In re McCarrick/Lamoreaux, Docket Nos. 315510

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM.
• Citation: 861 N.W.2d 303,307 Mich.App. 436
• Parties: In re McCARRICK/LAMOREAUX.
• Docket Number: 317403,318475.,Docket Nos. 315510
• Decision Date: 23 October 2014

307 Mich.App. 436
861 N.W.2d 303

In re McCARRICK/LAMOREAUX.

Docket Nos. 315510
317403
318475.

Court of Appeals of Michigan.

Submitted Sept. 4, 2014, at Grand Rapids.
Decided Oct. 23, 2014, at 9:25 a.m.

861 N.W.2d 305

University of Michigan Law School Child Advocacy Law Clinic (by Joshua B. Kay and Vivek S. Sankaran) and Michigan Indian Legal Services, Traverse City, (by

861 N.W.2d 306

Cameron Ann Fraser, Elaine Margaret Barr, and James Keedy ) for M. McCarrick.

Brian A. Peppler, Prosecuting Attorney, and Elizabeth C. Chambers, Chief Assistant Prosecuting Attorney, for the Department of Human Services.

Elizabeth A. Eggert for the Sault Ste. Marie Tribe of Chippewa Indians.

Before: SHAPIRO, P.J., and WHITBECK and STEPHENS, JJ.

Opinion

PER CURIAM.

307 Mich.App. 439

This consolidated child welfare dispute involves three dockets. In Docket No. 315510, respondent-mother, M. McCarrick, appeals of right the trial court's March 13, 2013 order removing her three minor children from her home. In Docket No. 317403, McCarrick appeals of right the trial court's June 28, 2013 order removing her minor daughter from her father's care and custody. The child's father is not participating in these appeals. In Docket No. 318475, McCarrick appeals by delayed leave granted¹ the trial court's orders removing the children from her care.

Because the trial court failed to comply with the federal Indian Child Welfare Act (ICWA)² and the Michigan Indian Family Preservation Act (the Family Preservation Act),³ we conditionally reverse and remand for further proceedings.

I. FACTS

A. BACKGROUND FACTS

The children in this case are of Indian heritage and are enrolled members of the Sault Ste. Marie Tribe of Chippewa Indians. On February 26, 2012, the Department of Human Services (the Department) petitioned the trial court to remove the children from McCarrick's care. The Department contended that since 2005, McCarrick had been involved in four abuse or neglect proceedings in which she had physically abused, neglected, improperly supervised, and contributed to the

307 Mich.App. 440

delinquency of her children. The Department alleged that McCarrick and the children were abusing alcohol, marijuana, cocaine, and heroin in McCarrick's home. The Department detailed the services that it had previously provided to McCarrick.

On February 26, 2013, the trial court issued an interim ex parte order authorizing the Department to remove the children from the home pending a preliminary hearing. The trial court found that leaving the children in the home would be contrary to their welfare. It also found that the Department had made active efforts to prevent the breakup of McCarrick's family, as ICWA and the Family Preservation Act required it to do before the trial court could authorize the children's removal. On February 27, 2013, the trial court adjourned the preliminary hearing to allow the parties to secure counsel and to allow a tribal representative to appear at the removal hearing.

At the March 8, 2013 removal hearing, Jennifer Sheppard, a services specialist for the Department, testified that McCarrick provided the children with inadequate parental supervision because she allowed them to abuse drugs. According to Sheppard, the Department received a complaint that McCarrick allowed her older daughter to smoke marijuana in a car that McCarrick was driving and that the daughter tested positive for marijuana. Sheppard

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testified that McCarrick's son also smoked marijuana in the home and was on probation for marijuana use. She also stated that McCarrick's son indicated that McCarrick's older daughter was “shooting up.” The children told Sheppard that McCarrick was unaware of or ignored their substance abuse in the home.

