Opinion
Docket Nos. 315510 317403 and 318475.
2014-10-23
In re McCARRICK/LAMOREAUX.
University of Michigan Law School Child Advocacy Law Clinic (by Joshua B. Kay and Vivek S. Sankaran ) and Michigan Indian Legal Services, Traverse City, (by Cameron Ann Fraser , Elaine Margaret Barr , and James Keedy ) for M. McCarrick. Brian A. Peppler , Prosecuting Attorney, and Elizabeth C. Chambers , Chief Assistant Prosecuting Attorney, for the Department of Human Services. Elizabeth A. Eggert for the Sault Ste. Marie Tribe of Chippewa Indians.
University of Michigan Law School Child Advocacy Law Clinic (by Joshua B. Kay and Vivek S. Sankaran) and Michigan Indian Legal Services, Traverse City, (by Cameron Ann Fraser, Elaine Margaret Barr, and James Keedy) for M. McCarrick. Brian A. Peppler, Prosecuting Attorney, and Elizabeth C. Chambers, Chief Assistant Prosecuting Attorney, for the Department of Human Services.
Elizabeth A. Eggert for the Sault Ste. Marie Tribe of Chippewa Indians.
Before: SHAPIRO, P.J., and WHITBECK and STEPHENS, JJ.
PER CURIAM.
This consolidated child welfare dispute involves three dockets. In Docket No. 315510, respondent-mother, M. McCarrick, appeals of right the trial court's March 13, 2013 order removing her three minor children from her home. In Docket No. 317403, McCarrick appeals of right the trial court's June 28, 2013 order removing her minor daughter from her father's care and custody. The child's father is not participating in these appeals. In Docket No. 318475, McCarrick appeals by delayed leave granted the trial court's orders removing the children from her care.
In re McCarrick, unpublished order of the Court of Appeals, entered March 28, 2014 (Docket No. 318475).
Because the trial court failed to comply with the federal Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (the Family Preservation Act), we conditionally reverse and remand for further proceedings.
.25 U.S.C. 1901 et seq.
.MCL 712B.1 et seq.
I. FACTS
A. BACKGROUND FACTS
The children in this case are of Indian heritage and are enrolled members of the Sault Ste. Marie Tribe of Chippewa Indians. On February 26, 2012, the Department of Human Services (the Department) petitioned the trial court to remove the children from McCarrick's care. The Department contended that since 2005, McCarrick had been involved in four abuse or neglect proceedings in which she had physically abused, neglected, improperly supervised, and contributed to the delinquency of her children. The Department alleged that McCarrick and the children were abusing alcohol, marijuana, cocaine, and heroin in McCarrick's home. The Department detailed the services that it had previously provided to McCarrick.
On February 26, 2013, the trial court issued an interim ex parte order authorizing the Department to remove the children from the home pending a preliminary hearing. The trial court found that leaving the children in the home would be contrary to their welfare. It also found that the Department had made active efforts to prevent the breakup of McCarrick's family, as ICWA and the Family Preservation Act required it to do before the trial court could authorize the children's removal. On February 27, 2013, the trial court adjourned the preliminary hearing to allow the parties to secure counsel and to allow a tribal representative to appear at the removal hearing.
At the March 8, 2013 removal hearing, Jennifer Sheppard, a services specialist for the Department, testified that McCarrick provided the children with inadequate parental supervision because she allowed them to abuse drugs. According to Sheppard, the Department received a complaint that McCarrick allowed her older daughter to smoke marijuana in a car that McCarrick was driving and that the daughter tested positive for marijuana. Sheppard testified that McCarrick's son also smoked marijuana in the home and was on probation for marijuana use. She also stated that McCarrick's son indicated that McCarrick's older daughter was “shooting up.” The children told Sheppard that McCarrick was unaware of or ignored their substance abuse in the home.
Sheppard testified that the son disclosed that McCarrick's friend, J. Vincent, also used drugs in the home and that he had observed Vincent's toddler holding a syringe. Sheppard believed that McCarrick's younger daughter was obtaining drugs from Vincent. According to Sheppard, the Department had investigated McCarrick 10 times in the past 4 years and had substantiated neglect allegations in 2010. McCarrick tested negative for drugs and Sheppard did not believe that McCarrick was supplying the children with drugs. Gary McLeod, the older children's probation officer, testified that the children were on probation for retail fraud, illegal entry, truancy, and violating probation. McLeod testified that McCarrick cooperated with the children's probation.
B. CHILD–REARING PRACTICES WITHIN THE TRIBE
The parties stipulated that Stacey O'Neil was an expert on child-rearing practices within the tribe. O'Neil testified that she works for the Sault Tribe and she provided McCarrick with in-home care services from September to December 2011. O'Neil detailed the services that she provided to McCarrick, including: (1) behavioral health and psychological assessments, (2) random drug screens, (3) assistance with obtaining a personal protection order against her previous partner, (4) financial assistance to obtain housing, (5) services to pay for her utilities, (6) gas vouchers for work transportation, (7) ongoing services through the Department, and (8) parenting services. O'Neil opined that these services qualified as active efforts to prevent the breakup of McCarrick's family. O'Neil testified that she successfully closed McCarrick's case in December 2011 and that she had no further contact with McCarrick.
C. THE TRIAL COURT'S FINDINGS AND CONCLUSIONS
On March 8, 2013, the trial court found that probable cause existed to assume jurisdiction over the children. The trial court found that the Department proved by clear and convincing evidence that it had made active efforts to prevent the breakup of McCarrick's family, and that continued placement with McCarrick would subject the children to serious emotional or physical damage. The trial court found that O'Neil provided McCarrick with active efforts in December 2011, and that the efforts were not successful because McCarrick actively or passively permitted the children to use drugs.
