This summary also appears under Native American Law
Issues: Indian Child Welfare Act (ICWA)(25 USC § 1901 et seq.); In re Morris; Michigan Indian Family Preservation Act (the Family Preservation Act)(MCL 712B.1 et seq.); The court's jurisdiction; MCR 7.203(A)(2); Appeal by right from an order of disposition placing a minor under the supervision of the court or removing the minor from the home; MCR 3.993(A)(1); In re Klemkow (Unpub.); In re McClain/Waters/Skinner (Unpub.); In re White (Unpub.); In re SLH; In re Gazella; Interpretation of court rules and statutes; Ligons v. Crittenton Hosp.; Child protective proceedings; MCL 712A.2(b); MCR 3.963; Child protective proceedings involving Native American children; MCR 3.967; Dispositional hearings; MCR 3.971, 3.972, & 3.973; Dispositional review; MCR 3.975; "Order"; "Of" defined; Farmers Ins. Exch. v. Farm Bureau Gen. Ins. Co. of MI; "Dictum"; Griswold Props., LLC v Lexington Ins. Co.; Removal without expert testimony; Trial court's authority to remove a Native American Indian child "only upon clear and convincing evidence, that includes the testimony of at least 1 expert witness who has knowledge of child rearing practices of the Indian Child's tribe" that "the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child"; MCL 712B.15(2); 25 USC § 1912(e); Agency decisions; In re Complaint of Rovas Against SBC MI; Risk of cultural bias; In re Elliott; Matter of NL (OK); State ex rel Juvenile Dep't of Lane Cnty. v. Tucker (OR App.)
Court: Michigan Court of Appeals (Published)
Case Name: In re McCarrick/Lamoreaux
e-Journal Number: 58392
Judge(s): Per Curiam – Shapiro, Whitbeck, and Stephens
In Docket Nos. 315510 and 317403, the court held that the respondent-mother was not entitled to appeal as of right the trial court's order removing the children from the home because the order was not a dispositional order. In Docket No. 318475, it held that the trial court erred when it removed them without testimony from a qualified expert concerning the potential damage to the children. Thus, it conditionally reversed and remanded for further proceedings. The trial court found that respondent's continued custody of her children, who are of Native American heritage, was likely to result in serious emotional or physical damage to the children, and that it was dangerous to them to remain in her care. Thus, it placed them with the DHS for care and supervision. On appeal, the court first concluded that "MCR 3.993(A)(1) provides that a respondent parent may appeal (1) an order of disposition that places a minor under the supervision of the court, or (2) an order of disposition that removes the minor from the home." Thus, it held that "the order involved must be an order of disposition," and that respondent was "not entitled to an appeal of right in Dockets No. 315510 [in which she challenged the removal of the children from her home] and 317403 [in which she challenged her daughter's removal from the father's care and custody] because neither order was an order of disposition." However, the court next held that the trial court erred in removing respondent's children from the home without any testimony from a qualified expert witness about the potential damage to the children. It found that the trial court's finding of harm was sufficient to satisfy both ICWA and the Family Preservation Act, but that it failed to comply with ICWA and the Family Preservation Act when it ordered the children removed from her care because the expert witness did not opine about whether respondent's continued custody was likely to result in serious emotional or physical damage to the children. "While it may appear obvious that drug use has the potential to damage children, ICWA and the Family Preservation Act require the trial court's determination of damage to include the testimony of a qualified expert witness. Here, there was simply no testimony on this element, much less testimony by . . . the qualified expert witness. We conclude that the trial court's determination regarding the damage to the children did not comply with ICWA or the Family Preservation Act because the trial court's determination of damage did not include the testimony of a qualified expert witness." However, it "did not clearly err when it found that the [DHS] made active efforts to prevent the breakup of" the family, and it had "sufficient evidence from which to conclude that the [DHS] had complied with MCL 712B.3(a)." Finally, the court suggested that "the Supreme Court consider modifying MCR 3.993 in order to permit a parental appeal of right, at least under some circumstances, from removal order when a child is removed from his or her parents at a stage prior to adjudication."
Issues: Termination under §§ 19b(3)(g), (j), & (l); In re VanDalen; In re Trejo Minors; Applicability of the doctrine of "anticipatory neglect"; In re LaFlure; Child's best interests; MCL 712A.19b(5); In re White; Jurisdiction; In re AMB; MCL 712A.2(b)(2)
Court: Michigan Court of Appeals (Unpublished)
Case Name: In re McCarrick
e-Journal Number: 58211
Judge(s): Per Curiam – Murray, Donofrio, and Borrello
Holding that the trial court did not err in terminating both respondents-parents' parental rights to the child (IM) under § 19b(3)(l) or in finding that doing so was in IM's best interests, the court affirmed the trial court's order terminating their parental rights. While the respondent-mother argued that the trial court erred in terminating her rights without making findings as to jurisdiction, the record showed "that a preponderance of the evidence clearly indicated that the environment created by" the mother "would be unfit for IM to live in," and that this case was within the trial court's subject-matter jurisdiction. She also asserted that the doctrine of anticipatory negligent did not apply to her case. However, it was clear from the record that she "continues to struggle with the same issues that resulted in previous terminations of her parental rights: housing, emotional stability, parenting skills, and intellectual capacity." Thus, the court concluded that the doctrine of anticipatory neglect did apply and the trial court's termination decision under § 19b(3)(l) "was supported by the evidence and the law." As to the child's best interests, the trial court found that while the mother was in a stable relationship where domestic violence was not an obvious factor and had bonded with IM, she remained "chronically unemployed with no source of income except food stamps and no apparent job prospects." At the time of the dispositional review hearing, "she lacked adequate and stable housing. And she is reluctant to get therapy for her untreated bipolar disorder." The father's parental rights were terminated "because his current patterns of behavior were unchanged from past patterns of behavior that," despite his participation in services, resulted in prior terminations. The record established that his "living arrangement was a short-term, impromptu arrangement that was inadequate for IM's needs." While he "expressed to the trial court a willingness to do whatever it takes to maintain his parental rights, he participated in services in the past without benefit, and stated on the record that, while he attends therapy in order to get his medications, he does not think it works." Further, the trial court did not err in finding that the facts the father had attended and behaved appropriately during supervised parenting time and had bonded with IM were not sufficient - when weighed against his "continued struggles with his historic barriers to reunification - to overcome the evidence that termination of his parental rights" was in IM's best interests.
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