Opinion
No. 340047
04-12-2018
In re A. I. VERMIGLIO-CARTER, Minor.
UNPUBLISHED Oakland Circuit Court Family Division
LC No. 2015-832032-NA Before: SERVITTO, P.J., and MARKEY and O'CONNELL, JJ. PER CURIAM.
Respondent-mother appeals as of right the trial court's order terminating her parental rights to the minor child pursuant to MCL 712A.19b(3)(c)(i) and (g). We affirm.
I. FACTS AND PROCEEDINGS
The minor child tested positive for THC and opioids at birth in January 2015. Two months later, law enforcement discovered marijuana and other drug paraphernalia in respondent's home, where she lived with the child and the child's father, W. Carter. Petitioner initiated proceedings for the court to obtain jurisdiction over the child. At the preliminary hearing, Carter stated that his grandfather was of Chippewa Indian descent. Over the next several months, petitioner sent notices to the Bureau of Indian Affairs (BIA) and several different Chippewa tribes pursuant to the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. Ultimately, none of the tribes identified the child as a member or potential member, or chose to intervene.
Carter died before the trial court assumed jurisdiction over the child. Respondent entered a plea of no contest to the petition, allowing the court to exercise jurisdiction. The child was initially placed with respondent's sister, and then later with respondent's mother. The trial court ordered respondent to comply with a treatment plan that required her, in relevant part, to complete parenting classes, participate in therapy, abstain from illegal drug use, and submit to random drug screens. Respondent visited her child almost daily, with the relative caregiver supervising the visits as petitioner's designee, and the visits were appropriate. Throughout the case, respondent maintained her employment as a restaurant server and she established suitable housing. The principal barrier to reunification was respondent's inability to abstain from using marijuana and illegal opioids. She continued to test positive for THC and the prescription opioids hydrocodone and oxycodone.
In October 2016, respondent participated in two weeks of inpatient substance abuse treatment at Sacred Heart Rehabilitation Center, but she continued to test positive for substances after the program. Respondent admitted that she smoked marijuana late at night to help her relax, cope with stress, and fall asleep. She believed marijuana was more effective than prescription medications for anxiety, which made her feel sleepy and lethargic. She also stated that her experience at Sacred Heart led her to believe that her marijuana use was relatively benign in comparison to the more serious addictions that other patients in the program had. Respondent admitted that she sometimes used prescription opioids to treat back and neck pain. Respondent's failure to consistently maintain negative drug screens caused her to lose unsupervised visitation with her child. In addition, respondent failed to re-enroll in individual counseling after her discharge from Sacred Heart. She believed that her participation in counseling during inpatient treatment satisfied the counseling requirement in her treatment plan.
Ultimately, petitioner filed a petition to terminate respondent's parental rights under MCL 712A.19b(3)(c)(i), (g), and (j). Following a hearing in April 2017, the trial court found that statutory grounds for termination existed under §§ 19b(3)(c)(i) and (g). After conducting a best-interest hearing in June 2017, the trial court also found that termination of respondent's parental rights was in the child's best interests.
II. ICWA NOTIFICATION COMPLIANCE
Respondent argues that reversal is required because petitioner did not fully comply with the notification procedures of the ICWA. "This Court reviews issues involving the application and interpretation of the ICWA de novo as questions of law." In re JL, 483 Mich 300, 318; 770 NW2d 853 (2009). "Any underlying factual findings are reviewed for clear error." In re Johnson, 305 Mich App 328, 331; 852 NW2d 224 (2014). However, because respondent did not argue below that the ICWA notice requirements were not met, this issue is unpreserved. We review unpreserved issues for plain error affecting respondent's substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). "[A]n error affects substantial rights if it caused prejudice[,] i.e., it affected the outcome of the proceedings." Id. at 9.
