                           STATE OF MICHIGAN

                            COURT OF APPEALS



                                                                      FOR PUBLICATION
In re E. M. ENGLAND, Minor.                                           January 28, 2016
                                                                      9:05 a.m.

                                                                      No. 327240
                                                                      Washtenaw Circuit Court
                                                                      Family Division
                                                                      LC No. 13-000190-NA


Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

PER CURIAM.

        Respondent appeals as of right the trial court’s order terminating his parental rights to the
minor child, E.M., at the initial disposition under MCL 712A.19b(3)(b)(i) (parent caused
physical abuse and reasonable likelihood that child will suffer from injury or abuse in the future
if returned to the parent), (j) (reasonable likelihood that child will be harmed if returned to the
parent), and (k)(iii) (parent abused the child and abuse included battering, torture, or other severe
physical abuse). For the reasons set forth in this opinion, we affirm.

                          A. FACTS AND PROCEDURAL HISTORY

       These proceedings stem from an investigation of child abuse that took place after the
child, E.M., then approximately two months old, was brought by his parents to the Mott
Children’s Hospital at the University of Michigan on Sunday, December 15, 2013, with concerns
of a “popping sensation” on the left side of his ribs. X-rays ultimately revealed that E.M. had
two acute fractures in the seventh and eighth ribs on the left posterior side of his body, as well as
several other, potentially older, fractures in the fourth, fifth, and sixth ribs on his right and left
sides. X-rays also showed that E.M. had a fracture in his right tibia, which was definitely older
than the rib fractures and already healing. Finally, E.M. was observed to have a bruise on his
chest. Dr. Bethany Mohr, a pediatric hospitalist and director of the child protection team at Mott
Children’s Hospital, opined that, given the various stages of healing, the injuries showed there
were “at least two incidents” in which E.M. was harmed. In her opinion, the fractures were
“diagnostic of abuse” and the bruise was “also highly suspicious, if not diagnostic of abuse.”

        Respondent was interviewed at the hospital by Dr. Mohr. He initially indicated that he
did not know how E.M. could have been injured, but subsequently acknowledged two previous
occasions, including one on December 14, 2013, in which he had fallen while carrying E.M. in
his car seat. Respondent clarified to Dr. Mohr, however, that the child was not injured in either
of these falls because he never fell out of his car seat. Respondent was also interviewed by Child
                                                 -1-
Protective Services (CPS) specialist Rita Sharma and Washtenaw County Sheriff’s Detective
Craig Raisanen. As in his first interview, respondent initially told Sharma and Raisanen that he
did not know how E.M. was injured. Subsequently, however, he admitted being responsible for
the child’s rib and leg fractures. Specifically, as to the leg fracture, respondent indicated that he
lifted E.M. up by both of his legs while changing his diaper on December 11, 2013, and that in
doing so he had used enough force to possibly cause the injury. As to the rib injuries, respondent
told Sharma and Raisanen about his fall on December 14, 2013, while he was carrying E.M. As
in his first interview, respondent clarified that E.M. was not injured when he fell. However, in
falling, respondent injured his back. Subsequently, when he attempted to remove the child from
the car seat, he felt a sharp pain in his back, causing him to squeeze E.M. in the torso area with
both hands, possibly causing the rib injuries. Respondent acknowledged that on both occasions
he recognized that E.M. may have been injured, but he did not seek medical attention or inform
E.M.’s mother.

       Respondent was eventually charged with two counts of second-degree child abuse. He
pleaded guilty to one count and was sentenced to two years’ probation. At the same time, the
Department of Health and Human Services (DHHS) petitioned the trial court to terminate
respondent’s parental rights. After a two-day combined adjudication trial and termination
hearing, the trial court granted that request. Respondent now appeals as of right.

                                     B. GOVERNING LAW

       At the outset, we note that there is no dispute that E.M. is eligible for membership in the
Sault Ste. Marie Tribe of Chippewa Indians (the Tribe) and is thus an Indian child, such that the
various procedural and substantive provisions of the Indian Child Welfare Act (ICWA), 25 USC
§ 1901 et seq., and the Michigan Indian Family Preservation Act (MIFPA), MCL 712B.1 et seq.,
applied to these proceedings. See 25 USC § 1903(4); MCL 712B.3(k). To facilitate our
analysis, we provide the following brief overview of both acts.

