-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

FOR PUBLICATION In re SPEARS, Minors. March 19, 2015 9:00 a.m.

No. 320584 Leelanau Circuit Court Family Division LC No. 09-007999-NA

Before: R IORDAN , P.J., and M ARKEY and W ILDER , JJ.

P ER C URIAM

. Appellant, Grand Traverse Band of Ottawa and Chippewa Indians (the “tribe”), appeals by leave granted the circuit court’s order denying its request to transfer adoption proceedings to the tribal court pursuant to § 7 of Michigan’s Indian Family Pr eservation Act (the “MIFPA”), MCL 712B.1 et seq . We conclude that the circuit court committed error warrantin g reversal in denying the tribe’s request to transfer these proceedings to th e tribal court under MCL 712B.7(5). The statute only permits the circuit court to deny a transfer request in two instances, and the circuit court improperly construed the statue to give i t greater authority to deny a transfer. We therefore reverse and remand for further proceedi ngs consistent wit h this opinion.

I. FACTUAL BACKGROUND

This case began in 2010 when the Department of Human Services (DHS) petitioned the circuit court to take jurisdiction over the minors under MCL 71 2A.2 on the basis of alleged abuse and neglect. The court took jurisdiction over the minors in August 2010, and in September 2010, the minors’ mother requested that the court transfer the case to the tribal court. The circuit court notified the tribe of the p roceedings in November 2010, b ut the tribe responded that the minors were not members or eligible for tribal membership. The DHS filed a supplemental petition in November 2011 seeking the termination of the parent al rights of the minors’ mother.

In December 2011, the tribe filed a notice of intervention, st ating that the minors were, in fact, enrolled members or eligible for membership. The tribe s tated that this determination was made possible after adoption reco rds regarding the minors’ moth er were unsealed and provided to the tribe’s membership office. The minors were enrolled as members in February 2012. On February 13, 2012, the minors’ mother filed a motion to dismiss the supplemental petition for noncompliance with the Indian Child Welfare Act (ICWA), 25 USC 1902 et seq . The mother also moved to transfer the case to the tribal court, which the circuit court granted but the tribal court denied the transfer, s tating in part, that it would not b e in the best interests of the minors.-2- On April 6, 2012, the minors’ mother voluntarily released her parental rights to the minors. And, on April 18, 2012, following a hearing, the circu it court entered an order terminating the parental right s of the minors’ father.

The minors’ foster parents, respondents Tim Donn and Anne Donn , with whom the minors had been residing for seve ral years, and the minors’ pat ernal grandparents in Missouri each wished to adopt the minors. The court ordered that the pl acement of the minors remain with the Donns until the Michigan Children’s Institute (MCI), through its agent, Bethany Christian Services, had completed its assessment and made a rec ommendation for adoptive placement. The tribe favored a doption with the minors’ paterna l grandparents.

On December 6, 2013, the MCI recommended adoptive placement wi th the Donns, who filed a petition for adoption on December 13, 2013. The tribe filed a motion to transfer the proceedings to its tribal court on December 23, 2013. The trib e also filed a motion in the tribal court to accept the transfer. The minors’ attorney and guardia n ad litem filed a recommendation in the circuit court to deny the requested transfer to the trib al court, stating there was good cause to not transfer based on the length of time the children had be en in placement, the late stage of the proceedings, and the amount of time it would take to appoin t and inform a new guardian ad litem in the tribal court re garding the lengthy background of t he proceedings.

The circuit court held a heari ng on February 6, 2014 regarding the tribe’s motion to transfer. The court denied the r equest due to the advanced sta ge of the case, noti ng that the tribal court had already denied a transfer once on the basis that it w as not in the best interests of the minors and that nothing had changed since then other than the a doption recommendation. The circuit court also concluded atransfer would not be in the bes t interests of t he children.

