In the case of In re Detmer/Beaudry, Minor, No.336348, the two minor children, AB
and KD, and their mother are members of the Sault Ste. Marie Tribe of Chippewa
Indians (the Tribe) and thus, when AB was “removed” from his mother, the
special protections of the Michigan Indian Family Preservation Act (MIFPA) applied. Because the trial court didn’t
comply with those protections, the Michigan Court of Appeals (MCOA) vacated the
court’s order and remanded for further proceedings.
FACTS:
In
September 2016, the Department of Health and Human Services (DHHS) petitioned
the trial court to remove the minor children from their mother’s care due to
the mother’s extensive history with Children’s Protective Services. At the
preliminary hearing, KD was voluntarily placed with her father, but AB remained
in the mother’s care. In November 2016, the trial court ordered that AB be
placed with the father due to concern for his safety with the mother. The court
declined to make any findings as to active efforts or risk of harm to AB since
he was not “out of the home of a parent.”
The
mother appealed arguing that the placement of AB and KD violated the
protections of MIFPA. When the matter came before the MCOA, the case below had
been settled and the children returned to their mother. All parties agreed that
the case was moot but asked the court to address the merits of the appeal
because the case involved an issue of public
significance that is likely to recur, yet evade appellate review. (In re Midland Publishing Co, Inc.,
420 Mich 148, 152 n 2; 362 NW2d 580 (1984).
The Case is Moot but the Exception Against Deciding Moot Cases Applies:
- The question on appeal - whether a Native American child has been “removed” from a parent - has paramount public significance.
- The issue is likely to recur. One of the problems identified by Congress and our Legislature prior to enactment of the federal Indian Child Welfare Act and Michigan’s MIFPA was that Native American children were being removed from their families and tribes at alarmingly high rates.
- Due to the nature of these cases, often resolved before the MCOA can hear and review the issues, they evade appellate review.
When is child “removed” from a parent calling for the procedural
protections of MIFPA to apply?
Relying
on language in MCL 712B.15(2), the mother argues that the trial court erred
when it purportedly “removed” AB and KD without first making any findings as to
active efforts or risk-of-harm. DHHS responds that the trial court did not
“remove” either child and, accordingly, the provisions of MCL 712B.15(2) do not
apply. Thus, to resolve this matter, we need to construe the meaning of
“removed” under MIFPA.
The
statute doesn’t define “removed.” After a review of other statutes, case law
and Black’s Law dictionary the court wrote, “Thus, we understand “removed” in
MCL 719B.15(2) to mean the instance when a court orders that a child be
physically transferred or moved from the care and residence of a parent or
custodian to the care and residence of some other person or institution.”
Based
on this understanding, the MCOA stated, “it becomes clear that the trial court
erred with respect to AB. Over mother’s objection, the trial court ordered that
AB be physically placed with his father. AB had previously resided with his mother
and spent every other weekend with his father. The trial court’s order moved
AB’s residence to his father’s home and conditioned mother’s visitation on the
discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court
“removed” AB from respondent-mother.
Because
AB was removed from a parent, the trial court was required under MIFPA to make
findings on whether active efforts were made to provide remedial services,
whether those efforts were successful, and whether respondent-mother’s
continued custody of AB posed a risk of emotional or physical harm to the
child. MCL 712B.15(2). The trial court was required to hear testimony of a
qualified expert witness concerning these matters. MCL 712B.15(2). The trial
court made no such findings and heard no such testimony, and this was
reversible error.”
The
trial court didn’t err with regard to KD since the placement was voluntary and
not intended to be permanent. This is not “removal” but simply a mother making
decisions regarding her child.
Labels: Active Efforts, child welfare appeal, Indian Child, MCL 719B.15(2), Michigan Indian Family Preservation Act, Moot, Public Significance, Remedial Services, Removal of Child