Here is the opinion:
Michigan Court of Appeals
Michigan COA Reverses ICWA Notice: Casual Disregard of ICWA/MIFPA by Wayne County Court and State Workers/Attorney
Here is the opinion in In re Harrell/Harrell-Marls:
An excerpt:
At a pretrial hearing, the assistant attorney general, respondent’s attorney, and the trial court discussed whether one of the parties was of American Indian heritage for the purposes of the ICWA:
The Court: All right, the petition is authorized. The children have been placed with relatives. What else? I guess—is that it? Did anyone ever ask is there any . . . American Indian heritage in this family? American Indian heritage?
Ms. Safran (attorney for respondent): Do you have any Indian heritage in your family?
The Court: Cherokee, Chippewa.
Ms. Safran: There might be some grand—on the grandmother’s side, what was it? Some time—some type; attenuated.
Ms. Trott (attorney for petitioner): Ms. Topp was told no at the other—
Ms. Safran: Well, we didn’t have all the parties.
Ms. Topp (case worker): I talked to [respondent], as well, in the police station[,] and I was told no.
Ms. Safran: She doesn’t think—
The Court: You don’t have any kind—are you sure it’s American, or, any idea what we’re talking about? I mean, what kind of Indian? Cherokees, Chippewa? I mean, there’s a whole bunch.
Unidentified speaker: I don’t—I don’t know; I can ask.
The Court: And . . . what relative? Grandma? Great-grandma?
Ms. Safran: Your Honor, can we get a date because . . . they want me in [Judge] Slavens[’ courtroom] and I can’t believe it.
The Court: You’ve got to wait just one second. All right, you can investigate and see. That’s pretty distant; great-grandma is pretty far back. So, I’m not gonna demand that we send notice.
Ms. Trott: This is on the paternal side? Or maternal? Of which father?
The Court: On the mother’s side or father? It better be a maternal because right now—all right. You have the right to have this heard by a referee as to all the children . . . or by a judge with or without a jury, and, of course, continued right to an attorney at all hearings. We’re setting this for trial?
Ms. Trott: Yes.
It is clear from the record that the trial court had information, however slight, “suggesting that [a] child, a parent of [a] child, or members of a parent’s family are tribal members,” which was one of the five situations the Supreme Court listed as “sufficient to trigger tribal notice.” In re Morris, 491 Mich at 108 n 18. Specifically, respondent’s attorney informed the court that “there might be some [Indian ancestry] on the grandmother’s side.” Because it is for the tribes to determine a child’s eligibility for membership, In re Fried, 266 Mich App 535, 540; 702 NW2d 192 (2005), the trial court clearly erred when it found that the possibility of Indian heritage in a great-grandmother of one or more of the minor children was too remote to justify the notice required by the ICWA and MCL 712B.9(1).
Conditional Reversal on Notice Case from Michigan COA
Here.
We acknowledge that there was an effort to comply with the notice requirements. On October 14, 2011, petitioner sent a notification for each child, identifying the children’s tribal affiliation as Sault Ste. Marie Tribe of Chippewa and/or Blackfoot, to respondents, the Sault Ste. Marie Tribe of Chippewa, and the Midwest Bureau of Indian Affairs in Fort Snelling, Minnesota. The notices state that they were sent by registered mail, return receipt requested. However, there is no return receipt in the record before us.
Unpublished Active Efforts Decision from the Michigan COA
Here.
With some troubling language, given this was an abuse and neglect case:
fn 4
In this appeal, the parties have not directly addressed whether respondent father ever had “custody” of the children, or whether respondent father is part of an “Indian family” within the meaning of ICWA or MIFPA. For purposes of this appeal only, we assume that respondent father was a parent from whose custody the Indian children were removed, within the meaning of 25 USC 1914 and MCL 712B.39. We further assume that mother, respondent father, and the children comprise an “Indian family” within the meaning of ICWA and MIFPA. Cf. In re SD, 236 Mich App 240, 244; 599 NW2d 772 (1999) (holding that no “active efforts” were required when the family had already been broken up at the time the proceedings began); Adoptive Couple v Baby Girl, ___ US ___; 133 S Ct 2552, 2563-2564; 186 L Ed 2d 729 (2013) (same).
Conditionally Reversed for ICWA Notice Case out of Michigan
Here.
It is clear from the record that the trial court had information, however slight, “suggesting that [a] child, a parent of [a] child, or members of a parent’s family are tribal members,” which was one of the five situations the Supreme Court listed as “sufficient to trigger tribal notice.” In re Morris, 491 Mich at 108 n 18. Specifically, respondent’s attorney informed the court that “there might be some [Indian ancestry] on the grandmother’s side.” Because it is for the tribes to determine a child’s eligibility for membership, In re Fried, 266 Mich App 535, 540; 702 NW2d 192 (2005), the trial court clearly erred when it found that the possibility of Indian heritage in a great-grandmother of one or more of the minor children was too remote to justify the notice required by the ICWA and MCL 712B.9(1).
Michigan COA Holds that ICWA is Inapplicable to Mackinaw Band Ottawa and Chippewa Members
Here is the opinion:
Unpublished Michigan ICWA Notice Case
Michigan’s practice of automatically proceeding as if the child is NOT an Indian child unless told otherwise by a tribe will eventually cause problems.
In re Vanostran(pdf)
For our current purpose, what is important
from this Court’s prior decision is that we ultimately conditionally reversed the trial court order terminating respondents’ parental rights to SKV and remanded the case to the trial court only for “resolution of the ICWA-notice issue.” Id.at page 4. On remand, the trial court held several administrative review hearings. The trial court submitted an order dated March 8, 2013, indicating that at the review hearing held on January 23, 2013, the Department of Human Services complied with the statutory notice requirements tothe four Native American Indian tribes mentioned as a possible connection to the biological father of SKV who was later adopted by respondent father. As of February 19, 2013, one of the tribes had responded that there was no evidence to support that SKV was a descendent of that tribe. The order further stated that on February 14, 2013, another of the tribes responded that SKV was neither registered nor eligible to registeras a member of that tribe. The other tribes had not responded. As a result, the trial court ordered that none of the Native American Indian tribes identified as having a possible connection to SKV have responded that the child is eligible for membership in their tribe and/or that they wish to intervene in this matter. The trial court thus ordered, “The Court having previously made findings that there was clear and convincing evidence of statutory grounds to terminate the parental rights of [respondents], and that it was in the best interest of the minor child to terminate their parental rights, reinstates the Order Following hearing to terminate Parental Rights of the parents to [SKV].”
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.
Michigan COA Issues Conditional Reversal in ICWA Notice Case
Here is the unpublished opinion:
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 Denies Nottawaseppi Huron Band Motion to Intervene in ICWA Case
Here is the opinion:
Turtle Talk 
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