The circuit court also addre ssed the “good cause” requirement of MCL 712B.7(5) to deny the tribe’s transfer request. The circuit court observed that the tribe did have a tribal court, MCL 712B.7(5)(a), but ruled that “undu e hardship” of MCL 712B.7(5)( b) was not limited to the hardship imposed on witnesses to present evidence in the tribal court, explaining it found “clear and convincing evidence that hard ship to the parties; to wit, t he three children, would occur if this transfer were granted.” The court noted that the minors w ere undergoing stress and that they needed permanency. Additionally, the court found that the mino rs had been out of a parent’s home for nearly five years a nd should not be subjected to any m ore stress in that regard.

On February 7, 2014, the circuit court entered its order denyi ng the tribe’s motion to transfer for the reasons stated on the record. The court also stayed all proceedings, including its order denying a transfer to tri bal court, pending the exhaustio n of appellate remedies.

II. ANALYSIS

A. STANDARD OF REVIEW

Statutory interpretation is a question of law that this Court reviews de novo. In re Morris , 491 Mich 81, 97; 815 NW2d 62 (2012). Any factual determinati ons of the lower court are reviewed for clear error. Id .; MCR 2.613(C).-3- When interpreting a statute, a court’s primary goal is to asce rtain and effectuate the intent of the Legislature. Titan Ins Co v State Farm Mut Auto Ins Co , 296 Mich App 75, 83; 817 NW2d 621 (2012). The intent of the Legislature is found in the terms of the statute, giving its words their plain and ordinary meaning. Id .; In re Kostin Estate , 278 Mich App 47, 57; 748 NW2d 583 (2008). Nontechnical “words and phrases shall be cons trued and understood according to the common and approved usage of the language . . . .” MCL 8.3a. Where a word used in a statute is undefined, a dictionary may be consulted t o discern its common meaning. Echelon Homes, LLC v Carter Lumber Co , 472 Mich 192, 196; 694 NW2d 544 (2005). Courts must enforce clear statut ory language as written. Id

. “The Legislature is presumed to be aware of all existing statu tes when enacting a new statute.” Hughes v Almena Twp , 284 Mich App 50, 626 771 NW2d 453 (2009). When statutes relate to the same subject or share a common purpose they are in pari materia and must be read together as one law, even if the statutes contain no reference to one another and were enacted on different dates. Id .; Titan Ins Co , 296 Mich App at 84.

B. DISCUSSION

We begin our review of the MIFPA by looking at the legal backg round in which it was enacted. First, we examine federal law regarding Indian child welfare. Our Supreme Court summarized the legislati ve history of the ICWA:

In 1978, Congress enacted [the Indian Child Welfare Act, 25 US C 1901 et
seq. (“ICWA”)] in response to growing concerns over “abusive child w elfare practices that resulted in the sep aration of large numbers of I ndian children from their families and tribes through adoption or foster care place ment, usually in nonIndian homes.” Senate hearings conducted between 1974 and 1978 considered the harm of these child welfare practices, not only to the Indi an children and their parents, but also to the Indian tribes. [ In re Morris , 491 Mich at 97-98, quoting Mississippi Band of Choc taw Indians v Holyfield , 490 US 30, 32; 109 S Ct 1597; 104 L Ed 2d 29 (1989).]

When it enacted the ICWA, Congre ss declared that it was establ ishing “ minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes” in order to “protect the best interests of Indian children and promote the stability and security of Indian tribes and familie s[.]” 25 USC 1902 (emphasis added). The ICWA specifically defines “child custody proceedin g” to include those concerning the foster care and adoptive placement of Indian children, 25 U SC 1903(1), and provides that tribal courts have presumptive a nd concurrent jurisdiction withstate courts over such proceedings when Indian children, such as the minors in this ca se, reside outside an Indian reservation and are not wards of the tribal court, 25 USC 1911( b). See Holyfield , 490 US at 36 (“Section 1911(b) . . . creates concurrent but presumptively tr ibal jurisdiction in the case of children not domiciled on the res ervation”). The statute, 25 U SC 1911(b), provides:

In any State court proceeding for the foster care placement of , or termination of parental rights to, an Indian child not domicile d or residing within the reservation of the Indian ch ild’s tribe, the court, in the absence of good cause-4- to the contrary, shall transfer such proceeding to the jurisdic tion of the tribe, absent objection by either pare nt, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided , that such transfer shall be subject to declination by the tribal court of such tribe.

