IN RE JADEN TAYLOR LEE MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JADEN TAYLOR LEE, Minor.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
October 16, 2008
Petitioner-Appellee,
v
No. 283038
Mackinac Circuit Court
Family Division
LC No. 00-005132-NA
CHERYL LYNN LEE,
Respondent-Appellant,
and
SAULT STE. MARIE TRIBE OF CHIPPEWA
INDIANS,
Intervening Respondent-Appellee.
Before: Markey, P.J., and Whitbeck and Gleicher, JJ.
GLEICHER, J. (concurring in part and dissenting in part).
I concur with the majority’s determination that the denial of respondent’s request for a
jury trial did not deprive respondent of her due process rights. However, I respectfully disagree
that petitioner complied with the “active efforts” provision of the Indian Child Welfare Act (the
ICWA), 25 USC 1912(d). In my view, petitioner failed to clearly and convincingly demonstrate
“active efforts . . . to provide remedial services and rehabilitative programs designed to prevent
the breakup” of respondent’s familial relationship with Jaden, the involved minor. Furthermore,
the record evidence does not supply proof 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,” the federal standard for termination of parental rights to an Indian child. In
re SD, 236 Mich App 240, 243; 599 NW2d 772 (1999), quoting 25 USC 1912(f). For these
reasons, I would reverse the circuit court’s decision to terminate respondent’s parental rights.
I. The Pertinent Factual Background
Child Protective Services (CPS) began working with respondent in 1998, when
respondent, a pregnant teenager, resided in a dysfunctional and violent home. Regina Frazier, a
CPS worker at that time, described respondent as “a delinquent” and “a victim of child abuse and
neglect.” CPS removed respondent from her family home and placed her in foster care. After
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respondent bore Jaden, CPS provided parenting services for approximately one year before
concluding that respondent could not properly care for the child.
Jaden then commenced a series of transitions. For more than a year, he lived with a
foster care family. In March 2002, the Mackinac Circuit Court transferred a child protective
proceeding involving Jaden to the Tribal Court of the Sault Ste. Marie Tribe of Chippewa
Indians. In August 2002, the Tribal Court placed Jaden with Lois Plank, his paternal
grandmother. Respondent regained custody of Jaden in September 2003, but four months later
the Mackinac Circuit Court awarded full physical custody of the child to Tony Plank, Jaden’s
father, and ordered that respondent and Plank share Jaden’s legal custody. Although
respondent’s parental rights to three younger children were terminated in 2006 and 2007,
respondent retained joint legal custody of Jaden. According to respondent’s unrebutted
testimony, she enjoyed unsupervised visitation with Jaden between December 2003 and July
2007, including holidays and the summer months. The record reflects that this custodial
arrangement remained stable until Plank’s arrest in June 2007.
In April 2007, respondent sought additional parenting time. On May 24, 2007, the circuit
court ordered that she and Jaden have unsupervised visits every Saturday from 8:00 a.m. until
6:00 p.m. On June 25, 2007, Tony Plank filed a petition seeking the termination of respondent’s
parental rights to Jaden. Two weeks later, petitioner filed a petition seeking termination of
respondent’s parental rights at initial disposition, pursuant to MCL 722.638(1)(b)(i). The circuit
court authorized the petition and suspended respondent’s parenting time.
On August 20, 2007, the circuit court conducted a hearing regarding respondent’s request
for reinstatement of her visitation. Jill Thompson, a worker with the tribe’s child placement
service agency, admitted that the tribe had never received any negative reports regarding
respondent’s 3-1/2 years of unsupervised visits with Jaden. After the hearing, the parties decided
to mediate their visitation dispute. In August 2007, the parties agreed to reinstate respondent’s
visitation with Jaden, at the sole discretion of Lois Plank. The circuit court entered an order
consistent with this agreement.
At the termination hearing, three social service caseworkers testified regarding the
services provided to respondent between 1998 and 2005. Frazier explained that she provided
respondent with services between 1998 and 2002, and admitted that she did not know how
respondent would “react to services at this date.” Frazier described the prior services as focusing
on “behavioral issues . . . teen parenting,” because CPS attempted to “gear [the services] toward
her age, her development, . . . and her situation.” Penny Clark, a caseworker for Anishnabek
Community and Family Services, estimated that she worked with respondent for approximately
two years, between 2002 and 2005. Clark admitted that she had no basis on which to form an
opinion regarding respondent’s current ability to parent. Jill Thompson, a caseworker for the
Binogii Agency, worked with respondent in 2004 and 2005.1 During most of that time, Jaden
lived with his father, and Thompson directed her efforts toward assisting respondent with her
1
The Binogii Agency supplies adoption and foster care services to the Sault Ste. Marie
Chippewa Tribe.
