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In re Payne/Pumphrey/Fortson

Court of Appeals of Michigan

June 11, 2015

In re PAYNE/PUMPHREY/FORTSON

Page 206

Calhoun Circuit Court. Family Division. LC No. 09-003732-NA.

For UNNAMED, Formerly Known As, APPELLEES, GUARDIAN A.D. LITEM: LISA M PERKINS, BATTLE CREEK, MI.

For DEPARTMENT OF HEALTH AND HUMAN SERVICES, Petitioner-Appellee: JENNIFER KAY CLARK, BATTLE CREEK, MI.

For UNNAMED, Respondent-Appellant: RONALD D AMBROSE, LIVONIA, MI.

Before: STEPHENS, P.J., and BORRELLO and GADOLA, JJ.

OPINION

Page 207

[311 Mich.App. 52] Michael F. Gadola, J.

This case implicates the evidentiary standards required to terminate parental rights under the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq., the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq., and the Michigan court rules. Respondent-mother appeals as of right the trial court's second order terminating her parental rights to her four minor children following a remand from this Court. See In re Payne/Pumphrey/Fortson, unpublished opinion of the Court of Appeals, issued September 18, 2014 (Docket Nos. 318105 & 318163). We affirm the trial court's order in part, reverse in part, and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent has a lengthy history with the Department of Human Services (DHS) dating back to 2009, involving allegations of physical abuse, physical neglect, improper supervision, mental instability, and substance abuse. The trial court initially terminated respondent's parental rights to her minor children, AP, DP, KP, and DF, under MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), and (j) on September 5, 2013. Respondent appealed that termination order as of right, and in In re Payne/Pumphrey/Fortson, this Court affirmed the trial court's order in part, reversed in part, and remanded for further proceedings. Subsequently, on November 6, 2014, the trial court conducted an additional termination hearing as instructed by this Court. That same day, the trial court entered an order affirming its original order terminating respondent's parental rights to each of her [311 Mich.App. 53] minor children.[1]

A. RESPONDENT'S FIRST APPEAL

In respondent's first appeal, she argued that the lower court erred in terminating her parental rights because the court failed to apply the correct evidentiary standard under ICWA with respect to her two Indian children, DP and AP, and failed to render a finding that termination was in her children's best interests. In re Payne/Pumphrey/Fortson, This Court concluded that DP and AP were Indian children under ICWA, but that " the trial court did not apply the heightened 'beyond a reasonable doubt' evidentiary standard of proof at the termination hearing as required under ICWA." The Court further noted that " although a representative of DP and AP's Indian tribe testified at the termination hearing, the witness was never qualified as an expert and, importantly, the witness did not testify that respondents' 'continued custody of' DP and AP was 'likely to result in serious emotional or physical damage to the' Indian children." Id., quoting 25 U.S.C. 1912(f). Accordingly, the Court reversed the trial court's termination order regarding DP and AP and remanded for further proceedings. Id.

Regarding KP and DF, respondent's two non-Indian children, the Court determined

Page 208

that the trial court did not clearly err by finding that MCL 712A.19b(3)(c)( i ), (c)( ii ), (g), and (j) were proven by clear and convincing evidence. However, the Court agreed that " the [311 Mich.App. 54] trial court failed to articulate a best interests finding regarding KP and DF at the termination hearing or in its subsequent termination orders." Id. Therefore, the Court remanded the case for the trial court to articulate its findings of fact and conclusions of law regarding the best interests of KP and DF on the record or in writing. Id.

B. LOWER COURT PROCEEDINGS ON REMAND

On November 6, 2014, the trial court held an additional termination hearing in this matter. Caseworker Kristina Burch testified that she still believed respondent's parental rights to all four children should be terminated. Burch explained that over the course of the several years respondent's children were in protective custody, respondent did not demonstrate a benefit from the services provided to her. Burch said that given the children's ages, the length of time they had been in care, and the lack of benefit shown by respondent, returning the children to her custody would present a serious risk of harm to the children.

Christopher Hillert, a child welfare worker for the Red Cliff Band of Lake Superior Chippewa, was qualified as an expert regarding the customs, family organization, and child-rearing practices of AP and DP's Indian tribe. Hillert testified that DHS made active efforts to reunify the family, and he could not identify any additional services that could have been provided to respondent during the course of the proceedings. However, Hillert opposed terminating respondent's parental rights because it was generally against the tribe's practice to support termination. When asked whether he believed returning AP or DP to respondent's care would present a serious risk of harm to either child, Hillert stated his position in the following exchange:

[311 Mich.App. 55] Q. Alright. Let me ask you a specific question, Mr. Hillert. Do you feel, either yes or no, that the continued custody of the children by the parent and custodian would likely result in serious emotional ...

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