If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
UNPUBLISHED
In re K. LARSON, Minor. January 26, 2023
No. 362643
Lenawee Circuit Court
Family Division
LC No. 22-000136-NA
Before: M.J. KELLY, P.J., and BOONSTRA and SWARTZLE, JJ.
PER CURIAM.
Respondent voluntarily released her parental rights to her biological child after she stated
that the child might have heritage from a Cherokee tribe. Respondent now challenges that the
Department of Health and Human Services (DHHS) did not properly notify the Cherokee tribes as
required by the Indian Child Welfare Act (ICWA), 28 USC 1901 et seq, or the Michigan Indian
Family Preservation Act (MIFPA), MCL 712B.1 et seq. Under In re Morris, 491 Mich 81, 88;
815 NW2d 62 (2012), we remand solely with regard to the issue of the notice to Native American
tribes.
DHHS filed a petition to remove the child from respondent’s care because it received a
complaint that respondent was not providing proper supervision. The petition also noted that the
child might have Native American heritage, and DHHS sent a “Native Child Tribal
Enrollment/Eligibility Verification” form to the “ICWA Tribal Agent Midwest Regional
Director.” The Eligibility Verification form stated that the child was alleged to have heritage from
a Cherokee tribe, and it listed the child’s biological parents’ names.
At a preliminary hearing regarding the petition, respondent stated that she believed that her
“great-great grandmother on [her] mom’s side” was “like full, 100 percent Cherokee Indian.”
After DHHS indicated that it had sent out the request to investigate the child’s heritage, respondent
stated that she wanted to release her parental rights. The trial court accepted respondent’s
statement and terminated her parental rights to the child.
Respondent now argues that the Eligibility Verification form was insufficient under ICWA
and MIFPA. Generally, “[t]his Court reviews issues involving the application and interpretation
of the ICWA de novo as questions of law.” In re JL, 483 Mich 300, 319; 770 NW2d 853 (2009).
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This Court also reviews issues involving the MIFPA de novo. In re Detmer/Beaudry, 321 Mich
App 49, 59; 910 NW2d 318 (2017).
Respondent did not challenge the Eligibility Verification form in the trial court, however,
and this issue is unpreserved for appellate review. Therefore, this Court will review it for plain
error affecting respondent’s substantial rights. In re TK, 306 Mich App 698, 703; 859 NW2d 208
(2014).
ICWA provides, in pertinent part:
In any involuntary proceeding in a State court, where the court knows or has reason
to know that an Indian child is involved, the party seeking the foster care placement
of, or termination of parental rights to, an Indian child shall notify the parent or
Indian custodian and the Indian child’s tribe, by registered mail with return receipt
requested, of the pending proceedings and of their right of intervention. If the
identity or location of the parent or Indian custodian and the tribe cannot be
determined, such notice shall be given to the Secretary in like manner, who shall
have fifteen days after receipt to provide the requisite notice to the parent or Indian
custodian and the tribe. No foster care placement or termination of parental rights
proceeding shall be held until at least ten days after receipt of notice by the parent
or Indian custodian and the tribe or the Secretary.... [25 USC 1912 (a).]
Respondent also challenges that petitioner’s notice was not in compliance with the MIFPA,
specifically MCL 712B.9(3) which states:
The department shall actively seek to determine whether a child at initial
contact is an Indian child. If the department is able to make an initial determination
as to which Indian tribe or tribes a child brought to its attention may be a member,
the department shall exercise due diligence to contact the Indian tribe or tribes in
writing so that the tribe may verify membership or eligibility for membership. If
the department is unable to make an initial determination as to which tribe or tribes
a child may be a member, the department shall, at a minimum, contact in writing
the tribe or tribes located in the county where the child is located and the secretary.
In this case, respondent presented sufficient initial indicia of Native American heritage
because she stated that the child had Cherokee heritage through her great-great grandmother.
In situations in which the specific alleged tribal heritage is known, ICWA requires
petitioner to “notify the parent or Indian custodian and the Indian child’s tribe, by registered mail
with return receipt requested, of the pending proceedings and of their right of intervention.” 25
USC 1912 (a). Similarly, MIFPA requires petitioner to “exercise due diligence to contact the
Indian tribe or tribes in writing so that the tribe may verify membership or eligibility for
membership.” MCL 712B.9(3).
