In re Roe, Docket No. 283642.

• Court: Michigan Court of Appeals
• Writing for the Court: Whitbeck
• Citation: 281 Mich. App. 88,764 N.W.2d 789
• Docket Number: Docket No. 283642.
• Decision Date: 25 September 2008
• Parties: In re ROE.

764 N.W.2d 789 281 Mich. App. 88 In re ROE. Docket No. 283642. Court of Appeals of Michigan. Submitted August 6, 2008, at Lansing. Decided September 25, 2008, at 9:00 a.m.

[764 N.W.2d 791]

Brian A. Peppler, Prosecuting Attorney, and Marsha Teysen, Assistant Prosecuting Attorney, for the Department of Human Services.

[764 N.W.2d 792]

Michigan Indian Legal Services (by Cameron Ann Fraser), Traverse City, for Theresa Finfrock.

James A. Bias, for the Sault Ste. Marie Tribe of Chippewa Indians.

Before: MARKEY, P.J., and WHITBECK and GLEICHER, JJ.

WHITBECK, J.

In this case involving the termination of parental right to an Indian child, respondent Theresa Finfrock appeals as of right the trial court order terminating her parental rights to her daughter Ashtyn Jasmin Roe. The trial court terminated Finfrock's rights after finding that her rights to another child had been terminated because of physical abuse and that prior attempts to rehabilitate her had been unsuccessful.¹ As the Indian Child Welfare Act (the ICWA) requires,² the trial court further found that continued custody by Finfrock was likely to result in serious emotional or physical damage to the child.³ On appeal, Finfrock argues that the trial court erred by failing to require petitioner Department of Human Services (the Department) to prove that it made "active efforts" to provide the remedial services and rehabilitative programs that the ICWA required.⁴ Finfrock further argues that the trial court clearly erred when it found that Finfrock's continued custody was likely to result in serious emotional or physical damage to the child. We conclude that the ICWA requires the trial court to make findings regarding whether the Department made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and regarding whether those efforts proved unsuccessful. Because the trial court did not make these findings, we vacate its order terminating Finfrock's parental rights and remand the case for further proceedings consistent with this opinion.

I. BASIC FACTS AND PROCEDURAL HISTORY

Ashtyn Roe was born to Finfrock and Samuel Roe in October 2007. Ashtyn Roe was Finfrock's third child. Finfrock's first child, Daniel Finfrock, was born in April 1997. Finfrock's second child, Aliyah Bertrand, was born in August 2000.

Daniel Finfrock had several developmental handicaps and required considerable care. In January 2005, he died from intracranial trauma. Finfrock and her then-boyfriend, Steven Perrault, were Daniel Finfrock's only caregivers on the day that he sustained his injuries. Daniel Finfrock's death was later ruled a homicide.

After Daniel Finfrock's death, the Department sought the termination of Finfrock's parental rights to Aliyah Bertrand. And in July 2005, a tribal court terminated Finfrock's rights to Aliyah Bertrand after Finfrock failed to comply with her service plan.

Shortly after Ashtyn Roe's birth, the Department petitioned the Chippewa Circuit Court, Family Division, to terminate Finfrock's parental rights to this child. In the petition, the Department alleged that Daniel Finfrock died from intracranial trauma that was later ruled a homicide. It further alleged that Finfrock and Perrault told tribal police and the FBI that they were the only caregivers for Daniel Finfrock on the day he was injured. The petition noted that the criminal investigation into Daniel Finfrock's death remained

764 N.W.2d 793

unresolved. The petition also alleged that Finfrock's parental rights to Aliyah Bertrand had been terminated in July 2005 and that Finfrock had failed to comply with the service plan put in place for her at that time. Finally, the petition alleged that Samuel Roe was convicted of attempted fourth-degree criminal sexual conduct with a 14-year-old in 1996 and that he and Finfrock still resided together. On the basis of these allegations, the Department asked the trial court to terminate Finfrock's parental rights to Ashtyn Roe under MCL 712A.19b(3)(i). At a December 2007 hearing, Finfrock admitted these allegations and agreed to the trial court's jurisdiction.

