In re McCarrick
307 Mich. App. 436
| Mich. Ct. App. | 2014Background
- Three consolidated dockets involve McCarrick appealing removal orders affecting her children, who are of Indian heritage and enrolled in the Sault Ste. Marie Tribe; issues center on ICWA and the Family Preservation Act compliance.
- Department of Human Services petitioned to remove the children on February 26, 2012, citing a long history of abuse/neglect and parental substance issues; preliminary and removal hearings followed.
- An ex parte removal order was entered February 26, 2013, with a 24-hour hearing deadline and tribal representation arranged for removal proceedings.
- At the March 8, 2013 removal hearing, Department witnesses testified to inadequate supervision and children’s substance use; trial court found active efforts were made but not successful and placed the children with the Department.
- Subsequent petitions (May–June 2013) alleged continued contact with an older daughter and new welfare concerns; hearings addressed removal from the father’s care and ongoing supervision.
- On remand from the Michigan Supreme Court, the court addressed whether MCR 3.993(A)(1) allows a right of appeal from removal orders, shaping the jurisdictional issue central to the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MCR 3.993(A)(1) allows a right of appeal from removal orders. | McCarrick argued the clause varies with 'order' to permit appeals from removal orders. | Court held the appeal must be from a dispositional order that places/removes the child, not any removal order. | Appeal by right requires a dispositional order; McCarrick not entitled in Nos. 315510 and 317403. |
| What is the proper construction of 'an order of disposition placing a minor under the supervision of the court or removing the minor from the home' in MCR 3.993(A)(1)? | McCarrick claimed the phrase allows removal orders to be appealed by right. | The court reads the phrase to require dispositional orders, either placing under supervision or removing from the home. | The order appealed must be an 'order of disposition'; removal-only orders are not appealable by right. |
| Did the trial court comply with ICWA and the Family Preservation Act at removal, including expert testimony on potential damage? | Removal lacked testimony from a qualified expert about likely damage to the children if kept in McCarrick's custody. | Active efforts and findings supported removal; expert testimony was not properly provided. | Removal violated ICWA and the Family Preservation Act due to absence of qualified expert testimony; conditional reversal ordered. |
| What remedy is appropriate for the ICWA/Family Preservation Act violation and what is the scope of reversal? | Automatic reversal should remedy the violation. | Court should avoid automatic reversals when risk to children exists; discretionary remedy appropriate. | Conditional reversal and remand for proper expert testimony; not automatic reversal. |
Key Cases Cited
- In re SLH, 277 Mich App 662 (2008) (initial dispositional order as the first appealable order; jurisdictional considerations noted)
- In re Gazella, 264 Mich App 668 (2005) (interpretation of dispositional orders in related contexts)
- In re JL, 483 Mich 300 (2009) (supreme court address of juvenile/protective procedures and jurisdictional issues)
- In re Mason, 486 Mich 142 (2010) (principles relating to dispositional review and jurisdiction in child protective proceedings)
- Morris, 491 Mich 81 (2012) (jurisdiction and review standards in juvenile/child protective contexts)