2018 WL 2294103
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Supreme Court of Michigan.
IN RE WILLIAMS, Minors.
No. 155994
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Filed May 18, 2018
BEFORE THE ENTIRE BENCH
OPINION
McCormack, J.
At issue is the ability of the parent of an Indian child to withdraw his consent to the termination of his parental rights for the purpose of adoption before a final order of adoption has entered. Typically, a termination of parental rights becomes final and irrevocable when a court enters the termination order. The Legislature carved out an exception to this general rule, however, for the parents of Indian children who voluntarily release their parental rights or consent to termination of those rights under the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq. MIFPA, like its federal progenitor, the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., was enacted to “[p]rotect the best interests of Indian children and promote the stability and security of Indian tribes and families.” MCL 712B.5(a). The protections in both acts aim to address the historical injustice caused by the removal of Indian children from their families and tribes. ICWA sets a floor, establishing the minimum national standards that must be met before an Indian child may be removed from his or her family in the context of child protective proceedings. 25 USC 1902. MIFPA similarly provides special protections when an Indian child is involved in certain proceedings in Michigan courts. Sometimes the protections afforded under MIFPA are greater than those provided under ICWA, as with the issue we consider today: when may the parent of an Indian child withdraw consent to the termination of parental rights.
Jack Williams, a member of the Sault Ste. Marie Tribe of Chippewa Indians (Sault Tribe), has two children, both of whom are eligible for tribal membership and are Indian children as defined in MIFPA. The Michigan Department of Health and Human Services (DHHS) instituted child protective proceedings against Williams, but before the trial court terminated Williams’s parental rights to the children, he released those rights under §§ 28 and 29 of the Michigan Adoption Code, MCL 710.28 and MCL 710.29. DHHS did not object, and the court accepted his release.
Before the adoptions of his children were finalized, Williams filed a notice in the trial court to withdraw his consent to the termination of his parental rights, citing MIFPA’s withdrawal provision, MCL 712B.13(3). But the trial court denied his request because he had released his children to DHHS rather than to a specific adoptive parent. The Court of Appeals affirmed, but for different reasons.
Williams believes the plain language of MCL 712B.13(3) entitled him to withdraw his consent because the trial court had not yet entered a final order of adoption for his children. We agree.
I. FACTUAL AND PROCEDURAL BACKGROUND
Williams’s children were first removed from his care and placed in foster care in 2012, and DHHS eventually filed a petition to terminate Williams’s parental rights. Before the termination hearing, however, Williams consented to the termination of his parental rights by executing releases under §§ 28 and 29 of the Adoption Code. Williams signed State Court Administrative Office (SCAO) forms releasing his parental rights to both children “for the purpose of adoption” and accompanying statements of his intent to sign for both children a “Release of the Child for Purposes of Adoption.” DHHS did not object.
As acknowledged by Williams, a referee had advised him that there was no guarantee that the minor children would be adopted by their foster parents. The referee accepted Williams’s releases, referred the case to an adoption agency, and entered standard orders terminating Williams’s parental rights based on the releases and accompanying statements.1 The children’s foster parents then petitioned to adopt the children. But the Sault Tribe intervened and objected to the adoption under ICWA and MIFPA, which require that proper notice of child custody proceedings be given to the child’s tribe, enable tribes to intervene in such proceedings, and allow tribes to object to an adoption.
As a result, the trial court denied the foster parents’ adoption petition and placed the children with new foster parents. That same month, after having learned that the original foster parents’ petition to adopt the children had been denied, Williams filed a request to withdraw his consent to the termination of his parental rights under MCL 712B.13(3) of MIFPA.
The trial court denied Williams’s request, holding that Williams was not entitled to withdraw his release once the court had entered the order terminating his parental rights because Williams had released his children to DHHS rather than to a specific adoptive parent. The Court of Appeals affirmed, but for different reasons. It held that Williams could not withdraw his release because he had not executed a separate consent under MCL 712B.13(1) and, because MCL 712B.15 of MIFPA applies when a release is executed under §§ 28 and 29 of the Adoption Code during a child protective proceeding brought under MCL 712A.2(b), MCL 712B.15 “does not address or provide for withdrawal of the release.” In re Williams, 320 Mich. App. 88, 120-121, 902 N.W.2d 901 (2017).2 This Court granted leave to appeal to address whether, under MIFPA, Williams was entitled “to withdraw his consent to the termination of his parental rights for the purpose of adoption at any time before entry of a final order of adoption. MCL 712B.13(3).” In re Williams, 501 Mich. 870, 870-871, 901 N.W.2d 856 (2017).
