IEM, In re

• Decision Date: 19 January 1999
• Docket Number: Docket No. 208851
• Citation: 233 Mich.App. 438,592 N.W.2d 751
• Parties: In the Matter of IEM, a Minor.
• Court: Court of Appeal of Michigan — District of US

Page 751

592 N.W.2d 751

233 Mich.App. 438

In the Matter of IEM, a Minor.

Docket No. 208851.

Court of Appeals of Michigan.

Submitted Dec. 2, 1998, at Lansing.

Decided Jan. 19, 1999, at 9:10 a.m.

Released for Publication March 23, 1999.

Robert J. Engel, Pros. Atty., and Jennifer Herschelman, Asst. Pros. Atty., for the petitioner.

Robert J. Butts, Cheboygan, for the respondent.

Before: GAGE, P.J., and MacKENZIE and WHITE, JJ.

GAGE, P.J.

Respondent T.Y.M., a minor, appeals as of right the probate court order terminating her parental rights to her minor child, I.E.M., pursuant to M.C.L. § 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g). ¹ Although we conclude that the probate court did not err in its findings of fact or by ordering termination of respondent's parental rights, we must conditionally affirm and remand this case so that the court may provide notice of these proceedings to any interested Indian tribe, as required by the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.

Respondent is a cognitively and emotionally impaired, seventeen-year-old single mother. The original petition filed by petitioner Family Independence Agency (FIA) sought jurisdiction over both respondent and I.E.M., alleging that the home life provided by respondent's mother Beverly was generally chaotic, that respondent feared her younger autistic sister J.M. might assault her, and that Beverly had ignored repeated caseworker warnings regarding "the risk of sexual activity to the girls in [respondent's] situation," thus resulting in respondent's pregnancy with I.E.M. The FIA alleged concern regarding I.E.M.'s welfare because of respondent's cognitive and emotional disorders and her resultant poor decision-making ability, respondent's lack of parenting skills, and an alleged risk of harm arising from J.M.'s unpredictable behavior. The FIA requested removal of both respondent and I.E.M. from Beverly's home and recommended their placement together in foster care. At the April 29, 1997, preliminary hearing, the parties agreed to a temporary out-of-home placement for respondent and I.E.M. and to adjourn the hearing.

The FIA subsequently filed a June 10, 1997, amended petition that withdrew its prior neglect petition regarding respondent. Respondent therefore returned home with Beverly in early June. On the amended petition, the FIA checked a box that indicated I.E.M. was a "[m]ember of or eligible for membership in American Indian Tribe or Band," but the petition contained no further information regarding either respondent's or I.E.M.'s potential Indian heritage. The lengthy amended petition also contained further allegations regarding the potential for harm to I.E.M. while in respondent's care. Specifically, the amended petition alleged that, despite the provision of parenting support and services to her, respondent had not enhanced her parenting skills, that the attachment and bonding between respondent and I.E.M. was decreasing, and that respondent refused to acknowledge her shortcomings as a parent and her need for constant supervision and support. The amended petition also contained a community mental health counselor's evaluation of respondent as suffering from an "[a]djustment [d]isorder with mixed disturbance of emotions and conduct" and a schizotypal personality disorder, and described psychotic behavior exhibited by respondent, including hallucinations and paranoia. At the June 11, 1997, preliminary hearing regarding the amended petition, respondent's counsel consented to an out-of-home placement for I.E.M.

After a three-day trial, a jury concluded that the probate court had jurisdiction over I.E.M.. After a subsequent two-day termination hearing, the probate court concluded that clear and convincing evidence existed that termination of respondent's parental rights was appropriate under M.C.L. § 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).

