In re JJW and ELW, Minors. In re WILLIAMS, Minors.
Circuit Court LC No. 2015-837756-AM
Circuit Court Family Division LC No. 2012-000291-NA
Before: Sawyer, P.J., and Saad and Riordan, JJ.
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.
Docket No. 335932, respondent, the children's biological
father ("father"), appeals by leave
granted 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.
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).
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
FACTS AND PROCEDURAL HISTORY
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.
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.
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
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
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
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 allegationssuggesting 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.
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.
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
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
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.
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
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.
DOCKET NO. 334095 - PETITIONERS' APPEAL
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
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
"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
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).
MCI'S AUTHORITY TO WITHDRAW CONSENT
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
(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
(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 . .
DHHS's Adoption Services Manual 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 ...