*1
with
rights
parental
of her
to this
connection with the termination
1912(d), however,
impose
temporal
does not
a strict
child. 25 USC
requirement.
not
component
The ICWAdoes
for the active-efforts
provide
categorically require
time it
the DHS to
services each
proceeding against
parent.
a
It
commences a new termination
thorough, contemporaneous
requires
a
the DHS to undertake
past
provided
parent
in the
and
assessment of the services
seeking
response
terminate
parent’s
to those services before
to
the
having
parental rights
services. Trial
without
offered additional
carefully
timing
provided
the
to
must
assess the
of
services
courts
long ago
parent.
provided
to a
too
to be relevant
the
Services
by
parent’s
do not establish
clear and
current circumstances
convincing
a
that active efforts have been made and raise
evidence
continued
is
to
doubt about whether
reasonable
physical damage
the child. The
in
emotional or
to
result
serious
judge
timing
of the services
reference
the
court must
par-
seeking
grounds
termination and their relevance to
for
situation.
ent’s current
1912(d)
require
not
that active efforts
3. 25 USC
also does
always
provided
is the
in relation to the child who
must
have been
question
subject
proceeding.
the current termination
of
and services
in connection with
whether the efforts made
parent’s
parent’s
current
other children are relevant to the
they permit
so that
a current assessment
situation and abilities
subject
pertains
the child who is the
of the
fitness as it
proceeding.
current
parent’s ability parent current circumstances and to the child who subject proceeding provide is the of the and must assess and relevancy past family’s evidence of the of efforts to the current circumstances and needs. The DHS did not do so in this case. He contemporaneous, specific would also hold that evidence be must presented beyond in order for a court to determine a reasonable physical damage doubt that serious emotional or to child the is result, likely to which the DHS could not have done this case home, because it did the not evaluate current the presented child, relationship risks it to a or the of the presented and the child. The DHS thus could not have evidence showing specific respon- a causal link between conditions in the any specific dent’s home and a likelihood of serious emotional or physical damage. judgment Justice would reverse the of Cavanagh Appeals, terminating respon- the Court of vacate the order the parental rights, proceed- dent’s and remand the case for further ings. — — TERMINATION OF RIGHTS CHILD CHILD AND PARENTAL INDIAN 1. PARENT — Breakup the of Indian Welfare Act Active Efforts to Prevent Families. requires Department Human The Indian Welfare Act the Child thorough, contemporaneous Services to undertake a assessment parent past parent’s provided in the and the the services to a response seeking parental to terminate to those services before services; rights having the act does not without offered additional categorically require department provide the to services each time proceeding against parent, it a new termination but commences provided ago parent’s long current services too to be relevant to a by convincing do not establish clear and evidence circumstances department prevent the made the active efforts to the breakup family requires that the act and raise a of the Indian custody by parent reasonable doubt about whether continued the physical damage to the to result in serious emotional or child; judge timing must the of the services reference the court seeking grounds to the to the termination and their relevance (25 [f]). 1912[d], parent’s current situation USC Rights — — 2. Parent Termination of Parental Indian Child Child — Breakup Prevent of Indian Welfare Act Active Efforts Families. require The Indian Child Welfare Act does not that active efforts to family always prevent Indian must have been of the subject provided current in relation to the child who is the of the parental rights; question proceeding is whether to terminate in connection with the the efforts made and services parent’s parent’s are relevant current other children they permit and abilities so that a current assessment of situation subject pertains of the fitness as it to the child who is the (25 1912[d]). proceeding current Rights — — Termination of Parental Indian Child 3. Parent Child Breakup — of Indian Welfare Act Active Efforts to Prevent Families. Any policy practice providing of an or no services to parent’s rights petition Indian child when the to terminate the prior parental rights that child is based on a termination of heightened another child does not withstand the standard Act, requires Indian Child Welfare which active efforts *4 family; the Indian even if services were the past, Department the in the the of Human Services or the thorough contemporaneous review of tribe must conduct a and parent’s progress progress in or lack of those services the 483 Mich response; only appears if have been made and it active efforts unlikely provision the need the of additional services is may department pursue or the tribe termina- for termination 1912[d]). (25 providing tion without additional services of Hu- Kayla Department Lee Pelter-Nixon man Services.
Nancy Cheryl B. Lucas-Dean for L. Lee. Blubaugh Eric G. for the Sault Ste. Marie Tribe Indians. Chippewa
Amici Curiae: Restuccia, Cox, General,
Michael A. B. Eric Attorney General, Beaton, Solicitor and H. Daniel Jr. and Larry Lewis, General, Attorneys Attorney W. Assistant for the General. Firm, Law PLLC
Speaker (by Jodi M. Latuszek Liisa R. for the Children’s Section of the Speaker), Law Michigan. State Bar of Fletcher, Fort, Kathryn
Matthew L. M. E. Cameron A. Fraser, James A. Thomas Keedy, Myers, R. William Brooks) (by J. Brooks PLLC William J. for the Ameri- Indian Michigan. can Law Section of the State Bar of Respondent Cheryl J. Lee challenges CORRIGAN, judgment Appeals affirming of the Court of the termi- son, Lee, nation of her to her parental rights JL. re unpublished curiam of the opinion per Ap- Court of (Docket 283038). peals, issued October No. Respondent specifically interpreta- claims error and application tion of the Indian Child Welfare Act (ICWA), USC 1901 et She us seq. urges adopt interpretation dissenting of the ICWA offered Appeals judge. judgment Court of We affirm the *5 re JL
Opinion of the Court Appeals petitioner Department Court of because (DHS), timely, affirmative provided Human Services “active efforts” re- efforts that satisfied ICWA’s 1912(d). 25 USC hold that the ICWA quirement, We thorough, contempo- the DHS to undertake a requires provided raneous assessment of the services in the and the to those past parent’s response seeking rights before to terminate parental services having offered additional The ICWA without services. not, however, DHS to categorically require does each time a new provide proceed- services termination reject commenced a ing against parent. We further respondent’s applied claim that the lower courts on her presumption past conclusive of unfitness based in determining respondent’s conduct continued in emotional or “likely was to result serious 1912(f). Finally, physical damage to child.” that this supported by we conclude determination was doubt, beyond required evidence a reasonable 1912(f). I. HISTORY BASIC FACTS AND PROCEDURAL son, JL, and her are both members of the Respondent Chippewa Sault Ste. Marie Tribe of Indians. Between 2006, birth to four children: respondent gave 1999 and JL, SD, JD, Respondent’s BE JL is the oldest child. SD, JD, in rights to and BP were terminated earlier that are not at issue here. proceedings 1999, years in was 16 respondent
JL was born
when
in
Child Protective
living
old and
foster care. DHS
(CPS)
Regina
began working
Services
worker
Frazier
1998,
respondent
in
even before
had
delinquent
then both a
and a
Respondent
children.