The ICWA does not define “good cause” sufficient for a state c ourt to deny a proper request to transfer an Indian ch ild placement proceeding to a t ribal court but the Bureau of Indian Affairs has issued guidelines commenting on the question. See Bureau of Indian Affairs, Guidelines for State Courts; I ndian Child Custody Proceedings , 44 Fed Reg No. 228, 67591, § C.3 (November 26, 1979). According to the BIA guidelines,

(a) Good cause not to transfer the proceeding exists if the I ndian child’s tribe does not have a tribal court as defined by the Act to whi ch the case can be transferred.

(b) Good cause not to transfer the proceeding may exist if an y of the following circumstances exists:

(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promp tly after receiving notice of the hearing.

(ii) The Indian child is over twelve years of age and objects to the transfer.

(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the par ties or the witnesses.

(iv) The parents of a child over five years of age are not av ailable and the child has had little or no contact with the c hild’s tribe or m embers of the child’s tribe.

(c) Socio-economic conditions and the perceived adequacy of t ribal or Bureau of Indian Affairs social s ervices or judicial systems ma y not be considered in a determination th at good cause exists.

(d) The burden of establishing good cause to the contrary sha ll be on the party opposing the transfer. [ Id .]

BIA guidelines also comment on the timeliness of a request to transfer a child custody proceeding to a tribal court:

While the Act permits interven tion at any point in the proceed ing, it does not explicitly authorize transfer requests at any time. Late i nterventions do not have nearly the disruptive effect on the proceeding that last m inute transfers do. A case that is almost completed does not need to be retried whe n intervention is permitted. The problems resulting from late intervention are p rimarily those of-5- the intervenor, who has lost the opportunity to influence the p ortion of the proceedings that was completed prior to intervention.

Although the Act does notexplicitly require transfer petition s to be timely, it does authorize the court to refuse to transfer a case for go od cause. When a party who could have petitioned earlier waits until the case is almost complete to ask that it be transferred t o another court and retried, good c ause exists to deny the request.

Timeliness is a proven weapon of the courts against disruption caused by negligence or obstructionist tac tics on the part of counsel. I f a transfer petition must be honored at any point before judgment, a party could wai t to see how the trial is going in state court and then obtain another trial if it appears the other side will win. Delaying a transfer request could be used as a tacti c to wear down the other side by requiring the case to be tried twice. The Act wa s not intended to authorize such tactics and the “good cause” provision is ample authority for the court to prevent them. [BIA guidelines at 67590, § C.1 Comment ary.]

Further, the BIA guidelines discuss undue hardship to the part ies or the witnesses, § C.3(b)(iii), as a factor f or finding good cause to deny a tra nsfer by quoting the House Report on the ICWA with respect to § 1911(b) and further commenting as fo llows:

“The subsection is intended to permit a State court to apply a modified doctrine of forum non conveniens , in appropriate cases, to insure that the rights of the child as an Indian, the Indian parents or custodian, and the tribe are f ully protected.” Where a child is in fact living in a dangerous situation, he or she should not be forced to remain there simply because the witnesses cannot affo rd to travel long distances to court.

Application of this criterion will tend to limit transfers to cases involving Indian children who do not live very far from the reservation. This problem may be alleviated in some instan ces by having the court come to the witnesses.

* * *

The timeliness of the petition for transfer, discussed at leng th in the commentary to section C.l, is listed as a factor to be consider ed. . . . Long periods of uncertainty concerning the fut ure are generally regarded as harmful to the wellbeing of children. For that r eason, it is especially important to avoid unnecessary delays in child custody proceedings. [BIA guidelines at 67591-67592, § C.3 Commentary.]

