In re Jones

316 Mich.App. 110

894 N.W.2d 54

In re JONES.

Docket No. 330945.

Court of Appeals of Michigan.

Submitted June 10, 2016, at Detroit.

Decided June 28, 2016, at 9:00 a.m.

Jeffrey S. Getting, Prosecuting Attorney, and Heather S. Bergmann, Assistant Prosecuting Attorney, for petitioner.

R. Scott Ryder for respondent.

Before: MURPHY, P.J., and SAAD and BORRELLO, JJ.

PER CURIAM.

Respondent mother appeals as of right the trial court's order terminating her parental rights to the minor children, SL and CJ, under MCL 712A.19b(3)(c)(i ) (conditions leading to adjudication continue to exist), (c)(ii ) (other conditions implicating jurisdiction exist and were not rectified), (g) (failure to provide proper care or custody), (j) (reasonable likelihood of harm if child returned to parent's home), and (l ) (parental rights to another child previously terminated).¹ We affirm with respect to SL and conditionally reverse and remand for further proceedings relative to CJ.

Respondent argues that the trial court and petitioner, the Department of Health and Human Services (DHHS), failed to make sufficient efforts to determine whether CJ is an Indian child under 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. This Court has observed that the MIFPA was designed to protect the best interests of Indian children and to promote the security and stability of Indian families and tribes and that " [t]he ICWA and the MIFPA each establish various substantive and procedural protections for when an Indian child is involved in a child protective proceeding." In re England, 314 Mich.App. 245, 251, 887 N.W.2d 10 (2016), citing MCL 712B.5(a) and In re Spears, 309 Mich.App. 658, 669, 872 N.W.2d 852 (2015).²

Under the ICWA, the United States Congress provided, in pertinent 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. 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.... [25 U.S.C. 1912 (a) (emphasis added).] ^{[3 ]}

With respect to interpretation of the "reason to know" language in 25 U.S.C. 1912(a), our Supreme Court construed the phrase broadly, determining that the notice requirement of 25 U.S.C. 1912(a) is triggered when there exists "sufficiently reliable information of virtually any criteria on which [tribal] membership might be based[,]" including "information suggesting that the child, a parent of the child, or members of a parent's family are tribal members[.]" In re Morris, 491 Mich. 81, 108, 108 n. 18, 815 N.W.2d 62 (2012) (emphasis added). "Once sufficient indicia of Indian heritage are presented to give the court a reason to believe the child is or may be an Indian child, resolution of the child's and parent's tribal status requires notice to the tribe or, when the appropriate tribe cannot be determined, to the Secretary of the Interior." Id. at 108, 815 N.W.2d 62 (emphasis added); see also In re Johnson, 305 Mich.App. 328, 330–332, 852 N.W.2d 224 (2014) (holding that the notice requirement of ICWA was triggered when the trial court had information that the child's grandmothers were Native Americans).

The MIFPA, which was enacted pursuant to 2012 PA 565, effective January 2, 2013, contains language similar to that found in 25 U.S.C. 1912(a) :

In a child custody proceeding,^{[4 ]} 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 ^{[5 ]} 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. [MCL 712B.9(1) (emphasis added).]

In the MIFPA, the Legislature expressly set forth a nonexclusive list of circumstances that trigger the notification mandate found in MCL 712B.9(1) :

Circumstances under which a court, the department,^[6] or other party to a child custody proceeding has reason to believe a child involved in a child custody proceeding is an Indian include, but are not limited to, any of the following:

* * *

(b) Any public or state-licensed agency involved in child protection services or family support has discovered information that suggests that the child is an Indian child.

* * *(e) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child. [MCL 712B.9(4) (emphasis added).]

In the instant case, multiple petitions had been filed and numerous hearings had been conducted over the span of several years. In January 2011, respondent had indicated to the trial court that CJ's father "might be Native American," although she could not identify any particular tribal affiliation.⁷ Nothing came of the matter, the petition pending at that time was dismissed, and the court terminated its jurisdiction. In December 2012, the trial court inquired into Native American heritage, and a child protective services (CPS) worker indicated that there was no Indian heritage or tribal connection. However, the petition that was pending at that particular time pertained solely to SL, not CJ, so the response by the CPS worker is irrelevant to our analysis, because there is no argument before us that SL may be an Indian child.⁸ In November 2013, in relation to a new petition that did include CJ, respondent informed the trial court that CJ's father "might have a little Indian in him." She further asserted that CJ's father "says he might be Cherokee[,] [b]ut he's not sure." The trial court indicated that the issue needed to be explored, noting that an effort should be made to obtain some cooperation from CJ's father on the matter.

At a pretrial conference in December 2013, a DHHS worker informed the trial court that she had spoken to CJ's father, who advised her that he "thinks there may be" Native American heritage in his family, but he was simply unsure. The DHHS worker told the trial court that she directed CJ's father to gather family names for her, so that she could submit paperwork checking on tribal membership or eligibility. The trial court ordered further investigation on the issue and ordered CJ's father to fully cooperate. Thereafter, in late December 2013, the DHHS worker sent a notice to the Department of the Interior, Bureau of Indian Affairs (BIA), in an effort to determine CJ's enrollment, or eligibility status for enrollment, in an Indian tribe.⁹ The notice only included the names, birthdates, and addresses of respondent, CJ, and CJ's father. In January 2014, the BIA responded in writing to the inquiry, stating that there was "insufficient information to determine tribal affiliation" at that time. At a review hearing in September 2014, the trial court noted that no exhibit had yet been filed regarding the inquiry into CJ's Native American heritage, and respondent reiterated her belief that CJ's father might be Cherokee. At the next hearing in November 2014, the notice sent to the BIA and the BIA's response were admitted. There is no further discussion or document in the record pertaining to Native American heritage or whether CJ might be an Indian child.

We first conclude that, for purposes of the ICWA, there was sufficiently reliable information—of virtually any criteria—of tribal membership or eligibility for membership, because the trial court had information obtained from respondent and CJ's father suggesting that CJ's father might have Native American heritage. In re Morris, 491 Mich. at 108 & n. 18, 815 N.W.2d 62 ; In re Johnson, 305 Mich.App. at 332, 852 N.W.2d 224. We reach this conclusion because the Supreme Court made abundantly clear in In re Morris that if we are to err, we are to err on the side of caution, protecting the interests of Indian children, families, and tribes to avoid later potential disruptions in the child's life. In re Morris, 491 Mich. at 88–89, 106–107, 815 N.W.2d 62. Additionally, for purposes of the MIFPA, we conclude that the DHHS discovered information that "suggest [ed]" that CJ is an Indian child, MCL 712B.9(4)(b), and that the trial court and counsel had knowledge that CJ "may be an Indian child[,]" MCL 712B.9(4)(e) (emphasis added).¹⁰ Accordingly, we hold that the notice requirements of both 25 U.S.C. 1912(a) and MCL 712B.9(1) were triggered in this case.

The record reflects that notice was sent to the Secretary of the Interior or the BIA, but we note that such notice only becomes obligatory when "the identity or location of the parent or Indian custodian and the tribe cannot be determined[.]" 25 U.S.C. 1912(a) ; MCL 712B.9(1). The first step in the process is to send the appropriate notification to "the parent or Indian custodian and the Indian child's tribe," if determinable. 25 U.S.C. 1912(a) (emphasis added); MCL 712B.9(1) (emphasis added). The trial court and the DHHS were familiar with the identity and location of respondent and CJ's father, who were both fully apprised of the pending proceedings. Regarding the identity of...