In Re JL

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

FILED JULY 14, 2009

In re JL, Minor.
____________________________________

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Appellee,

v No. 137653

CHERYL LYNN LEE,

Respondent-Appellant,

and

SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS,

Intervening Respondent-
Appellee.

BEFORE THE ENTIRE BENCH

CORRIGAN, J.

Respondent Cheryl Lee challenges the judgment of the Court of Appeals

affirming the termination of her parental rights to her son, JL. In re Lee,

unpublished opinion per curiam of the Court of Appeals, issued October 16, 2008

(Docket No. 283038). Respondent specifically claims error in the interpretation

and application of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.
She urges us to adopt the interpretation of the ICWA offered by the dissenting

Court of Appeals judge. We affirm the judgment of the Court of Appeals because

petitioner the Department of Human Services (DHS), provided timely, affirmative

efforts that satisfied the ICWA’s “active efforts” requirement, 25 USC 1912(d).

We hold that the ICWA requires the DHS to undertake a thorough,

contemporaneous assessment of the services provided to the parent in the past and

the parent’s response to those services before seeking to terminate parental rights

without having offered additional services. The ICWA does not, however,

categorically require the DHS to provide services each time a new termination

proceeding is commenced against a parent. We further reject respondent’s claim

that the lower courts applied a conclusive presumption of unfitness based on her

past conduct in determining that respondent’s continued custody was “likely to

result in serious emotional or physical damage to the child.” 25 USC 1912(f).

Finally, we conclude that this determination was supported by evidence beyond a

reasonable doubt, as required by 25 USC 1912(f).

I. Basic Facts and Procedural History

Respondent and her son, JL, are both members of the Sault Ste. Marie Tribe

of Chippewa Indians. Between 1999 and 2006, respondent gave birth to four

children: JL, SD, JD, and BP. JL is the oldest child. Respondent’s parental rights

to SD, JD, and BP were terminated in earlier proceedings that are not at issue here.

JL was born in 1999, when respondent was 16 years old and living in foster

care. DHS Child Protective Services (CPS) worker Regina Frazier began working

2
with respondent in 1998, even before respondent had children. Respondent was

then both a delinquent and a victim of abuse and neglect. Respondent displayed

abusive and neglectful behavior after JL’s birth, so he was removed from

respondent’s care in September 2000. Frazier provided wraparound services1 until

respondent moved to Sault Ste. Marie. The Sault Ste. Marie Tribe of Chippewa

Indians Tribal Court assumed jurisdiction over the case in March 2002. The tribal

court released JL from its jurisdiction in August 2002, when he was placed in a

limited guardianship with his paternal grandmother, Lois Plank. Meanwhile,

respondent gave birth to a daughter, SD, on November 24, 2001.

Anishinabek Community Family Services caseworker Penny Clark began

working with respondent in 2002, when she was 18 years old and living on a

reservation. Clark, who was respondent’s wraparound coordinator, and several

others attempted to help respondent care for SD, who was then a few months old.

Clark also worked with respondent on budgeting and helped her obtain social

security benefits. Although Clark enjoyed working with respondent, Clark

testified that respondent could be moody and impulsive and that her impulsiveness

led to trouble. Under the Family Continuity Program, Clark visited respondent in

her home at least once a week. Respondent’s home was often messy and unsafe;

glass and cigarette butts were left within SD’s reach. Clark also had concerns

1
Frazier testified that the wraparound program works with families who
receive services from multiple agencies to coordinate those services.

3
about respondent’s ability to care for herself. At times, respondent was depressed;

she failed to eat and take prenatal vitamins.

JL was returned to respondent’s care in September 2003. Her third child,

JD, was born on January 11, 2004, while Clark was still working with respondent.

When Jill Thompson, a caseworker with the Binogii Placement Agency, began

working with respondent in July 2004, three children—JL, SD, and JD—lived

with respondent and Justin DuFresne, the father of SD and JD. Respondent and

DuFresne failed to supervise the children; instead, JL, then five years old, was

supervising his younger siblings. SD wandered into the road multiple times.

Caseworkers Thompson and Clark tried to remedy this problem. Clark even

installed latches on the front door so that the children could not run out. The

condition of the home “ran the gamut from poor housekeeping to filthy.” Like

Clark, Thompson described cigarette butts on the floor and the presence of

choking hazards to young children.

Respondent could not manage her finances and never sought employment.

A “payee” managed respondent’s finances by paying her bills with the money

from respondent’s social security disability payments and then giving respondent a

$50 weekly allowance. Respondent purchased rent-to-own furniture that cost $30

or $35 a week. She could not afford diapers and other necessary items.

Despite the extensive efforts of Thompson and Clark, the children were

removed from respondent’s home in 2004. At that time, JL again became a ward

of the tribal court and was again placed with his grandmother, Lois Plank. In

4
November 2004, the trial court awarded JL’s father, Tony Plank, full physical

custody of JL and awarded respondent and Tony Plank shared legal custody. The

court also granted respondent unsupervised visitation rights. After SD and JD

were returned to respondent’s care, Thompson and Clark provided services in an

effort to keep them in her home, but they were observed in the street at night and

were again removed in August 2005.

When Clark closed respondent’s case in 2005, she had provided all the

services she could offer “without staying there 24/7.” She opined that respondent

had not made significant improvement. Clark participated in the termination trial

involving SD and JD that was initiated because respondent had failed to supervise

them. The tribal court terminated respondent’s parental rights to SD and JD on

June 30, 2006.2 Respondent gave birth to another child, BP, on July 20, 2006.3

BP was removed from respondent’s care shortly after her birth. Melissa

VanLuven, who was the child placement services supervisor for the Sault Ste.

Marie tribe and the caseworker supervisor of Thompson and Clark, participated in

2
Respondent appealed the tribal court’s termination order. The order was
vacated on January 9, 2009, by the Sault Ste. Marie Tribe of Chippewa Indians
Appellate Court. That court found that the lower court erroneously considered all
the allegations against both respondent and the children’s father, Justin DuFresne,
when deciding to terminate respondent’s parental rights, even though the two were
estranged at the time of the termination proceedings. The matter was remanded
for the lower court to “take such proofs as it deems appropriate as to the fitness of
[respondent] alone . . . and determine what further order, if any, should be entered
with regard to the parental rights of [respondent].” The parties have provided no
documentation of the tribal court’s disposition of the matter on remand.
3
Michael Plank, respondent’s current partner and Tony Plank’s brother, is
BP’s biological father.

5
the decision to petition for termination of respondent’s parental rights to BP. That

decision was based on an assessment of the tribe and the caseworkers that, despite

the provision of services, respondent’s children could not safely live in her home.

The tribal court terminated respondent’s parental rights to BP on January 8, 2007.

In spring 2007, the trial court granted respondent’s motion for parenting

time, allowing her weekly unsupervised visitation with JL. In July 2007, however,

the DHS petitioned to terminate respondent’s parental rights to JL on the basis of

respondent’s “children’s protective service history” beginning on September 12,

2000, specifically citing the termination of her parental rights to SD, JD, and BP.4

The DHS filed a supplemental petition on August 20, 2007, alleging that

proceedings to terminate Michael Plank’s parental rights to BP were pending. The

supplemental petition also alleged that Michael Plank had a history of physically

abusing and neglecting two other children. In addition, the petition provided:

4
Both the initial and supplemental termination petitions cited MCL
722.638(1)(b)(i), which provides:
(1) The department shall submit a petition for
authorization by the court under section 2(b) of chapter XIIA
of 1939 PA 288, MCL 712A.2, if 1 or more of the following
apply:
***
(b) The department determines that there is risk of
harm to the child and either of the following is true:
(i) The parent’s rights to another child were terminated
as a result of proceedings under section 2(b) of chapter XIIA
of 1939 PA 288, MCL 712A.2, or a similar law of another
state.

