STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of ISABELL E. MAYNARD, Minor.
FAMILY INDEPENDENCE AGENCY, FOR PUBLICATION
January 19, 1999
Petitioner-Appellee, 9:10 a.m.
v No. 208851
Emmet Juvenile Court
LC No. 97-004087 NA
TRICIA YVONNE MAYNARD,
Respondent-Appellant.
Before: Gage, P.J., and MacKenzie and White, JJ.
GAGE, P.J.
Respondent appeals as of right the probate court order
terminating her parental rights to the minor Isabell pursuant to
MCL 712A.19b(3)(g); MSA 27.3178(598.19b)(3)(g).[1]
Although we conclude that the probate court did not err in its
findings of fact nor by ordering termination of respondent's
parental rights, we remand this case so that the court may provide
notice of these proceedings to any interested Indian tribe, as
required by the Indian Child Welfare Act (ICWA), 25 USC 1901 et
seq.
Respondent is a cognitively and emotionally impaired,
seventeen year-old single mother. The original petition filed by
petitioner Family Independence Agency (FIA) sought jurisdiction
over both respondent and Isabell, alleging that the home life
provided by respondent's mother Beverly Jean Maynard was generally
chaotic, that respondent feared her younger autistic sister Julie
Maynard might assault her, and that Beverly had ignored repeated
caseworker warnings regarding "the risk of sexual activity to the
girls in [respondent's] situation," thus resulting in respondent's
pregnancy with Isabell. The FIA alleged concern regarding
Isabell's welfare due to respondent's cognitive and emotional
disorders and her resultant poor decision making ability,
respondent's lack of parenting skills, and an alleged risk of harm
arising from Julie's unpredictable behavior. The FIA requested
removal of both respondent and Isabell from Beverly's home, and
recommended their placement together in foster care. At the April
29, 1997 preliminary hearing, the parties agreed to a temporary
out-of-home placement for respondent and Isabell and to adjourn the
hearing.
The FIA subsequently filed a June 10, 1997 amended petition
that withdrew its prior neglect petition regarding respondent.
Respondent therefore returned home with Beverly in early June. On
the amended petition, the FIA checked a box that indicated Isabell
was a "[m]ember of or eligible for membership in American Indian
Tribe or Band," but the petition contained no further information
regarding either respondent's or Isabell's potential Indian
heritage. The lengthy amended petition also contained further
allegations regarding the potential for harm to Isabell while in
respondent's care. Specifically, the amended petition alleged that
despite the provision of parenting support and services respondent
had not enhanced her parenting skills, but that attachment and
bonding between respondent and Isabell was decreasing, and that
respondent refused to acknowledge her shortcomings as a parent and
her need for constant supervision and support. The amended
petition also contained a community mental health counselor's
evaluation of respondent as suffering from an "[a]djustment
[d]isorder with mixed disturbance of emotions and conduct" and a
schizotypal personality disorder, and described psychotic behavior
exhibited by respondent, including hallucinations and paranoia. At
the June 11, 1997 preliminary hearing on the amended petition,
respondent's counsel consented to an out-of-home placement for
Isabell.
After a three-day trial, a jury concluded that the probate
court had jurisdiction over Isabell. After a subsequent two-day
termination hearing, the probate court concluded that clear and
convincing evidence existed that termination of respondent's
parental rights was appropriate under MCL 712A.19b(3)(g); MSA
27.3178(598.19b)(3)(g).
Respondent first contends that the probate court may not have
properly had jurisdiction over this case, and that the court's
order of termination may therefore be invalid, because the court
failed to ascertain whether Isabell was eligible for membership in
an Indian tribe, and failed to notify the applicable tribe of the
instant proceedings as required by 25 USC 1912(a). Section 1914 of
the ICWA confers on "any parent . . . from whose custody [any
Indian child who is the subject of any action for termination of
parental rights under State law] was removed" the right to
"petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision of
sections 1911, 1912, and 1913 of this title." See also In re
Kreft, 148 Mich App 682, 687-689; 384 NW2d 843 (1986)
(concluding mother whose parental rights were terminated by
Michigan court had standing pursuant to 25 USC 1914 to challenge on
appeal alleged violations of ICWA, even without tribe's
participation in appeal). Whether the probate court failed to
satisfy a notice obligation imposed by the ICWA involves a legal
question of statutory interpretation that we review de novo.
