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June 14, 2015

COA: Termination of parental rights under Indian Child Welfare Act requires expert testimony regarding likely harm of continued parental custody

In In re Payne/Pumphrey/Fortson, No. 324813, the Court of Appeals held that termination of parental rights under the Indian Child Welfare Act (“ICWA”) requires expert testimony indicating that custody with a parent will likely result in serious emotional or physical harm to the child.  The Court remanded the case to allow the trial court to adhere to the evidentiary requirements of the ICWA and its Michigan counterparts, the Michigan Indian Family Preservation Act (“MIFPA”) and the Michigan court rules.
 
Respondent, A. Stenman, had four minor children and faced allegations of abuse, neglect, improper supervision, mental instability, and substance abuse.  The trial court initially terminated Stenman’s parental rights in 2013.  On initial appeal, the Court concluded that two of Stenman’s children qualified as Indian children under the ICWA.  The Court remanded the case and instructed the trial court to consider the heightened ICWA evidentiary standard.  Regarding the two non-Indian children, the Court instructed the trial court to consider and articulate findings regarding the “best interests” of the children. 
 
On remand, the trial court heard expert testimony from Christopher Hillert, a child welfare worker for the Indian children’s tribe.  Hillert testified that it was generally against the tribe’s practice to support termination and that he did not feel that the continued custody of the children by Stenman would likely result in serious emotional or physical damage to the children.  Hillert was the only expert to testify.  Following additional proofs and argument, the trial court acknowledged that the evidentiary standard for terminating parental rights under the ICWA, 25 USC § 1912(f), required proof “beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious physical or emotional damage to the child.” Stenman argued that Hillert’s testimony did not meet this standard because he specifically testified that continued custody would not likely result in such damage.  The trial court, however, found that, taking into account all of the evidence, there was proof beyond a reasonable doubt that granting Stenman continued custody would likely result in damage to the children and that terminating parental rights was in the children’s best interests.  Thus, the trial court terminated Stenman’s parental rights to all of her children.  The primary issue on appeal involved whether the trial court properly terminated parental rights pursuant to the “beyond a reasonable doubt” standard. 
 
The Court held that termination of parental rights pursuant to the ICWA, MIFPA and the Michigan court rules requires expert testimony to support a finding that parental custody would likely result in serious emotional or physical damage to an Indian child.  The court reasoned that the statutory language and rules require evidence beyond a reasonable doubt, including testimony from one or more qualified experts.  Although the applicable statutes and rules did not define “including,” dictionary definitions of  the word and similar ICWA and MIFPA provisions indicated that a “beyond a reasonable doubt” finding must include testimony from an expert witness who opines that continued custody would likely result in serious physical or emotional harm to the child.  Thus, because Hillert’s testimony did not support termination of parental rights, the Court remanded the case to allow for proper evidentiary proof.  Additionally, the Court affirmed the trial court’s determination that the termination of Stenman’s parental rights with respect her non-Indian children served their best interests.

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