Empson-Laviolette v. Crago

• Decision Date: 11 September 2008
• Docket Number: Docket No. 284041.
• Citation: 760 N.W.2d 793,280 Mich. App. 620
• Parties: EMPSON-LAVIOLETTE v. CRAGO.
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 793

280 Mich. App. 620

EMPSON-LAVIOLETTE v. CRAGO.

Docket No. 284041.

Court of Appeals of Michigan.

Submitted September 4, 2008, at Grand Rapids.

Decided September 11, 2008, at 9:05 a.m.

Michigan Indian Legal Services, Inc. (by Thomas R. Myers), for the plaintiff.

Schuitmaker, Cooper, Schuitmaker, Cypher & Knotek, P.C. (by Theresa J. Cypher), Paw Paw, for the defendant.

Before: METER, P.J., and HOEKSTRA and SERVITTO, JJ.

PER CURIAM.

Plaintiff, Stephanie Empson-Laviolette (Empson), an enrolled member of the Pokagon Band of Potawatomi Indians (Tribe), appeals by right the trial court's order granting sole custody of her son, Z.E., to appellees Shannon and Tricia Scott. Below, pursuant to the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., Empson moved the trial court to dismiss the Scotts' motion for custody and to return Z.E. to her custody because she had withdrawn her consent to the Scotts' guardianship of Z.E. Because the ICWA allows the parent of an Indian child who consents to a foster care placement of the child to withdraw consent to the placement at any time and to have the child returned to the parent's custody, we agree with Empson that she was entitled to have Z.E. returned to her custody. Therefore, we vacate the trial court's order granting custody of Z.E. to the Scotts and remand this case for an order terminating the Scotts' guardianship of Z.E. and for the effectuation of the return of Z.E. to Empson.

I. BASIC FACTUAL AND PROCEDURAL HISTORY

On July 21, 1996, Z.E. was born to Empson and defendant Nathaniel Crago. It is undisputed that Z.E., like his mother, is an enrolled member of the Tribe.

On August 16, 2004, Shannon and Tricia Scott filed a petition for guardianship of Z.E.¹ The box next to question 5 of the petition, which read, "The minor is a member of/eligible for membership in an American Indian tribe/band," was not checked. Consent waivers to the guardianship signed by Empson and Crago accompanied the Scotts' petition. On August 31, 2004, the trial court appointed the Scotts temporary guardians of Z.E.² The guardianship order specifically stated that Z.E.'s custody could not be changed from the Scotts without the consent and order of the trial court.

On December 1, 2004, Empson, claiming that her consent to the Scotts' guardianship of Z.E. had been fraudulently obtained, moved to terminate the guardianship and to have Z.E. returned to her custody. Empson's motion contained no indication that Z.E. was Native American. On February 2, 2005, the Scotts moved for sole custody of Z.E.³ The trial court subsequently stayed the guardianship proceedings. It ordered that the Scotts were to remain Z.E.'s guardians until further order of the court.

Several months later, on August 15, 2005, Empson filed a second petition to terminate the Scotts' guardianship of Z.E. This petition provided the first notice to the trial court that Z.E. was Native American. It stated that Z.E.'s race was "Native American." The trial court denied the petition because the guardianship proceedings had been stayed pending the resolution of the Scotts' motion for custody.

Testimony on the Scotts' motion for custody of Z.E. commenced in January 2006. After Empson testified, the trial court adjourned the hearing in order that the submitted psychological evaluation report could be amended to include the Scotts. The trial court did not hear further testimony on the Scotts' motion for custody until February 2008.

In the meantime, Empson moved the trial court to dismiss the Scotts' motion for custody. Empson asserted that because Z.E. was Native American, the ICWA governed the proceedings. She contended that because the Scotts' motion effectively removed Z.E. from her custody and because the heightened standards under 25 USC 1912(d) and (e) regarding the removal of an Indian child from the care of a parent or Indian custodian had not been satisfied, the Scotts' motion had to be dismissed. Empson also moved for the return of Z.E. to her custody. She claimed that the return of Z.E. to her custody was mandated by 25 USC 1913(b), which allowed her to revoke her consent to the Scotts' guardianship of Z.E. The trial court denied the motions. It held that because the guardianship proceedings were initially consensual, the ICWA did not apply to the guardianship proceedings. The trial court further held that because the Scotts were the guardians of Z.E., the Scotts' motion for custody of Z.E., if granted, would not remove Z.E. from the custody of Empson. Therefore, according to the trial court, the ICWA did not apply to the custody proceedings.

