2021 WL 4236677
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UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
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Court of Appeals of Michigan.
In re HOTCHKISS, Minors.
September 16, 2021
The circuit court terminated respondent-father’s parental rights to his children, CH and HH, after respondent failed to adequately benefit from several years of services. Respondent contends that the circuit court failed to comply with MCR 3.977(G), which implements certain provisions of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. He further contends that termination of his parental rights is not in the best interests of his children. We affirm.
The Department of Health and Human Services (DHHS) has provided services to respondent-father and the mother of his children since shortly after CH’s 2014 birth. Respondent abused marijuana, methamphetamines, opiates, and alcohol, leaving him unable to adequately care for his child. And mother was cognitively impaired and suffered from mental health issues. The pair engaged in acts of domestic violence against each other. CH was placed in the home of his maternal great-grandparents (the Baldwins). Mother voluntarily ceded her parental rights while respondent participated in services and regained custody of CH. The circuit court then released jurisdiction.
However, respondent did not actually end his relationship with mother and she became pregnant with their second child. The DHHS sought removal of CH from respondent’s home in November 2017, because mother was living there despite that her parental rights had been terminated, respondent was arrested for domestic violence against mother, and respondent had been using marijuana and meth in the child’s presence. At that time, the DHHS noted that CH might be eligible for membership in the Cherokee Indian tribe.
Respondent continued to allow mother to reside in his home with HH following the child’s birth. As such, the DHHS placed HH with CH in the Baldwins’ home when the infant was approximately one month old. Respondent continued with services and showed significant progress. Mother’s progress was much more guarded and the DHHS ordered respondent to end that relationship if he wanted to regain custody of his sons. Respondent visited with his sons daily, found employment, and participated in counseling. It also appeared that respondent had his substance abuse issues under control. The children were returned to respondent’s care in November 2018, and the court terminated mother’s rights to HH.
The children were again removed from respondent’s care and returned to the Baldwins’ home in July 2019. Respondent had allowed mother to care for the children unsupervised and allowed a friend with substance abuse and mental health issues to care for the children. Respondent also had been abusing alcohol. Shortly after the children were removed from his care, respondent expressed suicidal ideations and was hospitalized. Respondent also changed employment repeatedly. The Baldwins reported that since the children returned to their care, CH had wet the bed every night.
Although the children’s Native American heritage was brought to light in 2017, respondent did not attempt to gain tribal recognition until late 2019. The court was forced to delay termination proceedings until tribal membership could be determined and a tribal expert could be found. The COVID-19 pandemic also delayed proceedings. Once found, the expert opined that termination of respondent’s parental rights and placement with their maternal great-grandparents was in the best interests of CH and HH and consistent with Cherokee cultural values.
Respondent continued to abuse alcohol even after the expert recommended termination of his parental rights. In the summer of 2020, respondent was arrested for physically assaulting the father of his fiancée. Moreover, respondent had not informed the caseworker that his fiancée was living with him. Respondent’s therapist testified regarding the significant progress respondent had made. However, upon hearing testimony at the hearing, the therapist also reported that respondent had been less than honest with him.
Ultimately, the circuit court terminated respondent’s parental rights pursuant to MCL 712A.19b(3)(c)(i), (c)(ii), (g), and (j). Respondent appeals.
II. MCR 3.977(G)
Respondent does not contend that the DHHS failed to establish statutory grounds to support termination. Instead, respondent asserts that the circuit court failed to comply with MCR 3.977(G) in terminating his parental rights to Indian children. Specifically, respondent contends that the expert witness presented to the court was not qualified to testify because he had no contact with respondent, CH, or HH. Absent testimony from a qualified expert, respondent asserts, the court could not find that continued custody would likely result in emotional damage to the children.
The ICWA and the MIFPA “each establish various substantive and procedural protections for when an Indian child is involved in a child protective proceeding.” In re England, 314 Mich App 245, 251; 887 NW2d 10 (2016). The Legislature and the Supreme Court have enacted statutes and court rules to further this purpose. Relevant to this matter, the Supreme Court adopted MCR 3.977(G), which provides:
In addition to the required findings in this rule, the parental rights of a parent of an Indian child must not be terminated unless:
(1) the court is satisfied that active efforts as defined in MCR 3.002 have been made to provide remedial service and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, and
(2) the court finds evidence beyond a reasonable doubt, including testimony of at least one qualified expert witness, as described in MCL 712B.17, that parental rights should be terminated because continued custody of the child by the parent or Indian custodian will likely result in serious emotional or physical damage to the child. [Emphasis added.]