6
 8. Cultuarlly [sic] appropriate services were provided to
[respondent] for over six years, including Prevention, CPS, and
Wraparound Services through Mackinac County; Protective
Services, foster case services, and prevention through the [Sault Ste.
Marie] Tribe, CPS services through Chippewa County DHS and
CPS services through the Children’s Aid in Canada. [Respondent]
has also participated in the Families First Program three times,
Wraparound and Family Continuity through the [Sault Ste. Marie]
Tribe, Parenting Classes twice with [Sault Ste. Marie] Tribe, once
through [the Strong Families/Safe Children Program], and once
through the Indian Outreach Program. Although these services were
offered and somewhat complied with at times, [respondent]
continued to abuse and neglect her children, which led to her rights
being terminated.

9. According to [respondent], she receives Social Security
Disability due to having fetal alcohol syndrome. According to the
National Organization of Fetal Alcohol Syndrome, the majority of
persons with FAS have life-long difficulties with learning, attention,
memory, and problem solving.

The supplemental petition also cited the criminal histories of respondent and

Michael Plank, including respondent’s 2005 and 2006 misdemeanor convictions

for operating a motor vehicle while impaired and an aggravated assault conviction

stemming “from a 2005 bar incident,” as well as Michael Plank’s August 2000

guilty plea to felony assault charges. The petition also observed that Tony Plank

had been convicted of third-degree criminal sexual conduct and incarcerated.5

Respondent denied the allegations in the petition.

At trial, caseworkers Frazier, Clark, and Thompson described the extensive

services they and their agencies provided to respondent from 1999 to 2005. They

5
The trial court terminated Tony Plank’s parental rights to JL on May 13,
2008.

7
testified that, despite these services, respondent failed to become an adequate

parent. On the basis of her experience with respondent, Clark did not believe that

respondent could appropriately care for JL full-time. She opined that termination

of respondent’s parental rights was in JL’s best interests. Testifying as an Indian

expert under 25 USC 1912(f),6 VanLuven stated that she was satisfied that active

and reasonable efforts had been provided to prevent the termination of

respondent’s parental rights and that respondent’s custody of JL would result in

serious emotional or physical damage to him.

Respondent testified that she lived in “a cozy little log house” with Michael

Plank and that she had recently completed substance abuse counseling. She had

also voluntarily attended and completed parenting classes offered by the tribe. In

her view, she had learned from the parenting classes how to “safely raise a child in

today’s society.” She also testified that she visited JL as much as possible, at least

twice weekly, and celebrated holidays with him. She testified that Michael Plank

and JL had a good relationship and that they hunted, fished, and played together.

Respondent denied that Michael Plank had ever been violent with her or JL. She

6
25 USC 1912(f) provides:

No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported by evidence
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 emotional or physical
damage to the child.

8
acknowledged, however, that Michael Plank had been convicted of assault after

the mother of his other children accused him of being violent. Respondent offered

to do whatever was necessary to continue her relationship with JL. She was

concerned that if her parental rights were terminated she would have to “suck up

to Lois [Plank] forever in order to stay in [JL]’s life.”

On cross-examination, respondent admitted that she had not worked or

sought work in four years. She received social security benefits because she had

been diagnosed with fetal alcohol syndrome. “They” believe she had a disability

and was incapable of working. Although she acknowledged a possible learning

disability, she believed herself capable of working. Respondent acknowledged her

convictions of operating a motor vehicle while impaired and aggravated assault.

Eight-year-old JL testified that he liked spending time with respondent and

that it was “just the usual,” explaining that it was “kind of like when I’m with my

Grandma, except being with a different person.” He loved and missed respondent

and said he would like to spend more time with her, but also said that it was

difficult to answer whether he would like to live with her because he liked living

with his grandmother. He also liked spending time with Michael Plank and had no

fear of him.

Addictions therapist Gary Matheny had counseled respondent weekly for

about eight months. Respondent was now “clean and sober.” He and respondent

had discussed parenting skills, including the need for proper structure in the

household and the need to avoid drinking, drugs, and fighting. Respondent’s

9
inability to get along with her “significant others” had caused many problems.

Respondent had been raised in an alcoholic family, had been taken from home as a

child, and had early unhealthy relationships as well as an early pregnancy.

Matheny believed, however, that she had “[v]astly” overcome those background

influences. He saw no symptoms of fetal alcohol syndrome in respondent, but

believed she possibly suffered symptoms of “[f]etal [a]lcohol [a]ffects [sic].”7

The trial court terminated respondent’s parental rights to JL. It found that

the DHS had established grounds for termination under MCL 712A.19b(3)(i)8 by

7
According to the National Organization on Fetal Alcohol Syndrome, fetal
alcohol syndrome (FAS) “is a set of physical and mental birth defects that can
result when a woman drinks alcohol during her pregnancy.” It “is characterized
by brain damage, facial deformities, and growth deficits. Heart, liver, and kidney
defects also are common, as well as vision and hearing problems. Individuals with
FAS have difficulties with learning, attention, memory, and problem solving.”
“Fetal Alcohol Spectrum Disorders (FASD) is an umbrella term describing the
range of effects that can occur in an individual whose mother drank alcohol during
pregnancy. These effects may include physical, mental, behavioral, and/or
learning disabilities with possible lifelong implications.” FASD encompasses the
term “fetal alcohol effects,” which “has been popularly used to describe alcohol-
exposed individuals whose condition does not meet the full criteria for an FAS
diagnosis.” National Organization on Fetal Alcohol Syndrome, FAQs
(accessed June 30, 2009).
8
MCL 712A.19b(3)(i) provides:
The court may terminate a parent’s parental rights to a child if
the court finds, by clear and convincing evidence, 1 or more of the
following:
***
(i) Parental rights to 1 or more siblings of the child have been
terminated due to serious and chronic neglect or physical or sexual
abuse, and prior attempts to rehabilitate the parents have been
unsuccessful.

10
clear and convincing evidence by presenting opinions and orders of the Sault Ste.

Marie Tribe of Chippewa Indians Tribal Court terminating respondent’s parental

rights to JL’s siblings. The court noted that termination in those cases was based

on sections of the tribal code “virtually identical” to MCL 712A.19b(3)(c)(i) and

(ii) and (g).9 It further noted that those opinions “discussed the services that had

been provided and the apparent lack of any benefit gained by Respondent from

those services.” Next, the trial court found insufficient evidence to conclude that

9
MCL 712A.19(3) provides, in relevant part:
The court may terminate a parent’s parental rights to a child if
the court finds, by clear and convincing evidence, 1 or more of the
following:
***
(c) The parent was a respondent in a proceeding brought
under this chapter, 182 or more days have elapsed since the issuance
of an initial dispositional order, and the court, by clear and
convincing evidence, finds either of the following:
(i) The conditions that led to the adjudication continue to
exist and there is no reasonable likelihood that the conditions will be
rectified within a reasonable time considering the child’s age.
(ii) Other conditions exist that cause the child to come within
the court’s jurisdiction, the parent has received recommendations to
rectify those conditions, the conditions have not been rectified by the
parent after the parent has received notice and a hearing and has
been given a reasonable opportunity to rectify the conditions, and
there is no reasonable likelihood that the conditions will be rectified
within a reasonable time considering the child’s age.
***
(g) The parent, without regard to intent, fails to provide
proper care or custody for the child and there is no reasonable
expectation that the parent will be able to provide proper care and
custody within a reasonable time considering the child’s age.

11
termination was not in the best interests of the child. MCR 3.977(F). Finally, the

court concluded that the requirements of MCR 3.980(D)10 had been met. The

court summarized its reasoning as follows:

This finding is based on: 1) the previous services and lack of
benefit from same which raises the likelihood of some form of
serious physical injury; 2) the length of time the child has been
residing outside the Respondent’s home and the emotional damage
that would result in requiring a reunification plan; 3) the testimony
presented that Respondent’s lack of benefit was not due to
Respondent’s lack of maturity, but rather lack of ability; and 4)
Respondent’s most recent conduct of operating a motor vehicle
while impaired due to alcohol.[11]

Respondent appealed, and the Court of Appeals affirmed. A majority

concluded that the trial court did not clearly err when it determined that (1) the

statutory ground for termination in MCL 712A.19b(3)(i) had been established by

clear and convincing evidence, (2) termination was not clearly contrary to JL’s

best interests, (3) efforts had been made to provide services designed to prevent

the breakup of respondent’s family, and (4) the DHS had proved beyond a

10
MCR 3.980(D) contains language similar to that of 25 USC 1912(f) and
provides:
Termination of Parental Rights. In addition to the required
findings under MCR 3.977, the parental rights of a parent of an
Indian child must not be terminated unless there is also evidence
beyond a reasonable doubt, including testimony of qualified expert
witnesses, 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.
11
The trial court did not specifically address the ICWA’s “active efforts”
requirement, 25 USC 1912(d).

