Michigan Supreme Court to Hear Oral Arguments in ICWA Conditional Affirmance Case Wednesday

The case is In re Morris. The issue is:

Natasha Lynn Brumley and David Lenin Morris challenge the termination of their parental rights to their daughter, who was removed from Brumley’s custody after the child tested positive for cocaine at birth. During a preliminary hearing in family court, both parents indicated that they were of Cherokee descent. The family court ordered the parents to comply with a parent-agency agreement, and the Department of Human Services provided various services to Brumley and Morris, including substance abuse rehabilitation programs for Brumley and parenting classes for both of them. But the family court ultimately terminated their parental rights, finding in part that neither Brumley nor Morris benefitted from the services offered to them.

The parents appealed, but the Court of Appeals affirmed the circuit court’s ruling in an unpublished per curiam opinion. Because the Court of Appeals did not initially address the Department of Human Services’ confession of error regarding its failure to give notice under the Indian Child Welfare Act, 25 USC 1912(a), the Supreme Court remanded the case to the Court of Appeals to address that issue. Under the ICWA, 25 USC 1901 et seq., child custody proceedings involving foster care placement or termination of parental rights to an “Indian child,” 25 USC 1903(4), are subject to specific federal procedures and standards. ICWA requires that an interested Indian tribe receive notice of termination proceedings involving an Indian child: “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No 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 . . . .” [25 USC 1912(a).] Under the ICWA, an “Indian child” is any unmarried individual less than 18 years of age who is either (1) an Indian tribe member or (2) both eligible for Indian tribe membership and an Indian tribe member’s biological child. 25 USC 1903(4). The question whether a person is a member of a tribe or eligible for membership is for the tribe itself to answer. In re NEGP, 245 Mich App 126, 133 (2001). The failure to comply with the Indian tribe notice requirements may lead to invalidation of the proceedings. 25 USC 1914.

On remand, the Court of Appeals acknowledged the Department of Human Services’ statement that it failed to comply with the ICWA’s notice requirements. The appellate panel conditionally affirmed the circuit court’s termination ruling, but remanded the case to the circuit court so that it could comply with the notice requirements of the ICWA. Morris appeals.

Here are the briefs:

Petitioner-Appellee’s Brief on Appeal>>
Petitioner-Appellee Lawyer Guardian Ad-Litem’s Brief on Appeal>> 

Respondent-Appellant’s Brief on Appeal>> 
Respondent-Appellant’s Reply Brief>>

American Indian Law Section of the State Bar of Michigan’s Amicus Curiae Brief>>

Little Traverse Bay Bands of Odawa Indians’ Amicus Curiae Brief>>