(Cite
as: 148 Mich.App. 682, 384 N.W.2d 843)
Court
of Appeals of Michigan.
In
the Matter of Lena Clelia KREFT, a Minor.
DEPARTMENT
OF SOCIAL SERVICES, Petitioner-Appellee,
v.
Mary
Eames LAWLESS, a/k/a Mary Eames, Respondent-Appellant,
and
Raymond
Frederick Kreft, Respondent.
Docket
No. 83932.
Submitted Dec. 9, 1985.
Decided
Feb. 3, 1986.
Released
for Publication April 22, 1986.
**844
*683
Robert Capriccioso, Pros. Atty., Mark L. Dobias, Asst. Pros. Atty., Sault
Ste. Marie, for petitioner-appellee Dept. of Social Services.
Peacock, Ingleson & Vinocur, P.C. by John W. Leudesdorff, Guardian
Ad Litem, Sault Ste. Marie, for Lena Clelia Kreft.
Andary and Andary by Carol S.
Andary, Sault Ste. Marie, for respondent-appellant Lawless.
Before ALLEN, P.J., and R.B.
BURNS and KAUFMAN,
[FN*] JJ.
FN*
Retired Court of Appeals Judge sitting by assignment.
ALLEN, Presiding Judge.
Respondent Mary Eames Lawless
(hereafter respondent), a member of the Sault Ste. Marie Tribe of Chippewa
Indians, appeals as of *684
right from a February 26, 1985, probate court order terminating parental
rights with regard to her daughter, Lena Clelia Kreft. Although
the order also terminated the parental rights of Raymond Frederick Kreft,
the natural father, he has not joined in appealing the order. Moreover,
the Sault Ste. Marie Tribe of Chippewa Indians, which intervened in the
probate court action, has not taken an appeal.
Lena Kreft was born on September
2, 1984. Prior to her birth, respondent had indicated that
she did not wish to parent the child and that she was leaning toward
a decision to release the infant for adoption. However, she
ultimately decided to keep her daughter but, when she and her daughter
were released from the hospital following the birth, respondent lacked
such basic provisions as a crib or bassinet, clothing and diapers. In
addition, mother and child resided in a small poorly ventilated motel
room which had cooking and food storage facilities.
Respondent suffers from a longstanding
mental illness which previously resulted in termination of parental rights
with respect to three other children. In a neglect petition
filed on September 20, 1984, it was alleged that this mental illness continued,
that respondent could not provide necessary care for the child, and that
the home or environment was an unfit place for the child to live. A
preliminary hearing was held on September 26, 1984, but respondent did
not appear. Attorneys were appointed and it was determined
that the child would remain at home.
On October 2, 1984, an order
was entered which authorized that Lena Kreft be placed in temporary custody
at a Department of Social Services foster home. It was alleged that
the child was endangered, which allegation was based on a statement *685
by respondent to the effect that she would throw the baby in the "power
canal" and that "would be the end of it". Although
served with notice of a hearing on October 3, 1984, respondent again did
not appear. It was ordered that the child remain in foster
care pending a formal adjudication hearing.
**845
A supplemental petition was filed on October 4, 1984, which alleged: (1)
that respondent had threatened to throw the baby in the canal, (2) that
respondent had indicated that she did not want the child because it had
reminded her of and was a part of its father, with whom respondent was
angry, and (3) that she wished to give the child to the church and wanted
the baby to go to heaven. The petition requested that Lena
Kreft be made a permanent ward, whereas the initial petition had merely
requested that the probate court take jurisdiction of the child.
A hearing on the petition and
supplemental petition was originally scheduled for November 20, 1984,
but was adjourned to December 18, 1984, upon stipulation of the parties.
On December 18, 1984, neither parent appeared and a question
arose regarding whether respondent had ever been served with notice. It
appeared that she had been evading service. In any event,
the hearing was adjourned to January 3, 1985.
The hearing proceeded on January
3, 1985. At its conclusion, the probate court assumed jurisdiction
over the child but declined to terminate parental rights. The
court ordered that respondent undergo a psychological evaluation and indicated
that a dispositional hearing would be set once that was accomplished.
A report on the evaluation was written on February 20, 1985,
and the dispositional hearing was held on February 28, 1985. It
*686
was at
the conclusion of this hearing that the court terminated respondent's
parental rights.
