The ICWA Appellate Clinic co-represented the tribe in this case.
This case involves a complicated question of state statute interpretation regarding a voluntary consent to a termination of parental right in the face of a state termination petition. In this case, the dad consented to termination before the termination hearing. The children were later placed in a tribal-approved foster placement, and the dad withdrew his consent to termination. The question was whether dad could do that under Michigan statute.
None of the protections in MCL 712B.15, [mirroring ICWA’s main protections in an involuntary proceeding] which are designed for contested and adversarial proceedings, remains relevant once a parent voluntarily releases his or her rights under MCL 712B.13. When the court accepted Williams’s release, and the proceedings went from adversarial to cooperative, the protections of MCL 712B.15 did not apply.
However, the Court also held,
That is, Williams may withdraw his consent, but because he is still subject to MCL 712B.15, DHHS may refile a termination petition. MCL 712B.15. And, under MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to “the 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. Williams’s children were in foster care when he consented to the termination of his parental rights, his children will remain in foster care, and Williams will be once again subject to the procedures and protections of MCL 712B.15. DHHS may proceed with its termination case if it chooses, and if DHHS can satisfy the heightened requirements of MCL 712B.15, Williams’s parental rights can be terminated.
Briefing on the case is here.