issue would have lived with

their parents on the reservation and the tribes wouid have

had a significant role in the cultural development of these

children but for the intentional actions of the parents in

seeking to avoid application of the ICWA. The

circumstances in the instant case are dramatically different.

As the initial trial judge indicated, "The facts of this

case are 180 degrees opposite the Holyfield case."

(Pet.App.F, p.11.) This case involves a now 13-year-old

girl and 9-year-old boy who have lived all or substantially all

of their lives in a non-Indian environment by the conscious

choice of their parents. The children are only 25%

Assiniboine Sioux and this fact has never played any role in

their development. The Illinois Supreme Court properly

concluded that neither Congress nor this Court ever intended

to extend the ICWA under these specific circumstances.

Finally, the tribe is incorrect when it states that

Illinois rejected the existing Indian family doctrine. The

majority opinion written by Justice Harrison never addresses

the issue; therefore, the court split three to three on whether

to apply the existing Indian family exception as law in

Illinois. Under circumstances such as these, the existing

Indian family exception better applies the purposes and

policies intended by Congress’s passage of the ICWA.* The

majority of states considering: application of the existing

Indian family exception have applied it as law.° Only a few

courts have rejected the exception. Other courts have

applied the reasoning to not apply the Act even though they

have not directly addressed the existing Indian family

exception.’

The line of cases applying such an exception to the

“Numerous other provisions of the Act itself support the application

and adoption of the existing Indian family doctrine. Section 1912(d)

provides that efforts should be made to prevent the breakup of the Indian

family while subsections (c) and (f) refer to “the continued custody of the

child by the parent or Indian custodian” and the potential for emotional

or physical damage to the child. Section 1914 again refers to the

removal of the child from the parent or Indian custodian. Sections

1916(b), 1920 and 1922 also reflect the application of the Act to existing

* In re Adoption of Baby Boy L., 645 P.2d 168 (Kan. 1982); Matter

of Adoption of Crews, 825 P.2d 305 (Wash. 1992); Matter of Adoption

of Baby Boy D, 742 P.2d 1059 (Okl. 1985) and Matter of S.C., 833

P.2d 1249 (1992); S.A. v. E.L.P., 571 So.2d 1187 (Ala. Civ. App.

1990); C.E.H. v. L.M.H., 837 S.W.2d 947 (Mo. App. 1992) and In

Interest of S.A.M., 703 S.W.2d 609 (Mo. App. 1986); Claymore v.

Serr, 405 N.W.2d 650 (S.D. 1987), but cf. Matter of Adoption of

Baade, 462 N.W.2d 485 (S.D. 1990); and Matter of Adoption of

T.R.M., 525 N.E.2d 298 (Ind. 1988), but cf. Matter of D.S., 577

N.E.2d 572 (Ind. 1991).

* In the Matter of Baby Boy Doe, 849 P.2d 925 (Idaho 1993); Matter

of Adoption of T.N.F., 781 P.2d 973 (Alaska 1989); Matter of Adoption

of a Child of Indian Heritage, 543 A.2d 925 (N.J. 1988); In re Junious

M., 193 Cal.Rptr. 40 (Cal. App. 1983)

7? Quinn v. Walters, 320 Ore. 233 ps a

C.W., 479 N.W.2d 105; In the Matte: Dl Bertelson.

P.2d 121 (Mont. 1980)

13

ICWA better apply the purposes of Congress, especially as

one commentator notes in cases such as this where an intra-

family adoption is involved.* The Illinois Supreme Court

could have followed the reasoning of a majority of

jurisdictions considering an exception to the ICWA, as three

of the four justices in the majority would have done.

However, the Illinois Supreme Court was correct in applying

well-established common law principles of domicile in

remanding the matter back to the trial court for

determination as to abandonment. This conclusion is

consistent with the Congressional policies set forth in the

ICWA; therefore, this court should deny Petitioner’s petition

for writ of certiorari.

* Note:The Indian Child Welfare Act: Does it Cover Custody

Disputes Among Extended Family Members? 1 Alaska Law Review 157

(1984).

14

CONCLUSION

Because the Illinois Supreme Court opinion is not a

final judgment, as required by 28 U.S.C. §1257(a),

Petitioner’s request for review is premature and the Court

lacks jurisdiction to hear this case at this time. None of the

judicially enumerated exceptions apply and therefore, the

court should deny Petitioner’s petition for writ of certiorari.

Additionally, the ruling by the Illinois Supreme Court is

consistent with the objectives of the Congressional scheme

set forth in the ICWA, well established common law

principles, and the reasoning of this court in Mississippi

Band of Choctaw Indians v. Holyfield.