A “qualified expert” is defined by MCL 712B.17(1) as “either of the following”:
(a) A member of the Indian child’s tribe, or witness approved by the Indian child’s tribe, who is recognized by the tribal community as knowledgeable in tribal customs and how the tribal customs pertain to family organization and child rearing practices.
(b) A person with knowledge, skill, experience, training, or education and who can speak to the Indian child’s tribe and its customs and how the tribal customs pertain to family organization and child rearing practices.
The DHHS presented testimony from Leonard Gouge. The Cherokee Indian tribe designated Gouge as its expert and representative in this matter. Gouge testified that he possessed significant knowledge regarding the prevailing child-rearing practices of the Cherokee Indian tribe and how the social and cultural customs of the tribe pertained to child-rearing practices. Accordingly, Gouge was a qualified expert witness under MCL 712B.17(1).
Gouge reviewed the case materials and opined that active efforts had been made to keep this family together, but that those efforts proved unsuccessful. Gouge concluded that continued custody would likely result in serious emotional or physical damage to the children. Gouge emphasized that respondent’s home was not safe for the children because of respondent’s alcohol abuse and anger management issues. Although Gouge never had direct contact with respondent or the children, respondent has cited no authority requiring the expert to formulate his or her opinion only after such contact. Neither the statute nor the court rule contains such a requirement. And Gouge was familiar with the facts of this case. He observed the testimony presented at the termination hearing, spoke with the caseworker, and reviewed court reports, notes from a family team meeting, and the permanent custody petition. Gouge’s expert testimony satisfied the court rule and statute, and the court properly relied on that testimony to find that continued custody would likely result in emotional damage to the children.
III. BEST INTERESTS
Respondent further contends that termination of his parental rights was not in the best interests of his children. “Once a statutory ground for termination has been proven, the trial court must find that termination is in the child’s best interests before it can terminate parental rights.” In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012), citing MCL 712A.19b(5). “[W]hether termination of parental rights is in the best interests of the child must be proven by a preponderance of the evidence.” In re Moss, 301 Mich App 76, 90; 836 NW2d 182 (2013). We review the court’s factual findings in this regard for clear error. In re Brown/Kindle/Muhammad Minors, 305 Mich App 623, 637; 853 NW2d 459 (2014).
Factors relevant to the best-interest determination include “the child’s bond to the parent, the parent’s parenting ability, the child’s need for permanency, stability, and finality, and the advantages of a foster home over the parent’s home.” Olive/Metts, 297 Mich App at 41-42 (cleaned up). “The trial court may also consider a parent’s history of domestic violence, the parent’s compliance with his or her case service plan, the parent’s visitation history with the child, the children’s well-being while in care, and the possibility of adoption.” In re White, 303 Mich App 701, 714; 846 NW2d 61 (2014). “Other considerations include the length of time that the child was in care and the likelihood that the child could be returned to the parent’s home in the foreseeable future, if at all.” In re Payne/Pumphrey/Fortson, 311 Mich App 49, 64; 874 NW2d 205 (2015) (cleaned up). “[T]he fact that the children are in the care of a relative at the time of the termination hearing is an explicit factor to consider in determining whether termination was in the children’s best interests.” Olive/Metts Minors, 297 Mich App at 43 (cleaned up).
There is no doubt that respondent loves his children and that he and the children share a bond. However, respondent cannot provide a safe and stable home for his children. Despite receiving services since 2014 to rectify his issues with domestic violence and drug and alcohol abuse, respondent continued to struggle. By the time of the 2020 termination hearing, respondent continued to abuse alcohol and exhibit violence toward others. And when he drank to excess, respondent left the children with unsuitable individuals, such as their mother (whose parental rights had been terminated) and a friend who suffered from mental health issues and had previously threatened to commit suicide in front of the children.
The children also had no stability in their father’s home. CH had been placed with the Baldwins on more than one occasion for short periods while in respondent’s care. The DHHS had also placed the children in the Baldwins’ care for repeated longer periods. Respondent’s inability to create a stable home left CH with anxiety, fear of abandonment, and bed-wetting issues that still were being addressed through counseling by the time of the termination hearing.
The Baldwins indicated that they were willing to care for the children indefinitely and the children were thriving in their care. The children’s placement with relatives did not weigh against termination in this case. Respondent and the Baldwins did not have a healthy relationship and the children’s emotional wellbeing could not be safeguarded in a long-term guardianship. Accordingly, the court did not err in finding termination to be in the children’s best interests.
Thomas C. Cameron
Elizabeth L. Gleicher