Yaldo v North Pointe Ins Co, 457 Mich 341, 344; 578 NW2d 274
(1998).
Pursuant to the ICWA, child custody proceedings involving
foster care placement or termination of parental rights to an
Indian child are subject to specific federal procedures and
standards. In re Elliott, 218 Mich App 196, 201; 554 NW2d
32 (1996). "[T]o promote the stability and security of Indian
tribes and families," Congress established within the ICWA "minimum
Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture." 25
USC 1902. One of the requirements imposed by the ICWA is that an
interested Indian tribe receive notice of termination proceedings
involving Indian children:
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 [of the Interior] in like manner,
who shall have fifteen days after receipt to provide the
requisite notice to the parent or Indian custodian and
the tribe. [25 USC 1912(a).]
See also MCR 5.980(A)(2) [requiring that a court presiding over a
protective proceeding involving an Indian child notify "the child's
tribe and the child's parents or Indian custodian and, if the tribe
is unknown, [] the Secretary of the Interior" of the proceeding].
For ICWA purposes, an "Indian child" is any unmarried individual
less than eighteen years of age who is either (1) an Indian tribe
member or (2)(a) eligible for Indian tribe membership and (b) an
Indian tribe member's biological child. 25 USC 1903(4).
The FIA argues that the tribal notice requirement was
inapplicable in the instant case because it was not established
before the probate court that Isabell was an Indian child as
defined by the ICWA. At the April 29, 1997 preliminary hearing,
pursuant to MCR 5.965(B)(7), the referee inquired whether
respondent was an Indian tribe member or was eligible for Indian
tribe membership, to which Beverly replied, "[S]he has a little
[I]ndian in her, but I don't know if it's enough to qualify."
Subsequently, at the June 11, 1997 preliminary hearing on the FIA's
amended petition, respondent answered affirmatively when the
referee asked whether respondent had any Indian blood. Beverly
elaborated that respondent's father's family had some Indian blood,
but that she did not know whether respondent qualified for
membership in any Indian tribe. The referee noted for the record
that respondent was potentially an Indian tribe member, and ordered
that the FIA further investigate respondent's eligibility for
tribal membership.
The FIA claims that Isabell is not eligible for Indian tribe
membership as the biological child of a member because respondent
failed to enroll or otherwise supply some form of membership
verification from any Indian tribe. However, the FIA's argument
ignores that tribal membership is not defined by enrollment.
Enrollment is not always required in order to be a
member of a tribe. Some tribes do not have written
rolls. Others have rolls that list only persons that
were members as of a certain date. Enrollment is the
common evidentiary means of establishing Indian status,
but it is not the only means nor is it necessarily
determinative. [Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed Reg 67584, 67586
(1979),[2] citing United States v
Broncheau, 597 F2d 1260, 1263 (CA 9, 1979).]
See also People ex rel South Dakota Dep't of Social Servs in the
Interests of CH, 510 NW2d 119, 123 (SD, 1993); In the
Interest of HD, 11 Kan App 2d 531, 535-536; 729 P2d 1234
(1986). Because respondent's lack of enrollment in an Indian tribe
is not dispositive of whether Isabell qualifies as an Indian child,
we must consider whether the limited information provided the
probate court regarding respondent's Indian heritage sufficed to
invoke the ICWA's notice requirement.[3]
Although the brief testimony regarding respondent's Indian
ancestry was inconclusive regarding her tribal membership status,
the information was sufficient to require the FIA to provide notice
regarding this proceeding. The Bureau of Indian Affairs guidelines
enumerate "the most common circumstances giving rise to a
reasonable belief that a child may be an Indian." 44 Fed Reg,
supra.
B.1. Determination That Child Is an Indian
(a) When a state court has reason to believe a
child involved in a child custody proceeding is an
Indian, the court shall seek verification of the child's
status from either the Bureau of Indian Affairs or the
child's tribe.
