19.16Invalidation of State Court Action
A petition asking the court to invalidate a placement or a termination proceeding because the court’s actions violated 25 USC 1911, 25 USC 1912, or 25 USC 1913, may be filed by any of the following:
(1) an Indian child1 who is or was the subject of any action for foster care placement or termination proceedings under state law,2
(2) a parent3 or Indian custodian4 from whom the child was removed, and
(3) the Indian child’s Tribe.5 25 USC 1914; 25 CFR 23.137(a).
“To petition for invalidation there is no requirement that the petitioner’s rights under [the] ICWA were violated; rather, a petitioner may challenge the action based on any violations of 25 USC 1911, [25 USC] 1912, or [25 USC] 1913 during the course of the child-custody proceeding.” 25 CFR 23.137(c). “One party cannot waive another party’s right to seek” invalidation of a state court action for violation of the ICWA. Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, K.3 (2016).
A parent has standing to challenge an order independent of the participation of the tribe, even though the statute provides for a challenge by the child, parent or Indian custodian, and the tribe. In re Kreft, 148 Mich App 682, 687-689 (1986).
“Upon a showing that an action for foster-care placement or termination of parental rights violated any provision of 25 USC 1911, [25 USC] 1912, or [25 USC] 1913, the court must determine whether it is appropriate to invalidate the action.” 25 CFR 23.137(b).
Caselaw. The following cases discuss the invalidation of a state court action that violated 25 USC 1911, 25 USC 1912, or 25 USC 1913.
•In re Johnson, 305 Mich App 328 (2014)
The trial court’s order terminating the respondent-mother’s parental rights was conditionally reversed and remanded for purposes of ICWA compliance where the ICWA notice requirements were triggered following “the minor child’s father[’s] state[ment] [during the preliminary hearing] that his deceased grandmothers were both ‘full-blooded’ Native Americans, although he did not know to which tribe they belonged[,]” and “the [court] record contain[ed] no indication that notice was served under 25 USC 1912(a), nor [was] there any claim that such notice was ever served, apparently because there was a determination, or at least it was stated in court documents, that the minor child [was] not an Indian child.”6 In re Johnson, 305 Mich App at 330, 332.
•In re Morris (After Remand) (Morris IV), 300 Mich App 95 (2013)
“A remand to ensure proper notice under [the] ICWA that does not lead to any evidence that [the] ICWA applies does not unravel a best-interest determination.” Morris IV, 300 Mich App at 107-108. Specifically,
“[The] [r]respondent[-father] asserts that [the] ICWA’s remedy provisions [under 25 USC 1914] permit him to petition for invalidation of court orders entered in violation of [the] ICWA’s notice requirement; thus, [the respondent-father] requests that the case be remanded to determine whether the minor child is an Indian child. However, [the] respondent[-father] has not established that [the] ICWA’s notice requirement was violated on remand or that [the] ICWA actually applies to the minor child. Moreover, the issue of the minor child’s best interests is not properly before this Court because it is outside the scope of the [Michigan] Supreme Court’s limited remand.[7] This Court already determined that the trial court did not err by finding that termination of [the] respondent’s parental rights was in the child’s best interests, and the Michigan Supreme Court agreed. Thus, there was no error in the trial court’s best-interest determination. A remand to ensure proper notice under [the] ICWA that does not lead to any evidence that [the] ICWA applies does not unravel a best-interest determination.”Morris IV, 300 Mich App at 107-108.
•In re Morris (Morris III), 491 Mich 81 (2012), overruling In re IEM, 233 Mich App 438 (1999)8
In overruling In re IEM, 233 Mich App 438 (1999),9 the Michigan Supreme Court held “that the proper remedy for [the] ICWA-notice violations [under 25 USC 1912(a)] is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.” Morris III, 491 Mich at 121-122. Specifically,
“Because [the] ICWA and our court rules are silent regarding the proper remedy for 25 USC 1912(a) notice violations, we must choose the best of three remedies suggested by the parties and the amici curiae. The first suggestion is to automatically reverse any proceedings occurring after the tribal-notice condition of 25 USC 1912(a) was triggered. The second proffered remedy is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue. The third possibility, which is substantively very similar to the second, is to conditionally affirm the trial court and remand for resolution of the ICWA-notice issue. In In re IEM, 233 Mich App 438, 449-450 (1999), our Court of Appeals adopted the conditional-affirmance remedy, and it has since been applied in more than 20 cases.
