In re Beers

• Decision Date: 11 September 2018
• Docket Number: 341101,Nos. 341100,s. 341100
• Parties: IN RE BEERS/LeBeau-Beers, Minors.
• Court: Court of Appeal of Michigan — District of US

325 Mich.App. 653

926 N.W.2d 832

IN RE BEERS/LeBeau-Beers, Minors.

Nos. 341100

341101

Court of Appeals of Michigan.

Submitted August 8, 2018, at Lansing.

Decided September 11, 2018, at 9:00 a.m.

Douglas R. Lloyd, Prosecuting Attorney, and Brent E. Morton, Senior Assistant Prosecuting Attorney, for the Department of Health and Human Services.

Stull & Associates, Lansing (by Robert K. Ochodnicky ) for respondent-father.

Farhat & Story, PC, Lansing (by Linda L. Widener ) for respondent-mother.

Before: Murphy, P.J., and Gleicher and Letica, JJ.

Murphy, P.J.

The trial court terminated the parental rights of respondent-mother and respondent-father to the two minor children, TB and OL, under MCL 712A.19b(3)(c)(i ) (conditions of adjudication continue to exist) and (g) (failure to provide proper care or custody).¹ The proceedings were driven by respondents’ severe drug addictions, primarily involving the abuse of opiates. In these consolidated appeals, respondent-father appeals as of right the termination of his parental rights to TB in Docket No. 341100; he expressly declines to challenge the termination order as it pertains to OL. And in Docket No. 341101, respondent-mother appeals as of right the termination of her parental rights to both minor children. Respondent-mother is a member of the Cheyenne River Sioux Tribe of South Dakota (the tribe), and there is no dispute that TB and OL are Indian children for purposes of the federal Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq ., the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq ., and MCR 3.977(G). ICWA and MIFPA, along with MCR 3.977(G), set forth various procedural and substantive protections, mostly duplicative of each other, which are triggered when an Indian child is the subject of a child protective proceeding. These protections go beyond the burdens generally applicable to child protective proceedings. The trial court applied the appropriate heightened standards or burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline.

Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).

Respondent-mother contends that the trial court erred by terminating her parental rights because petitioner, the Department of Health and Human Services (DHHS), and the tribe failed to make the required "active efforts" at preventing the breakup of her family and because the evidence did not establish beyond a reasonable doubt that her continued custody of TB and OL was likely to result in serious emotional or physical damage to the children. We disagree and affirm the trial court’s ruling terminating respondent-mother’s parental rights to the children.

I. TERMINATION OF PARENTAL RIGHTS—MICHIGAN LAW

A. GENERAL PRINCIPLES

Under Michigan law, if a trial court finds that a single statutory ground for termination of parental rights has been established by clear and convincing evidence and that it has also been proved by a preponderance of the evidence that termination of parental rights is in the best interests of a child, the court is required to terminate a respondent's parental rights to that child. MCL 712A.19b(3) and (5) ; In re Beck , 488 Mich. 6, 10-11, 793 N.W.2d 562 (2010) ; In re Moss, 301 Mich. App. 76, 90, 836 N.W.2d 182 (2013) ; In re Ellis , 294 Mich. App. 30, 32-33, 817 N.W.2d 111 (2011). The two statutory grounds implicated in this case are MCL 712A.19b(3)(c)(i ) and (g), which provide for termination under the following circumstances:

(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:

(i ) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.

* * *

(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child’s age.^[2]

B. MIFPA AND THE MICHIGAN COURT RULE

In 2012, the Legislature enacted MIFPA, which was made effective January 2, 2013. See 2012 PA 565. "[T]he Legislature adopted MIFPA to establish state law standards for child welfare and adoption proceedings involving Indian children." In re Williams , 501 Mich. 289, 298, 915 N.W.2d 328 (2018). MIFPA was designed to protect the best interests of Indian children, to promote the security and stability of Indian tribes and families, and to ensure that the DHHS employs practices that are in accord with ICWA, MIFPA itself, and other applicable law, the goal of which is to prevent removal of Indian children or, if removal is necessary, to place an Indian child in an environment that reflects the unique values of the child’s tribal culture. MCL 712B.5(a) and (b) ; Williams , 501 Mich. at 298, 915 N.W.2d 328. In child custody proceedings, and in consultation with an Indian child’s tribe, these policy directives or goals must be considered when determining the best interests of the Indian child. MCL 712B.5. As part of MIFPA, MCL 712B.15 provides, in pertinent part:

(3) A party seeking a termination of parental rights to an Indian child under state law must demonstrate to the court's satisfaction that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that the active efforts were unsuccessful.

(4) No termination of parental rights may be ordered in a proceeding described in this section without a determination, supported by evidence beyond a reasonable doubt, including testimony of at least 1 qualified expert witness as described in section 17, that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.^[3][Emphasis added.]

Respondent-father is alleging a violation of MCL 712B.15(3) and (4).⁴ And MIFPA defines "parent" as "any biological parent ... of an Indian child or any person who has lawfully adopted an Indian child ...." MCL 712B.3(s) (emphasis added). But "parent" "does not include the putative father if paternity has not been acknowledged or established." Id. With respect to TB, an Indian child, there is no dispute that respondent-father is a biological parent—he signed the affidavit of parentage regarding TB. See MCL 722.1003(1) ("If a child is born out of wedlock, a man is considered to be the natural father of that child if the man joins with the mother of the child and acknowledges that child as his child by completing a form that is an acknowledgment of parentage."). As reflected in the definition of "parent," even adoptive parents of an Indian child, regardless of the parents’ heritage, enjoy the benefits of the heightened burdens that seek to protect Indian children from family disruptions.

The fact that a parent, as defined in MCL 712B.3(s), is afforded protection under MIFPA is further spelled out in MCL 712B.39, which provides

Any Indian child who is the subject of an action for foster care placement or termination of parental rights under state law, any parent or Indian custodian from whose custody an Indian child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of sections 7, 9, 11, 13, 15, 21, 23, 25, 27, and 29 of this chapter. [Emphasis added.]

As indicated earlier, respondent-father is alleging a violation of Subsections (3) and (4) of § 15 of MIFPA.

In addition to MIFPA, MCR 3.977, which is the court rule addressing the termination of parental rights, provides in Subrule (G):

In addition the required findings in this rule, the parental rights of a parent of an Indian child must not be terminated unless :

(1) the court is satisfied that active efforts as defined in MCR 3.002 have been made to provide remedial service and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, and

(2) the court finds evidence beyond a reasonable doubt, including testimony of at least one qualified expert witness as described in MCL 712B.17, that parental rights should be terminated because continued custody of the child by the parent or Indian custodian will likely result in serious emotional or physical damage to the child. [Emphasis added.]

MCR 3.002 includes, in part, the definitions taken from MCL 712B.3, thereby reiterating that a "parent" is "any biological parent ... of an Indian child...." MCR 3.002(20).

The "active efforts" referred to in MIFPA and MCR 3.977(G)(1) must be proved by clear and convincing evidence. In re England , 314 Mich. App. 245, 258-259, 887 N.W.2d 10 (2016). "Active efforts" are defined as "actions to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and to reunify the Indian child with the Indian family." MCL 712B.3(a) ; see also MCR 3.002(1). MIFPA and the court rule provide an extensive list of actions and efforts that must be undertaken by the state in order to satisfy the "active efforts" requirement. MCL 712B.3(a)(i ) to (xii ) ; MCR 3.002(1)(a) to (l ). We also note that MIFPA requirements are in addition to the mandate that p...