* * *
(c) Circumstances under which a state court has
reason to believe a child involved in a child custody
proceeding is an Indian include but are not limited to
the following:
(i) Any party to the case, Indian tribe, Indian
organization or public or private agency informs the
court that the child is an Indian child.
(ii) Any public or state-licensed agency involved in
child protection services or family support has
discovered information which suggests that the
child is an Indian child.
(iii) The child who is the subject of the
proceeding gives the court reason to believe he or she is
an Indian child.
(iv) The residence or domicile of the child, his or
her biological parents, or the Indian custodian is known
by the court to be or is shown to be a predominantly
Indian community.
(v) An officer of the court involved in the
proceeding has knowledge that the child may be an
Indian child. [Id. (emphasis added).]
See also In the Interest of HD, supra at 534-536.
Respondent's and Beverly's testimony certainly at least suggests
that respondent, and consequently Isabell, potentially qualify as
tribal members, and we therefore conclude that their testimony
obligated the probate court to ensure that the FIA complied with
the ICWA's tribal notification requirement. In re JT, 166
Vt 173; 693 A2d 283, 288 (1997) (father's statement to psychologist
that his father was "full-blooded Mohican" sufficient to trigger
obligation of trial court to inquire regarding child's Indian
status by providing notice to tribe); In re Pedro N, 35 Cal
App 4th 183, 186; 41 Cal Rptr 2d 819 (1995) ("The Indian status of
the child need not be certain in order to trigger notice."); In
re MCP, 153 Vt 275, 288-289; 571 A2d 627 (1989) (concluding
that lower court erred by failing to require tribal notice where
adoptive father was member of Mohawk Indian Tribe who asserted that
child was eligible for membership). We agree with the Vermont
Supreme Court's observation that "[t]o maintain stability in
placements of children in juvenile proceedings, it is preferable to
err on the side of giving notice and examining thoroughly whether
the juvenile is an Indian child," In re MCP, supra at
289, and that "Indian tribes are in a better position to determine
the membership of individuals who have some relationship to the
tribe and the court should defer to this expertise." Id. at
285-286. See also In re Shawboose, 175 Mich App 637, 639;
438 NW2d 272 (1989) (The issue whether the minor children were
Indian children was one for the tribes and not for the probate
court to decide.). "It is impossible for a tribe to determine
whether a child is a tribal member or eligible for membership if it
never receives notice of the proceeding." In re JT,
supra at 289. Our permitting the probate court and FIA to
simply ignore the testimony of record implicating the ICWA
notification requirement would contravene the explicitly stated
Congressional objective "to promote the stability and security of
Indian tribes and families," 25 USC 1902, and we decline to permit
the court and FIA to disregard Congress' expressed intent.
Because the probate court had reason to believe Isabell had
some unspecified Indian heritage, the FIA was required to send
notice of the probate court proceedings and of the applicable
tribe's right of intervention via registered mail, return receipt
requested, to the Secretary of the Interior. 25 USC 1912(a); MCR
5.980(A)(2). The lower court record, however, does not reflect
that the FIA subsequently pursued the matter. The FIA includes in
its brief on appeal a document requesting a determination regarding
Isabell's possible tribal affiliation that it allegedly sent to the
Michigan Indian Child Welfare Agency, and notes that it made a
telephone call to the local Odawa Indian Tribe. These efforts by
the FIA fall far short of satisfying the ICWA's notice
requirements. First, no indication exists that the FIA sent the
document by registered mail, return receipt requested. 25 USC
1912(a). Second, the document was not correctly addressed to the
Secretary of the Interior.[4] Id. Third,
the document nowhere informs any potentially interested tribe of
its right of intervention. Id. Nor does the FIA's
telephone call satisfy any of these ICWA requirements.