The ICWA was enacted for the purpose of protecting and preserving Indian families, tribes, and tribal culture. In re England, 314 Mich App 245, 250-251; 887 NW2d 10 (2016). The "ICWA establishes various substantive and procedural protections intended to govern child custody proceedings involving Indian children." In re Morris, 491 Mich 81, 99; 815 NW2d 62 (2012). Pursuant to 25 USC 1914, "the Indian child, a parent, an Indian custodian of the child, or the child's tribe may petition a court to invalidate foster care placements and terminations of parental rights if the state court violated any provision included in 25 USCA 1911, 1912, or 1913." In re Morris, 491 Mich at 101. The ICWA defines an "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" 25 USC 1903(4). "[I]t is well established that only the Indian tribe can determine its membership." In re Morris, 491 Mich at 100. "[W]hen there are sufficient indications that the child may be an Indian child, the ultimate determination requires that the tribe receive notice of the child custody proceedings, so that the tribe may advise the court of the child's membership status." Id. at 100. The notice provision of ICWA, 25 USC 1912(a), provides:
In 2012, our Legislature enacted the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., which also provides protections for Indian families. --------
In any involuntary proceeding in a [s]tate 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. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . .In addition, records must be kept to show compliance with the notice provisions. In re Morris, 491 Mich at 89, 111-114. "[T]rial courts have a duty to ensure that the record includes, at minimum, (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. at 114. Absent such information, it is impossible to discern whether notice was actually sent, to whom it was sent, whether the notice was received, when notice was received, and whether the notice contained "sufficient, accurate information to enable the tribal authorities to determine tribal status of the child and the child's parents." Id. at 112-113. "If there must be error in determining whether tribal notice is required, let it be on the side of caution." Id. at 108. 25 CFR 23.111(c) provides:
Notice must be sent by registered or certified mail with return receipt requested. Notice may also be sent via personal service or electronically, but such alternative methods do not replace the requirement for notice to be sent by registered or certified mail with return receipt requested.
The Michigan Court Rules implement the ICWA notice procedures. MCR 3.905(C) provides that "[i]f an Indian child is the subject of a protective proceeding . . . and an Indian tribe does not have exclusive jurisdiction . . . the court shall ensure that the petitioner has given notice of the proceedings to the persons described in MCR 3.921 in accordance with MCR 3.920(C)." MCR 3.921(B)(1)(h) provides that if "the court knows or has reason to know the child is an Indian child," the court must ensure that notice is given to "(i) the child's tribe and, if the tribe is unknown, the Secretary of the Interior," and "(ii) the child's parents or Indian custodian, and if unknown, the Secretary of the Interior." MCR 3.920(C) provides:
If the court knows or has reason to know an Indian child is the subject of a protective proceeding or is charged with a status offense in violation of MCL 712A.2(a)(2)-(4) or (d) and an Indian tribe does not have exclusive jurisdiction as defined in MCR 3.002(6):
(1) in addition to any other service requirements, 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 proceedings on a petition filed under MCR 3.931 or MCR 3.961 and of their right of intervention on a form approved by the State Court Administrative Office. If the identity or location of the parent or Indian custodian, or of the tribe, cannot be determined, notice shall be given to the Secretary of the Interior by registered mail with return receipt requested. Subsequent notices shall be served in accordance with this subrule for proceedings under MCR 3.967 and MCR 3.977.When notice has not been provided as required by ICWA, or when the documentary record is insufficient to allow a determination of whether the requisite notice was given, the proper remedy is to conditionally reverse and remand to the trial court for resolution of the notice issue. In re Morris, 491 Mich at 115, 122; In re Jones, 316 Mich App 110, 118; 894 NW2d 54 (2016). Under ICWA, when a specific tribe has been identified, the notice requirement cannot be satisfied simply by providing notice to the Secretary of the Interior or the Bureau of Indian Affairs (BIA); rather, notice must be sent to the particular tribe in question. In re Jones, 316 Mich App at 117-118.
(2) the court shall notify the parent or Indian custodian and the Indian child's tribe of all hearings other than those specified in subrule (1) as provided in subrule (D). If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice of the hearings shall be given to the Secretary of the Interior. Such notice may be by first-class mail.