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two younger children. Thompson conceded there had been no “active efforts” to reunite
respondent with Jaden after the 2007 petition was filed.
Melissa Vanluven, who supervised Thompson and Clark, testified as a qualified Indian
expert pursuant to 25 USC 1912(f), which provides as follows:
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.
Vanluven admitted that respondent last utilized services regarding Jaden in August 2002.
Vanluven characterized respondent as “a minimally adequate parent,” but not on a “consistent
basis.” When questioned regarding the grounds for her opinion that respondent’s continued
relationship with Jaden would likely subject the child to serious damage, Vanluven admitted that
she relied completely on historical evidence:
Q. But the question we have to look at today is will the continued custody
result in serious emotional or physical damage to the child. And how do you,
again qualitatively or quantitatively, determine . . . that there will be serious,
serious emotional distress, and how do you arrive at what that level will be if he
remains with Mom?
A. I guess in what I would say is that, um, her past history here, um, there
has [sic] been numerous documented evidence, um, situations where Cheryl has
placed her children in unsafe situations. Um, she has failed to supervise them
appropriately. Um, and so we use, um, her past behavior to basically, um, give us
an idea of what her future behavior is going to be.
The circuit court concluded that petitioner had proven “beyond a reasonable doubt that
continued custody with . . . Respondent would likely result in serious emotional or physical harm
to the child.” According to the circuit court’s written opinion,
The child does not look to Respondent as a parent in most respects. This
role has been filled primarily by his grandmother and current primary caretaker
Lois Plank. The Court finds that at this point in the child’s life it is extremely
likely the child would suffer serious emotional harm to be required to begin a
reunification process with Respondent.
The circuit court further explained this conclusion as follows:
Finally, the Court finds that . . . Petitioner has proven beyond a reasonable
doubt that continued (or return of) custody with . . . Respondent will likely cause
serious emotional or physical damage. 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
. . . Respondent’s home and the emotional damage that would result in requiring a
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reunification plan; 3) the testimony presented that Respondent’s lack of benefit
was not due to Respondent’s lack of maturity, but rather a lack of ability; and 4)
Respondent’s most recent conduct of operating a motor vehicle while impaired
due to alcohol.
Respondent challenges on appeal the circuit court’s failure to find that petitioner made
“active efforts” to reunite respondent with Jaden, and the circuit court’s conclusion that
petitioner proved beyond a reasonable doubt that respondent’s continued custody of Jaden would
likely result in serious injury to the child.
II. Active Efforts Analysis
The majority concedes that the circuit court failed to articulate a finding that active
efforts had been made to preserve respondent’s relationship with Jaden. In fact, the circuit court
acknowledged that it terminated respondent’s parental rights in the absence of current efforts to
rehabilitate respondent with regard to her ability to parent Jaden:
[D]ue to the circumstances created by the placement with the father and
the filing of a petition requesting termination at the initial disposition, neither the
tribe nor the department were in a position to provide services to Respondent.
The majority acknowledges that three years had elapsed since respondent received any services
intended to preserve her relationship with Jaden. Nevertheless, according to the majority,
petitioner satisfied the ICWA’s “active efforts” requirement “because the evidence
overwhelmingly established [respondent’s] past and persistent inability to improve her parenting
skills or make any significant progress in addressing her problems.” Ante at 13. In my view, the
ICWA’s “active efforts” requirement cannot be satisfied by efforts made three years previously.
Further, the record fails to demonstrate proof beyond a reasonable doubt that the continuation of
respondent’s relationship with Jaden would likely result in serious emotional or physical damage
to the child.
A. Applicable Law2
In Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct 1597; 104
L Ed 2d 29 (1989), the United States Supreme Court explained that the ICWA, 25 USC 19011963,
was the product of 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 children from
2
Given the similarity between the governing legal principles, and to a significant degree the
facts, in this case and this Court’s recent decision involving ICWA, In re Roe ___ Mich App
___; ___ NW2d ___ (Docket No. 283642, issued September 25, 2008), I take this opportunity to
again elaborate on the bases for my dissent in In re Roe. See id., dissenting opinion by Gleicher,
J., slip op at 5-14.
