(Cite
as: 140 Mich.App. 594, 364 N.W.2d 754)
Court
of Appeals of Michigan.
In
the Matter of Jarvis Samuel MORGAN, a/k/a Baby Boy Lewis,
a/k/a Sammy
Morgan.
DEPARTMENT
OF SOCIAL SERVICES, Petitioner-Appellee,
v.
Anthony
E. MORGAN and Dianne Morgan, Respondents-Appellants,
and
Sault
Ste. Marie Tribe of Chippewa Indians, Intervenor Respondent-Appellant.
Docket
Nos. 66888, 66889 and 66907.
Submitted Oct. 5, 1983.
Decided
Feb. 6, 1985.
Released
For Publication April 1, 1985.
**754
*595
Norman K. Marsh, Sault Ste. Marie, for respondent-appellant Anthony E.
morgan.
Peppler, Peppler & Peppler,
P.C. by Brian A. Peppler, Sault Ste. Marie, for respondent-appellant Dianne
Morgan.
Daniel T. Green, Sault Ste. Marie,
for intervenor-respondent-appellant Sault Ste. Marie Tribe of Chippewa
Indians.
Before MAHER, P.J., and J.H.
GILLIS and GRIBBS, JJ.
MAHER, Presiding Judge.
Respondents, Anthony and Dianne
Morgan, joined by intervening respondent, **755
Sault Ste. Marie Tribe of Chippewa Indians, appeal as of right from the
trial court's termination of respondents' parental rights over their son,
Jarvis. On appeal, respondents and intervenor join in arguing
that the trial court improperly terminated parental rights because the
court failed to comply with the minimum federal requirements established
by the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963.
Both parents also argue that, assuming the Indian Child Welfare
Act was inapplicable to this case, the trial court nevertheless
erred by terminating parental rights in the absence of clear and convincing
evidence that the parents had neglected their son. Finally,
respondent Dianne Morgan also argues that the trial court exceeded its
jurisdiction by ordering Jarvis into temporary wardship of the court at
the close of the adjudicative phase of the proceedings.
Jarvis Morgan was born in September,
1977. His mother is a Chippewa Indian and his father is *596
black. At the time Jarvis was born, Dianne was 16 years old
and was not permitted to marry Anthony Morgan. She subsequently
voluntarily relinquished her parental rights to Jarvis. For
the next 28 months, Jarvis lived with foster parents, Colonel Lester Brimmer,
Jr., and Mary Brimmer.
Jarvis was returned to his parents
on December 17, 1979, after the probate court restored Dianne's parental
rights and dismissed its jurisdiction over Jarvis. This occurred
after Dianne reached the age of 18, married Anthony, and the parents reestablished
their parental relationship with Jarvis. In reestablishing
this relationship, both parents regularly visited Jarvis at the Brimmer
home and became friendly with the Brimmers.
Jarvis lived with both parents
in Louisiana until June, 1980. At that time, Dianne, now pregnant,
returned to Michigan to be with her ailing mother. In July,
1980, Dianne went into labor and requested that the Brimmers take Jarvis
while she was in the hospital. Jarvis stayed with the Brimmers
but was returned
to his mother when the labor proved to be false. One week
later, however, Dianne went into actual labor and again requested that
the Brimmers care for Jarvis while she was in the hospital. Jarvis
eventually stayed with the Brimmers for two and a half months before returning
to his mother. Jarvis remained with his mother for five weeks.
At that time, Dianne asked the Brimmers to take Jarvis again
as she was having problems dealing with him. From December 8, 1980, until
approximately April 12, 1981, Jarvis stayed with the Brimmers with the
exception of a one-week stay with his mother in January. On approximately
April 12, 1981, Dianne called the Brimmers, stated that her husband was
returning, and requested that the Brimmers return Jarvis to her. On April
18, 1981, the Department *597
of Social Services filed a petition seeking immediate temporary wardship
over Jarvis and alleging that Dianne and Anthony Morgan had "when
able to do so, neglect[ed] or refuse[d] to provide proper or necessary
support, education as required by law, medical, surgical or other care"
for Jarvis or had abandoned or deprived Jarvis of emotional well-being.
