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February 01, 2016

COA: Michigan Indian Family Preservation Act Not Unconstitutionally Vague

The Michigan Court of Appeals held, in In re E.M. England, No. 327240, that the Michigan Indian Family Preservation Act (MIFPA) is not unconstitutionally vague.  MIFPA requires a trial court to conclude that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of an Indian family prior to terminating parental rights of an Indian child.  The Court further held that that the Department of Health and Human Services (DHHS) met the heightened standard required to terminate the Respondent’s parental rights, and affirmed the trial court’s termination of parental rights.
At the age of two months, E.M. was the subject of a child-abuse investigation after his parents, one of whom was Respondent, brought him to the Mott Children’s Hospital at the University of Michigan with two broken ribs and evidence of numerous other injuries.  Respondent was interviewed at the hospital, and ultimately charged with two counts of second-degree child abuse.  He pleaded guilty to one count and was sentenced to two years of probation.  DHHS petitioned to terminate respondent’s parental rights.  Because E.M. is eligible for membership in the Sault Ste. Marie Tribe of Chippewa Indians and is an Indian child, the procedural and substantive provisions of the Indian Child Welfare Act (ICWA) and MIFPA applied to the termination proceedings.  The trial court granted DHHS’ request.  Respondent appealed.    
The specific findings required by the ICWA and MIFPA in termination proceedings are: 1) proof that active efforts were made to unify the family, MCL 712B.15(3); and 2) proof beyond a reasonable doubt that the continued custody of the child by the parent would likely result in serious emotional or physical damage to the child, MCL 712B.15(4).  Proceedings involving termination of  parental rights of an Indian child require a dual burden of proof because the trial court must find that at least one state statutory ground for termination was proven by clear and convincing evidence, and must also make findings in compliance with the ICWA and MIFPA before terminating parental rights.  Finally, as in all termination proceedings, the trial court has a duty to determine that termination is in the child’s best interest.
Respondent argued that MCL 712B.15(3) was unconstitutionally vague because it did not provide an evidentiary standard by which to determine that active efforts were undertaken to unify the family.  The Court of Appeals disagreed.  Just like the ICWA, the default standard of “clear and convincing evidence” applied because  MCL 712B.15(3) does not articulate a specific standard.  Here there was clear and convincing evidence that active efforts to unify the family were undertaken.  A Child Protective Services specialist contacted E.M.’s tribe at the outset of the proceedings, maintained contact throughout, met with Respondent multiple times to discuss reunification and his various needs, and identified a culturally-appropriate referral service to arrange Respondent’s participation in counseling.  Thus, the trial court did not clearly err.
Respondent also argued that the trial court clearly erred in finding, beyond a reasonable doubt, that E.M. would be harmed if returned to Respondent’s care, as required by MCL 712.15(4).  The Court of Appeals held that the trial court did not err, based on the expert witnesses testimony, which stated E.M. would be at risk of future harm if returned to Respondent’s care.  Accordingly, the Court of Appeals affirmed the trial court’s decision.

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