In re Payne/Pumphrey/Fortson
311 Mich. App. 49
| Mich. Ct. App. | 2015Background
- Mother (respondent) had a long DHS history (since 2009) involving abuse, neglect, supervision, mental instability, and substance abuse; DHS initially terminated her rights to four children (AP, DP — Indian children; KP, DF — non-Indian).
- On first appeal, this Court affirmed termination as to KP and DF but reversed as to AP and DP because the trial court failed to apply ICWA’s heightened “beyond a reasonable doubt” standard and lacked qualifying expert testimony that continued custody would likely cause serious harm.
- On remand the trial court held a second termination hearing, qualified Christopher Hillert as an ICWA expert for AP and DP’s tribe, and Hillert testified that returning the children would not likely cause serious emotional or physical damage.
- The trial court nonetheless concluded (again) that returning AP and DP would likely cause serious harm beyond a reasonable doubt, and terminated parental rights to all four children; it also articulated best-interest findings for KP and DF.
- Mother appealed; the Court of Appeals reviewed statutory interpretation of ICWA/MIFPA and whether the evidentiary and expert-testimony requirements were satisfied, and reviewed best-interest findings for KP and DF.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICWA’s phrase “including testimony of qualified expert witnesses” requires more than one expert witness testifying | Mother: Federal ICWA language (“witnesses”) requires multiple expert witnesses; Michigan statutes’ “at least one” conflicts with federal law | State/trial court: One qualified expert suffices; Michigan precedent interprets "witnesses" to allow one expert | Held: One qualified expert witness is sufficient; Michigan precedent (and prior cases) so interpret ICWA’s wording |
| Whether the trial court satisfied ICWA/MIFPA’s “beyond a reasonable doubt, including testimony of a qualified expert” standard when the only expert testified that continued custody would NOT likely cause serious harm | Mother: Because the only qualified expert opined no likely serious harm, the statutory requirement (that the court’s beyond-a-reasonable-doubt finding must “include” such expert testimony endorsing harm) was not met | Trial court: Expert testimony is part of the evidence but does not bind the court; court may consider all evidence and still find beyond a reasonable doubt despite expert disagreement | Held: Reversed as to AP and DP — the statute requires the court’s beyond-a-reasonable-doubt finding to encompass expert testimony that continued custody is likely to cause serious harm; the trial court erred in disregarding the expert’s contrary testimony |
| Proper meaning of statutory term “including” in ICWA/MIFPA (i.e., must expert testimony affirmatively support finding of likely serious harm?) | Mother: “Including” means the required finding must contain or encompass expert testimony that continued custody is likely to cause serious harm | State: “Including” means expert testimony is part of the evidentiary mix; court may weigh it with other evidence | Held: “Including” means the court’s finding must contain/encompass expert testimony that supports the conclusion of likely serious emotional or physical damage; absent such expert support, termination under ICWA/MIFPA cannot be ordered |
| Whether termination of parental rights to non-Indian children (KP, DF) was supported and in their best interests | Mother: Argued trial court did not articulate best-interest findings on remand | State: Statutory grounds were proven previously; on remand court articulated best-interest reasons | Held: Affirmed termination as to KP and DF — statutory grounds proven earlier (law of the case) and trial court’s best-interest findings were not clearly erroneous |
Key Cases Cited
- In re Morris, 491 Mich 81 (discussing ICWA interpretation and standard of review) (issues of ICWA interpretation are reviewed de novo)
- In re Olive/Metts, 297 Mich App 35 (standards for clear-error review and termination proceedings)
- In re Elliott, 218 Mich App 196 (one qualified expert witness satisfies ICWA’s “witnesses” language)
- In re McCarrick/Lamoreaux, 307 Mich App 436 (trial court must include qualified expert testimony when finding likely serious harm for ICWA/MIFPA removals)
- In re Trejo, 462 Mich 341 (best-interest review standard in termination proceedings)
- Koontz v. Ameritech Servs., Inc., 466 Mich 304 (statutory interpretation principles; give effect to every word)
- Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (ICWA’s purpose: to prevent removal of Indian children and protect tribes)