The petition specifically alleged that "since the 31st
day of August, 1980, and with the exception of the period 10/28/80 to
12/03/80 Jarvis Morgan has been abandoned by his parents and they have
failed to contact or support him through this period". Other
allegations were also raised, including a claim that Jarvis was showing
"emotional trauma by trembling, twisting his hair, not talking for
extended periods, staring and having nightmares". The
petition
was authorized by the probate court and Jarvis was temporarily placed
under the wardship of the court.
On June 8, 1981, the adjudicational
phase of the proceedings was held. Patrick Murphy of the Mackinaw
County Department of Social Services testified that prior to the authorization
of the petition on April 18, 1981, Jarvis had been voluntarily placed
by his parents with the Brimmers. Murphy agreed that this
was an appropriate placement and stated that Dianne Morgan had maintained
contact with Jarvis while he was at the Brimmer house, although Anthony
Morgan (then in Louisiana) had not. **756
Murphy stated that the petition was filed in April because Dianne Morgan
had given the Brimmers winter clothing for Jarvis that was larger than
his current size and had said that Jarvis would need it for school. Murphy
felt that a move had to be made "for the betterment of the child"
when he heard this because it suggested Jarvis would be left with the
Brimmers through school. He also felt that wardship was necessary
to *598
prevent the Brimmers from having to pay for medical coverage and clothing
for Jarvis. Finally, he was disturbed because he had heard
that Jarvis was experiencing emotional problems.
Lester and Mary Brimmer also
testified at the hearing. They stated that Anthony Morgan
had never provided financial support to them for caring for Jarvis, although
they admitted that they had never asked either Anthony or Dianne Morgan
for support money. Lester Brimmer also testified that Anthony
had
not visited Jarvis in the Brimmer home since June, 1980.
Testimony on behalf of the parents
was provided by respondent Anthony Morgan and Viva Lewis, Dianne Morgan's
mother. Anthony Morgan stated that he had gone to Louisiana
to find work but had been unable to find anything permanent. He
had attended school on the GI Bill and had held temporary work. When
his wife had returned to Michigan to be with her mother, he sent $450
with her and had continued to send money whenever she had requested it.
Finally, he had not visited Michigan since his wife left because he had
expected her to return to Louisiana and because the trip took 38 hours
by bus and cost $141 one-way. Viva Lewis's testimony was limited
to a statement that she and Dianne had requested the Brimmers' help because
"it was too hard to feed three people" on her wages.
At the close of this testimony,
the probate court found that both parents had been neglectful and took
jurisdiction over Jarvis. The court then ordered that the
Morgans be granted full rights of visitation under the supervision of
the DSS.
On November 2, 1981, a hearing
to determine whether or not parental rights should be terminated was held.
Prior to this hearing, the probate court had authorized the
filing of a new petition by *599
DSS and had authorized intervention in the action by the Sault Ste. Marie
Tribe of Chippewa Indians because Dianne and Jarvis Morgan were Chippewa
Indians.
Testimony at the termination hearing established that the Morgans had
not visited Jarvis more than four times at the Brimmers' since the adjudicative
hearing. The caseworker assigned by DSS to the Morgan case,
Elgie Dow, testified that the Morgans had called him to arrange other
visits but these could not be arranged because their schedules conflicted
with his. Dow would not permit visitation unless he could
be present and he was not available for weekend visits when the Morgans
were off work. Dow further testified that a succession of
phone calls might be necessary to arrange a visit. He stated,
however, that neither the Morgans nor their attorneys had ever complained
to him about visitation.
