IN RE MILLSAP MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of I. M. and M. M., Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 20, 2010
Petitioner-Appellant,
v
No. 295092
Wayne Circuit Court
Family Division
LC No. 07-471223
DEBORAH ANN-ARNITA MILLSAP, a/k/a
DEBORAH ANN MILLSAP,
Respondent-Appellant,
and
ISAAC M. SPILLMAN,
Respondent.
Before: MURPHY, C.J., and K. F. KELLY and STEPHENS, JJ.
PER CURIAM.
Respondent-mother appeals as of right from the trial court’s order terminating her
parental rights to the minor children, I.M. and M.M., under MCL 712A.19b(3)(a)(ii), (c)(i), (g),
(j), and (l). We affirm the trial court’s decision with regard to M.M. and conditionally affirm the
trial court’s decision with regard to I.M. and remand for further proceedings.
I. REUNIFICATION EFFORTS
Respondent first argues that petitioner failed to provide her with adequate reunification
services to accommodate her mental illness in violation of the Americans with Disabilities Act,
42 USC 12101. See also MCL 712A.18f. For this reason, plaintiff contends, termination of her
parental rights under MCL 712A.19b(3)(c)(i), (g), and (j) was improper. We disagree. At the
outset, we note that respondent did not timely raise her argument as it relates to the ADA and
thus it is waived. See In re Terry, 240 Mich App 14, 26-27; 610 NW2d 563 (2000).
Nonetheless, the record establishes that efforts by petitioner and respondent’s mental
health provider reasonably accommodated her mental illness. Petitioner was aware that
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respondent’s mental health issues were a priority and it made significant efforts to work with her
on addressing her mental health needs and ensuring that she received appropriate mental health
treatment. The record shows that petitioner formulated several Parent/Agency Agreement
tailored to respondent’s mental instability, followed up with and maintained regular contact with
respondent’s mental health service provider, and made significant efforts to ensure that
respondent was given ample time and opportunity to address her mental health issues.1 Although
respondent’s treatment plan did not specifically require petitioner to verify her medication
monitoring as her appellate attorney would have preferred, it is evident that her mental health
treatment, including her medication, was monitored by her mental health provider, who provided
comprehensive mental health services, as well as by the caseworker, who followed up with and
maintained contact with her mental health providers throughout the proceedings. Further,
despite an interruption in respondent’s counseling services during the proceedings, it is evident
that the caseworker made timely efforts to re-engage respondent in counseling by providing her
with another therapist. Respondent, however, disengaged from those therapeutic services.
Under the circumstances, petitioner’s efforts were reasonable.
II. GROUNDS FOR TERMINATION
Respondent next argues that the trial court erred by finding that clear and convincing
evidence supported its conclusion that grounds for termination existed. We disagree. We review
for clear error the trial court’s determination whether statutory grounds for termination existed.
In re Trejo, 462 Mich 341, 356-357; 612 NW2d 407 (2000).
To terminate parental rights, the trial court must find that at least one of the statutory
grounds for termination in MCL 712A.19b has been met by clear and convincing evidence. In re
Jackson, 199 Mich App 22, 25; 501 NW2d 182 (1993). “If the court finds that there are grounds
for termination of parental rights and that termination of parental rights is in the child’s best
interests, the court shall order termination of parental rights and order that additional efforts for
reunification of the child with the parent not be made.” MCL 712A.19b(5).2
Here, the trial court found that clear and convincing evidence supported termination
under MCL 712A.19b(3)(l), which provides that a trial court may terminate a respondent’s
parental rights if clear and convincing evidence establishes that “[t]he parent’s rights to another
child were terminated as a result of proceedings under section 2(b) of this chapter or a similar
law of another state.” Record testimony reveals that the State of Arkansas terminated
respondent’s parental rights to another child in 2004 after the child was removed from
respondent’s care and neglect proceedings were initiated. Thus, we cannot conclude that the trial
court clearly erred by finding that grounds for termination existed under MCL 712A.19b(3)(l).
Further, because petitioner established at least one ground for termination by clear and
convincing evidence, it is not necessary for us to consider whether the trial court erred with
1
The caseworker testified that respondent was given more time to work toward reunification
than normal because of her mental illness.
2
Respondent does not contest on appeal the trial court’s best interests finding.
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regard to the other grounds for termination. See In re Trejo, 462 Mich at 354 n 12. The trial
court did not clearly err by terminating respondent’s rights to the minor children.
III. INDIAN CHILD WELFARE ACT
Respondent also asserts, and petitioner agrees, that the trial court failed to comply with
the notice provisions of the Indian Child Welfare Act, (ICWA), 25 USC 1901, et seq. “The
ICWA provides specific procedures and standards that apply where states are involved in
removing Indian children from their families.” In re TM, 245 Mich App 181, 186; 628 NW2d
570 (2001). The ICWA includes a notice provision, which 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 [of the
Interior] in like manner, who shall have fifteen days after receipt to provide the
requisite notice to the parent or Indian custodian and the tribe. [25 USC 1912(a).]
“Once notice is provided to the appropriate tribe, it is for the tribe to decide if the minor child
qualifies as an ‘Indian child.’” In re TM, 245 Mich App at 187.
In the present matter, the father3 of I.M. informed the trial court at the preliminary
hearing that I.M. could be of Sioux or Blackfoot Indian heritages. Thereafter, the trial court
entered an order indicating that I.M. was a member of, or eligible, for membership in the
Blackfoot tribe. However, there is no indication in the record that the court complied with the
notice requirements of the ICWA or otherwise determined that the ICWA did not apply. Thus,
the trial court failed to comply with the notice requirements of the ICWA. See In re Maynard,
233 Mich App 438, 445-447; 592 NW2d 751 (1999).
Having concluded that respondent’s parental rights were otherwise properly terminated,
we conditionally affirm the trial court’s termination order regarding I.M., but remand for further
proceedings to ensure compliance with the notice provisions of the ICWA and to determine
whether the ICWA is applicable. See id. at 449-450. On remand, if the trial court determines
that appropriate notice was provided and the ICWA does not apply, the termination order may
stand. Id. However, if the court determines that the ICWA does apply, the court should conduct
further proceedings consistent with its provisions. Id.
We affirm the order terminating respondent’s parental rights to M.M. and conditionally
affirm the order terminating respondent’s parental rights to I.M., but remand for the purpose of
3
At the time of the preliminary hearing, I.M.’s father had not yet established parentage, but did
so later in the proceedings. He never established parentage with regards to M.M., and thus, the
provisions of the ICWA do not apply to M.M. 25 USC 1903(9).
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providing proper notice to the appropriate tribe consistent with this opinion. We do not retain
jurisdiction.
/s/ William B. Murphy
/s/ Kirsten Frank Kelly
/s/ Cynthia Diane Stephens
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