12
reasonable doubt that respondent’s continued custody was likely to result in

serious emotional or physical damage to JL, 25 USC 1912(f). The appeals panel

unanimously agreed that the trial court properly denied respondent’s request for a

jury trial. Lee, supra, slip op at 5-10.

Judge Gleicher dissented from the majority’s conclusions that the DHS had

satisfied the “active efforts” requirement of the ICWA, 25 USC 1912(d), and that

the record established beyond a reasonable doubt that respondent’s continued

custody was “likely to result in serious emotional or physical damage to the child,”

25 USC 1912(f). Lee, supra, slip op at 4-11 (Gleicher, J., concurring in part and

dissenting in part.)

We granted respondent’s application for leave to appeal to consider the

proper interpretation of 25 USC 1912(d) and (f) of the ICWA.12

II. The Indian Child Welfare Act

Congress enacted the ICWA in 1978 in response to

rising concern in the mid-1970’s over the consequences to Indian
children, Indian families, and Indian tribes of abusive child welfare
practices that resulted in the separation of large numbers of Indian
12
We directed the parties to address
(1) whether the term “active efforts” in 25 USC 1912(d) requires a
showing that there have been recent rehabilitative efforts designed to
prevent the breakup of that particular Indian family; and (2) whether
the “beyond a reasonable doubt” standard of 25 USC 1912(f)
requires contemporaneous evidence that the continued custody of the
Indian child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child before parental
rights may be terminated. [In re Lee, 482 Mich 1116, 1116-1117
(2008) (emphasis omitted).]

13
 children from their families and tribes through adoption or foster
care placement, usually in non-Indian homes. [Mississippi Band of
Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct 1597; 104 L
Ed 2d 29 (1989).]

“Recognizing the special relationship between the United States and the Indian

tribes and their members and the responsibility to Indian People,” Congress found:

(3) that there is no resource that is more vital to the continued
existence and integrity of Indian tribes than their children and that
the United States has a direct interest, as trustee, in protecting Indian
children who are members of or are eligible for membership in an
Indian tribe;

(4) that 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 and that an alarmingly
high percentage of such children are placed in non-Indian foster and
adoptive homes and institutions; and

(5) that the States, exercising their recognized jurisdiction
over Indian child custody proceedings through administrative and
judicial bodies, have often failed to recognize the essential tribal
relations of Indian people and the cultural and social standards
prevailing in Indian communities and families. [25 USC 1901.]

Accordingly, it enacted the ICWA to establish “minimum Federal standards for

the removal of Indian children from their families . . . .” 25 USC 1902.

The ICWA sets forth requirements with which states must comply when an

“Indian child,” as defined in the act, 25 USC 1903(4), is involved in a “child

custody proceeding,” which includes a proceeding to terminate parental rights, 25

USC 1903(1)(ii). If state or federal law “provides a higher standard of protection

to the rights of the parent or Indian custodian of an Indian child” than the ICWA,

the court must apply that higher state or federal standard. 25 USC 1921.

14
 25 USC 1912 provides, in part:

(d) Any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child under State law
shall satisfy the court that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved
unsuccessful.

***
(f) No termination of parental rights may be ordered in such
proceeding in the absence of a determination, supported by evidence
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 emotional or physical
damage to the child.

III. The Adoption and Safe Families Act and MCL 712A.19b(3)(i)

The Adoption and Safe Families Act of 1997 (ASFA), PL 105-89, 111 Stat

2115, requires that states undertake “reasonable efforts” to “preserve and reunify

families” as a condition of federal funding. 42 USC 671(a)(15)(B). The ASFA

excuses proof of reasonable efforts to reunify when “the parental rights of the

parent to a sibling have been terminated involuntarily[.]” 42 USC

671(a)(15)(D)(iii). MCL 712A.19a(2)(c) codifies both the “reasonable efforts”

requirement and the exception to that requirement when a prior termination has

taken place. Additionally, MCL 712A.19b(3)(i), which was the state law basis for

the termination of respondent’s parental rights here, makes involuntary

termination of parental rights to a child’s sibling a ground for termination.

Because the ICWA establishes “minimum Federal standards for the

removal of Indian children from their families,” 25 USC 1902, and nothing in the

15
ASFA indicates a congressional intent to supersede the ICWA, neither the ASFA

nor its state law analogues relieve the DHS from the ICWA’s “active efforts”

requirement, 25 USC 1912(d), or from the burden of establishing beyond a

reasonable doubt “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,”

25 USC 1912(f).

IV. Standard of Review

This Court reviews issues involving the application and interpretation of the

ICWA de novo as questions of law. In re Fried, 266 Mich App 535, 538; 702

NW2d 192 (2005). Under 25 USC 1912(f), “[n]o termination of parental rights

may be ordered . . . in the absence of a determination, supported by evidence

beyond a reasonable doubt, . . . 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.” Because Congress did not provide a heightened standard of

proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the default standard of

proof for termination of parental rights cases, clear and convincing evidence,

applies to the determination whether the DHS provided “active efforts . . . to

prevent the breakup of the Indian family” under 25 USC 1912(d). In re Roe, 281

Mich App 88, 100-101; 764 NW2d 789 (2008).13

13
Although our research disclosed no federal authority on this point,
several of our sister states have employed similar reasoning. See, e.g., In re
Walter W, 274 Neb 859, 864-865; 744 NW2d 55 (2008); In re MS, 624 NW2d 678

16
 V. “Active Efforts”

The ICWA requires the petitioner in a termination case to “satisfy the court

that active efforts have been made to prevent the breakup of the Indian

family . . . .” 25 USC 1912(d). Respondent argues that because the DHS failed to

provide current active efforts, termination of her parental rights to JL violated the

ICWA. We disagree.

A. Court of Appeals

Respondent urges us to adopt Judge Gleicher’s dissenting view in Roe14 and Lee

that both the plain and ordinary meaning of “active” and the purpose and object of

the ICWA point to a temporal requirement: “In my view, Congress’s use of the

term “active efforts” signals its intent that petitioner clearly and convincingly

demonstrate the provision of current rehabilitative efforts designed to reunite an

Indian parent with the particular child that is the target of the termination

proceedings.” Lee, supra, slip op at 6 (Gleicher, J., concurring in part and

dissenting in part) (emphasis in original). Judge Gleicher concluded that, in light

of the purposes of the ICWA and its requirement that the “state prove beyond a

(ND, 2001); In re Michael G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642
(1998).
14
In Roe, the same Court of Appeals panel considered the proper
interpretation of the “active efforts” requirement of 25 USC 1912(d). There, as
here, Judges Markey and Whitbeck disagreed with Judge Gleicher about the
meaning of “active efforts.” In Roe, however, the Court of Appeals judgment
vacated the trial court’s order and remanded the case for trial court findings
regarding the “active efforts” requirement. Roe, supra at 91.

17
reasonable doubt that ‘the continued custody’ of the Indian child by the parent ‘is

likely to result in serious emotional or physical damage to the child,’” “active

efforts” includes a temporal component. Id., quoting 25 USC 1912(f) (emphasis

omitted).

