Kiogima, Matter of
| Decision Date | 06 May 1991 |
| Docket Number | No. 130159,130159 |
| Citation | 189 Mich.App. 6,472 N.W.2d 13 |
| Parties | In the Matter of Keith Allen KIOGIMA, Jr., Tonya Marie Kiogima and Tamara Lynn Kiogima, Minors. DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee, v. Norma Jean WALKER, Respondent-Appellant, and Keith Kiogima, Respondent. |
| Court | Court of Appeal of Michigan — District of US |
Diane M. Smith, Pros. Atty., and James R. Linderman, Asst. Pros. Atty., Petoskey, for Dept. of Social Services.
James A. Bransky, Traverse City, for Norma J. Walker.
Before GRIBBS, P.J., and SULLIVAN and GRIFFIN, JJ.
Respondent, Norma Jean Walker, appeals as of right from a probate court order denying her petition to set aside a prior order by which she voluntarily terminated her parental rights to her three minor children. On appeal, respondent contends that pursuant to the Indian Child Welfare Act, 25 U.S.C. Sec. 1901 et seq., she had an absolute right to withdraw her consent to termination of her parental rights at any time prior to a final order placing the children for adoption. We disagree and hold that respondent's right to withdraw her consent pursuant to 25 U.S.C. Sec. 1913(c) expired with the entry of a final order terminating her parental rights.
The facts of this case are undisputed. Respondent is a native American and the mother of three native American children. On October 9, 1989, respondent contacted the Emmet County Department of Social Services and stated that she wanted to release her children for adoption because, although she loved her children, she "could not be a mother." Four days later, on October 13, 1989, a hearing was held for the purpose of allowing respondent to execute a release of her parental rights. At the outset of the hearing, the probate court confirmed that respondent was represented by an attorney, had discussed the matter with her attorney, and understood the consequences of a release. Respondent then signed the release, and a final order terminating her parental rights was entered that same day.
Thereafter, on April 18, 1990, respondent petitioned the probate court to set aside the order of termination. At a hearing held on May 29, 1990, respondent argued that, pursuant to the Indian Child Welfare Act, she could revoke the release at any time prior to a final order of adoption. The probate court rejected respondent's arguments and denied the petition in an opinion and order dated June 7, 1990.
The lower court's well-reasoned opinion contains the following additional factual background:
This case involves three minor Native American children, Keith Allen Kiogima, Jr., dob: May 6, 1986, and twins Tamara Lynn Kiogima and Tonya Marie Kiogima, dob: September 9, 1987. The father of the children is Keith Kiogima and the mother is Norma Walker.
This family first came to the attention of the Emmet County Probate Court on August 10, 1988, when a petition was filed charging general neglect of the Kiogima children by their parents who were then living separately. By stipulation entered the same day, August 10, 1988, the mother and father, both of whom were independently represented by counsel, agreed to place their three children in foster care pending a preliminary hearing.
On August 18, 1988, a preliminary hearing was convened during which time all parties agreed that the supervision of the case would be turned over to the Michigan Indian Child Welfare Agency, hereinafter referred to as MICWA; that the children should be returned to the mother under conditions regarding housing, care and support; that the father's visitation would be regulated; and that the trial would be adjourned for six months.
On February 17, 1989, the parties, together with their counsel, agreed to dismiss the petition.
On October 13, 1989, a new petition was filed, charging general neglect by the father. At that point in time the mother had informally relinquished custody and supervision of the children to the father who, in the view of the petitioner, was not adequate to provide the children with suitable care. At the time of the preliminary hearing, also held on October 13, 1989, the children were again placed under the supervision of MICWA and into out-of-parent foster care.
Also, on October 13, 1989, the mother, Norma Walker, together with the assistance of her counsel, voluntarily released her parental rights to all three children to the Michigan Department of Social Services. The mother was advised that she had a right to request a rehearing within 20 days or to appeal within 21 days after an order was entered terminating her parental rights.
