Foster kids civil rights lawsuit
My foster nieces and nephew are being forced to leave the place they've called home for nearly nine years, by the Tribe. These children have a right to finish growing up in the home they love. H. 12, V. 14, C. 15 are seeking a lawsuit in
Federal Court that will addresses this assault on their right to a safe and permanent home.
Below are links for articles in the Record Eagle that highlight the children's story:
Kids Voices Heard
In 2009 the children were placed in a voluntary guardianship with the Retta and Donn families by their mother. In 2010 all of the children were placed in a voluntary guardianship with the
The following was obtained from the Michigan Courts web site and gives the history of the case from 2010 through 2014:
"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 712A.2 on the basis of alleged abuse and neglect. The circuit court took jurisdiction over the minors in August 2010, and in September 2010, the minors’ mother requested that the circuit court transfer the case to the tribal court.
The circuit court notified the tribe of the proceedings in November 2010, and the tribe responded that the minors were not members of the tribe nor were they eligible for tribal membership. The DHS filed a supplemental petition in November 2011 seeking termination of the parental
rights of the minors’ mother.
In December 2011, the tribe filed a notice of intervention, stating that the minors were, in fact, enrolled members of the tribe or eligible for tribal membership. This determination was made
possible after adoption records regarding the minors’ mother were unsealed and provided to
the tribe’s membership office. The minors were enrolled as members of the tribe 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 1901 et seq. The mother also filed a motion to transfer the case to the tribal court, which the circuit court granted. However, the tribal court declined the transfer, stating in part that the transfer would not be
in the best interests of the minors.
On April 6, 2012, the minors’ mother voluntarily released her parental rights to the minors. And on April 18, 2012, following a hearing, the circuit court entered an order terminating the parental rights of the minors’ father.
The minors’ foster parents, respondents Tim Donn and Anne Donn, with whom the minors had been residing for several years, wished to adopt the minors. The minors’ paternal grandparents in Missouri also wished to adopt the minors. The circuit court ordered that the minors remain
with the Donns until the Michigan Children’s Institute (MCI), through its agent, Bethany
Christian Services, completed its assessment and recommended an adoptive placement. The
tribe favored the minors’ paternal grandparents for adoption of the minors.
On December 6, 2013, the MCI recommended adoptive placement with the Donns, who filed a petition for adoption on December 13, 2013. The tribe filed a motion on December 23, 2013, to transfer the proceedings to its tribal court. The tribe also moved the tribal court to accept the
transfer. The minors’ attorney and guardian ad litem recommended that the circuit court deny
the requested transfer to the tribal court, stating that there was good cause not to transfer
based on the length of time the children had been in placement, the late stage of the proceedings, and the amount of time it would take to appoint a new guardian ad litem in the tribal court and then to inform him or her of the lengthy background of the proceedings.
The circuit court held a hearing on February 6, 2014, regarding the tribe’s motion to transfer.
The circuit court denied the request due to the advanced stage of the case, noting that the
tribal court had already once denied a transfer on the basis that a transfer was not in the best interests of the minors. The circuit court further noted that nothing had changed since the tribal
court’s denial, with the exception of MCI’s adoption recommendation. The circuit court also
concluded a transfer would not be in the best interests of the children.
The circuit court addressed the “good cause” defined in MCL 712B.7(5) that was required 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 the “undue hardship” of MCL 712B.7(5)(b) was not limited to the hardship imposed on witnesses to present evidence in the tribal court. The circuit
court explained that it found “clear and convincing evidence that hardship to the parties; to wit, the three children, would occur if this transfer were granted.” The circuit court noted that the
minors were undergoing stress and that they needed permanency. Additionally, the circuit
court found that the minors had been out of a parent’s home for nearly five years and should
not be subjected to any more stress in that regard.
On February 7, 2014, the circuit court entered its order denying the tribe’s motion to transfer
for the reasons stated on the record. The circuit court also stayed all proceedings, including its order denying a transfer to tribal court, pending the exhaustion of appellate remedies."
The following is found in a complaint filed in UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
The link is below:
"The Appellate Court Finds that MIFPA
Has No Regard for the Rights of the Children
45. The Michigan Court of Appeals published its opinion on this matter on
March 19, 2015.
Case 1:15-cv-00982-JTN-ESC Doc #1 Filed 09/29/15 Page 8 of 16 PageID
46. The appellate court framed the issue as:
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? Stated otherwise, does MCL
712B.7(5)(b) permit a circuit 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?
47. The appellate court reversed the circuit court, finding, in part, that the best
interests of children is not a consideration in determining whether there is “good cause”
not to transfer a case to a tribal court and that there is no consideration that must be given
as to the timeliness of the transfer request.
48. The Donns filed an Application for Leave to Appeal to the Michigan
Supreme Court, which was denied on or about June 5, 2015.
49. The Donns then filed a Motion to Deny Transfer and Request Stay of
Proceedings, so they could address constitutional issues related to the MIFPA transfer
provisions that were previously not litigated because of the case’s posture.
50. The circuit court granted the Donns’ motion to stay on July 2, 2015.
51. The Tribe made an Application for Leave to Appeal, while also making a
motion for immediate consideration to lift the stay. The Donns then filed leave for
discretionary appeal, arguing among other things the appellate court needed to hear for
the first time their constitutional concerns that were not previously raised as they were the
prevailing party (and respondents) in the prior appeal.
52. On September 14, 2015, the appellate court ordered that the stay be lifted,
and denied the appellate application as unnecessary at that point.
Case 1:15-cv-00982-JTN-ESC Doc #1 Filed 09/29/15 Page 9 of 16 PageID #9
53. On September 21, 2015, the circuit court ordered this matter transferred to
54. As a result of the transfer, the Children can be removed from the Donn
home at any moment."
Since the transfer of the case to tribal court in 2015, there has been four motions to
immediately remove the children from their home.
All checks can be made out and mailed to: (Attorney)
Craig W. Elhart, 329 Union Street, Traverse City, MI 49684.
Please put Spears/Donn in the memo.
These funds will all put into the Trust for the children's, Civil Rights Federal Hearing.
Mark Fiddler of Fiddler Osband LLC
"I met with another attorney colleague to discuss this case, one who has extensive federal civil rights litigation experience. We are very sympathetic to this cause—and the children’s cause. It is appalling that with the law’s supposedly emphasis on speedy permanency for children, we are still talking about permanency in this case—after nine years of out of home placement!
We worked through several legal theories today and concluded we have more extensive research to complete in order to develop claims that have a chance of success.
We would propose going in two steps: (1) we research the law and present the best available claims. We are willing to do this at a flat rate of $7500. This would give them a memorandum of suggested potential claims, and an opinion on the merits of each. (2) If, and only if we agree we have a viable claim, we would take the case, with the intent to sue in federal court, provided an advance deposit of $100,000 is made.
So I am deeming this a “consultation and investigation” agreement. This is not an agreement to sue. But this is a very essential preliminary step. We want to get it right. "
Fiddler Osband, LLC
Native American couple sues to let their child be adopted by a white family