The Court of Appeals majority in this case relied on its more extensive

opinion in Roe. There it acknowledged that “‘active’ may be ‘characterized by

current activity, participation or use,’” Roe, supra at 102, quoting Random House

Webster’s College Dictionary (1997), but agreed with “the majority of

jurisdictions that have addressed this issue” that concurrent “active efforts” need

not necessarily be shown in each proceeding, Roe, supra at 102. The majority

concluded that, “[c]onstrued in context, [25 USC 1912(d)] only requires ‘that

timely and affirmative steps be taken . . . to avoid the breakup of Indian families

whenever possible by providing services designed to remedy the problems which

might lead to the severance of the parent-child relationship.’” Id. at 106 (citation

omitted). Services provided in connection with a prior proceeding, or “‘formal or

informal efforts to remedy a parent’s deficiencies before dependency proceedings

begin’” may meet the “active efforts” requirement. Id., quoting In re KD, 155 P3d

634, 637 (Colo App, 2007). The Court of Appeals majority thus “decline[d] to

employ a definition of ‘active’ that stresses a temporal requirement.” Roe, supra

at 106. Instead, it defined “active efforts” as the opposite of “passive efforts.” Id.

at 106-107. Finally, it “note[d] that the majority of jurisdictions interpret ‘active

efforts’ as imposing a higher burden than various states’ ‘reasonable efforts’

18
requirement, and that numerous courts have required that the service provider

‘provide culturally relevant remedial and rehabilitative services to prevent the

breakup of the family.’” Id. at 108 (citations omitted).

B. Analysis

We agree with the Roe majority that the crux of the “active efforts”

requirement is undertaking affirmative, as opposed to passive, efforts:

“Passive efforts are where a plan is drawn up and the client
must develop his or her own resources toward bringing it to fruition.
Active efforts, the intent of the drafters of the Act, is where the state
caseworker takes the client through the steps of the plan rather than
requiring that the plan be performed on its own. For instance, rather
than requiring that a client find a job, acquire new housing, and
terminate a relationship with what is perceived to be a boyfriend
who is a bad influence, the Indian Child Welfare Act would require
that the caseworker help the client develop job and parenting skills
necessary to retain custody of her child.” [Id. at 107, quoting AA v
Alaska Dep’t of Family & Youth Services, 982 P2d 256, 261 (Alas,
1999).]

We also agree that “active efforts” require more than the “reasonable efforts”

required under state law. Roe, supra at 108, citing In re Nicole B, 175 Md App

450, 471; 927 A2d 1194 (2007), Winston J v Alaska Dep’t of Health & Social

Services, 134 P3d 343, 347 n 18 (Alas, 2006), MW v Alaska Dep’t of Health &

Social Services, 20 P3d 1141, 1146 n 18 (Alas, 2001), In re Walter W, 274 Neb

859, 865; 744 NW2d 55 (2008), and In re JS, 177 P3d 590, 593 (Okla Civ App,

2008).

The version of the DHS’s Childrens Foster Care Manual in effect at the

time of the termination trial provides an example of this distinction:

19
 ICWA requires that anytime the DHS is involved with Indian
children and their families, culturally Active Efforts must be
provided. “Reasonable Efforts” as defined in other parts of current
DHS policy are not sufficient.

***

Active Efforts require that the caseworker take a more pro-
active approach with clients and actively support the client in
complying with the service plan rather than requiring the service
plan be performed by the client alone. Following are examples of
appropriate Active Efforts that could serve as a starting point of
reference; in collaboration with the child’s Tribe:

a. Taking clients to initial appointments and assisting with
the intake process OR

b. Transporting client, arranging transportation and child
care appointments OR

c. If the client is isolated from other family members who
may be in a position to provide positive support, the worker is to
provide help to the families to begin conversations with those
family members.

d. Assisting with completing applications.

e. Providing phone availability.

* **

DHS is to make culturally active and appropriate efforts to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family before any consideration
for removal can be made. DHS policy requires Active Efforts prior
to court involvement. Active Efforts must be documented to the
court and Tribe. [Childrens Foster Care Manual, Indian Child
Welfare (June 1, 2007), pp 5-6.][15]

15
Although included in respondent’s appendix, this version of the manual
is no longer in effect and is not available online. The parties also did not provide
the version of the manual in effect before June 1, 2007. The current version of the

20
In addition, the Bureau of Indian Affairs’ guidelines explain that

[t]hese [active] efforts shall take into account the prevailing social
and cultural conditions and way of life of the Indian child’s tribe.

DHS’s Native American Affairs manual, Native American Affairs Glossary
(October 1, 2008), pp 1-2, available at
(accessed June 30,
2009), provides a similar explanation:

By definition, active efforts are more intensive than
“reasonable efforts” and require the worker to thoroughly assist the
family in accessing and participating in necessary services that are
culturally appropriate and remedial and rehabilitative in nature.

Example: Reasonable efforts might be the worker making a
referral for services and attempts to engage the family in services,
but active efforts might be the worker consulting with the tribe
regarding case planning, making a referral to services, attempts to
engage the family in services and providing transportation to the
services.

***

Examples of active efforts include (but are not limited to):

•Making appointments for the client with particular providers.
•Providing transportation to and from such appointments.
•Closely monitoring client(s)’ participation in such services.
•Continuing with ongoing efforts to secure a placement with

the ICWA Placement Preferences [25 USC 1912(d)].

See also the DHS’s Childrens Protective Services Manual, Supportive
Services, CFP 714-2 (May 1, 2009), p 1, available at
(accessed June 30, 2009)
(“Reasonable efforts to prevent placement must be attempted in all situations in
which the child is not at imminent risk of harm without removal from home.
Note: The Indian Child Welfare Act requires active efforts be provided to
American Indian children and their families. Reasonable efforts are not
sufficient.”).

21
 They shall also involve and use the available resources of the
extended family, the tribe, Indian social service agencies and
individual Indian care givers. [Bureau of Indian Affairs, Guidelines
for State Courts; Indian Child Custody Proceedings, D.2, 44 Fed
Reg 67584, 67592 (November 26, 1979), also available at
(accessed June 30, 2009).][16]

In this case, however, the fundamental disagreement is not about the nature

of the required services, but about the timing of those services. Indeed, respondent

acknowledges that the DHS and the tribe provided active efforts in the past, but

argues that 25 USC 1912(d) requires current active efforts, which the DHS failed

to provide because it did not offer services in connection with the termination of

her parental rights to JL. We decline to read the word “current” into 25 USC

1912(d). This statutory language does not impose a strict temporal component for

the “active efforts” requirement.

This is not to say that active efforts provided in the distant past are

sufficient. Although we decline to establish an arbitrary threshold beyond which

services will not satisfy the requirements of 25 USC 1912, we direct trial courts to

carefully assess the timing of the services provided to the parent. Services

16
The most recent version of the DHS’s Native American Affairs Manual,
Indian Child Welfare Case Management, NAA 205 (March 1, 2009), p 1, available
at (accessed June 30,
2009), states that the “worker must collaborate with a child’s tribe immediately”
and that the child’s tribe will define active efforts for the department.” Although
this version of the Native American Affairs Manual was not yet in effect during
the proceedings in this case, leaving it to the child’s tribe to define “active efforts”
is consistent with the ICWA’s purpose of preserving Indian families and
preventing unwarranted removal and termination. See 25 USC 1901.

22
provided too long ago to be relevant to a parent’s current circumstances do not

establish by clear and convincing evidence that active efforts have been made, as

required by 25 USC 1912(d), and raise a reasonable doubt under 25 USC 1912(f)

about whether continued custody is “likely to result in serious emotional or

physical damage to the child.”17 The timing of the services must be judged by

reference to the grounds for seeking termination and their relevance to the parent’s

current situation.