        “In 1978, Congress enacted [the] ICWA in response to growing concerns over ‘abusive
child welfare practices that resulted in the separation of large numbers of Indian children from
their families and tribes through adoption or foster care placement, usually in non-Indian
homes.’” In re Morris, 491 Mich 81, 97-98; 815 NW2d 62 (2012), quoting Mississippi Band of
Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct 1597; 104 L Ed 2d 29 (1989). The stated
purpose of the ICWA is to protect and preserve Indian families, tribes, and tribal culture. Id.

        More recently, in January 2013, the Michigan Legislature enacted the MIFPA “with the
purpose of protecting ‘the best interests of Indian children and promot[ing] the stability and
security of Indian tribes and families.’” In re Spears, ___ Mich App ___, ___; ___ NW2d ___
(Docket No. 320584, issued March 19, 2015); slip op at 6, quoting MCL 712B.5(a). The ICWA




                                                -2-
and the MIFPA each establish various substantive and procedural protections where an Indian
child1 is involved in a child protective proceeding.

        Relevant to this appeal, the ICWA sets forth the following substantive provisions for
child protective proceedings involving an Indian child:

       (d) Remedial services and rehabilitative programs; preventive measures.

       Any party seeking to effect a foster care placement of, or termination of parental
       rights to, an Indian child under State law shall satisfy the court that active efforts
       have been made to provide remedial services and rehabilitative programs
       designed to prevent the breakup of the Indian family and that these efforts have
       proved unsuccessful.

       (e) Foster care placement orders; evidence; determination of damage to child.

       No foster care placement may be ordered in such proceeding in the absence of a
       determination, supported by clear and convincing evidence, including testimony
       of qualified expert witnesses, that the continued custody of the child by the parent
       or Indian custodian is likely to result in serious emotional or physical damage to
       the child.

       (f) Parental rights termination orders; evidence; determination of damage to child.

       No termination of parental rights may be ordered in such proceeding in the
       absence of a determination, supported by evidence beyond a reasonable doubt,
       including testimony of qualified expert witnesses, that the continued custody of
       the child by the parent or Indian custodian is likely to result in serious emotional
       or physical damage to the child. [25 USC § 1912.]

       Similarly, in relevant part, the MIFPA sets forth the following requirements:

       (2) An Indian child may be removed from a parent or Indian custodian, placed
       into a foster care placement, or, for an Indian child already taken into protective
       custody, remain removed from a parent or Indian custodian pending further
       proceedings, only upon clear and convincing evidence, that includes testimony of
       at least 1 expert witness who has knowledge of child rearing practices of the
       Indian child’s tribe, that active efforts have been made to provide remedial


1
  Under the ICWA, an “Indian child” is “any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.” 25 USC § 1903(4). The MIFPA more
broadly defines “Indian child” to include a child “[e]ligible for membership in an Indian tribe as
determined by that Indian tribe,” without reference to whether the parent is a tribal member,
MCL 712B.3(k)(ii). See In re KMN, 309 Mich App 274, 287; 870 NW2d 75 (2015).


                                                -3-
       services and rehabilitative programs designed to prevent the breakup of the Indian
       family, that the active efforts were unsuccessful, and that the continued custody of
       the child by the parent or Indian custodian is likely to result in serious emotional
       or physical damage to the child . . . .

       (3) A party seeking a termination of parental rights to an Indian child under state
       law must demonstrate to the court’s satisfaction that active efforts have been
       made to provide remedial services and rehabilitative programs designed to
       prevent the breakup of the Indian family and that the active efforts were
       unsuccessful.

       (4) No termination of parental rights may be ordered in a proceeding described in
       this section without a determination, supported by evidence beyond a reasonable
       doubt, including testimony of at least 1 qualified expert witness . . . that the
       continued custody of the child by the parent or Indian custodial is likely to result
       in serious emotional or physical damage to the child. [MCL 712B.15.]

