## Facts

- Respondent-mother had four minor children: A.P., D.P., K.P., and D.F.
- A.P. and D.P. were “Indian children” under the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA) because they were members of, or eligible for membership in, the Red Cliff Band of Lake Superior Chippewa (the Band). K.P. and D.F. were not Indian children for ICWA/MIFPA purposes.
- The Department of Human Services (DHS) had been involved with the family for years based on reports and proceedings involving abuse and neglect, including allegations of physical abuse, neglect, lack of supervision, mental-health concerns, and substance abuse.
- In September 2013, the trial court terminated the mother’s parental rights to all four children under Michigan statutory grounds.
- In a first appeal (unpublished), the Court of Appeals held that ICWA/MIFPA applied to A.P. and D.P. and that the trial court had not (1) applied the “beyond a reasonable doubt” standard required for the ICWA serious-damage finding or (2) received qualified-witness testimony supporting that finding. The case was remanded for further proceedings.
- On remand, the trial court held a new termination hearing. The court found Christopher Hillert, a child-welfare worker for the Band, to be a qualified witness regarding the Band’s culture and child-rearing practices.
- Hillert testified that the Band generally did not support termination of parental rights and that he believed the mother’s continued custody was unlikely to result in serious emotional or physical damage to A.P. or D.P.
- Despite Hillert’s testimony, the trial court again terminated the mother’s parental rights to all four children, finding (as to A.P. and D.P.) that DHS had proved beyond a reasonable doubt that continued custody was likely to cause serious emotional or physical damage and that termination was in the children’s best interests.
- The mother appealed the post-remand termination order.

## Issues

1. For A.P. and D.P., did the trial court satisfy ICWA and MIFPA by making the required serious-damage determination beyond a reasonable doubt “including testimony of qualified expert witnesses” when the qualified witness testified that serious damage was unlikely?
2. For A.P. and D.P., may a trial court rely on other record evidence to supply ICWA’s qualified-witness component when the qualified witness does not support the serious-damage conclusion?
3. For K.P. and D.F., did clear and convincing evidence support at least one Michigan statutory ground for termination and did the record support the best-interests findings?

## Decision

- The Court of Appeals affirmed in part, reversed in part, and remanded.
- The court reversed the termination order as to the Indian children (A.P. and D.P.) because ICWA/MIFPA require qualified-witness testimony supporting the finding that continued custody is likely to result in serious emotional or physical damage, and the only qualified-witness testimony offered did not support that conclusion.
- The court affirmed termination as to the non-Indian children (K.P. and D.F.) under Michigan’s statutory-grounds and best-interests standards.
- The Michigan Supreme Court later denied leave to appeal. *In re Payne/Pumphrey/Fortson*, 498 Mich. 869 (2015) (table).

## Legal Principles

- For an Indian child, termination requires (1) proof of a Michigan statutory ground by clear and convincing evidence and (2) a separate ICWA/MIFPA finding, proved beyond a reasonable doubt, that continued custody by the parent is likely to result in serious emotional or physical damage.
- The ICWA/MIFPA serious-damage finding must be supported by evidence “including testimony of qualified expert witnesses”; the qualified-witness requirement is not optional and cannot be replaced solely by lay testimony or other proofs.
- A witness with training and experience in tribal child welfare and knowledge of the tribe’s culture and child-rearing practices may qualify as an ICWA/MIFPA witness.
- The qualified witness need not give an opinion on the ultimate legal question of whether termination should occur, but the witness’s testimony must support (and not negate) the statutory requirement that serious damage is likely if custody continues.
- For non-Indian children, ICWA/MIFPA do not apply; Michigan’s standards govern, including a separate, child-specific best-interests determination after a statutory ground is proven.

## Conclusion

The Court of Appeals held that the post-remand termination of parental rights to A.P. and D.P. could not stand because ICWA/MIFPA require proof beyond a reasonable doubt supported by qualified-witness testimony that continued custody is likely to cause serious emotional or physical damage, and the qualified witness testified the opposite; the court otherwise affirmed termination as to the non-Indian children and remanded for further proceedings consistent with its rulings.


In re Payne/Pumphrey/Fortson, 311 Mich. App. 49, 498 Mich. 869 (2015)