In re England

• Decision Date: 28 January 2016
• Docket Number: Docket No. 327240.
• Citation: 887 N.W.2d 10,314 Mich.App. 245
• Parties: In re ENGLAND.
• Court: Court of Appeal of Michigan — District of US

314 Mich.App. 245

887 N.W.2d 10

In re ENGLAND.

Docket No. 327240.

Court of Appeals of Michigan.

Submitted Jan. 13, 2016, at Lansing.

Decided Jan. 28, 2016, at 9:05 a.m.

Brian L. Mackie, Prosecuting Attorney, and Mark Kneisel, Assistant Prosecuting Attorney, for the Department of Health and Human Services.

Lisa J. Peterson, PLLC, Portage (by Lisa J. Peterson), for respondent.

Before: SHAPIRO, P.J., and O'CONNEL and BORRELLO, JJ.

PER CURIAM.

The respondent father appeals as of right the trial court's order terminating his parental rights to the minor child, EM, which was entered at the initial disposition under MCL 712A.19b(3)(b)(i ) (parent caused physical injury or abuse and reasonable likelihood that child will suffer from injury or abuse in the future if returned to the parent), (j) (reasonable likelihood that child will be harmed if returned to the parent), and (k)(iii ) (parent abused the child and abuse included battering, torture, or other severe physical abuse). For the reasons set forth in this opinion, we affirm.

I. FACTS AND PROCEDURAL HISTORY

These proceedings stem from an investigation of child abuse that took place after the child, EM, then approximately two months old, was brought by his parents to the Mott Children's Hospital at the University of Michigan on Sunday, December 15, 2013, with concerns of a “ ‘popping sound’ ” on the left side of his ribs. X-rays ultimately revealed that EM had two acute fractures in the seventh and eighth ribs on the left posterior side of his body, as well as several other, potentially older, fractures in the fourth, fifth, and sixth ribs on his right and left sides. X-rays also showed that EM had a fracture in his right tibia, which was definitely older than the rib fractures and already healing. Finally, EM was observed to have a bruise on his chest. Dr. Bethany Mohr, a pediatric hospitalist and director of the child protection team at Mott Children's Hospital, opined that, given the various stages of healing, the injuries showed there were “at least 2 separate incidents” in which EM was harmed. In her opinion, the fractures were “diagnostic of abuse” and the bruise was “also highly suspicious, if not diagnostic of abuse.”

Respondent was interviewed at the hospital by Dr. Mohr. He initially indicated that he did not know how EM could have been injured, but subsequently acknowledged two previous occasions, including one on December 14, 2013, in which he had fallen while carrying EM in his car seat. Respondent clarified to Dr. Mohr, however, that the child was not injured in either of these falls because he never fell out of his car seat. Respondent was also interviewed by Child Protective Services (CPS) specialist Rita Sharma and Washtenaw County Sheriff's Detective Craig Raisanen. As in his first interview, respondent initially told Sharma and Raisanen that he did not know how EM was injured. Subsequently, however, he admitted being responsible for the child's rib and leg fractures. Specifically, as to the leg fracture, respondent indicated that he lifted EM up by both of his legs while changing his diaper on December 11, 2013, and that in doing so he had used enough force to possibly cause the injury. Regarding the rib injuries, respondent told Sharma and Raisanen about his fall on December 14, 2013, while he was carrying EM. As in his first interview, respondent clarified that EM was not injured when he fell. However, in falling, respondent injured his back. Subsequently, when he attempted to remove the child from the car seat, he felt a sharp pain in his back, causing him to squeeze EM in the torso area with both hands, possibly causing the rib injuries. Respondent acknowledged that on both occasions he recognized that EM may have been injured, but he did not seek medical attention or inform EM's mother.

Respondent was eventually charged with two counts of second-degree child abuse. He pleaded guilty to one count and was sentenced to two years' probation. At the same time, the Department of Health and Human Services (DHHS) petitioned the trial court to terminate respondent's parental rights. After a two-day combined adjudication trial and termination hearing, the trial court granted that request. Respondent now appeals as of right.

II. GOVERNING LAW

At the outset, we note that there is no dispute that EM is eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe) and is thus an Indian child, such that the various procedural and substantive provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., applied to these proceedings. See 25 U.S.C. 1903(4) ; MCL 712B.3(k). To facilitate our analysis, we provide the following brief overview of both acts.

“In 1978, Congress enacted [the] ICWA in response to growing concerns over ‘abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.’ ” In re Morris, 491 Mich. 81, 97–98, 815 N.W.2d 62 (2012), quoting Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The stated purpose of the ICWA is to protect and preserve Indian families, tribes, and tribal culture. Morris, 491 Mich. at 98, 815 N.W.2d 62.

More recently, in 2012, the Michigan Legislature enacted the MIFPA “with the purpose of protecting ‘the best interests of Indian children and promot[ing] the stability and security of Indian tribes and families.’ ” In re Spears, 309 Mich.App. 658, 669, 872 N.W.2d 852 (2015), quoting MCL 712B.5(a) (alteration in original). The ICWA and the MIFPA each establish various substantive and procedural protections for when an Indian child¹ is involved in a child protective proceeding.

Relevant to this appeal, the ICWA sets forth the following substantive provisions for child protective proceedings involving an Indian child:

(d) Remedial services and rehabilitative programs; preventive measures

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.

(e) Foster care placement orders; evidence; determination of damage to child

No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

(f) Parental rights termination orders; evidence; determination of damage to child

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. [25 U.S.C. 1912.]

Similarly, in relevant part, the MIFPA sets forth the following requirements:

(2) An Indian child may be removed from a parent or Indian custodian, placed into a foster care placement, or, for an Indian child already taken into protective custody, remain removed from a parent or Indian custodian pending further proceedings, only upon clear and convincing evidence, that includes testimony of at least 1 expert witness who has knowledge of child rearing practices of the Indian child's tribe, that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that the active efforts were unsuccessful, and that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child....

(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 ... that the continued custody of the child by the parent or Indian custodial is likely to result in serious emotional or physical damage to the child. [MCL 712B.15.]

As the plain language of these provisions makes clear, 25 U.S.C. 1912(e) and MCL 712B.15(2) pertain to removal decisions, while 25 U.S.C. 1912(d) and (f) and MCL 712B.15(3) and (4) pertain to termination decisions. Because this case did not involve the removal of EM from the parental home, but instead involved the termination of respondent's parental rights, the latter provisions govern the outcome of this appeal.

Stated succinctly, in proceedings involving termination, the ICWA and the MIFPA “require a dual burden of proof.” In re Payne/Pumphrey/Fortson, 311 Mich.App. 49, 58, 874 N.W.2d 205 (2015). “That is, in addition to finding that at least one state statutory ground for termination was proven by clear and convincing evidence, the trial court must also make findings in compliance with [the] ICWA [and the MIFPA] before terminating parental rights.” Id.

The specific findings required by the ICWA and the MIFPA in termination proceedings are: (1) proof that active efforts were made to prevent the breakup of the family, 25 U.S.C. 1912(d) ; MCL 712B.15(3) ; MCR 3.977(G)(1) ; and (2) proof beyond a reasonable doubt that the continued custody...