A brief discussion of the ICWA and the MIFPA in the context of child protective proceedings is included in this section. However, a detailed discussion of the ICWA and the MIFPA as it applies to the Indian child’s parent voluntarily consenting to a release of parental rights or consent to adopt under the Adoption Code, or the Indian child’s parent or Indian custodian consenting to a petition for guardianship is beyond the scope of this benchbook. See the Michigan Judicial Institute’s Adoption Proceedings Benchbook, Chapter 11, for additional information on this topic.
“The [ICWA] applies to voluntary proceedings [as well as to involuntary proceedings]. Relinquishing a child temporarily (to foster care) or permanently (to adoption) is a grave act, and a state court must ensure that a consenting parent or custodian knows and understands ‘the terms and consequences.’” Haaland v Brackeen, 599 US ___, ___ (2023), quoting 25 USC 1913(a). “Notably, a biological parent who voluntarily gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents.” Haaland, 599 US at ___. “The child’s tribe has ‘a right to intervene at any point in [a] proceeding’ to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s decree.” Id. at ___, quoting 25 USC 1911(c) (alteration in original). See also 25 USC 1914. “As a result, the tribe can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family.” Haaland, 599 US at ___. See Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 49-52 (1989).
Under the MIFPA, there are multiple types of voluntary proceedings:
•both parents or Indian custodian voluntarily consent to a petition for guardianship under MCL 700.5204 or MCL 700.5205, or
•a parent consents to “adoptive placement or the termination of his or her parental rights for the express purpose of adoption by executing a release under [MCL 710.28 and MCL 710.29], or consent under [MCL 710.43 and MCL 710.44][.]”MCL 712B.13(1).1 See also MCR 5.404(B) (voluntary consent to guardianship).
Note: 25 CFR 23.2 defines voluntary proceeding as “a child-custody proceeding that is not an involuntary proceeding, such as a proceeding for foster-care, preadoptive, or adoptive placement that either parent, both parents,[2] or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, consented to for the Indian child, or a proceeding for voluntary termination of parental rights.”3
“An individual parent’s consent is valid only as to [that parent].” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, I.6 (2016).
“The State court must require the participants in a voluntary proceeding to state on the record whether the child is an Indian child, or whether there is reason to believe the child is an Indian child, as provided in [25 CFR 23.107]. If there is a reason to believe the child is an Indian child, the State court must ensure that the party seeking placement has taken all reasonable steps to verify the child’s status. This may include contacting the Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) to verify the child’s status. As described in [25 CFR 23.107], where a consenting parent requests anonymity, a Tribe receiving such information must keep relevant documents and information confidential.” 25 CFR 23.124(a)-(b). For a detailed discussion of determining an Indian child’s status, including determining whether a child is an Indian child, finding an Indian child’s Tribe, and addressing confidentiality concerns, see Section 19.4(A).
Once a parent4 or Indian custodian5 has voluntarily consented, the court 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 23.124(c). See Section 19.13 for a detailed discussion of preferred placements of Indian children.
A voluntary custody proceeding must meet three requirements:
•Valid consent.
•Proper notice.
•Conform to certain court rule and statutory requirements. MCL 712B.13(1).
1.Valid Consent
To obtain a valid consent from the child’s parent or Indian custodian, the following procedures must be followed:
(1) The consent must be executed on a form approved by the State Court Administrative Office, in writing during a recorded proceeding before a judge of a court of competent jurisdiction;6
(2) The presiding judge must certify that the terms and consequences of the consent were fully explained in detail and were fully understood by the child’s parent or Indian custodian;
(3) The court must certify either that the parent or Indian custodian fully understood the explanation in English or that it was translated into a language that the parent or Indian custodian understood; and
(4) A consent is not valid if given prior to the birth of the Indian child, or within ten days after the birth of the Indian child.7 25 USC 1913(a); MCL 712B.13(1)(a). See also MCR 5.404(B), 25 CFR 23.125(a), 25 CFR 23.125(b)(1), 25 CFR 23.125(c), and 25 CFR 23.125(e), which contain substantially similar consent requirements.
