In Re IEM

592 N.W.2d 751 (1999) 233 Mich. App. 438

In the Matter of IEM, a Minor.

Docket No. 208851.

Court of Appeals of Michigan.

Submitted December 2, 1998, at Lansing. Decided January 19, 1999, at 9:10 a.m. Released for Publication March 23, 1999.

Robert J. Engel, Pros. Atty., and Jennifer Herschelman, Asst. Pros. Atty., for the petitioner.

Robert J. Butts, Cheboygan, for the respondent.

Before: GAGE, P.J., and MacKENZIE and WHITE, JJ.

GAGE, P.J.

Respondent T.Y.M., a minor, appeals as of right the probate court order terminating her parental rights to her minor child, I.E.M., pursuant to M.C.L. § 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).^[1] Although we conclude that the probate court did not err in its findings of fact or by ordering termination of respondent's parental rights, we must conditionally affirm and remand this case so that the court may provide notice of these proceedings to any interested Indian tribe, as required by the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.

Respondent is a cognitively and emotionally impaired, seventeen-year-old single mother. The original petition filed by petitioner Family Independence Agency (FIA) sought jurisdiction over both respondent and I.E.M., alleging that the home life provided by respondent's mother Beverly was generally chaotic, that respondent feared her younger autistic sister J.M. might assault her, and that Beverly had ignored repeated caseworker warnings regarding "the risk of sexual activity to the girls in [respondent's] situation," thus resulting in respondent's pregnancy with I.E.M. The FIA alleged concern regarding I.E.M.'s welfare because of respondent's cognitive and emotional disorders and her resultant poor decision-making ability, respondent's lack of parenting skills, and an alleged risk of harm arising from J.M.'s unpredictable behavior. The FIA requested removal of both respondent and I.E.M. from Beverly's home and recommended their placement together in foster care. At the April 29, 1997, preliminary hearing, the parties agreed to a temporary out-of-home placement for respondent and I.E.M. and to adjourn the hearing.

The FIA subsequently filed a June 10, 1997, amended petition that withdrew its prior neglect petition regarding respondent. Respondent therefore returned home with Beverly in early June. On the amended petition, the FIA checked a box that indicated I.E.M. was a "[m]ember of or eligible for membership in American Indian Tribe or Band," but the petition contained no further information regarding either respondent's or I.E.M.'s potential Indian heritage. The lengthy amended petition also contained further allegations regarding the potential for harm to I.E.M. while in respondent's care. Specifically, the amended petition alleged that, despite the provision of parenting support and services to her, respondent had not enhanced her parenting skills, that the attachment and bonding between respondent and I.E.M. was decreasing, and that respondent refused to acknowledge her shortcomings as a parent and her need for constant supervision and support. The amended petition also contained a community mental health counselor's evaluation of respondent as suffering from an "[a]djustment [d]isorder with mixed disturbance of emotions and conduct" and a schizotypal personality disorder, and described psychotic behavior exhibited by respondent, including hallucinations and paranoia. At the June 11, 1997, preliminary hearing regarding the amended petition, respondent's counsel consented to an out-of-home placement for I.E.M.

After a three-day trial, a jury concluded that the probate court had jurisdiction over I.E.M.. After a subsequent two-day termination hearing, the probate court concluded that clear and convincing evidence existed that termination of respondent's parental rights was appropriate under M.C.L. § 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).

Respondent first contends that the probate court may not have properly had jurisdiction over this case and that the court's order of termination may therefore be invalid because the court failed to ascertain whether I.E.M. was eligible for membership in an Indian tribe and failed to notify the applicable tribe of the instant proceedings as required by 25 USC 1912(a). Section 1914 of the ICWA confers on "any parent ... from whose custody [any Indian child who is the subject of any action for termination of parental rights under state law] was removed" the right to "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." See also In re Kreft, 148 Mich.App. 682, 687-689, 384 N.W.2d 843 (1986) (concluding mother whose parental rights were terminated by Michigan court had standing pursuant to 25 USC 1914 to challenge on appeal alleged violations of ICWA, even without tribe's participation in appeal). Whether the probate court failed to satisfy a notice obligation imposed by the ICWA involves a legal question of statutory interpretation that we review de novo. Yaldo v. North Pointe Ins. Co., 457 Mich. 341, 344, 578 N.W.2d 274 (1998).

Pursuant to the ICWA, child custody proceedings involving foster care placement or termination of parental rights to an Indian child are subject to specific federal procedures and standards. In re Elliott, 218 Mich.App. 196, 201, 554 N.W.2d 32 (1996). "[T]o promote the stability and security of Indian tribes and families," Congress established within the ICWA "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture...." 25 USC 1902. One of the requirements imposed by the ICWA is that an interested Indian tribe receive notice of termination proceedings involving Indian children:

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 Interior] 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 USC 1912(a).]

