19.12Involuntary Proceedings

An involuntary proceeding is “a child-custody proceeding in which the parent does not consent of his or her free will to the foster-care, preadoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster-care, preadoptive, or adoptive, placement under threat of removal of the child by a State court or agency.”¹ 25 CFR 23.2.

Except for purposes of emergency proceedings² involving an Indian child,³ the court must not hold a foster-care-placement or termination-of-parental-rights proceeding until ten days after the child’s parent⁴ or Indian custodian⁵ (or tribe(s) in the county where the child is located and Secretary of the Interior if the parent or Indian custodian is unknown to the petitioner) and the Indian child’s Tribe⁶ (or tribe(s) in the county where the child is located and Secretary of the Interior if the Indian child’s Tribe is unknown to the party seeking placement for the Indian child) receive proper notice of that proceeding. 25 USC 1912(a); MCL 712B.9(2); MCL 712B.9(3); 25 CFR 23.112(a)-(b). For information on providing proper notice to the parent, Indian custodian, or Indian child’s Tribe, see Section 19.5.

The parent, Indian custodian, and the Indian child’s Tribe each have a right, on request, to be given up to 20 additional days⁷ from the date on which notice was received to prepare for participation in the proceedings.⁸ 25 USC 1912(a); MCL 712B.9(2); 25 CFR 23.112(a)-(b).

Note: “If the petitioner or court later discovers that the child may be an Indian child, all further proceedings shall be suspended until notice is received by the tribe or the [Secretary of the Interior⁹] as set forth in [MCL 712B.9(2)]. If the court determines after a hearing that the parent or tribe was prejudiced by lack of notice, the prior decisions made by the court shall be vacated and the case shall proceed from the first hearing. The petitioner has the burden of proving lack of prejudice.” MCL 712B.9(2).

“MCL 712B.15 provides specific procedures a trial court must follow when ‘an Indian child is the subject of a child protective proceeding under [MCL 712A.2(b)].’” In re Detmer/Beaudry, 321 Mich App 49, 60 (2017), quoting MCL 712B.15(1). Specifically, MCL 712B.15(1) provides:

“If an Indian child is the subject of a child protective proceeding under [MCL 712A.2(b)], including instances in which the parent executed a release under [MCL 710.28] during the pendency of that proceeding, or a guardianship proceeding under [MCL 700.5204] or [MCL 700.5205], and if a parent does not provide consent as described [MCL 712B.13], or a guardianship proceeding under [MCL 712A.19a] or MCL 712A.19c], the following requirements must be met:

(a) Notice of the pending proceeding must be given as prescribed by [the Michigan Court Rules], the [ICWA], and [MCL 712B.9].^[10]

(b) The proceeding shall be conducted in accordance with [the Michigan Court Rules] and [MCL 712B.15(2)-(4)].

(c) [MCL 712B.25] applies in a guardianship proceeding under [MCL 700.5204] or [MCL 700.5205].”

“MCL 712B.15 states that parents involved in child protective proceedings can ‘provide consent as described in [MCL 712B.13].” In re Williams, 501 Mich 289, 337 (2018), rev’g 320 Mich App 88 (2017) (alteration in original). “[W]hen the state seeks to terminate the rights of a parent of an Indian child and the parent does not consent, the parent can count on the protections of MCL 712B.15. But if a parent of an Indian child willingly consents to the termination of his or her parental rights for the purpose of adoption, the parent can then count on the added protections of MCL 712B.13, which does not exclude from its coverage parents who are participants in involuntary child protective proceedings when they provide consent as described in MCL 712B.13(1).” In re Williams, 501 Mich at 336. For a discussion on MCL 712B.13, see Section 19.11.

A.Emergency Proceedings

An emergency proceeding is “any court action that involves an emergency removal or emergency placement of an Indian child.”¹¹ 25 CFR 23.2.

Note: Notice is not required “prior to an emergency removal because of the short timeframe in which emergency proceedings are conducted to secure the safety of the child[.]” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, C.9 (2016).

During an emergency proceeding, “[t]he State court must:

(1) Make a finding on the record that the emergency removal or placement is necessary to prevent imminent physical damage or harm to the child;

(2) Promptly hold a hearing on whether the emergency removal or placement continues to be necessary whenever new information indicates that the emergency situation has ended; and

(3) At any court hearing during the emergency proceeding, determine whether the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.

(4) Immediately terminate (or ensure that the agency^[12] immediately terminates) the emergency proceeding once the court or agency possesses sufficient evidence to determine that the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.” 25 CFR 23.113(b).

1.Termination of Emergency Proceeding

“Any emergency removal or placement of an Indian child under State law must terminate immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.” 25 CFR 23.113(a).

An emergency proceeding can also terminate by one or more of the following actions:

(1) an Indian child-custody proceeding is initiated.¹³

(2) the child is transfered “to the jurisdiction of the appropriate Indian Tribe.

(3) the child is returned to the child’s parent¹⁴ or Indian custodian.¹⁵ 25 CFR 23.113(c).

“Termination of the emergency proceeding does not necessarily mean that the actual placement of the child must change. If an Indian child cannot be safely returned to the parents or custodian, the child must either be transferred to the jurisdiction of the appropriate Indian Tribe, or the Sate must initiate a child-custody proceeding to which the full set of ICWA protections would apply.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, C.3 (2016).

