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In re Detmer

Court of Appeals of Michigan

August 22, 2017


         Kent Circuit Court Family Division LC Nos. 16-052784-NA; 16-052785-NA

          Before: Boonstra, P.J., and Ronayne Krause and Swartzle, JJ.

          Swartzle, J.

         We consider here whether the special protections provided to Native American parents and children under state law apply when a child is taken from her mother's care and residence and placed in her father's care and residence. Concluding that one of respondent-mother's children (AB) was "removed, " we hold that the special protections set forth in the Michigan Indian Family Preservation Act do apply to AB's removal. Because the trial court failed to comply with those protections, we vacate and remand for further proceedings. With respect to the other child at issue in this appeal (KD), we hold that the special protections do not apply because KD was not removed from respondent-mother, but instead voluntarily placed by respondent-mother with KD's nonrespondent-father.

         I. BACKGROUND

         AB and KD are minor children, and the two children and respondent-mother are of Native American heritage and are eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe). In September 2016, the Department of Health and Human Services (DHHS) petitioned the trial court to remove the minor children from respondent-mother's care. The petition noted respondent-mother's extensive history with Children's Protective Services and alleged that inappropriate sexual contact had occurred multiple times among her minor children, including three other children who are not subject to this appeal. At the preliminary hearing, respondent-mother voluntarily placed most of her minor children into the care of the minor children's relatives. KD was voluntarily placed with her nonrespondent-father, but AB remained in respondent-mother's care. The trial court made no findings on whether DHHS made "active efforts" to provide remedial services or whether respondent-mother's continued custody posed a risk-of-harm to the minor children, as the placements at that time were voluntary.

         The trial court assumed jurisdiction over the children in November 2016. At adjudication, the trial court ordered that AB be placed with his nonrespondent-father out of concern for his safety in respondent-mother's home. KD's prior voluntary placement was continued. The trial court expressly declined to make any findings as to active efforts or risk-of-harm, stating that these findings were unnecessary because AB was placed in the home of his nonrespondent-father and, therefore, he was still in the care of a parent. According to the trial court, because AB's father was a nonrespondent, under In re Sanders, 495 Mich. 394; 852 N.W.2d 524 (2014), AB's father had "every right to go take [his] child and . . . take that child home" and the trial court did not "have any say whatsoever over" AB's placement. The trial court therefore concluded that, because AB was not "out of the home of a parent, " it did not need to address active efforts or risk-of-harm.

         Several days after the November 2016 hearing, respondent-mother's attorney emailed the trial court (copying the other parties), and notified the court that its written order of adjudication incorrectly identified respondent-mother as voluntarily placing AB with his nonrespondent-father. The trial court issued a corrected adjudication order shortly thereafter. The email did not make any specific mention of KD, though it did indicate that the "other children" had been "voluntarily placed." Moreover, the referee and trial court held subsequent hearings in February 2017, and during both hearings, KD's placement with her father was characterized as voluntary, and neither respondent-mother's attorney nor anyone else objected to that characterization.

         Respondent-mother appealed as of right, arguing that the placement of AB and KD violated protections set forth in the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. Because no stay had been entered, the case progressed below. After the parties completed appellate briefing, this Court set the date of oral argument for August 8, 2017. Prior to oral argument, the trial court held a progress review hearing on July 27, 2017.

         During the hearing, the trial court noted that both AB and KD had been returned to respondent-mother's care and residence in mid-June 2017. The trial court commended respondent-mother on the "fantastic job" that she had done in turning her life around, pursuing education, engaging in the available programming, and similar positive acts. The trial court recognized respondent-mother's "excellent responsiveness, " but the court did strike a cautionary note that with respect to this family, "we have been back and forth, and back and forth, and back and forth." The trial court closed the case, but before doing so, it stated that the question of removal is an "incredibly important" one and expressed its hope that this Court would address it on appeal.

         This Court heard oral argument on August 8, 2017. In response to questions about whether this appeal was moot, counsel for respondent-mother, the Tribe, and petitioner all agreed that the appeal was moot now that the case below had been closed. But, all counsel further asked this Court to reach the merits of the appeal regardless of mootness because the case involved an issue of public significance that is likely to recur, yet evade appellate review. See In re Midland Publishing Co, Inc, 420 Mich. 148, 152 n 2; 362 N.W.2d 580 (1984).

         II. ANALYSIS

         A. The Case Is Moot, But the Exception Against Deciding Moot Cases Applies

         1. Judicial Authority and Mootness

         Courts of this state derive their authority from Article VI of the Constitution of the State of Michigan of 1963. An "essential element" of our courts' judicial authority is that the courts do "not reach moot questions or declare rules of law that have no practical legal effect in a case." City of Warren v City of Detroit, 471 Mich. 941, 941-942; 690 N.W.2d 94 (2004) (Markman, J, concurring). One of "the most critical" aspects of judicial authority, as opposed to legislative or executive authority, is the requirement that there be a "real" controversy between the parties, as opposed to a "hypothetical" one. Id. at 942. Thus, before we can reach the merits of this appeal, we must first consider whether it has become moot.

         Generally speaking, a case becomes moot when an event occurs that makes it impossible for a reviewing court to grant relief. Contesti v Attorney General, 164 Mich.App. 271, 278; 416 N.W.2d 410 (1987). Stated differently, "a case is moot when it presents nothing but abstract questions of law which do not rest upon existing facts or rights." People v Richmond, 486 Mich. 29, 35; 782 N.W.2d 187 (2010) (internal citations and quotation marks omitted). "Where a court's adverse judgment may have collateral legal consequences for a [party], the issue is not necessarily moot." Mead v Batchlor, 435 Mich. 480, 486; 460 N.W.2d 493 (1990), abrogated on other grounds by Turner v Rogers, 564 U.S. 431; 131 S.Ct. 2507 (2011). Where no such collateral legal consequences ...

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