(Cite as: 218 Mich.App. 196,  554 N.W.2d 32)

Court of Appeals of Michigan.

In re Tyler James ELLIOTT, Minor.

DEPARTMENT OF SOCIAL SERVICES, Petitioner-Appellee,

v.

Stepfanie (LeBlanc) BOYD and Paul Elliott, Respondents-Appellants,

and

Sault Ste. Marie Tribe of Chippewa Indians, Intervenor.

Nos. 185137, 185425.


Submitted Feb. 21, 1996, at Grand Rapids.

Decided Aug. 6, 1996, at 9:35 a.m.

Released for Publication Sept. 27, 1996.


**33 *198 James J. Gregart, Prosecuting Attorney and Michael H. Dzialowski, Assistant Prosecuting Attorney, Kalamazoo, for petitioner.


James A. Bransky, Traverse City, for Stephanie Boyd.


Frederick R. Hubbell, Kalamazoo, for Paul Elliott.


Before MARKEY, P.J., and HOLBROOK and M.J. MATUZAK, [FN*] JJ.


FN* Circuit Judge, sitting on the Court of Appeals by assignment.


HOLBROOK, Judge.


Respondents, Stepfanie Boyd and Paul Elliott, appeal as of right from a Kalamazoo County Probate Court order terminating their parental rights to Tyler James Elliott, who was 3 1/2 years old at the time of trial.   In this appeal, we must determine whether the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq., was applicable to this proceeding in the first instance and, if so, whether the probate court failed to comply with the act, rendering the termination order invalid.   Because we hold that the answer to both these questions is yes, we reverse and remand for a new hearing.


I

In October 1993, a protective services worker filed a complaint with the Kalamazoo County Probate Court, alleging that (1) in August 1992, respondent-mother had smoked marijuana in Tyler's presence, (2) *199 in April 1993, she had left Tyler alone for several hours while she was at work, and (3) in September 1993, she had left Tyler alone in a cold motel room strapped in a car seat, wearing only a diaper.   The matter was referred to the Kalamazoo County Department of Social Services, and a petition was filed with the probate court, asserting that the court should take jurisdiction of the child.   Despite numerous hearings before the court between October 1993 and November 1994, it was not discovered that Tyler was an "Indian child," as defined in § 1903(4) of the ICWA, 25 U.S.C. § 1903(4), until the termination hearing began in February 1995.   At that time, two caseworkers from Catholic Family Services, **34 Eric Janssen and Tere Marshall, testified, recommending that respondents' parental rights be terminated.   Respondent-father then took the stand and for the first time the court was made aware of the fact that respondent-mother was a member of, or eligible for membership in, the Sault Ste. Marie Tribe of Chippewa Indians. [FN1]  The court ultimately adjourned the proceedings to allow for investigation of this issue and, if necessary, for notice to be provided to the Chippewa Tribe.


FN1. Respondent-mother was not present at the termination trial.


Soon thereafter, the tribe petitioned the court for permission to intervene.  The court entered an order permitting intervention after determining that this matter constituted a "child custody proceeding" as defined in § 1903(1) of the ICWA, 25 U.S.C. § 1903(1), and recognizing that Tyler is an "Indian child" as defined in § 1903(4), inasmuch as he is the biological child of respondent mother, an enrolled member in the Chippewa Indian Tribe, and, accordingly, was eligible for *200 membership in the tribe.   When the proceedings were subsequently reconvened in April 1995, respondent-mother's counsel requested that the proofs be reopened so that updated information could be presented regarding the mother's resolve to comply with the parent-agency agreement.   Respondent-father's counsel argued that because termination of parental rights under the ICWA required qualified expert testimony, the court would need to "start over."   Petitioner argued that sufficient evidence had been presented at the earlier hearing to support termination, even under the strict standards of the ICWA.   The court decided to proceed, explaining as follows:

It may be true that if this matter were to be tried under the [ICWA], there would be an opportunity for the provision of expert testimony regarding the placement of the child in an Indian versus a non-Indian home.   However, in reviewing the file, I note that there has never been any particular involvement on the part of Ms. LeBlanc or her child in a Native American reservation or family or lifestyle.   This is one of the issues that I think the expert testimony would go to in terms of maintaining social and cultural ties.   To the best of our ability to discern from the court records, that has not been a primary focus of this child's life in the custody of his mother.   So I'm not real sure that that justifies a basis for delaying a decision in this case.

 After proceeding to terminate respondents' parental rights, the court stated:

I do not believe that the issues relating to whether the child is--or is eligible for membership in a Native American tribe outweigh the fact that the Native American element has not been a consistent component of his life from the time he has been born.   And certainly not from the time that his mother came to live in Kalamazoo and pursue her own career.