See also MCR 5.980(A)(2) (requiring that a court presiding over a protective proceeding involving an Indian child notify "the child's tribe and the child's parents or Indian custodian and, if the tribe is unknown, ... the Secretary of the Interior" of the proceeding). For ICWA purposes, an "Indian child" is any unmarried individual less than eighteen years of age who is either (1) an Indian tribe member or (2) both eligible for Indian tribe membership and an Indian tribe member's biological child. 25 USC 1903(4).

The FIA argues that the tribal notice requirement was inapplicable in the instant case because it was not established before the probate court that I.E.M. was an Indian child as defined by the ICWA. At the April 29, 1997, preliminary hearing, pursuant to MCR 5.965(B)(7), the referee inquired whether respondent was an Indian tribe member or was eligible for Indian tribe membership, to which Beverly replied, "[S]he has a little [I]ndian in her, but I don't know if it's enough to qualify." Subsequently, at the June 11, 1997, preliminary hearing regarding the FIA's amended petition, respondent answered affirmatively when the referee asked whether respondent had any Indian blood. Beverly elaborated that respondent's father's family had some Indian blood, but that she did not know whether respondent qualified for membership in any Indian tribe. The referee noted for the record that respondent was potentially an Indian tribe member and ordered that the FIA further investigate respondent's eligibility for tribal membership.

The FIA claims that I.E.M. is not eligible for Indian tribe membership as the biological child of a member because respondent failed to enroll or otherwise supply some form of membership verification from any Indian tribe. However, the FIA's argument ignores that tribal membership is not defined by enrollment.

Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.

[Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg 67584, 67586 (1979),^[2] citing United States v. Broncheau, 597 F.2d 1260, 1263 (C.A.9, 1979).]

See also People ex rel. South Dakota Dep't of Social Services, In re C.H., 510 N.W.2d 119, 123 (S.D., 1993); In re H.D., 11 Kan.App.2d 531, 535-536, 729 P.2d 1234 (1986). Because respondent's lack of enrollment in an Indian tribe is not dispositive of whether I.E.M. qualifies as an Indian child, we must consider whether the limited information provided to the probate court regarding respondent's Indian heritage sufficed to invoke the ICWA's notice requirement.^[3]

Although the brief testimony regarding respondent's Indian ancestry was inconclusive regarding her tribal membership status, the information was sufficient to require the FIA to provide notice regarding this proceeding. The Bureau of Indian Affairs guidelines enumerate "the most common circumstances giving rise to a reasonable belief that a child may be an Indian." 44 Fed. Reg., supra, p. 67586. The guidelines provide:

B.1. Determination That Child Is an Indian

(a) When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe....

* * *

(c) Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include but are not limited to the following:

(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.

(ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.

(iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.

(iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.

(v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child. [Id. (emphasis added).]

See also In the Interest of H.D., supra at 534-536, 729 P.2d 1234. Respondent's and Beverly's testimony certainly at least suggests that respondent, and consequently I.E.M., potentially qualify as tribal members, and we therefore conclude that their testimony obligated the probate court to ensure that the FIA complied with the ICWA's tribal notification requirement. In re J.T., 166 Vt. 173, 181-182, 693 A.2d 283 (1997) (father's statement to psychologist that his father was "full-blooded Mohican" sufficient to trigger obligation of trial court to inquire regarding child's Indian status by providing notice to tribe); In re Pedro N., 35 Cal.App.4th 183, 186, 41 Cal.Rptr.2d 819 (1995) ("The Indian status of the child need not be certain in order to trigger notice."); In re M.C.P., 153 Vt. 275, 288-289, 571 A.2d 627 (1989) (concluding that lower court erred in failing to require tribal notice where adoptive father was member of Mohawk Indian Tribe who asserted that child was eligible for membership). We agree with the Vermont Supreme Court's observation that "[t]o maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child," id. at 289, 571 A.2d 627, and that "Indian tribes are in a better position to determine the membership of individuals who have some relationship to the tribe and the court should defer to this expertise." Id. at 285-286, 571 A.2d 627. See also In re Shawboose, 175 Mich.App. 637, 639, 438 N.W.2d 272 (1989) (The issue whether the minor children were Indian children was one for the tribes and not for the probate court to decide.). "It is impossible for a tribe to determine whether a child is a tribal member or eligible for membership if it never receives notice of the proceeding." In re J.T., supra at 183, 693 A.2d 283. Our permitting the probate court and the FIA to simply ignore the testimony of record implicating the ICWA notification requirement would contravene the explicitly stated congressional objective "to promote the stability and security of Indian tribes and families," 25 USC 1902, and we decline to permit the court and the FIA to disregard Congress' expressed intent.