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their families and tribes through adoption or foster care placement, usually in nonIndian homes.
The Supreme Court further observed that congressional findings “incorporated into the ICWA”
included,
“(3) that there is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children . . . ;
“(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.” [Id. at 3536, quoting 25 USC 1901.]
The ICWA contains “[v]arious . . . provisions” that “set procedural and substantive
standards” for state court child custody proceedings involving Indian children. Mississippi Band
of Choctaw Indians, supra at 36. The ICWA’s “active efforts” standard provides,
Remedial services and rehabilitative programs; preventive measures.
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. [25 USC 1912(d).]
In contrast to the ICWA’s mandate that a party seeking termination of parental rights
satisfy the court that “active efforts” have been made to provide remedial services and
rehabilitative programs, Michigan law permits a petitioner to withhold services if a parent “has
had rights to the child’s siblings involuntarily terminated.” MCL 712A.19a(2)(c). Here,
petitioner refused to offer any services to respondent because it filed a petition invoking only
MCL 712A.19b(3)(i) as a ground for termination of respondent’s parental rights. Subsection (i)
contemplates as follows:
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. [Emphasis supplied.]
B. The ICWA’s “Active Efforts” Requirement
In Mississippi Band of Choctaw Indians, supra, the United States Supreme Court
examined the meaning of the word “domicile,” used in the ICWA’s § 1911(a) to establish
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jurisdiction for tribal courts. The Supreme Court considered whether Congress intended the
definition of “domicile” to be determined under state or federal law. Id. at 43. Invoking
congressional purpose, the Mississippi Band of Choctaw Indians majority emphasized that
“Congress intended a uniform federal law of domicile for the ICWA.” Id. at 47. The Supreme
Court imbued “content” into the term “start[ing] with the assumption that the legislative purpose
is expressed by the ordinary meaning of the words used,” considering the “‘object and policy’”
of the statute. Id.
Mississippi Band of Choctaw Indians requires that in this case we interpret the phrase
“active efforts” using the ordinary meaning of the words, considering the “object and policy” of
the ICWA. The record evidence reveals that when petitioner filed the initial permanent custody
petition, it refused to provide respondent with services intended to preserve her familial
relationship with Jaden, or to improve her ability to parent him. The majority disposes of the
“active efforts” requirement by referring to respondent’s “past and persistent inability to improve
her parenting skills or make any significant progress in addressing her problems.” 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. Past
efforts, involving other children and different circumstances, do not qualify as “active efforts”
under the federal statute.
The term “active” is defined as “characterized by action rather than contemplation or
speculation,” or “marked by present operation, transaction, movement or use.” MerriamWebster Online Dictionary, “active” <http://www.merriam-webster.com/dictionary/active>
(accessed August 12, 2008). In Frasier v Model Coverall Service, Inc, 182 Mich App 741, 744;
453 NW2d 301 (1990), this Court examined the statutory phrase “active employment,” and
concluded,
Placing the “active” before employment must have been for the purpose of
adding some further meaning—distinguishing between employees who were
actually engaged in performing work for an employer at the time of retirement
and those who were not. It follows, therefore, that “active employment” means
one who is actively on the job and performing the customary work of his job, as
opposed to one who terminates inactive employment.[3]
The phrase “active efforts” inherently embodies a temporal component, particularly in the
context of the ICWA’s motivating principles. The meaning of “active efforts” becomes clear by
reference to the “object and policy” of the ICWA, which requires that a state prove beyond a
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.” 25 USC 1912(f) (emphasis
supplied).4 Standing alone, evidence of a parent’s response to efforts provided years before,
3
According to Black’s Law Dictionary (8th ed), an “active case” is “[a] case that is still
pending.” In Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 250-251; 704
NW2d 117 (2005), this Court interpreted “active employees . . . of the County” to mean present
or current county employees.
4
Our Supreme Court relied heavily on the tense used when it interpreted MCL 600.2912a(2) in
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under different circumstances and with respect to other children, does not supply proof beyond a
reasonable doubt regarding an Indian parent’s current ability to safely manage “the continued
custody” of a child. Indeed, this Court has recognized that “[s]ince a parent’s fitness is not a
static concept, much can happen in six months to reflect on that fitness.” In re LaFlure, 48 Mich
App 377, 391; 210 NW2d 482 (1973).5
Here, respondent and Jaden maintained an uneventful, mutually beneficial family
relationship for at least 3-1/2 years before petitioner filed its petition seeking termination of
respondent’s parental rights to Jaden. Although respondent did not have custody of Jaden, she
unquestionably had an enduring familial relationship with her son.6 Under these circumstances, I
believe that the ICWA required the circuit court to find that “active efforts” had been made to
provide services and programs designed to “prevent the breakup” of that particular familial
relationship, which differed considerably from respondent’s past relationships with her other,
younger children.
