In re TM

• Citation: 628 N.W.2d 570,245 Mich. App. 181
• Decision Date: 18 May 2001
• Docket Number: Docket No. 220650.
• Parties: In the Matter of TM, Minor. Family Independence Agency, Petitioner-Appellee, v. Deliliah Conselyea, a/k/a Deliliah Robinson, Family Division, Respondent-Appellant, and Bradley Marr, Respondent.
• Court: Court of Appeal of Michigan — District of US

628 N.W.2d 570

245 Mich. App. 181

In the Matter of TM, Minor.

Family Independence Agency, Petitioner-Appellee, v. Deliliah Conselyea, a/k/a Deliliah Robinson, Family Division, Respondent-Appellant, and Bradley Marr, Respondent.

Docket No. 220650.

Court of Appeals of Michigan.

Submitted December 4, 2000, at Detroit.

Decided March 30, 2001, at 9:00 a.m.

Released for Publication May 18, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, and Susan A. Harris, Assistant Attorney General, for the Family Independence Agency.

Carolyn A. Blanchard, Northville, for T.M.

Lee A. Somerville, Bingham Farms, for Deliliah Conselyea.

Before BANDSTRA, C.J., and WILDER and COLLINS, JJ.

AFTER REMAND

COLLINS, J.

Respondent-appellant Deliliah Conselyea (respondent) appeals as of right from an order of the circuit court, family division, juvenile section, terminating her parental rights to T.M. Respondent contends that the order terminating her parental rights must be reversed because petitioner Family Independence Agency (FIA) did not establish by clear and convincing evidence at least one ground for termination, because termination of her parental rights is contrary to the best interests of T.M., and because petitioner and the circuit court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq. We conclude that petitioner's substantial compliance with the notice provisions of the ICWA in this case was sufficient because actual notice was demonstrated and that the circuit court did not err in terminating respondent's parental rights. Therefore, we affirm.

The amended petition filed by petitioner on August 13, 1998, alleged that police officers found T.M. and a younger sibling walking through their neighborhood at 3:00 a.m., carrying food and books. The children reportedly told the officers that they were leaving their home because their father, respondent Bradley M. (Hereafter B.M.), mistreated them and sold illegal drugs out of their home. The petition identified Sherita Kates, the woman living with B.M. at the time, as T.M.'s mother.

Neither B.M. nor Kates attended the preliminary hearing in this case, nor did either of them attend the pretrial hearing. On September 25, 1998, the day trial was scheduled, respondent appeared in court and indicated that she was the mother of T.M. The court delayed the trial because of the late notice to respondent and because a new petition was required. At that hearing, the court did not inquire of respondent whether she or T.M. were of Indian heritage.

The possibility that T.M. is an Indian child was first raised during the trial. Respondent testified that she was of Native American heritage, but was not affiliated with or a member of any tribe. She thought that she was from a Cherokee tribe, probably from Mississippi, and believed that she was more than one-quarter Native American Indian. The court concluded that the ICWA did not apply because respondent was not affiliated with or a member of any particular tribe and, therefore, the court did not order petitioner to provide notice of the proceedings to any tribes. However, at a subsequent hearing, the court instructed petitioner "to notify the Cherokee Tribe, which is the tribe that the mother stated that she believed she was affiliated with, but not a registered member."

The issue of the application of the ICWA was not brought up again until after respondent's parental rights were terminated and an appeal was filed. This Court granted petitioner's request to remand this matter to expand the record with regard to what efforts were made to notify the appropriate tribes. After the hearing on remand, the circuit court concluded that petitioner had complied with the notice provisions of the ICWA and there was no indication by any tribe that it wished to intervene.

Because failure to comply with the notice provisions of the ICWA may be grounds for invalidating state proceedings to terminate the parental rights to an Indian child, 25 U.S.C. 1914, we address respondent's last issue on appeal first. Respondent contends that because petitioner failed to send notice by registered mail, return receipt requested, to all tribes in which respondent may be able to claim membership, the order terminating her parental rights must be reversed. Whether the circuit court failed to satisfy a notice requirement of the ICWA is a question of law, which this Court reviews de novo. In re IEM, 233 Mich.App. 438, 443, 592 N.W.2d 751 (1999). Any factual findings made by the trial court are reviewed for clear error. MCR 2.613(C).