Petitioner had adequate information to make an “initial determination” that the child “may
be a member” of a Cherokee tribe, and it sent notice to the ICWA Midwest Regional Director.
There is no information in the record, however, that petitioner sent any notice to a Cherokee tribe,
as required by both ICWA and MIFPA when the particular tribe is known.
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The notice to the ICWA Midwest Regional Director listed the child’s tribal affiliation as
“Cherokee,” but, as respondent argues, the family tree accompanying the letter to the ICWA
Midwest Regional Director was not complete because it did not list the great-great grandmother’s
name, and only listed the child’s name, mother’s name, and father’s name. Thus, there was
minimal information to verify the child’s heritage.
Therefore, without any indication that a Cherokee tribe was notified, petitioner failed to
satisfy the notice requirements of ICWA and MIFPA when there was “sufficiently reliable
information” from respondent that the child’s “tribal membership” was from a Cherokee tribe. In
re Morris, 491 Mich at 88.
Respondent asks this Court to reverse her voluntary release of her parental rights to the
child on the basis of the ICWA and MIFPA notice violations. Our Supreme Court in In re Morris,
however, held that the proper remedy for a notice violation is to remand for resolution of the notice
issue solely. Specifically, it stated:
Therefore, we hold first that sufficiently reliable information of virtually any
criteria on which tribal membership might be based suffices to trigger the notice
requirement. We hold also that a parent of an Indian child cannot waive the separate
and independent ICWA rights of an Indian child’s tribe and that the trial court must
maintain a documentary record including, at minimum, (1) the original or a copy
of each actual notice personally served or sent via registered mail pursuant to 25
USCA § 1912(a), and (2) the original or a legible copy of the return receipt or other
proof of service showing delivery of the notice. Finally, we hold that the proper
remedy for an ICWA-notice violation is to conditionally reverse the trial court and
remand for resolution of the ICWA-notice issue. [Id.]
Additionally, respondent presents no argument as to how her parental rights to the child
were prejudiced by the inadequate notices under ICWA and MIFPA, and she presents no argument
that her voluntary release was improper, or that the termination of her parental rights was not in
the best interest of the child. “A party may not simply announce a position and leave it to this
Court to make the party’s arguments and search for authority to support the party’s position.
Failure to adequately brief an issue constitutes abandonment.” Seifeddine v Jaber, 327 Mich App
514, 519-520; 934 NW2d 64 (2019) (cleaned up). Therefore, respondent has abandoned this issue
regarding her voluntary release of her parental rights to the child.
Nevertheless, the Eligibility Verification form that was sent to the ICWA Midwest
Regional Director did not satisfy the requirements of ICWA and MIFPA because there is no
indication that the specific tribe was notified. Even though respondent abandoned her argument
concerning the termination of her parental rights, the notice violation is separate from the
termination. Native American tribes retain their independent right to be notified when a child with
Native American heritage is being placed in foster care or their parent’s rights are being terminated.
Therefore, the trial court should determine whether the appropriate notices had been
delivered to the relevant tribes and, if not, order DHHS to send the appropriate notices in
compliance with ICWA and MIFPA.
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Remanded to the trial court for the sole issue of adequate notice to the appropriate tribes.
We retain jurisdiction.
/s/ Michael J. Kelly
/s/ Mark T. Boonstra
/s/ Brock A. Swartzle
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Court of Appeals, State of Michigan
ORDER
Michael J. Kelly
In re K Larson Minor Presiding Judge
Docket No. 362643 Mark T. Boonstra
LC No. 22-000136-NA Brock A. Swartzle
Judges
Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.
The trial court shall act within 21 days of the Clerk’s certification of this order, and this
matter shall be given priority on remand until it is concluded. As stated in the accompanying opinion, the
trial court should determine whether the appropriate notices had been delivered to the relevant tribes and,
if not, order DHHS to send the appropriate notices in compliance with ICWA and MIFPA. The
proceedings on remand are limited to this issue.
The parties shall promptly file with this Court a copy of all papers filed on remand. Within
seven days after entry, appellant shall file with this Court copies of all orders entered on remand.
The record of all proceedings on remand, including any transcripts, shall be prepared and
filed within 21 days after completion of the proceedings.
_______________________________
Presiding Judge
January 26, 2023