The trial court found that McCarrick's continued custody of the children was likely to result in serious emotional or physical damage to the children, and that it was dangerous to the children to remain in her care. It placed the children with the Department for care and supervision.
D. THE SUPPLEMENTAL PETITIONS AND SECOND REMOVAL HEARING
On May 2, 2013, the Department filed a supplemental petition against McCarrick. According to the Department, McCarrick maintained contact with the older daughter despite the trial court's order restricting their contact to supervised visitation. According to the Department, the younger daughter told McCarrick that she was suicidal and wanted to run away from her placement, but McCarrick did not report this to anyone. The Department alleged that the younger daughter later ran away and attempted suicide. The Department also alleged that in April 2013, Children's Protective Services workers found McCarrick's home in a “deplorable” condition and McCarrick acknowledged that drug users were living in her home.
On June 7, 2013, the Department petitioned to remove the older daughter from her father's care. The Department asserted that the child's father was incarcerated for assault and was unable to care for the child. On June 26, 2013, the trial court held a hearing on whether to remove the older daughter from her father's care. O'Neil testified about the services that she provided to the father. The trial court noted that the child was removed from McCarrick's care by a previous court order, and found that its previous determinations regarding active efforts and the potential harm to the children supported continuing their removal.
E. PROCEDURAL HISTORY
As previously discussed, McCarrick filed her initial appeals in Docket Nos. 315510 and 317403 as of right. This Court dismissed both appeals, reasoning that nondispositional removal orders are not appealable in this Court as of right. McCarrick sought leave to appeal this Court's dismissals in the Michigan Supreme Court.
In re McCarrick/Lamoreaux, unpublished opinion per curiam of the Court of Appeals, issued February 18, 2014 (Docket No. 315510), 2014 WL 667583; In re McCarrick, unpublished order of the Court of Appeals, entered September 16, 2013 (Docket No. 317403).
In Docket No. 318475, McCarrick applied in this Court for delayed leave to appeal the trial court's removal orders. On March 28, 2014, in Docket No. 318475, this Court granted McCarrick's application for leave to appeal.
On April 11, 2014, the Michigan Supreme Court vacated this Court's judgment in Docket No. 315510 and directed us to reconsider our dismissal in light of unpublished decisions from this Court:
[W]e vacate the February 18, 2014 judgment of the Court of Appeals, and we remand this case to the Court of Appeals for its reconsideration of the respondent's jurisdictional issue, in light of In re White, unpublished opinion per curiam of the Court of Appeals, issued December 19, 2013 (Docket No. 313770) ; In re McClain/Waters/Skinner, unpublished opinion per curiam of the Court of Appeals, issued December 20, 2011 (Docket No. 302460) ; and In re Klemkow, unpublished opinion per curiam of the Court of Appeals, issued September 16, 2010 (Docket No. 295488) .[ ]
The Michigan Supreme Court also vacated this Court's dismissal order in Docket No. 317403 and remanded the case for consideration of the same issue.
In re McCarrick/Lamoreaux, 495 Mich. 986, 844 N.W.2d 126 (2014).
In re McCarrick, 495 Mich. 986, 844 N.W.2d 126 (2014).
On remand, McCarrick describes the jurisdictional question at issue here as follows:
MCR 3.993(A)(1) permits an appeal by right to the Court of Appeals of “an order of disposition placing a minor under the supervision of the court or removing the minor from the home.” This Court previously dismissed Ms. McCarrick's appeals by right of removal orders issued after preliminary hearings becausethe appealed orders were not orders of disposition issued under MCR 3.973. Yet in other recent cases, this Court has decided such cases on the merits. Does MCR 3.993(A)(1) afford appeals by right of removal orders issued after preliminary hearings? [ ]
Emphasis omitted.
II. INTERPRETATION OF MCR 3.993(A)(1)
A. OVERVIEW
MCR 7.203(A)(2) provides that this Court may hear appeals of right from “[a] judgment or order of a court or tribunal from which appeal of right to the Court of Appeals has been established by law or court rule.” MCR 3.993(A)(1) provides that a party may appeal by right “an order of disposition placing a minor under the supervision of the court or removing the minor from the home[.]”
To answer the question presented on appeal, this Court must decide the meaning of the phrase “an order of disposition placing a minor under the supervision of the court or removing the minor from the home[.]” MCR 3.993(A)(1). McCarrick contends that that this phrase means that a respondent parent may appeal as of right “an order ... removing the minor from the home.” In other words, McCarrick contends that the clause “of disposition” modifies the clause “placing a minor under the supervision of the court” rather than the previous clause “an order.” Therefore, under McCarrick's reading, a parent could appeal by right either (1) an order of disposition that places a minor under the supervision of the court, or (2) an order removing the minor from the home.
For the reasons set forth in this opinion, we disagree. We conclude that MCR 3.993(A)(1) provides that a respondent parent may appeal by right (1) an order of disposition that places a minor under the supervision of the court, or (2) an order of disposition that removes the minor from the home. Thus, we conclude that the order involved must be an order of disposition. Accordingly, we conclude that McCarrick is not entitled to an appeal of right in Docket Nos. 315510 and 317403 because neither order was an order of disposition.
B. STANDARD OF REVIEW
This Court reviews de novo the scope of this Court's jurisdiction. This Court reviews de novo questions of law, including the interpretation and application of our court rules.
Chen v. Wayne State Univ., 284 Mich.App. 172, 191, 771 N.W.2d 820 (2009).
People v. Cole, 491 Mich. 325, 330, 817 N.W.2d 497 (2012).
