D in Re peters/brinton/mathews Minors ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re PETERS/BRINTON/MATHEWS, Minors. May 2, 2024
No. 367069
Berrien Circuit Court
Family Division
LC No. 2023-000019-NA
In re N. BRINTON, Minor.
No. 367070
Berrien Circuit Court
Family Division
LC No. 2023-000019-NA
Before: RIORDAN, P.J., and O’BRIEN and MALDONADO, JJ.
MALDONADO, J. (dissenting).
In this case, DHHS and the trial court flouted all Michigan and Federal safeguards for the
preservation of Indian families. Because of this startling disregard for tribal rights, I dissent.
A critical fact omitted from the majority opinion is that both respondent-parents claimed
tribal heritage early in the proceedings, and a representative of the Chickasaw Nation Tribe
testified at the preliminary hearing that KP was eligible for tribal membership.1 This fact triggered
a slew of procedural and substantive safeguards created to remedy the systemic removal of Indian
children from their families and from their tribes. Because these safeguards were ignored
conditional reversal is necessary.
1
Respondent-mother also mentioned possible heritage with the Choctaw and Cherokee tribes.
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I. INDIAN CHILD WELFARE ACT
The Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., is a federal law enacted in
1978 “in response to growing concerns over abusive child welfare practices that resulted in the
separation of large numbers of Indian children from their families and tribes through adoption or
foster care placement, usually in non-Indian homes.” In re Morris, 491 Mich 81, 97; 815 NW2 62
(2012) (quotation marks and citation omitted). Last summer, the United States Supreme Court
upheld ICWA against a Constitutional attack by the United States Supreme Court. See Haaland
v Brackeen, 599 US 255; 143 S Ct 1609; 216 L Ed2d 254 (2023). As Justice Barrett, writing for
the majority in Haaland, noted, ICWA “aims to keep Indian children connected to Indian
families.” Id. at 265. Thus, “[w]hen a state court adjudicates the [child welfare] proceeding,
ICWA governs from start to finish. Id. at 266. To that end, ICWA imposes an affirmative duty
for states to uphold tribal family integrity and stability by keeping Indian children connected to
their community and culture. This duty is fulfilled through active efforts and through tribal early
and often, and it requires states that intervene in the lives of tribal families to do more than simply
demand that struggling families complete case service plans.
The party attempting to terminate parental rights or remove an Indian child from an
unsafe environment must first “satisfy the court that active efforts have been made
to provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have proved unsuccessful.”
Even then, the court cannot order a foster care placement unless it finds “by clear
and convincing evidence, 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.” To terminate parental
rights, the court must make the same finding “beyond a reasonable doubt.” [Id. at
266, quoting 25 USC 1912.]
ICWA also lays out a hierarchy of placement preferences that must be adhered to absent “good
cause” for departure. Id. at 267-268, discussing 25 USC 1915.
The fact that this issue was raised neither in the trial court nor on appeal does not bar us
from deciding it now. Section 1914 of ICWA provides:
Any Indian child who is the subject of any action for foster care placement
or termination of parental rights under State law, any parent or Indian custodian
from whose custody such child was removed, and the Indian child’s tribe may
petition any court of competent jurisdiction to invalidate such action upon a
showing that such action violated any provision of sections 1911, 1912, and 1913
of this title.
Because Section 1914 provides that proceedings in violation of sections 1911, 1912, or 1913 may
be collaterally attacked by the child’s parent, Indian custodian, or tribe, ICWA does not require
preservation of the issue in the lower court to bring such an attack. This interpretation of Section
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1914 has already been adopted by several other jurisdictions.2 See, e.g., In re JJC, 302 SW3d 896,
899 (Tex App 2009) (holding that “the failure to follow the ICWA may be raised for the first time
on appeal”); GL v Dep’t of Children & Families, 80 So3d 1065, 1067 (Fla 2012) (concluding that
“[t]he notice requirements enumerated in the ICWA are mandatory and preempt state law, and the
failure to follow the ICWA may be raised for the first time on appeal”); Dep’t of Human Servs v
JG, 260 Or App 500, 502; 317 P3d 936 (2014) (concluding that ICWA arguments are “reviewable
despite not being preserved”).
