(Cite as: 175 Mich.App. 637,  438 N.W.2d 272)


Court of Appeals of Michigan.

In the Matter of Nicole SHAWBOOSE, minor, and Samuel Shawboose, minor.



Pamela SHAWBOOSE, Respondent-Appellant,


Samuel Landers, Respondent.

Docket No. 107605.

Submitted Nov. 10, 1988.

Decided Jan. 6, 1989.

Released for Publication April 28, 1989.

Mother appealed from order of the Probate Court, Muskegon County, Neil G. Mullally, J., terminating her parental rights to her two minor children.   The Court of Appeals held that:  (1) probate court properly refused to apply standards of Indian Child Welfare Act, and (2) evidence supported probate court's finding of neglect.



**273 *638 Harold L. Closz, III, Pros. Atty., and Linda S. Kaare, Asst. Pros. Atty., Muskegon, for Dept. of Social Services.

David W. Marra, Muskegon, for Pamela Shawboose.

James G. Olsen, Muskegon, for minor children.

Before MacKENZIE, P.J., and WEAVER and QUINNELL, [FN*] JJ.

FN* Edward A. Quinnell, 25th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const. 1963, Art. 6, Sec. 23, as amended 1968.


Respondent Pamela Shawboose appeals as of right from a probate court order terminating *639 the parental rights to her two minor children for reasons of neglect. [FN1]  We affirm.

FN1. The children's father, respondent Samuel Landers, is not a party to this appeal.


[1] On appeal, respondent argues that the probate court erred in refusing to apply the standards of the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq.   We disagree with this contention.   The Indian Child Welfare Act did not apply to this case.   Therefore the probate court properly assumed jurisdiction over the minor children.

First, respondent never met the prerequisite of being an enrolled member of an Indian tribe.  25 U.S.C. § 1903(4).  In re Johanson, 156 Mich.App. 608, 612-613, 402 N.W.2d 13 (1986), lv. den. 428 Mich. 870 (1987).   Although respondent was eligible for membership in both the Ottawa and Chippewa Indian tribes, she never took steps to enroll as a member.   Moreover, respondent never sought the help of the Michigan Indian Child Welfare Agency.

Second, the issue of whether the minor children were "Indian children" was one for the tribes and not for the probate court to decide, which determination was conclusive.   See In re Junious M, 144 Cal.App.3d 786, 793, 193 Cal.Rptr. 40 (1983).   Here, in accord with 25 U.S.C. § 1911(b), and (c), 25 U.S.C. § 1912(a), and MCR 5.980(A), the two tribes in which respondent was eligible for membership were given an opportunity to intervene in the probate court proceedings but declined jurisdiction.   The Grand River Band of the Ottawa Indian Tribe **274 declined jurisdiction because respondent was more Chippewa Indian than Ottawa Indian.   The Saginaw Chippewa Indian Tribe declined jurisdiction *640 because respondent was not an enrolled member of the tribe.

Accordingly, respondent's children were not "Indian children" as contemplated by the Indian Child Welfare Act.   Hence the probate court did not err in declining its application.


[2] We also reject respondent's contention that the trial court erred in admitting as an exhibit the findings and recommendations of the Foster Care Review Board because the report contained hearsay statements not subject to cross-examination.   During the dispositional phase of a proceeding to terminate parental rights, the Rules of Evidence do not apply.   MCR 5.973(A)(4);  MCR 5.974(E)(2).  In re Nunn, 168 Mich.App. 203, 208, 423 N.W.2d 619 (1988).   Respondent's argument that cross-examination was precluded is without merit, since MCR 5.974(E)(2) allowed respondent to cross-examine those who prepared the report if they were reasonably available.


[3] We are also unpersuaded by respondent's argument that the probate court erred by considering the best interests of the children and comparing respondent to the foster parent prior to determining that there existed grounds for termination.

When seeking to terminate parental rights, the burden is on the petitioner to show by clear and convincing evidence that there exists a statutory basis for termination.   MCR 5.974(A) and (E)(3).   Only after a statutory basis for termination is established may the trial court exercise discretion to terminate parental rights and to consider the best interests of the children and alternative *641 homes.  In re Schejbal, 131 Mich.App. 833, 836, 346 N.W.2d 597 (1984).

From our review of this matter we conclude that the probate court did, by evaluating the considerable evidence concerning respondent's alcoholism and neglect of her children, establish a statutory basis for terminating respondent's parental rights before considering the best interests of the children and alternative homes.


[4] We find no merit to respondent's contention that grounds were not established by clear and convincing evidence for termination of her parental rights on the basis of neglect, M.C.L. § 712A.19a(e);  M.S.A. § 27.3178(598.19a)(e).

Findings of fact which support termination of parental rights will not be reversed unless they are clearly erroneous.   MCR 5.974(I);  In re Cornet, 422 Mich. 274, 277, 373 N.W.2d 536 (1985).   Findings are clearly erroneous when, although there is evidence to support them, this Court is left with a definite and firm conviction that a mistake has been made.  Tuttle v. Dep't. of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976).

We find no mistake here.   The evidence showed that respondent's alcoholism together with her denial of the problem, disinclination to correct it, and failure to cooperate in a treatment setting resulted in respondent's failure to provide her children with proper food and shelter as well as other physical and emotional necessities.   See In re Ovalle, 140 Mich.App. 79, 83, 363 N.W.2d 731 (1985), lv. den. 422 Mich. 856 (1985).   Hence respondent's neglect posed serious threats to her children's future welfare.  In re Harmon, 140 Mich.App. 479, 482-483, 364 N.W.2d 354 (1985).

*642 Clear and convincing evidence supports the probate court's finding of neglect.


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