In re KMN

309 Mich.App. 274

870 N.W.2d 75

In re KMN.

Docket Nos. 322329

322883.

Court of Appeals of Michigan.

Submitted Jan. 7, 2015, at Grand Rapids.

Decided Feb. 26, 2015.

Bolhouse, Baar & Lefere, PC, Grandville (by Thomas R. Vander Hulst), for petitioners.

Rosette, LLP, Mattawan (by Karrie S. Wichtman ), for the Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians.

Before: RIORDAN, P.J., and MARKEY and WILDER, JJ.

Opinion

WILDER, J.

Intervenor-appellant, the Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians or Gun Lake Tribe (the Tribe) appeals as of right the July 9, 2014 order allowing petitioner-appellees to adopt a child (KMN) and the trial court's earlier June 4, 2014 orders certifying the consent of KMN's mother to the adoption, terminating her parental rights after her consent, making KMN a ward of the court for purposes of adoption, and transferring KMN to the petitioners for a preadoptive placement.¹ The primary emphasis of the Tribe's claims on appeal is the assertion that the trial court violated § 1915(a) of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and MCL 712B.23(2) of 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 USC 1902. Section 1915(a) of ICWA provides:

In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.

MCL 712B.23(2) provides, “Absent good cause to the contrary, the adoptive placement of an Indian child must be in the following order of preference: (a) A member of the child's extended family. (b) A member of the Indian child's tribe. (c) An Indian family.” We find no violations of ICWA but agree that the trial court failed to follow the mandates of MCL 712B.23. Accordingly we affirm in part, vacate in part, and remand for further proceedings.

I

On October 24, 2013, in a separate case (Case No. 13–008396–NA), the Department of Human Services (DHS) filed a petition for removal of KMN immediately after her birth on the basis of the mother's previous and lengthy history of abuse and neglect of her other children. The petition was supplemented the next day to include a request for termination of the mother's parental rights.

On February 19, 2014, a member of the Tribe was identified as the biological father of KMN; he voluntarily consented to the termination of his parental rights in Case No. 13–008396–NA. In that termination order, the trial court checked a box that provided, “The adoptee is an Indian child as defined in MCR 3.002(5) and the court has considered the application of the Indian Child Welfare Act in this matter.”²

On April 2, 2014, in Case No. 13–008396–NA, the trial court ordered that efforts should be made to reunify KMN and her mother. On May 5, 2014, and again on June 4, 2014, in the instant case (Case No. 14–000805–AD), petitioners filed a petition for direct placement adoption. They had no previous relationship to KMN. The petition provided that her father's parental rights had been terminated, that KMN was an Indian child, and that her mother had consented under MCL 712B.13 and the Michigan Adoption Code. Notice of the petition was also sent on May 5, 2014, to a representative of the Tribe.

In a June 3, 2014 brief in support of adoption, petitioners and KMN's mother claimed that KMN had lived in a foster home that did not comply with ICWA from about October 26, 2013 to May 29, 2014, that KMN was subsequently transferred to her father's distant relative,³ and that the father did not approve of that transfer. They further claimed that KMN's father had abandoned her mother after she became pregnant with KMN, that he was imprisoned before KMN was born, and further, that although he is of Indian descent, he never lived with the Tribe or adopted its culture. They also argued that the United States Supreme Court's ruling in Adoptive Couple v. Baby Girl, ––– U.S. ––––, 133 S.Ct. 2552, 2564, 186 L.Ed.2d 729 (2013), was dispositive—preferences in 25 USC 1915(a) did not apply because KMN's father had abandoned her, and there were no other parties (Indian or non-Indian) who had formally sought to adopt her.

The trial court held a hearing on the adoption petition on June 4, 2014. Petitioners and KMN's mother argued that the mother's preference regarding KMN's adoptive placement constituted good cause to deviate from ICWA's placement preferences in 25 USC 1915(a) and that KMN's only connection to the Tribe was her father, who had abandoned her. They urged the trial court to acknowledge the mother's consent for direct placement adoption and certify a preadoptive placement with petitioners.