II. LEGAL BACKGROUND
A. STANDARD OF REVIEW
We review de novo the interpretation and application of statutes. In re Sanders, 495 Mich. 394, 404, 852 N.W.2d 524 (2014). That means we review these questions independently, with no required deference to the trial court. If statutory language is unambiguous, we enforce it as written. Fluor Enterprises, Inc v. Dep’t of Treasury, 477 Mich. 170, 174, 730 N.W.2d 722 (2007).
B. STATUTORY BACKGROUND OF ICWA AND MIFPA
Congress enacted ICWA in part because “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies....” 25 USC 1901. ICWA’s purpose is “to promote the stability and security of Indian tribes and families,” 25 USC 1902, and “to protect and preserve Indian families, tribes, and tribal culture,” In re England, 314 Mich. App. 245, 250-251, 887 N.W.2d 10 (2016).
ICWA’s provisions accomplish these objectives by, for example, requiring notice to the child’s parents or Indian custodian, and the Indian child’s tribe of the start of an involuntary child custody proceeding involving an Indian child. 25 USC 1912(a). ICWA also imposes heightened evidentiary and procedural burdens on the state to sustain the termination of parental rights, such as qualified expert witness testimony and proof beyond a reasonable doubt. See 25 USC 1912(f).
In 2012, the Legislature adopted MIFPA to establish state law standards for child welfare and adoption proceedings involving Indian children. 2012 PA 565. Some of these standards provide greater protections for Indian families than those provided by ICWA. The goal of MIFPA is explicit: to require courts to “[p]rotect the best interests of Indian children and promote the stability and security of Indian tribes and families,” MCL 712B.5(a), and to “[e]nsure that the [DHHS] uses practices, in accordance with [ICWA], this chapter, and other applicable law, that are designed to prevent the voluntary or involuntary out-of-home care placement of Indian children,” MCL 712B.5(b). One example of a protection that MIFPA provides to the parents of an Indian child that ICWA does not is the opportunity for parents who consent to the termination of their parental rights for purposes of adoption to withdraw that consent at any time before entry of a final order of adoption. MCL 712B.13(3). MCL 712B.13 provides, in relevant part:
(1) ... [I]f a parent consents to adoptive placement or the termination of his or her parental rights for the express purpose of adoption by executing a release under sections 28 and 29 of [the Adoption Code], or consent under sections 43 and 44 of [the Adoption Code], the following requirements must be met:
* * *
(3) If the placement is for purposes of adoption, a consent under subsection (1) of the Indian child’s parent must be executed in conjunction with either a consent to adopt, as required by sections 43 and 44 of [the Adoption Code], or a release, as required by sections 28 and 29 of [the Adoption Code]. A parent who executes a consent under this section may withdraw his or her consent at any time before entry of a final order of adoption by filing a written demand requesting the return of the Indian child. Once a demand is filed with the court, the court shall order the return of the Indian child. Withdrawal of consent under this section constitutes a withdrawal of a release executed under sections 28 and 29 of [the Adoption Code] or a consent to adopt executed under sections 43 and 44 of [the Adoption Code]. [Emphasis added.]
ICWA, by contrast, allows for withdrawal of consent “at any time prior to the entry of a final decree of termination or adoption, as the case may be....” 25 USC 1913(c); In re Kiogima, 189 Mich. App. 6, 13, 472 N.W.2d 13 (1991).
This is our first opportunity to consider whether the withdrawal provision of MCL 712B.13(3) applies when the parent of an Indian child consents to the termination of his or her parental rights during a child protective proceeding by executing a release under §§ 28 and 29 of the Adoption Code.
C. CHILD PROTECTIVE PROCEEDINGS IN MICHIGAN INVOLVING INDIAN CHILDREN
MIFPA governs both cases in which the parent of an Indian child voluntarily consents to the termination of his or her parental rights for the purpose of adoption, MCL 712B.13, and cases in which the parent of an Indian child faces involuntary termination of parental rights because of abuse or neglect, MCL 712B.15. To facilitate adoptions, MIFPA refers to the Adoption Code. See MCL 712B.13(1), MCL 712B.13(3), and MCL 712B.15(1).