Because the probate court had reason to believe I.E.M. had some unspecified Indian heritage, the FIA was required to send notice of the probate court proceedings and of the applicable tribe's right of intervention through registered mail, return receipt requested, to the Secretary of the Interior. 25 USC 1912(a); MCR 5.980(A)(2). The lower court record, however, does not reflect that the FIA subsequently pursued the matter. The FIA includes in its brief on appeal a document requesting a determination regarding I.E.M.'s possible tribal affiliation that it allegedly sent to the Michigan Indian Child Welfare Agency, and notes that it made a telephone call to the local Odawa Indian Tribe. These efforts by the FIA fall far short of satisfying the ICWA's notice requirements. First, no indication exists that the FIA sent the document by registered mail, return receipt requested. 25 USC 1912(a). Second, the document was not correctly addressed to the Secretary of the Interior.^[4]Id. Third, the document nowhere informs any potentially interested tribe of its right of intervention. Id. The FIA's telephone call also did not satisfy any of these ICWA requirements.

The FIA incorrectly implies that respondent should have provided more initial information regarding her Indian heritage and wrongly asserts that after its telephone call to the local Odawa Tribe, it was then up to the tribe to respond. It is not the responsibility of respondent to establish the applicability of the ICWA. "Only after notice has been provided and a tribe has failed to respond or has intervened but is unable to determine the child's eligibility for membership does the burden shift to the parties to show that the ICWA still applies." In re J.T., supra at 183, 693 A.2d 283. Because we have determined that the FIA's alleged notice to an interested tribe did not comply with the ICWA, the FIA's argument that it was then the tribe's responsibility to take some further action is without merit. Id. ("It is impossible for a tribe to determine whether a child is a tribal member or eligible for membership if it never receives notice of the proceeding.") Id.

Having concluded that the probate court and petitioner failed to comply with the ICWA's notice requirements, we remain faced with the question of how this failure affects the probate court's order terminating respondent's parental rights. Because, as discussed below, we find that the probate court properly terminated respondent's parental rights according to Michigan law, we conclude that we need not reverse the probate court's order of termination. We instead adopt the same approach taken by many other states' appellate courts that have addressed a lower court's failure to provide adequate notice under 25 USC 1912(a), and conditionally affirm the probate court's termination order, but remand so that the court and the FIA may provide proper notice to any interested tribe.

We do not believe [reversal of the adjudication and the return of the juvenile to the parents' custody] is warranted where the sole deficiency at this time is in notice and there has been no determination that the ICWA otherwise applies to this proceeding. Thus, in In re Colnar, 52 Wash.App. [37,] 41[;] 757 P.2d [534 (1988) ], the court remanded the matter to the trial court to notify the appropriate tribe, and, when the tribe did not intervene in the proceeding, affirmed the original order. The court in In re Junious M., 144 Cal.App.3d [786,] 798[;] 193 Cal.Rptr. [40 (1983) ], ordered a similar remand for notice. We concur that these cases set forth the appropriate procedure and remand to the trial court for notice according to the [ICWA]. If the tribe does not seek to intervene, or after intervention the trial court still concludes that the ICWA does not apply, the original orders will stand. If the trial court does conclude that the ICWA applies, further proceedings consistent with the Act will be necessary. [In re M.C.P., supra at 289, 571 A.2d 627.]

See also People ex rel. South Dakota Dep't of Social Services, supra at 124-125 (also remanding solely for tribal notification purposes).

Next, respondent raises several challenges to the probate court's findings and conclusions supporting its order terminating her parental rights. A court may order termination of a parent's rights when clear and convincing evidence establishes that at least one statutory ground for termination exists. MCL 712A.19b(3); MSA 27.3178(598.19b)(3); MCR 5.974(F)(3). Once a statutory ground for termination has been proved by clear and convincing evidence, the respondent bears the burden of going forward with evidence that termination is clearly not in the child's best interests. In re Hall-Smith, 222 Mich.App. 470, 472-473, 564 N.W.2d 156 (1997). Absent any evidence addressing this issue by the respondent, termination of parental rights is mandatory. Id. at 473, 564 N.W.2d 156. A decision regarding termination is reviewed in its entirety for clear error. In re Hamlet (After Remand), 225 Mich.App. 505, 515, 571 N.W.2d 750 (1997).

