Michigan COA Decision on In re Morris

The Michigan Court of Appeals heard the ICWA notice case that the Michigan Supreme Court originally remanded back to Wayne County for notice. That case, In re Morris, details what is required of Michigan courts when notifying tribes of a potential ICWA case.

The decision is here. There is finally extensive detail on what DHS did or did not put in the notice to the three Cherokee tribes, something the Supreme Court demanded in Michigan ICWA cases.

Since respondent could not obtain any additional information regarding his relatives, it would be unreasonable to expect petitioner to find it. Imposing this burden on petitioner would also encourage parents, who can best research their own ancestry, to delay the proceedings by providing limited information. Because it would often take a long time to uncover ancestry details, a requirement that ICWA tribal notices include every detail of a child’s ancestry    would    undermine    ICWA ’ s    10-day    provision,    which    prevents    unreasonable    delays.    It would also jeopardize concepts of permanency and finality. The trial court did not err by finding that there was compliance with the ICWA’s notification requirements.

In re Al-Sadoon, Unpublished Michigan COA ICWA Case


Problematic language here:

The lower court did not inquire about the tribal status of respondent or the children as required by MCR 3.965(B)(2). However, the Michigan Supreme Court has held that it “will not reverse an otherwise proper termination absent a showing that a party suffered an actual deprivation of an important right.” In re Osborne, 459 Mich 360, 369 n 10; 589 NW2d 763 (1999). Respondent has not shown that the lower court’s failure to inquire about tribal status in fact deprived her of an important right. Accordingly, any error in the lower court’s failure to inquire about tribal status was harmless.

Problematic for many reasons, but mainly because the Michigan Supreme Court found in May:

Therefore, before a state court can determine whether ICWA applies to the proceedings, the court must first make the critical determination whether the child is an “Indian child.”

In re Morris, *13

1. At the preliminary hearing, the court must inquire about Indian heritage. While MCR 3.965(B)(2) frames the inquiry in terms of actual tribal membership, sufficiently reliable information of virtually any criteria on which membership might be based is adequate to trigger the notice requirement of 25 USC 1912(a). See part IV(A) of the opinion. As we have noted, not all tribes keep written rolls and it is possible for a parent to be unaware that she or he is a member of a tribe. See n 19 of the opinion and accompanying text.

In re Morris, Appendix (emphasis added).

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


In re Grochowalski

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

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>>

Michigan Supreme Court Grants Leave to Appeal “Conditional Affirmance” Remedy for ICWA Notice Violations

Here is that order in In re Morris:

Order granting Leave

The appellate court’s decision on remand is here.

Here is the text of the order granting leave:

By order of April 22, 2011, while retaining jurisdiction, we remanded this case to the Court of Appeals for reconsideration of the respondent father’s appeal in light of the confession of error by petitioner Department of Human Services regarding the notice violation under the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq. On order of the Court, the Court of Appeals having filed its opinion on remand on May 19, 2011, the application for leave to appeal is again considered, and it is GRANTED, limited to the issue whether the Court of Appeals “conditional affirmance” remedy is an appropriate method of resolving an ICWA violation.

We further ORDER the Wayne Circuit Court Family Division to appoint attorney Vivek Sankaran of the University of Michigan Law School Child Advocacy Clinic, if feasible, to represent the respondent father in this Court.

The Children’s Law, Family Law, and American Indian Law Sections of the State Bar of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae.

Michigan COA, on Remand from Mich. SCT, Decides ICWA Notice Case

Here is that opinion. An excerpt:

This termination of parental rights case returns to this Court on remand from the Supreme Court “for reconsideration of the respondent father’s appeal in light of the confession of error by petitioner Department of Human Services regarding the failure of it and the Wayne Circuit Court, Family Division, to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq.” In re C I Morris, ___ Mich ___; 796 NW2d 51 (Docket No. 142759, decided April 22, 2011). We readopt our original opinion and conditionally affirm the circuit court, but we remand this case with regard to both respondents for further proceedings consistent with this opinion.

Here is the Supreme Court’s remand order.