* * *
[W]ithout a showing that [the] ICWA even applies to the foster care or termination of parental rights proceedings, i.e., that the child is an Indian child, we decline to adopt a rule of automatic reversal.[10]
* * *
From a practical perspective, we realize there is little difference between the conditional remedies: both require a remand to remedy the notice violation. A conditional affirmance merely states that the lower court ruling is affirmed unless [the] ICWA applies, whereas a conditional reversal states that the ruling is reversed unless [the] ICWA does not apply. Under either remedy, if the child is determined to be an Indian child, then the foster care or termination proceedings are invalidated and the proceedings begin anew under [the] ICWA’s standards. If no Indian child is involved, however, or the tribe given proper notice does not respond within the times allotted by 25 USC 1912(a), any notice violation is harmless.
As far as the best interests of the children, there is again little difference between the conditional-affirmance and conditional-reversal remedies. Under either remedy, the children will likely stay in their current placements until the notice violation is resolved, and thus their permanency is not unduly affected in the interim. Additionally, there is no difference between these remedies as far as conserving judicial resources. Both require a remand to remedy the notice violation.
Nevertheless, in other ways, substantial differences exist between the two remedies. First, we think the use of a conditional reversal is more consistent with the text of 25 USC 1912(a), which mandates that ‘[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary . . . .’ Second, between the two remedies, conditional reversal is more deferential to tribal interests, as expressed by [the] ICWA, and is more likely to ensure these interests are protected by the trial courts. The term ‘conditional reversal’ sends a clearer signal to the lower courts and the DHHS that they must pay closer attention when [the] ICWA is implicated. In sum, we think that the conditional-reversal remedy is more emphatic, more consistent with the text and purposes animating [the] ICWA, and more likely to encourage compliance with [the] ICWA.
Therefore, we overrule IEM and its progeny and hold that conditional reversal is the proper remedy for violations of 25 USC 1912(a).” Morris III, 491 Mich at 115, 120-121.
Note: In Morris III, 491 Mich at 121-122 n 29, the Michigan Supreme Court clarified that language pulled from a Vermont case and quoted with approval in In re IEM, supra at 450, “erroneously implies that even if the child is determined to be an Indian child, it would be proper to affirm an involuntary foster care placement or termination of parental rights determination made under state law—in the absence of [the] ICWA’s protections—if the Indian tribe chose not to intervene[;] [rather,] [i]f the child meets the definition of Indian child, [the] ICWA applies, regardless of whether the Indian tribe chooses to intervene in the state-court proceedings.”
•In re Budd, 491 Mich 934, 934-935(2012)
In light of the Michigan Supreme Court’s ruling in Morris III, 491 Mich at 81, the Michigan Supreme Court reversed “that part of the judgment of the Court of Appeals applying the conditional-affirmance remedy,” and instead “conditionally reverse[d]” the circuit court’s “termination of the respondent’s parental rights, and remand[ed] th[e] case to the circuit court for resolution of the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.” In re Budd, 491 Mich at 934. On remand, the Michigan Supreme Court directed:
“[T]he circuit court shall first ensure that notice is properly made to the appropriate entities. If the circuit court conclusively determines that [the] ICWA does not apply to the child protective proceeding—because the children are not Indian children or because the properly noticed tribe does not timely respond—the circuit court’s order terminating the respondent’s parental rights shall be reinstated. If, however, the circuit court concludes that [the] ICWA does apply to the child protective proceeding, the circuit court’s order terminating the respondent’s parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of [the] ICWA.” In re Budd, 491 Mich at 934-935.