*201 II

A

Pursuant to the ICWA, child custody proceedings involving foster care placement or termination of parental rights to an Indian child are subject to specific federal procedures and standards.  In re Johanson, 156 Mich.App. 608, 611-612, 402 N.W.2d 13 (1986).   As a declaration of policy, Congress established these "minimum Federal standards for the removal of Indian children from their families" to protect the best interests of Indian children and to promote the stability and security of Indian tribes and their families.  25 U.S.C. § 1902.   The act is intended not only to protect the interests of individual Indian children and families but also to protect the interest of the tribes themselves in long-term tribal survival.  Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989).   The underlying rationale of the act is to discourage Indian child welfare determinations from being based on " 'a white middle-class standard.' "  Id. at 37, 109 S.Ct. at 1602, quoting H.R.Rep. No. 95-1386, 95th Cong., 2d Sess., at 24, reprinted in U.S. Code Cong. & Admin. News 7530, 7546 (1978).


Pursuant to § 1914 of the ICWA, 25 U.S.C. § 1914, an "Indian child," any "parent **35 or Indian custodian," or "the Indian child's tribe" may petition any court of competent jurisdiction to invalidate the foster care placement or termination of parental rights under state law "upon a showing that such action violated any provision" of §§ 1911, 1912, and 1913 of the ICWA, 25 U.S.C. §§ 1911, 1912, 1913.   See also Johanson, supra at 612, 402 N.W.2d 13.   Respondents assert that the probate court failed to comply with certain provisions of the act, resulting in an invalid termination order.   Petitioner argues *202 in favor of upholding the termination order, asserting that the ICWA was inapplicable because termination of respondents' parental rights would not result in the break-up of an Indian family, given that neither respondent-mother nor the minor child had shown any particular involvement in the Native American culture.


Respondents' various claims on appeal arise from the probate court's failure to comply with § 1912 of the ICWA, 25 U.S.C. § 1912, which provides in pertinent part:

(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention....  No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe....


 *   *   *   *   *   *

(d) Any 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.

(e) No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, 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.

*203 (f) No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.

 See also MCR 5.980 (procedure for child custody proceeding involving Indian child who resides off reservation, as in this case).


Here, the probate court created an exception to strict application of the ICWA by finding that "testimony of qualified expert witnesses" was unnecessary given the lack of involvement by the mother or minor child in Indian culture.   We agree with respondents that the court committed clear legal error in its interpretation of the ICWA and that the court's termination order is invalid.   Although some jurisdictions have adopted the "existing Indian family" exception to the ICWA, we do not find the analysis of those cases to be persuasive.   See, e.g., Hampton v. J.A.L., 658 So.2d 331 (La.App.1995), aff'd 662 So.2d 478 (1995);  In re Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305 (1992);  In re S.C., 833 P.2d 1249 (Okla.1992); In re Adoption of T.R.M., 525 N.E.2d 298 (Ind.1988);  In re Adoption of Baby Boy L., 231 Kan. 199, 643 P2d 168 (1982).


Instead, we prefer the view adopted by those courts that have rejected the judicially created "existing Indian family" exception to application of the ICWA.   See, e.g., In re Baby Boy Doe, 123 Idaho 464, 849 P.2d 925 (1993), cert. den. sub nom Swenson v. Oglala Sioux Tribe, 510 U.S. 860, 114 S.Ct. 173, 126 L.Ed.2d 133 (1993);  In re Adoption of S.S., 252 Ill.App.3d 33, 190 Ill.Dec. 802, 622 N.E.2d 832 (1993);  In *204 re Adoption of Quinn, 117 Or.App. 579, 845 P.2d 206 (1993);  In re Crystal K., 226 Cal.App.3d 655, 276 Cal.Rptr. 619 (1990);  In re Junious M., 144 Cal.App.**36 3d 786, 796, 193 Cal.Rptr. 40 (1983);  A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982). See also Hampton, supra (Stewart, J, dissenting).   We agree with these courts that application of the exception undercuts the plain import of the ICWA and fails to consider adequately the interests of the Indian tribes themselves, especially in involuntary proceedings, such as in this case. [FN2]  The dissent in Hampton, supra at 340, illustrates this latter point:


FN2. We recognize that there are distinctions between involuntary child custody proceedings, such as the present case, and voluntary relinquishment or adoption proceedings.   Whether application of the ICWA may be limited in cases of voluntary relinquishment or adoption is not an issue before us in this case.   Cf. In re Bridget R., 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507 (1996).


