In re Morris

• Decision Date: 04 May 2012
• Docket Number: Calendar No. 2.,143673.,Docket Nos. 142759
• Citation: 491 Mich. 81,815 N.W.2d 62
• Parties: In re MORRIS. In re Gordon.
• Court: Michigan Supreme Court

491 Mich. 81
815 N.W.2d 62

In re MORRIS.
In re Gordon.

Docket Nos. 142759, 143673.
Calendar No. 2.

Supreme Court of Michigan.

Argued Jan. 11, 2012.
Decided May 4, 2012.

[815 N.W.2d 64]

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, B. Eric Restuccia, Deputy Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Jonathan E. Duckworth, Assistant Attorney General, for the Department of Human Services in Morris.

Vivek S. Sankaran for D. Morris in Morris.

Juvenile Law Group (by Arthur Bowman Jr., Detroit) on behalf of C.I. Morris as guardian ad litem in Morris.

Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief of the Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the Department of Human Services in Gordon.

Karen Gullberg Cook, Beverly Hills for C. Hinkle in Gordon.

Matthew L.M. Fletcher, Kathryn E. Fort, Michigan Indian Legal Services, Inc., Traverse City (by Cameron A. Fraser and James A. Keedy), and Melissa Pope for the American Indian Law Section of the State Bar of Michigan in Morris.

Allie Greenleaf Maldonado for the Little Traverse Bay Bands of Odawa Indians in Morris.

Michigan Indian Legal Services, Inc., Traverse City (by Cameron A. Fraser, James A. Keedy, and Erin P. McCormick), and Melissa Pope for the American Indian Law Section of the State Bar of Michigan and Michigan Indian Legal Services, Inc., in Gordon.

CAVANAGH, J.

[491 Mich. 88]These combined cases require us to examine the Indian Child Welfare Act (ICWA), 25 U.S.C.A. §§ 1901 through 1963. In particular, we must decide several issues relating to ICWA's notice provision, 25 U.S.C.A. § 1912(a), which mandates that notice of certain involuntary child custody proceedings be sent to the appropriate Indian tribe or to the Secretary of the Interior “where the court knows or has reason to know that an Indian child is involved....” Because the question whether notice violations occurred in the instant cases begins with determining whether the tribal-notice requirement of 25 U.S.C.A. § 1912(a) was triggered, we must first consider the indicia of Indian heritage that will suffice to trigger the notice requirement. We must also consider whether a parent can waive the rights granted by ICWA to an Indian child's tribe and determine the appropriate recordkeeping requirements necessary to document the trial court's efforts to comply with ICWA's notice provision. Finally, we must determine the proper appellate remedy for violations of ICWA's notice provision.

While it is impossible to articulate a precise rule that will encompass every possible

[815 N.W.2d 65]

factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 U.S.C.A. § 1912(a) must be a cautionary one. Therefore, we hold first that sufficiently reliable information of [491 Mich. 89]virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 U.S.C.A. § 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.¹ Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.

In both the instant cases there existed sufficient indicia of Indian heritage to trigger the notice requirement of 25 U.S.C.A. § 1912(a), yet neither trial court determined whether tribal notice had been properly made. Thus, in neither case did the trial courts determine whether—in addition to state law—the substantive and procedural protections of ICWA applied to the child custody proceedings.

Therefore, in In re Morris we reverse the judgment of the Court of Appeals with regard to the use of the conditional-affirmance remedy, conditionally reverse the trial court's termination of parental rights, and remand to the trial court for resolution of the ICWA-notice issue. In In re Gordon we reverse the judgment of the Court of Appeals, conditionally reverse the trial court's termination of parental rights, and remand to the trial court for resolution of the ICWA-notice issue.

[491 Mich. 90]I. FACTS AND PROCEDURAL HISTORY

In both cases, parental rights were terminated pursuant to Michigan law, even though the trial courts never conclusively determined whether ICWA applied to the proceedings.²

A. In re MORRIS

C.I. Morris is the daughter of N. Brumley and D. Morris. The Department of Human Services (DHS) became involved in December 2008 when the newborn child tested positive for cocaine. Brumley admitted using cocaine and engaging in prostitution while pregnant. D. Morris admitted that he knew about Brumley's cocaine use and prostitution. The DHS filed a temporary-custody petition for jurisdiction over the infant and to remove her from her mother's custody.

