(Cite
as: 156 Mich.App. 608, 402 N.W.2d 13)
Court
of Appeals of Michigan.
In
the Matter of Lee Ryan JOHANSON, Minor.
DEPARTMENT
OF SOCIAL SERVICES, Petitioner-Appellee,
v.
Joann
JOHANSON, Respondent-Appellant,
and
Joseph
Neff, Respondent.
Docket
No. 89555.
Submitted June 5, 1986.
Decided
Oct. 17, 1986.
Leave
to Appeal Denied March 4, 1987.
Release
for Publication March 24, 1987.
**14
*609
Joseph T. Barberi, Pros. Atty. and Larry J. Burdick, Sr. Asst. Pros.
Atty., Mt. Pleasant, for petitioner-appellee.
Paul H. Chamberlain, Mt. Pleasant,
for respondent-appellant.
Before SULLIVAN, P.J., and MAHER
and HARRISON [FN*],
JJ.
FN*
Michael G. Harrison, 30th Judicial Circuit Judge, sitting on Court of
Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended
1968.
PER CURIAM.
Respondent Joann Johanson appeals
as of right from a probate court order terminating her parental rights
with regard to her son Lee Ryan Johanson. Although the order also terminated
the parental rights of Joseph Neff, the natural father, he has not joined
in appealing the order.
Lee Ryan was born on August 23,
1983. On March 15, 1984, a petition was filed by the Isabella
County Department of Social Services alleging that Lee Ryan was a neglected
child and came within the provisions of M.C.L. § 712A.1 et
seq.; M.S.A.
§ 27.3178(598.1) et
seq. An
adjudicative hearing was held on August 15, 1984, after which the probate
court found that respondent had neglected Lee Ryan and had provided an
unfit home due to her excessive drinking.
Lee Ryan was made a temporary ward of the court.
A dispositional hearing was held
on August 16, 1984. Lee Ryan remained a temporary ward of
the court. A review hearing was held on November 15, 1984.
*610
A petition to terminate respondent's parental rights was filed on February
15, 1985. A hearing was held on March 13, 1985. In
an opinion dated June 20, 1985, the probate court stated that it found
clear and convincing evidence that Lee Ryan had been neglected due to
respondent's drinking problem. An order terminating parental
rights was entered on July 10, 1985.
On July 30, 1985, respondent
filed a petition for rehearing alleging that she had applied for membership
with the Cherokee Indians. At a hearing held on September
10, 1985, respondent established that she and Lee Ryan had become members
of the Cherokee Nation of Oklahoma on August 28, 1985. Respondent
claimed that a rehearing was necessary because the termination of parental
rights proceedings did not meet the minimum federal requirements of the
Indian Child Welfare Act. 25 U.S.C. § 1901 et
seq.
On October 15, 1985, the probate
court issued an opinion and order denying respondent's motion for rehearing.
The court stated:
"Unquestionable
(sic), Lee Ryan Johanson was not a member
of an Indian Tribe until after
the Order Terminating his mother's parental right had been entered. Equally
without question, in the light of Petitioner's Exhibits 1-3, it
is obvious that he was eligible for membership in the Cherokee Nation,
or at the very least could become eligible once his mother established
her tribal membership. Unfortunately, it appears that she
(Joann Johanson) did not become a certified **15
tribal member until August 21, 1985, while the Order Terminating her legal
rights was issued on July 10, 1985. Therefore, it appears
that while Lee Ryan Johanson may well have been eligible
for Tribal membership on July 10, 1985 and earlier, he was not yet the
biological child of 'a member of an Indian Tribe.' The Court
is forced to the reluctant *611
conclusion that Joann Johanson waited too long to establish her tribal
membership had she wanted the Indian Child Welfare Act to apply at that
stage of the proceedings." (Emphasis supplied.)
The
only issue on appeal is whether the probate court erred in denying respondent's
motion for rehearing. M.C.L. § 712A.21(1); M.S.A.
