In re Morris
| Decision Date | 21 March 2013 |
| Docket Number | Docket No. 312248. |
| Citation | 832 N.W.2d 419,300 Mich.App. 95 |
| Parties | In re MORRIS. |
| Court | Court of Appeal of Michigan — District of US |
OPINION TEXT STARTS HERE
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, and Jonathan E. Duckworth, Assistant Attorney General, for the Department of Human Services.
Steven A. Menken for D. Morris.
Judith T. New for C.I. Morris.
Before: MURPHY, C.J., and O'CONNELL and BECKERING, JJ.
Respondent appeals by right the trial court's order terminating his parental rights to the minor child. Because the trial court correctly determined that proper notice was given as required by the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and that ICWA does not apply to this child-custody proceeding, we affirm.
This case has a rather extensive history in the appellate system. In July 2010, following a termination hearing, the trial court terminated respondent's parental rights, as well as the rights of the minor child's mother. On February 17, 2011, this Court issued an opinion per curiam affirming the trial court's order terminating parentalrights. In re Morris, unpublished opinion per curiam of the Court of Appeals, issued February 17, 2011 (Docket Nos. 299470 and 299471), 2011 WL 567212.
Acting in propria persona, respondent filed an application for leave to appeal in the Michigan Supreme Court. On April 22, 2011, the Supreme Court vacated the part of this Court's judgment that resolved respondent's appeal and remanded the case to this Court for reconsideration of respondent's appeal in light of petitioner's confession of error regarding the failure of petitioner and the trial court to comply with the notice requirements of ICWA. In re Morris, 489 Mich. 877, 796 N.W.2d 51 (2011).
On May 19, 2011, this Court readopted, but conditionally affirmed, the order terminating respondent's parental rights and remanded the case to the trial court for proper notice consistent with ICWA and for further proceedings as necessary and consistent with the opinion. In re Morris (On Remand), unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket Nos. 299470 and 299471).
On June 22, 2011, the Supreme Court, noting that it had retained jurisdiction in its April 22, 2011, order, issued an order granting respondent'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). On May 4, 2012, the Supreme Court determined that a conditional reversal was more consistent with the text of ICWA than conditional affirmance and more deferential to tribal interests. In re Morris, 491 Mich. 81, 121, 815 N.W.2d 62 (2012). Overruling In re IEM, 233 Mich.App. 438, 592 N.W.2d 751 (1999), and its progeny, the Court adopted the conditional-reversal remedy for violations of the ICWA notice requirements. Morris, 491 Mich. at 121, 815 N.W.2d 62. The Court reversed this Court's judgment, conditionally reversed the trial court's termination of respondent's parental rights, and remanded the case to the trial court for resolution of the ICWA notice matter. Id. at 122, 815 N.W.2d 62. The Court directed the trial court to ensure that the appropriate tribal entities receive notice of the proceedings in compliance with ICWA.1Id. at 123, 815 N.W.2d 62. The Court emphasized that the trial court's order terminating parental rights would be reinstated if the trial court found that ICWA does not apply because (1) the minor child is not Indian or (2) the properly noticed tribes do not respond within the allotted time. Id.
On June 4, 2012, the trial court referee held a hearing to comply with the Supreme Court's directives. Petitioner produced and admitted into evidence copies of notices it intended to send to three federally recognized Cherokee Indian tribes (United Keetoowah Band of Cherokee Indians in Oklahoma, Eastern Band of Cherokee Indians, and the Cherokee Nation) and the Department of the Interior's Bureau of Indian Affairs (BIA) Midwest Regional Office.2 Emiline Reyst, the adoption caseworkertasked with issuing the notices, advised the court that the notices contained all the genealogical information she had been able to obtain from respondent and the minor child's mother.3 The referee continued the hearing for six weeks and directed petitioner to continue to make efforts to comply with ICWA.
On July 16, 2012, the trial court reconvened for a continued hearing on the ICWA conditional reversal. Petitioner produced and admitted into evidence “a thick stack of documents” that included copies of the notices that were sent to the tribes, registered-mail return receipts and other proof of service to show that all the notices were mailed on June 4, 2012, and received by the recipients by June 8, responses received from the tribes, and other correspondence between the caseworker and the tribes.
The records submitted by petitioner reveal that the BIA responded to the notice and indicated that it would take no further action because the appropriate tribe was notified. The United Keetoowah Band of Cherokee Indians in Oklahoma also responded and indicated that it did not intend to intervene in the case because it found no evidence that the child was a descendant of its band. The Eastern Band of Cherokee Indians received the notice but did not initially respond. The Cherokee Nation responded in a June 14, 2012, letter, indicating that the information provided was “not complete” and did not meet the BIA guidelines. It requested further information in order to verify Cherokee heritage, including the middle names of the paternal relatives, birthdays of everyone involved and their relationship to the child, and the maiden names of the women listed. Reyst attempted to obtain the requested information from respondent, but respondent had no further information. 4 On June 22, 2012, Reyst sent an e-mail response to the Cherokee Nation explaining her efforts to obtain the additional information sought and indicating that she was not able to provide it, other than the fact that the minor child's paternal great-grandfather had no middle name. In her e-mail, Reyst asked the Cherokee Nation to let her know if it needed anything else; she did not receive a response.
At the July 16, 2012, hearing, the referee confirmed with respondent that respondent had no further information to provide. The referee noted that more than 10 days had passed since Reyst's last communication with the Cherokee Nation and, thus, deemed petitioner to have complied with the notice requirements of ICWA.
Respondent's attorney indicated that he had just received the Cherokee Nation's letter that day and, if given more time, could conduct an investigation to see if he could obtain the requested information. Respondent's counsel argued that more time should be given to protect the respondent's due-process rights. The referee concluded that proper notice had been given and resulted in “absolutely no indication today, after ample notice and full compliance with the ICWA notice requirements, that [the minor child] is a member or eligible for membership in any Native American tribe to which ICWA would apply.” The trial court agreed with the referee's recommendation and entered an order on August 9, 2012, reinstating its earlier order terminating respondent's parental rights.
On August 14, 2012, the trial court held a hearing at which it admitted into evidence a letter from the Eastern Band of Cherokee Indians.5 The letter states that, given the information provided, the band did not intend to intervene because it did not consider the minor child to be an “Indian child” under ICWA.
This Court reviews de novo questions of law involving the interpretation and application of ICWA. In re JL, 483 Mich. 300, 318, 770 N.W.2d 853 (2009). This Court reviews for clear error a trial court's factual findings underlying the application of legal issues. Morris, 491 Mich. at 97, 815 N.W.2d 62.
As the Supreme Court previously noted in this matter, “before a state court can determine whether ICWA applies to the proceedings, the court must first make the critical determination whether the child is an ‘Indian child.’ ” Id. at 99–100, 815 N.W.2d 62; see also MCR 3.965(B)(2). Morris, 491 Mich. at 100, 815 N.W.2d 62 (citation omitted). In this case, both respondent and the minor child's mother informed the trial court at the December 11, 2008, preliminary hearing that they had Cherokee Indian heritage, which the Supreme Court deemed sufficient to trigger the tribal-notice requirement of ICWA. Id. at 109, 815 N.W.2d 62.
The notice provision of 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 Secretary [ 6] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental...
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...671 (1990). Likewise, any factual findings underlying the trial court's decision are reviewed for clear error. In re Morris, 300 Mich.App. 95, 104, 832 N.W.2d 419 (2013). To the extent the trial court's order in this case implicates questions of statutory interpretation and constitutional l......