C. RULES OF INTERPRETATION
This Court interprets court rules using the “same principles that govern the interpretation of statutes.” Our purpose when interpreting court rules is to give effect to the intent of the Michigan Supreme Court. The language of the court rule itself is the best indicator of intent. If the plain and ordinary meaning of a court rule's language is clear, judicial construction is not necessary.
Ligons v. Crittenton Hosp., 490 Mich. 61, 70, 803 N.W.2d 271 (2011).
ISB Sales Co. v. Dave's Cakes, 258 Mich.App. 520, 528–529, 672 N.W.2d 181 (2003).
See U.S. Fidelity & Guaranty Co. v. Mich. Catastrophic Claims Ass'n (On Rehearing), 484 Mich. 1, 13, 795 N.W.2d 101 (2009).
See People v. Breidenbach, 489 Mich. 1, 8, 798 N.W.2d 738 (2011).
When interpreting a court rule, we must read the rule's provisions “reasonably and in context.” We should not read court rules in isolation. Generally, this Court affords every word and phrase in a court rule its plain and ordinary meaning. But when the Michigan Supreme Court chooses a word that has acquired “a peculiar and appropriate meaning in the law,” we must construe that term according to its legal meaning. We construe identical language in various provisions of the same rule identically. And we read different rules that share the same subject or share a common purpose together as one law.
See McCahan v. Brennan, 492 Mich. 730, 739, 822 N.W.2d 747 (2012).
See id. at 740, 822 N.W.2d 747.
See United States Fidelity & Guaranty Co., 484 Mich. at 13, 795 N.W.2d 101.
See Feyz v. Mercy Mem. Hosp., 475 Mich. 663, 673, 719 N.W.2d 1 (2006).
See Robinson v. Lansing, 486 Mich. 1, 17, 782 N.W.2d 171 (2010).
See Sinicropi v. Mazurek, 273 Mich.App. 149, 157, 729 N.W.2d 256 (2006).
When interpreting a court rule, we must presume that every word has some meaning. Therefore, we must avoid any interpretation that renders any part of the court rule surplusage or nugatory. This Court must give effect to every sentence, phrase, clause, and word in a court rule. If at all possible, this Court should interpret a court rule to avoid inconsistencies.
See Hoste v. Shanty Creek Mgt., Inc., 459 Mich. 561, 574, 592 N.W.2d 360 (1999).
See id.
See US Fidelity Ins. & Guaranty Co., 484 Mich. at 13, 795 N.W.2d 101.
See Nowell v. Titan Ins. Co., 466 Mich. 478, 482–483, 648 N.W.2d 157 (2002).
D. BACKGROUND LAW
1. CHILD PROTECTIVE PROCEEDINGS
Child protection law is procedurally complex. The family division of the circuit court has jurisdiction over minors whose parents or persons responsible for their care neglect or fail to support them or whose homes are unfit places to live. A child protective proceeding typically commences with the child's emergency removal from the home, or a petition filed with the family division of the circuit court to remove the child from the home. When the child is removed from the home on an emergency basis, the Department must contact a judge or referee “immediately” to seek an ex parte placement order. Generally, if the child is taken into protective custody, the trial court must hold a hearing within 24 hours. But the trial court may adjourn the hearing for the purpose of securing an attorney, parent, or legal guardian, for up to 14 days to obtain a witness, or for up to 21 days to provide notice to the child's tribe if the child is an Indian child.
.MCR 3.963.
.MCR 3.965(A)(1); MCL 712A.13a(2).
.MCR 3.965(B)(1) and (10).
2. INDIAN CHILDREN
If the child is an Indian child, MCR 3.967(A) provides that a removal hearing must be held within 14 days of the child's removal from the home unless the child's parent or Indian custodian has requested an additional 20 days. The trial court may remove an Indian child from the child's parent or Indian custodian, or the child may remain removed,
only upon clear and convincing evidence, including the testimony of at least one qualified expert witness ... who has knowledge about the child-rearing practices of the Indian child's tribe, that active efforts as defined in MCR 3.002 have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that these efforts have proved unsuccessful, and that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.[ ]
3. PRELIMINARY HEARINGS
The trial court may combine the removal hearing with the preliminary hearing. At the preliminary hearing, “the court must decide whether to authorize the filing of the petition and, if authorized, whether the child should remain in the home, be returned home, or be placed in foster care pending trial.” If the trial court authorizes the petition at the preliminary hearing, the trial court may release the child to a parent, guardian, or legal custodian, or “may order placement of the child....”
See MCR 3.967(E).
.MCR 3.965(B)(11).
The trial court “may order placement of the child into foster care if the court finds all of the following:”
(a) Custody of the child with the parent presents a substantial risk of harm to the child's life, physical health, or mental well-being.
(b) No provision of service or other arrangement except removal of the child is reasonably available to adequately safeguard the child from the risk as described in subrule (a).
(c) Continuing the child's residence in the home is contrary to the child's welfare.
(d) Consistent with the circumstances, reasonable efforts were made to prevent or eliminate the need for removal of the child.
(e) Conditions of child custody away from the parent are adequate to safeguard the child's health and welfare.[ ]
If the trial court orders placement of the child in foster care, it must make (1) an explicit finding that placement in the child's home is contrary to the child's welfare and (2) the reasonable efforts findings outlined earlier in this opinion.
.MCR 3.965(C)(2). Also see MCL 712A.13a(9).
.MCR 3.965(C)(3) and (4).
4. DISPOSITIONAL HEARINGS
After the preliminary hearing, the case progresses either by the parent's plea of admission or no contest to the allegations in the petition or by a trial on the allegations in the petition. Following a plea or trial, the trial court conducts a dispositional hearing to determine what actions to take with respect to the child or any adult. “When the child is in placement, the interval [to the dispositional hearing] may not be more than 28 days, except for good cause.” The trial court must find whether the Department made reasonable efforts to prevent the child's removal or return the child to the home. Following the hearing, “[t]he court shall enter an order of disposition....”