The FIA incorrectly implies that respondent should have
provided more initial information regarding her Indian heritage,
and wrongly asserts that after its telephone call to the local
Odawa Tribe, it was then up to the tribe to respond. It is not the
responsibility of respondent to establish the applicability of the
ICWA. "Only after notice has been provided and a tribe has failed
to respond or has intervened but is unable to determine the child's
eligibility for membership does the burden shift to the parties to
show that the ICWA still applies." In re JT, supra
at 289. Because we have determined that the FIA's alleged notice
to an interested tribe did not comply with the ICWA, the FIA's
argument that it was then the tribe's responsibility to take some
further action is without merit. Id. ("It is impossible for
a tribe to determine whether a child is a tribal member or eligible
for membership if it never receives notice of the proceeding.").
Having concluded that the probate court and petitioner failed
to comply with the ICWA's notice requirements, we remain faced with
the question of how this failure affects the probate court's order
terminating respondent's parental rights. Because, as discussed
below, we find that the probate court properly terminated
respondent's parental rights according to Michigan law, we conclude
that we need not reverse the trial court's order of termination.
We instead adopt the same approach taken by many other states'
appellate courts that have addressed a lower court's failure to
provide adequate notice under 25 USC 1912(a), and conditionally
affirm the probate court's termination order, but remand so that
the court and FIA may provide proper notice to any interested
tribe.
We do not believe [reversal of the adjudication and the
return of the juvenile to the parents' custody] is
warranted where the sole deficiency at this time is in
notice and there has been no determination that the ICWA
otherwise applies to this proceeding. Thus in In re
Colnar, 52 Wash App [37,] 41[;] 757 P2d [534 (1988)],
the court remanded the matter to the trial court to
notify the appropriate tribe, and, when the tribe did not
intervene in the proceeding, affirmed the original order.
The court in In re Junious M, 144 Cal App 3d
[786,] 798-[7]99[;] 193 Cal Rptr [40 (1983)] ordered a
similar remand for notice. We concur that these cases
set forth the appropriate procedure and remand to the
trial court for notice according to the [ICWA]. If the
tribe does not seek to intervene, or after intervention
the trial court still concludes that the ICWA does not
apply, the original orders will stand. If the trial
court does conclude that the ICWA applies, further
proceedings consistent with the Act will be necessary.
[In re MCP, supra at 289.]
See also People ex rel South Dakota Dep't of Social Servs,
supra at 124-125 (also remanding solely for tribal
notification purposes).
Next, respondent raises several challenges to the probate
court's findings and conclusions supporting its order terminating
her parental rights. A court may order termination of a parent's
rights when clear and convincing evidence establishes that at least
one statutory ground for termination exists. MCL 712A.19b(3); MSA
27.3178(598.19b)(3); MCR 5.974(F)(3). Once a statutory ground for
termination has been proven by clear and convincing evidence, the
respondent bears the burden of going forward with evidence that
termination is clearly not in the child's best interests. In re
Hall-Smith, 222 Mich App 470, 472-473; 564 NW2d 156 (1997).
Absent any evidence addressing this issue by the respondent,
termination of parental rights is mandatory. Id. at 473.
A decision regarding termination is reviewed in its entirety for
clear error. In re Hamlet, 225 Mich App 505, 515; 571 NW2d
750 (1997).
Respondent suggests that the trial court erred in terminating
her parental rights without taking into account that Beverly, her
mother, testified that she had planned on assisting respondent in
caring for Isabell. Specifically, respondent challenges that the
"court in this case ruled that the rights of [respondent], the
mother, must be weighed independent of the availability of this
other parental assistant, in this case, the grandmother, Beverly
Maynard." Respondent presumably refers to the following discussion
of the probate court regarding Beverly:
In a similar fashion, much was made of grandmother
Beverly's independent ability to be a fit custodian for
Isabell. The argument was advanced that Beverly, the
grandmother, could adequately protect Isabell and
therefore [respondent] and Isabell should live with her.
Again, while it may be a practical reality that Beverly
could adequately parent Isabell, the question for the
court is whether [respondent] is, or can be, a fit
custodian on her own and, if not, whether her parental
rights should be terminated. If the court concludes that
termination of rights should occur, the fact that a
grandmother is a fit custodian may be a proper
consideration for permanency planning in the context of
an adoptive placement. Aside from this future
possibility, the rights of [respondent] must be weighed
independent of the danger posed by sister Julie, as well
as the surrogate parenting by the grandmother.