This approach was also taken in an unpublished opinion3 of this Court. See In re Janes
Minors, unpublished per curiam opinion of the Court of Appeals, issued October 14, 2003 (Docket
No. 247456), p 5 (“Because notice provisions under the ICWA are mandatory, issues regarding
compliance may be raised for the first time on appeal.”). In Janes, the application of ICWA was
subject to de novo review. Id. at 5. However, other unpublished opinions have deemed the issue
unpreserved and reviewed for plain error. See, e.g., In re K Jennings Minor, unpublished per
curiam opinion of the Court of Appeals, issued December 15, 2015 (Docket No. 327966), p 5.
However, I know of no cases that have analyzed the relationship between ICWA and Michigan’s
preservation requirements; instead, these unpublished opinions have simply made conclusory
statements that the issue is reviewed for plain error. I agree with the conclusions in the cases cited
above that Section 1914’s authorization of post judgment attacks preempts state preservation
requirements. Therefore, as in Janes, I would review de novo.
Another wrinkle in this case is that, in addition to being unpreserved, this issue has not
been raised on appeal; nevertheless, I believe it is this Court’s duty to remedy blatant ICWA
violations sua sponte when such violations are identified. The rights protected by ICWA belong
not only to the parents but also to the children and the tribes. As a California appellate panel
explained, “because ICWA is intended to protect the interests of tribes, not of parents, a parent’s
failure to raise ICWA error in the juvenile court should not forfeit the error on appeal.” In re
Eqequiel G, 81 Cal App5th 984, 1000; 297 Cal Rptr3d 685 (2022). This logic applies with equal
force to appellate proceedings. The idea that this Court must ignore blatant ICWA violations
because a parent, who “is in effect acting as a surrogate for the tribe,”4 failed to raise them is
antithetical to the purpose of ICWA.
II. INDIAN FAMILY PRESERVATION ACT
This case also invokes Michigan’s Indian Family Preservation Act (MIFPA), MCL 712B.1
et seq. “In 2012, the Legislature adopted MIFPA to establish state law standards for child welfare
and adoption proceedings involving Indian children.” In re Williams, 501 Mich 289, 298; 815
NW2d 328 (2018). “MIFPA was designed to protect the best interests of Indian children, to
promote the security and stability of Indian tribes and families, and to ensure that the DHHS
2
Cases from other jurisdiction are not binding but may be persuasive. Farmland Capital Solutions,
LLC v Mich Valley Irrigation Co, 335 Mich App 370, 381 n 8; 966 NW2d 709 (2021).
3
Unpublished opinions are not binding but may be persuasive. Cox v Hartman, 322 Mich App
292, 307; 911 NW2d 219 (2017).
4
Ezequiel, 81 Cal App5th at 1000 (quotation marks and citation omitted).
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employs practices that are in accord with ICWA, MIFPA itself, and other applicable law . . . .” In
re Beers, 325 Mich App 653, 660-661; 926 NW2d 832 (2018). The goal of these laws “is to
prevent removal of Indian children or, if removal is necessary, to place an Indian child in an
environment that reflects the unique values of the child’s tribal culture.” Id. at 661, discussing
MCL 712B.5. While there is substantial overlap between MIFPA and ICWA, some of MIFPA’s
“standards provide greater protections for Indian families than those provided by ICWA.”
Williams, 501 Mich at 298. For example, with MIFPA, not only are the same provisions as ICWA
subject to collateral attack, Section 39 provides that state action may be invalidated “upon a
showing that the action violated any provision of sections 7, 9, 11, 13, 15, 21, 23, 25, 27, and 29
of this chapter.” MCL 712B.39.