Patrick Murphy, also of the Department
of Social Services, testified that DSS policy did not require that Dow
be present when the Morgans visited Jarvis. Dianne Morgan testified that
she had complained to her attorney about visitation problems and that
she had called Dow six to eight times regarding visitation, suggesting
visitation on weeknights, but that Dow had declined to arrange visitation
for this time because it was too late in the day. Anthony
Morgan testified that he had called Dow regarding visitation 15 to 20
times between June 22, 1981, and September 8, 1981. He had
also called the Friend of the Court and offered to provide financial support
for Jarvis but, when the matter was referred to DSS, his offer was turned
down by Dow.
Elgie Dow also testified about
the conditions in the Morgan home. He stated that
the Morgans' relationship with their second child was normal *600
and healthy and that Dianne showed considerable affection for the child.
DSS had not prepared a home **757
study of either the Morgan or Brimmer home.
Other testimony on the Morgans'
home was presented by Francis Kokko, a social worker with the Sault Ste.
Marie Tribe of Chippewa Indians, Annie Jean Morgan, Anthony's mother,
and Kathy Gause, Dianne's sister. Kokko testified that she
had visited the Morgan home four times between May 6, 1981, and October
27, 1981, and had found the home to be extremely well kept. She
also found them to have a good rapport with their second child, who was
clean and well cared-for. Annie Morgan testified that, while
the family had lived with her in Louisiana, she had noticed that Dianne
had been affectionate toward Jarvis but had been timid and had lacked
experience due to her youth. Jarvis had never exhibited any
fear of his parents. Kathy Gause had seen Dianne and Jarvis
during a November, 1980, visit and testified that Dianne had cared for
Jarvis but had not shown affection. However, this might have
been attributed to the fact that Dianne had just given birth to her second
child and was apart from Anthony at the time.
The Brimmers testified that Jarvis
became upset when he believed he was being taken away from the Brimmers,
whether by DSS or by the Morgans. Mary Brimmer also testified
that Dianne had once told her that Jarvis made her very angry and that
she sometimes thought that she might hurt him. She stated
that after she
had refused to return Jarvis to Dianne in April, 1981, because of Jarvis's
fears of leaving the Brimmers, Dianne had told her to call DSS to arrange
to "make it legal".
On the basis of this testimony,
the probate court found in a September 8, 1982, opinion that there *601
was clear and convincing evidence of neglect and that it most likely would
continue into the future. The court also found that, "generally
speaking", the parents had had an opportunity to correct any neglect
that existed. The court reached these conclusions after first
finding that the placement of Jarvis with the Brimmers, after the original
voluntary relinquishment of parental rights by Dianne when she was 16,
constituted neglect. It found that this neglect was complemented
by Anthony Morgan's failure to speak to or visit Jarvis at the Brimmer
home and the failure of either Dianne or Anthony to give the Brimmers
money for caring for Jarvis. The court noted that Patrick Murphy
had testified that there was relatively no bond between the natural parents
and Jarvis due to the lack of contact during the "formative"
years and that, at the adjudicative stage, there had been evidence that
marital difficulties existed between the parents "which would indicate
that the Morgans were not able to create the type of home that would avoid
neglect". Finally, the court found that the parents had
neglected Jarvis because they had failed to visit him more frequently
after the adjudicative hearing. The court resolved the conflict
about the restriction of visitation rights
by holding that, even if there had been interference by DSS, the Morgans
had failed to bring this point to their attorney's attention and thence
to the probate court's attention. The probate court did not
find either that the interference had or had not occurred. Parental
rights were then terminated.
Under 25 U.S.C. § 1901
et seq.,
child custody proceedings involving the foster care placement of or termination
of parental rights to an Indian child are subject to specific federal
procedures and standards. These standards were established
by Congress for the following reasons, as stated in the *602
congressional declaration of policy found in 25 U.S.C. § 1902:
"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."