2.Petition for Emergency Removal or Continued Emergency Placement

“A petition for a court order authorizing the emergency removal or continued emergency placement, or its accompanying documents, should contain a statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent such imminent physical damage or harm to the child. The petition or its accompanying documents should also contain the following information:

(1) The name, age, and last known address of the Indian child;

(2) The name and address of the child’s parents and Indian custodians, if any;

(3) The steps taken to provide notice to the child’s parents, custodians, and Tribe about the emergency proceeding;

(4) If the child’s parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate BIA Regional Director[, which for Michigan is the Midwest Regional Director,¹⁶ 25 CFR 23.1(b)(2)];

(5) The residence and the domicile of the Indian child;

(6) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the Tribe affiliated with that reservation or village;

(7) The Tribal affiliation of the child and of the parents or Indian custodians;

(8) A specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to take that action;

(9) If the child is believed to reside or be domiciled on a reservation where the Tribe exercises exclusive jurisdiction over child-custody matters, a statement of efforts that have been made and are being made to contact the Tribe and transfer the child to the Tribe’s jurisdiction; and

(10) A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.” 25 CFR 23.113(d).

“A failure to include any of the listed information [under 25 CFR 23.113(d)] should not result in denial of the petition if the child faces imminent physical damage or harm.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, C.4 (2016).

3.Time Requirements

“An emergency proceeding regarding an Indian child should not be continued for more than 30 days unless the court makes the following determinations:

(1) Restoring the child to the parent or Indian custodian would subject the child to imminent physical damage or harm;

(2) The court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian Tribe; and

(3) It has not been possible to initiate a ‘child-custody proceeding’ as defined in [25 CFR 23.2].”¹⁷ 25 CFR 23.113(e).

4.Accessibility of Reports and Records

“Each party to an emergency proceeding . . . under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”¹⁸ 25 CFR 23.134.

B.Removal

1.Removal From Care

“[T]he requirements of MCL 712B.15(2) that active efforts and a risk-of-harm assessment be made are triggered only when a Native American child is ‘removed’ from a parent, placed in foster care, or otherwise put in protective custody.”¹⁹ In re Detmer/Beaudry, 321 Mich App 49, 64-65 (2017). “MIFPA does not define ‘removed[,]’ [and i]n the absence of a statutory definition,” removed, as used in MCL 712B.15(2), means “the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution.” In re Detmer/Beaudry, 321 Mich App at 62.

Where the trial court removed a Native American child from the respondent-mother’s care and residence, over her objection, and placed the child in the care and residence of the nonrespondent-father, the child was removed from a parent within the meaning of MCL 712B.15(2) and “the trial court was [therefore] required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether [the] respondent-mother’s continued custody of [the child] posed a risk of emotional or physical harm to the child.”²⁰ In re Detmer/Beaudry, 321 Mich App at 64-65 (finding that “although [the child] was placed with a parent, this [did] not negate application of [MIFPA’s] provisions,” and additionally concluding that a second child was not removed within the meaning of MCL 712B.15(2) where the respondent-mother voluntarily placed the child with the nonrespondent-father, and that “the special protections [of MIFPA did] not apply” to that voluntary placement).²¹

“If the court orders removal of the child from a parent’s care or custody, the court shall advise the parent, guardian, or legal custodian of the right to appeal that action.” MCR 3.965(B)(15).

2.Removal Hearings

If an Indian child is taken into protective custody with or without a court order under MCR 3.963(A), MCR 3.963(B), or MCR 3.974,²² or a petition requests the removal of an Indian child,²³ the court must follow the procedures set out in MCR 3.967 [(governing removal hearings)]. MCR 3.967(A)-(B). See also MCR 3.965(B)(2) (governing preliminary hearings).

Note: The court may hold a preliminary hearing in conjunction with a removal hearing if all necessary parties are notified,²⁴ there are no objections by the parties to do so, and at least one qualified expert witness is present to provide testimony. MCR 3.965(B)(2). However, the court may adjourn the preliminary hearing pending the conclusion of the removal hearing if necessary.²⁵ Id. 

MCR 3.967 provides the required procedures and rules of evidence for removal hearings involving an Indian child:

“(A)    Child in Protective Custody. If an Indian child is taken into protective custody pursuant to MCR 3.963(A) or [MCR 3.963](B) or MCR 3.974, a removal hearing must be completed within 14 days after removal from a parent or Indian custodian unless that parent or Indian custodian has requested an additional 20 days for the hearing pursuant to MCL 712B.9(2) or the court adjourns the hearing pursuant to MCR 3.923(G). Absent extraordinary circumstances that make additional delay unavoidable, temporary emergency custody shall not be continued for more than 45 days.

[Note: “An emergency proceeding^[26] regarding an Indian child should not be continued for more than 30 days unless the court makes the following determinations:

(1) Restoring the child to the parent^[27] or Indian custodian^[28] would subject the child to imminent physical damage or harm;

(2) The court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian Tribe; and

(3) It has not been possible to initiate a ‘child-custody proceeding’ as defined in [25 CFR 23.2].”²⁹ 25 CFR 23.113(e).]

(B) Child Not in Protective Custody. If an Indian child has not been taken into protective custody and the petition requests removal of that child, a removal hearing must be conducted before the court may enter an order removing the Indian child from the parent or Indian custodian.

(C) Notice of the removal hearing must be sent to the parties prescribed in MCR 3.921 in compliance with MCR 3.920(C)(1).