The court must also explain:
•Before accepting the parent’s or Indian custodian’s consent to foster-care placement, the parent or Indian custodian may withdraw his or her consent “for any reason, at any time, and have the child returned[.]” 25 CFR 23.125(b)(2)(i).
•Before accepting the parent’s consent to termination of parental rights, the parent may withdraw his or her consent “for any reason, at any time prior to the entry of the final decree of termination and have the child returned[.]” 25 CFR 23.125(b)(2)(ii).
•Before accepting the parent’s consent to an adoptive placement, the parent may withdraw his or her consent “for any reason, at any time prior to the entry of the final decree of adoption, and have the child returned.” 25 CFR 23.125(b)(2)(iii).
“Where confidentiality is requested or indicated, execution of consent need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with [25 CFR 23.125].” 25 CFR 23.125(d). See Section 19.4(A)(3) for additional information on confidentiality concerns.
a.Required Content of Consent Document
The consent document8 must contain the following information:
(1) The name and birthdate of the Indian child;
(2) The name of the Indian child’s tribe;
(3) Any identifying number or other indication of the child’s membership in the tribe;
(4) The name and address of the consenting parent or Indian custodian; and
(5) A sworn statement from the translator, if one was used, that attests to the accuracy of the translation.
(6) The parent(s)’ or Indian custodian’s signature “recorded before the judge, verifying an oath of understanding of the significance of the voluntary placement and the parent’s right to file a written demand to terminate the voluntary placement or consent at anytime.”
(7) “For consent for voluntary placement of the Indian child in foster care, the name and address of the person or entity who will arrange the foster care placement as well as the name and address of the prospective foster care parents if known at the time.”
(8) “For consent to termination of parental rights or adoption of an Indian child, in addition to the information [above], the name and address of the person or entity that will arrange the preadoptive or adoptive placement.” MCL 712B.13(2). See also 25 CFR 23.126(b), which requires similar information for a written consent.
“If there are any conditions to the consent, the written consent must clearly set out the conditions.” 25 CFR 23.126(a).
2.Notice
“Notice of the pending [voluntary] proceeding must be given as prescribed by [the Michigan Court Rules], the [ICWA], and [MCL 712B.9(1)]. MCL 712B.13(1)(b); MCL 712B.27(3). See Section 19.5 for a detailed discussion of notice proceedings.
3.Conforming to Court Rule and Statutory Requirements
“The voluntary custody proceeding shall be conducted in accordance with [the Michigan Court Rules] and the following statutes:
(i) In a guardianship proceeding under [MCL 700.5204] or [MCL 700.5205] also applies.
(ii) In an adoption proceeding, [MCL 712B.27] also applies.” MCL 712B.13(1)(c).
B.Consent to Voluntarily Terminate Parental Rights9 During Child Protective Proceedings
When the court has taken jurisdiction over a child in a child protective proceeding, the court has the authority to conduct a hearing under MCL 712A.19b of the Juvenile Code to determine if parental rights should be involuntarily terminated. However, the parent may elect to voluntarily terminate his or her parental rights by either executing a release and termination of parental rights under the Adoption Code under MCL 710.28,10 or admitting to a ground for termination or enter a no contest plea under the Juvenile Code. In re Toler, 193 Mich App 474, 477 (1992). See also In re Hernandez/Vera, unpublished opinion per curiam of the Court of Appeals, issued April 16, 2013 (Docket No. 312136).11
“If the release follows the initiation of [a child protective proceeding under MCL 712A.2(b),] the court shall make a finding that culturally appropriate services were offered.” MCL 712B.13(5). MCL 712B.13 . . . 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 289, 336 (2018), rev’g 320 Mich App 88, 104 (2017). Accordingly, “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. In re Williams, 501 Mich at 336 However, “when 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.”12 In re Williams, 501 Mich at 336 (emphasis added).
