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In re KMN

Court of Appeals of Michigan

February 26, 2015

In re KMN, Minor

Page 76

Newaygo Circuit Court. Juvenile Division. LC No. 14-000805-AD.

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

OPINION

Page 77

[309 Mich.App. 278] Kurtis T. 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 [309 Mich.App. 279] 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

Page 78

placement.[1] The primary emphasis of the Tribe's claims on appeal is the assertion that the trial court violated Section 1915(a) of the Indian Child Welfare Act (ICWA), 25 U.S.C. 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 U.S.C. 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.

[309 Mich.App. 280] 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 [309 Mich.App. 281] from about October 26, 2013 to May 29, 2014, that KMN was subsequently transferred to her father's distant relative,[3] and that

Page 79

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 U.S.C. 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 U.S.C. 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 [309 Mich.App. 282] 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 [309 Mich.App. 283] placement adoption.[4] She testified that she was

Page 80

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 [309 Mich.App. 284] 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 rights should be terminated according to MCL 712A.19b. DHS urged the trial court to either (1) determine that the facts in the petition were established, terminate KMN's parental rights, and follow the placement priorities under MIFPA, or (2) determine that the facts in the petition were not established and return KMN to her mother.

[309 Mich.App. 285] On July 7, 2014, petitioners and KMN's mother filed an answer to the Tribe's petition for rehearing. They urged the trial court to deny the rehearing and to find that the petition for adoption brought by

Page 81

KMN's cousin and her husband was improperly filed and should not be considered. They requested attorney fees for each of their attorneys and costs pursuant to MCR 3.206(C)(1).

On July 9, 2014, the trial court denied the Tribe's petition for rehearing and the motion for reconsideration filed by DHS. It ruled that the cousin and her husband did not properly file a petition for adoption and denied it. It further ruled that ICWA and MIFPA did not apply to this matter, and even if they did, parental preference would constitute good cause to deviate from any placement preferences. The trial court stated that if the Tribe successfully appealed, the mother's parental rights should be " fully reinstated and the Termination of Parental Rights Order set aside." It ordered the Tribe and its attorneys to pay the reasonable attorney fees incurred by petitioners and KMN's mother " based upon statute, court rule and law."

On the same day, the trial court entered an order of adoption, making petitioners the parents of KMN and discharging KMN as a ward of the court. In Docket No. 322833, the Tribe filed a claim of appeal from this order.

II

The Tribe maintains that KMN is an Indian child under both ICWA and MIFPA and that the trial court improperly concluded otherwise. Issues involving statutory interpretation, and the application of ICWA and MIFPA, are questions of law that this Court [309 Mich.App. 286] reviews de novo. See Empson-Laviolette v Crago, 280 Mich.App. 620, 624; 760 N.W.2d 793 (2008).

The primary goal when interpreting a statute is to ascertain and give effect to the Legislature's intent. Mich Ed Ass'n v Secretary of State (On Rehearing), 489 Mich. 194, 217-218; 801 N.W.2d 35 (2011). " The words contained in a statute provide us with the most reliable evidence of the Legislature's intent." Green v Ziegelman, 282 Mich.App. 292, 301; 767 N.W.2d 660 (2009). " [S]tatutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole." Robinson v City of Lansing, 486 Mich. 1, 15; 782 N.W.2d 171 (2010). If statutory language is unambiguous, the Legislature is presumed to have intended the plain meaning of the statute. Fleet Business Credit, LLC v Krapohl Ford Lincoln Mercury Co, 274 Mich.App. 584, 591; 735 N.W.2d 644 (2007). An unambiguous statute must be enforced as written. Fluor Enterprises, Inc v Dep't of Treasury, 477 Mich. 170, 174; 730 N.W.2d 722 (2007). [ Hoffenblum v Hoffenblum, 308 Mich.App. 102, 109-110, 863 N.W.2d 352, (2014).]

Under ICWA, an Indian child is defined as " any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]" 25 U.S.C. 1903(4). KMN was unmarried and less than one year old at the time of the June 4 hearing. Although she was not a member of the Tribe, she was eligible for membership, and her biological father was a member of the Tribe. Therefore, KMN is an Indian child under ICWA.

