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STATE OF MICHIGAN COURT OF APPEALS

UNPUBLISHED June 28, 2012 In the Matter of ALVAREZ, Minors. No. 304669 Wayne Circuit Court Family Division LC No. 09-489269

In the Matter of ALVAREZ, Minors.

No. 304670 Wayne Circuit Court Family Division LC No. 09-489269

Before: MURRAY, P.J., and WHITBECK and RIORDAN, JJ. PER CURIAM. In these consolidated appeals, respondents appeal as of right from a trial court order terminating their parental rights to the children pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). We affirm. The children came within the lower court's temporary custody in August 2009 because of neglect, respondents' mental instability, and their admitted substance abuse. In November 2009, the court found that it had jurisdiction over the children and ordered respondents to comply with their treatment plans. Respondents' parental rights were terminated in June 2011 after petitioner made court ordered reunification efforts for some 19 months. I. DOCKET NO. 304669 Respondent mother claims that the trial court committed multiple violations of the Indian Child Welfare Act of 1978 (ICWA), 25 USC 1901 et seq., warranting invalidation of the lower court's termination proceedings. She did not raise her claims in the lower court; therefore, they are unpreserved. In re SD, 236 Mich App 240, 243 n 2; 599 NW2d 772 (1999). However, because respondent mother primarily argues a question of law for which the necessary facts are contained in the record, we will address the merits of her argument. Id. Issues regarding the interpretation and application of the ICWA present questions of law that this Court reviews de novo. In re JL, 483 Mich 300, 318; 770 NW2d 853 (2009). -1-

Unpreserved issues are reviewed for plain error affecting substantial rights. In re Utrera, 281 Mich App 1, 8-9; 761 NW2d 253 (2008). Reversal of an unpreserved error is warranted only where it "seriously affect[ed] the fairness, integrity or public reputation of [the] judicial proceeding[s.]" Id. at 9, quoting In re Osborne (On Remand, After Remand), 237 Mich App 597, 606; 603 NW2d 824 (1999) (quotations and citation omitted). Although the ICWA does not displace state child custody laws in proceedings involving Indian children, it does impose certain mandatory procedural and substantive safeguards. Miss Band of Choctaw Indians v Holyfield, 490 US 30, 35-37; 109 S Ct 1597; 104 L Ed 2d 29 (1989); In re Elliott, 218 Mich App 196, 201; 554 NW2d 32 (1996). Under MCR 3.965(B)(2), a court must "inquire if the child or either parent is a member of an Indian tribe[,]" and if so, "must determine the identity of the child's tribe[.]" If it is determined that a child may be an Indian child, the trial court must give notice of the proceedings to the Indian tribe and of their rights of intervention. 25 USC 1912(a). Under 25 USC 1911(c), Indian tribes have the right to intervene at any time during the proceedings. See MCR 3.905(D); MCR 3.965(B)(2). In this case, contrary to respondent mother's claim that the ICWA was utterly ignored, the trial court made proper inquiry and provided proper notice as required under MCR 3.965(B)(2) and 25 USC 1912. The record reveals that at the preliminary hearing in August 2009, the trial court asked respondent mother if she had Indian heritage to which she answered in the affirmative. After petitioner had begun its inquiry into the appropriate tribe's identity, the trial court reminded petitioner of its notice obligations under the ICWA while the inquiry was pending. Petitioner notified the Department of the Interior and sent notices to the Delaware Nation and the Delaware Tribe of Oklahoma, the appropriate tribes as designated by the Department of the Interior. The trial court adjourned the adjudicative hearing to give the tribes time to receive the notices and respond within 10 days or request 20 additional days to prepare. 25 USC 1912(a). The Delaware Tribe of Oklahoma received their notification on October 20, 2009, and the Delaware Nation received their notice on October 19, 2009. The adjudicative trial was held on November 5, 2009 -- more than 20 days after the notices were received by the two tribes Both tribes had more than the prescribed 10 days to respond, but neither responded nor requested an additional 20 days to prepare for the hearing. The trial court did not err when it went forward with the child protective proceedings. Once notice is provided to the appropriate tribe under the ICWA, it is for the tribe to determine if the minor child qualifies as an "Indian child." In re Morris, 491 Mich 81, __ ; __ NW2d __ (Docket Nos. 142759 & 143673, decided May 4, 2012), slip op, pp 13-14; 25 USC 1903(4); MCR 3.002(5). If proper notice is given and a tribe fails to either respond or intervene in the matter, the burden shifts to the parents to show that ICWA still applies. In re TM (After Remand), 245 Mich App 181, 187; 628 NW2d 570 (2001) overruled on other grounds In re Morris, 491 Mich at __ (slip op at 35). In this case, proper notice was made and neither tribe responded. Therefore, at this point in the proceedings, and absent any other evidence, the children were not "Indian children" and thus were not entitled to additional safeguards under the ICWA. Moreover, respondent mother did not object to continuation of any of the proceedings. She agreed to the dispositional order and minimally participated in her court-ordered treatment plan. She never took any action to show that ICWA applied even when she had the assistance of an American Indian Services case manager during this stage of the proceedings. After the tribes