.MCR 3.971.
.MCR 3.972.
.MCR 3.973(A).
.MCR 3.973(C).
.MCR 3.973(F)(3).
.MCR 3.973(F)(1).
If the trial court does not terminate its jurisdiction over the child at the dispositional hearing, the trial court must “follow the review procedures of MCR 3.975 for a child in placement[.]” MCR 3.975 provides dispositional review procedures that the trial court must follow if a child is in foster care. Under MCR 3.975(F)(1), the trial court must evaluate the case service plan and the parent's progress with services. The trial court must also consider “any likely harm to the child if the child continues to be separated from his or her parent, guardian or custodian,” “any likely harm to the child if the child is returned to the parent, guardian, or legal custodian,” and “if the child is an Indian child, whether the child's placement remains appropriate....” Following dispositional review, the trial court may return the child home, change the child's placement, modify the case service plan, or modify, continue, or replace the dispositional order.
.MCR 3.973(G).
.MCR 3.975(F)(1)(e), (f), and (g).
.MCR 3.973(G).
E. UNPUBLISHED OPINIONS
1. KLEMKOW
The Michigan Supreme Court has instructed this Court to consider McCarrick's jurisdictional issue in light of three unpublished opinions of this Court. In the first opinion, Klemkow, the respondent-mother appealed as of right the trial court's order terminating her parental rights to her minor children. The mother attempted to challenge the Department's alleged failure to comply with its obligation to notify the court of what efforts it made to prevent the child's removal. The Klemkow Court concluded that the issue was not properly before the Court because it was an improper collateral attack:
Klemkow, unpub. op. at 1.
Id.
Respondent could have directly appealed the September 2007 order removing the child. MCR 3.993(A)(1). She did not do so and cannot now collaterally challenge that decision in this appeal from the October 2009 termination order. [ ]
The remainder of the Klemkow decision did not concern the Court's jurisdiction under MCR 3.993.
Id.
2. McCLAIN/WATERS/SKINNER
In the second opinion, McClain/Waters/Skinner, a panel of this Court considered two consolidated appeals, one in which the respondent “appeal[ed] as of right ... the trial court's January 25, 2011, order denying her objections to the court's preliminary hearing decision ... continuing the children's placement outside respondent's home pending a trial on the petition,” and one in which the respondent “appeal[ed] as of right from the trial court's February 24, 2011, initial dispositional order in which the court determined that it had jurisdiction over the children....” The McClain/Waters/Skinner Court did not address the respondent-mother's arguments regarding the trial court's probable cause finding at the preliminary hearing because it determined that the trial court subsequently acquired jurisdiction over the children, rendering the probable cause issue moot.
McClain/Waters/Skinner, unpub. op. at 1.
Id. at 2.
However, the Court did consider the trial court's order removing the children from the home at the preliminary hearing. The trial court reasoned that
[t]he trial court's exercise of jurisdiction over the children pursuant to the fathers' pleas did not render the removal decision moot. Indeed, it was the removal of the children from the home that enabled respondent to file an appeal as of right in Docket No. 302460. See MCR 3.993(A).[ ]
The McClain/Waters/Skinner Court did not otherwise consider MCR 3.993(A).
Id.
3. WHITE
In the third opinion, White, a panel of this Court considered two consolidated appeals, one in which the respondent “appeal[ed] as of right the trial court's removal order and the preliminary order authorizing a petition for temporary jurisdiction over the minor child[,]” and the other in which the respondent “directly appeal[ed] as of right the trial court's initial dispositional order in which the court determined that it had jurisdiction over the child.” The White Court determined that the trial court applied the correct legal standard and satisfied the statutory requirements when it removed the minor child from the respondent-mother's care.
White, unpub. op. at 1.
Id. at 4.
The White Court appears to have assumed that this Court had jurisdiction to hear an appeal from an order removing the child as an appeal of right. There is no indication that either party raised the issue, and the White Court at no point in its analysis considered its jurisdiction under MCR 3.993.
4. CONCLUSION REGARDING UNPUBLISHED OPINIONS
We conclude that the three unpublished opinions are neither helpful nor instructive in determining the meaning of MCR 3.993(A)(1). In each of these opinions, prior panels of this Court have assumed—without deciding—that this Court has jurisdiction to hear an appeal from an order removing a child from the home as an appeal of right. There is no indication in any of these cases that the parties raised, or that this Court considered sua sponte, the issue of the extent of this Court's jurisdiction under MCR 3.993(A)(1).
Further, each of these appeals concerned, or was consolidated with, an order from which a respondent parent unquestionably had an appeal of right: in Klemkow, the order terminating parental rights, and in McClain/Waters/Skinner and White, the first dispositional order after the trial court removed the child from the home. Accordingly, even if this Court did not have jurisdiction to hear the parents' appeals of the initial order removing the children from their home as of right, the Court certainly had the authority to hear and address the parties' issues with the prior removal proceedings in the first appeal as of right. We are unable to find a case in which this Court considered an appeal from the order removing the children alone, on its own merits, as compared to those circumstances in which the respondent parent also had an appeal of right.
.MCR 3.993(A)(2).
In re SLH, 277 Mich.App. 662, 668–669, 747 N.W.2d 547 (2008); In re Gazella, 264 Mich.App. 668, 680, 692 N.W.2d 708 (2005) (stating that the initial dispositional order contains a finding that the adjudication was held, that the children come within the jurisdiction in the court, and places the children out of the home, that order is appealable as of right).