When the state seeks to terminate the rights of a parent of an Indian child without his or her consent, MCL 712B.15 of MIFPA requires the state to meet heightened evidentiary and procedural burdens.3 For example: (1) the state must give notice of the pending proceeding to the Indian tribe; (2) before removal or to continue removal, the state must prove by clear and convincing evidence that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that the active efforts were unsuccessful, and 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; (3) when seeking termination, the state must demonstrate that active efforts were made to prevent the breakup of the Indian family and that the efforts were unsuccessful; and (4) any termination of parental rights must be supported by evidence beyond a reasonable doubt and by the testimony of at least one qualified expert who knows about the child-rearing practices of the Indian child’s tribe. MCL 712B.15(1) to (4).
Under MCL 712B.13 of MIFPA, the parent of an Indian child may consent to the termination of his or her parental rights under the Adoption Code and facilitate adoption in one of two ways. A parent may consent to the termination of his or her parental rights for the express purpose of adoption by executing a release under §§ 28 and 29 of the Adoption Code, which releases the child to an agency or DHHS for adoption. Or a parent may voluntarily release his or her parental rights to allow placement of a child with a specific adoptive parent by signing a consent under §§ 43 and 44 of the Adoption Code, MCL 710.43 and MCL 710.44. For a consent to be valid, certain conditions must be satisfied, each of which provides additional protection to the parent of an Indian child. For example, the consent must be executed on an approved form, in writing, and recorded before a judge who certifies that the parent fully understood the consequences of the consent. MCL 712B.13(1)(a).4 The consent must also contain specific information about the child’s tribe and consenting parent, as well as the parent’s signature “verifying an oath of understanding of the significance of the voluntary placement and the parent’s right to file a written demand to terminate the voluntary placement or consent at any time.” MCL 712B.13(2)(a) to (e).5 A parent who voluntarily releases his or her rights under MCL 712B.13(1) “may withdraw his or her consent at any time before entry of a final order of adoption by filing a written demand requesting the return of the Indian child,” MCL 712B.13(3), and “[w]ithdrawal of consent under this section constitutes a withdrawal of a release executed under sections 28 and 29 [of the Adoption Code],” MCL 712B.13(3).
Causing disagreement in this case, MCL 712B.13(5) provides, in part, that “[a] release executed under sections 28 and 29 of [the Adoption Code] during a pendency of a [child protective] proceeding ... is subject to [MCL 712B.15].” (Emphasis added.)
III. ANALYSIS
Williams consented to the termination of his parental rights for the express purpose of adoption by executing a release under §§ 28 and 29 of the Adoption Code. That Williams released his children to DHHS rather than to a specific adoptive parent is not relevant to his ability to withdraw his consent; we agree with the Court of Appeals that “a specific adoptive placement was not required under 712B.13(1).” In re Williams, 320 Mich. App. at 120, 902 N.W.2d 901. The statute contains no language that a specific adoptive placement is required. The plain language of MCL 712B.13 allows a parent of an Indian child to both consent to the termination of his or her parental rights for the express purpose of adoption by executing a release under §§ 28 and 29 of the Adoption Code and also to withdraw that consent before a final order of adoption is entered.
But the Court of Appeals concluded that Williams was still not entitled to withdraw his consent under MCL 712B.13 for two other reasons: because the record does not establish that Williams executed a consent under MCL 712B.13(1), In re Williams, 320 Mich. App. at 119, 902 N.W.2d 901, and because he was a participant in a child protective proceeding otherwise governed by MCL 712B.15, which “does not address or provide for withdrawal of the release,” id. at 121, 902 N.W.2d 901. We disagree.
The panel held that Williams did not have the right to withdraw his consent under MIFPA because he had not executed a consent under MCL 712B.13(1), which the panel concluded was “a separate obligation from executing a consent to adopt or release.” Id. at 119, 902 N.W.2d 901. It viewed the text of MCL 712B.13(3) as requiring this additional MIFPA consent: a consent of the Indian child’s parent under MCL 712B.13(1), executed in conjunction with either a consent to adopt, as required by §§ 43 and 44 of the Adoption Code, or a release, as required by §§ 28 and 29 of the Adoption Code. Id. at 118-119, 902 N.W.2d 901.