The ICWA provides specific procedures and standards that apply where states are involved in removing Indian children from their families. In re IEM, supra. Congress established these minimum federal standards "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families...." 25 U.S.C. 1902. The ICWA defines an "Indian child" as

any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.] [25 U.S.C. 1903(4).]

So that Indian tribes may exercise their right to intervene in state actions to remove Indian children from their families, the ICWA includes a notice provision, which provides in pertinent part as follows:

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 [of the Interior¹] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. [25 U.S.C. 1912(a) (emphasis added).]

See also MCR 5.980(A)(2). Once notice is provided to the appropriate tribe, it is for the tribe to decide if the minor child qualifies as an "Indian child." In re IEM, supra at 447-448, 592 N.W.2d 751; In re Shawboose, 175 Mich.App. 637, 639, 438 N.W.2d 272 (1989). If proper notice is provided and a tribe fails to either respond or intervene in the matter, the burden shifts to the parties (i.e., the parents) to show that the ICWA still applies. In re IEM, supra at 449, 592 N.W.2d 751, citing In re JT, 166 Vt. 173, 183, 693 A.2d 283 (1997).

MCR 5.965(B)(7) requires that a court directly inquire about the tribal status of the parents or the minor child at the time of the preliminary hearing. The failure to comply with MCR 5.965(B)(7) may, in some cases, invalidate the proceedings. In re Elliott, 218 Mich.App. 196, 208-209, 554 N.W.2d 32 (1996). However, this Court has found that where a respondent's parental rights have otherwise properly been terminated under Michigan law, but the petitioner and the lower court failed to comply with the notice provisions of the ICWA, reversal of the lower court's order is not always necessary. Rather, this Court may "conditionally affirm the [circuit] court's termination order, but remand so that the court and the FIA may provide proper notice to any interested tribe." In re IEM, supra at 450, 592 N.W.2d 751.

At the time of the preliminary hearing in this case, the circuit court did not know that respondent was T.M.'s mother; thus, the court could not inquire with regard to the possibility that she was of Indian ancestry. However, respondent's testimony during the trial that she was of Native American heritage and that, while not a member of a particular tribe, she believed that she was of Cherokee ancestry, was sufficient to trigger the application of the notice requirements of 25 U.S.C. 1912(a). See In re IEM, supra at 446-447, 592 N.W.2d 751. The child's or respondent's lack of enrollment in a tribe does not foreclose the possibility that the child could qualify as an Indian child. Id. at 445, 592 N.W.2d 751. Further, "[n]otice is mandatory, regardless of how late in the proceedings a child's possible Indian heritage is uncovered." In re Kahlen W, 233 Cal.App.3d 1414, 1424, 285 Cal.Rptr. 507 (1991). Accordingly, because the trial court was informed that T.M. was possibly an Indian child as defined by 25 U.S.C. 1903(4), petitioner was required to send notice to the applicable tribe or tribes, by registered mail, return receipt requested, or to the Secretary of the Interior, in the same manner, if the child's tribe could not be determined. 25 U.S.C. 1912(a); In re IEM, supra at 448, 592 N.W.2d 751. Specifically, for Michigan children, the notice must be provided to the Minneapolis Area Director, Bureau of Indian Affairs (BIA), 25 C.F.R. 23.11(b), (c)(2), when the child's tribe is unknown. In re IEM, supra at 448, n. 4, 592 N.W.2d 751. The record in this case does not establish that notice was sent to any tribe or office of the BIA by registered mail, return receipt requested. The parties failed to develop the issue of the manner of notice in the trial court, even on remand, and the trial court made no finding with regard to whether notice was made by registered mail, return receipt requested. Our review of the record indicates that notice may have been made by certified mail, with no return receipt requested.² In any event, because the record shows that all three federally recognized Cherokee tribes and the appropriate office of the Bureau of Indian Affairs received actual notice, and no tribe came forward, the court's order terminating respondent's parental rights need not be set aside for failure to comply with the notice provisions of the ICWA.

During the...