A thorough review of the entirety of the probate court's
opinion reveals, however, that respondent's argument is without
merit. The opinion reflects that the probate court carefully
considered the testimony of many witnesses regarding respondent's
potential to parent effectively if assisted by someone. For
example, the probate court found that several witnesses' testimony
established that to function effectively as a parent respondent
would require constant supervision. The probate court also found
that several witnesses had testified that despite the possibility
of receiving parenting assistance, due to her cognitive and
emotional impairments respondent would unlikely ever improve her
skills sufficiently to undertake the complex responsibilities of
parenting. The court concluded that it had found "clear and
convincing evidence that [respondent] is an intellectually and
emotionally limited teenager who, because of her significant
longstanding deficits, cannot be expected to develop the
intellectual and cognitive ability to be a safe and nurturing
parent regardless of how long or under what conditions she is
assisted." [Emphasis added.] Thus, although the court did not
specifically refer to Beverly in determining whether respondent
could become a better parent through the assistance of another, the
findings and conclusions of the probate court indicate that it
determined that no amount of assistance from anyone would enable
respondent to behave in the manner of "a safe and nurturing
parent." Because our review of the record reflects that the
court's findings and conclusion were well-supported, we reject
respondent's argument that the trial court erred in failing to
consider Beverly's assistance in determining whether to terminate
her rights.
Respondent's argument concerning the probate court's error in
failing to consider Beverly when deciding whether to terminate
respondent's parental rights continues for approximately seventeen
pages, and it is unclear exactly what further positions respondent
is attempting to set forth. To the extent respondent contends that
the probate court erred in terminating her rights without
considering an arrangement involving Beverly as Isabell's primary
caregiver and respondent also living in Beverly's home, we conclude
that this position is without merit. In support of her position,
respondent points to the philosophy statements found in MCL
712A.1(3); MSA 27.3178(598.1)(3) and MCR 5.902(B), which counsel
that the juvenile code "shall be liberally construed so that each
juvenile coming within the jurisdiction of the court receives the
care, guidance, and control, preferably in his or her own home,
conducive to the juvenile's welfare and the best interest of the
state." However, respondent's argument ignores this Court's prior
observation that the language of MCL 712A.1(3); MSA
27.3178(598.1)(3)'s virtually identical predecessor provision, MCL
712A.1(2); MSA 27.3178(598.1)(2), does not require that the court
place a child with relatives. In re McIntyre, 192 Mich App
47, 52; 480 NW2d 293 (1991). If it is in the best interests of the
child, the trial court may properly terminate parental rights
instead of placing the child with relatives. Id. See also
In re Sterling, 162 Mich App 328, 342; 412 NW2d 284 (1987)
(The court was not under a duty to place the child with
relatives.); In the Matter of McCullough, 141 Mich App 170,
171; 366 NW2d 90 (1985) (rejecting mother's argument that lower
court erred in terminating her parental rights before investigating
possible placement with relatives). Despite the general policy
preference underlying the juvenile code that a child remain in its
own home, the Legislature has defined certain situations in which
the negative influences in the minor's home justify a departure
from this policy preference and require the termination of the
parent's rights. MCL 712A.19b(3); MSA 27.3178(598.19b)(3). This
case falls squarely within one of the legislatively defined
situations warranting a departure from the general policy of
keeping the minor in its own home, specifically subsection
19b(3)(g).[5] In light of the probate court's
conclusion, discussed above, that respondent is unlikely to ever
arrive at being a safe and nurturing parent, and its further
determinations that a potential for physical harm to Isabell
existed due to respondent's hallucinations and that Isabell would
likely suffer limited intellectual and emotional development if not
placed in an enriching environment, all of which observations were
amply supported in the record, we conclude that the probate court
did not err in finding that termination was warranted and was not
contrary to Isabell's best interests.