was
displayed
neglect. Respondent
victim of abuse and
birth,
neglectful
behavior after JL’s
so he
abusive
Anishinabek Services caseworker 2002, in Penny began working respondent Clark with years living when she was 18 old and on a reservation. Clark, coordinator, respondent’s wraparound who was attempted and several others care help respondent SD, then who was a few months old. Clark also respondent budgeting helped worked with on and her Although security enjoyed obtain social benefits. Clark working respondent, with Clark testified that respon- dent and and moody impulsive impul- could be that her Family Continuity siveness led to trouble. Under the Clark in Program, respondent visited her home at least once a Respondent’s messy week. home was often and unsafe; glass cigarette butts left were within SD’s reach. Clark also had concerns about respondent’s ability times, to care for herself. At respondent was she failed to eat and depressed; prenatal take vitamins. JL returned to respondent’s September was care child, JD, January 2003. Her third was born on 2004, while Clark still working respondent. was with Thompson, When Jill a caseworker with the Binogii Agency, began working respondent Placement with July 2004, JL, SD, three and JD —lived with children — wraparound program Frazier testified that the works with families multiple agencies from who receive services to coordinate those services. DuFresne, the father of SD and and Justin supervise Respondent and DuFresne failed to JD. years supervis- old, children; instead, JL, then five was ing younger siblings. SD wandered into road his Thompson multiple and Clark tried times. Caseworkers remedy problem. on this Clark even installed latches out. so that the children could not run the front door gamut poor the home “ran the from The condition of filthy.” Thompson housekeeping Clark, Like de- presence cigarette on the floor and the scribed choking butts young children. hazards manage Respondent her finances and never couldnot “payee” managed respondent’s sought employment. A by paying money from finances her bills with security disability payments respondent’s social giving respondent weekly Re- then allowance. $50 spondent purchased that cost $30 rent-to-own furniture diapers and other a week. She could not afford or $35 necessary items. Thompson
Despite Clark, efforts of the extensive children removed from home were again time, tribal At that JL became a ward of the 2004. grandmother, again placed his Lois court and was *7 2004, JL’s Plank. In November the trial court awarded Tony physical of JL and father, Plank, full legal respondent Tony and Plank shared cus- awarded unsupervised tody. granted respondent The court also rights. and JD were returned to visitation After SD provided respondent’s Thompson care, and Clark ser- they keep home, in her but in an effort to them vices night again in the at and were were observed street August in 2005. removed respondent’s 2005, in she Clark case
When
closed
provided
she could offer “without
had
all the services
respondent
staying
opined
had not
there
She
24/7.”
In the trial court weekly parenting allowing time, her motion for pervised unsu- July 2007, however, visitation with JL. petitioned respondent’s parental terminate DHS rights respondent’s to JL on the basis of “children’s protective history” beginning September on service 2 Respondent appealed the court’s termination order. The order tribal 9, 2009, January was the Sault Ste. Marie Tribe of vacated on Appellate Chippewa That court Indians Court. court found the lower erroneously allegations against respondent and considered all the both DuFresne, father, deciding the children’s Justin when to terminate respondent’s parental rights, though estranged even the two were at the proceedings. time of termination The matter was remanded for the proofs appropriate lower court to “take such as it deems as to the fitness order, any, [respondent] ... and determine what further if should alone rights regard [respondent].” be entered with parties disposition no documentation of the tribal court’s have of the matter on remand. Plank, Tony partner Michael current Plank’s brother, biological is BP’s father. *8 Opinion op the Court 2000, specifically citing the termination of her rights SD, JD, and BE4The DHS filed a supplemental petition 20, on August 2007, alleging that proceedings to terminate Michael Plank’s parental rights to BP were pending. The supplemental petition also alleged that Michael Plank had history of physically abusing and neglecting two other addition, children. petition provided: Cultuarlly
8. appropriate [sic] services were [respondent] years, including Prevention, CPS, over six Wraparound through Services County; Mackinac Pro- Services, services, tective foster prevention case through Tribe, [Sault Marie] Ste. through CPS services Chippewa County DHS through and CPS services Children’s Aid in [Respondent] Canada. partici- has also pated in the Program times, Families First Wrap- three Family Continuity around and through [Sault Ste. Tribe, Parenting Marie] Classes [Sault twice with Ste. Tribe, through Marie] once Strong [the Chil- Families/Safe Program], dren through and once the Indian Outreach Program. Although these services were offered and some- complied times, what [respondent] with at continued to neglect children, abuse and her which rights led to her being terminated. supplemental Both the initial petitions termination cited MCL
722.638(l)(b)(i), provides: which (1) department petition The shall submit a for authorization 2(b) chapter 288,
the court under section XIIA of 1939 PA MCL 712A.2, if 1 following apply: or more of the (b) department The determines that there is risk of harm to the following child and either of the is true: (i) parent’s rights to another child were terminated as a 2(b) proceedings chapter result of under section XIIA of 1939 PA 712A.2, MCL or a similar law of another state. Mich 300 Opinion Court According she [respondent], receives Social Secu-
9. *9 Disability having syndrome. rity fetal alcohol Ac- due to Organization of Fetal Alcohol cording to the National life-long majority persons with FAS have Syndrome, the attention, memory, problem learning, and difficulties with solving. also cited the criminal his- supplemental petition
The Plank, including and Michael re- respondent tories of convictions 2005 2006 misdemeanor spondent’s and while and an impaired aggra- a motor vehicle operating 2005 “from a bar stemming assault conviction vated incident,” August guilty Michael 2000 well as Plank’s also felony charges. petition ob- plea to assault Tony had been of third- that Plank convicted served criminal conduct and incarcerated.5 Re- degree sexual allegations petition. denied in the spondent Frazier, trial, Clark, Thompson and At caseworkers they agencies services and their described extensive They respondent from to 2005. testi- provided services, that, failed despite respondent fied these On of her adequate parent. expe- an the basis become did believe respondent, rience with Clark not that JL could care for full-time. appropriately that of respondent’s parental termination opined She as an Testifying was JL’s best interests. Indian rights 1912(f),6 under 25 stated that expert VanLuven satisfied active and reasonable efforts had she was that Tony parental rights May Plank’s JL on The trial court terminated 13, 2008. 1912(f) provides: rights may be ordered such No termination of determination, by supported
proceeding in the of a evi- absence doubt, beyond testimony qualified including dence a reasonable witnesses, expert continued of the child that the parent or Indian to result in serious emotional custodian physical damage or to the child. In re JL been respon- termination of parental rights dent’s and respondent’s custody that JL would result physical serious emotional or dam- age to him.
Respondent testified that she lived in “a little cozy log house” with Michael Plank recently and she had completed substance abuse counseling. She had also vol- untarily and attended completed parenting classes offered by the view, tribe. her had she learned from the parenting “safely classes how to raise today’s a child in society.” She also testified she visited JL as much as possible, at least twice weekly, holidays celebrated with him. She testified that Michael JL Plank and had a good hunted, relationship fished, that they played together. Respondent denied that Michael had Plank ever *10 been however, violent with her or JL. She acknowledged, that Plank Michael had been of after convicted assault mother other of his children him of being accused violent. Respondent offered to do necessary whatever was to continue her relationship with JL. She was concerned that if parental rights her were terminated she would have to “suck Lois in up [Plank] order in stay [JL]’s forever life.” cross-examination,
On that she respondent admitted had not worked or sought work four She years. security received social benefits because had been she diagnosed fetal syndrome. with alcohol She stated that “[t]hey” she disability incapable believe had a and was of working. Although acknowledged possible she a learning disability, she herself of capable believed work- ing. Respondent her of acknowledged oper- convictions ating vehicle impaired motor while and aggravated assault.
