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In re JJW

Court of Appeals of Michigan

June 8, 2017

In re JJW and ELW, Minors. In re WILLIAMS, Minors.

         Oakland Circuit Court LC No. 2015-837756-AM

         Macomb Circuit Court Family Division LC No. 2012-000291-NA

          Before: Sawyer, P.J., and Saad and Riordan, JJ.

          PER CURIAM.

         In Docket No. 334095, petitioners, foster mothers (collectively "petitioners"), appeal as of right an Oakland Circuit Court order denying their petition to adopt JJW and ELW (collectively, "the children"). The children's biological father, intervenor, is a member of the Sault Ste. Marie Tribe of Chippewa Indians (the "Tribe"), also an intervening party in the lower court proceedings. The children are eligible for membership in the Tribe. In addition to challenging the order denying the petition to adopt, petitioners also challenge an earlier order rescinding the order placing the children with them for purposes of adoption on the basis of the withdrawal of consent by the child placing agency and the Tribe.

         In Docket No. 335932, respondent, the children's biological father ("father"), appeals by leave granted[1] a subsequent order from the Macomb Circuit Court denying his motion to withdraw his consent to terminate his parental rights, and for return of the children.

         Because the children are eligible for membership in the Chippewa Tribe, the parties' claims on appeal implicate the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and 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. Likewise, the Michigan Legislature enacted MIFPA, with the purpose of protecting "the best interests of Indian children and promot[ing] the stability and security of Indian tribes and families." MCL 712B.5(a). There is no dispute that the children in this case are Indian children under both ICWA and MIFPA. See 25 USC 1903(4) and MCL 712B.3(k).

         We affirm the Macomb Circuit Court's order denying respondent father's motion to withdraw consent to terminate his parental rights and for return of the children because he does not have a right to withdraw his consent under MIFPA, specifically MCL 712B.13, the ICWA, or the Adoption Code. We vacate the Oakland Circuit Court's order rescinding the order placing the children with petitioners because we conclude that neither ICWA nor MIFPA permit rescission of a placement order due to a change in consent by a child placing agency or tribe after entry of the placement order. Because the Oakland Circuit Court did not rule on the factual issue whether adoption was in the children's best interests, or whether circumstances had arisen that made adoption undesirable, we reverse the order denying petitioners' petition for adoption and remand for further proceedings.


         In August 2012, the Department of Health and Human Services (DHHS) filed a petition in the Macomb Circuit Court requesting that the court take jurisdiction over the two-year-old JJW and newborn ELW, whose meconium screen tested positive for THC, opiates, and cocaine. Both biological parents, respondent father and the mother, admitted that they had relapsed into substance abuse. The children were removed from their biological parents' care and placed with petitioners on August 13, 2012.

         Nearly three years later, in May 2015, respondent father signed a form titled, "RELEASE OF CHILD BY PARENT." It provided, in relevant part:

2. . . . I voluntarily give up permanently all of my parental rights to my child.

3. I understand my right to request a rehearing or to appeal within 21 days after an order is entered terminating my parental rights.

4. I have not received or been promised any money or anything of value for the release of my child except for charges and fees approved by the court.

5. Of my own free will, I give up completely and permanently my parental rights to my child, and I release my child to Michigan Department of Human Services for the purpose of adoption.

         The statutes and court rule listed at the bottom of the release form are: "MCL 712.28, MCL 710.29, MCL 710.54, 25 USC 1913(a), [and] MCR 3.801." The children's mother executed the same document on the same day. At the hearing regarding the release, the biological parents waived any right to a judge. The biological parents explained that they could not provide for their children and the current placement with petitioners was "working out good." The referee advised them that there was no guarantee who the children would be placed with and respondent father replied, "Right." Following the release of parental rights, the Macomb Circuit Court entered an order terminating the biological parents' rights to the children, and also continuing the children's placement with petitioners. The Macomb Circuit Court committed the children to the Michigan Children's Institute (MCI) for further case planning.[2]

         Petitioners have four other biological and adoptive children in their family. Throughout the period of time shortly after the children's placement with petitioners in 2012, until petitioners filed a petition for adoption in December 2015, respondent Hands Across the Water (HAW) investigated a number of reports involving the foster family, and various safety plans and corrective action plans were implemented. Mary E. Rossman, the Superintendent of MCI, nevertheless voluntarily consented to the adoption of the children by petitioners. In addition, the Tribe approved of the adoption "with reservations."

