Opinion
No. 345016
04-18-2019
In re JOHNSTON and JENKINS, Minors.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Lenawee Circuit Court Family Division
LC No. 16-000684-NA Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ. PER CURIAM.
Respondent appeals as on leave granted the order terminating his parental rights to the minor children, JJ and MJ, under MCL 712A.19b(3)(c)(i) (conditions leading to adjudication continue to exist), (g) (failure to provide proper care and custody), (h) (parent's imprisonment for a period exceeding two years), and (j) (reasonable likelihood that children will be harmed if returned to parent). We conditionally reverse and remand for further proceedings.
MCL 712A.19b(3)(g) has been amended, effective June 12, 2018. See 2018 PA 58. Under the prior version of the statute, a court could terminate parental rights if "[t]he parent, without regard to intent, fails to provide proper care or custody for the child," with no reasonable expectation that the parent would provide proper care and custody in a reasonable amount of time, given the child's age. See In re White, 303 Mich App 701, 710; 846 NW2d 61 (2014) (quoting the prior version of MCL 712A.19b(3)(g)). Under the new version of the statute, termination is warranted where "[t]he parent, although, in the court's discretion, financially able to do so, fails to provide proper care or custody for the child . . . " MCL 712A.19b(3)(g), as amended by 2018 PA 58. Consideration of the parent's financial ability to provide proper care or custody is the only major change to the statutory language; the text of the provision was not otherwise amended.
Respondent argues that petitioner and the trial court failed to adhere to the notice requirements set forth in the Indian Child Welfare Act ("ICWA"), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act ("MIFPA"), MCL 712B.1 et seq. We conclude that the trial court failed to ensure that the record contains the necessary documentation of notice as required by the ICWA and MIFPA.
I. BACKGROUND
The initial petition in this matter arose out of allegations of negligence due to respondent's incarceration, substance abuse, untreated mental health issues, and financial inability to care for the child, JJ. The trial court held an adjudication hearing in which it found statutory grounds for exercising jurisdiction over the child. When the second child, MJ, was born, an amended petition was filed and respondent admitted to jurisdiction over MJ. Several dispositional review hearings later, respondent advised the court that he believed he had partial Native American heritage. Respondent could not name a specific tribe to which he potentially belonged, other than that he thought it could be the Sioux, but he stated that his grandmother was half Native American and he believed his parents had met on a reservation. The foster care workers sent letters to sixteen different Native American tribes and associations inquiring about respondent's Native American heritage. The foster care workers testified that the tribes or associations they reached out to all replied stating that respondent was not registered or eligible to register as Native American. However, the lower court record contains no documentation of the requests or of the responses.
II. STANDARD OF REVIEW
In general, "[i]ssues involving the application and interpretation of ICWA are questions of law that are reviewed de novo." In re Morris, 491 Mich 81, 97; 815 NW2d 62 (2012). Additionally, this Court "review[s] de novo issues involving the interpretation and application of MIFPA." In re Detmer, 321 Mich App 49, 59; 910 NW2d 318 (2017). However, respondent failed to raise an argument below pertaining to the notice requirements of the ICWA or the MIFPA. See In re TK, 306 Mich App 698, 703; 859 NW2d 208 (2014) (stating that, "[i]n general, issues that are raised, addressed, and decided by the trial court are preserved for appeal."). Therefore, this unpreserved issue is reviewed for plain error affecting respondent's substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "Generally, an error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings." Id. Reversal is only warranted "when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings . . . " Id.
III. ICWA AND MIFPA STATUTORY PROCEDURE
The ICWA and the MIFPA were enacted to "protect[] the best interests of Indian children and promot[e] the stability and security of Indian tribes and families." In re England, 314 Mich App 245, 251; 887 NW2d 10 (2016) (quotation marks and citation omitted). The ICWA and the MIFPA each contain notice provisions, which generally require that, "when there are sufficient indications that [a] child may be an Indian child," any tribe that the child may potentially belong to must be notified. Id. at 100. If a child is a member of a Native American tribe, "the child's tribe retains the right to intervene in any state court foster care placement or termination of parental rights proceeding." Id. at 99. Indicia that notice may be required can include:
situations in which (1) the trial court has information suggesting that the child, a parent of the child, or members of a parent's family are tribal members, (2) the trial court has information indicating that the child has Indian heritage, even
though no particular Indian tribe can be identified, (3) the child's birth certificate or other official record indicates that the child or a parent of the child is of Indian descent, (4) the child, the child's parents, or the child's Indian custodian resides or is domiciled in a predominantly Indian community and (5) the child or the child's family has received services or benefits from a tribe or the federal government that are available to Indians. [Id. at 108 n 18.]
