Here is “Legal gears on Nestle water cases grind slowly in Michigan” from MLive.
We are wrapping up a training in Montana where every person in the room answered the ICWA pop quiz question: “Do ICWA protections apply to non-Native parents of Indian children?” correctly. Luckily the Michigan Court of Appeals answered it correctly as well. The Court of Appeals also provides an excellent discussion of why Adoptive Couple v. Baby Girl did not apply to this, and similarly situated cases. There is a lot of useful language in this case for attorneys who continue to run into these issues in trial court across the country.
The trial court applied the appropriate heightened standards or
burdens when terminating respondent-mother’s parental rights, but it failed to apply them when terminating the parental rights of respondent-father, ostensibly because the Indian heritage of the children is solely through their mother’s bloodline. Respondent-father argues that ICWA and MIFPA standards govern the termination of his parental rights, considering that TB is his biological child and an Indian child, regardless of respondent-father’s personal heritage. We agree and conditionally reverse the termination of respondent-father’s parental rights to TB and remand for proceedings consistent with ICWA and MIFPA, as well as MCR 3.977(G).
In addition, however, the Court correctly analyzed whether Adoptive Couple v. Baby Girl applied to this case, and raised this issue sua sponte “whether the heightened standards of ICWA, MIFPA, and MCR 3.977(G) should apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights in regard to TB.”:
Given the equivocal nature of Justice BREYER’s concurrence [in Adoptive Couple], it cannot truly be said that a majority of the United States Supreme Court created an inflexible rule for purposes of “continuing custody” analysis under § 1912(f), as well as the analysis of § 1912(d). And even assuming the contrary, it certainly is not clear whether the Supreme Court would impose the rule based solely on whether a parent had physical custody, in the strictest sense of the term under the law, where a custodial-like environment existed on a practical level absent any technical custodial rights.
We hold that under the particular facts of the instant case, which are entirely dissimilar to those in Adoptive Couple where the father effectively abandoned the child from birth and even in
utero, the beyond-a-reasonable-doubt standard applies to the termination of respondent-father’s parental rights, although he never had legal or physical custody rights, as those terms are legally employed. When DHHS’s petition was filed in August 2015 and for a period thereafter, respondent-father, respondent-mother, and TB lived together as a familial unit wherein respondent-father was providing some care and custody for TB. And petitioner was providing
reunification services. The family unit dissolved only when TB was removed by court order, although respondents remained together. The removal of TB discontinued the custodial arrangement that had existed with respect to both respondents and TB, if not in law, in practice.
Here is the opinion in Paquin v. City of St. Ignace:
In light of the foregoing, we hold that the Tribe constitutes a local government and that plaintiff’s employment with the Tribe constituted employment in “local, state, or federal government” for purposes of Const 1963, art XI, § 8. Such a holding does not diminish or undermine the Tribe’s inherent sovereign authority. “[S]tate laws are generally not applicable to tribal Indians on an Indian reservation except where Congress has explicitly provided that state law shall apply.” Huron Potawatomi, Inc v Stinger, 227 Mich App 127, 132; 574 NW2d 706 (1997). In the instant case, no one is seeking to prohibit plaintiff from running for a position in the Tribe or otherwise to interfere in the Tribe’s regulation of its internal matters. Instead, Const 1963, art 11, § 8 is being applied to prohibit plaintiff from running for a position on defendant’s city council. In other words, the constitutional provision is being used to assess the qualification of a potential candidate for a position on the city council of a Michigan municipality, not a position in the Tribe. “The members of the various Indian tribes are citizens of the United States and citizens of the state within which they reside.” Mich United Conservation Clubs v Anthony, 90 Mich App 99, 109; 280 NW2d 883 (1979) (citations omitted). In seeking to run for an elective position in a Michigan city, plaintiff was acting in his capacity as a Michigan citizen rather than a member of the Tribe. As a Michigan citizen, plaintiff is subject to the same laws as other Michigan citizens when seeking to run for an office in a Michigan municipality. See generally, Mescalero Apache Tribe v Jones, 411 US 145, 148-149; 93 S Ct 1267; 36 L Ed 2d 114 (1973) (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.”).
Here is the opinion in In re Detmer/Beaudry. The question of whether an involuntary removal of a child triggers ICWA if the child is not placed in “foster home or institution or home of a guardian or conservator” 25 U.S.C. 1903(1)(i) is one that comes up pretty regularly. This case addresses that question under the Michigan Indian Family Preservation Act (MIFPA) and concludes that when a child is removed from respondent mother and placed with his non-respondent father, that removal still triggers MIFPA’s protections. The court focused on the dictionary definition of “removed” and found:
Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent mother’s objection, the trial court ordered that AB be physically placed with his nonrespondent father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court’s order moved AB’s residence to his nonrespondent father’s home and conditioned respondent-mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.
Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.
The ICWA Appellate Clinic at MSU Law co-authored the Tribe’s brief in this case.
The unpublished opinion is here. The Court found that Public Act 281 (which added wolves to the list of game species) violated the Title-Object Clause of the Michigan Constitution.