Similar to ICWA, MIFPA requires that once a court has reason to believe the child has
tribal heritage, the court must notify “the Indian child’s tribe, by registered mail with return receipt
requested, of the pending child custody proceeding and of the right to intervene.” MCL 712B.9(1).
“[T]he burden on the trial court and [DHHS] of complying with the notice requirement is minimal
when compared to the potential costs of erroneously failing to send notice.” Morris, 491 Mich at
106.5 MCL 712B.15(2) provides that an Indian child cannot be removed from a parent and placed
in foster care unless the following three facts are proved by clear and convincing evidence: (1)
“that active efforts have been made to provide remedial services and rehabilitative programs
designed to prevent the breakup of the Indian family,” (2) “that the active efforts were
unsuccessful,” and (3) “that the continued custody of the Indian child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the Indian child.”6 These
findings must be supported by “the testimony of at least 1 qualified expert witness, who has
knowledge of the child rearing practices of the Indian child’s tribe, that the continued custody of
the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical
damage to the Indian child.” MCL 712B.15(2).7 Finally, similar to ICWA, MIFPA provides a
hierarchical list of placement preferences for Indian children. MCL 712B.23
With MIFPA, there exist the same preservation and standard of review hurdles as there are
with ICWA. For similar reasons, I believe MIFPA issues can be raised for the first time on appeal,
that this Court can and should raise the issues sua sponte, and that the proper standard of review is
de novo. Section 39 of MIFPA is analogous to Section 1914 of ICWA, and it authorizes a collateral
attack by sets of interested parties against state actions that do not comply with MIFPA.
Authorizing petitions to invalidate a completed state action after is inconsistent with conditioning
such invalidation on having raised the issue in advance. This suggests that the Legislature intended
that MIFPA violations, like ICWA violations, may be raised for the first time on appeal. When
such issues are raised for the first time on appeal, they should be reviewed de novo. See In re
Detmer/Beeaudry, 321 Mich App 49, 59; 910 NW2d 318 (2017). More generally, it makes sense
5
The discussion in Morris of ICWA notice requirements applies with equal force to MIFPA notice
requirements; MIFPA did not take effect until after Morris was decided.
6
MCL 712B.3 provides a detailed definition of “active efforts.”
7
MCL 712B.17 details the minimum requirements for a qualified expert witness.
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that the issue can first be raised on appeal because tribes are often not parties to the case as a direct
result of the state’s failure to comply with notice requirements. It would not make sense to allow
courts to escape being held to the notice requirements by failing to comply with them. Moreover,
the same justifications for sua sponte raising ICWA violations apply with respect to MIFPA.
MIFPA protects the rights of tribes, see Beers, 325 Mich App at 660-661, so it would be contrary
to the intended breadth of MIFPA to make tribes entirely dependent upon parents to vindicate the
tribes’ rights. Indeed, a relatively recent panel of this Court, citing MCR 7.216(A)(7),8 addressed
violations of ICWA and MIFPA that were not raised by any parties on appeal. See In re Banks
Minors, unpublished per curiam opinion of the Court of Appeals, issued February 18, 2021
(Docket Nos. 354060 and 354062), p 10.
III. APPLICATION
Despite the Court in this case making some effort to comply with the law, numerous
provisions of MIFPA and ICWA were egregiously violated. Therefore, conditional reversal is
warranted.
A. NOTICE
The evidence suggests that the court failed to properly notify the Cherokee and Choctaw
tribes of the proceedings and their right to intervene. As discussed, both ICWA and MIFPA require
that the pertinent tribes be notified, by registered mail, of child protective proceedings involving
Indian children and their right to intervene. 25 USC 1912; MCL 712B.9(1). At the preliminary
hearing, respondent-mother identified the Chickasaw, Choctaw, and Cherokee tribes as sources of
Indian heritage for KP. Subsequently, the Pokagon tribe was identified with respect to NB and
EM.9 It is clear that the Chickasaw Nation received some notice because they intervened in the
proceeding, but nothing in the record suggests that the Choctaw, Cherokee, and Pokagon tribes
were properly notified. Moreover, at the preliminary hearing, the court suggested, and the
prosecutor agreed, that the prosecutor would “need time to call the Tribe.” However, notice must
be achieved by certified mail, and several tribes10 needed to be notified.11 As discussed below,
failure to comply with notice requirements requires conditional reversal.