In 2010, the Michigan Court Rules were amended to reflect the requirements of the ICWA regarding petitions to tran sfer child custody proceedings to a tribal court and defined good cause not to transfer in reference to the BIA Guidelines. Specifically, MCR 3.905(C)(1), as adopted February 2, 2010, effective May 1, 2010, 485 Mich ccxxx iv, stated that “[i]n determining whether good cause not to transfer exists, the court shall consider the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custo dy Proceedings, 44 Fed Reg No-6- 228, 67590-67592, C.2-C.4 (November 26, 1979).” MCR 3.905(C)(1 ) was again amended on March 20, 2013, effective immediately, to reflect the Legislature’s adoption of the MIFPA, which established standards for finding of good cause to deny a transfer of an Indian child custody proceeding to a tribal court. 493 Mich cciv-ccv. The 2013 version of MCR 3.905(C)(1) did not refer to the BIA guideline s and instead incorporated th e criterion of MCL 712B.7(3)-(5):

(1) If either parent or the Indian custodian or the Indian chi ld’s tribe petitions the court to transfer the proceeding to the tribal co urt, the court shall transfer the case to the tribal court unless either parent obje cts to the transfer of the case to tribal court jurisdiction or the court finds good c ause not to transfer. When the court makes a good-cause determination under this sect ion, adequacy of the tribe, tribal court, or tribal social services shall not be considered. A court may determine that good cause not to transfer a case to tribal court exists only if the person opposing the transfer shows by clear and convincing evidence that either of the following applies:

(a) The Indian tribe does not have a tribal court.

(b) The requirement of the parties or witnesses to present evi dence in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is unable to mitigate. [MCR 3.905(C)(1); 493 Michcciv-ccv.]

The Michigan Legislature enacted the MIFPA, MCL 712B.1 et seq ., which took effect on January 2, 2013, with the purpose o f protecting “the best inter ests of Indian children and promot[ing] the stability and security of Indian tribes and fam ilies.” MCL 712B.5(a). The best interests of Indian children are to be determined in child cust ody proceedings in consultation with the Indian child’s tribe, in accordance with the IWCA, and the policy specified in the MIFPA. MCL 712B.5. The MIFPA addresses transfers to a tribal court of a child custody proceeding involving an Indian child not domiciled or residing within the reservation of the Indian child’s tribe in MCL 712B.7(3):

In any state court child custody proceeding, for an Indian chi ld not domiciled or residing within the reservation of the Indian chil d’s tribe, the court, in the absence of good cause to th e contrary, shall transfer th e proceeding to the Indian tribe’s jurisdiction, ab sent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tri be, provided that the transfer is subject to declinat ion by the tribal court of the I ndian tribe.

Unlike the ICWA, the MIFPA provides clear and unambiguous stan dards for circuit courts when exercising their discretion regarding what constitu tes “good cause to the contrary” when considering a petition to transfer an Indian child custodycase to a tribal court. MCL 712B.7(5) provides:

A court may determine that good cause not to tra nsfer a case t o tribal court exists only if the person opposing the transfer shows by clear and convincing evidence that either of the following applies:

(a) The Indian tribe does not have a tribal court.-7- (b) The requirement of the parties or witnesses to present evi dence in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is unable to mitigate. [Emphasis added.]

Section 7(3) of MIFPA further provides: “When a court makes a g ood cause determination under this section, adequacy of the tribe, tribal court, or tribal so cial services shall not be considered.” MCL 712B.7(4). As noted already, MCR 3.905(C)(1) was amended t o delete reference to the BIA guidelines and instead incor porates the requirements of the MIFPA. 1

With this extended legal history, we address the issue present ed in this case: May a circuit court find “good cause not to transfer a case to tribal court” under MCL 712B.7(5)(b) on the basis of “undue hardship” to an Indian child or children as a result of delay in the proceedings resulting from the transfer of a long-pending case to tribal court? S tated otherwise, does MCL 712B.7(5)(b) permit a circ uit court to deny a request to transfer an Indian child custody proceeding to a tribal court based on the timeliness of the request or the effect the transfer may have on the child’s best interests? However merit orious these considerations may be, we conclude that the plain language of MCL 712B.7(5)(b) doe s not permit the circuit court to consider either the timeliness of the request or its possible e ffect on the child’s best interest in determining whether there exis ts “good cause not to transfer a case to tribal court.”