         On February 2, 2016, the Oakland Circuit Court terminated the rights of MCI after finding that the consent to adoption was genuine, given with legal authority, and the best interests of the children would be served by the adoption. After consent, the court entered an order placing both children with petitioners.

         On February 22, 2016, HAW wrote a letter to the Oakland Circuit Court asking it to rescind the order placing the children with petitioners and to not finalize the adoption. In the letter, HAW detailed previous allegations and action plans, and noted new allegations[3]suggesting that the foster family would be unable to meet the needs of all the children in the home. On March 7, 2016, the Tribe wrote to the Oakland Circuit Court supporting HAW's recommendation to oppose the adoption of the children by petitioners.

         At a hearing on April 29, 2016, the Oakland Circuit Court judge suggested that she had little discretion in this matter because, under ICWA, any parent or Indian tribe could withdraw consent to placement at any time, and upon withdrawal, the child would be returned to the parent or tribe. The judge stated that she was "irritated and frustrated" that HAW had not done its job to recognize the problems with the placement earlier, before the children were "going to be ripped out of this home." The judge then requested additional briefing.

         On June 14, 2016, the Oakland Circuit Court entered an opinion and order providing, in relevant part:

Consents to adoption may be executed by "the authorized representative of the department or his or her designee or of a child placing agency to whom the child has been permanently committed by an order of the court and/or by the court . . . having permanent custody of the child." MCL 710.43. Under ICWA Section 1913(c), parents may withdraw consent to adoptive placement for any reason at any time prior to the entry of a final decree of adoption. See In re Kiogima, 189 Mich.App. 6 (1991). Similarly, under MIFPA, "a parent or Indian custodian who executes a consent" for placement for purposes of adoption "may withdraw his or her consent at any time before entry of a final order of adoption by filing a written demand requesting the return of the child." MCL 712B.13(3) (emphasis added). "Once a demand is filed with the court, the court shall order the return of the child." Id. Importantly, withdrawal of consent by a parent or Indian custodian "constitutes a withdrawal of . . . a consent to adopt executed under" MCL 710.43, cited above. MCL 712B.13(3).
In Oglaga Sioux Tribe, the court at issue held that "Tribes have parens patriae standing to bring [an] action" on par with that of a biological parent. Supra, 993 F.Supp.2d 1017 at 1027-28. The Court reasoned that ICWA was enacted to "'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.'" Id. (quoting ICWA sec 1902).
The Court's Findings
Based on the legal authority cited above, the Court has no choice but to grant the Agency's and the Tribe's request to set aside the Order. The Court notes that Petitioners' citation of MCL 710.51 is inapplicable here, as Minors are of Indian heritage such that ICWA and MIFPA supersede any and all conflicting provisions of the Michigan Adoption Code. The Court notes that the Agency and the Tribe both have standing to rescind the Order and that their authority to do so still exists because the finalization of Minors' adoption has not yet occurred. While ICWA only specifically addresses a parent's right to revoke consent to adoption, the Court notes that MIFPA expressly expands the authority to a Minor's Indian custodian and then provides that an agency's consent to adopt is akin to a parent's and/or an Indian custodian's consent. Finally, the Court notes that the Court's finding is corroborated by ICWA's stated intent, as the Act was created to protect a tribe's stability and security by giving deferential preference to a minor's tribe.
The Court notes that it does not make this finding without apprehension, as Minors have resided with Petitioners for most of Minors' young lives. As a result, the Court deems it necessary to schedule a hearing as soon as possible to determine the details of removing Minors from Petitioners' residence and ensuring that said removal is performed to reduce any potential trauma on Minors, as well as Petitioners.

         On June 21, 2016, the Oakland Circuit Court recommitted the children to MCI and denied petitioners' petition for adoption. By that time, the children (ages almost four and six) had lived with petitioners approximately four years.