F. INTERPRETING MCR 3.993(A)(1)
1. OVERVIEW
MCR 3.993(A)(1) allows an appeal of right of “an order of disposition placing a minor under the supervision of the court or removing the minor from the home [.]” This phrase has several constituent clauses. On the basis of the interaction of these clauses, McCarrick contends that MCR 3.993(A)(1) allows a respondent parent to appeal as of right “an order ... removing the minor from the home.” McCarrick asserts that the clause “of disposition” must modify the clause “placing a minor under the supervision of the court” rather than the clause “an order.” McCarrick asserts that any other interpretation will render the phrase “placing a minor under the supervision of the court” surplusage because the trial court never places a minor under the court's supervision without also removing the child from the home.
2. ORDER OF DISPOSITION
In order to resolve this question, we must consider the meaning and interaction of each clause in MCR 3.993(A)(1). One of the primary questions on appeal is whether the first clause is simply “an order” or “an order of disposition.” We conclude that the more natural reading of the first clause of MCR 3.993(A)(1) is that the order appealed must be an “order of disposition.”
First, our reading is consistent with the grammar of the clause. Generally, an order is “[a] command, direction or instruction,” or “[a] written direction or command delivered by a court or judge.” The word “of” typically indicates possession or association. The word “of” is also used as a preposition to “indicate inclusion in a number, class or whole,” such as in the phrase “one of us,” or to “indicate qualities or attributes,” such as in the phrase “a woman of courage.”
Black's Law Dictionary (9th ed.).
Farmers Ins. Exch. v. Farm Bureau Gen. Ins. Co. of Mich., 272 Mich.App. 106, 113, 724 N.W.2d 485 (2006).
Random House Webster's College Dictionary (1997) (emphasis omitted).
It is not grammatically correct to split the clauses of MCR 3.993(A)(1) into two sections between the word “order” and the word “of.” This split would make the clause “of disposition placing a minor under the supervision of the court” start with a preposition and read awkwardly. Further, as we have explained, the placement of the word “of” between the noun “order” and the noun “disposition” typically indicates either that the second noun is included in a class of, or is a quality of, the first noun. In context, the word “of” converts the word “disposition” into an adjectival phrase, modifying the noun “order” to specify that the type or kind of order is a dispositional order.
Second, this reading is consistent with the context of the rule. The words “order of disposition” appears as a single phrase in another portion of the court rules concerning child protective proceedings. Specifically, the court rules provide that, at the dispositional hearing, “[t]he court shall enter an order of disposition....” There is no question in that rule, the phrase “order of disposition” means that the type of order is a dispositional order.
.MCR 3.973(F)(1).
Finally, this reading is consistent with this Court's prior interpretation of the meaning of this clause. In SLH, this Court noted that “an initial order of disposition is the first order appealable as of right....” While this statement was not crucial to the holding of the case and was thus dictum, the Court's reading in SLH illustrates that this Court has previously interpreted MCR 3.993(A)(1) to require a dispositional order for an appeal of right.
In re SLH, 277 Mich.App. at 669 n. 13, 747 N.W.2d 547.
See Griswold Props., LLC v. Lexington Ins. Co., 276 Mich.App. 551, 557–558, 741 N.W.2d 549 (2007).
Therefore, this clause, examined on its own, indicates that a parent may only appeal as of right “an order of disposition,” not merely an order. However, we cannot consider this clause in isolation. We must consider the other clauses in the phrase to determine whether this interpretation renders portions of MCR 3.993(A)(1) surplusage.
3. TYPES OF CASES TO WHICH MCR 3.993 APPLIES
We first note that MCR 3.993 does not apply solely to child protective proceedings. Chapter 3 of the Michigan Court Rules concerns several types of special proceedings, and Subchapter 3.900 more specifically concerns a variety of special proceedings involving juveniles. Subjects included in Subchapter 3.900 are not only child protective proceedings, but also juvenile delinquency proceedings, juvenile waiver proceedings and other designated proceedings in which a juvenile is tried as an adult for a crime, juvenile guardianships, and personal protection orders against minors.MCR 3.993specifically applies to both delinquency and child protective proceedings. Accordingly, we will discuss both types of proceedings in this opinion.
See MCR 3.931.
See MCR 3.950 and MCR 3.951.
See MCR 3.979.
See MCR 3.981.
4. PLACING A MINOR UNDER THE SUPERVISION OF THE COURT
a. OVERVIEW
At oral argument, counsel for McCarrick indicated that the standard interpretation of the phrase “placing a minor under the supervision of the court” is that the trial court places the child under court supervision when the trial court exercises jurisdiction over the child. However, we conclude that this is not the plain meaning of this phrase.
b. CHILD PROTECTIVE PROCEEDINGS
As can be seen in the background law section of this opinion, the trial court does not place a minor “under the supervision of the court” in child protection law. Rather, it places the child in the parent's home, out of the home, or in foster care. MCR 3.921 states that the trial court shall notify “the agency responsible for the care and supervision of the child” regarding dispositional review hearings. Other court rules indicate that the agency is “responsible for the care and supervision of the child” as well.
See MCR 3.965(B)(11); MCR 3.973(G).
.MCR 3.921(B)(2)(a) (emphasis added).
.MCR 3.973(E)(2) and (F)(3). See also MCR 3.975(C)(2).
c. JUVENILE DELINQUENCY PROCEEDINGS
In juvenile delinquency proceedings, the trial court issues orders of disposition. It may place the minor “under supervision in the juvenile's own home or in the home of an adult who is related to the juvenile,” and it may “order the terms and conditions of probation or supervision....” The trial court may also “place the juvenile in a suitable foster care home subject to the court's supervision.” Finally, the trial court may place the juvenile in a private or public agency, institution, or facility.
