926 N.W.2d 832
Mich. Ct. App.2018Background
- DHHS petitioned and the trial court terminated both parents’ rights to two children (TB and OL) under MCL 712A.19b(3)(c)(i) and (g) based on severe parental opiate addiction and failure to benefit from services.
- Mother is a registered member of the Cheyenne River Sioux Tribe; both children are undisputedly "Indian children" under ICWA and MIFPA. Father signed an affidavit of parentage for TB (making him TB’s legal father) but not for OL. Father did not participate in services and had intermittent contact with TB.
- The trial court applied ICWA/MIFPA protections and the beyond-a-reasonable-doubt standard to mother, but did not apply those heightened protections to father, concluding he lacked Native heritage. The termination order form, however, checked boxes reflecting ICWA/MIFPA findings (but the bench ruling applied them only to mother).
- Father appealed only as to TB, arguing ICWA/MIFPA protections apply because he is TB’s biological parent even though he is non‑Indian; petitioner conceded error in failing to apply those standards as to father but urged affirmance on the record.
- Mother appealed claiming petitioner and the tribe failed to make required "active efforts" and that termination was not proven beyond a reasonable doubt; the trial court found active efforts were made and, with tribal expert testimony and other evidence, concluded beyond a reasonable doubt continued custody by mother would likely cause serious emotional or physical damage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA/MIFPA protections (active efforts; beyond‑reasonable‑doubt) apply to a non‑Indian biological parent of an Indian child | Father: protections apply because TB is an Indian child and he is a biological parent | Petitioner: trial court applied protections only to mother; any error was harmless and father forfeited the issue | Court: ICWA/MIFPA apply to any "parent" as defined (biological parent); reversed father’s termination as to TB and remanded for compliance with heightened standards |
| Whether the "continued custody" language in ICWA/MIFPA requires prior legal/physical custody to trigger protections | Father: protections apply here despite lack of formal custody because father provided care in practice before removal | Petitioner: relies on Adoptive Couple to argue protections may not apply where parent never had custody | Court: Adoptive Couple is distinguishable; where a parent provided practical custodial care and family was intact when DHHS intervened, protections apply despite lack of formal legal custody |
| Whether petitioner and tribe made "active efforts" to prevent breakup of the Indian family for mother | Mother: DHHS and tribe failed to make active, culturally‑appropriate, or timely efforts; mere "reasonable efforts" insufficient | Petitioner: DHHS provided services, notice, team meetings; tribe engaged once it indicated interest | Court: Trial court did not clearly err — clear and convincing evidence of active efforts was found and efforts were unsuccessful |
| Whether termination of mother's parental rights was supported beyond a reasonable doubt (serious emotional or physical damage) | Mother: evidence insufficient; she had engaged in therapy and was off heroin ~1 year | Petitioner: tribal expert and record show ongoing substance abuse, emotional instability, failure to benefit from services | Court: Trial court’s finding was not clearly erroneous — beyond a reasonable doubt standard satisfied; termination of mother affirmed |
Key Cases Cited
- Adoptive Couple v. Baby Girl, 570 U.S. 637 (U.S. 2013) (interpreting ICWA’s "continued custody" and "active efforts" limits where an absentee Indian father never had custody)
- In re Williams, 501 Mich. 289 (Mich. 2018) (summary of MIFPA’s heightened burdens and procedural protections for Indian children)
- In re England, 314 Mich. App. 245 (Mich. Ct. App. 2016) ("active efforts" under ICWA/MIFPA must be proved by clear and convincing evidence)
- In re McCarrick/LaMoreaux, 307 Mich. App. 436 (Mich. Ct. App. 2014) (remand for trial court to determine effect of continued custody where appellate court conditionally reversed termination)
- In re Morris, 491 Mich. 81 (Mich. 2012) (context on Congress’ purpose in enacting ICWA and application in Michigan child‑welfare proceedings)