As the plain language of the above provisions make clear, 25 USC § 1912(e) and MCL
712B.15(2) pertain to removal decisions, while 25 USC § 1912(d) and (f) and MCL 712B.15(3)
and (4) pertain to termination decisions. Because this case did not involve the removal of E.M.
from the parental home, but instead involved the termination of respondent’s parental rights, the
latter provisions govern the outcome of this appeal.

        Stated succinctly, in proceedings involving termination, the ICWA and the MIFPA
“require a dual burden of proof.” In re Payne/Pumphrey/Fortson, ___ Mich App ___, ___; ___
NW2d ___ (Docket No. 324813, issued June 11, 2015); slip op at 4 (citation omitted). “That is,
in addition to finding that at least one state statutory ground for termination was proven by clear
and convincing evidence, the trial court must also make findings in compliance with [the] ICWA
[and the MIFPA] before terminating parental rights.” Id.; slip op at 4.

        The specific findings required by the ICWA and the MIFPA in termination proceedings
are: (1) proof that active efforts were made to reunify the family, 25 USC § 1912(d); MCL
712B.15(3); MCR 3.977(G)(1); and (2) proof beyond a reasonable doubt that the continued
custody of the child by the parent would likely result in serious emotional or physical damage to
the child, 25 USC § 1912(f); MCL 712B.15(4); MCR 3.977(G)(2).

        Finally, as in all termination proceedings, the trial court has a duty to determine, by a
preponderance of the evidence, “that termination is in the child’s best interests before it can
terminate parental rights.” In re Olive/Metts, 297 Mich App 35, 40; 823 NW2d 144 (2012). The
clearly erroneous standard of review applies to each of these findings. MCR 3.977(K); In re SD,
236 Mich App 240, 245-246; 599 NW2d 772 (1999). “A finding of fact is clearly erroneous if
the reviewing court has a definite and firm conviction that a mistake has been committed[.]” In
re Moss, 301 Mich App 76, 80; 836 NW2d 182 (2013).

        We proceed by determining whether the trial court properly applied the dual-burden of
proof required under this statutory framework.

                                         C. ANALYSIS
                                                -4-
                        I. STATUTORY GROUNDS/BEST INTERESTS

       Respondent does not challenge the trial court’s findings that a statutory ground for
termination was proved or that termination was in E.M.’s best interests. Nevertheless, because
the court’s findings in these respects are inextricably linked to its findings under the ICWA and
the MIFPA, we have reviewed the record and conclude that the trial court did not clearly err in
finding statutory grounds for termination and that the termination was in E.M.’s best interests.

        As noted above, respondent pleaded guilty to second-degree child abuse after he admitted
causing E.M.’s various rib and leg fractures and then failing to seek medical care or report those
injuries in a timely manner. There was thus abundant evidence that respondent caused serious
physical harm to E.M. Moreover, there was clear and convincing evidence that the child would
suffer additional injury or abuse in the future if returned to respondent’s care. In sum, despite his
guilty plea, the evidence established that respondent failed to take responsibility for his actions
and instead blamed others for E.M.’s injuries—including the child’s mother and a babysitter—
months after entering his guilty plea. He also failed to follow through with counseling services
that would help him address his issues, and Dr. Joshua Ehrlich, the clinical psychologist who
performed respondent’s psychological evaluation, opined at the termination hearing that
respondent was dangerous, at high risk for reoffending, and should not be around children.
Likewise, Sharma and Stacey O’Neill, a member of and caseworker for the Tribe, opined that
respondent presented a substantial risk to E.M. in light of his failure to take responsibility and his
failure to adequately participate in services. Termination was thus appropriate under MCL
712A.19b(3)(b)(i), (j) and (k)(iii). Moreover, in light of this evidence, termination was also in
E.M.’s best interests. In re Olive/Metts, 297 Mich App at 40.

                        II. CONSTITUTIONALITY OF MCL 712B.15(3)

       Respondent argues that MCL 712B.15(3) is unconstitutionally vague because it does not
provide an evidentiary standard by which the trial court must make its factual findings.