§ 27.3178(598.21) provides in part:
"An
interested person, at any time while the child is under the jurisdiction
of the court, may file a petition, in writing and under oath, for a rehearing
upon all matters coming within the provisions of this chapter, and upon
the rehearing the court may affirm, modify, or set aside any order so
reviewed."
MCR 5.909(C) provides:
"The
court may grant a petition for rehearing, filed in writing while the child
is under the jurisdiction of the court. MCL 712.21; MSA 27.3178(598.21).
A petition for rehearing will not be considered unless it
presents a matter not previously presented to the court which, if true,
would cause the court to reconsider the disposition."
The probate court's decision whether or not to grant a petition
for rehearing is discretionary and will not be reversed absent an abuse
of discretion. In
the Matter of Bell,
138 Mich.App. 184, 360 N.W.2d 868 (1984).
The
Indian Child Welfare Act provides minimum federal standards for the removal
of Indian children from their families and their placement in foster or
adoptive homes. 25 U.S.C. § 1902; In
the Matter of Morgan,
140 Mich.App. 594, 364 N.W.2d 754 (1985). The act was enacted
in 1978 to "protect *612
the best interests of Indian children and to promote the stability and
security of Indian tribes and families...." 25 U.S.C. § 1902.
There are two prerequisites to invoking the requirements of
the act. First, it must be determined that the proceeding
is a "child custody proceeding" as defined by § 1903(1).
Second, it must be determined that the child is an Indian
child as defined by § 1903(4). Assuming that an
Indian child is involved in an involuntary proceeding, the Indian tribe
must be notified of the proceeding and its right to intervene. Section
1912(a) provides in 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." 25 USC 1912.
Violation of the notice provision may be cause for invalidation
of the proceedings. 25 U.S.C. § 1914. See
also, In re Junious
M, 144 Cal.App.3d 786,
193 Cal.Rptr. 40 (1983).
In the instant case, nothing
in the record evidences that the trial court knew or should have known
that Lee Ryan was an Indian child. Respondent cites the following
statement by the probate court in support of her claim that the probate
court knew that Lee Ryan was an Indian child:
"As
to disposition, it is the considered judgment of the Court that consideration
should be given to the child's Indian heritage. Federal law
requires that when adoption of an Indian child occurs, the *613
extended family of the child has first priority. Because of
the inability of the subject of the petition and his respondent-mother
to establish the necessary Tribal affinity said Federal law apparently
does not directly apply in this case."
The record contains several references to the Saginaw Tribe of Chippewa
Indians. It appears, however, that the reference to the Chippewa
Indians had to do with the fact **16
that respondent at one time had rented a home on the Chippewa reservation.
There is nothing in the record to suggest that respondent
was a member of that tribe. In fact, respondent admits that
she unsuccessfully attempted to obtain membership in that tribe during
the child custody proceedings. In any event, the trial court
was assured that neither respondent nor Lee Ryan was a member of the Chippewa
Indians.
Only after the order terminating
parental rights was entered did respondent seek membership in the Cherokee
nation. She claims that the possibility of membership in that
nation arose only through posttermination discussions with her father,
who evidently is a member of the Cherokee nation. To suggest
then that the probate court knew or had reason to know prior to terminating
parental rights that Lee Ryan was a member of the Cherokee nation is illogical.
The record is void of any reference to the Cherokee Indians.
We are convinced that the probate court would have applied
the provisions of the Indian Child Welfare Act had it any inclination
that Lee Ryan was an Indian child as defined by the act. The
fact that Lee Ryan may have Indian heritage does not qualify him as an
Indian child under § 1903(4).
Since the probate court did not
know and had no reason to know that Lee Ryan was an Indian *614
child, we find no abuse of discretion in the denial of respondent's motion
for rehearing.
[FN1]
FN1.
We note that the Indian Child Welfare department of the Cherokee Nation
of Oklahoma was informed of the termination proceedings and declined intervention.
The requirements of the Indian Child Welfare Act are being
followed with regard to the placement and adoption proceedings.
Affirmed.
156 Mich.App. 608, 402 N.W.2d
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