(D) Evidence. An Indian child may be removed from a parent or Indian custodian, or, for an Indian child already taken into protective custody pursuant to MCR 3.963 or[MCR 3.974(C)³⁰], remain removed from a parent or Indian custodian pending further proceedings, only upon clear and convincing evidence, including the testimony of at least one qualified expert witness, as described in MCL 712B.17, who has knowledge about the child-rearing practices of the Indian child’s tribe, that active efforts as defined in MCR 3.002 have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family, that these efforts have proved unsuccessful, and that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. The active efforts must take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe.

(E) A removal hearing may be combined with any other hearing.”

The use of videoconferencing technology to conduct removal hearings under MCR 3.967 is governed by MCR 3.904(B). See Section 1.7.

Federal and state law require a qualified expert witness to provide damage testimony before an Indian child may be removed from his or her home. Specifically, the ICWA and the MIFPA require clear and convincing evidence including “the testimony of at least 1 qualified expert witness, who has knowledge of the child rearing practices of the Indian child’s tribe,^[31] that the continued custody^[32] of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.” See MCL 712B.15(2); 25 USC 1912(e); 25 CFR 23.121(a).

“Each party to an emergency proceeding . . . under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”³³ 25 CFR 23.134.

“If the court orders removal of the child from a parent’s care or custody, the court shall advise the parent, guardian, or legal custodian of the right to appeal that action.” MCR 3.965(B)(15).

If the Indian child is removed from the home, MCR 3.967(F) sets out a standard order of preference for the placement of the Indian child, which mirrors the order set out in the ICWA and the MIFPA. For a detailed discussion of the preferred placements of Indian children, see Section 19.13.

C.Foster Care Placement

In general, “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 those efforts were unsuccessful, and that the child is likely to be harmed if not removed.” In re England, 314 Mich App 245, 256 (2016).

Specifically, MCL 712B.15(2) provides that an Indian child may be placed into foster care only if there is clear and convincing evidence of the following:

•“active efforts^[34] have been made to provide remedial services and rehabilitative programs designed to prevent the breakup^[35] of the Indian family,”³⁶

•“the active efforts were unsuccessful,” and

•“the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.” See also 25 USC 1912(d)-(e),  25 CFR 23.120(a), 25 CFR 23.121(a), which contain similar language.

Note: “Continued custody means physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law, that a parent or Indian custodian already has or had at any point in the past. The biological mother of a child has had custody of a child.”³⁷ 25 CFR 23.2.

“The evidence [in support of placing an Indian child in foster care] must include the testimony of at least 1 qualified expert witness, who has knowledge of the child rearing practices of the Indian child’s tribe, that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.” ³⁸MCL 712B.15(2). See also 25 CFR 23.121(a), which contains similar language.

Note: “Foster care placement [means] [a]ny action removing an Indian child from his or her parent or Indian custodian, and where the parent or Indian custodian cannot have the Indian child returned upon demand but parental rights have not been terminated, for temporary placement in, and not limited to, 1 or more of the following:

(A) Foster home or institution.

(B) The home of a guardian or limited guardian under [MCL 700.5201 to MCL 700.5219].

(C) A juvenile guardianship under [the Juvenile Code].” MCL 712B.3(b)(i).

See also 25 USC 1903(1)(i), MCR 3.002(2)(a), and 25 CFR 23.2, which define foster care placement as “any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand,^[39] but where parental rights have not been terminated[.]”

“[T]he evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” 25 CFR 23.121(c). Without the causal relationship, “evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior^[40] does not by itself constitute clear and convincing evidence . . . that continued custody is likely to result in serious emotional or physical damage to the child.” 25 CFR 23.121(d). “[T]here must be a demonstrated correlation between the conditions of the home and a threat to the specific child’s emotional or physical well-being.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, G.1 (2016).

“Each party to . . . a foster-care-placement . . . proceeding under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”⁴¹ 25 CFR 23.134. See also MCL 712B.11 and 25 USC 1912(c), which contain substantially similar language.

Once the court has ordered a foster care placement, it must follow the ICWA’s and the MIFPA’s placement preferences (unless the child’s tribe has established a different order of preference or good cause is shown to the contrary). 25 USC 1915; MCL 712B.23. See Section 19.13 for a detailed discussion of preferred placements of Indian children.

A court order removing an Indian child from his or her home without testimony from a qualified expert witness regarding whether the continued custody of the Indian child by the parent or the Indian custodian is likely to result in serious emotional or physical damage to the Indian child, violates the ICWA, 25 USC 1912(e), and the MIFPA, MCL 712B.15(2), and is grounds for the conditional reversal of the removal order. In re McCarrick/LaMoreaux, 307 Mich App 436, 466-467, 468-470 (2014).

D.Termination of Parental Rights

Where a case does “not involve the removal of [an Indian child] from the parental home, but instead involve[s] the termination of . . . parental rights, [25 USC 1912(d), 25 USC 1912(f), MCL 712B.15(3), and MCL 712B.15(4)] govern the outcome[.]” In re England, 314 Mich App 245, 253 (2016) (noting that “25 USC 1912(e) and MCL 712B.15(2) pertain to removal decisions, while 25 USC 1912(d) and [25 USC 1912(f)] and MCL 712B.15(3) and [MCL 712B.15(4)] pertain to termination decisions[]”).

To terminate a parent’s parental rights over an Indian child, the court must find all of the following:

•“[P]roof that active efforts were made to prevent the breakup of the family, 25 USC 1912(d); MCL 712B.15(3); MCR 3.977(G)(1)[.]” England, 314 Mich App at 253.