Application of the ICWA’s “active efforts” requirement is complicated here by the fact
that petitioner presented minimal evidence of respondent’s current unfitness, as discussed in
more detail, infra. Without identifying respondent’s existing parental strengths and weaknesses,
petitioner could not accurately determine which “active efforts” would benefit her. Clark
conceded this obvious truth in the following exchange with Jaden’s guardian ad litem during the
termination hearing:
Q. Ma’am, you, . . . is it fair to say that you do not have any qualitative or
quantitative method of determining what [respondent’s] ability to parent is as of
this date and time?
A. No. I think I’ve seen [respondent] and worked with [respondent]
enough to know what her parenting ability has been in the past.
Q. Not, not in the past, but as of this date and time. Do you have a
method to determine what her ability to parent is as of today’s date?
A. I’ve not seen her, no.
The majority declares that “[b]ecause of the intractable nature of [respondent’s] inability
to learn appropriate parenting techniques, any additional efforts to rehabilitate [respondent]
would have been largely futile.” Ante at 13. In fact, the record is silent regarding respondent’s
(…continued)
Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60-61; 631 NW2d 686 (2001).
5
Notably, in LaFlure, this Court remanded for a new de novo hearing regarding the respondent’s
fitness, and ordered that her “fitness to have custody of Gary is to be determined as of the date
the circuit court considers this case on remand.” Id. at 392 (emphasis supplied).
6
“In contrast to loss of custody, which does not sever the parent-child bond, parental status
termination is irretrievably destructive of the most fundamental family relationship.” MLB v
SLJ, 519 US 102, 121; 117 S Ct 555; 136 L Ed 2d 473 (1996) (internal quotation omitted;
alteration in original).
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“intractable” inability to improve her parenting skills, because petitioner made no effort to
evaluate respondent’s ability to parent Jaden after it filed the petition, and had not provided
services relevant to this child for at least three years before filing the petition. Furthermore, no
record evidence supports the notion that respondent improperly or unsafely “parented” Jaden
when she visited him without supervision over the course of a 3-1/2 year period. Given the total
absence of any recent evidence regarding respondent’s parenting abilities, I simply cannot
conclude that respondent would fail to benefit from services. In my view, petitioner failed to
produce clear and convincing evidence that it employed “active efforts” to preserve respondent’s
family relationship with Jaden. I would reverse the circuit court on this ground.
III. Analysis of Respondent’s Unfitness
According to the record, respondent had joint legal custody of Jaden, and limited physical
custody. Petitioner bore the burden of proving beyond a reasonable doubt that respondent’s
“continued custody” of Jaden would “likely result in serious emotional or physical damage to the
child.” 25 USC 1912(f). The record evidence revealed that during the 3-1/2 years respondent
had unsupervised visits with Jaden, the child suffered no physical or emotional harm. Petitioner
offered no testimony or documentary evidence regarding Jaden’s emotional status. Jaden
testified that he enjoyed and looked forward to his visits with his mother. Therefore, the circuit
court’s conclusion that continuation of respondent’s relationship with Jaden would “likely” cause
the child serious emotional or physical damage amounts to pure speculation, unsupported by
clear and convincing evidence, let alone proof beyond a reasonable doubt.
The majority concludes that evidence of respondent’s past behavior permitted the circuit
court to conclude, beyond a reasonable doubt, that maintenance of the status quo would result in
serious emotional or physical harm to Jaden. In my view, petitioner could not possibly prove a
likelihood of harm beyond a reasonable doubt based on stale information that failed to take into
account the quality, quantity and character of respondent’s ongoing interactions with her child.
See In re Matthew Z, 80 Cal App 4th 545, 552; 95 Cal Rptr 2d 343 (2000), in which the
California Court of Appeals explained,
[B]ased on the family-protective policies underlying the ICWA, it is
reasonable to assume the ICWA section 1912(f) finding must be made at, or
within a reasonable time before, the termination decision is made. Otherwise, it
would be possible for a state to terminate parental rights when the current
circumstances do not show a return to the parent’s custody would be detrimental
to the child’s well-being. This would violate the words and spirit of the ICWA.
