In Re T E Bixler Minor ( 2022 )


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  •             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
    revision until final publication in the Michigan Appeals Reports.
    STATE OF MICHIGAN
    COURT OF APPEALS
    UNPUBLISHED
    In re T. E. BIXLER, Minor.                                          January 27, 2022
    No. 357897
    Lenawee Circuit Court
    Family Division
    LC No. 18-000133-NA
    Before: GLEICHER, C.J., and BORRELLO and RONAYNE KRAUSE, JJ.
    PER CURIAM.
    The circuit court terminated respondent-mother’s parental rights to her young daughter
    who had been in care since shortly after her birth. Respondent challenges the court’s grounds for
    taking jurisdiction over the child, contends that the Department of Health and Human Services
    (DHHS) breached its duty to attempt relative placement, and argues that the court failed to comply
    with the notice provisions of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the
    Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. Although we discern no
    error with the court’s jurisdictional and placement decisions, documentation necessary to support
    that proper notice was given under ICWA and MIFPA is absent from the record. Accordingly, we
    conditionally reverse the termination order and remand for further proceedings to address the
    notice issue with respect to the Cherokee Nation.
    I. BACKGROUND
    Respondent gave birth to TEB on July 21, 2018. As respondent had used heroin and
    misused prescription opiates during her pregnancy, TEB went through withdrawal after birth. On
    July 30, the DHHS filed a petition to take TEB into care based on respondent’s drug use, lack of
    housing, and unemployment. TEB’s maternal grandmother sought placement of the infant, but
    her home was deemed inappropriate. Respondent entered a plea to jurisdiction and TEB was
    placed with an unrelated foster family, where she remains to this day.
    Respondent was noncompliant with her case service plan throughout much of the
    proceedings. She continued to use marijuana, alcohol, opiates, methamphetamines, and
    prescription medications. Respondent was frequently without a job or suitable housing, failed to
    attend many of her drug screens, and failed to consistently attend parenting time. And respondent
    delayed in revealing the identity of TEB’s father. When the child’s father was finally revealed, he
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    indicated that he believed he was part Cherokee, triggering a duty on the part of the court and the
    DHHS to investigate TEB’s heritage.
    At one point the court changed the goal to termination and adoption. However, respondent
    began to show progress and the court changed its position. On November 20, 2020, respondent
    gave birth to LAW. The DHHS briefly placed LAW in the same foster home as TEB before
    placing LAW with his maternal grandmother, which was then deemed a fit location. Eventually,
    the matter proceeded to a termination hearing and the court terminated respondent’s parental rights
    to TEB under MCL 712A.19b(3)(c)(i) (conditions that led to adjudication continue to exist), (g)
    (failure to provide care and custody), and (j) (reasonable likelihood of harm if returned to parent’s
    care).
    II. JURISDICTION
    Respondent challenges the circuit court’s factual and legal bases for exercising jurisdiction
    over TEB. However, respondent waived any error in this regard.
    “A party may not take a position in the trial court and subsequently seek redress in an
    appellate court that is based on a position contrary to that taken” below. Holmes v Holmes, 
    281 Mich App 575
    , 587-588; 760 NW2d 300 (2008) (quotation marks and citation omitted). That is,
    “[a] party cannot stipulate [to] a matter and then argue on appeal that the resultant action was
    error.” 
    Id. at 588
     (quotation marks and citation omitted). To allow a respondent to assign “error
    on appeal [to] something that she deemed proper in the lower court” would “permit [a] respondent
    to harbor error as an appellate parachute.” In re Hudson, 
    294 Mich App 261
    , 264; 817 NW2d 115
    (2011).
    In the circuit court, respondent admitted to several grounds alleged in the petition to take
    jurisdiction. The court also specifically asked respondent whether she was “acknowledging that
    jurisdiction concerning your child is appropriate as the child was subject to a substantial risk of
    harm due to the child’s mental wellbeing based on substance use on your part.” Respondent
    personally answered, “Yes.” As respondent expressly conceded the court’s jurisdiction,
    respondent cannot challenge the court’s jurisdictional decision on appeal.
    III. ICWA AND MIFPA NOTICE REQUIREMENT
    Respondent further contends that the DHHS and the circuit court failed to comply with the
    notice requirements of ICWA and MIFPA.