Petitioner notified the BIA of this proceeding. In a response dated April 3, 2015, the BIA provided a printed list of Indian tribes, bands, and other sovereign bodies that identified the 22 Chippewa tribes. Petitioner sent Notices of Proceedings to these 22 tribes in March and April 2015. Most of the tribes sent responses in April 2015. The Chippewa Cree Tribe, which the trial court noted was the last to respond, did not respond until June 12, 2015. None of the tribes responded that the child was a member or eligible for membership. None chose to intervene. In February 2016, petitioner again notified the Chippewa tribes, and also notified additional tribes of the proceedings. These notices, and their responses, are listed under the dates February 9, 11, 12, 18, and 24, March 7, 25, and 29, April 1 and 26, and May 11, 2016. None of the tribes claimed the child as a member or potential member, or chose to intervene.
Respondent asserts that there were errors with respect to mailings to four tribes and the BIA. The green return cards confirming delivery do not indicate whether these notifications were mailed by registered or certified mail. One of the cards does not have the delivery date. The BIA and all four of these tribes, however, responded to the notifications. To the extent that there were irregularities in the mailing of notices, these irregularities did not affect respondent's substantial rights because the tribes received the notices and responded that the child was not enrolled in the tribe or was not eligible to receive services from the tribe. The purpose of the notice requirements—to ensure reliable delivery—was served. Accordingly, respondent has not established any basis for relief with respect to this issue.
III. RESPONDENT'S NO CONTEST PLEA
Respondent next argues that the trial court erred by failing to fully comply with MCR 3.971(B) when it accepted her plea of no contest. Respondent did not raise this issue in a motion to withdraw her plea, and she did not otherwise challenge the validity of her plea in the trial court. Therefore, this issue is unpreserved. In re Utrera, 281 Mich App at 8. "Whether child protective proceedings complied with a parent's right to procedural due process presents a question of constitutional law, which we review de novo." In re Sanders, 495 Mich 394, 403-404; 852 NW2d 524 (2014). "The interpretation and application of statutes and court rules are also reviewed de novo." Id. Unpreserved issues are reviewed for plain error affecting the party's substantial rights. In re Utrera, 281 Mich App at 9.
This issue challenges the validity of the trial court's order asserting jurisdiction over the child, but the order being appealed is the trial court's order terminating respondent's parental rights pursuant to a supplemental petition, after the court exercised jurisdiction and provided respondent an opportunity to participate in reunification services. It is well established that where a respondent had a direct appeal from an order exercising jurisdiction over a child in a child protective proceeding, and the court enters a subsequent order terminating the respondent's parental rights, the respondent cannot collaterally attack the trial court's exercise of jurisdiction in an appeal from the order terminating parental rights. In re Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993); In re Collier, 314 Mich App 558, 574; 887 NW2d 431 (2016); see also In re Bechard, 211 Mich App 155, 159-160; 535 NW2d 220 (1995). The trial court asserted jurisdiction over the child in a written order of adjudication, dated September 10, 2015, and entered a dispositional order, also dated September 10, 2015. No claim of appeal was filed from these orders as permitted by MCR 3.993(A)(1). Accordingly, respondent is barred from now collaterally challenging the trial court's exercise of jurisdiction over the child in this appeal.
IV. STATUTORY GROUNDS
Respondent next argues that the trial court erred in finding that statutory grounds for termination were established pursuant to MCL 712A.19b(3)(c)(i) and (g). In an action to terminate parental rights, the petitioner must prove by clear and convincing evidence that at least one statutory ground for termination in MCL 712A.19b(3) exists. MCR 3.977(A)(3) and (H)(3); In re Trejo, 462 Mich 341, 355-356; 612 NW2d 407 (2000). The trial court's decision is reviewed for clear error. MCR 3.977(K); In re Trejo, 462 Mich at 356. A finding is clearly erroneous when the reviewing court is left with the firm and definite conviction that a mistake was made. In re JK, 468 Mich 202, 209-210; 661 NW2d 216 (2003).
The trial court terminated respondent's parental rights pursuant to MCL 712A.19b(3)(c)(i) and (g), which provide grounds for termination under the following circumstances:
(c) The parent was a respondent in a proceeding brought under this chapter, 182 or more days have elapsed since the issuance of an initial dispositional order, and the court, by clear and convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to exist and there is no reasonable likelihood that the conditions will be rectified within a reasonable time considering the child's age.