In answering this question, our primary goal is to ascertain a nd effectuate the intent of the Legislature. Titan Ins Co , 296 Mich App at 83. In doing so, we must first examine “the most reliable evidence of the Legislature’s intent, the language of the statute itself.” Book-Gilbert v Greenleaf , 302 Mich App 538, 541; 840 NW2d 743 (2013). We must give eff ect to every word, phrase, and clause in a statute, and avoid a construction that would render part of the statute surplusage or nugatory. Id . Thus, we ascertain the intent of the Legislature from the te rms of the statute, giving its words their plain and ordinary meaning. In re Kostin Estate , 278 Mich App at 57. Where the terms of a statute are clear and unambiguous, we must enforce the statute as written. Id .; Book-Gilbert , 302 Mich App at 541.

MCL 712B.7(3) unambiguously provides that a court “shall” tran sfer proceedings to a tribal court unless either paren t objects or there is “good cau se to the contrary,” and MCL 712B.7(5) unambiguously provides that good cause not to transfe r a case to tribal court exists “only if,” by clear and convinci ng evidence, one or two circums tances exist. And because there is no dispute that a tribal court exists, MCL 712B.7(5)(a), the sole issue is whether the circuit court properly concluded that “[t]he requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is unable to mitigate” under MCL 712B.7(5)(b).

1 MCR 3.807(B)(2)(a), adopted February 2, 2010 and effective May1, 2010, was worded identically to MCR 3.905(C)(1), incorporating the BIA guideline s. See 485 Mich ccxxxi. MCR 3.807(B)(2)(a) was also amended after the enactment of the MIFP A to eliminate reference to the BIA guidelines and incorporate th e requirements of the MIFPA us ing language identical to the 2013 version of MCR 3.905(C)(1). See 493 Mich ccii-cciii.-8- By its plain language, good cause to not transfer an Indian ch ild custody proceeding to a tribal court under MCL 712B.7(5)(b ) has three components. Firs t, there must be an undue hardship on the parties or witnesses that will be required to p resent evidence in the tribal court. 2 See MCL 712B.7(5)(b) (stating “[t] he requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those parties or witnesses”) (emphasis added). Second, the undue hardship must stem from the requirement to pr esent evidence in the tribal court. See MCL 712B.7(5)(b) (ma ndating that “[t]he requirement of the parties or witnesses to present evidence would cause undue hardship”) (emphasis added). Third, the Indian tribe mu st be unable to mitigate the undue hardships caused by the require ment of the parties or witnesses present evidence in the triba l court. MCL 712B.7(5)(b).

In ruling that there was good cause not to transfer the procee dings to the tribal court, the circuit court ignored each of t he criterion of MCL 712B.7(5)(b) . First, the circuit court based its decision on an undue hardship to the minors without determining whether the minors had any requirement to present evidence in the tribal court. The circu it court also did not identify any other parties or witnesses that would be required to present ev idence in the tribal court. And the circuit court failed to explain why the tribal court would be unable to mitigate the anticipated undue hardships. Moreover, the c ircuit court did not relate th e anticipated undue hardship to the requirement to present evidence in the tribal court. Instead, the court ruled that it would give MCL 712B.7(5)(b) a “wider” inte rpretation, allowing it to consi der the timeliness of the request and the minors’ bests interests. We have no doubt that the cir cuit court was motivated by its understanding of what would be in t he minors’ best interests. Nevertheless, when the Legislature fails to address a concern in the statute with a specific provi sion, a court cannot i nsert a provision simply because it would have been wise for the Legislature to d o so. Book-Gilbert , 302 Mich App at 542. However wise it may have been for the Legislature to provide that there is good cause not to transfer a case to a tribal court when the transfe r request is made at an advanced stage of the proceeding or when a transfer would negatively aff ect a minor’s best interests, the Legislature chose to define “ good cause” using different criter ia than considered in the BIA guidelines. We must enforce th e unambiguous la nguage of MCL 71 2B.7(5)(b) as written. BookGilbert , 302 Mich App at 541; In re Kostin Estate , 278 Mich App at 57.