Similarly, we decline to hold that active efforts must always have been

provided in relation to the child who is the subject of the current termination

proceeding. Again, the question is whether the efforts made and the services

provided in connection with the parent’s other children are relevant to the parent’s

current situation and abilities so that they permit a current assessment of parental

fitness as it pertains to the child who is the subject of the current proceeding. The

17
For example, in CJ v Alaska Dep’t of Health & Social Services, 18 P3d
1214 (Alas, 2001), the father was unable, and perhaps unwilling, to care for his
children at the time they were removed from their mother in 1998. He maintained
only sporadic contact with them while they were in foster care. Id. at 1216. By
the time termination was sought in 1999, however, the father’s circumstances had
changed. He presented unrebutted evidence that he wanted to care for his children
and was able to do so. He testified that he had quit a job that required him to
travel, was relocating, and was caring for his older child. The social services
department presented virtually no evidence regarding the father’s present
circumstances. Id. at 1219. The Alaska Supreme Court concluded:
ICWA requires that a court be able to determine beyond a
reasonable doubt that placement of the children with the parent is
likely to result in serious damage. The evidence in this case leaves
so much uncertainty about [the father’s] present circumstances that
such a finding cannot be sustained. [Id. (citation omitted).]

23
evidence must satisfy the court “beyond a reasonable doubt” that the parent’s

continued custody of that child “is likely to result in serious emotional or physical

damage to the child,” as required by 25 USC 1912(f).

Some courts, including the Court of Appeals in Roe, have adopted a

“futility test” to explain that the “active efforts” requirement may be met in certain

cases without the provision of additional services. In KD, for example, the child

had been removed from his parents in 2001 and 2004. Both times, the parents

completed their treatment plans, and the child was returned to them. The

termination petition at issue was filed after the respondent father was arrested in

2005 and the mother was incarcerated. KD, supra at 636. In affirming the trial

court’s decision to terminate the father’s parental rights, the appellate court

rejected his argument that the active efforts must be part of a treatment plan

offered as part of the current “dependency proceedings.” Id. at 637. It held that

the “active efforts” requirement may be met by “formal or informal efforts to

remedy a parent’s deficiencies before the dependency proceedings begin”:

In other words, the court may terminate parental rights
without offering additional services when a social services
department has expended substantial, but unsuccessful, efforts over
several years to prevent the breakup of the family, and there is no
reason to believe additional treatment would prevent the termination
of parental rights. [Id.]

The court noted that extensive services had been provided to the father during the

two prior dependency cases and concluded that the record supported the trial

court’s findings that it would have been futile to offer additional services. Id.

24
Citing KD and other sister-state authority, the Court of Appeals majority in Roe

adopted a futility test. Roe, supra at 103-106.

We decline to adopt a futility test. In KD, the court concluded that

additional services were not required because it saw no indication that additional

services would prevent the need for termination. The ICWA obviously does not

require the provision of endless active efforts, so there comes a time when the

DHS or the tribe may justifiably pursue termination without providing additional

services. A futility test does not capture this concept. In addition, we share

dissenting Judge Gleicher’s concern that, under a such a test, “the circuit court

may altogether avoid applying [25 USC 1912(d)] by simply deciding that

additional services would be ‘futile.’” Roe, supra at 109 (Gleicher, J., concurring

in part and dissenting in part).18

We further note that the DHS’s apparent policy of providing no services

when a petition for termination of parental rights is based on a prior termination

will not withstand the heightened standard of the ICWA.19 When the proceedings

18
We reject Justice Weaver’s contention that we need not decide whether
to adopt a futility test. In this case, we address respondent’s argument that the
Court of Appeals erred in interpreting and applying the ICWA. In concluding that
the “active efforts” requirement had been met, the Court of Appeals majority
stated: “Because of the intractable nature of [respondent’s] inability to learn
appropriate parenting techniques, any additional efforts to rehabilitate
[respondent] would have been largely futile.” Lee, supra, slip op at 9.
19
Frazier testified that she did not provide services to respondent in
connection with this latest referral pertaining to JL because the referral was based
on the termination of respondent’s parental rights to her other three children. She
testified that, under those circumstances, the state does not provide services.

25
involve an “Indian child” within the meaning of the ICWA, the DHS or the tribe

must, even if services have been provided to the parent in the past, conduct a

thorough and contemporaneous review of those services and the parent’s progress

or lack thereof in response to those services. Only if active efforts have been

provided to prevent the breakup of the Indian family, and it does not appear that

the provision of additional services is likely to prevent the need for termination,

may the DHS or the tribe pursue termination without providing additional

services.

C. Application

Although the trial court did not use the words “active efforts,” it took into

account the services that were provided to respondent. It noted, for example, that

respondent had attended parenting classes and that “one of the workers . . . even

provided latches for the doors to prevent the children from getting out into the

street and playing unsupervised.” The court also stated that the caseworkers’

testimony concerning respondent’s inability to benefit from services “was

supported by specific examples of Respondent being unable to apply principles

she was taught during those services.” The evidence clearly and convincingly

establishes that the DHS and the tribe made active efforts to provide services

designed to prevent the breakup of respondent’s family. Indeed, the evidence

shows that services designed to preserve respondent’s family were provided over a

six-year period from JL’s birth in 1999 through 2005, before the termination of her

parental rights to SD and JD. Caseworkers Frazier, Clark, and Thompson and

26
caseworker supervisor VanLuven testified in similar fashion about respondent’s

failure to improve her parenting skills.

Respondent received services from several different programs, many of

which were tailored to her young age and particular needs. Various caseworkers

who spent time in her home tried to teach her to become an adequate parent.

Frazier testified that the wraparound program normally provides services for 6 to

12 months. Respondent, however, received wraparound services for three years,

from 1999 to 2002, when respondent moved to a reservation and the tribe took

jurisdiction. Frazier testified that “different methods” were used “in order to try to

teach [respondent] . . . because of her age and . . . her development.” Frazier said

that “there was [sic] a lot of different methods used to . . . adjust services in order

to make them fit for her. But they just still were not successful.” Frazier was at

respondent’s house every week to teach her parenting skills, but respondent did

not seem to learn. In one incident, respondent screamed and cried because JL,

who was sitting in a high chair, would not eat the solid food respondent had put in

front of him. Respondent failed to understand that JL was too young to drink

homogenized milk, let alone eat solid food. Frazier was at respondent’s home

every week teaching her “those kinds of things.” “And then we’d come back the

next week and the house would be filthy. . . . It just never, it never seemed to

take.”

Clark began working with respondent in 2002. Respondent received

services under the wraparound program in an attempt to prevent the removal of

27
SD, who was a few months old at the time, from respondent’s home. After reports

that respondent’s children were found in the street, Clark went to respondent’s

house and put latches on the door so the children could not wander away. Clark

also worked with respondent on budgeting, helped her apply for social security

benefits, and arranged for someone to manage her finances once she obtained

those benefits. When Clark closed respondent’s case in 2005, she felt that she had

provided all the services she could “without staying there 24/7,” but respondent

made no significant improvement. Clark testified that she provided every service

she could think of and did not know what else could have been done.

Clark believed respondent’s problems with parenting and her failure to

benefit from services stemmed from a lack of ability, rather than from a lack of

maturity. Clark testified that respondent loved her children very much and that, if

it had been within her ability, she would have put herself in a position to care for

her children, but her impulsiveness caused difficulty. Although Clark

acknowledged that she had not provided services to respondent in connection with

the case involving JL, she said that she had seen and worked with respondent

enough to understand her parenting ability. On the basis of her experience, she did

not believe that respondent could effectively care for JL.

Thompson similarly testified that her job was to offer services so that

respondent could show that she could be a good parent, but respondent had failed

to do so. Despite the services and support respondent received, Thompson

testified that respondent’s parenting and personal management skills did not

28
improve significantly while she worked with respondent. Given her past

experiences with respondent, Thompson did not believe that respondent could

appropriately care for a child.

Testifying as an Indian expert under 25 USC 1912(f), VanLuven was

satisfied that active and reasonable efforts had been provided to prevent the

termination of respondent’s parental rights and that respondent’s custody of JL

would result in serious emotional or physical damage to JL. She testified that she

believed the tribe had offered respondent every possible service. While she had

never met respondent or been in her home, respondent’s past behavior, including

numerous instances of placing her children in unsafe situations and failing to

supervise them appropriately, led to VanLuven’s assessment that respondent was a

“minimally adequate parent,” but not on a consistent basis.