Respondent first contends that the probate court may not have properly had jurisdiction over this case and that the court's order of termination may therefore be invalid because the court failed to ascertain whether I.E.M. was eligible for membership in an Indian tribe and failed to notify the applicable tribe of the instant proceedings as required by 25 USC 1912(a). Section 1914 of the ICWA confers on "any parent ... from whose custody [any Indian child who is the subject of any action for termination of parental rights under state law] was removed" the right to "petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title." See also In re Kreft, 148 Mich.App. 682, 687-689, 384 N.W.2d 843 (1986) (concluding mother whose parental rights were terminated by Michigan court had standing pursuant to 25 USC 1914 to challenge on appeal alleged violations of ICWA, even without tribe's participation in appeal). Whether the probate court failed to satisfy a notice obligation imposed by the ICWA involves a legal question of statutory interpretation that we review de novo. Yaldo v. North Pointe Ins. Co., 457 Mich. 341, 344, 578 N.W.2d 274 (1998).

Pursuant to the ICWA, child custody proceedings involving foster care placement or termination of parental rights to an Indian child are subject to specific federal procedures and standards. In re Elliott, 218 Mich.App. 196, 201, 554 N.W.2d 32 (1996). "[T]o promote the stability and security of Indian tribes and families," Congress established within the ICWA "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 USC 1902. One of the requirements imposed by the ICWA is that an interested Indian tribe receive notice of termination proceedings involving Indian children:

In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. [25 USC 1912(a).]

See also MCR 5.980(A)(2) (requiring that a court presiding over a protective proceeding involving an Indian child notify "the child's tribe and the child's parents or Indian custodian and, if the tribe is unknown, ... the Secretary of the Interior" of the proceeding). For ICWA purposes, an "Indian child" is any unmarried individual less than eighteen years of age who is either (1) an Indian tribe member or (2) both eligible for Indian tribe membership and an Indian tribe member's biological child. 25 USC 1903(4).

The FIA argues that the tribal notice requirement was inapplicable in the instant case because it was not established before the probate court that I.E.M. was an Indian child as defined by the ICWA. At the April 29, 1997, preliminary hearing, pursuant to MCR 5.965(B)(7), the referee inquired whether respondent was an Indian tribe member or was eligible for Indian tribe membership, to which Beverly replied, "[S]he has a little [I]ndian in her, but I don't know if it's enough to qualify." Subsequently, at the June 11, 1997, preliminary hearing regarding the FIA's amended petition, respondent answered affirmatively when the referee asked whether respondent had any Indian blood. Beverly elaborated that respondent's father's family had some Indian blood, but that she did not know whether respondent qualified for membership in any Indian tribe. The referee noted for the record that respondent was potentially an Indian tribe member and ordered that the FIA further investigate respondent's eligibility for tribal membership.

The FIA claims that I.E.M. is not eligible for Indian tribe membership as the biological child of a member because respondent failed to enroll or otherwise supply some form of membership verification from any Indian tribe. However, the FIA's argument ignores that tribal membership is not defined by enrollment.

Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. [Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg 67584, 67586 (1979), ² citing United States v. Broncheau, 597 F.2d 1260, 1263 (C.A.9, 1979).]

See also People ex rel. South Dakota Dep't of Social Services, In re C.H., 510 N.W.2d 119, 123 (S.D., 1993); In re H.D., 11 Kan.App.2d 531, 535-536, 729 P.2d 1234 (1986). Because respondent's lack of enrollment in an Indian tribe is not dispositive of whether I.E.M. qualifies as an Indian child, we must consider whether the limited information provided to the probate court regarding respondent's Indian heritage sufficed to invoke the ICWA's notice requirement. ³

Although the brief testimony regarding respondent's Indian ancestry was inconclusive regarding her tribal membership status, the information was sufficient to require the FIA to provide notice regarding this proceeding. The Bureau of Indian Affairs guidelines enumerate "the most common circumstances giving rise to a reasonable belief that a child may be an Indian." 44 Fed. Reg., supra, p. 67586. The guidelines provide:

B.1. Determination That Child Is an Indian

(a) When a state court has reason to believe a child...