**758
Pursuant to these "minimum federal standards",
"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" 25 U.S.C. § 1912(d);
"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" 25 U.S.C. § 1912(e);
and
"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" 25 U.S.C. § 1912(f).
Finally, under 25 U.S.C. § 1914, "any Indian child",
"any parent or Indian custodian", and "the Indian child's
tribe" may petition any court of competent jurisdiction to invalidate
the foster care placement *603
or termination of parental rights under state law "upon a showing
that such action violated any provision of sections 1911, 1912, and 1913
of this title".
In this case, it is undisputed
that Jarvis Samuel Morgan is an "Indian child" within the meaning
of the Indian Child Welfare Act. See 25 U.S.C. § 1903(4).
[FN1] The probate court acknowledged this fact and granted Sault
Ste. Marie Tribe of Chippewa Indians the right to intervene in the action.
Both parents are included within the definition of "parent"
as "any biological parent
or parents of an Indian child * * * ". Thus, the probate
court in this action was required to apply the "minimum federal standards"
provided by the act.
FN1.
See also In the Matter
of Kabe, 325 N.W.2d
840 (S.D.1982).
It
is clear from the record that the federal standards were not followed
at the dispositional stage of the state proceedings in this case. The
probate court explicitly applied the "clear and convincing evidence"
standard [FN2]
for termination of the Morgans' parental rights, contrary to the higher
"beyond a reasonable doubt" standard required by federal law.
Contrary to the requirement of 25 U.S.C. § 1912(f), the
probate court reached its determination without the "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". [FN3]
Finally, there was no attempt by the petitioner to show that "active
efforts have been made to provide remedial services and rehabilitative
*604
programs designed to prevent the breakup of the Indian family" and
that "these efforts have proved unsuccessful". These
final requirements must also be shown "beyond a reasonable doubt"
under 25 U.S.C. § 1912, subds. (d)-(f). People
in the Interest of S.R.,
323 N.W.2d 885 (S.D.1982). In this case, however,
the record strongly indicates that efforts were made by Mr. Dow to limit
contact between the parents and Jarvis even though the probate court had
expressly ordered liberal visitation and there was no policy reason for
Mr. Dow to be present at visitation. We therefore reverse
the probate court's order terminating the Morgans' parental rights.
FN2.
See JCR 1969, 8.3(b).
FN3.
We note that the phrase "qualified expert witnesses" has twice
been interpreted to apply to "expertise beyond the normal social
worker qualifications". See In
re Welfare of Fisher,
31 Wash.App. 550, 643 P.2d 887 (1982); In
the Matter of M.E.M.,
635 P.2d 1313, 1317-1318 (Mont.1981).
**759
This case presents a somewhat unusual situation in which the alleged "neglect"
of the parents was their failure to actively exercise their parental role
by keeping Jarvis with them or by visiting him while he was living in
a foster home. No allegation of active abuse or of a failure
to adequately care for Jarvis while he lived with his parents was raised
by the petitioner. Under these circumstances, we remand this case
to the probate court with directions to retry the case within 60 days
from the date this opinion is released. The court
is to apply the appropriate federal standards found in 25 U.S.C. § 1901
et seq.
In the event that the petitioner chooses not to retry the
case or is unable to meet the federally mandated burden of proof, Jarvis
is to be returned to his parents. The family is then to be
provided with the federally mandated "remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family".
*605
As stated earlier, both parents have also challenged the probate court's
termination order on state procedural grounds. Because we
have found that the federal statute is the appropriate standard, we need
not address this issue. Respondent Dianne Morgan has also
challenged the probate court's assumption of jurisdiction over Jarvis
at the adjudicative hearing on state grounds. However, this
Court is without jurisdiction to review this claim as the claim is not
being raised in a direct review. In
the Matter of Adrianson,
105 Mich.App. 300, 306 N.W.2d 487 (1981).
Reversed and remanded.
140 Mich.App. 594, 364 N.W.2d
754
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