Furthermore, not even one witness at the termination hearing testified that Jaden would
incur “damage” by continuing to visit respondent. The circuit court assumed that “requiring a
reunification plan” would harm Jaden. However, it reached this conclusion in the absence of any
evidence to that effect, because none of the witnesses had actually spoken to Jaden or evaluated
his readiness to “reunite” with respondent. The determinative question in a case governed by the
ICWA is whether a petitioner proves 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). In my view, the circuit court relied on evidence with
limited relevance to Jaden’s current circumstances, and reached its conclusion of “likely . . .
damage” on the basis of presumptions, and not proof beyond a reasonable doubt.
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IV. Presuming Unfitness Based on Past Conduct
At its core, this case is about whether a court may conclude that a parent qualifies as
presently unfit based solely on the parent’s past conduct. In affirming the circuit court, the
majority invokes the “well-established doctrine of anticipatory neglect,” which the majority
describes as, “[H]ow 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.” Ante at
14 (citation omitted). Here, however, respondent’s past behavior did qualify as determinative
because neither petitioner nor the circuit court considered current evidence. Rather, respondent’s
past behavior functioned not only as a “strong indicator” of future performance, but constituted
the only evidence of future performance. In my view, the ICWA’s “beyond a reasonable doubt”
standard of proof precludes a presumption of unfitness predicated solely on past conduct.
Indeed, I believe that in cases governed by the ICWA, Michigan’s “doctrine of anticipatory
neglect” may not be applied in a determinative manner.7 Rather, a court must engage in a
meaningful examination of present circumstances to determine whether “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).
In Stanley v Illinois, 405 US 645, 651; 92 S Ct 1208; 31 L Ed 2d 551 (1972), the United
States Supreme Court examined the constitutionality of an Illinois law, under which “the
7
The majority’s reference to “the well-established doctrine of anticipatory neglect” is somewhat
puzzling. The doctrine has been applied frequently in Michigan. In In re Powers, 208 Mich App
582, 589; 528 NW2d 799 (1995), this Court explained that “the principle of anticipatory neglect .
. . may provide an appropriate basis for invoking probate court jurisdiction.” The “anticipatory
neglect” doctrine was intended as a potential tool for acquiring jurisdiction, not an evidentiary
shortcut allowing termination of parental rights with no current showing of parental unfitness.
Further, the “anticipatory neglect” doctrine is not “well-established” in other jurisdictions.
Although our appellate court has recognized the theory of anticipatory
neglect for some time . . . , our courts have also held that there is no per se rule
that the neglect of one child conclusively establishes the neglect of another child
in the same household. Rather, such neglect should be measured not only by the
circumstances surrounding the sibling, but also by the care and condition of the
child in question. Although section 2-18(3) of the Act (705 ILCS 405/218(3)(West 2000)) provides that the proof of neglect of one minor “shall be
admissible evidence” on the issue of the neglect of any other minor for whom the
parent is responsible, we emphasize that the mere admissibility of evidence does
not constitute conclusive proof of the neglect of another minor. Each case
concerning the adjudication of minors, including those cases pursued under a
theory of anticipatory neglect based upon the neglect of a child’s sibling, must be
reviewed according to its own facts. [In re Arthur H, 212 Ill 2d 441, 468; 819
NE2d 734 (2004) (some citations and internal quotation omitted)].
I find no reference to this “well established” doctrine in jurisdictions other than Michigan and
Illinois.
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children of unwed fathers become wards of the State upon the death of the mother.” Id. at 646.
Peter Stanley claimed that “he had never been shown to be an unfit parent,” and had been
unconstitutionally deprived of his children absent a showing of unfitness. Id. Illinois responded
that “unwed fathers are presumed unfit to raise their children and that it is unnecessary to hold
individualized hearings to determine whether particular fathers are in fact unfit parents before
they are separated from their children.” Id. at 647. The Supreme Court observed that the Illinois
dependency proceeding involving the Stanley children “has gone forward on the presumption
that [Stanley] is unfit to exercise parental rights.” Id. at 648. Regarding the implicit
presumption of unfitness contained within Illinois law, the Supreme Court explained,
Procedure by presumption is always cheaper and easier than
individualized determination. But when, as here, the procedure forecloses the
determinative issues of competence and care, when it explicitly disdains present
realities in deference to past formalities, it needlessly risks running roughshod
over the important interests of both parent and child. It therefore cannot stand.
