In re Children of Michelle C. , 2021 ME 61 ( 2021 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 61Docket: And-21-159
Submitted
On Briefs: October 20, 2021
Decided: December 7, 2021
Panel: STANFILL, C.J., and MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ.
IN RE CHILDREN OF MICHELLE C.
HORTON, J.
[¶1] In this consolidated appeal, Michelle C. challenges a judgment
terminating her parental rights to her older child and an order finding that her
younger child is in jeopardy in her care, both entered in the District Court
(Lewiston, Archer, J.). The father of the older child also challenges the judgment
terminating his parental rights to the older child. We affirm both the judgment
terminating the mother’s and father’s parental rights to the older child and the
jeopardy order as to the mother’s younger child.
I. BACKGROUND
[¶2] The following facts and procedural history are drawn from the
procedural record and the court’s findings, entered after the contested
consolidated hearing, which are supported by competent evidence in the
record. See In re Child of Radience K., 2019 ME 73, ¶ 2, 208 A.3d 380.
2
[¶3] The older child has been in the care of the Department since his
birth in 2018. The Department petitioned to terminate both the mother’s and
father’s parental rights to the older child in August 2020. The younger child
was born in November 2020 and was immediately placed in the care of the
Department.1
[¶4] At a contested summary preliminary hearing in November 2020
regarding the younger child, the mother raised for the first time the possibility
that she has Native American heritage. Based on the information that the
mother provided, the Department contacted the Passamaquoddy Tribe at
Pleasant Point, the Passamaquoddy Tribe at Indian Township, and the
Aroostook Band of Micmacs to determine whether the mother is a member of
either of those tribes.2
[¶5] On February 22 and 24, 2021, the court held a consolidated hearing
to consider (1) termination of the mother’s and father’s parental rights to the
older child and (2) jeopardy of the younger child as to the mother. At the
hearing, the Department informed the court that it had heard only from the
1 The identity of the father of the younger child is unknown.
2The Passamaquoddy Tribe and the Aroostook Band of Micmacs are the only federally-recognized
Passamaquoddy and Micmac tribes in the United States. See Indian Entities Recognized by and
Eligible To Receive Services From the United States Bureau of Indian Affairs, 86 Fed. Reg. 7,554,
7,554, 7,556 (Jan. 29, 2021).
3
Passamaquoddy Tribe at Pleasant Point, which indicated that the mother was
not a member of the Passamaquoddy Tribe. The mother testified once again
that she believed that she was connected to the Passamaquoddy Tribe or the
Micmac Tribe and that she was a member of the Micmac Tribe. The mother’s
grandmother also testified to having Chesapeake heritage but stated that she
was not a member of any tribe.
[¶6] The court held the record open until March 17 to receive further
information regarding the mother’s tribal membership status to determine
whether the Indian Child Welfare Act (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS
through Pub. L. No. 117-65, approved November 23, 2021, with a gap of Pub. L.
No. 117-58), was applicable to this case. During that period, the Department
also contacted the Bureau of Indian Affairs (the Bureau), but it did not receive
a response. The Aroostook Band of Micmacs replied and indicated that the
mother was not a member, but the Passamaquoddy Tribe at Indian Township
never responded separately from the Passamaquoddy Tribe at Pleasant Point.3
[¶7] The court issued orders regarding both children on May 4, 2021.
The court affirmatively concluded that ICWA was not applicable and found that
3 The Department supplemented the record with this information via email pursuant to
PMO-SJC-3 State of Maine Judicial Branch Pandemic Management Order (revised Dec. 14, 2020).
4
the testimony regarding possible Native American heritage was “intentionally
vague and confusing.” It then terminated the parental rights of both parents to
the older child pursuant to 22 M.R.S. § 4055(1)(B)(2) (2021). The court also
found jeopardy as to the mother regarding the younger child. See 22 M.R.S.
§ 4035(2) (2021).
[¶8] The mother and father timely appealed the judgment terminating
their parental rights to the older child, and the mother timely appealed the
jeopardy order as to the younger child. See 22 M.R.S. § 4006 (2021); M.R.
App. P. 2B. We consolidated the two appeals.
II. DISCUSSION
A. Indian Child Welfare Act
[¶9] The mother’s sole argument on appeal is that the court erred in
concluding that ICWA did not apply to either of the children. 25 U.S.C.S.
§§ 1901-1963. ICWA applies when a child involved in a protective custody
proceeding is an “Indian child,” defined as a child who “is either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” Id. § 1903(4); see id. § 1912.
Because the court and the Department satisfied their joint obligation under
ICWA to determine whether the children are Indian children, we hold that the
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court did not err in concluding that ICWA did not apply and thus affirm the
judgment and the order entered against the mother.
[¶10] In In re Trever I., we explained the obligation of the Department
and the court to investigate eligibility for tribal membership in the context of
ICWA. 2009 ME 59, ¶¶ 21-22, 973 A.2d 752. We drew heavily upon a 1979
guidance document (the Guidelines) from the Bureau because ICWA itself
contains only a general requirement that a tribe be notified when the court
“knows or has reason to know that an Indian child is involved.” Id. ¶¶ 16-21(quotation marks omitted) (quoting 25 U.S.C.S. § 1912(a)); Guidelines for State
Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979).