•“[P]roof 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).”⁴² England, 314 Mich App at 253.

•“‘[A]t least one state statutory ground for termination was proven by clear and convincing evidence[.]’” England, 314 Mich App at 253, quoting In re Payne/Pumphrey/Fortson, 311 Mich App 49, 58 (2015).

•Proof, “by a preponderance of the evidence, ‘that termination is in the child’s best interests[.]’” England, 314 Mich App at 253-254, quoting In re Olive/Metts, 297 Mich App 35, 40 (2012).

“[T]he demands of ICWA, MIFPA, and MCR 3.977(G) govern termination of the parental rights of a non-Indian, biological parent of an Indian child.” In re Beers/Lebeau-Beers, 325 Mich App 653, 668 n 7 (2018). “Because [the child was] an Indian child and respondent-father [was the child’s] biological parent, . . . respondent-father’s parental rights should not have been terminated absent compliance with MIFPA, ICWA, and MCR 3.977(G), even though respondent-father himself [was] not of Indian descent.” In re Beers/Lebeau-Beers, 325 Mich App at 668. Because ICWA and MIFPA were not applied and “[g]iven the record regarding respondent-father” (indicating a clear risk of harm or danger to the child if released to him), “the proper remedy in this case [was] to conditionally reverse the order terminating respondent-father’s parental rights to [the child] and remand for the trial court to address and resolve the issues regarding active efforts and the potential of serious emotional or physical damage to [the child] if custody continued with respondent-father, as analyzed under a beyond-a-reasonable-doubt standard.” Id. at 678.

1.Active Efforts to Prevent the Breakup of the Indian Family

“Prior to ordering . . . termination of parental rights, the court must conclude that active efforts have been made to prevent the breakup of the Indian family and that those efforts have been unsuccessful.” 25 CFR 23.120(a).

Note: “Active efforts must be documented in detail in the record.” 25 CFR 23.120(b). The Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, E.6 (2016), “recommends that the State agency include the following in its documentation of active efforts, among any other relevant information:

•The issues the family is facing that the State agency is targeting with the active efforts (these should be the same issues that are threatening the breakup of the Indian family or preventing reunification);

•A list of active efforts the State agency determines would best address the issues and the reasoning for choosing those specific active efforts;

•Dates, persons contacted, and other details evidencing how the State agency provided active efforts;

•Results of the active efforts provided and, where the results were less than satisfactory, whether the State agency adjusted the active efforts to better address the issues.”

The party seeking the 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.”⁴³ MCL 712B.15(3). See also 25 USC 1912(d), which contains substantially similar language. “[T]he ‘default’ evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence—. . . appl[ies] to the findings required under MCL 712B.15(3) regarding whether ‘active efforts’ were made to prevent the breakup of the Indian family.”⁴⁴ In re England, 314 Mich App 245, 259-261 (2016) (finding “there was clear and convincing evidence to conclude that active efforts were made” as required by MCL 712B.15(3) where a Child Protective Services (CPS) specialist solicited the involvement of the Indian child’s tribe; maintained regular contact with the respondent, and the respondent’s service providers and probation officer, and the tribe’s caseworker; and assisted the respondent in identifying barriers to reunification, developing a service plan, and obtaining counseling and other services through a culturally-appropriate referral service). See also 25 USC 1912(d) and MCR 3.977(G)(1), which contain substantially similar language.

“[R]emedial services under [25 USC 1912(d)] are intended ‘to alleviate the need to remove the Indian child from his or her parents or Indian custodians,’ not to facilitate a transfer of the child to an Indian parent.” Adoptive Couple, 570 US 637, 652 (citation omitted).

Note: “[25 USC 1912(d)] applies only in cases where an Indian family’s ‘breakup’ would be precipitated by the termination of the parent’s rights. The term ‘breakup’ refers in this context to ‘[t]he discontinuance of a relationship,’ or ‘an ending as an effective entity[,]’ . . . [b]ut when an Indian parent abandons an Indian child prior to [the child’s] birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ that would be ‘discontinu[ed]’–and no ‘effective entity’ that would be ‘end[ed]’–by the termination of the Indian parent’s rights. Adoptive Couple v Baby Girl, 570 US 637, 651-652 (2013) (citations omitted). “In such a situation, the ‘breakup of the Indian family’ has long since occurred, and [25 USC 1912(d)] is inapplicable.” Adoptive Couple, 570 US at 651-652 (the South Carolina Supreme Court erred in finding that “[the] [b]iological [Indian-f]ather’s parental rights could not be terminated because [the] [couple wishing to adopt the child] had not demonstrated that [the] [b]iological [Indian-f]ather had been provided remedial services in accordance with [25 USC 1912(d)]” where “the [biological Indian-father] abandoned the Indian child before [the child’s] birth and never had custody of the child”).