[Id. at 656-657.]
Unlike Peter Stanley, respondent was previously judged unfit. The circumstances
surrounding those determinations certainly constitute relevant evidence of her parenting abilities.
Here, however, the circuit court and the majority utilize a presumption of unfitness, predicated
solely on historical evidence, to “disdain[] present realities in deference to past formalities.”
Respondent may be completely unfit to continue parenting Jaden, and her visits with him
perhaps might result in serious emotional or physical harm to the child. But I cannot resolve this
question with certainty beyond a reasonable doubt solely on the basis of the presumption that
respondent’s past unfitness supplies the answer, because that logic eliminates petitioner’s heavy
burden of proving unfitness.8
“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 v Kramer, 455 US 745, 755; 102 S Ct 1388; 71 L Ed 2d 599 (1982)
(internal quotation omitted). In the criminal law, application of the “beyond a reasonable doubt”
standard requires a fact finder to “reach a subjective state of near certitude of the guilt of the
accused . . . .” Jackson v Virginia, 443 US 307, 315; 99 S Ct 2781; 61 L Ed 2d 560 (1979).
Accordingly, application of this standard under the ICWA requires a fact finder to conclude with
“near certitude” that “the continued custody” of the Indian child by the parent “is likely to result
in serious emotional or physical damage to the child.” 25 USC 1912(f).
The burden of proving parental unfitness rests on the petitioner. In re AMAC, 269 Mich
App 533, 537; 711 NW2d 426 (2006). Here, petitioner attempted to meet its burden with proof
of respondent’s prior unfitness. It presented no current evidence that respondent’s relationship
with Jaden would likely harm the child. The majority “conclude[s] from our own review of
8
The presumption employed by the majority also ignores the realities of this case. For a period
of at least 3-1/2 years, respondent and Jaden enjoyed an uncomplicated, safe, unsupervised and
mutually positive mother-son relationship. No efforts were made to disturb this custodial
arrangement until Tony Plank’s arrest.
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[respondent’s] history and the other evidence, including the tribal expert’s testimony, that the
trial court did not clearly err” when it determined that petitioner proved a likelihood of harm
beyond a reasonable doubt. Ante at 14. I cannot determine what “other evidence” established
respondent’s current unfitness. Vanluven, the tribal expert, admitted that she grounded her
opinion solely on past events. Therefore, I can only conclude that the majority utilized a
presumption of unfitness based on past conduct, and failed to scrutinize the evidence under the
requisite standard of proof.9
Because petitioner failed to satisfy the ICWA’s reasonable doubt standard, I would
reverse.
/s/ Elizabeth L. Gleicher
9
In the criminal law, “mandatory presumptions” violate the Due Process Clause “if they relieve
the State of the burden of persuasion on an element of an offense.” Francis v Franklin, 471 US
307, 314; 105 S Ct 1965; 85 L Ed 2d 344 (1985). But a “permissive inference” does not violate
due process “because the State still has the burden of persuading the jury that the suggested
conclusion should be inferred based on the predicate facts proved.” Estelle v McGuire, 502 US
62, 79 (O’Connor, J., concurring in part and dissenting in part); 112 S Ct 475; 116 L Ed 2d 385
(1991). In contrast to a “permissive inference or presumption,”
A mandatory presumption is a far more troublesome evidentiary device.
For it may affect not only the strength of the ‘no reasonable doubt’ burden but
also the placement of that burden; it tells the trier that he or they must find the
elemental fact upon proof of the basic fact, at least unless the defendant has come
forward with some evidence to rebut the presumed connection between the two
facts. [Co Court of Ulster Co, NY v Allen, 442 US 140, 157; 99 S Ct 2213; 60 L
Ed 2d 777 (1979).]
The circuit court conclusively presumed unfitness based on historical evidence, without
reference to predicate facts reflecting an existing risk of harm to Jaden. By relying solely on
evidence gleaned from respondent’s past, the circuit court bypassed the ICWA’s requirement of
proof beyond a reasonable doubt regarding respondent’s current relationship with Jaden. When
current evidence of fitness is omitted, the inevitable result is a process governed by presumption,
and not proof. Here, an impermissible evidentiary inference supplanted actual proof that if
respondent continues visiting Jaden, the child likely will suffer serious damage.
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