The trial court held a termination trial in January 2008. At the trial, Robyn Hill, who was the foster care worker assigned to Finfrock's case in 2005, testified that the tribal court had terminated Finfrock's parental rights to her older daughter, Aliyah Bertrand. Hill also testified about her work with Finfrock. Hill noted that Finfrock had a history of choosing relationships with men that had histories of domestic violence. Hill expressed concern about Finfrock's new relationship with a man who had a criminal sexual conduct conviction.

David Babcock testified that he was a protective services worker for the Department. He stated that he was concerned about Finfrock's new relationship and by her recent conviction for furnishing alcohol to a minor. Babcock indicated that Daniel Finfrock's death was a serious concern because Finfrock may have had a direct role in his death or, at the very least, contributed to it through her relationship with a man that she knew was abusive. Babcock opined that Finfrock's newest relationship was another poor choice and reflected a continuing pattern of behavior that placed her children at risk. Babcock testified that Finfrock minimized the risks posed by her relationships. Babcock also expressed concern that, although she was able to reiterate the things that were taught to her in her parenting and substance abuse classes, Finfrock did not seem to be able to incorporate those concepts into her day-to-day living.

Lori Tomkinson, the foster worker assigned to this case, testified that Finfrock stated that she did not really know why her parental rights to her older daughter were terminated, but later admitted that she did not comply with the plan's requirement that she leave Perrault. Tomkinson stated that Finfrock also admitted that she left her handicapped son with a man who was abusive towards her.

Martha Snyder testified as an expert on Indian child law. She stated that Finfrock's conduct was definitely not within the parental norms of the tribal community. She testified that Finfrock appeared to put her own needs first and that she doubted that Finfrock could ever place her children's needs ahead of her own. Snyder opined that, if returned to her mother, Ashtyn Roe would be in danger of serious emotional, physical, and mental harm. She also indicated that she believed that the Department had met the reasonable requirements to keep the family intact, given Finfrock's knowledge of or involvement in Daniel Finfrock's death.

In addition to this testimony, there was testimony that established that Finfrock had obtained some mental health services and had successfully participated in a drug court program. Indeed, Finfrock's therapist testified that Finfrock had been discharged from therapy and that she had begun to realize that she did not need another person to make her whole. Further, Finfrock's mother testified that Finfrock had changed her lifestyle and that she was not making the same choices that she used to make. She also stated that

764 N.W.2d 794

she knew Samuel Roe and that he did not exhibit the controlling and violent behavior that Perrault did. Finally, Finfrock herself testified about the changes she had made for herself. Finfrock stated that she had worked on the issues that had plagued her in the past and that she would now live her life in a good way.

In February 2008, the trial court issued its opinion from the bench. The trial court found that the provisions of MCL 712A.19b(3)(i) had been proved beyond a reasonable doubt, stating, "There had been a case service plan. There had been a death of one child, neglect of the other, and efforts to rehabilitate the [mother] were unsuccessful, resulting in termination ... so that part of the statute has been complied with beyond a reasonable doubt." The trial court then turned to the ICWA's requirements. After summarizing the record evidence, the trial court concluded that "the evidence establishes beyond a reasonable doubt ... that the custody of this child by the respondent mother is likely to result in serious emotional or physical damage to the child." For this reason, the trial court terminated Finfrock's parental rights to Ashtyn Roe. Finfrock now appeals as of right.

II. THE ICWA

A. STANDARD OF REVIEW

Finfrock argues that the trial court erred when it terminated her parental rights to Ashtyn Roe without requiring the Department to prove beyond a reasonable doubt that it made active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of her Indian family and that these efforts proved unsuccessful.⁵ More specifically, Finfrock alleges three specific errors in this regard. First, she contends that the trial court failed to make specific findings regarding whether active efforts were made and had proven unsuccessful before it proceeded with the termination. Second, she argues that the efforts the Department provided as part of a prior termination case will not satisfy the requirements of § 1912(d) of the ICWA. Rather, she argues, the Department must provide new efforts for each case, which the Department did not do in this case. Third, she argues that the evidence the Department presented at trial was insufficient to prove beyond a reasonable doubt that the efforts the Department actually provided were unsuccessful. Each of these errors, Finfrock contends, warrants reversal of the trial court's decision to terminate her parental rights.

This Court reviews for clear error a trial court's decision terminating parental rights.⁶ "A circuit court's decision to terminate parental rights is clearly erroneous if, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made."⁷...