Although they were provided in connection with prior termination

proceedings, the services offered to respondent were extensive, relatively recent,

and tailored to meet her specific needs. Over several years, caseworkers came to

respondent’s home. They tried to teach her parenting and financial skills, without

success. The evidence demonstrates that these efforts are relevant to the

respondent’s current situation and abilities. The caseworkers unsuccessfully

attempted to address both respondent’s poor decision-making and the unsafe

conditions her decisions created. As further explained below, respondent’s own

testimony showed that she continued to make the same poor choices that she made

29
when she was receiving services. The ICWA’s “active efforts” requirement has

been met.

VI. The “Beyond a Reasonable Doubt” Standard of 25 USC 1912(f)

Relying on Judge Gleicher’s dissent, respondent next argues that the Court

of Appeals majority and the trial court improperly applied a presumption of

respondent’s unfitness based on her past conduct. She argues that conclusions

based on such a presumption fail to meet the heightened “beyond a reasonable

doubt” standard of 25 USC 1912(f). We agree with Judge Gleicher that

termination based on “a presumption of unfitness predicated solely on past

conduct” would be inconsistent with the “beyond a reasonable doubt” standard of

the ICWA. Lee, supra, slip op at 8-9 (Gleicher, J., concurring in part and

dissenting in part). We also agree that invocation of the doctrine of anticipatory

neglect to terminate parental rights solely on the basis of past behavior would be

inconsistent with that standard.20 Here, however, the evidence concerning

respondent’s past conduct established that she was an unfit parent in the past, and

20
Judge Gleicher took issue with the Court of Appeals majority’s
invocation of “the ‘well-established doctrine of anticipatory neglect’” in affirming
the trial court’s decision to terminate respondent’s parental rights. Lee, supra, slip
op at 9 (Gleicher, J., concurring in part and dissenting in part). The Court of
Appeals majority stated that, under the doctrine, “how a parent treats one child is
probative, though not determinative, of how that parent will treat another, and past
behavior is a strong indicator of future performance,” id. at 9 (majority opinion)
(citation omitted), but Judge Gleicher believed that “respondent’s past behavior
did qualify as determinative,” id. at 9 (Gleicher, J., concurring in part and
dissenting in part) (emphasis omitted).

30
the current evidence revealed that she continued to make choices that

demonstrated a lack of maturity and ability to care for a child.

Respondent admitted that she had been twice arrested and convicted of

operating a motor vehicle while impaired, once in 2005 and again in 2006. She

had also been convicted of aggravated assault in connection with her involvement

in a bar fight in 2005. Matheny testified that respondent had been sober since he

began working with her, and he considered his counseling with her a success. He

also testified that respondent’s problem was not habitual drunkenness, but

drinking bouts “a couple, three times a year.” Matheny treated her only one hour

weekly for eight months. He had never met JL, nor had he been in respondent’s

home. Matheny testified that—under the limited circumstances described by

respondent’s counsel—at the home of JL’s grandmother, in a public place, for a

short number of hours, or for one day, or for an afternoon a week, respondent did

not pose a risk of harm to JL. Nothing in the testimony of respondent or Matheny

suggested that the evidence of unfitness—on which the caseworkers and Indian

expert VanLuven based their opinion that respondent’s custody of JL would result

in serious emotional or physical damage to JL—was outdated or no longer

relevant.

Indeed, respondent’s own testimony established that she continued to make

poor choices. She supported the caseworkers’ assessment that she was unfit to

parent JL. Respondent acknowledged that her only income was social security

disability benefits because she had been diagnosed with fetal alcohol syndrome.

31
She did not believe she suffered from that disorder. She also believed that she was

able to work, even though she had not worked or sought work in about four years.

She lived with and depended financially on Michael Plank. Respondent

acknowledged that allegations of Michael Plank’s violence against his former

partner resulted in an assault conviction. She also admitted that she left tribal

housing because of an impending eviction for alleged marijuana use in her home.

Michael Plank had admitted smoking marijuana in connection with that allegation.

Moreover, the DHS and the tribe explored alternatives to termination.21

Thompson testified that the agency attempted to place JL in a guardianship or

long-term care with a relative, Lois Plank. The tribal court released JL from its

jurisdiction in 2002 upon agreement that JL’s father, Tony Plank, would be

granted full custody. Tony Plank was subsequently incarcerated. Thompson

testified that she was afraid to make a similar mistake in the future by placing JL

with Lois Plank and putting respondent in a position to become the child’s sole

and legal custodian. Thompson also testified that an earlier guardianship

established with the paternal grandfather of SD and JD was terminated after only

two months at the guardian’s request. The guardian had allowed respondent and

Justin DuFresne visitation, but they did not follow the rules. Respondent took the

children to Indiana without permission, for example. After the guardianship was
21
During the parties’ arguments, JL’s guardian ad litem argued against
termination of respondent’s parental rights but did not advocate that respondent
have full-time physical custody. Instead, he encouraged the court to “think outside
the box” and consider alternatives such as long-term placements with relatives.

32
terminated, the tribe petitioned to terminate respondent’s parental rights to SD and

JD. Thompson explained, “We had just gone into . . . another case where the

children were out in the road a year later, so conditions hadn’t changed. So it was

time for termination if there was no other way.”

In sum, the caseworkers’ testimony established beyond a reasonable doubt

that respondent failed to make progress despite the extensive services provided to

her in the recent past. She continued to pose a risk of harm to her children.

Respondent’s testimony did not suggest that she had gained the capacity to take on

the responsibilities of a full-time parent. On the contrary, her testimony indicated

that she continued to make poor choices that did not suggest that she had the

ability to provide a safe and stable home for a child. And although Matheny’s

testimony about respondent was positive, he had never met JL or been in

respondent’s home. Eight months of substance abuse counseling, even if

beneficial, had not rendered respondent an adequate parent. Finally, the DHS

demonstrated that respondent’s continued legal custody of JL posed a risk, even if

she were not the full-time physical custodian, because it left open the possibility

that respondent might seek full-time custody. The lower courts did not err by

concluding that the evidence established beyond a reasonable doubt that

respondent’s continued custody of JL was likely to result in serious emotional or

physical damage to him. Respondent’s continued custody would further subject

JL to the consequences of respondent’s poor choices, including her decision to live

33
with and financially depend on a man who had been convicted of assault, and

would put JL at risk of abuse and neglect.22

VII. Conclusion

We conclude that the evidence demonstrated beyond a reasonable doubt

that respondent’s continued custody of JL would be “likely to result in serious

emotional or physical damage to the child.” 25 USC 1912(f). We also conclude

that the extensive services provided to respondent before the DHS filed this

22
We cannot accept Justice Cavanagh’s suggestion that our analysis is
inconsistent with this Court’s decision in In re Rood, 483 Mich 73; 763 NW2d 587
(2009). In Rood, we affirmed the Court of Appeals decision reversing the trial
court’s termination of parental rights and directing the trial court to afford the
respondent an opportunity to participate in the proceedings. We were skeptical
about the trial court’s determination that there was a “reasonable likelihood, based
on the conduct or capacity of the child’s parent, that the child will be harmed if he
or she is returned to the home of the parent.” MCL 712A.19b(3)(j). In light of the
testimony of the respondent and his girlfriend that the respondent “successfully
cared for a young child . . . on a daily basis,” we concluded that the state’s failure
to assess the respondent’s household as an appropriate placement for the child
“deprived the court of objective information on a disputed issue crucial to the
outcome.” Id. at 117.
In contrast to Rood, in which the state did not even consider placing the
child with the respondent, the caseworkers here provided extensive services to
respondent over several years in an effort to prevent removal and termination.
And in Rood, the evidence suggested that the respondent had successfully cared
for a child on a daily basis, while the evidence in this case showed that respondent
persisted in making the same poor choices that have historically prevented her
from being a safe and adequate parent on a consistent basis.
We also reject Justice Cavanagh’s suggestion that consideration of
guideline D.3(c) of the Bureau of Indian Affairs guidelines, 44 Fed Reg 67584,
67593 (November 26, 1979), would yield the conclusion that the conditions that
existed in respondent’s home in the past are not “sufficiently ‘serious’ to satisfy 25
USC 1912(f).” Post at 9 n 9. Here, the evidence did not merely establish
“‘poverty, crowded or inadequate housing, alcohol abuse, or non-conforming
social behavior,’” see post at 9 n 9, but identified specific harms to respondent’s
children, including respondent’s failure to appropriately supervise them.