We don’t read the text the same way. The panel erred by construing the language “in conjunction with” to mean that a consenting parent must complete two separate forms. “Conjunction” is defined as “the act or an instance of conjoining: the state of being conjoined.” Merriam-Webster’s Collegiate Dictionary (11th ed). “Conjoin” is defined as “to join together for a common purpose.” Id. A consent under MCL 712B.13(1) conjoins with a release under §§ 28 and 29 of the Adoption Code because a consent under MCL 712B.13(1) is a release under §§ 28 and 29 of the Adoption Code with more protections. There are two court forms approved by the SCAO for releasing parental rights. One form is titled “Release of Child by Parent”6 and the other form is titled “Release of Indian Child by Parent.”7 These forms are almost identical. The only difference is that the form for release of an Indian child by his or her parent includes the additional information and process required by MCL 712B.13(1) and (2). So a consent under MCL 712B.13(1) is executed “in conjunction with” a release as required by §§ 28 and 29 of the Adoption Code when a “Release of Indian Child by Parent” form is completed. There is no third form as envisioned by the Court of Appeals. A consent under MCL 712B.13(1) also acts as the release required by §§ 28 and 29 of the Adoption Code. A release under §§ 28 and 29 of the Adoption Code and a consent under MCL 712B.13(1) and (2) of MIFPA are conjoined in the execution of a “Release of Indian Child by Parent” form.8
Notably, the referee did not use the proper SCAO form “Release of Indian Child by Parent,” which would have ensured the additional protections and information detailed by MCL 712B.13(1) and (2). And so Williams did not verify that he understood “the significance of the voluntary placement and [his] right to file a written demand to terminate the voluntary placement or consent at any time.” MCL 712B.13(1)(e). But all the additional requirements in MCL 712B.13(1) (and captured in the corresponding SCAO form) are there to provide more protections to parents of Indian children who consent to release their parental rights. See MCL 712B.5(a) (stating that MIFPA’s purpose is to “promote the stability and security of Indian tribes and families”). That Williams released his parental rights without the benefit of the added protections he was due under MCL 712B.13(1) and (2) cannot be used against him to deprive him of the protections of MCL 712B.13(3). That outcome surely would frustrate the Legislature’s intent. The referee’s failures during the consent process should not imperil Williams’s withdrawal demand.9
The plain language of MCL 712B.13(1) requires only that a parent consent to “the termination of his or her parental rights for the express purpose of adoption by executing a release under sections 28 and 29” of the Adoption Code. Williams did that. The language of the statute requires no additional consent.10
Nor do we agree with the Court of Appeals that, as a participant in a child protective proceeding otherwise governed by the protections of MCL 712B.15, Williams was unable to benefit from the withdrawal provision of MCL 712B.13. The panel held that Williams could not withdraw his consent because, under MCL 712B.13(5), he was still subject to MCL 712B.15, which “does not address or provide for withdrawal of the release.” In re Williams, 320 Mich. App. at 121, 902 N.W.2d 901. As we concluded in Lansing Mayor v. Pub. Serv. Comm., 470 Mich. 154, 160, 680 N.W.2d 840 (2004), the phrase “subject to” can mean that two statutory provisions are both applicable and “work together[.]” MCL 712B.13 and MCL 712B.15 are meant to be read together; Williams is entitled to the protections of both.
Both MCL 712B.13 and MCL 712B.15 of MIFPA applied at different times in this case. MCL 712B.15 applies when “an Indian child is the subject of a child protective proceeding ... [and] a parent does not provide consent” to the termination of his or her parental rights for the express purpose of adoption. MCL 712B.15(1) (emphasis added). MCL 712B.13 applies when “a parent consents to adoptive placement or the termination of his or her parental rights for the express purpose of adoption....” MCL 712B.13(1) (emphasis added). In other words, when the state seeks to terminate the rights of a parent of an Indian child and the parent does not consent, the parent can count on the protections of MCL 712B.15. But if a parent of an Indian child willingly consents to the termination of his or her parental rights for the purpose of adoption, the parent can then count on the added protections of MCL 712B.13, which does not exclude from its coverage parents who are participants in involuntary child protective proceedings when they provide consent as described in MCL 712B.13(1). None of the protections in MCL 712B.15, which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply. They will apply once again after Williams withdraws his consent under MCL 712B.13(3).