8
“The Court of Appeals may, at any time, in addition to its general powers, in its discretion, and
on the terms it deems just . . . enter any judgment or order or grant further or different relief as the
case may require . . . .” MCR 7.216(A)(7).
9
The March 28, 2023, parent agency treatment plan identified the Choctaw, Cherokee, and
Chickasaw tribes with respect to KP; the Cherokee, Chickasaw, Choctaw, and Pokagon tribes with
respect to NB; and the Choctaw, Pokagon, and Cherokee tribes with respect to EM.
10
Indeed, there are three Cherokee Nations, and there are Mississippi and Oklahoma Choctaw
tribes; each of them should have been notified.
11
More generally, everyone present for the preliminary hearing was confused regarding how to
proceed after this issue was raised, and the court noted several times that this issue is a rarity. I
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B. ACTIVE EFFORTS
DHHS and the court failed to comply with the requirement that active efforts be made to
prevent the breakup of an Indian family.
ICWA and MIFPA both require that active efforts be made by the state—not the tribe—to
prevent removal of an Indian child and that a finding of active efforts be supported by the testimony
of a qualified expert witness. However, the court repeatedly used the reasonable efforts standard
for ordinary cases. At the continued preliminary hearing, despite having noted earlier that a finding
of active efforts was necessary, the court described the “reasonable efforts” made to prevent
removal as “Department of Health and Human Services Child Protective Services investigation,
police investigation, attempted interview of the children, and safety planning.” These efforts fall
far short of what is required by MIFPA. For example, there’s no evidence that DHHS “conducted
a diligent search for extended family members for placement.” MCL 712B.3(a)(iii). Then, when
the court authorized the petition, it ordered that “[r]easonable efforts shall be make to preserve or
reunify the family” rather than active efforts. At the adjudication trial, the court again made
findings regarding reasonable efforts instead of active efforts. At the initial disposition, the court
once again ordered that reasonable efforts be made to preserve or reunify the family. Simply put,
ICWA and MIFPA were ignored.
Additionally, a finding of active efforts must be supported by the testimony of a qualified
expert witness. At the preliminary hearing, a qualified expert witness from the Chickasaw tribe
testified that DHHS did not make active efforts to prevent removal.
Q. [Y]ou indicated you believe that the efforts in the petition were
reasonable. Did you—do you believe that the efforts in this petition taken by [the]
agency would constitute active efforts?
A. Yes.
Q. And what about them is active? Did you see anything in here providing
services to the family to prevent removal or offering to assist with education or—
or housing?
A. Not that I am aware of.
Q. So might that be considered that the agency did not provide active efforts
to prevent removal of these children?
A. They provided efforts to maintain the child’s safety until they could find
placement.
would suggest that all attorneys, judges, and referees should take steps to educate themselves
regarding ICWA and MIFPA.
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Q. But did you see any efforts—active efforts to prevent removal of the
children in this petition?
A. No.
The court then followed up on this line of questioning:
The Court. Okay. Now once again, given the efforts that were expended
by the Department at the time of removal does the Chickasaw Tribe view those as
active efforts under the circumstances?
The Witness. No.
The witness then opined that this was acceptable because there were emergent
circumstances, but that is not what ICWA and MIFPA require. The court seemed to suggest at the
conclusion of the preliminary hearing that the active efforts requirement was negated by the
expert’s testimony “that the Tribe takes the position that the child [KP] should not remain in the
custody of” respondent-mother. However, these rights follow the child, and a representative of
one tribe cannot waive them. There is no workaround for these requirements, the court must
comply.