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failed to respond and respondent mother failed to take action to show that the ICWA applied, the trial court properly went forward with the proceedings. However, respondent mother and the children were entitled to the benefits of the ICWA at the termination hearing. Even though the tribes failed to respond to the 2009 notice, petitioner again notified the tribes in March 2011 of the termination hearing. This time, the tribes responded that the children were eligible for membership in the Delaware Nation. Once a child is determined to be an "Indian child," an order terminating parental rights must meet the higher evidentiary standard of proof beyond a reasonable doubt, which must be supported by qualified expert testimony "that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." 25 USC 1912(f). The expert witness must have "knowledge about the child-rearing practices of the Indian child's tribe." MCR 3.967(D). Further, petitioner must establish "that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that these efforts have proved unsuccessful, and that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. In this case, the trial court applied the heightened evidentiary standards as required by the ICWA and the Michigan court rules. Respondent mother's claim that the trial court applied an incorrect standard of proof is not supported by the record. At the September 2009 hearing, at an early stage of the proceedings, the trial court remarked, "I can't take admissions today until the ICWA issue is resolved because I have to take admissions by a specific standard of proof and I don't yet know what that standard of proof is." By this statement the court was simply noting that the issue of whether the children qualified as Indian children under the ICWA was still unknown and thus it was too early to determine the applicable evidentiary standard. Indeed, the court ultimately and accurately stated the standard in its decision: This Court has to find that continued custody of the child with the parents or Indian custodian is likely to result in serious emotional or physical damage to the child and I need to make that finding beyond a reasonable doubt by a qualified expert and the qualified expert was stipulated to by the parties as a professional with a substantial educational experience in his or her field. In addition to that finding, I need to find clear and convincing evidence with a statutory basis under state law, I need to find that there were active efforts at remedial services and rehabilitation programs to prevent the break-up of the family pursuant to In re Kreft[,] 148 Mich App 682[, 689-690; 384 NW2d 843] (1986) and I have to find that it's in the best interest of the children. [Emphasis added.] Respondent mother's argument to the contrary is without merit. Also flawed is respondent mother's argument that the trial court did not comply with MCR 3.967(D) or 25 USC 1912(e) because the court failed to follow proper procedures by not utilizing the testimony of a qualified expert at the removal hearing during the early stages of the case. As already noted, until the tribes provided notice that the children were eligible for membership in the tribe, the children were not "Indian children" within the meaning of MCR 3.967(D) or 25 USC 1912(e). See Morris, 491 Mich at __ (slip op at 13-14). Without that -3-

determination, there was no requirement that a qualified expert testify. MCR 3.967(D); 25 USC 1912(e). Thus, the trial court was not required to consider testimony from a qualified expert witness until the tribal determination was made, which occurred in 2011, well after the children's initial removal. At the termination hearing, the trial court satisfied the requirements of MCR 3.967(D) and 25 USC 1912(e) by considering the testimony of an expert witness, Vicky Sousa, who testified that respondents' continued custody would likely result in serious emotional or physical damage to the children and that it was in the children's best interests to terminate respondents' parental rights. Sousa, an attorney, had represented the Delaware Tribe of Indians and served as a guardian ad litem for children of American Indian descent for more than six years. She was qualified as "`[a] lay expert witness having substantial experience with the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe'" and as "`[a] professional person having substantial education and experience in the area of his or her specialty.'" In re Kreft, 148 Mich App at 689-690, quoting 44 Fed Reg 67593,

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