In re Fried

• Decision Date: 24 May 2005
• Docket Number: Docket No. 258432.
• Citation: 266 Mich. App. 535,702 N.W.2d 192
• Parties: In the Matter of Taylor Sunshine FRIED, Minor. Family Independence Agency, Petitioner-Appellee, v. Daniel Fried, Family Division Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

702 N.W.2d 192

266 Mich. App. 535

In the Matter of Taylor Sunshine FRIED, Minor.

Family Independence Agency, Petitioner-Appellee, v. Daniel Fried, Family Division Respondent-Appellant.

Docket No. 258432.

Court of Appeals of Michigan.

Submitted March 29, 2005, at Detroit.

Decided May 24, 2005, at 9:35 a.m.

Released for Publication August 3, 2005.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Stuart J. Dunnings III, Prosecuting Attorney, and Susan L. LeDuc, Appellate Division Chief, for the petitioner.

David L. Zoglio, Lansing, for the respondent.

Before: KELLY, P.J., and SAWYER and WILDER, JJ.

KELLY, P.J.

Respondent appeals as of right the trial court's order terminating his parental rights to the minor child under MCL 712A.19b(3)(c)(i). We affirm the trial court's decision not to apply the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., because the ICWA does not apply to a termination case when the minor child is claimed to be an Indian child from an Indian tribe that is not recognized as eligible for services provided to Indians by the Secretary of the Interior. We also affirm the trial court's finding of a statutory ground for termination of respondent's parental rights and its finding concerning the child's best interests.

I. Facts

This case came to the attention of the Michigan Family Independence Agency (FIA), now the Department of Human Services, in July 2003, when it received information that the child's parents were injecting heroin while holding her. The petition also alleged that the mother was advised not to leave the child with respondent, who had a history of substance abuse, yet the child had been left with him. At a pretrial and emergency removal hearing, an FIA worker reported that the mother failed to appear for a drug screen and that respondent was difficult to contact to arrange a drug screen. The trial court declined to remove the child from the mother's care at that time. At a second emergency removal hearing, it was reported that respondent tested positive for opiates and marijuana and that the mother tested positive for opiates. The trial court then removed the child from the mother and placed her in the care of the maternal grandmother.

Following an adjudication at which the mother and respondent entered pleas, the trial court took temporary jurisdiction over the minor child. The trial court ordered both parents to sign confidentiality releases for treatment programs and submit to random drug screens. The trial court also directed psychological evaluations to take place after the parents were clean of drugs.

At a dispositional review hearing, the FIA worker testified that she had received no results for respondent's drug screens and no information that he had followed through with the ordered treatment program. The court again ordered treatment, drug screens, and psychological evaluations. The court also ordered the parents to seek employment. A few weeks later, respondent was put in jail for contempt of court for failing to submit to the required drug screens. Three months later, respondent was again held in contempt for the same reason and placed in jail for twenty days.

In April 2004, at a dispositional review hearing, a foster care worker reported that respondent missed twelve drug screens and tested positive six times, though he was participating in an intensive outpatient program. The worker also reported that someone died of a heroin overdose in respondent's apartment. The worker further reported that respondent was in methadone treatment, but, at that time, he also tested positive for cocaine and marijuana. At a subsequent hearing, respondent's mother, Paula Reeves, testified that the Lost Cherokee Nation recognized her and respondent. Gene Paul Cloutier, the director of Native American Affairs for the FIA, however, testified that the Lost Cherokee Nation is not recognized by the federal government and, therefore, does not fall within the provisions of the ICWA. Reeves testified that the Lost Cherokee Nation had applied for recognition from the federal government. The trial court ruled that the ICWA did not apply to the Lost Cherokee Nation because it was not "federally recognized."

After a hearing on termination of respondent's parental rights, the trial court found clear and convincing evidence in support of the asserted ground for termination. The trial court further found that it was in the best interests of the child for respondent's parental rights to be terminated.

II. Application of the Indian Child Welfare Act

Respondent first contends that the trial court erred by failing to apply the ICWA to the termination proceedings. We disagree. Issues involving application of the ICWA present questions of law that we review de novo. In re SD, 236 Mich.App. 240, 243, 599 N.W.2d 772 (1999).

The ICWA provides:

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 Secretary¹ 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).]

If the ICWA is applicable, termination of parental rights may not be ordered "in the absence of a determination, supported by evidence beyond a reasonable doubt, including the 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 USC 1912(f).

Pursuant to the ICWA, 25 USC 1903(4), "Indian child" means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]

Further,

"Indian tribe" means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of Title 43[.] [25 USC 1903(8).][²]

The ICWA does not apply to proceedings in which the child is not an "Indian child." In re N.E.G.P., 245 Mich.App. 126, 133, 626 N.W.2d 921 (2001). While it is for the tribe to determine whether a child is an "Indian child," it is for the court to determine whether the tribe is an "Indian tribe." Id. at 133-134, 626 N.W.2d 921.

Respondent submitted documentation indicating that he has been accepted into the Lost Cherokee Nation. However, in a hearing on respondent's motion to comply with the ICWA, the director of Native American Affairs for the FIA testified that the Lost Cherokee Nation is not recognized by the federal government and, therefore, does not fall within the provisions of the ICWA. We hold that because the tribe to which respondent belongs is not a tribe recognized as eligible for services provided to Indians by the Secretary of the Interior, it is not an "Indian tribe" within the meaning of the ICWA. 25 USC 1903(8) and (11). The minor child, therefore, cannot qualify as an "Indian child" by virtue of her potential membership in that tribe. 25 USC 1903(4) and (8). Further, the Cherokee tribes that do have the required recognition have indicated that the minor child does not have ancestry in those tribes. Under these circumstances, the trial court correctly ruled that the ICWA did not apply to these proceedings.

I II. Termination of Parental Rights

Respondent also contends on appeal that the trial court erred by terminating respondent's parental rights when petitioner failed to provide adequate services directed toward reunification. We disagree.

A. Standard of Review

In order to terminate parental rights, the court must find that at least one of the statutory grounds set forth in MCL 712A.19b has been met by clear and convincing evidence. In re Terry, 240 Mich.App. 14, 21-22, 610 N.W.2d 563 (2000). Once a ground for termination is established, the court must order termination of parental rights unless the court finds that termination is clearly not in the child's best interest. In re Trejo, 462 Mich. 341, 365, 612 N.W.2d 407 (2000). This Court reviews "for clear error both the court's decision that a ground for termination has been proven by clear and convincing evidence and, where appropriate, the court's decision regarding the child's best interest." Id. at 356-357, 612 N.W.2d 407. "An appellate court should not reverse the findings of a trial court in such a case unless its findings are clearly erroneous." In re Miller, 433 Mich. 331, 337, 445 N.W.2d 161 (1989). When reviewing the trial court's findings of fact, this Court accords deference to the special opportunity of the trial court to judge the credibility of the witnesses. Id.

B. Statutory Grounds for Termination

Although respondent has not expressly challenged the sufficiency of the evidence for termination of his parental rights, his contention that reasonable services were not offered...