PA 281 was passed with the provision that kept portions of certain voter referendums even if voters rejected them: “In other words, even if voters rejected PA 520 and PA 21 at the general election, those portions of the rejected laws that were incorporated into PA 281 would nevertheless survive. … At the November 4, 2014 general election, a majority of voters rejected both PA 520 and PA 21. PA 281, which reenacted portions of voter-rejected PA 520 and PA 21, including the addition of wolf to the list of game species, took effect on March 31, 2015.”
Previous coverage here.
This is a pretty standard unpublished ICWA notice case (there have been 62 so far this year, 53 out of California, 3 from Michigan, 2 from Texas, and 1 each from Indiana, Iowa, Kansas, and New Jersey). We’re posting it for two (three) reasons. From the opinion:
We also reject the father’s challenges to the notices’ failures to include a copy of the petition in LC No. 13–514918–NA. The father cites only 80 CFR 37, 10146, 1153–1154 (2015). This regulation contains the requirements for Native–American tribal notifications under 25 USC 1912(a). In relevant part, the regulation demands that a notice of a pending child custody proceeding contain “clear and understandable language and include” identifying information concerning the child, the tribes “in which the child … may be eligible for membership,” and “[a] copy of the petition, complaint or other document by which the proceeding was initiated.” 80 CFR 37(B)(6)(a)(1)-(3). But the father fails to identify any authority in support of the proposition that the failure to strictly adhere to the requirement that a tribal notice contain a petition copy demands conditional reversal.
1. There is still mass confusion over Guidelines v. Regulations, including which is currently effective, their binding nature, and how to cite them. It appears father’s attorney meant to cite 80 Fed. Reg. 10153-4 (Feb. 25, 2015), which are the 2015 Guidelines, not regulations, and not a CFR. The following quote is from the same source, though I admit I was stumped on where that 37 came from–BUT that’s the number of the applicable Federal Register: Volume 80, No. 37. Page 10153, Section B.6(a). But the Court of Appeals didn’t catch this mis-cite either.
2. Yes, the Guidelines are not binding, but the Court of Appeals apparently considered them regulations for the purposes of the opinion. And yes, the 2016 Regulations are not binding until December. However, that’s also not the court’s reasoning. The Michigan Court of Appeals here says there is no remedy for not following the Regulations. That there must be additional authority beyond that of the language of federal Regulations to justify sending it back to the lower court to do the work required–father (mis)cites only binding federal Regulations. This is a small issue in this case–it appears that notice on the whole was proper. But it also demonstrates the problem with the continued lack of an enforcement mechanism in these cases.
3. For the record, either the attorney or the court could have cited to the current Regulations, 23 CFR sec. 23.11(d)(4)(2005)(“a copy of the petition, complaint, or other document by which the proceeding was initiated”), which are currently binding. The attorney or court could also point to the Regulations which will be binding in December and moved that same requirement to sec. 23.111(d)(5)(“a copy of the petition, complaint, or other document by which the child custody proceeding was initiated . . .”), 81 Fed. Reg. 38864, 38871 (June 14, 2016).
In this case, the trial court explicitly recognized that Hillert, the only expert witness at the termination hearing, did not support termination and specifically testified that returning AP andDP to Stenman’s care would not likely result in serious emotional or physical damage to either child. Nonetheless, considering the other evidence presented, the trial court determined that returning AP and DP to Stenman’s care would result in such damage beyond a reasonable doubt. In so doing, the trial court essentially disregarded Hillert’s testimony, contrary to the plain language of 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2). Accordingly, we conclude that the trial court failed to adhere to the requirements of ICWA and its Michigan counterparts, and remand for further proceedings with respect to AP and DP.
The testimony of a qualified expert witness under ICWA is part of the necessary proof to demonstrate beyond a reasonable doubt that return of the child to her mother will cause serious emotional or physical damage. Without that testimony, the state has not met its burden to terminate parental rights. If the state cannot provide a QEW that agrees with termination, the court cannot terminate parental rights. In situations like this, where the QEW not only testifies that he does not agree with the termination in this case, nor in termination generally as a tribe, this ought to force the state to look to other long term permanency solutions that don’t require the termination of parental rights, like Michigan’s long term juvenile guardianships, or at ways other states have addressed this issue (like California).
While it looks like the State gave notice to Cherokee Nation and Blackfeet Tribe with all the information on the record, and it’s also good the State noticed local Michigan tribes (State is required to contact a tribe in the county where the child is located under 712B.9(3)), the original notice to *all* of the tribes should be in the record. And noticing UKB when a parent claims Cherokee is not something above and beyond, but what the State is supposed to do (along with CNO and Eastern Band):
In addition to the above notifications, the lower court record contains evidence of additional efforts made by DHS to ascertain whether RI and KI had Indian heritage. Specifically, the record contains a response from the United Keetowah Band of Cherokee Indians in Oklahoma indicating that neither RI nor KI were members, although the lower court record does not contain the original notification sent to that tribe. Additionally, the record contains responses from the Saginaw Chippewa Indian Tribe of Michigan indicating that neither RI nor KI were members or eligible for membership, although the lower court record again does not contain the original notifications sent to that tribe. Finally, the record contains copies of both the notifications to, and a response from, the Nottawaseppi Huron Band of Potawatomi Indians; membership in that tribe was also denied. In addition to the above record evidence, DHS reports indicate that notifications were sent to a plethora of other tribes, and that membership in those tribes was denied.