Under MIFPA, MCL 712B.3(k) provides:

" Indian child" means an unmarried person who is under the age of 18 and is either of the following:
( i ) A member of an Indian tribe.
[309 Mich.App. 287] ( ii ) Eligible for membership in an Indian tribe as determined by that Indian tribe.

Page 82

The definition of " Indian child" in MIFPA is similar to that in ICWA, but does not require the child who is eligible for membership to also be the biological child of a member of an Indian tribe. Therefore, KMN is also an Indian child under MIFPA.

Admittedly, the trial court made somewhat inconsistent statements about its conclusion on this critical factor; however, " a court speaks through its written orders and judgments, not through its oral pronouncements," In re Contempt of Henry, 282 Mich.App. 656, 678; 765 N.W.2d 44 (2009). The trial court's written orders, and thus the record as a whole, demonstrate that the trial court found that KMN is an Indian child. Accordingly, we find no error requiring reversal on this issue under either ICWA or MIFPA.

III

The Tribe also argues that the trial court failed to apply ICWA's adoptive placement preferences or find good cause for disregarding that preference. We disagree.

25 U.S.C. 1915(a) provides that " [i]n 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."

In Baby Girl, 133 S.Ct. at 2564, our United States Supreme Court held ICWA's adoptive placement " preferences are inapplicable in cases where no alternative party has formally sought to adopt the child. This is because there simply is no 'preference' to apply if no [309 Mich.App. 288] alternative party that is eligible to be preferred under § 1915(a) has come forward." In Baby Girl, the biological father (a member of an Indian tribe), who contested the child's placement with an adopted couple and argued his parental rights should not have been terminated, did not seek to adopt the child in the lower court proceedings. Id. Although there was testimony in the record that the tribe had certified approximately 100 couples to be adoptive parents, none of those couples had formally sought to adopt the child in the state court. Id. at 2565 n 12.

In the instant case, at the time of the June 4 hearing, petitioners were the only couple that had formally sought to adopt KMN. There is no dispute that petitioners have no familial connection to KMN or relationship with any tribe. Therefore, they do not qualify for a preference under 25 U.S.C. 1915(a). Although the Tribe's attorney stated on the record that there was an " Indian relative ready, willing, and able to adopt" KMN, that unnamed relative had not formally sought to adopt her and can be likened to the 100 certified families in Baby Girl that had not petitioned for adoption during the state court proceedings. The Tribe did not request an adjournment to allow the relative to file a competing petition for adoption. See MCL 710.25(2). Absent a pending adoption petition of an alternative party who was eligible to be preferred under § 1915(a), there was no ICWA preference to apply at the June 4 hearing.

IV

The Tribe alternatively argues that the trial court failed to place KMN in one of MIFPA's listed potential placements or find good cause for disregarding that list. We agree.

[309 Mich.App. 289] MCL 712B.23 provides, in relevant part:

(2) Absent good cause to the contrary, the adoptive placement of an Indian child must be in the following order of preference:

Page 83

(a) A member of the child's extended family.
(b) A member of the Indian child's tribe.
(c) An Indian family.
* * *
(4) The court shall not find good cause to deviate from the placement preferences stated in this section without first ensuring that all possible placements required under this section have been thoroughly investigated and eliminated. All efforts made under this section must be provided to the court in writing or stated on the record. The court shall address efforts to place an Indian child in accordance with this section at each hearing until the placement meets the requirements of this section.
(5) The court's determination of good cause to not follow the order of preference shall be based on 1 or more of the following conditions:
(a) A request was made by a child of sufficient age.
(b) A child has an extraordinary physical or emotional need as established by testimony of an expert witness.
* * *
(7) A record of each placement of an Indian child shall be maintained by the department or court evidencing the efforts to comply with the order of preference specified in this section. The record shall be made available at any time upon the request of the secretary or Indian child's tribe.
* * *
(10) All efforts made to identify, locate, and place a child according to this section shall be documented and, upon [309 Mich.App. 290] request, made available to the court, tribe, Indian child, Indian child's lawyer-guardian ad litem, parent, or Indian custodian. [Emphasis added.]

