Michigan Supreme Court

Here is the issue in In re Gordon:

Courtney Hinkle first came to the attention of Children’s Protective Services after she was suspected of neglecting her months-old infant. When the child was one year old, CPS learned that he had been treated for second-degree burns to his hands, allegedly caused by a fall into a fireplace, and that Hinkle had not obtained follow-up medical care for him as directed. CPS filed a court action, and the child was taken into protective custody and placed in foster care. After attempting to provide services for Hinkle and concluding that she did not benefit from them, the Department of Human Services filed a petition seeking termination of Hinkle’s parental rights. At the conclusion of the termination hearing, the circuit judge found that DHS had established grounds for termination, and that termination was in the child’s best interests.

Hinkle appealed to the Court of Appeals, contending that DHS and the circuit court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., and failed to create a complete record of their attempts at compliance. Under the ICWA, 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, 25 USC 1912(a). Under the ICWA, an “Indian child” is any unmarried individual less than eighteen 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.

The circuit court record disclosed that Hinkle informed the judge that her family was part of the Saginaw Chippewa Indian tribe in Mt. Pleasant. Hinkle stated that she and her child were not tribal members, and that her biological mother was not a member of the tribe, but that her mother’s siblings were, including the aunt who was caring for her son during his foster care placement. She stated that she and her mother were awaiting word as to their own eligibility for tribal membership. The circuit judge directed DHS to investigate the child’s possible tribal membership and to notify the tribe of the proceedings. At a later hearing, the caseworker stated that she mailed a certified letter to the tribe, but had not heard back as to the child’s membership. At a subsequent hearing, the caseworker informed the court that Hinkle’s mother had been told that the family was not eligible for tribal “benefits.” The foster mother stated that she was a tribal mother, and that she tried to obtain information regarding the child’s status from the tribe, but that the tribe refused to release that information to anyone but DHS or the court. The court directed the caseworker to contact the tribe again. The ICWA notice issue was not mentioned again at any hearing and the file contains no mention of any further communications with the tribe.

The Court of Appeals affirmed the trial court’s termination of Hinkle’s parental rights in an unpublished per curiam opinion. Hinkle did not demonstrate that the trial court and DHS failed to satisfy ICWA’s notice requirement, the Court of Appeals stated; there was ample evidence that the tribe had actual notice of the proceedings, the appellate court said. Moreover, “[g]iven respondent’s own statement in court that she received a response that she and her son were not eligible for tribal membership, the trial court was relieved from embarking on further ICWA tribal notification efforts,” the Court of Appeals concluded. Hinkle appeals.

And here are the briefs:

Petitioner-Appellee’s Response to Application for Leave to Appeal>>

Respondent-Appellant’s Application for Leave to Appeal
Respondent-Appellant’s Supplemental Brief>>

Michigan Indian Legal Services, Inc. and The American Indian Law Section of the State Bar of Michigans’ Amici Curiae Brief>>

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

January 9, 2012Matthew L.M. Fletcher1 Comment

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

June 23, 2011Matthew L.M. Fletcher

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

May 23, 2011May 22, 2011Matthew L.M. Fletcher1 Comment

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.

MI Court of Appeals Judge Brian Zahra Appointed MI Supreme Court

January 10, 2011Kate Fort

From the Michigan Lawyer Blog. Judge Zahra was appointed to the Court of Appeals in 1999 by then-Governor Engler. Prior to that he was a judge in Wayne County. He does not appear to have participated in any decisions on the Indian Child Welfare Act or other state Indian law cases.

Also from the Oakland Press:

LANSING (AP) — Gov. Rick Snyder has named Appeals Court Judge Brian Zahra (ZAR’-uh) to the Michigan Supreme Court.

Zahra will replace Justice Maura Corrigan, who is stepping down Friday to become director of the state Department of Human Services.

Zahra turned 51 on Sunday. He was appointed to the appeals court in 1999 by GOP Gov. John Engler and elected to the court in 2000 and 2006.

The Northville resident was a Wayne County Circuit Court judge from 1994-98 and an attorney and partner at the Dickinson Wright law firm from 1989-94.

Snyder made the announcement at a news conference Monday morning.

The appointment means the court will keep its 4-3 Republican majority. The move gives Snyder a chance to put his mark on the Supreme Court within days of taking office.