    ICWA and MIFPA were both enacted in an effort to “protect[] the best interests of
    [American] Indian children and promot[e] the stability and security of [American] Indian tribes
    and families.” In re England, 
    314 Mich App 245
    , 250-251; 887 NW2d 10 (2016) (quotation marks
    and citations omitted). The notice provisions of ICWA and MIFPA generally require that a tribe
    be notified “when there are sufficient indications that the child may be an [American] Indian
    child . . . .” In re Morris, 
    491 Mich 81
    , 100; 815 NW2d 62 (2012). If the child’s tribe cannot be
    determined, notice must be sent to the Bureau of Indian Affairs. Id. at 124 (providing overview
    of the notice process under 25 USC 1912(a) in appendix to opinion). Similar notice requirements
    apply under MIFPA. See MCL 712B.9. Specifically, ICWA requires a relevant Indian tribe be
    notified by registered mail, return receipt requested, when there is “reason to know” that an Indian
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    child may be involved in the child protective proceeding. 25 USC 1912(a); see also MCL
    712B.9(1). Compliance with these notice provisions “is mandatory, regardless of how late in the
    proceedings a child’s possible Indian heritage is uncovered.” In re TM (After Remand), 
    245 Mich App 181
    , 188; 628 NW2d 570 (2001) (quotation marks and citation omitted), overruled in part on
    other grounds by Morris, 491 Mich at 115 n 26. Neither the court nor the DHHS claimed a lack
    of knowledge and they did attempt notification in this case.
    However, mere “assertions . . . that notice had been sent” are insufficient when the record
    does not contain “copies of the actual notice purportedly sent,” and does not “include any original
    or copy of a registered mail return receipt, which is necessary to show not only that notice was
    received, but also determine when the 25 USC 1912(a) waiting period begins.” Morris, 491 Mich
    at 112. A lack of documentation makes it “impossible to discern from the record . . . whether
    notice was actually sent, to whom it was sent, and whether the notices were received by the
    appropriate recipients.” Id. The trial court is dutybound
    to ensure that the record includes, at a minimum, (1) the original or a copy of each
    actual notice personally served or sent via registered mail pursuant to 25 USC
    1912(a), and (2) the original or a legible copy of the return receipt or other proof of
    service showing delivery of the notice. [Morris, 491 Mich at 114.]
    After TEB’s father indicated that he had “Cherokee Indian heritage,” the DHHS sent
    notices to three Cherokee tribal organizations: the Cherokee Nation in Tahlequah, Oklahoma; the
    United Keetoowah Band of Cherokee Indians in Tahlequah; and the Eastern Band of Cherokee
    Indians in Cherokee, North Carolina. Contrary to the requirements of ICWA and Morris, copies
    of these notices and the accompanying documentation were not placed on the record. We note,
    however, that the certified mail return receipts were submitted to the court.
    The Eastern Band of Cherokee Indians and the United Keetoowah Band of Cherokee both
    indicated that TEB was not eligible for tribal membership and that they would not intervene in this
    action. Given the tribes’ decisions, the failure of the DHHS to present the original notice and
    documentation to the court is harmless. Id. at 120-121. The same cannot be said with regard to
    the Cherokee Nation. Although a court report indicates that the Cherokee Nation denied TEB’s
    eligibility for membership, no letter was placed in the record. The court’s mere assertion is
    insufficient under Morris. Accordingly, this gap must be closed on remand—the DHHS must
    present both the notice and documentation sent to the Cherokee Nation and the letter from the
    Cherokee Nation denying TEB’s eligibility for membership. Only then will the notice
    requirements of the state and federal statutes be met. And only then may termination be ordered.
    In the meantime, “the proper remedy for ICWA-notice violations is to conditionally reverse
    the trial court and remand for resolution of the ICWA-notice issue.” Id. at 122. This Court has
    applied this same procedure to MIFPA issues. See In re Beers, 
    325 Mich App 653
    , 678; 926
    NW2d 832 (2018). Once the identified gaps in the record are closed, the court’s termination order
    may be reinstated. Morris, 491 Mich at 123.
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    IV. RELATIVE PLACEMENT
    Finally, respondent challenges the trial court’s and DHHS’s failure to consider placement
    of TEB with the child’s maternal grandmother.