None of the parties dispute that
Lena Clelia Kreft is an "Indian child" within the meaning of
25 U.S.C. § 1903(4).
[FN1] Therefore, an involuntary proceeding for termination of parental
rights over the child must conform with the minimal federal standards
found in 25 U.S.C. § 1912, which provides in pertinent part:
FN1.
25 U.S.C. § 1903(4) provides: " 'Indian child' means
any unmarried person who is under age eighteen and either (a) a member
of an Indian tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe."
"(d) Remedial services and
rehabilitative programs; preventive measures.
"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)
Foster care placement orders; evidence; determination of damage
to child
"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.
"(f)
Parental rights termination orders; evidence; determination
of damage to child
"No
termination of parental
right 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.)
*687
See generally, In the
Matter of Morgan, 140
Mich.App. 594, 601- 603, 364 N.W.2d 754 (1985).
Subsection (d) suggests that
these federal requirements must be established in addition to whatever
state law grounds are asserted as a basis for terminating parental rights.
In the case before us, the state statutory ground relied upon
by the probate court judge in terminating rights was M.C.L. § 712A.19a(c);
M.S.A. § 27.3178(598.19a)(c):
"A
parent or guardian of the child is unable to provide proper care and custody
**846
for a period in excess of 2 years because of a mental deficiency
or mental illness, without a reasonable expectation that the parent will
be able to assume care and custody of the child within a reasonable length
of time considering the age of the child."
Respondent makes no argument
that the prerequisites of § 712A.19a(c) or 25 U.S.C. § 1912(f)
were not satisfied. Rather, she has limited the issues raised
on appeal to (1) whether there was a sufficient showing at the dispositional
hearing of affirmative efforts to provide remedial services and rehabilitative
programs and that these efforts failed, and (2) whether jurisdiction over
the child was assumed in violation of 25 U.S.C. § 1912(e), due
to a lack of qualified expert witnesses. We will address these
issues in reverse order.
Preliminarily,
we note that petitioner asserts that respondent lacks standing to challenge
alleged violations of the Indian Child Welfare Act since her tribe has
not joined in the appeal. This argument is based on the use
of the conjunction "and" in 25 U.S.C. § 1914, which
provides:
"Any
Indian child who is the subject of any action for foster care placement
or termination of parental rights under State law, any parent or Indian
custodian from *688
whose custody such child was removed, and the Indian child's tribe may
petition any court of competent jurisdiction to invalidate such action
upon a showing that such action violated any provision of sections 1911,
1912, and 1913 of this title."
We believe that this statute defines the class of entities which may
petition a court for invalidation of an order, but not that it requires
the child, parent or guardian and
tribe to join in the petition. Although use of the conjunction
"and" instead of the disjunctive "or" creates an ambiguity
in the statute, ambiguous language in statutes must be construed to give
effect to the Legislature's intent. Karl
v. Bryant Air Conditioning Co.,
416 Mich. 558, 567, 331 N.W.2d 456 (1982). The words of the
statute must be construed in light of the general purpose sought to be
accomplished by the Legislature. In
re Heffernan Estate,
143 Mich.App. 85, 88, 371 N.W.2d 481 (1985).
In 25 U.S.C. § 1902,
Congress enunciated the central purpose of the Indian Child Welfare Act:
"The
Congress hereby declares that it is the policy of this Nation to protect
the best interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families
and the placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing for assistance
to Indian tribes in the operation of child and family service programs.
If § 1914 were construed to require that all three entities
mentioned in the statute coalesce in challenging the validity of an order,
the congressional purpose of ensuring compliance with minimal federal
standards would be rendered more
difficult to *689
achieve. Rather than furthering the legislative purpose, the
central purpose would be frustrated. Therefore, we believe
that Congress meant that either the child, parent or guardian, or
the tribe could petition to invalidate the action. Accordingly,
we will address the merits of respondent's appeal.
Respondent
first maintains that petitioner failed to sustain the clear and convincing
evidentiary burden imposed by 25 U.S.C. § 1912(e) for the adjudicative
hearing. This provision requires that the evidence include
"testimony of qualified expert witnesses", and that the evidence
show that continued parental custody would "result in serious emotional
or physical damage to the child". We review the probate
court's determination under a clearly erroneous standard. In
re Cornet, 422 Mich.