        Constitutional issues and issues of statutory construction involve questions of law that we
review de novo. Federal Home Loan Mortgage Ass’n v Kelley (On Reconsideration), 306 Mich
App 487, 493; 858 NW2d 69 (2014). “The primary goal of statutory interpretation is to give
effect to the Legislature’s intent, focusing first on the statute’s plain language.” Klooster v City
of Charlevoix, 488 Mich 289, 296; 795 NW2d 578 (2011). “[U]nless explicitly defined in a
statute, every word or phrase of a statute should be accorded its plain and ordinary meaning,
taking into account the context in which the words are used.” Yudashkin v Holden, 247 Mich
App 642, 650; 637 NW2d 257 (2001) (quotation marks and citation omitted). Moreover, “under
established rules of statutory construction, statutes are presumed constitutional, and courts have a
duty to construe a statute as constitutional unless unconstitutionality is clearly apparent.” In re
Gosnell, 234 Mich App at 326, 334; 594 NW2d 90 (1999) (internal quotations and citation
omitted).

        As noted above, MCL 712B.15 provides heightened evidentiary requirements in child
protective proceedings involving Indian children. Specifically, MCL 712B.15(2) provides that
an Indian child may not be removed from the home or placed into foster care absent “clear and
convincing evidence” that active efforts were made to provide the family with services, that

                                                 -5-
those efforts were unsuccessful, and that the child is likely to be harmed if not removed.
Similarly, with respect to termination, MCL 712B.15(4) provides that parental rights may not be
terminated absent evidence to establish, “beyond a reasonable doubt,” that the parent’s continued
custody of the child would likely result in serious physical or emotional harm to the child.
Finally, MCL 712B.15(3), the provision specifically challenged by respondent, provides:

       A party seeking a termination of parental rights to an Indian child under state law
       must demonstrate to the court’s satisfaction that active efforts have been made to
       provide remedial services and rehabilitative programs designed to prevent the
       breakup of the Indian family and that the active efforts were unsuccessful.
       [Emphasis added.]

        A statute is void for vagueness if “‘(1) it is overbroad and impinges on First Amendment
Freedoms, (2) it does not provide fair notice of the conduct it regulates, or (3) it gives the trier of
fact unstructured and unlimited discretion in determining whether the statute has been violated.’”
Kenefick v Battle Creek, 284 Mich App 653, 655; 774 NW2d 925 (2009), quoting Proctor v
White Lake Twp Police Dep’t, 248 Mich App 457, 467; 639 NW2d 332 (2001). In this case,
respondent argues that MCL 712B.15(3) is unconstitutionally vague because, unlike MCL
712b.15(2) and (4), which clearly set forth an applicable standard of proof, the former section
does not provide any standard of proof. Essentially, respondent argues that MCL 712B.15(3) is
unconstitutionally vague in that it provides the trial court with unfettered discretion to determine
whether “active efforts” were made.

        We are unaware of any published caselaw addressing the applicable burden of proof
under MCL 712B.15(3). However, both this Court and our Supreme Court have addressed an
identical issue in the context of the analogous “active efforts” provision of the ICWA, 25 USC §
1912(d). That statutory provision provides as follows:

       [a]ny party seeking to effect a foster care placement of, or termination of parental
       rights to, an Indian child under State law shall satisfy the court that active efforts
       have been made to provide remedial services and rehabilitative programs
       designed to prevent the breakup of the Indian family and that these efforts have
       proved unsuccessful. [25 USC § 1912(d) (emphasis added).]

       In In re Roe, 281 Mich App 88, 99-101; 764 NW2d 789 (2008), this Court was tasked
with determining what standard of proof applied to the “active efforts” requirement in 25 USC §
1912(d). In resolving the issue, this Court found particularly persuasive the Nebraska Supreme
Court’s decision in In re Walter W, 274 Neb 859; 744 NW2d 55 (2008), in which that Court
reasoned:

       . . . Congress imposed a ‘beyond a reasonable doubt’ standard for the ‘serious
       emotional [or] physical damage’ element in parental rights termination cases
       under § 1912(f). Congress also imposed a ‘clear and convincing’ standard of
       proof for the ‘serious emotional or physical damage’ element in foster care
       placements under § 1912(e). The specified standards of proof in subsections
       § 1912(e) and (f) illustrate that if Congress had intended to impose a heightened
       standard of proof for the active efforts element in § 1912(d), it would have done

                                                 -6-
       so. [In re Roe, 281 Mich App at 100, quoting In re Walter W, 274 Neb at 864-
       865.]