Note: MCL 712B.3(d) defines culturally appropriates services as:
”[S]ervices that enhance an Indian child’s and family’s relationship to, identification, and connection with the Indian child’s tribe.[13] Culturally appropriate services should provide the opportunity to practice the teachings, beliefs, customs, and ceremonies of the Indian child’s tribe so those may be incorporated into the Indian child’s daily life, as well as services that address the issues that have brought the Indian child and family to the attention of the [DHHS] that are consistent with the tribe’s beliefs about child rearing, child development, and family wellness. Culturally appropriate services may involve tribal representatives, extended family members,[14] tribal elders, spiritual and cultural advisors, tribal social services, individual Indian caregivers, medicine men or women, and natural healers. If the Indian child’s tribe establishes a different definition of culturally appropriate services, the court shall follow the tribe’s definition.” See also MCR 3.002(4), which contains a substantially similar definition of culturally appropriate services.
MCL 712B.13 permits a parent of an Indian child to withdraw his or her consent up until entry of the adoption order regardless of whether that parent executed a release of parental rights for the purpose of adoption under MCL 710.28 and MCL 710.29 or executed a consent to a specific adoptive placement under MCL 710.43 and MCL 710.44. In re Williams, 501 Mich 289, 334 (2018) (“agree[ing] with the Court of Appeals that ‘a specific adoptive placement was not required under [MCL] 712B.13(1),” and finding that respondent-father releasing “his children to DHHS rather than to a specific adoptive parent [was] not relevant to his ability to withdraw his consent; . . . [t]he plain language of MCL 712B.13 allows a parent of an Indian child to both consent to the termination of his or her parental rights for the express purpose of adoption by executing a release under [MCL 710.28] and [MCL 710.29] of the Adoption Code and also to withdraw that consent before a final order of adoption is entered.”), rev’g and quoting 320 Mich App 88 (2017).
Note: If, during a child protective proceeding, a parent of an Indian child consents to the termination of his or her parental rights for the purpose of adoption and then seeks to withdraw that consent under MCL 712B.13 before a final order of adoption is entered, the parent “may withdraw his [or her] consent, but because he [or she] is still subject to MCL 712B.15, DHHS may refile a termination petition.” In re Williams, 501 Mich at 337. For a discussion on MCL 712B.15, see Section 19.12.
But see 25 CFR 23.125(b)(2)(ii)-(iii) and 25 CFR 23.128(a)-(b), which permit a withdrawal of consent for voluntary termination of parental rights for any reason and at any time before entry of a final decree of termination, and a withdrawal of consent to adoption for any reason and at any time before entry of a final decree of adoption.15 See also 25 USC 1913(c), which permits withdrawal of consent to voluntary termination of parental rights or adoption for any reason and at any time before entry of a final decree of termination or adoption, as the case may be.16 See also In re Kiogima, 189 Mich App 6, 7 (1991) (finding the “respondent[-mother’s] right to withdraw her consent [to a voluntary release of her parental rights] pursuant to 25 USC 1913(c) expired with the entry of a final order terminating her parental rights”).
Once a written demand requesting the return of the Indian child is filed with the court, the court must order that the child be returned. MCL 712B.13(3); MCR 3.804(D). “[U]nder MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to ‘return of the Indian child’ to him or her. Instead, the child returns to the position the child was in before his or her parent consented to the termination of parental rights.” In re Williams, 510 Mich at 337.
25 CFR 23.128(d) also requires the court with which the withdrawal of consent is filed to promptly notify any person or entity that arranged the voluntary preadoptive or adoptive placement for the Indian child, and to return the child to the parent as soon as is practicable. See also 25 USC 1913(c), which requires a return of the child once a consent is withdrawn.17
1 For purposes of voluntary proceedings, the MIFPA provides for higher standards of protection under MCL 712B.13 by specifying certain circumstances that give rise to a voluntary proceeding than the ICWA provides under 25 USC 1913. See 25 USC 1921, which provides that applicable state law prevails if it contains higher standards than the ICWA.
2 “If a parent refuses to consent to the foster-care, preadoptive, or adoptive placement or [termination of parental rights], the proceeding would meet the definition of an ‘involuntary proceeding.’ Nothing in the statute indicates that the consent of one parent eliminates the rights and protections provided by [the] ICWA to a non-consenting parent.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, L.21 (2016).