Eight-year-old JL that spending testified he liked usual,” time with and it was respondent “just explaining that it was “kind like when with my of I’m 483 Mich Opinion the Court
Grandma, He being person.” a different except with said he would like respondent and and loved missed her, also that it was time with but said spend more with he would like to live difficult to answer whether grandmother. his He living her because he liked with and had liked time with Michael Plank spending also no fear of him. Gary Matheny had counseled therapist
Addictions eight Respondent months. respondent weekly about and sober.” He and had was now “clean skills, including proper the need for parenting discussed to avoid in the household and need structure Respondent’s inability and drinking, drugs, fighting. along “significant her others” had caused get with had been raised an many problems. Respondent child, from as a family, had been taken home alcoholic as an unhealthy relationships had as well early believed, however, that she early pregnancy. Matheny “[vjastly” background had overcome those influences. syndrome alcohol symptoms He saw no fetal symp- possibly but believed she suffered respondent, [ajlcohol [ajffects [sic].”7 of “[f]etal toms 7 According Syndrome, Organization to the National on Fetal Alcohol (FAS) syndrome physical “is a and mental birth defects fetal alcohol set during pregnancy.” that can result when a woman drinks alcohol her It deformities, damage, growth “is characterized brain facial deficits. liver, common, Heart, kidney defects also are as well as vision and hearing problems. learning, FAS have Individuals with difficulties attention, problem solving.” Spectrum memory, and “Fetal Alcohol (FASD) describing range of effects Disorders is an umbrella term *11 during pregnancy. can occur in an individual whose mother drank alcohol mental, behavioral, physical, learning may These effects include and/or lifelong encompasses possible implications.” FASD the disabilities effects,” popularly term “fetal which “has been used to describe alcohol alcohol-exposed does meet the full individuals whose condition not diagnosis.” Organization criteria for an FAS National on Fetal Alcohol (accessed Syndrome, FAQs <http://www.nofas.org/faqs.aspx?id=9> June 2009). Opinion Court The trial court terminated respondent’s parental rights to JL. It found that had DHS established 712A.19b(3)(i)8 grounds for termination under by MCL and convincing clear evidence by opinions presenting and orders of the Sault Ste. Marie Tribe of Chippewa Indians Tribal terminating Court respondent’s paren- rights siblings. tal to JL’s The court noted that termi- nation those was cases based on sections of the tribal 712A.19b(3)(c)(i) “virtually code identical” to MCL and (ii) (g).9 noted It further opinions those “dis- 712A.19b(3)(i)provides: MCL may parent’s rights The court terminate to a if child finds, evidence, by convincing
the court clear and 1 or more of the following: (i) rights siblings Parental to or more of the child have been neglect physical terminated due to and chronic serious or or sexual abuse, prior attempts parents to rehabilitate the have been unsuccessful. 712A.19(3) provides, MCL part: in relevant may parent’s parental rights The court terminate a ato child if finds, evidence, by convincing the court 1 or clear more of the following: (c) parent proceeding brought was a in a under chapter, days elapsed this 182 or have more since the issuance of order, dispositional court, by an initial and the clear and convinc- ing evidence, following: finds either (¿) adjudication The conditions that led to the continue to exist and there is no reasonable likelihood that the conditions will be considering age. rectified within a reasonable time the child’s (ii) Other exist that conditions cause the child come within jurisdiction, parent the court’s has received recommendations rectify conditions, those the conditions not been have rectified parent hearing after has and a received notice *12 Mich 300 483 Opinion of the Court and the that had been services cussed the from Respondent gained by any lack of benefit apparent found insufficient Next, the trial court those services.” not in the was that termination to conclude evidence 3.977(F). the Finally, child. MCR interests best of MCR requirements that the concluded court 3.980(D)10 its The summarized met. court had been as follows: reasoning 1) previous services and finding the is based on:
This the likelihood of raises from same which of benefit lack 2) injury; length of time physical form of serious some Respondent’s home residing outside the been the child has requiring result in damage that would the emotional and 3) testimony Respon presented that plan; reunification Respondent’s of lack was not due lack of benefit dent’s 4) ability; Respondent’s maturity, but lack of rather vehicle while operating a motor conduct of most recent alcohol.[11] impaired due to rectify opportunity the condi- given a reasonable and has been the conditions will tions, likelihood that there is no reasonable considering age. the child’s a reasonable time be rectified within intent, provide proper regard (g) parent, fails to The without expectation custody and there is no reasonable for the child care or custody provide proper parent care and be able to will considering age. child’s time within a reasonable 1912(f) 3.980(D) language to that of 25 USC similar MCR contains provides: required Rights. to the In addition Termination of Parental 3.977, parental rights parent of an findings of a under MCR there is also evidence not be terminated unless Indian child must doubt, testimony qualified expert including beyond a reasonable witnesses, rights contin- be terminated because should custodian will the child or Indian ued damage physical child. emotional or result in serious “active specifically the ICWA’s not address trial court did 1912(d). requirement, 25 USC efforts” Respondent appealed, and the Court Appeals af- firmed. A majority concluded that the trial court did not (1) err clearly when it determined that the statutory ground 712A.19b(3)(i) for termination in MCL had been (2) established by clear and convincing evidence, termi- nation was clearly not contrary to interests, JL’s best *13 (3) efforts had been made to provide services designed to prevent (4) the breakup of respondent’s and family, the proved DHS had beyond a reasonable doubt that respondent’s continued custody was likely to result in serious emotional physical or damage JL, 25 USC 1912(f). The appeals panel unanimously agreed that the trial court properly denied respondent’s request for a jury Lee, trial. supra, slip op at 5-10.
Judge GLEICHER dissented from the majority’s conclu- sions that the DHS had satisfied the “active efforts” requirement ICWA, 1912(d), and that the record established beyond a reasonable doubt that respondent’s continued custody was “likely to in result serious emotional or physical damage child,” to the 25 1912(f). Lee, USC supra, slip op (GLEICHER, J., at 4-11 concurring and part dissenting part.) granted We respondent’s application for leave to appeal to consider the proper interpretation of 25 USC 1912(d) (f) of the ICWA.12 parties We directed the to address (1) 1912(d) whether the term “active requires efforts” in 25 USC showing there have been recent rehabilitative efforts designed particular the family; of that Indian (2) “beyond whether the a reasonable doubt” standard of 25 1912(f) requires contemporaneous evidence that the contin-
ued
of the Indian child
or Indian custodian
physical
to result in
damage
serious emotional or
parental rights may
Lee,
child before
be
[In
terminated.
re
(2008)
1116,
omitted).]
(emphasis
Mich
1116-1117
II. THE INDIAN in 1978 in response the ICWA Congress enacted consequences rising in the mid-1970’s over concern children, families, of and Indian tribes Indian Indian separa- practices resulted in the child welfare abusive their families large children from numbers Indian tion placement, through adoption or foster care tribes [Mississippi Choc- usually Band in non-Indian homes. 32; 1597; Holyfield, 109 S Ct v 490 US taw Indians (1989).] L Ed 2d 29 relationship between
“Recognizing special and their members and the Indian tribes United States Congress People,” to Indian responsibility and the found:
(3) that is more vital to the that there is no resource integrity of Indian tribes than continued existence and United States has a direct children and that their interest, trustee, are protecting Indian children who eligible membership in an Indian of or are members *14 tribe;
(4) percentage fami- alarmingly high of Indian that an unwarranted, removal, up by often lies are broken by public private from them nontribal and their children alarmingly high percentage of such agencies that an adoptive placed in non-Indian foster and children are institutions; homes and
(5) recognized States, exercising jurisdic- their through custody proceedings admin- tion over Indian child bodies, judicial recognize have often failed istrative and people of Indian the essential tribal relations prevailing in Indian commu- social standards cultural and 1901.] [25 nities and families. “mini- the ICWA to establish
Accordingly, it enacted of Indian Federal standards for the removal mum . 25 USC 1902. from their families children In re JL The ICWA sets forth requirements which states child,” must when an “Indian comply defined act, 1903(4), 25 USC in a custody involved “child which includes a proceeding,” proceeding to terminate 1903(l)(ii). rights, 25 USC If parental state or federal “provides higher law standard of protection to the rights parent of the or Indian custodian of an Indian ICWA, child” than the the court must apply higher or state federal standard. 25 USC 1921. provides, part: USC 1912
(d) Any party seeking placement to effect a foster care of, to, rights or termination of an Indian child satisfy under State law shall the court that active efforts provide have been made to remedial services and rehabili- programs designed tative family proved
Indian and that these efforts have unsuc- cessful.
