In re Jl, Docket No. 137653.

CourtSupreme Court of Michigan
Citation483 Mich. 300,770 N.W.2d 853
Docket NumberDocket No. 137653.,Calendar No. 11.
PartiesIn re JL, Minor. Department of Human Services, Petitioner-Appellee, v. Cheryl Lynn Lee, Respondent-Appellant, and Sault Ste. Marie Tribe of Chippewa Indians, Intervening Respondent-Appellee.
Decision Date14 July 2009
770 N.W.2d 853
483 Mich. 300
In re JL, Minor.
Department of Human Services, Petitioner-Appellee,
Cheryl Lynn Lee, Respondent-Appellant, and
Sault Ste. Marie Tribe of Chippewa Indians, Intervening Respondent-Appellee.
Docket No. 137653.
Calendar No. 11.
Supreme Court of Michigan.
Argued March 4, 2009.
Decided July 14, 2009.

[770 N.W.2d 855]

Kayla Lee Pelter-Nixon, for the Department of Human Services.

Nancy B. Lucas-Dean, Mackinaw City, for Cheryl L. Lee.

[770 N.W.2d 856]

Eric G. Blubaugh for the Sault Ste. Marie Tribe of Chippewa Indians.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, and H. Daniel Beaton, Jr. and Larry W. Lewis, Assistant Attorneys General, amici curiae for the Attorney General.

Speaker Law Firm, PLLC (by Jodi M. Latuszek and Liisa R. Speaker), amici curiae for the Children's Law Section of the State Bar of Michigan.

Matthew L.M. Fletcher, Kathryn E. Fort, Cameron A. Fraser, James A. Keedy, Traverse City, Thomas R. Myers, and William J. Brooks PLLC (by William J. Brooks), amici curiae for the American Indian Law Section of the State Bar of Michigan.



483 Mich. 304

Respondent Cheryl Lee challenges the judgment of the Court of Appeals affirming the termination of her parental rights to her son, JL. In re Lee, unpublished opinion per curiam of the Court of Appeals, issued October 16, 2008, 2008 WL 4603740 (Docket No. 283038). Respondent specifically claims error in the interpretation and application of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq. She urges us to adopt the interpretation of the ICWA offered by the dissenting Court of Appeals judge. We affirm the judgment of the

483 Mich. 305

Court of Appeals because petitioner the Department of Human Services (DHS), provided timely, affirmative efforts that satisfied the ICWA's "active efforts" requirement, 25 U.S.C. 1912(d). We hold that the ICWA requires the DHS to undertake a thorough, contemporaneous assessment of the services provided to the parent in the past and the parent's response to those services before seeking to terminate parental rights without having offered additional services. The ICWA does not, however, categorically require the DHS to provide services each time a new termination proceeding is commenced against a parent. We further reject respondent's claim that the lower courts applied a conclusive presumption of unfitness based on her past conduct in determining that respondent's continued custody was "likely to result in serious emotional or physical damage to the child." 25 U.S.C. 1912(f). Finally, we conclude that this determination was supported by evidence beyond a reasonable doubt, as required by 25 U.S.C. 1912(f).


Respondent and her son, JL, are both members of the Sault Ste. Marie Tribe of Chippewa Indians. Between 1999 and 2006, respondent gave birth to four children: JL, SD, JD, and BP. JL is the oldest child. Respondent's parental rights to SD, JD, and BP were terminated in earlier proceedings that are not at issue here.

JL was born in 1999, when respondent was 16 years old and living in foster care. DHS Child Protective Services (CPS) worker Regina Frazier began working with respondent in 1998, even before respondent had children. Respondent was then both a delinquent and a victim of abuse and neglect. Respondent displayed abusive and neglectful behavior after JL's birth, so he

483 Mich. 306

was removed from respondent's care in September 2000. Frazier provided wraparound services1 until respondent moved to Sault Ste. Marie. The Sault Ste. Marie Tribe of Chippewa Indians Tribal Court assumed jurisdiction over the case in March 2002. The tribal court

770 N.W.2d 857

released JL from its jurisdiction in August 2002, when he was placed in a limited guardianship with his paternal grandmother, Lois Plank. Meanwhile, respondent gave birth to a daughter, SD, on November 24, 2001.