3 For a discussion of Indian child-custody proceedings, see Section 19.4(B).
4 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 25 USC 1903(9), MCR 3.002(20), and 25 CFR 23.2, which contain substantially similar definitions of parent, except that, where the Indian child has been adopted, they all require the adopter to be an Indian. See Chapter 6 on establishing paternity.
5 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 25 USC 1903(6) and MCR 3.002(15), which contain substantially similar definitions of Indian custodian; 25 CR 23.2, which contains a substantially similar definition of Indian custodian except that it also permits an Indian to “demonstrate that he or she is an Indian custodian by looking to Tribal law or Tribal custom or State law.”
6 See Section 19.7 for a detailed discussion of jurisdiction.
7 “The court may use videoconferencing technology for the guardianship consent hearing required to be held under MCL 712B.13(1) and this subrule.” MCR 5.404(B)(1). If a parent is consenting to the termination of his or her parental rights over an Indian child pursuant to MCL 712B.13, MCR 3.804(B)(3) prevents the court from using videoconferencing technology for the consent hearing.
8 See the ICWA form, Consent to Temporary Custody and Certification, at http://www.narf.org/nill/documents/icwa/forms/index.html, and the ICWA form, Consent to Termination of Parental Rights, at http://www.narf.org/nill/documents/icwa/forms/index.html.
9 Termination of parental rights means “[a]ny action resulting in the termination of the parent-child relationship.” MCL 712B.3(b)(ii). See also 25 USC 1903(1)(ii) and MCR 3.002(2)(b), which both contain a substantially similar definition of termination of parental rights.
10 “If a release . . . to adoption under [the Adoption Code, MCL 710.21 et seq.,] is executed, consent to voluntary placement of an Indian child must also be executed by both parents of the Indian child in accordance with [MCL 712B.13].” MCL 712B.27(1).
11 Unpublished opinions are not precedentially binding under the rule of stare decisis. MCR 7.215(C)(1).
12 “MCL 712B.15 applies when ‘an Indian child is the subject of a child protective proceeding . . . [and] a parent does not provide consent’ to the termination of his or her parental rights for the express purpose of adoption. MCL 712B.15(1). MCL 712B.13 applies when ‘a parent consents to adoptive placement or the termination of his or her parental rights for the express purpose of adoption . . . .’ MCL 712B.13(1).” In re Williams, 501 Mich at 336 (alteration in original).
13 For a discussion on an Indian child’s Tribe, see Section 19.4(A)(2).
14 For purposes of the MIFPA, “[e]xtended family members’ means that term as defined by the law or custom of the Indian child’s tribe or, in the absence of that law or custom, means a person who has reached the age of 18 and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent and includes the term ‘relative’ as that term is defined in [MCL 712A.13a(1)(j)].” MCL 712B.3(f). See also 25 USC 1903(2), MCR 3.002(7), and 25 CFR 23.2, which contain substantially similar definitions of extended family members.
15 Note, however, “if a parent’s or Indian custodian’s parental rights have already been terminated, then the parent or Indian custodian may no longer withdraw consent to the adoption, because they no longer legally qualify as a parent or Indian custodian.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, I.7 (2016).
16 Note that 25 USC 1913(c) and 25 CFR 23.125(b)(2)(ii) permit the parent or Indian custodian to consent to the termination of parental rights, and 25 USC 1913(c), 25 CFR 23.125(b)(2)(iii), and 25 CFR 23.128(b) permit the parent or Indian custodian to consent to adoption. The MIFPA, however, no longer allows an Indian custodian to consent to the termination of parental rights or adoptive placement. See MCL 712B.13(1) and MCL 712B.13(3) as amended by 2016 PA 26, effective May 30, 2016.
17 Note that 25 USC 1913(c) and 25 CFR 23.128(d) require return of the child to the parent or Indian custodian. The MIFPA, however, no longer allows an Indian custodian to consent to the termination of parental rights or adoptive placement. See MCL 712B.13(1) and MCL 712B.13(3) as amended by 2016 PA 26, effective May 30, 2016.