.MCL 712A.18(1).
.MCL 712A.18(1)(b). See also MCL 712A.18(2).
.MCL 712A.18(1)(c).
.MCL 712A.18(1)(d) and (e).
Accordingly, we conclude that we need not determine the common usage of the phrase “under the supervision of the court.” Instead, on the basis of the context in which the phrase is used in MCR 3.993(A)(1) and its placement in the general scheme of the court rules, we conclude that it means exactly what it says: a trial court places a minor under the supervision of the court when the trial court orders the minor placed under the supervision of the court. The trial court may place a minor under the supervision of the court in juvenile delinquency proceedings, and it does so by issuing an order of disposition.
5. REMOVING A MINOR FROM THE HOME
a. CHILD PROTECTIVE PROCEEDINGS
The trial court may remove a minor from the home in both child protection and juvenile delinquency proceedings. In child protective proceedings, the trial court may remove the minor from the home through the use of an order before or after an emergency removal, at the preliminary hearing, or at a dispositional review hearing. If the trial court removes the child before the initial dispositional hearing and does not terminate its jurisdiction in its dispositional order, it must review its placement decision under MCR 3.975.
.MCR 3.963.
.MCR 3.975(G).
.MCR 3.966(2) and MCR 3.973(G)(1).
b. JUVENILE DELINQUENCY PROCEEDINGS
In juvenile delinquency proceedings, the trial court may also issue an order of disposition removing the minor from the home, and it may “place the juvenile in a suitable foster care home subject to the court's supervision” or in a public or private institution, agency, or facility.
.MCL 712A.18(1)(c), (d), and (e).
.MCL 712A.18(1)(c).
.MCL 712A.18(1)(c), (d), and (e).
Accordingly, there is no conflict regarding the meaning of the phrase “removing the child from the home.” The trial court removes the child from the home when the trial court places the child in a location outside the parent's home.
6. INTERACTION OF THE COMPONENT CLAUSES
McCarrick contends that requiring a parent to appeal from a dispositional order renders portions of MCR 3.993(A)(1) surplusage because every order of disposition removing the minor from the home is also an order of disposition that places the minor under the supervision of the court. We disagree.
McCarrick's assertion rests on the asserted common understanding of the phrase “placing a minor under the supervision of the court.” McCarrick asserted at oral arguments that attorneys commonly understand this phrase to mean that the trial court places a minor under the supervision of the court when it exercises its jurisdiction over the child. But for the reasons previously stated, we conclude that the Michigan Supreme Court did not refer to this common understanding when it used this phrase. Reading MCR 3.993 in context with the statutes that govern the types of actions to which it applies, we conclude that the Michigan Supreme Court used the phrase “placing a minor under the supervision of the court” to refer to the specific action the trial court may take in a juvenile delinquency proceeding.
Accordingly, we reject McCarrick's assertion that our more natural reading of MCR 3.993(A)(1)—requiring the order appealed by right to be a dispositional order—renders portions of MCR 3.993(A)(1) surplusage. MCR 3.993 applies to both juvenile delinquency and child protective proceedings. In juvenile delinquency proceedings, the trial court may issue an order of disposition that (1) places a minor under the supervision of the court, (2) places the minor outside the home, or (3) does both. The more natural reading of MCR 3.993(A)(1)—that a parent may appeal as of right (1) an order of disposition that places a minor under the supervision of the court, or (2) an order of disposition that removes the minor from the home—does not render any portion of MCR 3.993 surplusage.
7. PRACTICAL CONCERNS
McCarrick asserts that it is imperative that this Court interpret MCR 3.993 in a fashion that allows a parent to appeal the child's removal as of right because it will lead to speedy review of removal issues. We do not disagree with the importance of the trial court's removal decision and the impact that such a decision can have on the child's well-being and the progress of the case. However, as McClain/Waters/Skinner and White illustrate, claiming an appeal of right from the order removing the child from the home is not likely to result in a faster resolution than claiming an appeal of right from the first dispositional order. Further, a respondent parent may file an application for leave to appeal the trial court's removal decision, and may file the application on an emergency basis in appropriate cases.
See MCR 3.993(B).
See MCR 7.205(F).
8. CONCLUSION
We conclude that MCR 3.993(A)(1) requires the order appealed to be an order of disposition. Therefore, a respondent parent may appeal (1) an order of disposition that places a minor under the supervision of the court, or (2) an order of disposition that removes the minor from the home. But a respondent parent may not appeal by right any order that removes the minor from the home. The order must be an order of disposition.
Accordingly, we conclude that McCarrick was not entitled to appeal by right the trial court's removal orders following the preliminary hearings in Docket Nos. 315510 and 317403. While this Court could, at its discretion, grant leave in these dockets to address McCarrick's substantive issues, we conclude that it is not necessary to do so because those dockets raise the same issues that McCarrick raises in Docket No. 318475, in which this Court has already granted leave.
III. ORDER REMOVING THE INDIAN CHILDREN
In Docket No. 318475, this Court granted McCarrick's delayed application for leave to appeal the substantive issues she raised in Docket Nos. 315510 and 317403 regarding the sufficiency of the trial court's order removing the children from her home under ICWA and the Family Preservation Act. This Court granted McCarrick's application limited to the issues raised in the application and supporting brief. McCarrick's application challenged both the sufficiency and substance of the trial court's findings at both the March 8, 2013 and the June 26, 2013 removal hearings. We conclude that the trial court erred when it removed McCarrick's children from the home without any testimony from a qualified expert witness regarding the potential damage to the children.