Respondent suggests that the probate court erred in terminating her parental rights without taking into account that Beverly, her mother, testified that she had planned on assisting respondent in caring for I.E.M. Specifically, respondent challenges that the "court in this case ruled that the rights of [respondent], the mother, must be weighed independent of the availability of this other parental assistant, in this case, the grandmother, Beverly...." Respondent presumably refers to the following discussion of the probate court regarding Beverly:

In similar fashion, much was made of grandmother Beverly's independent ability to be a fit custodian for [I.E.M.]. The argument was advanced that Beverly, the grandmother, could adequately protect [I.E.M.] and therefore [respondent] and [I.E.M.] should live with her. Again, while it may be a practical reality that Beverly could adequately parent [I.E.M.], the question for the court is whether [respondent] is, or can be, a fit custodian on her own and, if not, whether her parental rights should be terminated. If the court concludes that termination of rights should occur, the fact that a grandmother is a fit custodian may be a proper consideration for permanency planning in the context of an adoptive placement. Aside from this future possibility, the rights of [respondent] must be weighed independent of the danger posed by sister [J.M.] as well as the surrogate parenting by the grandmother.

A thorough review of the entirety of the probate court's opinion reveals, however, that respondent's argument is without merit. The opinion reflects that the probate court carefully considered the testimony of many witnesses regarding respondent's potential to parent effectively if assisted by someone. For example, the probate court found that several witnesses' testimony established that to function effectively as a parent respondent would require constant supervision. The probate court also found that several witnesses had testified that despite the possibility of receiving parenting assistance, because of her cognitive and emotional impairments respondent would unlikely ever improve her skills sufficiently to undertake the complex responsibilities of parenting. The court concluded that it had found "clear and convincing evidence that [respondent] is an intellectually and emotionally limited teenager who, because of her significant longstanding deficits, cannot be expected to develop the intellectual and cognitive ability to be a safe and nurturing parent regardless of how long or under what conditions she is assisted." (Emphasis added.) Thus, although the court did not specifically refer to Beverly in determining whether respondent could become a better parent through the assistance of another, the findings and conclusions of the probate court indicate that it determined that no amount of assistance from anyone would enable respondent to behave in the manner of "a safe and nurturing parent." Because our review of the record reflects that the court's findings and conclusion were well supported, we reject respondent's argument that the probate court erred in failing to consider Beverly's assistance in determining whether to terminate her rights.

Respondent's argument concerning the probate court's alleged error in failing to consider Beverly when deciding whether to terminate respondent's parental rights continues for approximately seventeen pages, and it is unclear exactly what further positions respondent is attempting to set forth. To the extent respondent contends that the probate court erred in terminating her rights without considering an arrangement involving Beverly as I.E.M.'s primary caregiver and respondent's also living in Beverly's home, we conclude that this position is without merit. In support of her position, respondent points to the philosophy statement found in M.C.L. § 712A.1(3); MSA 27.3178(598.1)(3), which counsels that the juvenile code "shall be liberally construed so that each juvenile coming within the jurisdiction of the court receives the care, guidance, and control, preferably in his or her own home, conducive to the juvenile's welfare and the best interest of the state." Respondent also points to the similar philosophy statement found in MCR 5.902(B). However, respondent's argument ignores this Court's prior observation that the language of M.C.L. § 712A.1(3); MSA 27.3178(598.1)(3)'s virtually identical predecessor provision, M.C.L. § 712A.1(2); MSA 27.3178(598.1)(2), does not require that the court place a child with relatives. In re McIntyre, 192 Mich.App. 47, 52, 480 N.W.2d 293 (1991). If it is in the best interests of the child, the probate court may properly terminate parental rights instead of placing the child with relatives. Id. See also In re Sterling, 162 Mich.App. 328, 342, 412 N.W.2d 284 (1987) (The court was not under a duty to place the child with relatives.); In re McCullough, 141 Mich.App. 170, 171, 366 N.W.2d 90 (1985) (rejecting mother's argument that probate court erred in terminating her parental rights before investigating possible placement with relatives). Despite the general policy preference underlying the juvenile code that a child remain in its own home, the Legislature has defined certain situations in which the negative influences in the minor's home justify a departure from this policy preference and require the termination of the parents' rights. MCL 712A.19b(3); MSA 27.3178(598.19b)(3). This case falls squarely within one of the legislatively defined situations warranting a departure from the general policy of keeping the minor in its own home, specifically subsection 19b(3)(g).^[5] In light of the probate court's conclusion, discussed above, that respondent is unlikely to ever arrive at being a safe and nurturing parent, and its further determinations that a potential for physical harm to I.E.M. existed because of respondent's hallucinations and that I.E.M. would likely achieve limited intellectual and emotional development if not placed in an enriching environment, all of which observations were amply supported in the record, we conclude that the probate court did not err in finding that termination was warranted and was not contrary to I.E.M.'s best interests.