Following the acceptance of the release by the mother, an order terminating parental rights to each of the three children was duly entered on October 13, 1989.
Although the father has retained his rights, the children have remained in foster care. If the father releases his own parental rights, MICWA intends an adoptive placement with a paternal aunt.
The parties agree that the disposition of this case hinges on a proper construction of 25 U.S.C. Sec. 1913(c). This statute provides:
In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.
On appeal, respondent contends that this section affords her the unqualified right to revoke her consent at any time prior to a final order of adoption. Specifically, respondent argues that a plain reading of this section reveals that it does not differentiate between a situation where a parent releases her children for adoptive placement and a situation where a parent consents to adoption by a specific individual. In either case, respondent argues, she retains her right to revoke her consent until the entry of a final order of adoption.
The crux of respondent's position is that the statute must be construed in light of the legislative intent behind the Indian Child Welfare Act. According to respondent, the act was designed largely to provide uniform standards for determining the placement of Indian children and to protect the rights of Indian parents and communities in their relations with state agencies. See generally Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). In light of this intent, respondent asserts that the time for revocation must be the same regardless of the manner in which the Indian parent/child relationship was severed under state law. To hold otherwise, respondent contends, would be to allow state procedural distinctions with regard to how a child is placed for adoption to control her right to reclaim her children under federal law. After thorough consideration, we find respondent's argument to be without merit.
At the outset, we note that adoption by release and adoption by consent, although similar, are distinct procedures under Michigan law. This distinction was succinctly discussed in In re Nord, 149 Mich.App. 817, 820-821, 386 N.W.2d 694 (1986):
The Michigan Adoption Code, MCL 710.21 et seq.; MSA 27.3178(555.21) et seq., provides for two basic methods by which biological parents may agree to their child's being placed for adoption. The child may be released for adoption under Sec. 28 and related sections, or...
To continue reading
Request your trial
-
Attorney Gen. v. Powerpick Player's Club Of Mich. LLC
... ... At a hearing in January 2008, the Attorney General asserted that there was no dispute as to the facts and that the only matter to be decided was what legal conclusions could be drawn from the facts. The Attorney General asked the circuit court to construe the applicable ... In re Kiogima, 189 Mich.App. 6, 13, 472 N.W.2d 13 (1991); see also ... Apsey v. Mem. Hosp., 477 Mich. 120, 127, 730 N.W.2d 695 (2007). Indeed, courts ... ...
-
In re Elw
... ... At a hearing on April 29, 2016, the Oakland Circuit Court judge suggested that she had little discretion in this matter because, under ICWA, any parent or Indian tribe could withdraw consent to placement at any time, and upon withdrawal, the child would be returned to ... See 902 N.W.2d 906 In re Kiogima , 189 Mich. App. 6[, 472 N.W.2d 13] (1991). Similarly, under MIFPA, "a parent or Indian custodian who executes a consent" for placement for purposes ... ...
-
Adoption of Crews, Matter of
...to withdraw consent once a final decree of termination is entered even if the adoption is not yet final. See In re Kiogima, 189 Mich.App. 6, 9-13, 472 N.W.2d 13, 14-16 (1991); B.R.T. v. Executive Director, 391 N.W.2d 594, 599 (N.D.1986); In re J.R.S., 690 P.2d 10, 12-13 (Alaska 1984). The h......
-
CHEREE L. v. DEPT. OF ECONOMIC SECURITY
... ... Thus, although this matter began as a dependency proceeding and became an involuntary severance action, it was essentially converted into a conditional, voluntary severance ... of one of the basic rules of statutory construction: no language of a statute should be treated as surplusage or rendered nugatory." In re Kiogima, 189 Mich.App. 6, 472 N.W.2d 13, 16 (1991) ... Because Cheree signed a consent to adoption that provided for the adoption of her child by specified ... ...