2.Continued Custody Will Likely Result in Serious Emotional or Physical Damage to Child

”The court must not order a termination of parental rights for an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child’s continued custody by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.”⁴⁵ 25 CFR 23.121(b).⁴⁶ 25 CFR 23.2 defines continued custody as “physical custody or legal custody or both, under any applicable Tribal law or Tribal custom or State law, that a parent or Indian custodian already has or had at any point in the past. The biological mother of a child has had custody of a child.”⁴⁷

Continued custody. “[T]he heightened standards of ICWA, MIFPA, and MCR 3.977(G) [may] apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights with regard to [the Indian child].” In re Beers/Lebeau-Beers, 325 Mich App 653, 670 (2018). In the Beers case, the respondent-father signed an affidavit of parentage, which by operation of law under MCL 722.1006⁴⁸ provided the respondent-mother with legal and physical custody of the child, and no court proceedings regarding custody were held. In re Beers/Lebeau-Beers, 325 Mich App at 669-670. Although the respondent-father never had any legal or physical custody rights, the heightened beyond a reasonable doubt standard under 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2) applied to his termination of parental rights because “for a short period . . . respondent-father, respondent-mother, and [the child] lived together as a familial unit wherein respondent-father was providing some care and custody for [the child,] . . . [DHHS] was providing reunification services[, t]he family unit dissolved only when [the child] was removed by court order, although respondents remained together[, and t]he removal of [the child] discontinued the custodial arrangement that had existed with respect to both respondents and [the child], if not in law, in practice.”). See, however, Adoptive Couple v Baby Girl, 570 US 637, 643-644, 648-649 (2013), where, because the biological Indian-parent abandoned his child before the child’s birth, did not provide any support to the mother, and never exercised legal or physical custody over the child, 25 USC 1912(f)⁴⁹ was inapplicable because there was no custody to continue. 25 USC 1912(f) “was primarily intended to stem the unwarranted removal of Indian children from intact Indian families.” Adoptive Couple, 570 US at 649. Thus, “[25 USC 1912(f)] does not apply in cases where the Indian parent never had custody of the Indian child.” Adoptive Couple, 570 US at 648. “The phrase ‘continued custody’ . . . refers to custody that a parent already has (or at least had at some point in the past).” Id.

Serious emotional or physical damage. “For . . . termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” 25 CFR 23.121(c). Without the causal relationship, “evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute  . . . evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.” 25 CFR 23.121(d).

In terminating the mother’s parental rights over her Indian children,⁵⁰ the trial court failed to adhere to the requirements of 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2) when “the trial court explicitly recognized that [the assigned qualified expert witness], the only expert witness at the termination [of parental rights] hearing, did not support termination and specifically testified that returning [the Indian children] to [the mother’s] care would not likely result in serious emotional or physical damage to either [Indian] child[, but the court n]onetheless, considering the other evidence presented, . . . determined that returning [the Indian children] to [the mother’s] care would result in such damage beyond a reasonable doubt.” In re Payne/Pumphrey/Fortson, 311 Mich App 49, 62 (2015).

The trial court correctly concluded that giving the respondent-mother custody of the children “would likely result in serious emotional or physical damage to [the children]” where she failed “to cooperate with and benefit from services designed to address her substance abuse,” failed “to acknowledge that she had a substance abuse problem,” resisted “therapy and the need for another 18 to 24 months of intensive therapy to address her emotional instability,” failed “to take personal responsibility for her children being in care,” . . . missed parenting times,” and where the tribal expert testified “that the tribe’s board of directors believed it was in the best interests of the children to terminate respondent-mother’s parental rights.” In re Beers/Lebeau-Beers, 325 Mich App at 683.

3.Statutory Ground for Termination

In addition to meeting the requirements of the ICWA and the MIFPA, the petitioner must also establish statutory grounds for termination under state law. In re Payne/Pumphrey/Fortson, 311 Mich App at 58, citing In re Elliot, 218 Mich App at 209-210. Therefore, in order to involuntarily terminate the parental rights of an Indian child’s parent or Indian custodian, the court must find the following:

(1) Evidence beyond a reasonable doubt that the child would suffer serious emotional or physical damage if returned to the custody of the parent,

(2) A statutory basis for the termination of parental rights under MCL 712A.19b(3), and

(3) Termination of parental rights is in the child’s best interests. See MCR 3.977(A), MCR 3.977(E)-(H).

Note: See Section 17.7 for statutory grounds for termination of parental rights as well as the standard of proof required to establish each statutory ground. See Section 17.9 on determining a child’s best interests.

4.Party’s Right to Examine Reports or Documents

“Each party to . . . [a] termination-of-parental-rights proceeding under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”⁵¹ 25 CFR 23.134. See also MCL 712B.11 and 25 USC 1912(c), which contain substantially similar language.

5.Placement Preferences

Once the court has terminated the parental rights of an Indian child’s parent or custodian, it must follow the ICWA’s and the MIFPA’s placement preferences (unless the child’s tribe has established a different order of preference or good cause is shown to the contrary). 25 USC 1915; MCL 712B.23; 25 CFR 23.129.

An Indian child’s placement must be determined according to preferences established in 25 USC 1915 and 25 CFR 23.131 unless the Indian child’s tribe has established a different order of preferred placement. 25 USC 1915(c); 25 CFR 23.130 (adoptive placements); 25 CFR 23.131(b)-(c) (foster care or preadoptive placements). That state courts and agencies are required to adhere to the order of preferred placements does not violate the Tenth Amendment (powers not delegated to the federal government by the Constitution and not prohibited by it to the States, are reserved to the States or to the people). Haaland v Brackeen, 599 US ___, ___ (2023). The “diligent search” mentioned in 25 CFR 23.132(c)(5) “applies to both private and public parties”; the petitioners in Haaland did not show that the “diligent search” requirement “demand[ed] the use of state sovereign authority.” Haaland, 599 US at ___. “Instead, [when placement is at issue,] the burden is on the tribe or other objecting party to produce a higher-ranked placement.” Id. at ___.