Wherefore, Respondents’ request this Court deny the

Petitioner’s petition for writ of certiorari.

Respectfully submitted this day of February, 1996.

Bruce D. Strom

Jeffrey S. McCutchan

STROM, REPAY & McCUTCHAN

920 DAVIS ROAD, SUITE 302

ELGIN, ILLINOIS 60123-1352

(847) 888-1616

Counsel for the Respondents

1 \tubridy \brief. usc

15

APPENDIX A

IN THE CIRCUIT COURT FOR THE SIXTEENTH

JUDICIAL CIRCUIT

KANE COUNTY, ILLINOIS

Case No. F KA 92 1269

IN THE MATTER OF THE PETITION OF

LESLIE SCARLOTTE TUBORIDY and,

PATRICK TUBORIDY husband and wife,

Petitioner,

vs.

SANDRA ANN SANSABER, a minor

RICHARD JOSEPH SANSABER, a minor

BETTY JO IRON BEAR, All whom it may concern,

and ILLINOIS DEPARTMENT OF CHILDREN

AND FAMILY SERVICES,

Nem eee eee ee”

Defendants.

VERIFIED PETITION FOR ADOPTION

The Petitioners, LESLIE SCARLOTTE TUBORIDY

and PATRICK TUBORIDY, by their attorneys

JUERGENSMEYER, STRAIN AND ASSOCIATES, come

before this honorable court and respectfully allege that;

1. They are husband and wife, of legal age, and

Al

under no legal disability; and petitioners desire to adopt their

niece and nephew, being the children of LESLIE

TUBORIDY’S brother RICHARD, and therefore the

residency requirement does not apply.

a That they desire to adopt RICHARD JOSEPH

SANSABER, a male minor child who was born on the 22nd

day of March, 1988 at Sherman Hospital in the city of Elgin,

County of Kane, state of Illinois.

3. That they further desire to adopt SANDRA

ANN SANSABER, a female minor child who was born on

the 15th day of April, 1984 in Poplar Montana.

4. That the father of the children was RICHARD

JOSEPH SANSABER; that he resided in the County of Kane

with his children until his untimely demise on November 18,

1992.

a That a paternity order was entered in the

Circuit Court of Kane County, Illinois, Case No. F KA 90

0082, which made the father custodial parent; furthermore

that orders of protection were entered by the Circuit Court

of Kane County, Illinois, Case No. F KA 90 0082, granting

temporary custody to the father; and no other court orders

have previously been entered affecting the adoption or

custody of the child or the right of the petitioners to the

children.

6. That the mother of the children is BETTY JO

IRON BEAR; that she is domiciled in Elgin, Kane County,

Illinois that she is of legal age but is an unfit person to have

A2

custody of the children because of the following:

a.

b.

She has from time to time abandoned

the children;

She has failed to maintain a reasonable

degree of interest, concern or

responsibility as to the children’s

welfare;

She has deserted the children for more

than three months preceding to the

commencement of this proceeding;

She has repeatedly neglected the

children;

She has repeatedly been cruel to the

children;

She has failed to protect the children

from conditions within their

environment injurious to their welfare;

She has engaged in open and notorious

fornication;

She has exhibited habitual drunkenness

with the children and others;

She has repeatedly failed to provide

the children with adequate food,

clothing, or shelter although physically

and financially able to do so.

8. Petitioners are reputable persons with the

character, ability, and means to rear, nurture, and educate

the children in a suitable and proper matter.

WHEREFORE, the petitioners make RICHARD

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JOSEPH SANSABER and SANDRA ANN SANSABER, the

children sought to be adopted, and BETTY JO IRON BEAR,

the mother of the children, parties defendant and ask the

court:

2 To appoint a guardian ad litem to represent the

interest of the children’s sought to be adopted;

ye To terminate parental rights and declare the

children wards of the court;

3. To appoint a guardian to make an investigation

as required by law and to present to the court a written

report;

4, To enter a judgement for adoption;

2 For such other relief as may be necessary.

LESLIE SCARLETT TUBORIDY

PATRICK TUBORIDY

JUERGENSMEYER, STRAIN & ASSOCIATES.

Attorneys for Petitioners

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VERIFICATION

Under penalties as provided by law pursuant to Section 1-

109 of the Illinois Code of Civil Procedure, the undersigned

certifies that the statements as set forth in this instrument are

true and correct, except as to matters therein stated to be on

information and belief and as to such matters the undersigned

certifies that as aforesaid that the undersigned verily believes

the same to be true.

LESLIE SCARLETT TUBORIDY

PATRICK TUBORIDY

Kane County

Attorney Number: 01373706

AS