Tribal Laws Inapplicable: Mother’s Parental Rights Properly Terminated

The trial court properly terminated a mother’s parental rights where 1) the trial court correctly held the Indian Child Welfare Act and the Michigan Indian Family Preservation Act did not apply, and 2) termination was supported by the evidence and was in the child’s best interests, the Michigan Court of Appeals has ruled.

The respondent-mother in In re L.A. Ledee, Minor (Docket No. 371631) is a member of the Lumbee Tribe of North Carolina. She appealed the Wayne County Circuit Court’s order terminating her parental rights to her minor child, LAL, under MCL 712A.19b(3)(b)(i), (i) and (j). Among other things, the respondent argued the trial court wrongfully denied her the statutory rights and protections of the Indian Child Welfare Act (ICWA), 25 USC 1901, et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1, et seq.

The Court of Appeals disagreed in a published and binding opinion.

At the time of the trial court proceedings, the Lumbee Tribe was not a federally recognized tribe and, as a result, the respondent was not eligible for services and benefits under ICWA or MIFPA, the Court of Appeals explained. Therefore, “the trial court correctly concluded that the Lumbee Tribe did not satisfy the definition of an ‘Indian tribe’ under 25 USC 1903(8) or MCL 712B.3(o).”

Moreover, “[f]or the same reason, the trial court properly concluded that LAL was not an ‘Indian child’ within the meanings of ICWA or MIFPA,” the Court of Appeals said.

Judge Allie Greenleaf Maldonado wrote the 12-page opinion, joined by Judge Michael J. Riordan and Judge Christopher M. Murray.

The Court of Appeals decision has since been appealed to the Michigan Supreme Court (Docket No. 170043 (80)).

Background

The respondent’s parental rights had previously been terminated to her two older children. When one of those children ultimately returned to her care, the child reported that the respondent physically abused her. As a result, the Department of Health and Human Services (DHHS) filed a petition to terminate the respondent’s parental rights to LAL, her youngest child.

At a subsequent preliminary hearing, the trial court referee asked the respondent if she is enrolled or eligible for enrollment with a Native American tribe. The respondent indicated that she is a member of the Lumbee Tribe of North Carolina. After being informed of this, the DHHS did not provide notice to the Lumbee Tribe and, instead, sent notice to the Bureau of Indian Affairs (BIA) because, at the time of the proceedings, the Lumbee Tribe was not a federally recognized tribe as defined by ICWA or MIFPA. In an order after the preliminary hearing, the trial court held the DHHS properly provided notice to the BIA because the Lumbee Tribe was not a federally recognized tribe.

After reviewing the evidence and hearing the parties’ arguments, the referee found there was a statutory basis for the trial court to take jurisdiction. In addition, the referee found there was clear and convincing evidence that statutory grounds for termination existed, specifically MCL 712A.19b(3)(b)(i), (i) and (j).

Of particular importance was testimony about the physical abuse the respondent had reportedly inflicted on the older child who had been returned to her care, which was corroborated by that child’s medical records. The referee also determined the respondent’s parental rights to the older child had previously been terminated and the issues that led to termination – substance abuse and emotional instability – had not been addressed. Further, the referee found there was a reasonable likelihood, based on the respondent’s prior history, that LAL would be harmed if returned to her care.

The referee concluded that termination of the respondent’s parental rights was in LAL’s best interests. The trial court adopted those findings and issued an order terminating the respondent’s parental rights.

The respondent appealed.

Federal & State Tribal Laws

On appeal, the respondent first argued the trial court erroneously denied her the statutory rights and protections of ICWA and MIFPA.

“We disagree,” the Court of Appeals said.

At the outset, the Court of Appeals examined legal framework of both statutes, including the definition of “Indian child” and the substantive and procedural requirements. “Although MIFPA echoes many of the substantive and procedural requirements of ICWA, some of the standards established by MIFPA ‘provide greater protections for Indian families than those provided by ICWA.’”

Similar to ICWA, an “Indian child” under MIFPA is “an unmarried person who is under the age of 18 and is either of the following: (i) A member of an Indian tribe [or] (ii) Eligible for membership in an Indian tribe as determined by that Indian tribe,” the Court of Appeals explained. “Likewise, an ‘Indian tribe’ is defined as ‘any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the [Secretary of the Interior] because of their status as Indians ….’”

According to the Court of Appeals, the Michigan Supreme Court in In re Morris, 491 Mich 81 (2012), “held that ‘the proper remedy for ICWA-notice violations is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.’”

However, “ICWA does not apply to a termination case when the minor child is claimed to be an Indian child from an Indian tribe that is not recognized as eligible for services provided to Indians by the Secretary of the Interior,” the Court of Appeals said, citing In re Fried, 266 Mich App 535 (2005). “While it is for the tribe to determine whether a child is an ‘Indian child,’ it is for the court to determine whether the tribe is an ‘Indian tribe.’”