    “When a child is removed from a parent’s care during the adjudication phase under MCL
    712A.2(b), . . . ‘the court shall order the juvenile placed in the most family-like setting available
    consistent with the juvenile’s needs.’ ” In re COH, 
    495 Mich 184
    , 192; 848 NW2d 107 (2014),
    quoting MCL 712A.13a(12). The DHHS “must complete an initial services plan within 30 days
    of the child’s placement.” COH, 495 Mich at 192, citing MCL 712A.13a(10)(a). “As part of the
    initial services plan, the [DHHS] is required to comply with MCL 722.954a(2).”1 COH, 495 Mich
    at 192-193. “MCL 722.954a applies from the moment a child is removed from his or her parents’
    care, i.e., before any placement decision is made, and, consequently, the requirements of MCL
    722.954a are intended to guide the [DHHS’s] initial placement decision.” COH, 495 Mich at 195
    (emphasis in original).
    Under MCL 722.954a(2), “[u]pon removal, . . . the supervising agency shall, within 30
    days, identify, locate, notify, and consult with relatives to determine placement with a fit and
    appropriate relative who would meet the child’s developmental, emotional, and physical needs.”
    The DHHS fulfilled this duty. The court report related to the August 28, 2018 hearing indicates
    that the foster-care worker, Sabrina Beitelschies, conducted a family team meeting with respondent
    and her extended family. Respondent was living with her mother at that time. This meant that
    TEB could not be placed with her maternal grandmother. Respondent again requested that her
    mother be investigated for placement after respondent moved out on her own. Beitelschies
    indicated she had a “home visit scheduled for [August 27, 2018,] to begin the process of assessing
    whether [the maternal grandmother] is a safe placement option” for TEB. Beitelschies further
    indicated that if the maternal grandmother’s home was found appropriate, Beitelschies would
    “complete a DHHS-3130A (Relative Home Study) within 30 days, and if the family was fully
    assessed to be safe and appropriate,” TEB would be moved. By the next court report, however,
    respondent’s “relatives were assessed by the agency and determined to be inappropriate, unwilling
    and/or unsafe for foster care placement of this child.” Thus, the DHHS complied with the statutory
    requirements of MCL 722.954a(2).
    1
    MCL 722.954a was amended by our Legislature in 2016. 
    2016 PA 190
    , effective September 19,
    2016. MCL 722.954a(1) through (5) remained unchanged from the version in effect when COH
    issued, but subsection (6) was changed to subsection (9). Three new subsections were added
    related to siblings, which are found in MCL 722.954a(6) through (8). MCL 722.954a(6) is relevant
    to this case, although it does not alter the outcome. Notably, MCL 722.954a(6) requires that
    reasonable efforts be made to place siblings in the same foster care placement unless the DHHS
    “documents that a joint placement would be contrary to the safety or well-being of any of the
    siblings.” LAW was initially placed with the same nonfamily placement as TEB. Testimony was
    presented, however, that TEB’s negative behaviors were exacerbated by the presence of LAW,
    including increased incidents of “head banging.” Thus, the trial court moved LAW to the maternal
    grandparents’ home.
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    “The preference for placement with relatives is also expressly preserved throughout the
    review process . . . .” COH, 495 Mich at 195. Specifically, when relatives are involved, the DHHS
    is required to meet the following requirements under MCL 722.954a:
    (4) Not more than 90 days after the child’s removal from his or her home,
    the supervising agency shall do all of the following:
    (a) Make a placement decision and document in writing the reason for the
    decision.
    (b) Provide written notice of the decision and the reasons for the placement
    decision to the child’s attorney, guardian, guardian ad litem, mother, and father; the
    attorneys for the child’s mother and father; each relative who expresses an interest
    in caring for the child; the child if the child is old enough to be able to express an
    opinion regarding placement; and the prosecutor.
    (5) Before determining placement of a child in its care, a supervising agency
    shall give special consideration and preference to a child’s relative or relatives who
    are willing to care for the child, are fit to do so, and would meet the child’s
    developmental, emotional, and physical needs. The supervising agency’s
    placement decision shall be made in the best interests of the child.