(f) parental rights may No termination of be ordered in proceeding determination, such in the sup- absence of a ported by beyond doubt, including evidence a reasonable testimony qualified expert witnesses, that the continued parent of the child or Indian custodian is likely to physical damage result serious emotional or the child. 712A.19b(3)(i)
III. THE ADOPTION AND SAFE FAMILIES ACT AND MCL Adoption (ASFA), The and Safe PL Families Act 105-89, requires Stat that states undertake “preserve “reasonable efforts” to and reunify families” as 671(a)(15)(B). funding. a condition of federal 42 USC ASEA proof excuses of reasonable to reunify efforts when “the parental rights of the to a been sibling have 671(a)(15)(D)(iii). involuntarily[.]” terminated *15 712A.19a(2)(c) MCL codifies both “reasonable efforts” Mich 300
Opinion Court requirement and the to that requirement exception when place. Additionally, a termination has taken MCL prior 712A.19b(3)(i), which the state law basis for the was here, respondent’s parental rights termination of makes involuntary rights termination of to a child’s parental sibling ground a for termination. “minimum
Because the ICWA establishes Federal standards for the removal of Indian children from their families,” 1902, and nothing 25 USC the ASEA ICWA, congressional supersede indicates a intent to analogues neither the ASEA nor state its law relieve the requirement, DHS from the ICWA’s “active efforts” 1912(d), beyond or from the burden of establishing custody a reasonable doubt “that the continued by child or Indian parent likely custodian to result damage child,” in serious emotional or physical 1912(f). 25 USC
IV STANDARD OF REVIEW
involving
This Court reviews issues
the application
and interpretation
questions
of the ICWA de novo as
Fried,
535, 538;
In re
266 Mich App
law.
A. COURT dis- urges adopt Judge us to Respondent GLEICHER’s and plain in Roe14and Lee that both senting view purpose of “active” and the ordinary meaning “In temporal requirement: of the ICWA to a object point efforts’ view, Congress’s use of the term ‘active my clearly intent that and convinc- signals petitioner its of current rehabilita- ingly provision demonstrate parent to reunite an Indian with designed tive efforts that is the of the termination particular target child Lee, (GLEICHER, J., at 6 proceedings.” supra, slip op in dissenting part) (emphasis in concurring part 13 authority point, Although on this our research disclosed no federal See, reasoning. e.g., employed In states have similar several of our sister MS, W, 859, 864-865; (2008); 55 In re 624 re Walter 274 Neb 744 NW2d 2001); G, 700, 709-712; (ND, App 4th In re Michael 63 Cal NW2d (1998). Rptr Cal 2d 642 14 Roe, proper Appeals panel considered the the same Court 1912(d). requirement interpretation of 25 USC of the “active efforts” There, here, disagreed Judge Judges Markey and Whitbeck however, Roe, meaning “active efforts.” In about the Gleicher Appeals judgment and remanded vacated the trial court’s order Court of require findings regarding the “active efforts” the case for trial court Roe, supra at 91. ment. 483 MICH 300
original). Judge that, GLEICHER concluded in light of the purposes requirement ICWA its prove beyond “state that ‘the reasonable doubt con- custody’ tinued of the Indian child ‘is physical to result serious emotional or damage ” child,’ “active a temporal efforts” includes 1912(f) Id., component. quoting (emphasis omitted). of Appeals majority Court in this case relied on opinion
its more extensive Roe. There it acknowl- “ edged may ‘active’ be ‘characterized by current *17 ” use,’ Roe, activity, participation 102, or at supra quoting Random House Webster’s College Dictionary (1997), agreed majority jurisdictions but with “the of that have addressed this that issue” concurrent “active necessarily efforts” need not be shown in each proceed- Roe, ing, that, at 102. The supra majority concluded 1912(d)] context, “[c]onstrued only requires [25 ‘that timely steps and affirmative be taken ... to avoid breakup the of Indian families possible by whenever providing designed remedy services the problems might which lead to the parent-child severance of the ” (citation omitted). relationship.’ Id. at 106 Services connection with a prior proceeding, or “ ‘formal or informal efforts to a remedy parent’s defi- ” dependency ciencies before proceedings begin’ may Id., meet the “active requirement. efforts” Ire quoting re (Colo 2007). KD, 634, 155 P3d App, The Court of Appeals majority thus a employ “decline[d] definition of that temporal requirement.” Roe, ‘active’ stresses a Instead, supra at 106. it defined “active efforts” as the of opposite “passive Finally, efforts.” Id. at 106-107. it majority jurisdictions “note[d] that of interpret ‘active efforts’ as a imposing higher burden than vari- ous states’ requirement, ‘reasonable efforts’ and that required numerous courts have pro- service Opinion op the Court relevant remedial and rehabili- culturally ‘provide vider ” family.’ of the tative services to omitted). (citations Id. at 108
B. ANALYSIS
crux
majority
with the Roe
that the
of
agree
We
affirmative,
requirement
undertaking
efforts”
“active
efforts:
opposed
passive,
up
plan
a
is drawn
and the
“Passive efforts are where
develop his or her own resources toward
client must
efforts,
of
bringing it to fruition. Active
the intent
Act,
takes the
drafters of the
is where the state caseworker
through
steps
plan
requiring
than
client
rather
instance,
plan
performed
be
on its own. For
rather
that the
job, acquire
housing,
requiring that
client find a
new
than
relationship
perceived to
terminate a
with what is
be a
influence,
boyfriend
the Indian Child Welfare
who is a bad
help the
require
Act
the caseworker
client
would
necessary
developjob
parenting
to retain
skills
107, quoting
Dep’t
v
[Id.
her child.”
at
AA Alaska
1999).]
256,
(Alas,
Services,
Family & Youth
982 P2d
require
that “active efforts”
more than
agree
We also
Roe,
under state law.
required
the “reasonable efforts”
B,
450, 471;
re Nicole
175 Md
citing In
App
at
supra
(2007),
J v Alaska Dep’t
Active Efforts that the caseworker take a more pro-active approach actively support with clients and complying plan client in with service rather than requiring plan performed by the service be the client alone. Following examples appropriate are Active Efforts that starting reference; point could serve as a in collaboration with the child’s Tribe: Taking appointments assisting
a. clients to initial process with the intake OR Transporting client, arranging transportation b. appointments child care OR family c. If the client is isolated from other members may position provide positive support, who be in a provide help begin worker is to families conver- family sations with those members. Assisting completing applications.
d. Providing phone availability.
e. culturally appropriate DHS is to make active and efforts provide programs remedial services and rehabilitative designed prevent family theof Indian before any policy consideration for removal can be made. DHS requires prior Active Efforts to court involvement. Active Efforts must documented to the be court and Tribe. (June Manual, [Childrens Foster Care Indian Child Welfare 1, 2007), pp 5-6.][15] 15Although respondent’s appendix, included this version longer parties
manual is no in effect and is not available online. The also provide did not the version of the manual in effect before June 2007. manual, The current version of the DHS’s Native American Affairs (October Glossary 1, 2008), 1-2, pp Native American Affairs available at *19 Opinion the Court addition, guidelines Affairs’ the Bureau of Indian explain prevailing efforts shall take into account
[t]hese [active] way of life of the Indian cultural conditions and social and They and use the available child’s tribe. shall also involve tribe, family, the Indian social resources of the extended givers. [Bureau of agencies and individual Indian care service Courts; Affairs, Indian Child Indian Guidelines for State (accessed <http://www.mfia.state.mi.us/olmweb/ex/nag/glossaiy.pdf> June 30, 2009), explanation: provides a similar By definition, more intensive than “reason- active efforts are thoroughly require assist able efforts” and the worker to necessary family accessing participating that are in services culturally appropriate rehabilitative in nature. and remedial and making might a Example: be the worker Reasonable efforts services, engage family attempts services and referral for might consulting with the tribe but active efforts be the worker services, attempts making regarding planning, a case referral to family providing transportation to the engage in services services. to): (but Examples are not limited of active efforts include (cid:127) particular provid- Making appointments for the client with ers.
(cid:127)
appointments.
Providing transportation
such
to and from
(cid:127)
client(s)’
Closely monitoring
participation in such services.
(cid:127)
placement
Continuing
ongoing
with
efforts to secure
1912(d)].
[25
Preferences
the ICWA Placement
Manual, Supportive
Services
See also the DHS’s Childrens Protective
1, 2009),
1,
<http://www.
Services,
(May
p
available at
Y14-2
CFP
2009)
(accessed
30,
mfia.state.mi.us/olmweb/ex/cfp/714-2.pdf>
June
(“Reasonable
attempted
prevent placement
in all
must be
efforts to
imminent risk of harm without
the child is not at
situations
which
requires
Act
active
Welfare
removal from home. Note: The Indian Child
and their families.
