Michigan Court of Appeals Holds Adoption Invalid Under ICWA

On February 26th, 2015, the Michigan Court of Appeals held in a family court case - involving abuse and neglect, the termination of a mother's parental rights, and the adoption of that mother's child - that the trial court erred under the Indian Child Welfare Act (ICWA) in allowing a non-Indian couple to adopt an Indian child.

In In re KMN, Minor, Docket Nos. 322329 and 322883, the Michigan Court of Appeals addressed several issues, including:

  1. Whether the trial court erred in determining that the child is an Indian child as defined under the ICWA and the Michigan Indian Family Protection Act (MIFPA);
  2. Whether the trial court "failed to apply ICWA’s adoptive placement preferences or find good cause for disregarding that preference";
  3. Whether the trial court "failed to place KMN in one of MIFPA’s listed potential placements or find good cause for disregarding that list"; and
  4. Whether the trial court erred in ordering the Tribe to pay attorney fees.

The Court first recited the facts of the case.

On October 24, 2013, in a separate case (lower court docket number 13-008396-NA), the Department of Human Services (DHS) filed a petition for removal of KMN immediately after her birth on the basis of Nelson’s previous and lengthy history of abuse and neglect of her other children. The petition was supplemented the next day to include a request for termination of Nelson’s parental rights.

On February 19, 2014, Jason Carlson, a Native American, was identified as the biological father of KMN; he voluntarily consented to termination of his parental rights in lower court docket number 13-008396-NA. In that termination order, the trial court checked a box that provided, “The adoptee is an Indian child as defined in MCR 3.002(5) and the court has considered the application of the Indian Child Welfare Act in this matter.”
On April 2, 2014, in lower court docket number 13-008396-NA, the trial court ordered that efforts should be made to preserve and reunify Nelson and KMN. On May 5, 2014, and again on June 4, 2014, in the instant case (lower court docket number 14-000805-AD), the Arbutantes filed a petition for direct placement adoption. They had no previous relationship to KMN. The petition provided that Carlson’s parental rights had been terminated, that KMN is an Indian child, and that Nelson had consented pursuant to MCL 712B.13 and the Michigan Adoption Code. Notice of the petition was also sent on May 5, 2014, to Nancy Bogren, a representative of the Tribe.

In a June 3, 2014 brief in support of adoption, the Arbutantes and Nelson claimed that KMN lived in a foster home that did not comply with ICWA from about October 26, 2013 to May 29, 2014, that she was subsequently transferred to Carlson’s distant relative, and that Nelson did not approve of that transfer. They further claimed that Carlson abandoned Nelson after her pregnancy began with KMN, that he was imprisoned before KMN was born, and further, that although he is of Indian descent, he never lived with the Tribe or adopted its culture. The Arbutantes and Nelsons also argued that the United States Supreme Court’s ruling in Adoptive Couple v Baby Girl, ___ US ___; 133 S Ct 2552, 2564; 186 L Ed 2d 729 (2013) was dispositive—preferences in 25 USC 1915(a) did not apply because Carlson abandoned KMN, and there were no other parties (Indian or non-Indian) who had formally sought to adopt KMN.

The trial court held a hearing on the adoption petition on June 4, 2014. The Arbutantes and Nelson argued that Nelson’s preference regarding KMN’s adoptive placement constituted good cause to deviate from ICWA’s placement preferences in 25 USC 1915(a) and that KMN’s only connection to the Tribe was Carlson, who abandoned her. The Arbutantes and Nelson urged the trial court to acknowledge Nelson’s consent for direct placement adoption and certify a pre-adoptive placement with the Arbutantes.

The Tribe opposed the adoption petition, maintaining that KMN is an Indian child under the broad definitions in ICWA and MIFPA, that there was an “Indian relative ready, willing, and able to adopt” KMN, and that the relative had not yet filed a petition to adopt only because Nelson’s rights had not yet been terminated, and the abuse and neglect case was still pending. The Tribe further argued that terminating the abuse and neglect case at that time could put the child in “harm’s way.” In response to a question by the trial court, the Tribe’s attorney replied that although she was eligible for membership in the Tribe, KMN could not receive a subsidy from casino proceeds until she was an adult. The trial court made several comments relative to the Tribe’s argument, notably that it, “underst[oo]d the theory behind the law . . . I disagree whether this child is an Indian child,” and, “I think that if there was any Indian culture to be preserved here the Court would be the first one to preserve it.” Regarding the potential harm to KMN if the abuse and neglect case was terminated, the trial court commented that “I think the child is in harm’s way with you, to be frank with you,” and that moving KMN without its consent would put the child in “harm’s way.”

The Arbutantes and the guardian ad litem (GAL) argued in response to the Tribe’s arguments that although KMN had lived with Kelly Rose Levandoski (Carlson and KMN’s cousin) and Steven Michael Levandoski for several days before the June 4 hearing, she was not being removed from an Indian home for purposes of ICWA and MIFPA, and those provisions did not apply. DHS opposed the adoption and further argued that if the neglect case were still pending, the trial court could not allow Nelson to grant the direct placement adoption because she was required to have legal or physical custody.