Sheppard testified that the son disclosed that McCarrick's friend, J. Vincent, also used drugs in the home

307 Mich.App. 441

and that he had observed Vincent's toddler holding a syringe. Sheppard believed that McCarrick's younger daughter was obtaining drugs from Vincent. According to Sheppard, the Department had investigated McCarrick 10 times in the past 4 years and had substantiated neglect allegations in 2010. McCarrick tested negative for drugs and Sheppard did not believe that McCarrick was supplying the children with drugs. Gary McLeod, the older children's probation officer, testified that the children were on probation for retail fraud, illegal entry, truancy, and violating probation. McLeod testified that McCarrick cooperated with the children's probation.

B. CHILD–REARING PRACTICES WITHIN THE TRIBE

The parties stipulated that Stacey O'Neil was an expert on child-rearing practices within the tribe. O'Neil testified that she works for the Sault Tribe and she provided McCarrick with in-home care services from September to December 2011. O'Neil detailed the services that she provided to McCarrick, including: (1) behavioral health and psychological assessments, (2) random drug screens, (3) assistance with obtaining a personal protection order against her previous partner, (4) financial assistance to obtain housing, (5) services to pay for her utilities, (6) gas vouchers for work transportation, (7) ongoing services through the Department, and (8) parenting services. O'Neil opined that these services qualified as active efforts to prevent the breakup of McCarrick's family. O'Neil testified that she successfully closed McCarrick's case in December 2011 and that she had no further contact with McCarrick.

C. THE TRIAL COURT'S FINDINGS AND CONCLUSIONS

On March 8, 2013, the trial court found that probable cause existed to assume jurisdiction over the children.

307 Mich.App. 442

The trial court found that the Department proved by clear and convincing evidence that it had made active efforts to prevent the breakup of McCarrick's family, and that continued placement with McCarrick would subject the children to serious emotional or physical damage. The trial court found that O'Neil provided McCarrick with active efforts in December 2011, and that the efforts were not successful because McCarrick actively or passively permitted the children to use drugs.

The trial court found that McCarrick's continued custody of the children was likely to result in serious emotional or physical damage to the children, and that it was dangerous to the children to remain in her care. It placed the children with the Department for care and supervision.

D. THE SUPPLEMENTAL PETITIONS AND SECOND REMOVAL HEARING

On May 2, 2013, the Department filed a supplemental petition against McCarrick. According to the Department, McCarrick maintained contact with the older daughter despite the trial court's order restricting their contact to supervised visitation. According to the Department, the younger daughter told McCarrick that she was suicidal and wanted to run away from her placement, but McCarrick did not report

861 N.W.2d 308

this to anyone. The Department alleged that the younger daughter later ran away and attempted suicide. The Department also alleged that in April 2013, Children's Protective Services workers found McCarrick's home in a “deplorable” condition and McCarrick acknowledged that drug users were living in her home.

On June 7, 2013, the Department petitioned to remove the older daughter from her father's care. The

307 Mich.App. 443

Department asserted that the child's father was incarcerated for assault and was unable to care for the child. On June 26, 2013, the trial court held a hearing on whether to remove the older daughter from her father's care. O'Neil testified about the services that she provided to the father. The trial court noted that the child was removed from McCarrick's care by a previous court order, and found that its previous determinations regarding active efforts and the potential harm to the children supported continuing their removal.

E. PROCEDURAL HISTORY

As previously discussed, McCarrick filed her initial appeals in Docket Nos. 315510 and 317403 as of right. This Court dismissed both appeals, reasoning that nondispositional removal orders are not appealable in this Court as of right.⁴ McCarrick sought leave to appeal this Court's dismissals in the Michigan Supreme Court.

In Docket No. 318475, McCarrick applied in this Court for delayed leave to appeal the trial court's removal orders. On March 28, 2014, in Docket No. 318475, this Court granted McCarrick's application for leave to appeal.

On April 11, 2014, the Michigan Supreme Court vacated this Court's judgment in Docket No. 315510 and directed us to reconsider our dismissal in light of unpublished decisions from this Court:

[W]e vacate the February 18, 2014 judgment of the Court

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