American Indian children
efforts be
sufficient.”).
are not
Reasonable efforts
In this the fundamental disagreement services, is not about the nature of the required but Indeed, about the timing those services. acknowledges that the DHS and the tribe provided past, argues active efforts but that 25 USC 1912(d) requires efforts, current active which the DHS failed to did provide because it not offer services in connection parental with the termination of her rights to JL. We decline to read the word “current” into 25 1912(d). USC This statutory language does not impose a strict temporal component for the “active efforts” requirement. say
This is not to provided active efforts in the past distant are sufficient. Although we decline to arbitrary beyond establish an threshold which services satisfy will not the requirements of 25 USC we direct trial courts to carefully timing assess the services provided parent. to the Services provided too long ago to be relevant a parent’s current circum- stances not by do establish clear and convincing evi- made, dence that active efforts have required by been as 1912(d), and raise a reasonable doubt under 25 Manual, The most recent version of the DHS’s American Native Affairs (March Management, 1, 2009), 1,p Indian Child Welfare Case NAA 205 (ac available at <http://www.mfia.state.mi.us/olmweb/e3j/NAA/205.pdf> 30, 2009), cessed June states the “worker must collaborate with a immediately” child’s tribe and that the child’s tribe will define active efforts department.” Although for the this version of the Native American Affairs yet during proceedings case, leaving Manual was not in effect in this it to the child’s tribe define “active efforts” is consistent with the ICWA’s purpose preserving preventing Indian families and unwarranted removal and termination. See 25 USC 1901. re JL 1912(f) “likely continued about whether to the damage physical or result in serious emotional judged must be of the services timing child.”17 termination seeking grounds to the reference situation. current parent’s to the their relevance must active efforts decline to hold that Similarly, we who to the child relation always provided have been proceeding. of the current termination subject is the made and the the efforts is whether Again, question other parent’s with the in connection services current situation parent’s are relevant to the children assessment they a current permit so that and abilities is the it to the child who pertains fitness must The evidence proceeding. of the current subject that the doubt” “beyond a reasonable satisfy the court likely to that child “is custody of continued parent’s damage physical emotional or result in serious *21 1912(f). by 25 USC child,” required Roe, Appeals courts, including the Court Some the “active that “futility explain test” adopted a have cases with- be met certain may requirement efforts” Services, 18 Dep’t & Social example, v Alaska Health in CJ For unwilling, unable, perhaps (Alas, 2001), the father was P3d 1214 they from their mother removed at the time were care for his children they were in only sporadic with them while contact He maintained 1998. sought in By the time termination was Id. at 1216. foster care. changed. presented however, He unrebut- had the father’s circumstances do and was able to so. care for his children that he wanted to ted evidence travel, job required quit him to was a that that he had He testified caring The social services relocating, his older child. was for regarding the father’s virtually department presented no evidence Supreme Court con at 1219. The Alaska present Id. circumstances. cluded: beyond a to determine requires a court be able ICWA that parent is placement the children with the
reasonable doubt leaves damage. in this case The evidence to result in serious present circumstances uncertainty [the father’s] about much so omitted).] (citation finding [Id. cannot be sustained. such a 483 Mich provision KD, out the of additional services. the child had example, been removed from his parents times, in 2001 and 2004. Both the parents completed plans, their treatment and the child was returned to them. The termination at petition issue was filed after the respondent father was arrested in 2005 and the KD, mother was incarcerated. supra at 636. In affirm- ing the trial court’s decision to terminate the father’s parental rights, the appellate rejected court his argu- ment that the active part efforts must be of a treatment plan part offered as of the “dependency current pro- ceedings.” Id. at It 637. held that the “active efforts” requirement may be met “formal or informal efforts to remedy parent’s a deficiencies before the dependency proceedings begin”: words, may
In other parental rights court terminate offering without additional services when a social services department expended substantial, unsuccessful, has but years efforts over prevent several family, and there is no reason to believe additional treat- ment would rights. termination of [Ml The court noted that extensive services had pro- been vided to during the father prior two dependency cases and concluded that the supported record the trial findings court’s that it would have been futile to offer additional Citing services. Id. KD and other sister-state authority, the Court of Appeals majority in Roe adopted futility Roe, a test. at supra 103-106. decline
We adopt futility KD, test. In the court concluded that additional services were not required *22 because it saw no indication that additional services prevent would the need for termination. The ICWA obviously does not require the provision of endless efforts, active so there comes a time when the DHS or Opinion Court of the without termination pursue may justifiably tribe the does not futility A test services. additional providing dissenting addition, we share In concept. this capture test, “the that, a such a under concern Judge GLEICHER’s applying [25 avoid may altogether circuit court 1912(d)] that additional services deciding by simply ” (GLEICHER,J., Roe, at supra be ‘futile.’ would dissenting part).18 concurring part of policy DHS’s apparent note that further We a for termination petition when no services providing termination will prior on a rights is based parental of the ICWA.19 standard heightened not withstand child” an “Indian involve proceedings When the tribe ICWA, the DHS or meaning within been provided if have must, even services thorough a and contem- conduct past, in the parent’s and the those services review of poraneous to those services. response thereof in or lack progress prevent to efforts have been Only if active it does not family, and of the Indian of additional services the provision appear termination, may the need for to provid- without termination pursue or the tribe DHS services. ing additional not decide reject that we need contention Justice Weaver’s We case, respondent’s futility adopt In this we address test.
whether interpreting applying Appeals argument erred that the Court requirement concluding had been the “active efforts” the ICWA. majority intractable met, Appeals “Because of the stated: the Court of parenting inability appropriate tech [respondent’s] learn nature of [respondent] would have any rehabilitate niques, efforts to additional Lee, supra, slip op largely at 9. futile.” been respondent in provide services that she did not Frazier testified the referral pertaining to JL because referral with this latest connection rights her other on the termination was based circumstances, that, the state under those She testified three children. provide not services. does
328 483 Mich op Opinion the Court C. APPLICATION Although the trial did court not use the words “active efforts,” it took into account the services that were respondent. noted, to It example, respondent had attended parenting classes and that “one of the workers ... even provided latches for the doors to prevent children from getting out into the street and playing The unsupervised.” court also stated the caseworkers’ testimony concerning respon- inability dent’s to benefit from services “was supported by specific examples of Respondent being unable to apply she principles taught was during those services.” clearly evidence and convincingly establishes that the DHS and the tribe made active efforts to provide services designed the breakup of respon- family. Indeed, dent’s the evidence shows that services designed preserve respondent’s family were provided a six-year period over from JL’s birth in through 2005, before the termination of her parental rights to SD and Frazier, Clark, JD. Caseworkers and Thompson and caseworker supervisor VanLuven testified simi- lar fashion about respondent’s failure improve her parenting skills.
Respondent received services from several different programs, many of which were tailored to her young age particular needs. Various caseworkers who spent time in her home tried to teach her to become an adequate parent. Frazier testified that the wraparound program normally provides services for 6 to months. Respondent, however, wraparound received services for years, three from 1999 to respondent when moved to a reservation and jurisdiction. the tribe took Frazier testified that “different methods” “in were used order try to teach [respondent] ... because of age her and .. . her development.” Frazier said that “there was Opinion Court ser- adjust used to ... of different methods a lot [sic] still they just fit for her. But to make them vices order house at successful.” Frazier was were not skills, respon- but parenting to teach her every week incident, respondent to learn. one dent did not seem JL, sitting because who was and cried screamed had the solid food chair, not eat high would failed to understand Respondent in front of him. put *24 milk, let homogenized too to drink young that JL was home respondent’s Frazier at eat solid food. was alone “And things.” her kinds of teaching “those every week house next week and the come back the then we’d never, it never seemed filthy. just ... It be would take.” in 2002. Re- respondent with began working
Clark wraparound pro- under the received services spondent SD, who the removal attempt prevent in an gram time, respondent’s from a few months old at was children were respondent’s After that reports home. house street, respondent’s Clark went to found in the children could not the door so the put latches on on respondent with away. Clark also worked wander benefits, security her for social budgeting, helped apply her finances once manage someone to arranged for respon- Clark closed those benefits. When she obtained all provided felt that she had case in she dent’s 24/7,” there but staying could “without the services she Clark improvement. no significant made respondent could think every service she provided that she testified done. else could have been did not know what of and parenting with respondent’s problems Clark believed from a from services stemmed failure to benefit and her maturity. Clark than from a lack of ability, rather lack very much her children respondent loved testified ability, her she would that, if it had been within Mich children, herself in a care her put position have impulsiveness but her caused difficulty. Although Clark acknowledged that she had not services to JL, connection with the case respondent involving she said that she had seen and worked respondent with enough parenting ability. to understand her On the basis of her did not experience, respon- she believe that dent could care for effectively JL.
