In re Elw

320 Mich.App. 88

902 N.W.2d 901

IN RE JJW and ELW, Minors.

In re Williams, Minors.

No. 334095

No. 335932

Court of Appeals of Michigan.

Submitted April 5, 2017, at Detroit

Decided June 8, 2017, 9:15 a.m.

In Docket No. 334095: Angela Sherigan for petitioners.

In Docket No. 334095: Hertz Schram PC (by Lisa D. Stern and Matthew J. Turchyn ) for Hands Across the Water, Inc.

In Docket No. 334095: Elizabeth A. Eggert for the Sault St. Marie Tribe of Chippewa Indians.

In Docket No. 334095: Karen Gullberg Cook for the minor children.

In Docket No. 335932: Eric J. Smith, Prosecuting Attorney, Joshua D. Abbot, Chief Appellate Attorney, and John Paul Hunt, Assistant Prosecuting Attorney, for the Department of Health and Human Services.

In Docket No. 335932: Michigan Indian Legal Services (by Cameron Ann Fraser and James A. Keedy ) for respondent.

Before: Sawyer, P.J., and Saad and Riordan, JJ.

Per Curiam.

In Docket No. 334095, petitioners, foster mothers (collectively, petitioners), appeal as of right an Oakland Circuit Court order denying their petition to adopt JJW and ELW (collectively, the children). The children's biological father, intervenor, is a member of the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe), which was also an intervening party in the lower court proceedings. The children are eligible for membership in the Tribe. In addition to challenging the order denying the petition to adopt, petitioners also challenge an earlier order rescinding the order that had placed the children with them for purposes of adoption on the basis of the withdrawal of consent by the child-placing agency and the Tribe.

In Docket No. 335932, respondent, the children's biological father (respondent father), appeals by leave granted¹ a subsequent order from the Macomb Circuit Court denying his motion to withdraw his consent to terminate his parental rights and for return of the children.

Because the children are eligible for membership in the Tribe, the parties' claims on appeal implicate the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. ICWA establishes minimum federal standards for the placement of Indian children in foster or adoptive homes that "reflect the unique values of Indian culture." 25 U.S.C. 1902. Likewise, the Michigan Legislature enacted MIFPA, with the purpose of protecting "the best interests of Indian children and promot[ing] the stability and security of Indian tribes and families." MCL 712B.5(a). There is no dispute that the children in this case are Indian children under both ICWA and MIFPA. See 25 U.S.C. 1903(4) and MCL 712B.3(k).

In Docket No. 335392, we affirm the Macomb Circuit Court's order denying respondent father's motion to withdraw consent to terminate his parental rights and for return of the children because he does not have a right to withdraw his consent under MIFPA, specifically MCL 712B.13, ICWA, or the Michigan Adoption Code, MCL 710.21 et seq. In Docket No. 334095, we vacate the Oakland Circuit Court's order rescinding the order that had placed the children with petitioners because we conclude that neither ICWA nor MIFPA permit rescission of a placement order due to a change in consent by a child-placing agency or tribe after entry of the placement order. Because the Oakland Circuit Court did not rule on the factual issue whether adoption was in the children's best interests, or whether circumstances had arisen that made adoption undesirable, we vacate the order denying petitioners' petition for adoption and remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

In August 2012, the Department of Health and Human Services (DHHS) filed a petition in the Macomb Circuit Court, requesting that the court take jurisdiction over the two-year-old JJW and newborn ELW, whose meconium screen tested positive for THC, opiates, and cocaine. Both biological parents, respondent father and the mother, admitted that they had relapsed into substance abuse. The children were removed from their biological parents' care and placed with petitioners on August 13, 2012.

Nearly three years later, in May 2015, respondent father signed a form titled, "RELEASE OF CHILD BY PARENT." It provided, in relevant part:

2. ... I voluntarily give up permanently all of my parental rights to my child.

3. I understand my right to request a rehearing or to appeal within 21 days after an order is entered terminating my parental rights.

4. I have not received or been promised any money or anything of value for the release of my child except for charges and fees approved by the court.

5. Of my own free will, I give up completely and permanently my parental rights to my child, and I release my child to Michigan Department of Human Services for the purpose of adoption.