MIFPA differs from ICWA in that it does not give a preference to eligible parties over ineligible parties. Rather, MIFPA requires that, absent good cause, the adoptive placement must be either with a member of the child's extended family, a member of the Indian child's tribe, or an Indian family, in that " order of preference." MCL 712B.23(2). The record demonstrates that petitioners have no familial connection to KMN, they are not connected to the Tribe, and they are not an Indian family. Therefore, absent a good cause finding, MIFPA precluded the trial court from placing KMN with petitioners.

The trial court's July 9, 2014 order concludes that the preference of KMN's mother amounted to good cause. This ruling was erroneous. As noted by the Tribe, MCL 712B.23(5) provides:

The court's determination of good cause to not follow the order of preference shall be based on 1 or more of the following conditions:
(a) A request was made by a child of sufficient age.
(b) A child has an extraordinary physical or emotional need as established by testimony of an expert witness. [Emphasis added.]

Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), good cause is limited to the conditions articulated in MCL 712B.23(5)--a request made by a child of a sufficient age or a circumstance involving a child with an extraordinary need. Therefore, a biological parent's choice of an adoptive placement does not constitute good cause under MCL 712B.23(2). Because the record does not establish that KMN, an infant at [309 Mich.App. 291] the time of these proceedings, was of sufficient age

Page 84

to choose petitioners, or that KMN has any extraordinary needs that petitioners as adoptive parents could satisfy, the record fails to satisfy the requirements of MCL 712B.23(2), and the trial court erred by placing KMN with petitioners.

Moreover, MCL 712B.23(4) provides, " The court shall not find good cause to deviate from the placement preferences stated in this section without first ensuring that all possible placements required under this section have been thoroughly investigated and eliminated." Merriam Webster's Collegiate Dictionary (2003) defines the word " possible" as " being within the limits of ability, capacity, or realization." Accordingly, the trial court was required to give meaningful consideration to KMN's possible placement with her cousin's family and make findings as to why that placement should be eliminated before making any determination that there was good cause to deviate from the statutory placement criteria. Therefore, unlike ICWA, under MIFPA, the fact that no alternate petition for adoption had yet been filed is irrelevant.[5] After the trial court [309 Mich.App. 292] has been alerted that there are alternative possible placements consistent with the statute, a trial court must first ensure they have been " thoroughly investigated and eliminated." Before making a placement outside the statutorily preferred placement options, the trial court is required to " address efforts to place an Indian child in accordance with this section at each hearing until the placement meets the requirements of this section." MCL 712B.23(4).

Even though KMN's cousin and her husband had not filed a petition for adoption before the June 4 hearing, the trial court did nothing to ensure this possible placement had been realized, investigated, and eliminated. Rather, the trial court only questioned whether there was any financial motivation for KMN's membership in the Tribe. Furthermore, the trial court did nothing to ensure that any other possible listed placements were realized, investigated, and eliminated. Therefore, the trial court erred with regard to the application of MCL 712B.23(4).

At oral argument, petitioners challenged the application of MIFPA by claiming it was preempted by ICWA. Although this matter was not preserved by adequate briefing, we address and reject this contention.

The Supremacy Clause of the United States Constitution gives Congress the authority to preempt state laws. Packowski v United Food & Commercial Workers Local 951, 289 Mich.App. 132, 139;

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796 N.W.2d 94 (2010); U.S. Const. art. VI, cl. 2. " There are three types of federal preemption: express preemption, conflict preemption, and field preemption." Packowski, 289 Mich. [309 Mich.App. 293] App at 140 . Although not specifically articulated by petitioners, they appear to be asserting a claim of obstacle preemption, a form of conflict preemption that " occurs 'when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Ter Beek v City of Wyoming, 297 Mich.App. 446, 460; 823 N.W.2d 864, (2012), quoting Hillsborough Co, Fla v Automated Med Laboratories, Inc, 471 U.S. 707, 713; 105 S.Ct. 2371; 85 L.Ed.2d 714 (1985).