Thompson similarly job testified her was to offer that respondent services so could show that she could good parent, be a but had respondent failed to do so. Despite support received, services and respondent Thompson testified that parenting and personal management did improve signifi- skills not cantly while she respondent. worked with Given her past experiences respondent, did Thompson not believe that appropriately could care for a child.
Testifying as an Indian under expert 1912(f), VanLuven was satisfied that active and reasonable efforts had been provided termination of respondent’s parental rights and that respondent’s cus- *25 tody of JL would in result serious emotional or physical damage to JL. She testified that she believed the tribe had offered respondent every possible service. While she had never met respondent home, or been in her respondent’s behavior, past including numerous in- stances of placing her children in unsafe situations and failing to supervise them led appropriately, to VanLu- ven’s assessment respondent was a “minimally adequate parent,” but not on a consistent basis.
Although they
were
in connection with
prior termination proceedings,
the services offered to
extensive,
were
respondent
recent,
relatively
and tai-
lored to meet her specific needs. Over
years,
several
They
home.
tried to
respondent’s
caseworkers came to
skills,
financial
without suc-
parenting
teach her
and
are
demonstrates that these efforts
cess. The evidence
current
situation and
respondent’s
relevant
unsuccessfully attempted
abilities. The caseworkers
respondent’s poor decision-making
both
address
As further
unsafe conditions her decisions created.
below,
testimony
own
showed
explained
to make the same
choices that
poor
that she continued
receiving services. The ICWA’s
she made when she was
has been met.
requirement
“active efforts”
THE
A REASONABLE DOUBT” STANDARD
VI.
“BEYOND
1912(f)
OF 25 USC
dissent,
Relying
Judge
on
GLEICHER’s
majority
Court of
and the
argues
Appeals
next
that the
presumption
respon-
improperly applied
trial court
past
argues
unfitness based on her
conduct. She
dent’s
presumption
conclusions based on such a
fail
stan-
“beyond
a reasonable doubt”
heightened
meet
1912(f).
agree
Judge
dard of 25 USC
We
GLEICHER
“a
of unfitness
presumption
that termination based on
conduct” would be inconsis-
solely
past
on
predicated
“beyond
a reasonable doubt” standard
tent with
J.,
Lee,
8-9
slip op
the ICWA.
at
supra,
(GLEICHER,
in
dissenting
part).
in
We also
concurring
part
anticipatory
of the doctrine of
agree that
invocation
solely on the basis
parental rights
to terminate
neglect
that stan-
behavior would be inconsistent with
past
Here, however,
concerning respon-
dard.20
evidence
invocation of “the ‘well-established
rights.
dissenting
affirming the trial court’s decision to terminate
doctrine,
Judge
Lee,
“how a
Gleicher
supra,
part).
slip
took issue with the Court of
Court of
op
treats one
at Appeals
(Gleicher,
doctrine of
child is
majority
J.,
anticipatory
concurring
probative,
respondent’s parental
stated
Appeals majority’s
that,
neglect’
though
under
part
”
not
*26
dent’s conduct established that she an unfit was in parent past, and the current evidence revealed that she continued to make choices that a demonstrated maturity ability lack of to care for a child. admitted that Respondent she had been twice ar- rested and convicted of a motor operating vehicle while impaired, again once in 2005 and in 2006. She had also been convicted of assault in aggravated connection with fight her involvement in a bar in 2005. Matheny testi- fied that had been sober since he began working her, and he counseling considered his with her a He success. also testified that prob- drunkenness, lem drinking was not habitual but bouts couple, Matheny “a three times a year.” only treated her one hour weekly eight months. He had met never JL, nor had he been in respondent’s Matheny home. testified that —under the limited circumstances de- scribed by respondent’s counsel —at the home of JL’s grandmother, in a a public place, for short number of hours, or for one an day, week, or for afternoon a respondent did not a risk of harm pose Nothing to JL. testimony or respondent Matheny suggested that the evidence of unfitness —on which the caseworkers expert and Indian VanLuven based their opinion that respondent’s custody of JL would result in serious emotional or physical damage to JL —was outdated or longer no relevant.
Indeed, respondent’s testimony own established that she continued to make poor choices. She supported the caseworkers’ assessment that she was unfit to parent JL. Respondent acknowledged only that her income was determinative, another, past of how that will treat behavior is strong performance,” (majority opinion) indicator future id. at 9 (citation omitted), Judge “respondent’s past but believed that Gleicher qualify determinative,” J., concurring did behavior id. at 9 (GLEICHER, omitted). part dissenting part) (emphasis *27 disability benefits because she had been security social syndrome. alcohol She did not diagnosed with fetal from that disorder. She also be- believe she suffered work, though able to even she had lieved that she was years. in about four She sought not worked or work financially on Michael Plank. depended lived with and that of Michael Respondent acknowledged allegations resulted in against partner Plank’s violence his former admitted she left an assault conviction. She also that for housing impending tribal because of an eviction use in her home. Michael Plank had alleged marijuana in that smoking marijuana admitted connection with allegation.