In February 2008, after hearing further testimony on the Scotts' motion for custody, the trial court granted sole custody of Z.E. to the Scotts.

II. STANDARD OF REVIEW

Issues involving application of the ICWA present questions of law that we review de novo. In re Fried, 266 Mich. App. 535, 538, 702 N.W.2d 192 (2005); In re NEGP, 245 Mich.App. 126, 130, 626 N.W.2d 921 (2001). Issues of statutory interpretation are also questions of law that we review de novo. Apsey v. Mem. Hosp., 477 Mich. 120, 127, 730 N.W.2d 695 (2007). When interpreting a federal statute, our goal is to give effect to the intent of Congress. Walters v. Nadell, 481 Mich. 377, 381, 751 N.W.2d 431 (2008).

III. ISSUES ADDRESSED ON APPEAL

On appeal, Empson argues that the trial court erred by holding that the ICWA did not apply to either the guardianship proceedings or the custody proceedings and that the trial court violated the ICWA at various times throughout the proceedings. We do not address all of Empson's arguments on appeal because we agree with Empson that the ICWA applied to the guardianship proceedings and that the trial court violated the ICWA when it failed to return Z.E. to her custody after she revoked her consent to the Scotts' guardianship of Z.E. To reach this conclusion, we were required to address the following three issues: (1) whether the ICWA applied to the guardianship proceedings; (2) whether Empson was allowed to withdraw her consent to the Scotts' guardianship of Z.E.; and (3) whether the ICWA preempted the stay mandated by MCL 722.26b(4).

IV. THE INDIAN CHILD WELFARE ACT

In adopting the ICWA, Congress sought to establish "minimum Federal standards for the removal of Indian children from their families" in order to protect the best interests of Indian children and to promote the stability and security of Indian tribes and their families. 25 USC 1902; In re Elliott, 218 Mich.App. 196, 201, 554 N.W.2d 32 (1996). In a custody proceeding involving an Indian child, a state court shall apply the minimum standards articulated in the ICWA unless the applicable state law provides a higher standard of protection to the Indian child's parent or Indian custodian. 25 USC 1921 provides:

In any case where State or Federal law applicable to a child custody proceeding under State or Federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this title, the State or Federal court shall apply the State or Federal standard.

The Michigan Legislature has not enacted any standards providing greater protections than the ICWA to the parent or Indian custodian of an Indian child. Accordingly, the provisions of the ICWA apply to custody proceedings involving Indian children in Michigan.⁴

We now turn to the three issues necessary to reach our conclusion that the trial court erred by failing to return Z.E. to Empson's custody after she revoked her consent to the Scotts' guardianship of Z.E.

A. DID THE ICWA APPLY TO THE GUARDIANSHIP PROCEEDINGS?

There are two prerequisites to invoking the protections of the ICWA. In re Johanson, 156 Mich.App. 608, 612, 402 N.W.2d 13 (1986). First, the child must be an "Indian child" as defined by 25 USC 1903(4). Id. There is no dispute that Z.E. is an Indian child as the term is defined by the ICWA. Second, the custody proceedings must be "a child custody proceeding" as defined by § 1903(1). Id. A "child custody proceeding" is defined to include the "foster care placement" of an Indian child. 25 USC 1903(1). A "foster care placement" is defined as

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. [25 USC 1903(1)(i).]

The ICWA definition of a "foster care placement" contains four requirements: (1) the action removes an Indian child from his parent or Indian custodian; (2) the Indian child is temporarily placed in a foster home, institution, or the home of a guardian or conservator; (3) the parent or Indian custodian is unable to have the child returned upon demand; and (4) the parent's rights were not terminated. 25 USC 1903(1)(i); J.W. v. R.J., 951 P.2d 1206, 1212 (Alaska 1998), overruled in part other grounds Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004). In this case, the last three requirements were clearly met. The trial court named the Scotts temporary guardians of Z.E.,⁵ ordered that Z.E. shall not be removed from the custody of the Scotts absent the consent and order of the court, and did not terminate the parental rights of Empson. In addition, because Empson had legal custody of Z.E. before the trial court appointed the Scotts as Z.E.'s guardians, the guardianship order removed Z.E. from Empson's custody. See J.W., supra at 1213. Accordingly, the guardianship proceedings involved a "foster care placement" of Z.E.,⁶ and, therefore, the ICWA applied to the proceedings, In re Johanson, supra.

Nevertheless, the trial court ruled that the ICWA did not apply to the guardianship proceedings because, at their start, the proceedings were voluntary. This ruling by the trial court misconstrues the ICWA. Voluntariness of...