         Following the order rescinding the order placing the children with petitioners, respondent father filed a notice in the Macomb Circuit Court to withdraw consent to the termination of his parental rights and a demand requesting the return of the children pursuant to MCL 712B.13(3). Respondent father stated that he voluntarily relinquished his parental rights to the children so that petitioners could adopt them, but the Oakland Circuit Court had recently denied their petition for adoption.

         The Macomb Circuit Court refused to withdraw respondent father's consent and ruled that MCL 712B.13(3) did not apply because this was not a voluntary consent to placement for purposes of adoption. The court disagreed with respondent father's claim that he had consented to the adoptive placement with petitioners. The court then found that MCL 712B.13(5) applied to the release in this case. The court reasoned that although that statute references MCL 712B.15, the latter statute does not cover withdrawal, so the court could reference ICWA and In re Kiogima, 189 Mich.App. 6; 472 N.W.2d 13 (1991), which only allow rescission of a release before termination of parental rights. Citing In re MD, 110 Wash.App. 524; 42 P.3d 424 (2002), the court further reasoned that allowing the release to be rescinded at any time would make termination of parental rights conditional and meaningless.


         The primary questions presented in petitioners' appeal concern who has authority to give consent to the adoptive placement, and whether ICWA or MIFPA permit HAW or the Tribe to withdraw consent after the order placing the children is entered.

         In In re KMN, 309 Mich.App. 274, 286; 870 N.W.2d 75 (2015), this Court, quoting Hoffenblum v. Hoffenblum, 308 Mich.App. 102, 109-110; 863 N.W.2d 352 (2014), observed:

"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) (emphasis omitted). 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)."

         "Statutes that relate to the same subject matter or share a common purpose are in pari materia and must be read together as one law . . . to effectuate the legislative purpose as found in harmonious statutes." In re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich.App. 142, 148; 762 N.W.2d 192 (2009). "If two statutes lend themselves to a construction that avoids conflict, that construction should control." Id. "When two statutes are in pari materia but conflict with one another on a particular issue, the more specific statute must control over the more general statute." Donkers v. Kovach, 277 Mich.App. 366, 371; 745 N.W.2d 154 (2007).


         After the children's biological parents released their parental rights, the children were committed to MCI. According to MCL 400.203(1), the superintendent of MCI "shall represent the state as guardian of each child . . . ." The MCI superintendent "has the power to make decisions on behalf of a child committed to the institute" and is authorized to consent to that child's adoption. MCL 400.203(2) and MCL 400.209; see also MCL 710.43(1)(e) (consent to adoption shall be executed by the guardian of a child). MCL 710.51 addresses the procedure that follows a consent to adoption and provides, in relevant part:

(1) Not later than 14 days after receipt of the report of investigation, except as provided in subsections (2) and (5), the judge shall examine the report and shall enter an order terminating the rights of the child's parent or parents, if there was a parental consent, or the rights of any person in loco parentis, if there was a consent by other than parents, and approve placement of the child with the petitioner if the judge is satisfied as to both of the following:
(a)The genuineness of consent to the adoption and the legal authority of the person or persons signing the consent.
(b)The best interests of the adoptee will be served by the adoption.
(3) Upon entry of an order terminating rights of parents or persons in loco parentis, a child is a ward of the court and a consent to adoption executed under section 43 of this chapter shall not be withdrawn after the order is entered . . . .

         The DHHS's Adoption Services Manual[4] similarly explains:

After consent to adopt has been issued to an adoptive family, the family may file a petition to adopt with the court. If circumstances develop that cause the adoption worker to determine that adoption by the family who has received consent would not be in the best interests of the child, the adoption worker must document in writing the reasons and immediately provide this documentation to the Michigan Children's Institute (MCI) superintendent or his or her designee that the request for consent is withdrawn.
Consent may be withdrawn at any time up until the court has issued an order terminating the rights of the Department of Human Services (DHS). If the court has issued an order terminating the rights of DHS and an order placing the child for adoption, the child is no longer under the supervision of MCI and the MCI ...

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