    * * *
    (9) A person who receives a written decision described in subsection (4)
    may request in writing, within 5 days, documentation of the reasons for the
    decision, and if the person does not agree with the placement decision, he or she
    may request that the child’s attorney review the decision to determine if the decision
    is in the child’s best interest. If the child’s attorney determines the decision is not
    in the child’s best interest, within 14 days after the date of the written decision the
    attorney shall petition the court that placed the child out of the child’s home for a
    review hearing. The court shall commence the review hearing not more than 7 days
    after the date of the attorney’s petition and shall hold the hearing on the record.
    This review process is “limited to a narrow time period.”
    [T]he request for documentation of the reasons for the placement decision must be
    made within 5 days of receiving the placement decision, the potential petition for a
    review hearing must be made within 14 days of the written decision, and the review
    hearing must be held within 7 days after the petition. [COH, 495 Mich at 196.]
    And “there is no indication within the statutory language of MCL 722.954a that the Legislature
    intended that the preference for placement with relatives exists beyond the time frame identified
    within MCL 722.954a.” COH, 495 Mich at 196; see also id. at 198 (“[T]he plain language of MCL
    722.954a limits the applicability of the preference [for placement with relatives] to only the initial
    stage of the process, i.e., immediately after a child is removed from his or her parents’ care and
    during the statutory review period established in MCL 722.954a(3).”).
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    The DHHS did consider placing TEB with the maternal grandmother within 90 days of the
    child’s removal from respondent’s home. Although the DHHS placed TEB in nonrelative foster
    care, the DHHS began its investigation into the maternal grandmother’s home. Unfortunately, a
    Child Protective Services (CPS) claim had been substantiated against the grandmother around the
    same time. The situation, involving another grandchild placed in the grandmother’s care, was later
    described as “unique” and “was quickly resolved.” Even so, the CPS matter rendered the
    grandmother’s home an “inappropriate” or “unsafe” option during the first 90 days of these
    proceedings.
    Moreover, although the maternal grandmother claimed that she followed up with the
    DHHS and never received a more detailed answer regarding its decision, there is no record
    indication that the grandmother “request[ed] in writing, within 5 days, documentation of the
    reasons for the decision” or “request[ed] that the child’s attorney review the decision” in light of
    the child’s best interests. MCL 722.954a(9). Indeed, the CPS investigator testified that the
    maternal grandmother and her husband appeared preoccupied “with their own issues” surrounding
    the CPS report at that time and could not devote energy to securing placement of TEB. The
    grandmother’s more active efforts to have TEB placed in her home occurred well past the 90-day
    window provided in the statute.
    The DHHS met the requirements in MCL 722.954a(4) and (5). Under MCL 722.954a(2),
    the DHHS was required to not merely identify and locate relatives with whom to place the minor
    child, but rather to identify and locate “a fit and appropriate relative who would meet the child’s
    developmental, emotional, and physical needs” for placement. Plus, the DHHS’s placement
    decision is to be made “in the best interests of the child” above all else. MCL 722.954a(5).
    Because the maternal grandmother had a CPS referral in 2018, respondent has failed to
    demonstrate any error in the DHHS’s initial determination that placement with the grandmother
    would be inappropriate or unsafe. Additionally, considering the information the DHHS had at the
    time of the placement, and for at least the first 90 days of placement, continued placement of TEB
    in foster care appears to have been in TEB’s best interests.
    The maternal grandmother did not appear before the court until August 19, 2020, more
    than two years after TEB’s removal. By that point, TEB was bonded with the foster parents, the
    only parents she had ever known. Although the grandmother’s home was then deemed a safe and
    suitable placement for LAW, changing TEB’s placement at that point would not have been in her
    best interests. Therefore, the circuit court did not err by failing to consider the maternal
    grandmother as a viable option for placement of TEB.
    We conditionally reverse the circuit court’s termination order and remand for the court to
    address the ICWA-notice issue with respect to the Cherokee Nation. We do not retain jurisdiction.
    /s/ Elizabeth L. Gleicher
    /s/ Stephen L. Borrello
    /s/ Amy Ronayne Krause
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Document Info

Docket Number: 357897

Filed Date: 1/27/2022

Precedential Status: Non-Precedential

Modified Date: 2/3/2022