See Section 19.13 for a detailed discussion of preferred placements of Indian children.

6.Invalidation of State Court Action if ICWA or MIFPA Violated

“Any 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^[52] may 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 19.16 for additional information on invalidation of state court action for violation of the ICWA or the MIFPA.

E.Involuntary Guardianship⁵³ Proceedings Involving an Indian Child

MCL 712B.25 provides for the following procedures related to involuntary guardianships (see also MCR 5.404(A) and MCR 5.404(C)):

(1) If a petition for a guardianship is filed and is determined to be involuntary under [MCL 712B.15] and the court knows or has reason to know that the child is an Indian child, the court may order the [DHHS]^[54] or a court employee to conduct an investigation of the proposed guardianship and file a written report^[55] of the investigation.^[56] In addition to the information required in [MCL 700.5204], the report must include, but is not limited to, the following information:

(a) Whether the child is or is not an Indian child.

(b) The identity and location of the Indian child’s parents, if known.

(c) If the child is an Indian child, the report must also address all of the following:

(i) The tribe or tribes of which the Indian child is a member or eligible for membership.

(ii) If the Indian child and family need culturally appropriate and other services to preserve the Indian family.

(iii) The identity and location of extended family members^[57] and if no extended family members can be found, what efforts were made to locate them.

(2) Notice of the pending proceeding must be given as prescribed by [the Michigan Court Rule], the [ICWA], and [MCL 712B.9].^[58] If the court knows or has reason to know that the proceeding involves an Indian child,^[59] the court shall conduct a hearing to determine all of the following:

(a) If the tribe has exclusive jurisdiction. If so, the court shall issue an order terminating the guardianship or dismissing the petition.

(b) If the current placement with the guardian meets the placement requirements in [MCL 712B.23].^[60]

(c) If it is in the Indian child’s best interest to order the guardianship.

(d) If a lawyer-guardian ad litem should be appointed to represent the Indian child.^[61]

(3) If a petition for guardianship is filed and is to be accompanied by a consent to a voluntary placement of an Indian child, the consent must be executed in accordance with [MCL 712B.13]. If the Indian child’s parents do not execute a consent under [MCL 712B.13], the petition is considered to be for an involuntary guardianship and the requirements of [MCL 712B.15⁶²] must be met.

* * *

(6) If the court discovers a child may be an Indian child after a guardianship is ordered, the court shall provide notice of the guardianship and the potential applicability of [the MIFPA] and the [ICWA], in compliance with [the Michigan Court Rules], [the MIFPA], and the [ICWA], to the tribe, the parents or Indian custodian, and the current guardian on a form approved by the state court administrative office.”

1.Hearing

Before a court may appoint a guardian in a case involving an involuntary guardianship, it “must conduct a hearing on [the] petition . . . in accordance with [MCR 5.404.] . . . Notice of the hearing must be sent to persons prescribed in MCR 5.125(A)(8)^[63] and [MCR 5.125(C)(20)⁶⁴] in compliance with MCR 5.109(1). At the hearing on the petition, the court shall determine:

(a) if the tribe has exclusive jurisdiction as defined in MCR 3.002(6). The court shall comply with MCR 5.402(E)(2).

(b) if the placement with the guardian meets the placement requirements in [MCR 5.404(C)(2) and MCR 5.404(C)(3)].

(c) if it is in the Indian child’s best interests to appoint a guardian.

(d) if a lawyer-guardian ad litem should be appointed to represent the Indian child.

(e) whether or not each parent wants to consent to the guardianship if consents were not filed with the petition. If each parent wants to consent to the guardianship, the court shall proceed in accordance with [MCR 5.404(B) (providing procedures for voluntary guardianships)].” MCR 5.404(C)(1). See also MCL 712B.25(2), which contains substantially similar language.

a.Placement

MCR 5.404(C)(2) sets out the following placement requirements:

“An Indian child shall be placed in the least restrictive setting that most approximates a family and in which his or her special needs, if any, may be met. The child shall be placed within reasonable proximity to his or her home, taking into account any special needs of the child. Absent good cause to the contrary, the placement of an Indian child must be in descending order of preference with:

(a) a member of the child’s extended family,

(b) a foster home licensed, approved, or specified by the child’s tribe,

(c) an Indian foster family licensed or approved by the Department of Health and Human Services,

(d) an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child’s needs.

The standards to be applied in meeting the preference requirements above shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.” MCR 5.404(C)(2).

b.Deviating From Placement

The court may deviate from the placement requirements in MCR 5.404(C)(2) “for good cause shown in accordance with MCL 712B.23(3)-(5) and 25 USC 1915(c).” MCR 5.404(C)(3). In addition, if the child’s tribe has a different order of preference than the order listed in MCR 5.404(C)(3), “placement shall follow that tribe’s order of preference as long as the placement is the least restrictive setting appropriate for the particular needs of the child, as provided in MCL 712B.23(6).” MCR 5.404(C)(3). “Where appropriate, the preference of the Indian child or parent shall be considered.” MCR 5.404(C)(3). But see In re KMN, 309 Mich App 274, 290 (2015) (holding that “good cause [under the MIFPA] is limited to the conditions articulated in MCL 712B.23(5)”).