ICT Article on Michigan Bid to Codify ICWA

September 8, 2010September 8, 2010Matthew L.M. Fletcher

From ICT:

SAULT STE. MARIE, Mich. – The Indian Child Welfare Act is a federal law that can at times be confusing to those it was designed to help – tribes, tribal children, their families and the state and tribal court systems.

Making ICWA easier to use and understand is the goal of a group of dedicated people – a special committee formed by the Michigan Supreme Court. This committee is charged with helping Indian children and families in child welfare cases, and with educating judges and child welfare practitioners about ICWA.

Congress enacted ICWA in 1978 to help prevent the disruption of Indian families and tribes due to state and federal child welfare practices.

In 2008, a special committee was formed by the Michigan Supreme Court to help Michigan judges and child welfare practitioners learn more about ICWA and understand the need for states to comply with the act and how it can be better implemented within Michigan.

In 2009, the State Court Administrative Office, the administrative agency of the Michigan Supreme Court, published a court resource guide. This guide is designed to provide Michigan trial courts with best practice tips to apply when using ICWA. During work on the court resource guide it was determined further research was needed and a subcommittee was formed that recommended changes to Michigan’s court rules to help with the recognition and implementation of ICWA. On Jan. 27, the Michigan Supreme Court approved those changes, which became effective May 1.

A second subcommittee, the Tribal Court Relations Committee, was formed as part of the Court Improvement Program Statewide Task Force and continues to meet on proposed state legislation that was drafted to reflect the federal statute with the goal of making judges and child welfare workers more aware of ICWA at both the tribal and state levels. A special session to review the proposed ICWA statute is being held Sept. 30 in Lansing. This meeting is by invitation only to the ICWA committee that authored the Court Resource Guide.

Additionally, in 2010 the Michigan Supreme Court has been sponsoring ICWA training and dialogue for state court judges, tribal representatives, attorneys, court staff and Department of Human Services workers as a step toward implementing the “best interests” considerations for Indian children, families and tribes.

Planning is also underway for the Walking on Common Ground: Michigan Regional Conference, Oct. 12 – 13 at the Grand Traverse Resort in Acme, Mich., for tribal, federal and state justice communities throughout Michigan, Minnesota and Wisconsin. Walking on Common Ground promotes collaboration, education and the sharing of resources to build a more positive future for tribal children and families involved in the child welfare system.

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Justice Weaver to Resign

August 26, 2010August 26, 2010Kate Fort

The Traverse City Record Eagle broke the news this morning. H/T Michigan Legal Blog, which also notes the replacement is likely to be Court of Appeals Judge Alton T. Davis:

WEAVER TO RESIGN

Justice ends 16 years on Supreme Court

BY BRIAN McGILLIVARY bmcgillivary@record-eagle.com

TRAVERSE CITY — Justice Elizabeth Weaver, of Glen Arbor, whose frequent battles with fellow Republican justices over the past decade exposed deep political and personal rifts on the Michigan Supreme Court, plans to resign today.

Weaver, 69, decided to step down after she secured Gov. Jennifer Granholm’s promise to appoint a northern Michigan jurist to replace her on the state’s highest court.

“I have done all that I can do as a justice and now believe that I can be of most use as a citizen in helping further the critically needed reforms of the judicial system,” Weaver said in an exclusive interview with the Record-Eagle. “Now I will be able to work and speak freely.”

Weaver said she would not have resigned without Granholm’s agreement to select a northern Michigan replacement. A justice from northern Michigan brings independence and a different perspective to a court currently dominated by justices from the Detroit to Lansing beltway, she said.

“I think I’m proof of the pudding; I’m independent,” she said. “That independent-thinking judge is not agenda-driven and does not hold to political party lines.”
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Michigan Supreme Court Denies Leave for Sault Tribe to Appeal Bouschor Case

February 16, 2010Matthew L.M. Fletcher1 Comment

The appeal focused on the Michigan court of appeal’s decision to drop Miller Canfield from the suit. It sounds like the suit against Bouschor and some of the other co-defendants will go to trial next.

The materials are here:

Sault Tribe Motion for Leave to Appeal

Leave Denied

Lower court materials are here.

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