A. STANDARD OF REVIEW
This Court reviews de novo issues of law, including the interpretation and application of ICWA and the Family Preservation Act. We review for clear error the trial court's findings of fact underlying the legal issues. A finding is clearly erroneous if, after reviewing the entire record, we are definitely and firmly convinced that the trial court made a mistake.
In re JL, 483 Mich. 300, 318, 770 N.W.2d 853 (2009); In re Morris, 491 Mich. 81, 97, 815 N.W.2d 62 (2012).
Morris, 491 Mich. at 97, 815 N.W.2d 62.
In re Mason, 486 Mich. 142, 152, 782 N.W.2d 747 (2010).
B. LEGAL STANDARDS
Congress enacted ICWA in 1978 to respond to abusive child welfare practices that separated large numbers of Indian children from their families and harmed the children, their parents, and the Indian tribes. “ICWA establishes various substantive and procedural protections intended to govern child custody proceedings involving Indian children.” ICWA requires the trial court to consider the testimony of a qualified expert witness to determine whether the Indian child is likely to be seriously damaged if he or she remains in the parent's care:
Morris, 491 Mich. at 97–98, 815 N.W.2d 62.
Id. at 99, 815 N.W.2d 62.
No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.[ ]
On January 2, 2013, the Family Preservation Act became effective. The Family Preservation Act provides that an Indian child may not be removed, placed in foster care, or remain removed unless an expert witness testifies regarding the active effortsprovided to prevent the breakup of the family and the likelihood of damage to the child if he or she is not removed:
2012 PA 565.
An Indian child may be removed from a parent or Indian custodian ... only upon clear and convincing evidence, that includes testimony of at least 1 expert witness who has knowledge of child rearing practices of the Indian child's tribe, that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that the active efforts were unsuccessful, and that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.[ ]
C. SERIOUS EMOTIONAL OR PHYSICAL DAMAGE
First, McCarrick contends that the trial court's findings were not sufficient because it only found that the children were likely to suffer harm, not that the children were likely to suffer damage. We conclude that the trial court's finding complied with both ICWA and the Family Preservation Act. McCarrick provides no authority from which this Court could conclude that “harm” and “damage” are different things. As commonly defined, the word “harm” means “injury or damage,” the word “injury” means “harm or damage done or sustained,” and the word “damage” means “injury or harm that reduces value, usefulness, etc.” Given that each of these words refers to the other in its definition, we conclude that these words are synonymous for the purposes of these acts. Therefore, we conclude that the trial court's finding of harm was sufficient to satisfy both ICWA and the Family Preservation Act.
Random House Webster's College Dictionary (1997).
Next, McCarrick contends that the trial court failed to comply with ICWA and the Family Preservation Act when it ordered the children removed from McCarrick's care because O'Neil did not opine about whether McCarrick's continued custody was likely to result in serious emotional or physical damage to the children. We agree.
Both ICWA and the Family Preservation Act provide that the trial court may not place an Indian child in foster care without a determination in that regard supported by the testimony of a qualified expert witness. ICWA provides that that “[n]o foster care placement may be ordered in such proceeding in the absence of a determination, ... including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Similarly, MCL 712B.15(2) provides that the trial court may remove an Indian child “only upon clear and convincing evidence, that includes the testimony of at least 1 expert witness who has knowledge of child rearing practices of the Indian child's tribe, that ... the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (Emphasis added.)
.25 U.S.C. 1912(e) (emphasis added).
We note that, according to the Bureau of Indian Affairs, one of the major purposes of the qualified expert witness is to “speak specifically to the issue of whether continued custody ... is likely to result in serious physical or emotional damage to the child.” While agency interpretations are not binding and cannot conflict with the plain language of the statute, such interpretations are entitled to respectful consideration. Further, this Court and other courts have recognized that one of the purposes of the expert witness is to diminish the risk of cultural bias in the proceedings.
Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584, 67593, § D.4(a) (November 26, 1979).
See In re Complaint of Rovas Against SBC Mich., 482 Mich. 90, 103, 754 N.W.2d 259 (2008).
See In re Elliott, 218 Mich.App. 196, 207, 554 N.W.2d 32 (1996). Also see, e.g., In re N.L., 754 P.2d 863, 867–868 (Okla., 1988); State ex rel. Lane Co. Juvenile Dep't v. Tucker, 76 Or.App. 673, 682–683, 710 P.2d 793 (1985).
In this case, O'Neil testified at the hearing regarding the efforts provided to McCarrick and the success of those efforts. However, O'Neil did not testify about the possible damage to the children. Sheppard, who was not an expert on the child-rearing practices in the children's tribe, testified that one of the children indicated that one of the other children was “shooting up drugs.” Sheppard also testified that one of the children told her that McCarrick was aware that the children were using marijuana and only asked them not to smoke in the house. But Sheppard, like O'Neil, failed to testify regarding the possibility of emotional or physical damage to the children if McCarrick retained custody.
While it may appear obvious that drug use has the potential to damage children, ICWA and the Family Preservation Act require the trial court's determination of damage to include the testimony of a qualified expert witness. Here, there was simply no testimony in that regard, much less testimony by O'Neil, the qualified expert witness. We conclude that the trial court's determination regarding the damage to the children did not comply with ICWA or the Family Preservation Act because the trial court's determination of damage did not include the testimony of a qualified expert witness.
D. ADDITIONAL ISSUES
McCarrick contends that the trial court erred by continuing the children's removal with the June 26, 2013 order without considering whether the children were at a continued risk of damage. Given our conclusion regarding the trial court's March 8, 2013 removal order, we need not address this issue.
McCarrick also contends that the trial court's “active efforts” findings were insufficient under the Family Preservation Act. We disagree.
See MCR 3.002.