Moreover, and the tribe alterna- explored the DHS that Thompson tives to termination.21 testified or agency attempted place guardianship to JL a relative, The tribal care with a Lois Plank. long-term in 2002 jurisdiction upon court released JL from its Plank, father, Tony JL’s would be agreement that custody. Tony subsequently full Plank was granted incarcerated. testified that she was afraid to Thompson by placing make a similar mistake in the future JL with putting respondent position Lois Plank and legal Thompson the child’s sole and custodian. become guardianship also testified that an earlier established termi- grandfather of SD and JD was paternal only guardian’s request. after two months at the nated Du- had allowed and Justin guardian respondent visitation, did the rules. they Fresne but not follow per- the children to Indiana without Respondent took mission, After the was ter- example. guardianship argued During parties’ arguments, guardian JL’s ad litem parental rights against respondent’s but did not advocate termination of Instead, encouraged physical custody. full-time he have “think outside the box” and consider alternatives such the court to long-term placements with relatives. Mich 300 Opinion op the Court
minated, petitioned the tribe terminate to SD and rights Thompson explained, JD. “We had . . just gone into . another case where the children year later,
were out in the road a so conditions hadn’t changed. So it was time for if termination there was no way.” other sum, testimony caseworkers’ established be-
yond a reasonable doubt that respondent failed to make progress despite the extensive services to her past. the recent She continued pose a risk of harm to her children. Respondent’s testimony did not suggest gained she had capacity take on the respon- sibilities of a full-time parent. contrary, On the her testimony indicated that she continued to poor make *28 choices that did suggest not that she had the ability to provide a safe stable home for a child. And although Matheny’s testimony respondent about positive, was he had never met JL or been in respondent’s home. Eight months of substance abuse counseling, even if benefi- cial, had not rendered respondent an adequate parent. Finally, the DHS demonstrated that respondent’s con- legal custody risk, tinued of JL a posed even if she were not physical custodian, the full-time because it left open the possibility respondent that might seek full-time custody. The did lower courts not err concluding that beyond evidence established a reasonable doubt that respondent’s continued JL custody of was in result serious emotional physical or damage to him. Respondent’s custody continued subject would further JL consequences of respondent’s choices, poor her including decision to live financially with and depend on a man assault, who had been convicted of and would JL at put risk of abuse and neglect.22 Cavanagh’s accept suggestion We analysis cannot Justice that our Rood, 73; inconsistent with this Court’s decision in In re 483 Mich
VII. CONCLUSION beyond We conclude that the evidence demonstrated respondent’s a reasonable doubt that continued “likely of JL would be to result in serious emotional or 1912(f). damage to the child.” 25 USC We also physical conclude that the extensive services provided respon- petition dent before the DHS filed this termination satisfied the “active efforts” of the ICWA. requirement 1912(d). Accordingly, judgment we affirm the the trial court’s order Appeals upholding Court terminating respondent’s parental rights. (2009). Rood, Appeals NW2d 587 In we affirmed the decision Court reversing parental rights directing the trial court’s termination of respondent opportunity participate
the trial to afford the an court proceedings. skeptical We were about the trial court’s determination likelihood, capacity a or there was “reasonable based on the conduct parent, if of the child’s that the child will be harmed he or she is returned 712A.19b(3)(j). light testimony parent.” to the home of the MCL In of the “successfully respondent girlfriend respondent his young daily basis,” child cared for ... on a we concluded that the state’s appropriate placement failure to assess the household as an “deprived objective disputed for the child the court of information on a issue crucial to the outcome.” at 117. Id. Rood, placing did contrast to which the state not even consider respondent, the child with the the caseworkers here extensive years several in an removal services to over effort Rood, suggested respon- and termination. And in the evidence that the basis, successfully daily dent had cared for a child on a while the evidence making poor respondent persisted in this case showed that the same being historically prevented choices that have her from a safe and adequate parent aon consistent basis. *29 reject suggestion Cavanagh’s We also Justice that consideration D.3(c) guidelines, Reg guideline of the Bureau of Indian Affairs 44 Fed (November 67584, 26, 1979), yield would the conclusion that the respondent’s past conditions that existed in home in the are not “suffi- 1912(f).” Here, ciently satisfy n ‘serious’ to Post at 343 9. the “ merely ‘poverty, inadequate evidence did not establish crowded or ” abuse, behavior,’ housing, non-conforming post alcohol or social see at children, specific 343-344 n but identified harms to including respondent’s appropriately supervise them. failure 483 Mich
Opinions by Cavanagh, and J. Weaver, J., JJ., Young, Markman, Hathaway, and concurred with J. Corrigan, in majority J. I concur the oconcurring).
WEAVER, V(B) in opinion except part concerning for its discussion of a I it adoption “futility test.” do not believe necessary majority for the to decide whether this Court “futility case, should in this adopt given test” necessary such a determination is not resolving issues in front of at us this time.
CAVANAGH, J. in (concurring part dissenting in I concur in full I part). parts through parts IV and V(A) (B) I majority opinion. separately write further clarify my regarding proper interpreta- view 1912(d) tion of USC and to dissent from the majority’s V(C). application of that statute this case I part further dissent from the majority’s application of 25 USC 1912(f) in I part VI. would reverse the judgment of the
Court Appeals, vacate the order terminating respon- JL, dent’s parental rights to and remand this case to the trial court for proceedings. further 1912(d)
I. “ACTIVE EFFORTS” AND 25 USC 1912(d), Under 25 USC the party seeking to terminate parental rights satisfy court, must clear and con- vincing evidence, that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent family of the Indian that these efforts proved have unsuccessful.” This Court whether, asked the parties satisfy address order to statute, “active efforts” must be concurrent with the *30 337 Opinion by Cavanagh, J. must be tar- and whether the efforts proceeding instant subject proceeding.1 is the of the at the child who geted that the majority’s holding the fully I concur with the of these issues is “whether both inquiry relevant provided ... are relevant made and the services efforts and abilities so that current situation parent’s of fitness as a current assessment they permit subject the of the current the child who is pertains it that, although agree Ante at 325.1 further proceeding.” 1912(d) that strictly require does not text of 25 USC the or be concurrently proceedings with the efforts be made proceed- of the subject child is the directed at the who the efforts are still subject and the of ing, timing the require- the determining whether aspects relevant 1912(d) (f) are met. Ante at 324. ments of 25 long too majority, “[s]ervices by As stated circumstances parent’s to a current ago to be relevant convincing evidence establish clear and do not made ....” Ante at 324-325. ‘active efforts’ have been in connection with one Similarly, presented services determining always not be relevant child will child. I also to care for a different abilities parent’s explanation qualita- majority’s concur with the active, as providing with associated requirements tive rejection “futility its of a efforts and opposed passive, Ante at requirement. to the “active efforts” exception” 321-324, 326-327. majority’s articulation agree I
Although 1912(d) I from its dissent requires, what 1912(d) I here because would of 25 USC application standard, party that, in order to meet this hold par- evidence of the present must seeking termination minimum, must, be dispute at a no the efforts There was subject proceeding. parent of the targeted at the who is the Mich Opinion by Cavanagh, J. ability
ent’s current circumstances and child who is the also subject proceeding.21 would hold that the assess and evidence of party provide must efforts to the current relevancy past family’s evidence, and needs. such I do circumstances Absent *31 the termination party seeking clearly not see how could convincingly that, by majority, and show the required as past prevent breakup family efforts to the of the “are relevant to the current and parent’s situation abilities” “permit are sufficient to a current assessment of parental pertains fitness as it to the child who is the subject of the current Ante at proceeding.” 325. case, termination,
In this the party seeking the (DHS), Department of Human Services did not present regarding respondent’s evidence current circumstances and did not relevancy past assess the of its efforts to current respondent’s by circumstances. As summarized majority the opinion, present ample the DHS did evi- dence that there past had been extensive efforts DHS, tribe, designed that were to family and evidence that those efforts had been largely unsuccessful. Ante at 328-331. The not, however, present DHS did regarding evidence whether these past efforts were relevant to respon- dent’s and JL’s current circumstances. The casework- that, ers who testified at trial admitted a year and a longer half or they before the termination proceeding, had respondent, not observed or evaluated respondent’s situation, home parenting respondent’s ability, or re- spondent’s interactions with JL.3 Given that the DHS parent presents This would be true even if the no evidence that the parent’s parenting changed. circumstances or abilities have It is the party seeking past burden of the termination to show that efforts are parent’s relevant to the current situation. 3 Regina Frazier, caseworker, the DHS testified the DHS had not provided respondent targeting to services JL since 2004 and had not re JL Opinion by Cavanagh, J. did respondent’s not evaluate current circumstances or JL, ability parent agency current to also could not past have evaluated whether the efforts of the DHS and the tribe were relevant to her “current” circumstances abilities, majority purports require.4