Not Required To ‘Undo’ Termination

Next, the Court of Appeals turned to whether the respondent’s membership in the Lumbee Tribe “triggered the protections of either ICWA or MIFPA during the pendency of the proceedings.”

Looking at the plain language of the statutes and the record, the Court of Appeals said it was “clear” the Lumbee Tribe was not an “Indian tribe” for purposes of either ICWA or MIFPA at the time of the proceedings. “The record contains no evidence that the Lumbee Tribe was recognized as eligible for services and benefits provided to members of federally-recognized tribes; accordingly, the trial court correctly concluded that the Lumbee Tribe did not satisfy the definition of an ‘Indian tribe’ under 25 USC 1903(8) or MCL 712B.3(o).”

In addition, the trial court properly held that LAL was not an “Indian child” under ICWA or MIFPA, the Court of Appeals said. “Because ICWA does not apply when a child is claimed to be a member of a tribe that is not recognized as eligible for services from the Secretary of the Interior, the [trial] court did not err in declining to apply the statutory requirements of ICWA or MIFPA in the termination proceedings. … Accordingly, respondent has not demonstrated that she is entitled to relief on this basis.”

Moreover, “[t]he fact that the Lumbee Tribe gained federal recognition while respondent’s appeal was pending does not require a different result,” the Court of Appeals emphasized. “As stated, the plain language of ICWA’s notice provisions indicates that notice is required in instances when a party is ‘seeking the foster care placement of, or termination of parental rights to, an Indian child ….’ … At this point, no party is seeking foster care or termination of parental rights; respondent’s parental rights have already been terminated.”

Further, “MIFPA makes clear that if the family division of circuit court or the probate court discovers that a child is a member of an Indian Tribe, ‘all further proceedings shall be suspended until notice is received by the tribe.’ MCL 712B.9(2) (emphasis added),” the Court of Appeals said. “In this case, there will be further proceedings regarding the children’s father. Now that the Lumbee Tribe is federally recognized, the law requires that those proceedings be suspended until the Tribe receives notice. The law does not require this Court to undo the termination of respondent’s parental rights.”

Statutory Basis Exists

In conclusion, the Court of Appeals addressed the respondent’s argument that the trial court erred when it found a statutory basis to terminate her parental rights.

“We disagree,” the Court of Appeals stated. “To terminate a parent’s parental rights, ‘the trial court must find that at least one of the statutory grounds for termination in MCL 712A.19b(3) has been proved by clear and convincing evidence.’”

Based on testimony from the respondent’s older child regarding physical abuse and the “corroborating” medical records, “there was ample evidence in the record to establish that [the older child] was physically abused and that respondent was the one who abused her,” the Court of Appeals said.

In addition, the record supported the trial court’s determination there was a reasonable likelihood that LAL would be harmed if returned to the respondent’s care,” the Court of Appeals observed. “Under the doctrine of anticipatory neglect, we recognize that ‘how a parent treats one child is probative of how that parent may treat other children.’ … Consequently, the record supports the trial court’s finding, by clear and convincing evidence, that there was a reasonable likelihood that LAL will suffer from injury or abuse in respondent’s care. Therefore, we are not left with a definite and firm conviction that the trial court erred by adopting the referee’s determination that termination of respondent’s parental rights was warranted under MCL 712A.19b(3)(b)(i).”

Lastly, the Court of Appeals examined whether termination was in LAL’s best interests, noting the trial court heard evidence that weighed for and against termination.

The referee “heard evidence that respondent lacks the ability to parent LAL appropriately,” the Court of Appeals noted. “The referee also weighed evidence of physical abuse of LAL’s sibling …. Respondent’s parental rights to her two older children were terminated due to her history of substance abuse and domestic violence, and her failure to adhere to a treatment plan. Even after [the older child] was removed from respondent’s care and her parental rights to [the older child] were terminated, respondent physically abused [the older child upon her return]. [The older child] also reported that she saw respondent hit LAL ‘really hard.’ The referee appropriately concluded that the evidence of respondent’s abuse of [the older child] weighed in favor of termination.”

In addition, the referee “acknowledged that, although respondent had a consistent visitation history with LAL, she acted inappropriately during those visits,” the Court of Appeals explained. “The referee also referred to respondent’s aggressive and threatening behavior to the foster-care workers involved in her son’s case as evidence of her poor impulse control.”

After weighing the statutory factors, the referee concluded that termination of the respondent’s parental rights was in LAL’s best interests, the Court of Appeals observed. “Although the existence of a bond between respondent and LAL weighed against termination, many of the other factors the referee considered, such as respondent’s parenting ability, respondent’s abuse of [the older child], and respondent’s emotional instability in her visits with LAL and in her interactions with caseworkers, weighed in favor of termination.”

Therefore, the respondent “has not demonstrated that the trial court clearly erred when it adopted the referee’s determination that it was in LAL’s best interests to terminate her parental rights,” the Court of Appeals held. “Affirmed.”