•Empson-Laviolette v Crago, 280 Mich App 620, 632-633 (2008)
The Court of Appeals found that the ICWA preempted the stay imposed under MCL 722.26b(4) in a guardianship proceeding because the stay “infringed on the minimum protections [the child’s mother] was afforded under § 1913(b)[;]” that is, the stay prevented the child’s mother from withdrawing her consent to the guardianship at any time. See Section 19.12(E) for a detailed discussion of a parent’s or custodian’s right to withdraw consent.
•In re Morgan, 140 Mich App 594, 602-604 (1985)11
The Court of Appeals invalidated the trial court’s order terminating parental rights where the trial court used the clear and convincing evidence standard rather than the beyond a reasonable doubt standard during disposition, failed to hear expert witness testimony, and failed to establish that remedial or rehabilitative efforts had failed. See Section 19.12(D) for a detailed discussion of involuntary termination of parental rights.
A petition asking the court to invalidate a placement or a termination proceeding because the court’s actions violated MCL 712B.7, MCL 712B.9, MCL 712B.11, MCL 712B.13, MCL 712B.15,12 MCL 712B.21, MCL 712B.23, MCL 712B.25, MCL 712B.27, and MCL 712B.29, may be filed by any of the following:
(1) an Indian child subject to foster care placement or termination proceedings under state law,13
(2) a parent14 or Indian custodian15 from whom the child was removed, and
(3) the Indian child’s tribe.16 MCL 712B.39.
“[A]ny order involving an Indian child[17] that is subject to potential invalidation under [MCL 712B.39] or [25 USC 1914 is appealable to the Michigan Court of Appeals by right], which includes, but is not limited to, an order regarding:
(a) recognition of the jurisdiction of a tribal court pursuant to MCL 712B.7, MCL 712B.29, or 25 USC 1911;
(b) transfer to tribal court pursuant to MCL 712B.7 or 25 USC 1911;
(c) intervention pursuant to MCL 712B.7 or 25 USC 1911;
(d) extension of full faith and credit to public acts, records, and judicial proceedings of an Indian tribe pursuant to MCL 712B.7 or 25 USC 1911;
(e) removal of a child from the home, placement into foster care, or continuance of an out-of-home placement pursuant to MCL 712B.9, MCL 712B.15, MCL 712B.25, MCL 712B.29, or 25 USC 1912;
(f) termination of parental rights pursuant to MCL 712B.9, MCL 712B.15, or 25 USC 1912;
(g) appointment of counsel pursuant to MCL 712B.21 or 25 USC 1912;
(h) examination of reports pursuant to MCL 712B.11 or 25 USC 1912;
(i) voluntary consent to or withdrawal of a voluntary consent to a foster care placement or to a termination of parental right pursuant to MCL 712B.13, MCL 712B.25, MCL 712B.27, or 25 USC 1913;
(j) foster care, pre-adoptive, or adoptive placement of an Indian child pursuant to MCL 712B.23[.]” MCR 3.993(A)(6).
For additional discussion on filing an appeal with the Michigan Court of Appeals, see Section 20.3.
1 For additional information on determining an Indian child’s status, see Section 19.4(A)(1).
2 See Chapter 17 for information regarding the termination of parental rights pursuant to Michigan law.
3 “Parent or parents means any biological parent or parents of an Indian child, or any Indian who has lawfully adopted an Indian child, including adoptions under Tribal law or custom. It does not include an unwed biological father where paternity has not been acknowledged or established.” 25 CFR 23.2. See also 25 USC 1903(9), which contains a substantially similar definition of parent.
4 “Indian custodian means any Indian who has legal custody of an Indian child under applicable Tribal law or custom or under applicable State law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child. An Indian may demonstrate that he or she is an Indian custodian by looking to Tribal law or Tribal custom or State law.” 25 CFR 23.2. See also 25 USC 1903(6), which contains a substantially similar definition of Indian custodian.
