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             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:

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.

            In In re LMB (Docket No. 338169), the Court of Appeals held that entry of an order of filiation while an adoption appeal was pending mooted the adoption appeal.

            The adoption case involved a putative father who had undisputedly neither provided any support to the child or the birth mother, nor had any custodial relationship with the child. The adoption trial court refused to terminate the putative father’s rights to the child, but its own opinion was highly critical of the putative father. The prospective adoptive parents appealed the decision of the trial court, questioning both the trial court’s choice of standard of proof, and whether custody with the putative father was truly in the child’s best interests given the copious evidence of immaturity, irresponsibility, and instability.

            After the Section 39 hearing under the Adoption Code had begun, the putative father filed a paternity action. While the adoption appeal was pending, the paternity trial court entered an order of filiation making the putative father the legal father of the child. The prospective adoptive parents attempted to stay the paternity case and prevent entry of an order of filiation prior to resolution of their adoption appeal, but the paternity trial court refused to stay the case, and the Court of Appeals dismissed the adoption appeal as moot.

            In re LMB brings to light important issues with respect to the interplay of the Paternity Act and the Adoption Code. The Court of Appeals’ decision, with no concurrent policy that paternity courts stay their proceedings pending adoption matters, creates real problems in the area of adoption law. The ability to moot an adoption appeal simply by obtaining a DNA test and an order of filiation effectively eliminates the ability of prospective adoptive parents or birth mothers to appeal any adoption case denying termination of parental rights, which eliminates appellate review of any adoption decision favoring a putative father. The ability to actively prevent appellate review through a concurrent paternity proceeding will lead to poor and inconsistent application of the law and unpredictability for prospective adoptive parents in any case in which a putative father may emerge seeking the child.

            An application for leave to appeal is now pending in the Michigan Supreme Court in LMB, as well as an application to the Court of Appeals of the related paternity case—in the hopes of obtaining a decision that will preserve prospective adoptive parents’ right to appeal and adoptees’ rights to a placement based on their best interests.