Accordingly, light of the DHS’s failure to assess the relevancy past services to current cir- JL, ability cumstances or I dissent from the majority’s result. I hold that it is possible would not determine agencies’ past whether the efforts “are rel- parent’s evant to the current situation and abilities” such that they “permit are sufficient a current using assessment of fitness” the evidence presented by DHS this case.5 regarding any year services of her children for a and a half before hearing. agreed the termination Frazier that there had been “no services to child, [respondent] regarding reunification of her no active efforts to reunite family, particularly period this with” JL in that and stated that she did not know how would react to services at this time. *32 Clark, Penny Community Family the Anishinabek Services case- worker, provided respondent testified that she had services to that were targeted managing young at a household with two children. She testified provided respondent that she had not services since had never been respondent’s home, to current and would not be able to determine respondent’s ability parent. current to Thompson, Binogii caseworker, Agency Jill a Placement testified that provided respondent’s she had not services to or visited home years hearing. for more than two termination before the Thompson supervisor, VanLuven, and Clark’s Melissa testified that provided respondent the tribe had not services since 2005 and had not specific her services to JL since 2002. 4 Instead, caseworker, according testimony agency one the moved because, directly proceedings policy, to a termination as matter of the DHS provide grounds does not services when the for termination under state law agree majority’s holding policy are “automatic.” I with the that this is inconsistent the Indian Child Welfare Act. See ante at 327. 5 that, respondent’s It is if conceivable the DHS were to evaluate present past current circumstances and evidence to the trial that its court 483 MICH 300 Opinion by Cavanagh, J. 1912(f)
II. "BEYONDA REASONABLEDOUBT”AND25 USC rights may A not be terminated “in the parent’s determination, by evidence supported absence of a doubt, . . . beyond a reasonable that the continued by parent... likely of the child the is physical damage result serious emotional or 1912(f). child.” 25 The burden of is on the proof USC 3.977(A)(1) (3). MCR party seeking termination. I respectfully majority’s dissent from determina- very high tion that the DHS met this standard here. I hold contemporaneous would evidence must be presented beyond order a court to determine or physical reasonable doubt “serious emotional result, damage to the child” is required 1912(f).6 This holding supported by the stan- dards set forth in that statute and the Bureau of Indian guidelines Affairs’ for state courts. 1912(f),
Under 25 USC stringent require- there are parent’s rights may ments that must be met before a be (ICWA). terminated under the Indian Child Act Welfare with, begin adopted “beyond To it a reasonable “beyond doubt” standard. It is well established that the circumstances, efforts were relevant and JL’s current validly requirements trial court could determine that the of 25 USC 1912(d) providing any were met without DHS further services. But evidence, resulting regardless absent that evaluation and the of how were, agency’spast agree extensive the efforts I cannot that the DHS has family shown that active efforts were made to and that those efforts were unsuccessful. majority’s This is consistent with the statement that “termination presumption predicated solely past based on a of unfitness on conduct ‘beyond would be inconsistent with the a reasonable doubt’ stan omitted). (quotation dard ....” Ante at 331 marks I concur with the also majority’s holding anticipatory-neglect that the doctrine cannot serve as 1912(f). the sole basis for termination under USC This construction of *33 purposes the statute is consistent of the Indian Child Welfare part majority opinion. Act outlined in II of the Ante at 316. Opinion by Cavanagh, J. highest may
a reasonable doubt” standard is the imposed by legislature. be As stated the United Supreme “Congress requires Court, States ‘evidence beyond a reasonable doubt’ for termination of Indian parental rights, reasoning that ‘the removal of a child parents penalty great from the [as], is a if not greater, penalty Santosky than a criminal v Kramer, 745, 769; 1388; 455 US 102 S L Ct 71 Ed 2d (1978). (1982), quoting Rep 95-1386, HR No at 22 significant This is because it demonstrates that the “stringency ‘beyond of the a reasonable doubt’ stan- bespeaks ‘weight gravity’ private dard of the society’s avoiding affected, interest interest erro- judgment convictions, neous and a that those inter- together require ‘society impos[e] ests almost ” upon Santosky, the entire risk of error itself.’ (internal omitted). Congress US at 755 citations deliberately “beyond used the a reasonable doubt” 1912(f) standard as a reflection of the weight gravity of the interest that is at stake. To hold that the standard could be met absent contem- poraneous inadequate respect evidence would afford to this determination. high
Further, the statute sets the standard that the party seeking present termination must evidence parent’s that a continued of the child is “likely physical to result serious emotional or damage I child.” would hold that under 25 USC
1912(f), consistently purposes with the ICWA “beyond standard, a reasonable doubt” a deter- physical damage mination that serious emotional or requires current, to the child is to result specific evidence. This evidence should be relevant to subject proceeding the child iswho the and the specific damage circumstances that will cause *34 Mich 300 483 342 J. Opinion Cavanagh, with the to result.7 This is consistent likely that is states: guideline Indian Affairs’ that Bureau of particular the existence evidence must show [T]he likely to result in serious in the home that are conditions damage particular who is physical child emotional or proceeding. The evidence must show the subject relationship exist and between the conditions that causal likely damage [Bureau is to result. of Indian Courts; Custody Affairs, Indian Child Guidelines for State (November, D.3(c), 67584, Proceedings, Reg 44 Fed 67593 D.3[c]) added).] 1979) (BIA (emphasis Guideline Court, I find it binding is not on this but guideline This In order to show the existence of instructive here. home, in the relation- conditions and causal particular conditions and a serious harm that ship between those result, seeking termination must party evidence of the current con- present contemporaneous Therefore, home. even if the parent’s ditions of the 1912(d) requirements “active efforts” of 25 USC could presenting met the DHS’s a current assess- be without ability par- ment of circumstances and respondent’s relevancy past ent and the service efforts to those circumstances, I do not think that the standard 25 1912(f) beyond a determination a rea- requiring or sonable doubt of the likelihood of serious emotional damage contempora- could be met absent such physical neous evidence. holding “beyond a reasonable
Despite
only of a
doubt” standard cannot be met with evidence
that,
recently expressed skepticism
Similarly, this Court
under MCL
712A.19b(3)(j),
present
convincing
even clear and
evi
the DHS could
that a child would “be
dence that
there was a “reasonable likelihood”
parent’s
[the
harmed” if returned to a
home when “no one had evaluated
Rood,
In re
73, 117-118;
lifestyle.”
parent]
Mich
763 NW2d
and his
(2009).
re JL
Opinion by Cavanagh, J.
parent’s
conduct,
past
majority opinion
nonetheless
concludes that
there was sufficient contemporaneous
presented
evidence
in this case to support terminating
respondent’s parental
rights.
majority
bases this
conclusion on
evidence of
past conduct
and current evidence that “revealed that [respondent]
continued to make choices that demonstrated a lack of
maturity
ability to care for a child.”8 Ante at
331-332.1 do not think that contemporaneous evidence
demonstrating
maturity”
“a lack of
is sufficient to meet
the “beyond
standard,
a reasonable doubt”
particularly
*35
when
in light
considered
of the stringent evidentiary
D.3(c).9
requirements
suggested by the BIA Guideline
majority
heavily
respondent’s
relies
on the “current evidence” of
operating
impaired,
2005 and 2006
convictions
a motor vehicle while
aggravated
fight,
her
respon
2005 conviction of
assault for a bar
boyfriend’s past
Strikingly, by
dent’s
conviction of domestic assault.
Rood,
comparison,
opinion
in In re
Justice CorRIGAN’slead
found it
significant
parent’s past
that none of the
convictions involved violence
against
children. The
had testified that he had reformed and was
staying
trouble,
parent’s
out of
and the DHS had not evaluated the
situation,
parent]
“[ri\o
[the
current home
so
one knew whether
was
likely
persist
in criminal behavior because no one had
him
evaluated
lifestyle.”
Rood,
(emphasis
and his
original).
In re
The DHS could when it did not respondent’s lar conditions home home, the risks would respondent’s evaluate current it child, 10-year-old to an 8- to or pose certainly The DHS could not have relationship. JL’s link showing spe- evidence a causal between presented home and a likelihood of respondent’s cific conditions serious emotional or suffering any specific physical JL contemporaneous the dearth of damage. Considering cir- evidence related to and JL’s current cumstances, stringent and the standards of 25 USC 1912(f), I respectfully majority’s dissent from the deter- “beyond mination that a reasonable doubt” stan- 1912(f) by the dard of 25 USC was satisfied evidence in this case. presented
III. CONCLUSION I respectfully majority’s application dissent from the 1912(d) (f) in I of 25 USC this case. would reverse vacate judgment Appeals, Court of the order rights, and remand terminating respondent’s parental proceedings. case to the trial court for further this Kelly, C.J., concurred J. Cavanagh, conforming convincing social behavior does not constitute clear and *36 likely evidence that continued to result in serious emotional or physical damage to the child.” D.3(c) urge I would lower courts to consider BIA Guideline when 1912(f) determining damage under 25 USC whether “serious” child is to occur.