As petitioners properly note, ICWA does not define good cause to deviate from its placement preferences, whereas MIFPA only allows deviation from its order of preference on the basis of an Indian child's choice or extraordinary needs. Based on this distinction in the two laws, petitioners claim that because trial courts have less discretion regarding the placement of Indian children under MIFPA, the children have less protection from the trial court, and this outcome interferes and conflicts with the purposes of ICWA. We disagree. The purpose of ICWA is to protect an Indian child's Indian culture. See 25 U.S.C. 1902. The Michigan Legislature's definition of good cause does not stand as an obstacle to the accomplishment of this purpose. Rather, by giving trial courts less discretion to deviate from a placement with a member of the child's extended family, a member of the Indian child's tribe, or an Indian family, the Legislature endeavored to further protect the Indian child's Indian culture--a purpose consistent with ICWA. Therefore, we reject petitioners' claim that MIFPA was preempted by ICWA.[6]

[309 Mich.App. 294] V

Next, the Tribe argues that the trial court improperly ordered the Tribe to pay attorney fees to KMN's mother and petitioners for defending the petition for rehearing. We agree.

This Court reviews a trial court's ruling on a motion for costs and attorney fees for an abuse of discretion. An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes. A trial court's findings of fact, such as whether a party's position was frivolous, may not be set aside unless they are clearly erroneous. [ Keinz v Keinz, 290 Mich.App. 137, 141; 799 N.W.2d 576 (2010).]

" Under the American rule, attorney fees generally are not recoverable from the losing party as costs in the absence of an exception set forth in a statute or court rule expressly authorizing such an award." Haliw v City of Sterling Hts, 471 Mich. 700, 707; 691 N.W.2d 753 (2005). MCR 3.206(C) provides:

(1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding.

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(2) A party who requests attorney fees and expenses must allege facts sufficient to show that
(a) the party is unable to bear the expense of the action, and that the other party is able to pay, or
(b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

[309 Mich.App. 295] MCR 3.201(A) provides:

Subchapter 3.200 applies to

(1) actions for divorce, separate maintenance, the annulment of marriage, the affirmation of marriage, paternity, family support under MCL 552.451 et seq.,] the custody of minors under MCL 722.21 et seq.,] and visitation with minors under MCL 722.27b and to
(2) proceedings that are ancillary or subsequent to the actions listed in subrule (A)(1) and that relate to
(a) the custody of minors,
(b) visitation with minors, or
(c) the support of minors and spouses or former spouses.

As the Tribe argues, an award of attorney fees and expenses under MCR 3.206(C) is for domestic relations actions. Adoption is not an action defined as a domestic relations action under MCR 3.201; therefore, petitioners and KMN's mother improperly requested attorney fees and costs under this court rule, and the trial court abused its discretion by authorizing an award for attorney fees. Haliw, 471 Mich. at 707.[7]

VI

We affirm the trial court's determination that KMN is an Indian child and that the placement preferences [309 Mich.App. 296] in ICWA did not apply on June 4. But in light of our analysis of MIFPA, we vacate the June 4 orders certifying the consent of KMN's mother to her adoption by petitioners, terminating her parental rights after her consent, making KMN a ward of the court for purposes of adoption, and transferring KMN to petitioners for a preadoptive placement, and the July 9 order of adoption.[8] We also vacate the portion of the trial court's July 9 order awarding attorney fees and costs.

The Tribe argues that if we vacate the June 4 orders and the July 9 order of adoption in Case No. 14-000805-AD, we should also vacate the order closing the abuse and neglect case in Case No. 13-008396-NA. But no claim of appeal was filed regarding the trial court's order closing that case; consequently, we need not address any challenge to the order closing that case. Cf. Bonner v Chicago Title Ins Co, 194 Mich.App. 462, 472; 487

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N.W.2d 807 (1992) (" Where a party has claimed an appeal from a final order, the party is free to raise on appeal issues related to other orders in the case." ).

We remand for proceedings consistent with this opinion and do not retain jurisdiction. No costs, neither party having prevailed in full. MCR 7.219.

Kurtis T. Wilder Michael J. Riordan Jane E. Markey


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