In contrast to the notice required in involuntary proceeding [sic], notice to the tribe is not required under the Act in voluntary proceedings.   The obvious conclusion to be drawn from the contrast is that Congress on the one hand recognized the superior position of the parent's desires in a voluntary proceeding.   On the other hand, Congress must have recognized that an involuntary proceeding would not be brought unless the parent at least allegedly had abused, abandoned, or neglected the child to such an extent that the State could take the child from the parent.   In this situation, the tribe's rights become a central focus because if the parent no longer should be allowed to shape the child's future, the tribe should have the opportunity to do so.

However, under the "Indian family" exception, the tribe's right to notice under § 1912(a) only would come into play when the parent is both a "good Indian" who is raising the child in an "Indian family environment" and exposing the child to Indian culture, and a "bad Indian" who is so lacking as a parent that parental rights are in jeopardy of being involuntarily terminated.   The intersection of these two sets, *205 if it contains any elements at all, is so small as to effectively allow the exception to swallow the rule.


We also believe that the "existing Indian family" exception was implicitly rejected by the United States Supreme Court in Holyfield, supra, where the Court thoroughly examined the legislative history and underlying policies of the ICWA.   See In re Baby Boy Doe, supra at 470-471, 849 P.2d 925.   In Holyfield, an adoption petition was filed involving twin babies whose unmarried parents were enrolled members of the Choctaw Indian Tribe and resided on the tribal reservation in Mississippi.   The babies were born off the reservation, by the parents' design.   The parents voluntarily consented to the adoption of the babies by a non-Indian couple, and a final decree of adoption was thereafter entered in state court.   The tribe later moved to vacate the adoption decree on the ground that under the ICWA exclusive jurisdiction was vested in the tribal court.   The Mississippi Supreme Court affirmed the lower court's denial of the tribe's motion.   However, the United States Supreme Court reversed, holding that the children were domiciled on the reservation for purposes of the exclusive tribal jurisdiction provision of the ICWA, despite the fact that the children were never physically present on the reservation and despite the fact that the parents had voluntarily surrendered the children for adoption.   The Supreme Court reasoned:

Congress was concerned not solely about the interest of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians....  The numerous prerogatives accorded the tribes through the ICWA's substantive provisions, e.g., §§ 1911(a) (exclusive jurisdiction over reservation*206 domiciliaries), 1911(b) (presumptive jurisdiction over nondomiciliaries), 1911(c) (right of intervention, 1912(a) (notice), 1914 (right to petition for invalidation of state-court action), 1915(c) (right to alter presumptive placement priorities applicable to state-court actions), 1915(e) (right to obtain records), 1919 (authority to conclude agreements with States), must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves. [Holyfield, supra at 49, 109 S.Ct. at 1608-09.]


**37 In light of the above, we hold that an "existing Indian family" exception would be in direct conflict with the concept of tribal sovereignty and the important public policy of improving tribal ties reflected in the ICWA.


B

With regard to the evaluation of "qualified expert witnesses," this Court explained in In re Kreft, 148 Mich.App. 682, 689-690, 384 N.W.2d 843 (1986):

There is no definition of "qualified expert witness" in the Indian Child Welfare Act.   However, the House Report prepared in conjunction with the act states that the phrase "is meant to apply to expertise beyond the normal social worker qualifications."   HRRep No 95-1386, 95th Cong, 2d Sess, reprinted in USCodeCong & AdNews 7530, 7545 (1978).   In addition, guidelines prepared by the U.S. Department of Interior, Bureau of Indian Affairs, provide:

"Persons with the following characteristics are likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

"(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organizations and child rearing practices.

"(ii) A lay expert witness having substantial experience with the delivery of child and family services to Indians, *207 and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe.

"(iii) A professional person having substantial education and experience in the area of his or her specialty."  [Guidelines for State Courts:  Indian Child Custody Proceedings,] 44 FedReg 67593, § D.4(b) [1979].

 Furthermore, the act has been interpreted to mean that only one "qualified expert witness" need testify.  Kreft, supra at 690, 384 N.W.2d 843.


At the termination hearing in this case, the probate court heard the testimony of two caseworkers from Catholic Family Services, but no foundation was laid regarding their qualifications as expert witnesses.   On rehearing, we believe Bureau of Indian Affairs (BIA) Guideline D.4(b)(iii) may be particularly helpful to the court, given the apparent lack of involvement of respondent-mother or the minor child in Indian culture.   Where cultural bias is not implicated, a qualified expert witness need not have special knowledge of Indian life, but must have expertise beyond the normal social worker qualifications.   See In re Morgan, 140 Mich.App. 594, 603, n. 3, 364 N.W.2d 754 (1985).   Thus, to the extent that the probate court in this case held that no expert testimony was necessary, we find this to constitute clear legal error.   Although the ICWA expressly mandates that "qualified expert witnesses" testify before a child is placed in foster care or parental rights are terminated, the BIA guidelines provide courts with the necessary discretion to determine the nature and extent of the proposed expert's qualifications.  [FN3]


FN3. Clearly, if an interested tribe has intervened, it may present qualified expert witnesses of its own.


