Michigan COA Issues Conditional Reversal in ICWA Notice Case

Here is the unpublished opinion:

Matter of Vanostran

An excerpt:

Given the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, the Supreme Court found “the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one,” and held that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. Morris, 491 Mich at 88-89. The transcript of the November 29, 2004, hearing was not provided on appeal for review of the evidence indicating Indian heritage, but the trial court deemed the evidence “weakly strong” and felt it warranted provision of ICWA notice. On appeal, the parties agree that the lower court record does not show notice was provided in 2004. Given the fact that the notice requirement was triggered in 2004, it is unnecessary to decide whether respondent mother’s comments during the 2012 termination hearing were  also sufficient to require notice. If her comments were not sufficient, or even if she denied SKV’s Indian heritage, the trigger occurred in 2004, and a parent cannot waive the child’s status. Morris, 491 Mich at 111.

Michigan COA Issues Conditional Reversal in ICWA Notice Case

Here is the opinion in In re Howard.

An excerpt:

Where a respondent’s parental rights have otherwise been properly terminated under Michigan law, but the petitioner and the trial court failed to comply with the ICWA’s notice provision, the proper remedy is to conditionally reverse and remand for resolution of the ICWA notice issue. In re Morris, 491 Mich at 121. If the trial court conclusively determines that ICWA does not apply to the involuntary child custody proceeding—because the children are not  Indian children or because the properly noticed tribe does not respond within the allotted time—the trial court’s order terminating parental rights is reinstated. If, however, the trial court concludes that ICWA does apply to the child custody proceeding, the trial court’s order terminating parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of ICWA. In re Morris, 491 Mich at 120-121.

Michigan COA Issues First “Conditional Reversal” in ICWA Notice Case

Here:

In re Grochowalski

The Michigan SCT decision instructing lower courts on ICWA notice violations and adopting the “conditional reversal” requirement is here.