About this site
The idea for this site came from my role as moderator of the Oakland County Bar Association Juvenile Law Brown Bag Series. Developments in child protection, juvenile delinquency and adoption law are occurring almost daily and I did not feel that an annual state of the law seminar was sufficient. I decided to create this site to provide updates in the law throughout the year.-- Melinda N. Deel, Esq. (www.melindadeel.com)
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In Re JL – Supreme Court ICWA Case
Posted on July 16th, 2009 No commentsThe Michigan Supreme Court (MSC) issued an opinion this week regarding the Indian Child Welfare Act (ICWA). The specific issue involved was whether 25 USC 1912(d) of ICWA requires DHS to provide current active efforts in the form of remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts have proved unsuccessful. The MSC held that ICWA requires DHS to undertake a thorough, contemporaneous assessment of the services provided to the parent in the past and if it does not appear that the provision of additional services is likely to prevent the need for termination, they may proceed to seek a termination of parental rights.
Respondent Mother and her son JL were both members of the Sault Ste. Marie Tribe of Chippewa Indians. She had four other children, who whom her parental rights had been previously terminated.
JL was born in 1999 when Respondent Mother was 16 years old and living in foster care. CPS began working with Respondent Mother in 1998, before she had children. JL was first removed from Respondent Mother’s care in September 2000. In March 2002, the Sault Ste. Marie Tribe of Chippewa Indians Tribal Court assumed jurisdiction over the case. JL was released from that Court’s jurisdiction in August 2002, when he was placed in a limited guardianship. The children were removed again from Respondent Mother’s care in 2004 as wards of the tribal court. Respondent Mother’s case was closed again in 2005, the worker had provided all the services she could offer “without staying there 24/7.” The worker was of the opinion that Respondent Mother had not made significant improvement.
In July 2007, the DHS petitioned to terminate Respondent Mother’s parental rights to JL on the basis of her “childrens protective service history, beginning on September 12, 2000, and specifically cited the termination of her parental rights to her other four children. At trial, her previous caseworkers described the extensive services they and their agencies provided to Respondent Mother from 1999 to 2005. They testified that despite these services, she failed to become an adequate parent. Testifying as an Indian expert under 25 USC 1912(f), one of her tribal caseworkers stated that she was satisfied that active and reasonable efforts had been provided to prevent the termination of parental rights and that Respondent Mother’s custody of JL would result in serious emotional or physical damage to him. The Trial Court found that DHS had established grounds for termination of parental rights under MCL 712A.19b(3)(i), due to the previous terminations in the tribal court. The trial court also found beyond a reasonable doubt that her continued custody of the minor was likely to result in serious emotional or physical damage to the child under 25 USC 1912(f) and MCR 3.980(D) and terminated her parental rights.
Respondent Mother appealed and the Court of Appeals affirmed. Judge Gleicher dissented indicating that Congress’ use of the term “active efforts” in 25 USC 1912(d) required that DHS provide current rehabilitative efforts designed to reunite the Indian parent and child. Respondent Mother asked the MSC to adopt Judge Gleisher’s dissent and the Court agreed to take up the matter.
25 USC 1912(d) reads as follows:
(d) Remedial services and rehabilitative programs; preventive measuresAny party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.The majority opinion (Corrigan, Young, Markman, Hathaway) held that current efforts are not necessary if past efforts have been unsuccessful and it would be futile to provide additional services. The majority found that further efforts would have been futile in this case and affirmed the trial court and the Court of Appeals. Justice Weaver concurred in the opinion. Justices Cavanagh and Kelly dissented. They agreed with the majority’s interpretation of 25 USC 1912(d), but disagreed with the majority’s application. They state that in order to meet this standard, the party seeking termination must present evidence of the parent’s current circumstances and ability to parent the child that is the subject of the proceeding and the court must assess the relevance of the past efforts to the family’s current circumstances and needs. They found this was absent in this case. They also found that the evidence was insufficient to meet the beyond a reasonable doubt standard that her continued custody of the minor was likely to result in serious emotional or physical damage to the child.There are other minor aspects of this opinion that I have not addressed here, but I think I hit the important ones. I recommend that everyone read this opinion because it provides a good overview of some of the requirements of ICWA. There are also some good links to online resources on ICWA in the footnotes, which I will be adding to this site on the links page.I think this is another one of those cases where the facts may have contributed to the outcome. Mother had been provided services over a span of over 7 years prior to termination. With that many services, it was unlikely that any additional services would have rectified the issues involved. Frankly, this child lingered in the system too long and remand would have only prolonged it.You can read and download the opinion here: In re JL
© 2009, Melinda Deel. All rights reserved.
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