        Relying on the Nebraska Supreme Court’s reasoning, the Roe Court held that Congress
intentionally chose not to impose a particular standard for 25 USC § 1912(d), and therefore “the
proper standard of proof for determinations under § 1912(d) of the ICWA is the default standard
applicable to all Michigan cases involving the termination of parental rights. That standard is
proof by clear and convincing evidence.” In re Roe, 281 Mich App at 100-101.

        Our Supreme Court ultimately adopted Roe’s holding in In re JL, 483 Mich 300, 326-
327; 770 NW2d 853 (2009). In that case, the Court noted that “[b]ecause Congress did not
provide a heightened standard of proof in 25 USC 1912(d), as it did in 25 USC 1912(f), the
default standard of proof for termination of parental rights cases, clear and convincing evidence,
applies to the determination whether the DHS provided ‘active efforts . . . to prevent the breakup
of the Indian family’ under 25 USC 1912(d).” In re JL, 483 Mich at 318-319, citing In re Roe,
281 Mich App at 100-101.2

        As the above authority illustrates, in the face of Congress’ failure to articulate a standard
of proof in 25 USC § 1912(d), rather than declare the statute unconstitutionally vague, courts
have concluded that Congress intended the “default” standard of clear and convincing evidence
to apply to the ICWA’s “active efforts” determination. We conclude that the same reasoning
applies with equal force in this case.

         As set forth above, the relevant provisions of the ICWA and the MIFPA are essentially
identical; that is, each requires proof by “clear and convincing evidence” to remove an Indian
child and place him or her into foster care, 25 USC § 1912(e), MCL 712B.15(2); proof sufficient
to satisfy the trial court that active efforts have been made to terminate parental rights, 25 USC §
1912(d), MCL 712B.15(3); and proof “beyond a reasonable doubt” that continued custody will
harm the child, 25 USC § 1912(f); MCL 712B.15(4). Thus, as with its federal counterpart, the
Legislature, in enacting the MIFPA, set forth specific evidentiary standards in MCL 712B.15(2)
and (4), while declining to do so in MCL 712B.15(3). The inevitable conclusion, therefore, is
that, like Congress, the Legislature intended for the “default” evidentiary standard applicable in
child protective proceedings—i.e. clear and convincing evidence—to apply to the findings
required under MCL 712B.15(3) as to whether “active efforts” were made to prevent the breakup
of the Indian family. Accord In re JL, 485 Mich at 318-319; In re Roe, 281 Mich at 100-101.
Therefore, because a default standard of proof applies to MCL 712B.15(3), it is not
unconstitutionally vague.



2
  As our Supreme Court noted, other states have also applied the clear and convincing standard
to active efforts determinations under the ICWA. In re JL, 483 Mich at 319 n 13, citing In re
Walter W, 274 Neb at 864-865, In re MS, 2001 ND 86; 624 NW2d 678 (2001), and In re Michael
G, 63 Cal App 4th 700, 709-712; 74 Cal Rptr 2d 642 (1998). See also In re Vaughn R, 320 Wis
2d 652, 680-687; 770 NW2d 795 (2009); In re Dependency of AM, 106 Wash App 123, 131-135;
22 P3d 828 (2001); Doe v Roe, 127 Idaho 452, 457-458; 902 P2d 477 (1995).


                                                -7-
        Although it is somewhat unclear as to whether respondent challenges the trial court’s
“active efforts” determination under MCL 712B.15(3), we conclude that there was no clear error
with respect to the trial court’s findings in this respect.