Anishinabek Community Family Services caseworker Penny Clark began working with respondent in 2002, when she was 18 years old and living on a reservation. Clark, who was respondent's wraparound coordinator, and several others attempted to help respondent care for SD, who was then a few months old. Clark also worked with respondent on budgeting and helped her obtain social security benefits. Although Clark enjoyed working with respondent, Clark testified that respondent could be moody and impulsive and that her impulsiveness led to trouble. Under the Family Continuity Program, Clark visited respondent in her home at least once a week. Respondent's home was often messy and unsafe; glass and cigarette butts were left within SD's reach. Clark also had concerns about respondent's ability to care for herself. At times, respondent was depressed; she failed to eat and take prenatal vitamins.

JL was returned to respondent's care in September 2003. Her third child, JD, was born on January 11, 2004, while Clark was still working with respondent. When Jill Thompson, a caseworker with the Binogii Placement Agency, began working with respondent in July 2004, three children—JL, SD, and JD—lived with

483 Mich. 307

respondent and Justin DuFresne, the father of SD and JD. Respondent and DuFresne failed to supervise the children; instead, JL, then five years old, was supervising his younger siblings. SD wandered into the road multiple times. Caseworkers Thompson and Clark tried to remedy this problem. Clark even installed latches on the front door so that the children could not run out. The condition of the home "ran the gamut from poor housekeeping to filthy." Like Clark, Thompson described cigarette butts on the floor and the presence of choking hazards to young children.

Respondent could not manage her finances and never sought employment. A "payee" managed respondent's finances by paying her bills with the money from respondent's social security disability payments and then giving respondent a $50 weekly allowance. Respondent purchased rent-to-own furniture that cost $30 or $35 a week. She could not afford diapers and other necessary items.

Despite the extensive efforts of Thompson and Clark, the children were removed from respondent's home in 2004. At that time, JL again became a ward of the tribal court and was again placed with his grandmother, Lois Plank. In November 2004, the trial court awarded JL's father, Tony Plank, full physical custody of JL and awarded respondent and Tony Plank shared legal custody. The court also granted respondent unsupervised visitation rights. After SD and JD were returned to respondent's care, Thompson and Clark provided services in an effort to keep them in her home, but they were observed in the street at night and were again removed in August 2005.

When Clark closed respondent's case in 2005, she had provided all the services she could offer "without staying there 24/7." She opined that respondent had not

483 Mich. 308

made significant improvement. Clark participated in the termination trial involving SD and JD that was initiated because respondent had failed to supervise them. The tribal court terminated respondent's parental rights to SD and JD on June 30,

770 N.W.2d 858

2006.2 Respondent gave birth to another child, BP, on July 20, 2006.3 BP was removed from respondent's care shortly after her birth. Melissa VanLuven, who was the child placement services supervisor for the Sault Ste. Marie tribe and the caseworker supervisor of Thompson and Clark, participated in the decision to petition for termination of respondent's parental rights to BP. That decision was based on an assessment of the tribe and the caseworkers that, despite the provision of services, respondent's children could not safely live in her home. The tribal court terminated respondent's parental rights to BP on January 8, 2007.

In spring 2007, the trial court granted respondent's motion for parenting time, allowing her weekly unsupervised visitation with JL. In July 2007, however, the DHS petitioned to terminate respondent's parental rights to JL on the basis of respondent's "children's protective service history" beginning on September 12,

483 Mich. 309

2000, specifically citing the termination of her parental rights to SD, JD, and BP.4 The DHS filed a supplemental petition on August 20, 2007, alleging that proceedings to terminate Michael Plank's parental rights to BP were pending. The supplemental petition also alleged that Michael Plank had a history of physically abusing and neglecting two other children. In addition, the petition provided:

8. Cultuarlly [sic] appropriate services were provided to [respondent] for over six years, including Prevention, CPS, and Wraparound Services through Mackinac County; Protective Services, foster case services, and prevention through the [Sault Ste. Marie] Tribe, CPS services through Chippewa County DHS and CPS services through the Children's Aid in Canada. [Respondent] has also participated in the Families First Program three times, Wraparound and Family Continuity through the [Sault Ste. Marie] Tribe, Parenting Classes twice with [Sault Ste. Marie] Tribe, once through [the Strong Families/Safe Children Program], and once through the Indian Outreach Program. Although these services were offered and somewhat complied with at times, [respondent] continued to abuse and neglect her children, which led to her rights being terminated.

770 N.W.2d 859
483 Mich. 310

9. According to [respondent], she receives Social Security Disability due to having fetal alcohol syndrome. According to the National Organization of Fetal Alcohol Syndrome, the majority of persons with FAS have life-long difficulties with learning, attention, memory, and problem solving.

The supplemental petition also cited the criminal histories of respondent and Michael Plank, including respondent's 2005 and 2006 misdemeanor convictions for operating a motor vehicle while impaired and an aggravated assault conviction stemming...

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