*208 Accordingly, we conclude that to the extent the probate court adopted an "existing Indian family" exception thereby abrogating the ICWA requirement of qualified expert witnesses, it committed clear legal error.   We reverse and remand for a new hearing, because no foundation was laid with respect to the expert qualifications of the witnesses who did testify at the hearing.


III

Having determined that the federal minimum standards of the ICWA are applicable in this matter and that a new hearing is mandated under § 1914 of the ICWA, we need only provide a cursory examination of respondents' remaining specific claims regarding the probate court's failure to comply with certain provisions of § 1912 of the ICWA, and MCR 5.965, 5.980.


Where a state or some other federal law provides a higher standard of protection **38 to the rights of the parent or Indian custodian of an Indian child than that afforded under the ICWA, a state or federal court shall apply the higher standard.  25 U.S.C. § 1921.   Michigan imposes a more stringent standard than that found in § 1912(a) of the ICWA to ensure that inquiry and notification are performed.   Thus, although the probate court in this case "did not know or had no reason to know," at the preliminary hearing held on October 1, 1993, that Tyler was an Indian child under § 1912(a), the court failed to comply with the explicit directive in MCR 5.965(B)(7) to inquire about respondent mother's or the minor child's tribal status.   Consequently, although emergency removal of the child from respondent-mother's care and custody was proper to prevent immediate physical harm, MCR *209 5.980(B); State ex rel. Juvenile Dep't of Clackamas Co. v. Charles, 106 Or.App. 637, 639, 810 P.2d 393 (1991), the probate court's failure to adhere to the inquiry and notice requirements at the subsequent preliminary hearing alone may have constituted reason to invalidate the proceedings.  25 U.S.C. § 1914.   See also In re Johanson, supra at 612, 402 N.W.2d 13.


Next, respondent-father argues that the probate court erred in applying the less onerous clear and convincing standard to the termination of his parental rights, rather than the beyond a reasonable doubt standard.   In a state termination proceeding involving an Indian child, both the "federal minimum standards" of the ICWA and the state grounds for termination must be proved.  Section 1912(f) of the ICWA, 25 U.S.C. § 1912(f), provides:

No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, 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.  [Emphasis added.]

 The burden of proof for termination of parental rights under this state's Revised Probate Code is clear and convincing evidence of one or more enumerated statutory grounds.  M.C.L. § 712A.19b(3);  M.S.A. § 27.3178(598.19b)(3). Thus, we find that, in an Indian child custody proceeding, a dual burden of proof must be met:  the probate court must find beyond a reasonable doubt 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," and the court must also find that clear and convincing evidence *210 supports termination under the applicable state statutory ground. [FN4]  Accord In re D.S.P., 166 Wis.2d 464, 480 N.W.2d 234 (1992);  In re Bluebird, 105 N.C.App. 42, 47- 48, 411 S.E.2d 820 (1992).


FN4. To the extent that In re Morgan, supra at 603, 364 N.W.2d 754, can be read to require that the federal standard of beyond a reasonable doubt be applied to a state statutory ground for termination, we disagree with that holding.   Cf. In re Kreft, supra at 687, 384 N.W.2d 843 (holding that the federal ICWA requirements must be established "in addition to whatever state law grounds are asserted as a basis for terminating parental rights" [emphasis added] ).


Here, the probate court terminated respondent-father's parental rights pursuant to M.C.L. § 712A.19b(3)(g);  M.S.A. § 27.3178(598.19b)(3)(g), finding clear and convincing evidence that he failed to provide proper care and custody of Tyler, and the court terminated respondent-mother's parental rights pursuant to M.C.L. §  712A.19b(3)(a)(ii);  M.S.A. § 27.3178(598.19b)(3)(a)(ii), finding beyond a reasonable doubt that she had abandoned Tyler.   The court did not make any findings regarding § 1912(f) of the ICWA.   On rehearing, the probate court must make separate findings on the record regarding termination under § 1912(f) and under the applicable state statutory ground, applying the dual burden of proof as discussed above.


Reversed and remanded for a new hearing.   The probate court shall continue the minor child in his current foster care placement during the pendency of the proceedings.   We retain no further jurisdiction.


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