         The record indicates that Sharma contacted the Tribe at the outset of the proceedings to
solicit the Tribe’s involvement and further indicated that she maintained regular contact with
O’Neill throughout the approximately 11-month duration of these proceedings. In turn, O’Neill
kept the Tribe’s child welfare committee apprised of respondent’s progress throughout the case.
Sharma also met with respondent at the outset of the proceedings, while he was in jail, in order to
identify respondent’s barriers to reunification. Then, upon his release, Sharma met with
respondent to develop a service plan that would address respondent’s various needs, including
employment, housing, anger management, and parenting skills, and tailored the service plan to
work in conjunction with respondent’s probation requirements. Sharma contacted American
Indian Health and Family Services (AIHFS)—which O’Neill identified as a culturally
appropriate referral service—to arrange for respondent’s participation in counseling and
encouraged respondent to contact AIHFS to schedule an intake appointment. Sharma also
arranged for respondent to participate in a parenting class and a psychological evaluation.

        Throughout the proceedings, Sharma maintained, or attempted to maintain, regular
contact with respondent by telephone and by mail and also stayed in touch with respondent’s
service providers and his probation officer. When respondent expressed that he had not been
participating in services, Sharma encouraged him to reconnect with AIHFS and also offered to
assist respondent with his transportation needs. Finally, she reviewed the service plan with
respondent toward the end of the case to ensure he was aware of his needs and to ask if
respondent needed any additional services. O’Neill opined that Sharma had made active efforts
to provide remedial services to respondent. Based on this record evidence, there was clear and
convincing evidence to conclude that active efforts were made and the trial court did not clearly
err in making the requisite findings under MCL 712B.15(3).

                           III. FINDINGS UNDER MCL 712B.15(4)

       Respondent argues that the trial court clearly erred in finding, beyond a reasonable doubt,
that E.M. would be harmed if returned to respondent’s care. See 25 USC 1912(f); MCL
712B.15(4); MCR 3.977(G)(2).

        As discussed above, respondent caused serious physical harm to E.M. on more than one
occasion. Throughout these proceedings, however, he failed to take responsibility for his actions
and instead attempted to shift the blame to others and cast himself as the victim. Respondent
failed to adequately participate in counseling services or maintain consistent contact with DHHS.
At the time of termination, Dr. Ehrlich opined that respondent was a danger to the child and
should not be around children. Moreover, based on Dr. Ehrlich’s report and the fact that
respondent failed to adequately participate in services or take responsibility for his actions,
O’Neill, a qualified expert witness, opined that E.M. would be at risk of future harm if returned
to respondent’s care. Sharma shared this opinion. On this record, the evidence, including the
testimony of a qualified expert witness, proved beyond a reasonable doubt that returning E.M. to
respondent’s care would likely result in serious emotional or physical harm. 25 USC § 1912(f);
MCL 712B.15(4); MCR 3.977(G)(2).

                                                -8-
       In arguing otherwise, respondent essentially attempts to attack O’Neill’s qualifications
and opinions. We note, however, that respondent did not challenge O’Neill’s qualification as an
expert at the termination hearing. In any event, given her extensive knowledge and experience,
coupled with the fact that she is a member of the Tribe, any challenge to O’Neill’s qualification
as an expert would have been futile. See MCL 712B.17. Finally, we reject respondent’s
argument that O’Neill was merely a puppet for the Tribe’s child welfare committee. To the
contrary, O’Neill expressed her independent expert opinion that E.M. would be subject to future
harm if returned to respondent’s care and merely elaborated that the Tribe’s child welfare
committee shared the same opinion. The trial court did not clearly err in considering O’Neill’s
testimony.

                                IV. PRELIMINARY INQUIRY

       Next, for the first time on appeal, respondent raises several arguments regarding the
January 10, 2014 preliminary inquiry, each of which we find to be without merit.

        Respondent argues that his statutory and constitutional rights were violated at the
preliminary inquiry when the trial court permitted the Tribe to intervene upon an oral motion,
without proper notice or service and without first appointing respondent an attorney, and when
the trial court subsequently allowed O’Neill to testify without allowing respondent a chance to
cross-examine her or to offer his own expert to rebut her testimony. Additionally, he argues that
his rights were violated when he was not afforded an opportunity to seek a transfer of jurisdiction
to the tribal court. We disagree. We review these unpreserved issues for plain error affecting
substantial rights. In re VanDalen, 293 Mich App 120, 135; 809 NW2d 412 (2011).