Next, respondent challenges the probate court's findings
relying on the testimony of psychologist Timothy Strauss, alleging
that Strauss' testimony regarding her ability to bond with Isabell
was improperly speculative when he had not observed any interaction
between her and Isabell. Assuming arguendo that the probate court
erred in considering Strauss' testimony regarding the poor
potential for bonding between someone similarly situated to
respondent and a very young child, this error was harmless. Our
review of the record reveals that multiple witnesses who had
observed respondent interacting with Isabell testified to their
concerns regarding respondent's neglectful and hallucinatory and
paranoid behaviors. The significant number of witnesses who
observed respondent's behavior and testified to their concerns
regarding respondent's parenting abilities distinguish the instant
case from In re Hulbert, 186 Mich App 600, 605; 465 NW2d 36
(1990), in which this Court reversed a lower court's termination
order that was based almost exclusively on the speculative opinions
of psychologists regarding what might happen in the future.
Because clear and convincing evidence besides Strauss' generalized
expert testimony established respondent's neglectful behaviors,
there is no reasonable probability that the trial court's
consideration of Strauss' testimony significantly affected the
outcome of this case. In re Hamlet, supra at 518.
Finally, we reject respondent's contention that the probate
court erred when it improperly compared the home that respondent
and Beverly could provide with that of a traditional family.
Respondent directs our attention to the following statements of the
probate court, made at the conclusion of the termination hearing:
And there's this need for the natural family, which
is kind of hard to judge, but we see it all the time,
particularly here in the probate court, where we have
people searching desperately who have been adopted for
natural parents and that connection, and that's a real
difficult area to know. This Court believes that the
natural family is not an asset if it's not safe or if
it's destructive, even though there's emotional tug for
that. If that's a dangerous circumstance[] then that's
out-weighed. On the other hand, it's hard to measure the
actual growth benefit of being connected to a natural
family. It seems very important to many people and very
useful.
A review of these statements convinces us that the probate court
made absolutely no attempt to compare the potential home
environment of respondent and Beverly with some abstract notion of
a "traditional family." The court merely referenced the juvenile
code's underlying policy of keeping minors with their natural
families, presumably meaning biological families, and went on to
determine that in the instant case the dangers posed to Isabell by
respondent's lack of parenting skills outweighed any benefit
Isabell would derive by remaining with respondent. Therefore,
because respondent's argument mischaracterizes the probate court's
remarks, we conclude that the argument is meritless.
We conditionally affirm the order terminating respondent's
parental rights, but remand for the purpose of providing proper
notice to any interested Indian tribe pursuant to the ICWA. We do
not retain jurisdiction.
/s/ Hilda R. Gage
/s/ Barbara B. MacKenzie
/s/ Helene N. White
FOOTNOTES
1 An August 29, 1997 order was entered
recognizing the release by the father, Charles Jeffrey Grimm, of
his parental rights regarding Isabell. The father is not a party
to this appeal.
2 The guidelines were "not intended to have
binding legislative effect." 44 Fed Reg, supra at 67584.
However, we find them persuasive, and note that "[t]he courts
that have considered notice issues have, however, followed the
recommended procedures." In re MCP, 153 Vt 275, 286-287;
571 A2d 627 (1989).
3 In In re Shawboose, 175 Mich App 637,
639; 438 NW2d 272 (1989), this Court concluded that the ICWA did
not apply when "respondent never met the prerequisite of being an
enrolled member of an Indian tribe." The Shawboose Court
did not address the issue of proper notice, however, and its
statement regarding respondent's enrollment may not be
interpreted as imposing an enrollment prerequisite to application
of the ICWA in every case involving an Indian child.
Respondent's enrollment constituted a dispositive issue in
Shawboose only because one of the potentially appropriate
tribes, which had already received notice of those proceedings
and was given the opportunity to intervene, had itself declined
jurisdiction on the basis that respondent was not an enrolled
member of the tribe. Id. at 639-640.
4 Although the statute, 25 USC 1912(a), explains
that when the child's tribe has not been determined notice must
go to the Secretary of the Interior, we note that the regulations
implementing the statute require that for Michigan proceedings in
which the child's tribe is undetermined notice must be provided
to the Minneapolis Area Director, Bureau of Indian Affairs. 25
CFR § 23.11(b), (c)(2).
5 Subsection 19b(3)(g) provides for termination when "[t]he
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 age of the child."