2.Evidence Sufficient to Remove Indian Child from Parent or Indian Custodian

MCR 5.404(F)(1) sets out the evidentiary requirements under an involuntary guardianship for removal of an Indian child from the child’s parent or Indian custodian for placement with a guardian:

“If a petition for guardianship involves an Indian child and the petition was not accompanied by a consent executed pursuant to MCL 712B.13 and these rules, the court may remove the Indian child from a parent or Indian custodian and place that child with a guardian only upon clear and convincing evidence that:

(a) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,

(b) these efforts have proved unsuccessful, and

(c) continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

The evidence shall include the testimony of at least one qualified expert witness, as described in MCL 712B.17, who has knowledge about the child-rearing practices on the Indian child’s tribe. The active efforts must take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. If the petitioner cannot show active efforts have been made, the court shall dismiss the petition and may refer the petitioner to the [DHHS] for child protective services or to the tribe for services.” MCR 5.404(F)(1). See also MCL 712B.15(2), which provides substantially similar language except that it specifies that to establish clear and convincing evidence, the qualified expert witness must testify that the continued custody will likely result in serious emotional or physical damage to the Indian child.

F.Active Efforts Requirement

More effort is required under MIFPA’s and ICWA’s active efforts standard than is required under Michigan’s reasonable efforts standard.⁶⁵ See generally In re Roe, 281 Mich App 88 (2008), overruled in part on other grounds by In re JL, 483 Mich 300 (2009).⁶⁶ “‘Active efforts’ require affirmative, as opposed to passive, efforts.” In re Beers/Lebeau-Beers, 325 Mich App 653, 680 (2018).

1.Defined For Purposes of MIFPA

For purposes of the MIFPA, active efforts are “actions to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and to reunify the Indian child with the Indian family. Active efforts require more than a referral to a service without actively engaging the Indian child and family. Active efforts include reasonable efforts as required by [T]itle IV-E of the [S]ocial [S]ecurity [A]ct, 42 USC 670 to [42 USC] 679c, and also include, but are not limited to, doing or addressing all of the following:

(i) Engaging the Indian child, child’s parents, tribe, extended family members, and individual Indian caregivers through the utilization of culturally appropriate services and in collaboration with the parent or child’s Indian tribes and Indian social services agencies.

(ii) Identifying appropriate services and helping the parents to overcome barriers to compliance with those services.

(iii) Conducting or causing to be conducted a diligent search for extended family members for placement.^[67]

(iv) Requesting representatives designated by the Indian child’s tribe with substantial knowledge of the prevailing social and cultural standards and child rearing practice within the tribal community to evaluate the circumstances of the Indian child’s family and to assist in developing a case plan that uses the resources of the Indian tribe and Indian community, including traditional and customary support, actions, and services, to address those circumstances.

(v) Completing a comprehensive assessment of the situation of the Indian child’s family, including a determination of the likelihood of protecting the Indian child’s health, safety, and welfare effectively in the Indian child’s home.

(vi) Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in all aspects of the Indian child custody proceeding at the earliest possible point in the proceeding and actively soliciting the tribe’s advice throughout the proceeding.

(vii) Notifying and consulting with extended family members of the Indian child, including extended family members who were identified by the Indian child’s tribe or parents, to identify and to provide family structure and support for the Indian child, to assure cultural connections, and to serve as placement resources for the Indian child.

(viii) Making arrangements to provide natural and family interaction in the most natural setting that can ensure the Indian child’s safety, as appropriate to the goals of the Indian child’s permanency plan, including, when requested by the tribe, arrangements for transportation and other assistance to enable family members to participate in that interaction.

(ix) Offering and employing all available family preservation strategies and requesting the involvement of the Indian child’s tribe to identify those strategies and to ensure that those strategies are culturally appropriate to the Indian child’s tribe.

(x) Identifying community resources offering housing, financial, and transportation assistance and in-home support services, in-home intensive treatment services, community support services, and specialized services for members of the Indian child’s family with special needs, and providing information about those resources to the Indian child’s family, and actively assisting the Indian child’s family or offering active assistance in accessing those resources.

(xi) Monitoring client progress and client participation in services.

(xii) Providing a consideration of alternative ways of addressing the needs of the Indian child’s family, if services do not exist or if existing services are not available to the family.” MCL 712B.3(a). See also MCR 3.002(1), which contains a substantially similar definition of active efforts.

2.Defined For Purposes of ICWA

For purposes of ICWA, active efforts are “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Where an agency is involved in the child-custody proceeding, active efforts must involve assisting the parent or parents or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s Tribe and should be conducted in partnership with the Indian child and the Indian child’s parents, extended family members,^[68] Indian custodians, and Tribe. Active efforts are to be tailored to the facts and circumstances of the case and may include, for example:

(1) Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal;

(2) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;

(3) Identifying, notifying, and inviting representatives of the Indian child’s Tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues;

(4) Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents;

(5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s Tribe;

(6) Taking steps to keep siblings together whenever possible;

(7) Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;

(8) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources;

(9) Monitoring progress and participation in services;

(10) Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available;

(11) Providing post-reunification services and monitoring.” 25 CFR 23.2.