        A preliminary inquiry is, by definition, an “informal review” proceeding to determine
proper action on a petition. MCR 3.903(A)(23). It is distinguished from a preliminary hearing
in that the child is not in the temporary custody of DHHS and there is no request for the child’s
removal contained in the petition. MCR 3.962(A); MCR 3.965(A)(1); In re Hatcher, 443 Mich
426, 434; 505 NW2d 834 (1993). “The permissible actions following a preliminary inquiry are
limited to granting or denying authorization to file the petition, or referring the matter to
‘alternative services.’” In re Kyle, 480 Mich 1151, 1151; 746 NW2d 302 (2008), citing MCR
3.962(B)(1)-(3). Because of its “informal” nature, MCR 3.903(A)(23), and the narrowly tailored
purpose for which it serves, MCR 3.962(B), the court rules provide that “[a] preliminary inquiry
need not be conducted on the record or in the presence of the parties.” MCR 3.962(B).

        In this case, given that respondent was not entitled to be present at the January 10, 2014
preliminary inquiry, he was not entitled to the assistance of counsel at such proceeding.
Moreover, there is nothing in the court rule governing preliminary inquiries, MCR 3.962, which
entitled respondent to any advanced notice of the Tribe’s intent to intervene and present
testimony. Furthermore, respondent had no right to cross-examine O’Neill at the preliminary
inquiry or present his own expert witnesses. Finally, he had no right to seek a transfer of
jurisdiction at the preliminary inquiry. Simply put, there was no plain error. In any event,
respondent’s substantial rights were not affected, inasmuch as it is undisputed that he was
represented by counsel throughout the remainder of the proceedings, had a chance to cross-
examine O’Neill and present his own witnesses at the termination hearing, and had the
opportunity—which he did not utilize—to seek a transfer of jurisdiction.

                                                -9-
        Finally, respondent argues that the trial court erred in concluding at the preliminary
inquiry, pursuant to MCL 712B.15(2), that active efforts were made and that the child would be
subject to future harm. This argument lacks merit.

        MCL 712B.15(2) provides, in pertinent part, that “a[n] Indian child may be removed from
a parent or Indian custodian, placed into a foster care placement, or, for an Indian child already
taken into protective custody, remain removed from a parent or Indian custodian . . . only upon
clear and convincing evidence . . . that active efforts have been made . . . that the active efforts
were unsuccessful, and that the continued custody of the child by the parent or Indian custodian
is likely to result in serious emotional or physical damage to the child . . . .” MCL 712B.15(2)
(emphasis added). As noted above, this subsection applies only to removal decisions. Here,
however, the record makes abundantly clear that E.M. was not removed from the parental home
or placed in foster care. Rather, E.M. remained with his mother in the family home throughout
these proceedings. Because E.M. was never removed, the trial court was not required to make
any findings at the January 10, 2014 preliminary inquiry pursuant to MCL 712B.15(2). Instead,
the trial court was only required, as part of its termination order, to make “active efforts” and
“risk of harm” findings pursuant to MCL 712B.15(3) and (4). As discussed above, the trial court
made those findings and they were not clearly erroneous. There was no error.

                                       D. CONCLUSIONS

       In conclusion, we hold that the trial court did not clearly err in finding grounds for
termination and in determining that the termination was in E.M.’s best interests. Additionally,
we hold that MCL 712B.15(3) is not unconstitutionally vague where the default clear and
convincing evidence standard applies to the findings mandated by that statutory provision;
furthermore, we conclude that the trial court did not clearly err in making the findings required
under MCL 712B.15(3) and MCL 712B.15(4). Finally, the trial court did not deny respondent
his constitutional or statutory rights at the preliminary inquiry.

       Affirmed.




                                                             /s/ Douglas B. Shapiro
                                                             /s/ Peter D. O’Connell
                                                             /s/ Stephen L. Borrello




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