One Court of Justice

In In re C. I. Morris, the Court of Appeals held that where there is no record evidence that a child is eligible for membership in any Indian tribe, and where the caseworker and trial court have assured that all available genealogical information has been provided to potential tribes, the burden shifts to the respondent to show that the child is an “Indian child” for purposes of the Indian Child Welfare Act (“ICWA”).  Because the proper notices were sent to potential tribes in this matter, and because the respondent-father failed to provide any evidence that ICWA applied, the order terminating parental rights was affirmed. Read more »

On Friday, June 15, 2012, the Michigan Supreme Court denied two applications for leave to appeal and dismissed one application on stipulation of the parties. 

The Court also remanded the case of In re Budd, Case No. 143894, to the Wayne County Circuit—Family Division.  This application for leave to appeal was held in abeyance pending the Court’s decision in In re Morris, 491 Mich ___ (2012).  As in Morris, Budd concerns the procedural and substantive notice requirements of the Indian Child Welfare Act (“ICWA”).  In light of its recent decision in Morris, the Court reversed the Court of Appeals’ judgment which had conditionally affirmed the trial court’s termination of respondent’s parental rights.  The Court remanded the matter to the trial court with instructions to ensure the required notice had been sent to all proper parties under ICWA.  If the trial court determines that the children are not “Indian child[ren]” for purposes of ICWA, or if the tribe fails to respond to the ICWA notice, the trial court was instructed to reinstate its original order terminating respondent’s parental rights.  However, if ICWA applies and the tribe responds to the notice, the trial court was ordered to vacate its original order terminating parental rights and begin the termination proceedings anew.

On Friday, the Michigan Supreme Court clarified the steps trial courts must take to ensure that the notice requirements under the Indian Child Welfare Act (“ICWA”) are strictly enforced in a consolidated order resolving two cases, In re C I Morris Minor, Case No. 142759 and In re J L Gordon Minor, Case No. 143673.  The Court ruled that any sufficiently reliable information that a child is an “Indian child” for purposes of ICWA will trigger the notice requirement found in 25 U.S.C. § 1912(a).  Further, the Court concluded that a parent may not waive the notice requirement rights granted to Indian tribes, as well as other interested parties, under ICWA.  The statute gives tribes rights equal to parents and other Indian custodians. Accordingly, tribal jurisdiction cannot be defeated by the actions of individual members of a tribe.  Finally, trial courts were directed to keep the following documentation in the court record, at a minimum: 1) an original or copy of the actual notice personally served or sent via registered mail to parent, Indian custodian, tribe, and/or Secretary of the Interior; and, 2) original or legible copy of the return receipt or other proof of service.  Trial courts were also encouraged to keep a copy in the record of any correspondence between the court, petitioner, and tribe or other interested party. Read more »