We explained,
[T]he court is obligated to inquire if the child involved in a
termination of parental rights proceeding is a member of an Indian
tribe, or if a parent of the child is a member of an Indian tribe and
the child is eligible for membership in an Indian tribe. Pursuant to
22 M.R.S. § 4032(2)(K), the Department shares this obligation. . . .
[T]he party asserting the applicability of the ICWA has the burden
to provide sufficient information to at least put the court or
Department on notice that the child may be an “Indian child,”
within the meaning of the ICWA, and that further inquiry is
necessary. . . .
If, as a result of information it receives, the Department or
court has reason to believe that the child may be an Indian child, . . .
the Department or court is obligated to verify the child’s status either
through the Bureau or, if possible, through the tribe at issue.
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Trever I., 2009 ME 59, ¶¶ 21-22, 973 A.2d 752 (emphasis added).
[¶11] In 2015, after our decision in Trever I., the Bureau significantly
revised the Guidelines. They now provide that “[i]f there is any reason to
believe that the child is an Indian child, the agency and State court must treat
the child as an Indian child, unless and until it is determined that the child is not
a member or is not eligible for membership in an Indian tribe.” Guidelines for
State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg.
10,146, 10,151-52 (Feb. 25, 2015) (emphasis added). In calling for a
presumption of “Indian child” status unless and until it is affirmatively
determined otherwise, the 2015 Guidelines are considerably stronger than the
1979 version. See id. Although the updated Guidelines are not binding, their
underlying policy goal is certainly in accord with ICWA, so we give deference to
the 2015 Guidelines as we did to the 1979 version in Trever I. 2009 ME 59,
¶¶ 18-22, 973 A.2d 752.
[¶12] Here both the Department and the court gave effect to the
presumption recommended by the 2015 Guidelines in investigating whether
the children were eligible for tribal membership and ultimately determining
“that the child[ren] [were] not . . . eligible for tribal membership.”4 Guidelines
4The vague testimony from the mother’s grandmother about the mother’s possible Chesapeake
heritage did not give the court “reason to know” that the children could have been eligible for
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for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg.
10,146, 10,152 (Feb. 25, 2015). Although the mother met her burden “to
provide sufficient information to at least put the court or Department on notice
that the child[ren] may [have been] ‘Indian child[ren],’” Trever I., 2009 ME 59,
¶ 21, 973 A.2d 752, the Department satisfied its obligation to investigate
whether the children were eligible for tribal membership by contacting the
relevant tribes and providing their responses to the court, so that the court
could meet its own obligation. The Passamaquoddy Tribe at Pleasant Point and
the Aroostook Band of Micmacs each confirmed that the mother was not a
member. Although the Department did not receive a separate response from
the Passamaquoddy Tribe at Indian Township, the response from the
Passamaquoddy Tribe at Pleasant Point was sufficient because it confirmed
that the mother was “currently not [a] member[] with the Passamaquoddy
membership to any tribe from the Chesapeake region. 25 U.S.C.S. § 1912(a) (LEXIS through Pub. L.
No. 117-65, approved November 23, 2021, with a gap of Pub. L. No. 117-58). The grandmother
testified that she herself was not a member of any tribe, and the mother indicated the possibility that
she had a relationship only to the Micmac or Passamaquoddy tribes. Because, under ICWA, the
mother would need to be a member in order for the children to be eligible for tribal membership,
there was no reason for the court to know that the children could have been eligible for membership
to any tribe other than the Micmac or Passamaquoddy tribes. 25 U.S.C.S. § 1903(4) (LEXIS through
Pub. L. No. 117-65, approved November 23, 2021, with a gap of Pub. L. No. 117-58).
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Tribe,” without limiting the response to Pleasant Point.5 The court therefore
did not err in concluding that ICWA did not apply to either of the two children.
B. The Father
[¶13] Contrary to the father’s contentions, the court did not err or abuse
its discretion in finding, by clear and convincing evidence, at least one ground
of parental unfitness and in determining that termination of the father’s
parental rights is in the best interest of the older child. See 22 M.R.S.
§ 4055(1)(B)(2)(b)(i)-(iii) (2021); In re Child of Louise G., 2020 ME 87, ¶ 8,
236 A.3d 445; In re Thomas H., 2005 ME 123, ¶ 16, 889 A.2d 297.
The entry is:
Judgment terminating parental rights affirmed
and jeopardy order affirmed.
Although the Department contacted the Bureau and had not heard back by the time the court
5
closed evidence, a response from the Bureau was unnecessary because the Department or court can
“verify [a] child’s status either through the Bureau or, if possible, through the tribe at issue.” In re
Trever I., 2009 ME 59, ¶ 22, 973 A.2d 752.
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David Paris, Esq., Bath, for appellant father
Jason A. MacLean, Esq., Bridgton, for appellant mother
Aaron M. Frey, Attorney General, and Meghan Szylvian, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for appellee Department of Health and Human
Services
Lewiston District Court docket numbers PC-2018-18 and PC-2020-102
FOR CLERKS REFERENCE ONLY