Respondent informed the trial court that his grandmother told him that he was Native American, and he believed that he likely belonged to the Sioux tribe. Respondent further attested that his grandparents and his aunt once lived on an Indian reservation. This Court has previously stated that a parent's assertion that his great-grandparent was Native American "trigger[ed] the need to serve notice." In re Johnson, 305 Mich App 328, 333; 852 NW2d 224 (2014). Thus, by extension, respondent's assertion that several of his family members lived on an Indian reservation at one point in their lives would serve to trigger the notice provisions of the ICWA and the MIFPA. Regarding the issue of notice, the ICWA states, in relevant part:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. [Morris, 491 Mich at 102, quoting 25 USC 1912(a).]The MIFPA contains a similar notice provision, which states:
In a child custody proceeding, if the court knows or has reason to know that an Indian child is involved, the petitioner shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending child custody proceeding and of the right to intervene. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice shall be given to the secretary in the same manner described in this subsection. The secretary has 15 days after receipt of notice to provide the requisite notice to the parent or Indian custodian and the tribe. [In re Jones, 316 Mich App 110, 114; 894 NW2d 54 (2016), quoting MCL 712B.9(1) (citations omitted).]
IV. DOCUMENTATION OF NOTICES
Under the ICWA and the MIFPA, the trial court must keep detailed records to show that it has complied with the requisite notice provisions. Morris, 491 Mich at 89, 111-114. At a minimum, "the trial court must maintain a documentary record including . . . (1) the original or a copy of each actual notice personally served or sent via registered mail . . . and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice." Id. If such records are not collected and maintained, it is virtually impossible for this Court to ascertain whether and to whom notice was sent, what responses were received, and whether each notice included "sufficient, accurate information to enable the tribal authorities to determine tribal status of the child and the child's parents." Id. at 112-113.
The record indicates that the trial court directed petitioner and two foster care workers to investigate respondent's claim that he was at least partially Native American, and in response, a foster care worker contacted sixteen Native American tribes and tribal associations regarding the claim. The record does not specifically indicate which Native American tribes were notified. Moreover, the record is entirely devoid of documentation supporting the assertion that any potentially interested Native American tribes were provided with proper notice in accordance with the ICWA and the MIFPA. The record does not contain copies of the notices that were sent to the potentially interested tribes, or any documents showing proof of service of the notices. Thus, it is impossible for this Court to determine whether the notices gave the tribes sufficient information with which to determine whether respondent could claim Native American ancestry. Morris, 491 Mich at 113.
The trial court concluded that respondent could not claim Native American heritage based on the responses received from the various tribes and tribal associations contacted by the foster care workers. However, because the documentary record does not give sufficient information to allow this Court to determine whether notice was properly given, this Court cannot ascertain whether the notice provided complied with the ICWA and the MIFPA. Jones, 316 Mich App at 118. Although the trial court's conclusion regarding respondent's claim to Native American heritage may ultimately prove correct, "[i]f there must be error in determining whether tribal notice is required, let it be on the side of caution." Morris, 491 Mich at 108. It would frustrate the purpose of the ICWA and MIFPA to fail to fully adhere to the applicable herein notice provisions. Id.
Accordingly, the proper remedy herein is to "conditionally reverse the order of termination . . . and remand for compliance with the notification requirements in the ICWA and the MIFPA." Id. On remand, the trial court should follow the procedure set forth in Morris, which directs the trial court to "ensure that notice is properly made to the appropriate entities" and collect documentation of such notice, including copies of notices and proofs of service. Id. at 123. If it is conclusively established that the ICWA and the MIFPA do not apply, the order terminating respondent's parental rights should be reinstated. Conversely, if the ICWA and the MIFPA do apply, the "order[] terminating parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of ICWA" and the MIFPA. Id.
V. CONCLUSION
We conditionally reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Anica Letica
/s/ Amy Ronayne Krause
/s/ Mark T. Boonstra