3.Proper Standard of Proof

The proper standard of proof for determining whether the ICWA’s active efforts standard was met is the clear and convincing evidence standard. In re Roe, 281 Mich App 88, 101 (2008), overruled in part on other grounds by In re JL, 483 Mich 300 (2009)⁶⁹ (the beyond a reasonable doubt standard of proof to satisfy the active efforts requirement was incorrectly adopted in In re Morgan, 140 Mich App 594, 604 (1985), and In re Kreft, 148 Mich App 682, 693 (1986)). See also MCL 712B.15(2), which requires the clear and convincing evidence standard for determining whether the MIFPA’s active efforts standard was met for an “Indian child [to] be removed from a parent or Indian custodian [and] placed into foster care placement, or[] for an Indian child already taken into protective custody, remain removed from a parent or Indian custodian pending further proceedings[;]” In re England, 314 Mich App 245, 259-260 (2016), finding that “the ‘default’ evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence—. . . appl[ies] to the findings required under MCL 712B.15(3) regarding whether ‘active efforts’ were made to prevent the breakup of the Indian family.”⁷⁰

“The factual findings by the trial court are reviewed for clear error, and any issue regarding the interpretation and application of the relevant federal and state statutory provisions is reviewed de novo.” In re Beers/Lebeau-Beers, 325 Mich App 653, 680 (2018).

4.Active Efforts Not Required If Indian Family Remains Intact

Active efforts are not required where termination of a parent’s parental rights does not result in breaking up an Indian family. In re SD, 236 Mich App 240, 244-245 (1999) (active efforts were not required where “the family had already broken up by the time the termination proceedings were initiated[,]^[71] . . . the children’s mother still live[d] with and t[ook] care of the children[,] [t]he children’s mother [was] the parent that [was] of Indian heritage and it [was] through her that the children ha[d] ties to their tribe[,] . . . the children’s ‘Indian family’ and connection to their Indian heritage remained intact when petitioner agreed not to seek termination of [the children’s mother’s parental] rights[, and] [t]he tribe . . . recommend[ed] that respondent[-father’s] rights be terminated”). But see In re Beers/Lebeau-Beers, 325 Mich App 653, 676 (2018) (conditionally reversing the trial court’s order terminating the non-Indian parent’s parental rights due to ICWA and MIFPA noncompliance and remanding to the trial court where “[t]here was an existing intact Indian family and an existing relationship between [the non-Indian parent,] and [the Indian child] when petitioner intervened for the protection of [the child], began providing services, and then removed [the child] by court order” and “[b]oth respondent[-parents] were subject to parallel protective proceedings, their parental rights were terminated at the same time, and [the Indian parent] did not remain with [the child] as an intact Indian family”).

5.Impact of Past Active Effort Services on New Termination Proceedings

The ICWA does not require the DHHS or the tribe to provide services each time a new termination proceeding is commenced against a parent when past efforts failed and it does not appear that providing the additional services will result in a different outcome. In re JL, 483 Mich at 305. See also In re Roe, 281 Mich App at 102, 105, where the Court held that there was nothing within 25 USC 1912(d) that prevented the DHHS from seeking termination of parental rights when past efforts to reunite the family were unsuccessful. However, the DHHS must “undertake a thorough, contemporaneous assessment of the services provided to the parent in the past and the parent’s response to those services before seeking to terminate parental rights without having offered additional services.” In re JL, 483 Mich at 305.

Note: The In re JL Court indicated that despite its refusal to establish an arbitrary threshold at which past services could be used to satisfy current active efforts, it did direct trial courts to “carefully assess the timing of the services provided to the parent [and that] . . . [t]he timing of the services must be judged by reference to the grounds for seeking termination and their relevance to the parent’s current situation.” In re JL, 483 Mich at 324-325. The In re JL Court also declined to hold that “active efforts must always have been provided in relation to the child who is the subject of the current termination proceeding.” Id. at 325.

But see 25 CFR 23.120(a) (amended after the In re JL case was decided), which requires the court to “conclude that active efforts have been made to prevent the breakup of the Indian family and that those efforts have been unsuccessful” before the court orders an involuntary foster-care placements or termination of parental rights.⁷² Note, however, 25 CFR 23.120(a) “reflect[s] that the court must conclude that active efforts were made prior to ordering foster-care placement or [termination of parental rights], but does not require such a finding at each hearing. It is, however, a recommended practice for a court to inquire about active efforts at every court hearing and actively monitor compliance with the active efforts requirement. . . . The court should not solely rely on past findings regarding the sufficiency of active efforts, but rather should routinely ask as part of a foster-care or [termination of parental rights] proceeding whether circumstances have changed and whether additional active efforts have been or should be provided.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, E.5 (2016).

6.Sufficiency of the Evidence (Caselaw Discussing Active Efforts)

Active efforts were made. Active efforts were made and were unsuccessful where “notices of every hearing and copies of the petitions and reports were provided to the tribe,” DHHS “offered or provide respondent-mother with assessments, treatment, counseling, drug screens, and services related to her substance abuse issues,” as well as “[p]sychological evaluations, therapy, parenting time, in-home services, and various family programs[.]” In re Beers/Lebeau-Beers, 325 Mich App 653, 680-681 (2018). Further, “[f]amily team meetings were held to address respondent-mother’s barriers to reunification and to assist her in complying with court orders,” the tribe-assigned qualified expert witness “testified that she had received reports and updates from the petitioner, that she had been included in treatment plans, that she had been able to provide input for services, and that she had participated in family team meetings,” in addition to the fact that the tribe had offered services to the mother but she “failed to contact the tribe to take advantage” of them. Id. at 681. Finally, the mother “was resistant to petitioner’s efforts and did not cooperate or benefit from the services that were provided to her. Id. “In light of this evidence, respondent-mother’s argument that petitioner failed to make the requisite ‘active efforts’ [was] unavailing.” Id.