274, 373 N.W.2d 536 (1985).
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 **847
the normal social worker qualifications". H.R.Rep. No.
95-1386, 95th Cong., 2d Sess. twenty two, reprinted in U.S.Code Cong.
& Ad.News 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, and extensive knowledge of prevailing
social *690
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 this or her specialty." 44 Fed Reg 67593, § D.4(b).
The act has been interpreted to mean that only one "qualified
expert witness" need testify. D.A.W.
v. State of Alaska,
699 P.2d 340, 342 (Alaska, 1985).
Six witnesses testified at the
January 3, 1985, hearing where the court assumed jurisdiction over Lena
Kreft. At least two of these witnesses were "qualified
expert witnesses" within the meaning of the statute.
Frances Kokko, a mental health
social worker supervisor for the Sault Ste. Marie Tribe, and a member
of the tribe, testified that she was knowledgeable as to Indian customs
relative to child rearing. She was qualified as an expert.
Kokko testified that she had known respondent since high school and, having
observed her over the course of years, Kokko stated that respondent did
not remain
stable for significant periods. She did not believe that respondent
was amenable to behavioral changes, as respondent was not easily persuaded.
Kokko feared for the child's emotional and physical well-being because
of respondent's instability and the concern than any progress respondent
might make would probably not enable her to attend to her child.
Dr. William Patrick Brady, a
psychologist, was qualified as an expert. Although he could not
give any current opinion as to respondent's psychological state, he had
been respondent's therapist from 1974 through 1977. His records
indicated that she had been diagnosed a schizophrenic, paranoid type,
when committed to the Newberry Regional Mental Health Center in June,
1975. He had personally *691
diagnosed respondent as schizophrenic, chronic, undifferentiated, in November,
1976. At that time, respondent was treated with psychotropic
medication and psychotherapy and seemed to be making some reasonable progress.
The following witnesses were
not recognized as qualified expert witnesses. Kathy Clancy, a social
worker, testified that she became concerned that the child might be harmed
on October 3, 1984, when respondent expressed anger towards the child's
father and then indicated that she did not want to have anything to do
with the baby. Elsie Van Dusen, a public health nurse who
had worked with respondent since the baby's birth, testified that she
found certain behavior and statements by respondent inappropriate. For
example, respondent believed
the infant's feelings were hurt when left with her grandmother and refused
to pursue an offer of a bassinet, because "she wanted to have the
baby very close to her at all times". Van Dusen came
to question respondent's mental stability, especially on October 2, 1984,
when respondent indicated she wanted her baby to go to heaven and had
contemplated placing the baby in the power canal. In addition,
Van Dusen had to intervene to prevent respondent from bathing the infant
in steaming water. Van Dusen had suggested counseling to respondent
on a number of occasions, but respondent indicated that she did not want
to become dependent on pills.
Perhaps the most significant
testimony came from Thomas V. O'Melia, a clinical psychologist with Catholic
Social Services. **848
He had three to five contacts with respondent from September 5, 1984,
through October 3, 1984, when the baby was removed from the home. O'Melia
testified that during his visits with respondent, she used "neologism",
i.e.,
she invented words with no dictionary *692
meaning. Moreover, she exhibited irrational behavior consistent
with a diagnosis of schizophrenia, and was often confused in thought and
orientation. O'Melia was concerned about respondent's ability
to parent. During his second home visit on September 18, 1984, he noted
that the child appeared apathetic and that respondent handled the baby
roughly. Moreover, he believed that respondent had a paranoid
ideation with respect to her interpretation of the Bible, as she believed
that both she and the child were specifically
referred to in the Bible. O'Melia became concerned about the
child's well-being on September 25, 1985, when respondent talked about
giving the child to the church, about the child's father being an "evil
symbol", and about "possessions", and about placing the
child in the power canal. O'Melia believed that respondent's
prognosis for treatment was "extremely poor", and stated that
her type of schizophrenia did not "remediate easily".