34
termination petition satisfied the “active efforts” requirement of the ICWA. 25

USC 1912(d). Accordingly, we affirm the judgment of the Court of Appeals

upholding the trial court’s order terminating respondent’s parental rights.

Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway

35
 STATE OF MICHIGAN

SUPREME COURT

In re JL, Minor.
____________________________________

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Appellee,

v No. 137653

CHERYL LYNN LEE,

Respondent-Appellant,

and

SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS,

Intervening Respondent-
Appellee.

WEAVER, J. (concurring).

I concur in the majority opinion except for its discussion in part V(B)

concerning the adoption of a “futility test.” I do not believe it is necessary for the

majority to decide whether this Court should adopt a “futility test” in this case,

given that such a determination is not necessary for resolving the issues in front of

us at this time.

Elizabeth A. Weaver
 STATE OF MICHIGAN

SUPREME COURT

In re JL, Minor.
____________________________________

DEPARTMENT OF HUMAN SERVICES,

Petitioner-Appellee,

v No. 137653

CHERYL LYNN LEE,

Respondent-Appellant,

and

SAULT STE. MARIE TRIBE OF
CHIPPEWA INDIANS,

Intervening Respondent-
Appellee.

CAVANAGH, J. (concurring in part and dissenting in part).

I concur in full with parts I through IV and parts V(A) and (B) of the

majority opinion. I write separately to further clarify my view regarding the

proper interpretation of 25 USC 1912(d) and to dissent from the majority’s

application of that statute in this case in part V(C). I further dissent from the

majority’s application of 25 USC 1912(f) in part VI. I would reverse the judgment

of the Court of Appeals, vacate the order terminating respondent’s parental rights

to JL, and remand this case to the trial court for further proceedings.
 I. “ACTIVE EFFORTS” AND 25 USC 1912(d)

Under 25 USC 1912(d), the party seeking to terminate parental rights must

satisfy the court, by clear and convincing evidence, that “active efforts have been

made to provide remedial services and rehabilitative programs designed to prevent

the breakup of the Indian family and that these efforts have proved unsuccessful.”

This Court asked the parties to address whether, in order to satisfy the statute,

“active efforts” must be concurrent with the instant proceeding and whether the

efforts must be targeted at the child who is the subject of the proceeding.1

I fully concur with the majority’s holding that the relevant inquiry for both

of these issues is “whether the efforts made and the services provided . . . are

relevant to the parent’s current situation and abilities so that they permit a current

assessment of parental fitness as it pertains to the child who is the subject of the

current proceeding.” Ante at 23. I further agree that, although the text of 25

USC 1912(d) does not strictly require that efforts be made concurrently with the

proceedings or be directed at the child who is the subject of the proceeding, the

timing and the subject of the efforts are still relevant aspects in determining

whether the requirements of 25 USC 1912(d) and (f) are met. Ante at 22-23. As

stated by the majority, “[s]ervices provided too long ago to be relevant to a

parent’s current circumstances do not establish by clear and convincing evidence

that ‘active efforts’ have been made . . . .” Ante at 22-23. Similarly, services

presented in connection with one child will not always be relevant in determining

1
There was no dispute that the efforts must, at a minimum, be targeted at
the parent who is the subject of the proceeding.

2
a parent’s abilities to care for a different child. I also concur with the majority’s

explanation of the qualitative requirements associated with providing active, as

opposed to passive, efforts and its rejection of a “futility exception” to the “active

efforts” requirement. Ante at 19-22, 25.

Although I agree with the majority’s articulation of what 25 USC 1912(d)

requires, I dissent from its application of 25 USC 1912(d) here because I would

hold that, in order to meet this standard, the party seeking termination must

present evidence of the parent’s current circumstances and ability to parent the

child who is the subject of the proceeding.2 I would also hold that the party must

assess and provide evidence of the relevancy of past efforts to the family’s current

circumstances and needs. Absent such evidence, I do not see how the party

seeking termination could clearly and convincingly show that, as required by the

majority, past efforts to prevent the breakup of the family “are relevant to the

parent’s current situation and abilities” and are sufficient to “permit a current

assessment of parental fitness as it pertains to the child who is the subject of the

current proceeding.” Ante at 23.

In this case, the party seeking termination, the Department of Human

Services (DHS), did not present evidence regarding respondent’s current

circumstances and did not assess the relevancy of its past efforts to respondent’s

current circumstances. As summarized by the majority opinion, the DHS did

2
This would be true even if the parent presents no evidence that the
parent’s circumstances or parenting abilities have changed. It is the burden of the
party seeking termination to show that past efforts are relevant to the parent’s
current situation.

3
present ample evidence that there had been extensive past efforts by the DHS, and

the tribe, that were designed to prevent the breakup of the family and evidence that

those efforts had been largely unsuccessful. Ante at 26-30. The DHS did not,

however, present evidence regarding whether these past efforts were relevant to

respondent’s and JL’s current circumstances. The caseworkers who testified at

trial admitted that, for a year and a half or longer before the termination

proceeding, they had not observed or evaluated respondent, respondent’s home

situation, respondent’s parenting ability, or respondent’s interactions with JL.3

Given that the DHS did not evaluate respondent’s current circumstances or current

ability to parent JL, the agency also could not have evaluated whether the past

3
Regina Frazier, the DHS caseworker, testified that the DHS had not
provided to respondent services targeting JL since 2004 and had not provided
services regarding any of her children for a year and a half before the termination
hearing. Frazier agreed that there had been “no services to [respondent] regarding
reunification of her child, no active efforts to reunite this family, particularly with”
JL in that period and stated that she did not know how respondent would react to
services at this time.
Penny Clark, the Anishinabek Community Family Services caseworker,
testified that she had provided services to respondent that were targeted at
managing a household with two young children. She testified that she had not
provided respondent services since 2005, had never been to respondent’s current
home, and would not be able determine respondent’s current ability to parent.
Jill Thompson, a Binogii Placement Agency caseworker, testified that she
had not provided services to respondent or visited respondent’s home for more
than two years before the termination hearing.
Thompson and Clark’s supervisor, Melissa VanLuven, testified that the
tribe had not provided respondent services since 2005 and had not provided her
services specific to JL since 2002.

4
efforts of the DHS and the tribe were relevant to her “current” circumstances and

abilities, as the majority purports to require.4

Accordingly, in light of the DHS’s failure to assess the relevancy of past

services to respondent’s current circumstances or ability to parent JL, I dissent

from the majority’s result. I would hold that it is not possible to determine

whether the agencies’ past efforts “are relevant to the parent’s current situation

and abilities” such that they are sufficient to “permit a current assessment of

parental fitness” using the evidence presented by the DHS in this case.5

II. “BEYOND A REASONABLE DOUBT” AND 25 USC 1912(f)

A parent’s rights may not be terminated “in the absence of a determination,

supported by evidence beyond a reasonable doubt, . . . that the continued custody

of the child by the parent . . . is likely to result in serious emotional or physical

damage to the child.” 25 USC 1912(f). The burden of proof is on the party

seeking termination. MCR 3.977(A)(1) and (3). I respectfully dissent from the

majority’s determination that the DHS met this very high standard here.

4
Instead, according to the testimony of one caseworker, the agency moved
directly to termination proceedings because, as a matter of policy, the DHS does
not provide services when the grounds for termination under state law are
“automatic.” I agree with the majority’s holding that this policy is inconsistent
with the Indian Child Welfare Act. See ante at 25-26.
5
It is conceivable that, if the DHS were to evaluate respondent’s current
circumstances and present evidence to the trial court that its past efforts were
relevant to respondent’s and JL’s current circumstances, the trial court could
validly determine that the requirements of 25 USC 1912(d) were met without the
DHS providing any further services. But absent that evaluation and the resulting
evidence, regardless of how extensive the agency’s past efforts were, I cannot
agree that the DHS has shown that active efforts were made to prevent the breakup
of the family and that those efforts were unsuccessful.