The Tribe opposed the adoption petition, maintaining that KMN was an Indian child under the broad definitions in ICWA and MIFPA, that there was an “Indian relative ready, willing, and able to adopt” KMN, and that the relative had not yet filed a petition to adopt only because her mother's parental rights had not yet been terminated and the abuse and neglect case was still pending. The Tribe further argued that terminating the abuse and neglect case at that time could put the child in “harm's way.” In response to a question by the trial court, the Tribe's attorney replied that although she was eligible for membership in the Tribe, KMN could not receive a subsidy from casino proceeds until she was an adult. The trial court made several comments about the Tribe's argument, notably that it “underst[oo]d the theory behind the law ... I disagree whether this child is an Indian child” and “I think that if there was any Indian culture to be preserved here the Court would be the first one to preserve it.” Regarding the potential harm to KMN if the abuse and neglect case were terminated, the trial court commented, “I think the child is in harm's way with you, to be frank with you,” and that moving KMN without its consent would put the child in “harm's way.”

Petitioners and KMN's guardian ad litem argued in response to the Tribe's arguments that although KMN had lived with her cousin's family for several days before the June 4 hearing, she was not being removed from an Indian home for purposes of ICWA and MIFPA, and those provisions did not apply. DHS opposed the adoption and further argued that if the neglect case were still pending, the trial court could not allow KMN's mother to grant the direct placement adoption because she was required to have legal or physical custody.

Following arguments on the adoption petition, the trial court closed the abuse and neglect case on the record, ruling that it was “returning ... [KMN] to her mother ... for ... immediate custody.” The trial court then received testimony from KMN's mother indicating that she consented on the record to the direct placement adoption.⁴ She testified that she was friends with KMN's father and that she told him about the pregnancy within two months, but “he wanted nothing to do with [KMN].” She also testified that he had no connection to his Indian culture, but that he took the money he was entitled to from casino revenues. Following her testimony, the trial court entered a written order in Case No. 13–008396–NA terminating the jurisdiction of the trial court and releasing KMN to her mother. In Case No. 14–000805–AD, the trial court signed an order certifying the mother's consent to adoption of KMN by petitioners. As with the order terminating the father's parental rights, the trial court checked the box on the form order indicating that KMN was an Indian child. The trial court also entered an order terminating the mother's parental rights after her consent. That document provided that KMN was an Indian child and that “the court has considered the application of the Indian Child Welfare Act in this matter.” The trial court then made KMN a ward of the court for purposes of adoption and transferred her to petitioners for preadoptive placement.

The Tribe filed an objection in the trial court to the placement with petitioners, maintaining that the placement violated ICWA and MIFPA, arguing that KMN was an Indian child, that it had repeatedly notified KMN's mother of a tribal family's desire to adopt KMN, and that although no one in the Tribe had formally petitioned for adoption of KMN before the June 4 hearing, no one could have done so while the abuse and neglect case was pending. The Tribe also filed a notice of intervention in the trial court and filed a claim of appeal from the order transferring KMN to petitioners in Court of Appeals Docket No. 322329.

On June 20, 2014, the Tribe filed a petition for rehearing in Case No. 14–000805–AD, arguing that the trial court had failed to adhere to the adoptive placement preferences required by ICWA and MIFPA. Further, it argued the trial court had failed to make a finding that good cause existed to deviate from the adoptive placement preferences in those acts. In its brief in support, the Tribe urged the trial court to reconsider its June 4 orders, particularly because an adoption with petitioners could not be final for six months. MCL 710.56.

On the same day, in Case No. 14–000814–AF, the relatives whom KMN had lived with before the June 4 hearing filed a petition for adoption. The petition provided that KMN was an Indian child (associated with the Tribe). A proof of the relationship between KMN and the family was attached to the petition identifying the wife as KMN's first cousin once removed on her father's side of the family.

On June 24, 2014, in lower court docket number 13–008396–NA, DHS filed a motion for reconsideration, arguing that the trial court had violated MIFPA. DHS also argued that the trial court had released KMN to her mother without considering on the record whether the mother's parental...