What matters is whether the parent consents to the termination of his or her parental rights by executing a release of those rights under the Adoption Code. That’s exactly what Williams did. And if the court accepts that consent, the parent has the right to withdraw it at any time before entry of a final order of adoption by filing a written demand requesting the return of the child. MCL 712B.13(3). By consenting to the termination of his or her parental rights under MCL 712B.13, a parent of an Indian child reduces the evidentiary and procedural burdens on the state.11 He or she is thereby entitled to the statute’s benefit—the right to withdraw consent under MCL 712B.13(3).
There is no textual support in MCL 712B.13 (or anywhere else) for a conclusion that the Legislature intended to deny parents of Indian children involved in child protective proceedings the protections in that provision if they consent to termination. In fact, MCL 712B.15 states that parents involved in child protective proceedings can “provide consent as described in [MCL 712B.13].” MCL 712B.15(1). The statute contemplates a parent doing exactly what Williams did here. Although the state had begun termination proceedings against him and although he had a right to all of the protections of MCL 712B.15, he voluntarily released his rights under MCL 712B.13(1). DHHS did not object to his consent, and the court accepted it. He was therefore entitled to withdraw his consent at any time before entry of a final order of adoption.
None of this is to say, however, that MCL 712B.13(5) does not have meaning in a case like this one. It does. MCL 712B.13(5) governs what happens next. Williams may withdraw his consent, but his termination case can still proceed, governed by the protections of MCL 712B.15. That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the return of the Indian child” to him or her. Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.
IV. CONCLUSION
The Legislature enacted MIFPA to promote the stability and security of Indian tribes and families. One way the act accomplishes this goal is by permitting the parents of Indian children who voluntarily consent to the termination of their parental rights for the purpose of adoption to withdraw that consent at any time before an adoption is finalized. Williams voluntarily consented to the termination of his parental rights under MCL 712B.13(1), the court accepted his consent, and he properly requested that his consent be withdrawn under MCL 712B.13(3). Because the adoption of his children had not been finalized, MIFPA requires that we grant Williams’s request.
We therefore reverse the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
Bridget M. McCormack, Stephen J. Markman, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Kurtis T. Wilder, Elizabeth T. Clement
All Citations
--- N.W.2d ----, 2018 WL 2294103
Footnotes |
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The children’s mother also released her parental rights to the children and has not sought to appeal or withdraw her releases. |
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The original foster parents appealed the trial court’s denial of their petition to adopt the minor children, and Williams appealed the denial of his motion to withdraw consent. The Court of Appeals addressed both appeals in one opinion, and the opinion caption therefore listed the two different case names. Because we are concerned only with Williams’s motion to withdraw consent to the termination of his parental rights, we refer to the Court of Appeals’ opinion as simply In re Williams, 320 Mich. App. 88, 902 N.W.2d 901. |
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MCL 712B.15 provides: |
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MCL 712B.13(1) provides: |
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MCL 712B.13(2) provides: |
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SCAO, Form PCA 305 (Feb. 2015). |
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SCAO, Form PCA 305-I (Sept. 2017). |
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Similarly, the requirement of MCL 712B.27(1) that “[i]f a release or consent to adoption under [the Adoption Code] is executed, consent to voluntary placement of an Indian child must also be executed by both parents of the Indian child in accordance with [MCL 712B.13]” is satisfied by the execution of the SCAO form “Release of Indian Child by Parent.” (Emphasis added.) |
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Williams argues that his consent was not properly given as a result of these failures and because his consent was taken by a referee and not a judge as the statute requires. See MCL 712B.13(1)(a). We assume without deciding that the consent was proper. |
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Our determination that there is no separate “consent” required by MCL 712B.13 is supported by our court rules which require no separate “consent” or additional step for the parent of an Indian child, but rather impose additional requirements on the state for a release under §§ 28 and 29 of the Adoption Code when a parent of an Indian child is involved. See MCR 3.804(A) (specifying requirements that must be met “[i]n addition to the requirements of MCL 710.29 or MCL 710.44, if a parent of an Indian child intends to voluntarily consent to adoptive placement or the termination of his or her parental rights for the express purpose of adoption pursuant to MCL 712B.13”). See also MCR 3.804(B)(2) (providing that “[a] consent hearing involving an Indian child pursuant to MCL 712B.13 must be held in conjunction with either a consent to adopt, as required by MCL 710.44, or a release, as required by MCL 710.29”). |
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We need not decide today whether and when DHHS may object to a parent’s consent or when a court may reject it. |
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