* * *
(g) The parent, without regard to intent, fails to provide proper care or custody for the child and there is no reasonable expectation that the parent will be able to provide proper care and custody within a reasonable time considering the child's age.
The trial court asserted jurisdiction over the child on the basis of respondent's plea of no contest to the petition. The petition alleged that respondent had a history of substance abuse, and that the child tested positive for THC and opioids at birth. Respondent never resolved her substance abuse problem. She continued to test positive for marijuana use and prescription narcotics, even after completing a two-week inpatient rehabilitation program. Respondent openly admitted that she used marijuana to help her relax and fall asleep when she felt stressed. She defended her marijuana use, stating that it did not cause the disruptive side effects she experienced from medications that had been legally prescribed to treat her anxiety. One outcome of respondent's treatment at Sacred Heart was reinforcement of her belief that her marijuana use was acceptable because it was not comparable to abuse of alcohol and narcotics. Although respondent maintained that she would qualify for a medical marijuana card, she never obtained a card during the two-year period this case was pending. Respondent maintained that her marijuana use was beneficial, that it did not interfere with her ability to manage her responsibilities, and that she had safe means of procuring it. Reliance on marijuana was clearly a condition that led to the child's adjudication, and respondent clearly failed to rectify it. Respondent also continued to test positive for prescription drugs without a valid prescription. Because the case had been pending for more than two years, and respondent had not been able to resolve her substance abuse issues, and she continued to test positive for marijuana and other drugs after attending a substance abuse treatment program, she was not reasonably likely to rectify this condition within a reasonable period of time. Accordingly, the trial court did not clearly err in finding that termination of respondent's parental rights was justified under § 19b(3)(c)(i).
Respondent also argues that the trial court erred in relying on § 19b(3)(g) as an additional ground for termination. However, because only one statutory ground for termination is necessary, In re Trejo, 462 Mich at 356, and the trial court did not clearly err in finding that § 19b(3)(c)(i) was established by clear and convincing evidence, we need not determine whether § 19b(3)(g) also supports the trial court's decision.
V. BEST INTERESTS
Finally, respondent argues that the trial court erred in finding that termination of her parental rights was in the child's best interests. Once a statutory ground for termination is established, the trial court shall order termination of parental rights if it finds that termination is in the child's best interests. MCL 712A.19b(5). The trial court's best-interest decision is also reviewed for clear error. In re Brown/Kindle/Muhammad, 305 Mich App 623, 637; 853 NW2d 459 (2014). "A finding is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." In re Hudson, 294 Mich App 261, 264; 817 NW2d 115 (2011).
Because "placement with relatives weighs against termination under MCL 712A.19a(6)(a)," a trial court must specifically consider a child's relative placement when deciding whether termination of parental rights is in a child's best interests. In re Olive/Metts, 297 Mich App 35, 43; 823 NW2d 144 (2012). The trial court considered the child's relative placement in this case, and acknowledged that placement with a relative tends to weigh against termination, but nonetheless found that the child's interests would be better served by permanent placement with a caregiver relative. Moreover, the court noted that respondent planned to leave the state if she received custody of the child, which would deprive her and the child of their beneficial and supportive relationships with respondent's family.
The trial court acknowledged that this was a "very difficult case," particularly because respondent had many positive qualities, including her consistent involvement in the child's care and her continued stable employment. However, the court observed that the child had been in care for 28 months and was in need of permanency and stability, and respondent was never able to abstain from her illegal use of marijuana and other drugs during this period. Respondent understood that reunification required her to resolve her substance abuse issues, and she even attended substance abuse treatment. She continued, however, to self-medicate, minimized the seriousness of her problem, and even defended her self-medication as a rational strategy for managing her anxiety. Instead of fully availing herself of opportunities to learn healthier strategies to manage anxiety in therapy, she abandoned therapy after completing inpatient treatment. Despite respondent's positive qualities, the trial court did not clearly err in giving greater weight to her continued substance abuse and her failure to address her emotional stability issues in therapy. Accordingly, the trial court did not clearly err in finding that termination of respondent's parental rights was in the child's best interests.
Affirmed.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Peter D. O'Connell