In sum, DHHS and the court largely ignored the active efforts requirement, and this error
mandates reversal.
C. STANDARD OF PROOF
This portion of the analysis is upsettingly straightforward. ICWA and MIFPA each require
that the state prove its burden for removal by clear and convincing evidence. 25 USC 1912; MCL
712B.15(2). In this case, the trial court used the preponderance standard. Therefore, reversal is
necessary.
D. PLACEMENT PREFERENCES
Finally, the court failed to adhere to the hierarchical placement preferences laid out by both
ICWA and MIFPA. Section 1915 of ICWA provides:
In any foster care or preadoptive placement, a preference shall be given, in the
absence of good cause to the contrary, to a placement with--
(i) a member of the Indian child's extended family;
(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian
licensing authority; or
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(iv) an institution for children approved by an Indian tribe or operated by an
Indian organization which has a program suitable to meet the Indian child's needs.
[25 USC 1915(b).]
Further, Section 23 of MIFPA provides an even more restrictive hierarchy:
(1) . . . Absent good cause to the contrary, the foster care or preadoptive
placement of an Indian child must be in the following order of preference:
(a) A member of the Indian child’s extended family.
(b) A foster home licensed, approved, or specified by the Indian child's
tribe.
(c) An Indian foster home licensed or approved by the department.
(d) An institution for children approved by an Indian tribe or operated by an
Indian organization that has a program suitable to meet the Indian child's needs.
* * *
(3) The burden of establishing good cause not to follow the order of
preference is on the party requesting the deviation.
(4) The court shall not find good cause to deviate from the placement
preferences stated in this section without first ensuring that all possible placements
required under this section have been thoroughly investigated and eliminated. All
efforts made under this section must be provided to the court in writing or stated on
the record. The court shall address efforts to place an Indian child in accordance
with this section at each hearing until the placement meets the requirements of this
section.
(5) The court's determination of good cause to not follow the order of
preference shall be based on 1 or more of the following conditions:
(a) A request was made by a child of sufficient age.
(b) A child has an extraordinary physical or emotional need as established
by testimony of an expert witness. [MCL 712B.23.]
In this case, DHHS did investigate possible relative placements for the children. However,
there is no evidence in the record suggesting that DHHS sought a foster home “licensed, approved,
or specified by the tribe,” an Indian foster home, or a children’s institution approved or operated
by a tribe. 25 USC 1915(b); MCL 712B.23. With respect to KP, it is likely that the court could
have easily found good cause to change the preferences due to her mental health needs, but it failed
to do so. This constitutes yet another reason why reversal is necessary.
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V. CONCLUSION
To agree with the majority would be to imply that ICWA and MIFPA do not apply when
they are ignored; I cannot join such an opinion. The record in this case is overflowing with
flagrant, undeniable violations of ICWA and MIFPA, and these violations would undeniably
mandate reversal had they been raised by the parties’ attorneys. The court did not comply with
the notice requirements, did not provide active efforts toward preservation and reunification of the
family, did not apply the clear and convincing evidence standard of proof at removal, and did not
follow the hierarchy of placement preferences. I cannot ignore these breaches of DHHS’s and the
court’s duties; therefore, I dissent. I would vacate12 the trial court’s order of adjudication and
remand for proceedings compliant with ICWA and MIFPA. See Detmer/Beaudry, 321 Mich App
at 66-67.
/s/ Allie Greenleaf Maldonado
12
The conditional-reversal remedy articulated in Morris, 491 Mich at 121, is not appropriate in
this case because the violations go beyond notice. Conditional-reversal makes sense in notice
cases because the contested order can simply be reinstated if it turns out the child is not an Indian.
This case involves confirmed tribal heritage. Published cases applying the conditional reversal
remedy for violations beyond notice include language limiting application of the remedy to
particular facts of those cases. See Beers, 325 Mich App at 678; In re McCarrick/Lamoreaux, 307
Mich App 436, 468-470; 861 NW2d 303 (2014).
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