In re Payne/Pumphrey/Fortson

Decision Date11 June 2015
Docket NumberDocket No. 324813.
Citation311 Mich.App. 49,874 N.W.2d 205
CourtCourt of Appeal of Michigan — District of US

David E. Gilbert, Prosecuting Attorney, and Jennifer Kay Clark, Assistant Prosecuting Attorney, for petitioner.

Ronald D. Ambrose, for respondent.



This case implicates the evidentiary standards required to terminate parental rights under the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., and the Michigan court rules. Respondent-mother appeals as of right the trial court's second order terminating her parental rights to her four minor children following a remand from this Court. See In re Payne/Pumphrey/Fortson, unpublished opinion of the Court of Appeals, issued September 18, 2014 (Docket Nos. 318105 and 318163, 2014 WL 4656647 ). We affirm the trial court's order in part, reverse in part, and remand for further proceedings.


Respondent has a lengthy history with the Department of Human Services (DHS) dating back to 2009, involving allegations of physical abuse, physical neglect, improper supervision, mental instability, and substance abuse. The trial court initially terminated respondent's parental rights to her minor children, AP, DP, KP, and DF, under MCL 712A.19b(3)(c)(i ), (c)(ii ), (g), and (j) on September 5, 2013. Respondent appealed that termination order as of right, and in In re Payne/Pumphrey/Fortson, 2014 WL 4656647, at *2–3, this Court affirmed the trial court's order in part, reversed in part, and remanded for further proceedings. Subsequently, on November 6, 2014, the trial court conducted an additional termination hearing as instructed by this Court. That same day, the trial court entered an order affirming its original order terminating respondent's parental rights to each of her minor children.1


In respondent's first appeal, she argued that the lower court erred in terminating her parental rights because the court failed to apply the correct evidentiary standard under ICWA with respect to her two Indian children, DP and AP, and failed to render a finding that termination was in her children's best interests. In re Payne/Pumphrey/Fortson, 2014 WL 4656647, at *1–3. This Court concluded that DP and AP were Indian children under ICWA, but that "the trial court did not apply the heightened ‘beyond a reasonable doubt’ evidentiary standard of proof at the termination hearing as required under ICWA." Id. at 2. The Court further noted that "although a representative of DP and AP's Indian tribe testified at the termination hearing, the witness was never qualified as an expert and, importantly, the witness did not testify that respondents' ‘continued custody of’ DP and AP was ‘likely to result in serious emotional or physical damage to the’ Indian children." Id., quoting 25 USC 1912(f). Accordingly, the Court reversed the trial court's termination order regarding DP and AP and remanded for further proceedings.Id.

Regarding KP and DF, respondent's two non-Indian children, the Court determined that the trial court did not clearly err by finding that MCL 712A.19b(3)(c)(i ), (c)(ii ), (g), and (j) were proven by clear and convincing evidence. Id. at 3. However, the Court agreed that "the trial court failed to articulate a best interests finding regarding KP and DF at the termination hearing or in its subsequent termination orders." Id. Therefore, the Court remanded the case for the trial court to articulate its findings of fact and conclusions of law regarding the best interests of KP and DF on the record or in writing. Id.


On November 6, 2014, the trial court held an additional termination hearing in this matter. Caseworker Kristina Burch testified that she still believed respondent's parental rights to all four children should be terminated. Burch explained that over the course of the several years respondent's children were in protective custody, respondent did not demonstrate a benefit from the services provided to her. Burch said that given the children's ages, the length of time they had been in care, and the lack of benefit shown by respondent, returning the children to her custody would present a serious risk of harm to the children.

Christopher Hillert, a child welfare worker for the Red Cliff Band of Lake Superior Chippewa, was qualified as an expert regarding the customs, family organization, and child-rearing practices of AP and DP's Indian tribe. Hillert testified that DHS made active efforts to reunify the family, and he could not identify any additional services that could have been provided to respondent during the course of the proceedings. However, Hillert opposed terminating respondent's parental rights because it was generally against the tribe's practice to support termination. When asked whether he believed returning AP or DP to respondent's care would present a serious risk of harm to either child, Hillert stated his position in the following exchange:

Q. Alright. Let me ask you a specific question, Mr. Hillert. Do you feel, either yes or no, that the continued custody of the children by the parent and custodian would likely result in serious emotional or physical damage to either one or both of the children?
A. No, I do not.
Q. Alright. And as it relates to both of the children, sir, why do you feel that way?
A. I feel that [respondent] has completed everything that has been placed in front of her by the Department of Human Services. She continues to pursue her children, would like to visit with them more often and move towards reunification. I believe that [respondent] wants to work towards getting her children back and the Department has not allowed her an opportunity.

Following additional proofs and closing arguments, the trial court issued a ruling on the record. First, the trial court found that Hillert was properly qualified as an expert witness under ICWA. The trial court, quoting 25 USC 1912(f), acknowledged that the evidentiary standard for terminating respondent's parental rights to AP and DP required "a determination, supported by evidence beyond a reasonable doubt, including 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." Respondent argued that the standard of proof required for the Indian children was not met because the only expert witness to testify expressly opined that respondent's custody of AP and DP was unlikely to result in serious emotional or physical damage to the children. In response to respondent's argument, the trial court stated the following:

That does not, in this Court's mind, mean that if a qualified expert witness being a qualified expert under the Indian Child Welfare Act testifies that they do not think there is any serious harm, that that ends the discussion. The statute specifically says that it is evidence that includes testimony of [a] qualified expert witness and does not specify that the Court must otherwise discard any other evidence in the case in regard to whether or not there is a serious emotional or physical damage that's likely to result to the child. So, the Court takes into account all the things that are presented to it, including the testimony of Mr. Hillert, in this case, as to whether continued custody of the children ... would likely [ ] result in serious emotional or physical damage to the child.
... There is, in this Court's opinion, and still is, despite Mr. Hillert's testimony, evidence and I think it is evidence beyond a reasonable doubt, that the return of the children is likely and was likely to result in serious emotional or physical damage to the children, those two children.

The trial court also found that terminating respondent's parental rights was in KP's and DF's best interests. The court noted that the children were benefitting from their current placements, and that respondent had not demonstrated an ability to benefit from the services provided to her throughout the proceedings. Accordingly, the trial court once again terminated respondent's parental rights to all four children.


"Issues involving the application and interpretation of ICWA are questions of law that are reviewed de novo." In re Morris, 491 Mich. 81, 97, 815 N.W.2d 62 (2012). We review a trial court's factual findings underlying the application of legal issues for clear error. Id. A decision is clearly erroneous if the reviewing court is left with a definite and firm conviction that the trial court made a mistake. In re Olive/Metts, 297 Mich.App. 35, 41, 823 N.W.2d 144 (2012).


When interpreting statutes, our primary goal is to discern and give effect to the intent of the Legislature. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995). If statutory language is unambiguous, courts must honor the legislative intent clearly indicated in the language and "[n]o further construction is required or permitted." Western Mich. Univ. Bd. of Control v. Michigan, 455 Mich. 531, 538, 565 N.W.2d 828 (1997). In reviewing a statute's language, courts must "give effect to every word, phrase, and clause in a statute, and must avoid an interpretation that would render any part of the statute surplusage or nugatory." Koontz v. Ameritech Servs., Inc., 466 Mich. 304, 312, 645 N.W.2d 34 (2002). When terms are undefined in a statute, courts should assign the terms their plain and ordinary meaning, and may consult a dictionary to accomplish this task. Id.


Congress enacted ICWA in response to concerns over " ‘abusive child welfare practices that resulted in the separation of large numbers of Indian children ...

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