5 For a discussion on an Indian child’s Tribe, see Section 19.4(A)(2).
6 Although the Court of Appeals conditionally reversed and remanded the trial court’s order terminating the respondent-mother’s parental rights for purposes of ICWA compliance, the Court of Appeals went on to find that “the trial court did not clearly err when it found that termination [of the respondent-mother’s parental rights] was in the minor child’s best interests because of the child’s need for permanence and stability[,]” which the respondent-mother could not provide. In re Johnson, 305 Mich App at 335-336. See Section 17.9(C) for more information on the best-interests analysis.
7 In In re Morris (Morris I), 489 Mich 877, 877 (2011), the Michigan Supreme Court “remanded th[is] case to [the Court of Appeals] for reconsideration of [the] respondent[-father’s] appeal in light of [the] petitioner’s confession of error regarding the failure of [the] petitioner and the trial court to comply with the notice requirements of [the] ICWA.” On remand, the Court of Appeals in an unpublished opinion, “readopted, but conditionally affirmed, the order terminating [the] respondent[-father’s] parental rights and remanded the case to the trial court for proper notice consistent with [the] ICWA and for further proceedings as necessary and consistent with the opinion.” Morris IV, 300 Mich App at 99-100, citing In re Morris (Morris II) (On Remand), unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket Nos. 299470, 299471).
8 The Michigan Supreme Court in Morris III, 491 Mich at 121, overruled In re IEM, supra, “and its progeny[.]”
9 In In re IEM, 233 Mich App at 449-450, the Court of Appeals found termination was proper under state law but that the DHHS failed to satisfy the ICWA’s notice requirements, and the proper remedy was to “conditionally affirm the [trial] court’s termination order, but remand so that the court and the [DHHS] may provide proper notice to any interested tribe.”
10 In analyzing the automatic-reversal remedy, the Michigan Supreme Court in In re Morris (Morris III), 491 Mich at 119-120, concluded that “the mere triggering of the notice requirement does not strip the trial court of jurisdiction over the children and does not mandate automatic reversal of all proceedings occurring after the notice requirement was triggered[,]” “[a]n automatic-reversal rule would require new termination proceedings in even the cases not involving Indian children, [which] would disrupt or delay the permanent placement of the child[,]” and the “automatic-reversal remedy would be inconsistent with our longstanding disfavor of automatic reversals.” The Court noted, “[h]owever, [that] when an appellate court can conclude from the record properly before it that a child is an Indian child entitled to the benefits and protections of [the] ICWA, an outright reversal may be an appropriate remedy if the trial court failed to apply [the] ICWA’s standards.” Morris III, 491 Mich at 120 n 28.
11 A different panel of the Court of Appeals later concluded that the In re Morgan Court erred in applying a reasonable doubt standard to the active efforts determination. In re Roe, 281 Mich App 88, 99-100 (2008) (stating that the standard required by the ICWA is clear and convincing). However, this decision would not likely disturb the outcome discussed in this section.
12 MCL 712B.15(5) also provides for “[a]ny Indian child who is the subject of any action for termination of parental rights under state law, any parent or Indian custodian from whose custody the Indian child was removed, and the Indian child’s tribe [to] petition any court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of [MCL 712B.15].” MCL 712B.15(5). See Section 19.12 for a discussion of MCL 712B.15.
13 See Chapter 17 for information regarding the termination of parental rights pursuant to Michigan law.
14 For purposes of MIFPA, a “‘parent’ means any biological parent or parents of an Indian child or any person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. Parent does not include the putative father if paternity has not been acknowledged or established. MCL 712B.3(s) (emphasis added). See also MCR 3.002(20), which contains a substantially similar definition of parent, except that, where the Indian child has been adopted, it requires the adopter to be an Indian.
15 For purposes of MIFPA, an “‘Indian custodian’ means any Indian person who has custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control have been transferred by the Indian child’s parent.” MCL 712B.3(n). See also MCR 3.002(15), which contains a substantially similar definition of Indian custodian.
16 For a discussion on an Indian child’s Tribe, see Section 19.4(A)(2).
17 For additional information on determining an Indian child’s status, see Section 19.4(A)(1).