“The timing of the services must be judged by reference to the grounds for seeking termination and their relevance to the parent's current situation.” McCarrick contends that there was no evidence (1) that the Department made active efforts to address substance abuse, and (2) of the timing of the services. However, O'Neil testified that she provided the services from September 2011 to December 2011. And the Department never alleged that McCarrick abused substances. The Department alleged that McCarrick improperly supervised the children, who were abusing substances. O'Neil testified about the extensive services McCarrick received in 2011, including behavioral health and parenting services. These types of services target a parent's parenting ability, which is directly relevant to whether the Department made active efforts to assist McCarrick to properly supervise the children. The services occurred a little more than a year before the inception of the current case.
Accordingly, we conclude that the trial court did not clearly err when it found that the Department made active efforts to prevent the breakup of McCarrick's family. O'Neils testimony provided evidence about the timing of the services and the relevance of the services to McCarrick's situation.
Finally, McCarrick contends that the evidence was insufficient to support the trial court's active-efforts finding because no one testified regarding each element of the active-efforts definition as set forth in MCL 712B.3(a). That statute defines active efforts through a list of twelve elements, which identify things the Department must do or address in order to engage in active efforts. McCarrick contends that there was no evidence that the Department complied with several elements, such as using culturally appropriate services or having the child's tribe evaluate McCarrick's family. O'Neil, however, testified that she works for the Sault Tribe of Chippewa Indians and had provided McCarrick with referrals to Sault Tribe Behavioral Health and other extensive services. Having reviewed O'Neil's testimony, we conclude that the trial court had sufficient evidence from which to conclude that the Department had complied with MCL 712B.3(a).
E. REMEDY
McCarrick contends that the trial court's failure to comply with ICWA and the Family Preservation Act renders the trial court's removal invalid. We conclude that conditional reversal is an appropriate remedy in this case.
ICWA provides that “[a]ny Indian child who is the subject of any action for foster care placement ... [and] any parent or Indian custodian ... may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of .” The Family Preservation Act provides the same remedy for a violation of MCL 712B.15. In cases in which the trial court has violated ICWA by failing to provide the child's tribe with notice, this Court conditionally reverses.
.25 U.S.C. 1914.
.MCL 712B.39.
Morris, 491 Mich. at 122, 815 N.W.2d 62; In re Johnson, 305 Mich.App. 328, 333–334, 852 N.W.2d 224 (2014).
McCarrick does not provide any argument to support her contention that this Court should automatically reverse in this case. We note that the provisions of ICWA and the Family Preservation Act at issue in this case are not jurisdictional requirements. Automatic reversal is also not consistent with this Court's disfavor of automatic reversals. And when the trial court improperly removes an Indian child, the trial court need not return the child if doing so would subject the child to a risk of immediate danger. Given that the record evidence includes that one child was injecting drugs and attempted suicide, we decline to automatically reverse the trial court's order in this case because doing so could place the child in danger and this Court is not in a position to determine whether the danger would be immediate.
See Morris, 491 Mich. at 118–119, 815 N.W.2d 62.
Id. at 120, 815 N.W.2d 62.
.25 U.S.C. 1920; Morris, 491 Mich. at 118, 815 N.W.2d 62.
We conditionally reverse and remand for the trial court to determine whether McCarrick's continued custody would result in serious emotional or physical damage to the children. If the trial court cannot support its finding with testimony from a qualified expert witness at a hearing, it must return the children to McCarrick's home. But if a qualified expert witness testifies that McCarrick's continued custody would result in serious emotional or physical damage to the children, the trial court may continue the children in their current placements.
IV. COURT RULE CHANGE
We also suggest that the Supreme Court consider modifying MCR 3.993 in order to permit a parental appeal of right, at least under some circumstances, from a removal order when a child is removed from his or her parents at a stage prior to adjudication.
When a parent's action or neglect sufficiently threatens a child's safety to justify removal at the outset of a child protective proceeding, it is neither surprising nor objectionable that such removal would correlate with a higher likelihood of termination. However, as several recent cases have shown, the decision to remove a child can substantially affect the balance of the child protective proceedings even when the initial concerns are eventually determined to have been overstated. In such cases, the parent may find his or her parental rights terminated not because of neglect or abuse, but because of (1) a failure to adequately comply with the Department's directives and programs and (2) a loss of bonding because of a lack of parental visitation.
See In re Sanders, 495 Mich. 394, 852 N.W.2d 524 (2014); In re Farris, unpublished opinion per curiam of the Court of Appeals, issued August 8, 2013 (Docket No. 311967), 2013 WL 4034353, lv. gtd. 497 Mich. 864, 852 N.W.2d 900 (2014); In re LaFrance, 306 Mich.App. 713, 858 N.W.2d 143 (2014).
Permitting a parent to appeal a removal order as a matter of right may be one way to minimize the likelihood of this unfortunate occurrence. But this Court does not have rulemaking authority; that authority lies solely with the Michigan Supreme Court. That Court has the power to issue proposed rules, obtain comment from the bench, bar, and broader community, and then determine as a matter of judicial policy whether and how to modify the relevant procedure. Whether or not the Supreme Court ultimately decides that a rule change is wise, we have little doubt that an inquiry into the question will be of benefit to the children and parents of Michigan.
See MCR 1.201.
V. CONCLUSION
In Docket Nos. 315510 and 317403, we conclude that McCarrick is not entitled to appeal as of right the trial court's order removing the child from the home because the order is not a dispositional order. In Docket No. 318475, we conclude that the trial court erred when it removed the children from McCarrick's home without testimony from a qualified expert concerning the potential damage to the children.
We conditionally reverse and remand for further proceedings. We do not retain jurisdiction.