The statutes and court rule listed at the bottom of the release form are: " MCL 710.28, MCL 710.29, MCL 710.54, 25 U.S.C. 1913(a), [and] MCR 3.801." The children's mother executed the same document on the same day. At the hearing regarding the release, the biological parents waived any right to a judge. The biological parents explained that they could not provide for their children and that the current placement with petitioners was "working out good." The referee advised them that there was no guarantee who the children would be placed with and respondent father replied, "Right." Following the release of parental rights, the Macomb Circuit Court entered an order terminating the biological parents' rights to the children and also continuing the children's placement with petitioners. The Macomb Circuit Court committed the children to the Michigan Children's Institute (MCI) for further case planning.²

Petitioners have four other biological and adopted children in their family. Throughout the period of time shortly after the children's placement with petitioners in 2012 until petitioners filed a petition for adoption in December 2015, respondent Hands Across the Water (HAW) investigated a number of reports involving the foster family, and various safety plans and corrective action plans were implemented. Mary E. Rossman, the Superintendent of MCI, nevertheless voluntarily consented to the adoption of the children by petitioners. In addition, the Tribe approved of the adoption "with reservations."

On February 2, 2016, the Oakland Circuit Court terminated the rights of MCI after finding that the consent to adoption was genuine, that it was given with legal authority, and that the best interests of the children would be served by the adoption. After consent, the court entered an order placing both children with petitioners.

On February 22, 2016, HAW wrote a letter to the Oakland Circuit Court, asking it to rescind the order placing the children with petitioners and not to finalize the adoption. In the letter, HAW detailed previous allegations and action plans and noted new allegations³ that suggested that the foster family would be unable to meet the needs of all the children in the home. On March 7, 2016, the Tribe wrote to the Oakland Circuit Court supporting HAW's recommendation to oppose the adoption of the children by petitioners.

At a hearing on April 29, 2016, the Oakland Circuit Court judge suggested that she had little discretion in this matter because, under ICWA, any parent or Indian tribe could withdraw consent to placement at any time, and upon withdrawal, the child would be returned to the parent or tribe. The judge stated that she was "irritated and frustrated" that HAW had not done its job to recognize the problems with the placement earlier, before the children were "going to be ripped out of this home." The judge then requested additional briefing.

On June 14, 2016, the Oakland Circuit Court entered an opinion and order providing, in relevant part:

Consents to adoption may be executed by "the authorized representative of the department or his or her designee or of a child placing agency to whom the child has been permanently committed by an order of the court and/or by the court ... having permanent custody of the child." MCL 710.43. Under ICWA Section 1913(c), parents may withdraw consent to adoptive placement for any reason at any time prior to the entry of a final decree of adoption. See In re Kiogima, 189 Mich. App. 6 (1991). Similarly, under MIFPA, "a parent or Indian custodian who executes a consent" for placement for purposes of adoption "may withdraw his or her consent at any time before entry of a final order of adoption by filing a written demand requesting the return of the child." MCL 712B.13(3) (emphasis added). "Once a demand is filed with the court, the court shall order the return of the child." Id.Importantly, withdrawal of consent by a parent or Indian custodian "constitutes a withdrawal of ... a consent to adopt executed under" MCL 710.43, cited above. MCL 712B.13(3).

In Oglaga Sioux Tribe [sic], the court at issue held that "Tribes have parens patriaestanding to bring [an] action" on par with that of a biological parent. [Oglala Sioux Tribe v. Van Hunnick, 993 F.Supp.2d 1017, 1027-1028 (D.S.D., 2014).]. The Court reasoned that ICWA was enacted to " 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' " Id. (quoting ICWA sec. 1902 ).

The Court's Findings

Based on the legal authority cited above, the Court has no choice but to grant the Agency's and the Tribe's request to set aside the Order. The Court notes that Petitioners' citation of MCL 710.51 is inapplicable here, as Minors are of Indian heritage such that ICWA and MIFPA supersede any and all conflicting provisions of the Michigan Adoption Code. The Court notes that the Agency and the Tribe both have standing to rescind the Order and that their authority to do so still exists because the finalization of Minors' adoption has not yet occurred. While ICWA only specifically addresses a parent'sright to revoke consent to adoption, the Court notes that MI

...