Although the BIA guidelines provi de separately that good cause not to transfer a case to a tribal court may exist if a request to transfer is made at “an advanced stage . . . and the petitioner did not file the petition promptly after receiving notice of th e hearing,” BIA guidelines, at 67591, § C.3(b)(i), the Michigan Legisl ature chose not to include time liness of the request for transfer as a basis for finding good cause under MCL 712B.7(5). Instead, t he Michigan Legislature decided

2 We note that MCR 3.903(A)(19)(b) defines “party” to include th e “petitioner, child, respondent, and parent, guardian, or legal custodian in a prote ctive proceeding.” We also observe that MCL 712B.7(6), M CR 3.807(B)(3) and MCR 3.905(D) al l extend the right to intervene in an Indian child custody proceeding to the Indian c hild. “In any state court child custody proceeding, an Indian child , the Indian custodian of the child, and the Indian child’s tribe have a right to intervene at any point in the child custo dy proceeding.” MCL 712B.7(6) (emphasis added).-9- to impose a more exacting standard than provided in the ICWA’s “minimum Federal standards,” 25 USC 1902, by specifying that good cause not to transfer exis ts “ only if ” (1) “[t]he Indian tribe does not have a tribal court,” or (2) “[t]he requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those pa rties or witnesses that the Indian tribe is unable to mitigate.” MCL 712B.7(5) (emphasis added).

Further, the BIA guide lines consider the timeliness of a reque st to transfer i n part because the ICWA permits Indian tribes to intervene in state child cust ody proceedings at any time, but do not explicitly permit them to request transfers at any time. BIA guidelines, at 67590, § C.1. Compare 25 USC 1911(c) (permitting intervention in state court proceedings “at any point in the proceeding”) with 25 USC 1911(b) (requiring transfers in the ab sence of good cause to the contrary or an objection by either parent, without specifying w hen transfer requests may or may not be made). But unlike the ICWA, Michigan Court Rules expres sly provide that “[a] petition to transfer may be made at any time in accordance with MCL 712B.7(3).” MCR 3.807(B)(2)(d); MCR 905(C)(4) (emphasis added). See e.g., In re NV , 744 NW2d 634, 638 (Iowa, 2008) (finding that the Iowa legislatur e, when it adopted the Iowa ve rsion of the ICWA, included the undue hardship provision of the B IA guidelines but not the prov ision dealing with the timeliness of a transfer request).

Finally, although the Donns argue that the circuit court’s dec ision should be affirmed because the tribal court waived its right to accept a transfer by denying a prior transfer request, they present no authority supporting the position that a tribal court can waive its jurisdiction at all, let alone by merely denying a prior request. Accordingly, we find this argument has been abandoned. See Bronson Methodist Hosp v Mich Assigned Claims Facility , 298 Mich App 192, 199; 826 NW2d 197 (2012) (holding than an appellant abandons an argument made with only superficial treatment and little or no citation of supporting a uthority). Further, our Court Rules broadly provide that “[a] petition to transfer may be made at a ny time . . .,” MCR 3.802(2)(d); MCR 905(C)(4), and respondents point to no authority limiting this right.

We reverse and remand for further proceedings consistent with this opinion. Because a question of public policy is invo lved, no taxable costs may be assessed under MCR 7.219. We do not retain jurisdiction.

/s/ Michael J. Riordan /s/ Jane E. Markey /s/ Kurtis T. Wilder