We believe that both Kokko and
Dr. Brady, if not Mr. O'Melia, were "qualified expert witnesses"
within the meaning of 25 U.S.C. § 1912(e), as that term has
been explained by the Department of Interior guidelines. Kokko
had substantial experience relative to child and family services to Indians,
as she testified that, in providing services as a social worker to the
tribe, she utilized a variety of available resources. Moreover,
she testified that she was born on a reservation, was a full-blooded Indian,
and knew of Indian customs regarding child-rearing practices. Brady,
and possibly O'Melia, were professionals with substantial education and
experience in their specialty of psychology. We do not believe
that the probate court clearly erred in finding that serious emotional
or physical damage might come to the child if it remained in respondent's
custody, based on the testimony of *693
these qualified experts and the testimony of other witnesses.
Respondent
next argues that at the dispositional hearing there was an insufficient
showing of active efforts to provide respondent with remedial services
and rehabilitation programs, and an insufficient showing that these efforts
were unsuccessful, as required by 25 U.S.C. § 1912(d). These
efforts and their futility must be shown beyond a reasonable doubt. In
re Morgan, supra, 140
Mich.App. p. 604, 364 N.W.2d 754, citing People
in the Interest of S.R.,
323 N.W.2d 885 (S.D.,1982). However, the record belies respondent's
allegations that these requirements were not satisfied.
Leroy Pieri, a caseworker with
the Chippewa County Department of Social Services, testified that in June
of 1984, respondent was staying at the Sheperding Home, the arrangements
for which had been made through the Crisis Pregnancy Center. Pieri
assisted respondent in filling out the application for public assistance,
as she found it confusing. Respondent eventually moved in
with her parents but, when she left abruptly and went to the Domestic
Violence Shelter, Pieri assisted her in finding alternative emergency
housing at a motel and helped her obtain some basic household items and
items for the baby. He offered to help her find more suitable
housing, but she refused to have any dealings with Pieri after August,
1984. In addition, the Department of Social Services arranged
for personal visits to respondent by someone associated with the homemaker
program. Also, she had received parent aid services from 1979
through 1982.
Respondent also received visits
from Elsie Van Dusen, who provided her with nutritional guidance regarding
the infant and attempted to impart an understanding
relative to the growth and development of the child. Frances
Kokko testified that she *694
attempted to contact respondent on six occasions. Although
respondent was home, she would not answer the door. In addition,
Thomas O'Melia testified that he contacted respondent while she was in
the hospital following the birth, on September 5, 1984, and offered her
any services that Catholic Social Services provided. Respondent
**849
indicated that she wished to talk to him about the baby and religious
problems, and O'Melia proceeded to meet with her on three occasions during
the ensuing month. He had made several other attempts to contact
her.
Van Dusen testified that she
had suggested to respondent that she get mental health counseling. Although
respondent was apparently receptive to this idea at times, she also indicated
that she did not want to have anything to do with such matters, which
was apparently related to her concern that she would become dependent
on medication.
Although respondent reacted favorably
to some of these services, e.g.,
the infant adequately gained weight due to the nutritional counseling
of Van Dusen, it was apparent that the remedial services were, for the
most part, unsuccessful. Despite almost three years of parent
classes, respondent almost bathed the baby in steaming water. Moreover,
it appeared that despite these efforts, respondent's mental problems posed
a threat to her child and interfered with her ability to care for the
child.
Dr. Richard Shaul, a clinical psychologist, testified at the dispositional
hearing. He had evaluated respondent after the adjudicative
hearing and concluded that she suffered from a schizophrenic disorder,
paranoid type, of acute psychotic proportions. Moreover, he
opined that respondent was not able to care for the needs of a young child
and that although her disorder was treatable, her prognosis *695
was "poor to guarded". In any event, he did not
believe that she could be treated within a reasonable length of time to
enable her to take care of the child.
We believe that this evidence
was sufficient to satisfy the criteria of 25 U.S.C. § 1912(d).
It demonstrated that numerous efforts were made to provide
respondent with the skills necessary to care for the child and that these
efforts did not meet with sufficient success. Although respondent
never received treatment for her mental illness during the pendency of
these proceedings, she was made aware that these services were available
but vacillated on whether she would cooperate in such treatment. In
any event, she stated that she would spurn attempts to treat her with
medication, which appeared essential to any successful treatment program.
Even if she cooperated in treatment, Dr. Shaul testified that
the treatment could not be accomplished within a reasonable time. Given
this evidence, we do not believe that the decision of the probate court,
finding that these elements were proven beyond a reasonable doubt, were
clearly erroneous.
Affirmed.
148 Mich.App. 682, 384 N.W.2d
843
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