5
 I would hold that contemporaneous evidence must be presented in order for

a court to determine beyond a reasonable doubt that “serious emotional or

physical damage to the child” is likely to result, as required by 25 USC 1912(f).6

This holding is supported by the standards set forth in that statute and the Bureau

of Indian Affairs’ guidelines for state courts.

Under 25 USC 1912(f), there are stringent requirements that must be met

before a parent’s rights may be terminated under the Indian Child Welfare Act

(ICWA). To begin with, it adopted the “beyond a reasonable doubt” standard. It

is well established that the “beyond a reasonable doubt” standard is the highest

that may be imposed by a legislature. As stated by the United States Supreme

Court, “Congress requires ‘evidence beyond a reasonable doubt’ for termination of

Indian parental rights, reasoning that ‘the removal of a child from the parents is a

penalty as great [as], if not greater, than a criminal penalty . . . .’” Santosky v

Kramer, 455 US 745, 769; 102 S Ct 1388; 71 L Ed 2d 599 (1982), quoting HR

Rep No 95-1386, at 22 (1978). This is significant because it demonstrates that the

“stringency of the ‘beyond a reasonable doubt’ standard bespeaks the ‘weight and

gravity’ of the private interest affected, society’s interest in avoiding erroneous

convictions, and a judgment that those interests together require that ‘society

impos[e] almost the entire risk of error upon itself.’” Santosky, 455 US at 755

6
This is consistent with the majority’s statement that “termination based on
a presumption of unfitness predicated solely on past conduct would be inconsistent
with the ‘beyond a reasonable doubt’ standard . . . .” Ante at 30 (quotation marks
omitted). I also concur with the majority’s holding that the anticipatory-neglect
doctrine cannot serve as the sole basis for termination under 25 USC 1912(f).
This construction of the statute is consistent with the purposes of the Indian Child
Welfare Act outlined in part II of the majority opinion. Ante at 13-14.

6
(internal citations omitted). Congress deliberately used the “beyond a reasonable

doubt” standard in 25 USC 1912(f) as a reflection of the weight and gravity of the

interest that is at stake. To hold that the standard could be met absent

contemporaneous evidence would afford inadequate respect to this determination.

Further, the statute sets the high standard that the party seeking termination

must present evidence that a parent’s continued custody of the child is “likely to

result in serious emotional or physical damage to the child.” I would hold that

under 25 USC 1912(f), consistently with the purposes of ICWA and the “beyond a

reasonable doubt” standard, a determination that serious emotional or physical

damage to the child is likely to result requires current, specific evidence. This

evidence should be relevant to the child who is the subject of the proceeding and

the circumstances that will cause the specific damage that is likely to result.7 This

is consistent with the Bureau of Indian Affairs’ guideline that states:

[T]he evidence must show the existence of particular
conditions in the home that are likely to result in serious emotional
or physical damage to the particular child who is the subject of the
proceeding. The evidence must show the causal relationship
between the conditions that exist and the damage that is likely to
result. [Bureau of Indian Affairs, Guidelines for State Courts; Indian
Child Custody Proceedings, D.3(c), 44 Fed Reg 67584, 67593
(November, 26, 1979) (BIA Guideline D.3[c]) (emphasis added).]

This guideline is not binding on this Court, but I find it instructive here. In

order to show the existence of particular conditions in the home, and a causal

7
Similarly, this Court recently expressed skepticism that, under MCL
712A.19b(3)(j), the DHS could present even clear and convincing evidence that
there was a “reasonable likelihood” that a child would “be harmed” if returned to a
parent’s home when “no one had evaluated [the parent] and his lifestyle.” In re
Rood, 483 Mich 73, 117-118; 763 NW2d 587 (2009).

7
relationship between those conditions and a serious harm that is likely to result,

the party seeking termination must present contemporaneous evidence of the

current conditions of the parent’s home. Therefore, even if the “active efforts”

requirements of 25 USC 1912(d) could be met without the DHS’s presenting a

current assessment of respondent’s circumstances and ability to parent and the

relevancy of past service efforts to those circumstances, I do not think that the

standard in 25 USC 1912(f) requiring a determination beyond a reasonable doubt

of the likelihood of serious emotional or physical damage could be met absent

such contemporaneous evidence.

Despite holding that the “beyond a reasonable doubt” standard cannot be

met with evidence only of a parent’s past conduct, the majority opinion

nonetheless concludes that there was sufficient contemporaneous evidence

presented in this case to support terminating respondent’s parental rights. The

majority bases this conclusion on evidence of respondent’s past conduct and

current evidence that “revealed that [respondent] continued to make choices that

demonstrated a lack of maturity and ability to care for a child.”8 Ante at 30-31. I

8
The majority relies heavily on the “current evidence” of respondent’s
2005 and 2006 convictions for operating a motor vehicle while impaired, her 2005
conviction of aggravated assault for a bar fight, and respondent’s boyfriend’s past
conviction of domestic assault. Strikingly, by comparison, in In re Rood, Justice
Corrigan’s lead opinion found it significant that none of the parent’s past
convictions involved violence against children. The parent had testified that he
had reformed and was staying out of trouble, and the DHS had not evaluated the
parent’s current home situation, so “[n]o one knew whether [the parent] was likely
to persist in criminal behavior because no one had evaluated him and his lifestyle.”
In re Rood, 483 Mich at 117-118 (emphasis in original). Similarly, in this case,
respondent’s and her significant other’s convictions do not involve violence
against children, respondent and her addictions counselor testified that she had
made progress since those convictions, and the DHS had not evaluated respondent
and her lifestyle since those convictions. Although the factual circumstances of

8
do not think that contemporaneous evidence demonstrating “a lack of maturity” is

sufficient to meet the “beyond a reasonable doubt” standard, particularly when

considered in light of the stringent evidentiary requirements suggested by the BIA

Guideline D.3(c).9 The DHS could not have presented evidence of particular

conditions in respondent’s home when it did not evaluate respondent’s current

home, the risks it would pose to an 8- to 10-year-old child, or respondent and JL’s

relationship. The DHS certainly could not have presented evidence showing a

causal link between specific conditions in respondent’s home and a likelihood of

JL suffering any specific serious emotional or physical damage. Considering the

dearth of contemporaneous evidence related to respondent’s and JL’s current

circumstances, and the stringent standards of 25 USC 1912(f), I respectfully

dissent from the majority’s determination that the “beyond a reasonable doubt”

standard of 25 USC 1912(f) was satisfied by the evidence presented in this case.

the cases differ, I find this Court’s skepticism that a parent’s past convictions can
provide clear and convincing evidence of a reasonable likelihood of harm to the
child inconsistent with its finding in this case that similar convictions significantly
contribute to establishing beyond a reasonable doubt that serious harm to the child
is likely to result.
9
BIA Guideline D.3(c) also suggests that even if the types of harm to
which JL may have been subjected in respondent’s home two years ago still
existed in respondent’s current home, those harms might not be sufficiently
“serious” to satisfy 25 USC 1912(f). BIA Guideline D.3(c) states: “Evidence that
only shows the existence of community or family poverty, crowded or inadequate
housing, alcohol abuse, or non-conforming social behavior does not constitute
clear and convincing evidence that continued custody is likely to result in serious
emotional or physical damage to the child.”

I would urge lower courts to consider BIA Guideline D.3(c) when
determining under 25 USC 1912(f) whether “serious” damage to the child is likely
to occur.

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 III. CONCLUSION

I respectfully dissent from the majority’s application of 25 USC 1912(d)

and (f) in this case. I would reverse the judgment of the Court of Appeals, vacate

the order terminating respondent’s parental rights, and remand this case to the trial

court for further proceedings.

Michael F. Cavanagh
Marilyn Kelly

10