[815 N.W.2d 66]

At the December 11, 2008 preliminary hearing, both parents indicated that they had Indian heritage. The father stated that his great-grandmother was Indian and that he believed she was a member of the Cherokee tribe. The mother stated that her heritage also included Cherokee Indian. Without further addressing the child's Indian heritage, the trial court ordered the child placed into foster care. The order entered after the preliminary hearing included a checked box for the following statement: “The child is a member of or eligible for membership in an American Indian tribe or [491 Mich. 91]band named CHEROKEE (complete and mail form JC48).” Immediately following that statement, the order provided, “The findings required by MCR 3.980 have been made on the record.” ³ It appears, however, that tribal notice was never made.

At the April 7, 2009 adjudication trial, the referee found that one or more of the allegations in the petition were substantiated and that it was proper to exercise jurisdiction over the child. The referee further ordered both parents to comply with parent-agency agreements (PAA), with the goal being reunification. Approximately one year later, the trial court ordered the DHS to file a supplemental petition seeking termination of both parents' parental rights because they had failed to substantially comply with their PAAs and had failed to benefit from the services that were offered. On July 21, 2010, the referee found that the child could not safely be returned to the parents within the foreseeable future and the court terminated both parents' parental rights, finding that the cited statutory grounds were demonstrated by clear and convincing evidence and that termination was in the child's best interests. ⁴

Brumley and D. Morris appealed, but did not raise the Indian-heritage issue in the Court of Appeals. Instead, the DHS raised sua sponte the insufficiency of notice to the Indian tribe under ICWA. In its response to the parents' consolidated appeals, the Attorney General admitted that the record did not disclose whether ICWA notification had been completed. Rather than reverse the trial court, the [491 Mich. 92]Attorney General urged the Court of Appeals to conditionally affirm the termination but remand so that proper notice could be provided to any interested tribe. The Court of Appeals affirmed the termination, however, without addressing the ICWA-notice issue or petitioner's admission of error. See In re Morris, unpublished opinion per curiam of the Court of Appeals, issued February 17, 2011 (Docket Nos. 299470 and 299471), 2011 WL 567212.

D. Morris alone applied for leave to appeal in this Court. In lieu of granting leave to appeal, we vacated that portion of the Court of Appeals judgment resolving the father's appeal and remanded to the Court of Appeals for resolution of the ICWA-notice issue. In doing so, we expressly retained jurisdiction. In re Morris, 489 Mich. 877, 796 N.W.2d 51 (2011). On remand, the Court of Appeals readopted its February 17, 2011 opinion with regard to termination of D. Morris's parental rights, conditionally affirmed the termination of parental rights with regard to both parents, and remanded to the trial court for resolution of the ICWA-notice

[815 N.W.2d 67]

issue. In re Morris, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket Nos. 299470 and 299471). We granted D. Morris's application for leave to appeal, “limited to the issue whether the Court of Appeals ‘conditional affirmance’ remedy is an appropriate method of resolving an ICWA violation.” In re Morris, 489 Mich. 957, 798 N.W.2d 510 (2011). We now reverse, but only with regard to the use of the conditional-affirmance remedy.

B. In re GORDON

C. Hinkle gave birth to J.L. Gordon in May 2007.⁵ When JL was just a few months old, Shiawassee County Child Protective Services (CPS) received a referral for neglect and improper supervision. Hinkle and JL were [491 Mich. 93]living in a condemned house with no electricity or running water, and Hinkle admitted being in an abusive relationship with a gang member and her own involvement with the gang. Hinkle also admitted that she fed the baby adult table food, that she did not regularly bathe him or change his diapers, and that she sometimes shook him and threw him to other persons. Shiawassee County CPS referred Hinkle for services, but she failed to participate and eventually went missing with JL.

In November 2007, while Hinkle was in jail on an unrelated conviction, she placed JL in a guardianship with Hinkle's maternal aunt, a Saginaw Chippewa tribal member. But when Hinkle...