Next, respondent challenges the probate court's findings that relied on the testimony of psychologist Timothy Strauss, alleging that Strauss' testimony regarding her ability to bond with I.E.M. was improperly speculative because he had not observed any interaction between her and I.E.M. Assuming arguendo that the probate court erred in considering Strauss' testimony regarding the poor potential for bonding between someone situated similarly to respondent and a very young child, this error was harmless. Our review of the record reveals that multiple witnesses who had observed respondent interacting with I.E.M. testified about their concerns regarding respondent's neglectful, hallucinatory, and paranoid behaviors. The significant number of witnesses who observed respondent's behavior and testified about their concerns regarding respondent's parenting abilities distinguish the instant case from In re Hulbert, 186 Mich.App. 600, 605, 465 N.W.2d 36 (1990), in which this Court reversed a probate court's termination order that was based almost exclusively on the speculative opinions of psychologists regarding what might happen in the future. Because clear and convincing evidence besides Strauss' generalized expert testimony established respondent's neglectful behaviors, there is no reasonable probability that the trial court's consideration of Strauss' testimony significantly affected the outcome of this case. In re Hamlet, supra at 518, 571 N.W.2d 750.

Finally, we reject respondent's contention that the probate court erred in allegedly comparing the home that respondent and Beverly could provide with that of a traditional family. Respondent directs our attention to the following statements of the probate court, made at the conclusion of the termination hearing:

And there's this need for the natural family, which is kind of hard to judge, but we see it all the time, particularly here in the probate court, where we have people searching desperately who have been adopted for natural parents and that connection, and that's a real difficult area to know. This Court believes that the natural family is not an asset if it's not safe or if it's destructive, even though there's emotional tug for that. If that's a dangerous circumstance ... then that's out-weighed. On the other hand, it's hard to measure the actual growth benefit of being connected to a natural family. It seems very important to many people and very useful.

A review of these statements convinces us that the probate court made absolutely no attempt to compare the potential home environment of respondent and Beverly with some abstract notion of a "traditional family." The court merely referenced the juvenile code's underlying policy of keeping minors with their natural families, presumably meaning biological families, and went on to determine that in the instant case the dangers posed to I.E.M. by respondent's lack of parenting skills outweighed any benefit I.E.M. would derive from remaining with respondent. Therefore, because respondent's argument mischaracterizes the probate court's remarks, we conclude that the argument is meritless.

We conditionally affirm the order terminating respondent's parental rights, but remand for the purpose of providing proper notice to any interested Indian tribe pursuant to the ICWA. We do not retain jurisdiction.

NOTES

[1] An August 29, 1997, order was entered recognizing the release by the father, Charles Jeffrey Grimm, of his parental rights regarding Isabell. The father is not a party to this appeal.

[2] The guidelines were "not intended to have binding legislative effect." 44 Fed. Reg., supra, p. 67584. However, we find them persuasive and note that "[t]he courts that have considered notice issues have, however, followed the recommended procedures." In re M.C.P., 153 Vt. 275, 286, 571 A.2d 627 (1989).

[3] In In re Shawboose, 175 Mich.App. 637, 639, 438 N.W.2d 272 (1989), this Court concluded that the ICWA did not apply when the "respondent never met the prerequisite of being an enrolled member of an Indian tribe." The Shawboose Court did not address the issue of proper notice, however, and its statement regarding the respondent's enrollment may not be interpreted as imposing an enrollment prerequisite to application of the ICWA in every case involving an Indian child. The respondent's enrollment constituted a dispositive issue in Shawboose only because one of the potentially appropriate tribes, which had already received notice of those proceedings and was given the opportunity to intervene, had itself declined jurisdiction on the basis that the respondent was not an enrolled member of the tribe. Id. at 639-640, 438 N.W.2d 272.

[4] Although the statute, 25 USC 1912(a), explains that when the child's tribe has not been determined, notice must go to the Secretary of the Interior, we note that the regulations implementing the statute require that for Michigan proceedings in which the child's tribe is undetermined, notice must be provided to the Minneapolis Area Director, Bureau of Indian Affairs. 25 CFR 23.11(b), (c)(2).

[5] Subsection 19b(3)(g) provides for termination when "[t]he parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the age of the child."