Following arguments on the adoption petition, the trial court closed the abuse and neglect case on the record, ruling that it was “returning . . . [KMN] to her mother . . . for . . . immediate custody.” The trial court then received testimony from Nelson indicating she consented on the record to the direct placement adoption. Nelson testified that she was friends with Carlson. She told him about the pregnancy within two months, but “he wanted nothing to do with [KMN].” She also testified that Carlson has no connection to his Indian culture, but he takes the money he is entitled to from casino revenues.

Following Nelson’s testimony, the trial court entered a written order in lower court docket number 13-008396-NA terminating the jurisdiction of the trial court and releasing KMN to Nelson. In lower court docket number 14-000805-AD, the trial court signed an order certifying Nelson’s consent to adoption of KMN by the Arbutantes. As with the order terminating Carlson’s parental rights, the trial court checked the box on the form order which provided that KMN is an Indian child. The trial court also entered an order terminating Nelson’s parental rights after her consent. That document provided KMN is an Indian child and “the court has considered the application of the Indian Child Welfare Act in this matter.” The trial court then made KMN a ward of the court for purposes of adoption and transferred her to the Arbutantes for pre-adoptive placement . . .

The Court's analysis of whether "trial court failed to place KMN in one of MIFPA’s listed potential placements or find good cause for disregarding that list" followed.

. . . MIFPA differs from ICWA in that it does not give a preference to eligible parties over ineligible parties. Rather, MIFPA requires that, absent good cause, the adoptive placement must be either with a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family, in that “order of preference.” MCL 712B.23(2). The record demonstrates that the Arbutantes have no familial connection to KMN; they are not connected to the Tribe, and they are not an Indian family. Therefore, absent a good cause finding, MIFPA precluded the trial court from placing KMN with the Arbutantes.
The trial court’s July 9, 2014 order concludes that Nelson’s preference amounted to good cause. This ruling was erroneous. As noted by the Tribe, MCL 712B.23(5) provides:

The court’s determination of good cause to not follow the order of preference shall be based on 1 or more of the following conditions:

(a) A request was made by a child of sufficient age.

(b) A child has an extraordinary physical or emotional need as established by testimony of an expert witness. [Emphasis added.]

Under the doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), good cause is limited to the conditions articulated in MCL 712B.23(5)—a request made by a child of a sufficient age or a circumstance involving a child with an extraordinary need. Therefore, a biological parent’s choice of an adoptive placement does not constitute good cause under MCL 712B.23(2). Because the record does not establish that KMN, an infant at the time of these proceedings, was of sufficient age to choose the Arbutantes, or that KMN has any extraordinary needs which the Arbutantes as adoptive parents could satisfy, the record fails to satisfy the requirements of MCL 712B.23(2), and the trial court erred by placing KMN with the Arbutantes.

Moreover, MCL 712B.23(4) provides, “The court shall not find good cause to deviate from the placement preferences stated in this section without first ensuring that all possible placements required under this section have been thoroughly investigated and eliminated.” MCL 712B.23(4). Merriam Webster’s Collegiate Dictionary (2003) defines the word “possible” as “being within the limits of ability, capacity, or realization.” Accordingly, the trial court was required to give meaningful consideration to KMN’s possible placement with the Levandoskis, as extended family and make findings as to why that placement should be eliminated before making any determination that there was good cause to deviate from the statutory placement criteria. Therefore, unlike ICWA, under MIFPA, the fact that no alternate petition for adoption had yet been filed is irrelevant.5 After the trial court has been alerted that there are alternative possible placements consistent with the statute, a trial court must first ensure they have been “thoroughly investigated and eliminated.” Before making a placement outside of the statutorily preferred placement options, the trial court is required to “address efforts to place an Indian child in accordance with this section at each hearing until the placement meets the requirements of this section.” MCL 712B.23(4) . . .

As the Arbutantes properly note, ICWA does not define good cause to deviate from its placement preferences, whereas MIFPA only allows deviation from its order of preference on the basis of an Indian child’s choice or extraordinary needs. Based on this distinction in the two laws, the Arbutantes claim that because trial courts have less discretion regarding the placement of Indian children under MIFPA, the children have less protection from the trial court and this outcome interferes and conflicts with the purposes of ICWA. We disagree. The purpose of ICWA is to protect an Indian child’s Indian culture. See 25 USC 1902. The Michigan Legislature’s definition of good cause does not stand as an obstacle to the accomplishment of this purpose. Rather, by giving trial courts less discretion to deviate from a placement with a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family, the Legislature endeavored to further protect the Indian child’s Indian culture—a purpose consistent with ICWA. Therefore, we reject the Arbutantes’ claim that MIFPA was preempted by ICWA . . .