-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

UNPUBLISHED In re E. L. Thomas, Minor. May 26, 2015

No. 323060 Oakland Circuit Court Family Division LC No. 14-818871-NA

Before: M URPHY , P.J., and S TEPHENS and G ADOLA , JJ.

P ER C URIAM

. Respondent mother appeals as of right the circuit court order terminating her rights to the minor child under MCL 712A.19b(3)(g ), (i), (j), and (l). We co nditionally reverse and remand for a determination whether the notice requirements of the Indi an Child Welfare Act (ICWA), 25 USC 1912(a), were met.

Respondent first claims that the trial court erred reversibly in holding termination proceedings prior to the completion of the ICWA notification pr ocess. At the preliminary hearing, respondent indicated that she had Indian heritage, spe cifically Cherokee and Blackfoot. The caseworker sent out notices to these tribes under the ICWA in which the names of the minor and her grandmother were misspelled. The worker testified that she then re-sent all of the notices with the correct spelli ngs before the second preliminar y hearing in early April 2014. The referee found that since the ori ginal notices were “only off byone letter,” there was no violation under the ICWA in proceeding with termination. Because there w ere prior terminations, the Department of Human Services (DHS) sought termination at initia l disposition pursuant to MCL 712A.19a(2)(c) and MCL 722.638(b)( i ).

We find that conditional revers al and a remand are required be cause of notice deficiencies in the trial court file. In In re Morris , 491 Mich 81, 199-122; 815 NW2d 62 (2012), the Supreme Court held that th e proper remedy for an ICWA notic e violation was to conditionally reverse and remand for resolution of the notice i ssue because the circuit court file must contain the original or a c opy of notices sent to the trib es and originals or legible copies of proofs of service received, such a s the registered mail return receipt cards. Id . at 89. The record also should contain copies of all additional correspondence con cerning the child’s Indian heritage. Id . at 113-114.

In the case at bar, the record contains copies of some registe red mail receipts and letters from Native American tribes. However, some of the letters stat e the correct spellings and some contain incorrect spellings of th e child’s name. Also, copies of letters sent by the caseworker to-2- the tribes are not included. At the termination hearing, the c aseworker testified that she continued to receive notices from the tribes regarding whether the child had Indian heritage (all said no). Pointing to this te stimony, respondent argues that a remand is require d to determine the notice issue. We agree.

We find a remand necessary in accord with Morris
, 491 Mich at 103-104, 114, 121-122. See also Anno, Construction and Application of Indian Child Welfare Act of 1978 , 89 ALR5th 195. The record does not contain any notices or copies of noti ces sent to Native American tribes or the Bureau of Indian Affairs, or several items of correspond ence mentioned by caseworkers at trial. This is a direct violati on of the Supreme Court’s direc tives in Morris

. In re Morris , 491 Mich at 113-114. Without this information, it is impossible fo r this Court to determine whether proper notices were, in fact, sent. “[R]esponses to the ICWA n otices without the notices are insufficient because it is impossible to determine from the res ponses alone whether the notices provided the tribe with relevant information and therefore with a meaningful opportunity to evaluate whether the dependent minor is an Indian child.” In re Louis S , 117 Cal App 4th 622, 629; 12 Cal Rptr 3d 110 (2004).

It is the trial court’s responsibility to insure that the file provided to this Court contains the notices and proofs of service as required by Morris , 491 Mich at 114. Reversal in this case is conditioned upon the resolution of the ICWA notice violation onremand. On remand, we direct the trial court to resolve the ICWA notice violation issue anew

. Id. at 121-122. The record must contain the items required by the Supreme Court in Morris . The caseworker’s testimony, that the notices were re-sent with proper spellings and information, does not enable this Court to resolve the issue, nor does it comply with the requirements in Morris

. Next, respondent claims that c lear and convincing evidence did not support termination of her parental rights. We disagree. Clear and convincing evi dence satisfied the statutory grounds under at least MCL 712A.19b(3)(g), (i), and (l). Under subsection (g), which requires a showing that respondent failed to provide proper care or custod y and would be unable to do so within a reasonable time, the evi dence showed that the child te sted positive for cocaine and opiates at birth. While the opiat es might have resulted from r espondent’s prescription medicines, the cocaine result necessarily r eflected respondent’s consumpti on of an illegal, harmful substance when respondent knew she was in late-term pregnancy. The baby’s lack of withdrawal symptoms did not exc use respondent’s b ehavior. Ther e was testimony th at it was too early to tell if the baby would suffer adverse effects from the mother’s ingestion of drugs. As the court noted, respondent was given “multiple opportunities throu gh multiple agencies” for ten years and had not shown she could get sober. Even respondent’s mother’s testimony showed that respondent had a severe drug p roblem that had included her oin as well as cocaine.

Grounds for termination were also shown under subsections (i) and (l). Subsection (l) does not require any evidence be yond a prior involuntary termin ation, which respondent had. Respondent’s situation also satisfied subsection (i) because sh e was provided services previously and did not improve sufficientlyto retain parental rights. In affirming the termination of respondent’s parental rights to three older children under subs ection (l) in 2013, this Court noted that respondent had previously had her rights to two other chil dren terminated, had been terminated from parenting classe s, failed to comply with random drug screening, and missed visitations. She also had a hist ory of unresolved substance ab use and mental health issues.-3- Reunification services were not required because DHS’s goal was termination. In re HRC , 286 Mich App 444, 463; 781 NW2d 105 (2009). Because of the prior t erminations, it was appropriate to seek termination at initial disposition in this case as well. MCL 712A.19a(2)(c); MCL 722.638.

During the instant hearings, the trial court repeatedly commented on respondent’s demeanor as showing that she was highly medicated and seemed “v ery out of it.” The trial court found that respondent had taken m any prescription drugs, even o n the day the child was born. She was also on probation and ha d not attended parenting classe s or drug screens. Apparently, respondent had replaced the illeg al drugs with prescription opi ates and mood-altering substances, and was not any further along than she was when she went throug h the prior terminations.

We therefore reject respondent’s arguments for finding that st atutory grounds for termination were not proven. The trial court did not clearly e rr in finding clear and convincing evidence to satisfy the statutory grounds for termination under MCL 712A.19b(3)(g), (i), and (l). We need not decide whether sufficient evidence was presented un der subsection (j). Only one subsection need be proven by clear and convincing evidence to t erminate parental rights. In re Foster , 285 Mich App 630, 633; 776 NW2d 415 (2009).

Finally, respondent claims that termination of her parental ri ghts was not in the child’s best interests. We disagree. The trial court analyzed the app ropriate factors and its decision was not clearly erroneous. Respondent had been unable to conquer h er long-standing drug problem, and there was little evidence that she might do so within a rea sonable time, even with services. She had no bond with the baby. Although this was not her fault , DHS’s decision not to foster a bond was appropriate, given the pr ior terminations and the goal of termination here. HRC , 286 Mich App at 463. DHS planned to place the child with one or mo re of her siblings. It was not in the child’s best interests to wait while respondent tried to be come an acceptable parent; respondent had a long history of being unable to do this, and there was no reason to expect a different result within a reas onable time. The court did not c learly err in its best -interest ruling.

Reversed and remanded for further proceedings as outlined in this opinion and in Morris
, 491 Mich at 114, 121-122. We do not r etain jurisdiction.

/s/ William B. Murphy /s/ Cynthia Diane Stephens /s/ Michael F. Gadola