11.16Involuntary Proceedings

A brief discussion of ICWA and MIFPA in the context of child protective proceedings is included in this section. However, a detailed discussion of ICWA and MIFPA as it applies to proceedings involving involuntary foster care placement and termination of parental rights is beyond the scope this benchbook. See the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 19, for additional information on this topic.

An involuntary proceeding is “a child-custody proceeding in which the parent does not consent of his or her free will to the foster-care, preadoptive, or adoptive placement or termination of parental rights or in which the parent consents to the foster-care, preadoptive, or adoptive, placement under threat of removal of the child by a State court or agency.”¹ 25 CFR 23.2.

Except for purposes of emergency proceedings involving an Indian child,² the court must not hold a foster-care-placement or termination-of-parental-rights proceeding until ten days after the child’s parent or Indian custodian (or tribe(s) in the county where the child is located and Secretary of the Interior if the parent or Indian custodian is unknown to the petitioner) and the Indian child’s Tribe³ (or tribe(s) in the county where the child is located and Secretary of the Interior if the Indian child’s Tribe is unknown to the party seeking placement for the Indian child) receive proper notice of that proceeding. 25 USC 1912(a); MCL 712B.9(2); MCL 712B.9(3); 25 CFR 23.112(a)-(b). For information on providing proper notice to the parent, Indian custodian, or Indian child’s Tribe, see Section 11.8.

“MCL 712B.15 provides specific procedures a trial court must follow when ‘an Indian child is the subject of a child protective proceeding under [MCL 712A.2(b)].’” In re Detmer/Beaudry, 321 Mich App 49, 60 (2017), quoting MCL 712B.15(1). Specifically, MCL 712B.15(1) provides:

“If an Indian child is the subject of a child protective proceeding under [MCL 712A.2(b)], including instances in which the parent executed a release under [MCL 710.28] during the pendency of that proceeding, or a guardianship proceeding under [MCL 700.5204] or [MCL 700.5205], and if a parent does not provide consent as described in [MCL 712B.13], or a guardianship proceeding under [MCL 712A.19a] or [MCL 712A.19c], the following requirements must be met:

(a) Notice of the pending proceeding must be given as prescribed by [the Michigan Court Rules], the [ICWA], and [MCL 712B.9].^[4]

(b) The proceeding shall be conducted in accordance with [the Michigan Court Rules] and [MCL 712B.15(2)-(4)].

(c) [MCL 712B.25] applies in a guardianship proceeding under [MCL 700.5204] or [MCL 700.5205].”

“MCL 712B.15 states that parents involved in child protective proceedings can ‘provide consent as described in [MCL 712B.13].’” In re Williams, 501 Mich 289, 309 (2018), rev’g 320 Mich App 88 (2017) (alteration in original). “[W]hen the state seeks to terminate the rights of a parent of an Indian child and the parent does not consent, the parent can count on the protections of MCL 712B.15. But if a parent of an Indian child willingly consents to the termination of his or her parental rights for the purpose of adoption, the parent can then count on the added protections of MCL 712B.13, which does not exclude from its coverage parents who are participants in involuntary child protective proceedings when they provide consent as described in MCL 712B.13(1).” In re Williams, 501 Mich at 308-309. For a discussion on MCL 712B.13, see Section 11.15(B).

A.Foster Care Placement

“Foster care placement[ is a]ny action removing an Indian child from his or her parent or Indian custodian, and where the parent or Indian custodian cannot have the Indian child returned upon demand^[5] but parental rights have not been terminated, for temporary placement in, and not limited to, 1 or more of the following:

(A) Foster home or institution.

(B) The home of a guardian or limited guardian under [MCL 700.5201 to MCL 700.5219].

(C) A juvenile guardianship under [the Juvenile Code].” MCL 712B.3(b)(i). See also 25 USC 1903(1)(i), MCR 3.002(2)(a), and 25 CFR 23.2, which define foster care placement as “any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated[.]”

In general, “MCL 712B.15(2) provides that an Indian child may not be removed^[6] from the home or placed into foster care absent ‘clear and convincing evidence’ that active efforts were made to provide the family with services, that those efforts were unsuccessful, and that the child is likely to be harmed if not removed.” In re England, 314 Mich App 245, 256 (2016).

Specifically, MCL 712B.15(2) provides that an Indian child may be placed into foster care only if there is clear and convincing evidence of the following:

•“active efforts^[7] have been made to provide remedial services and rehabilitative programs designed to prevent the breakup^[8] of the Indian family,”⁹

•“the active efforts were unsuccessful,” and

•“the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.” See also 25 USC 1912(d)-(e),  25 CFR 23.120(a), 25 CFR 23.121(a), which contain similar language.“The evidence [in support of placing an Indian child in foster care] must include the testimony of at least 1 qualified expert witness, who has knowledge of the child rearing practices of the Indian child’s tribe, that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.”¹⁰ MCL 712B.15(2). See also 25 CFR 23.121(a), which contains similar language.

“[T]he evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” 25 CFR 23.121(c). Without the causal relationship, “evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior^[11] does not by itself constitute clear and convincing evidence . . . that continued custody is likely to result in serious emotional or physical damage to the child.” 25 CFR 23.121(d). “[T]here must be a demonstrated correlation between the conditions of the home and a threat to the specific child’s emotional or physical well-being.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, G.1 (2016).¹²

Once an Indian child has been placed into foster care, any change in placement is subject to the requirements of MCL 712A.13b. Specifically, see MCL 712A.13b(9). See also Section 11.20(B) for detailed information on the requirements to change an Indian child’s placement.

1.Party’s Right to Examine Reports and Documents

“Each party to . . . a foster-care-placement . . . proceeding under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”¹³ 25 CFR 23.134. See also MCL 712B.11 and 25 USC 1912(c), which contain substantially similar language.

2.Placement Preferences

Once the court has ordered a foster care placement, it must follow ICWA’s and MIFPA’s placement preferences (unless the child’s Tribe has established a different order of preference or good cause is shown to the contrary). 25 USC 1915; MCL 712B.23. For a detailed discussion of preferred placements of Indian children, see Section 11.19.

The court must also follow placement preferences whenever it changes an Indian child’s foster care placement. See MCL 712A.13b(1)(c)(v), MCL 712A.13b(2)(d)(v)(B), MCL 712A.13b(3)(b), and MCL 712A.13b(9)(c). For more information on the requirements to change an Indian Child’s foster care placement, see Section 11.20(B).

 

For a more detailed discussion on ICWA’s and MIFPA’s requirements for foster care placements, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 19.

B.Termination of Parental Rights

Where a case does “not involve the removal of [an Indian child] from the parental home, but instead involve[s] the termination of . . . parental rights, [25 USC 1912(d), 25 USC 1912(f), MCL 712B.15(3), and MCL 712B.15(4)] govern the outcome[.]” In re England, 314 Mich App 245, 253 (2016) (noting that “25 USC 1912(e) and MCL 712B.15(2) pertain to removal decisions, while 25 USC 1912(d) and [25 USC 1912(f)] and MCL 712B.15(3) and [MCL 712B.15(4)] pertain to termination decisions[]”).

To terminate a parent’s parental rights over an Indian child, the court must find all of the following:

•“[P]roof that active efforts were made to prevent the breakup of the family, 25 USC 1912(d); MCL 712B.15(3); MCR 3.977(G)(1)[.]” England, 314 Mich App at 253.

•“[P]roof beyond a reasonable doubt that the continued custody of the child by the parent would likely result in serious emotional or physical damage to the child, 25 USC 1912(f); MCL 712B.15(4); MCR 3.977(G)(2).”¹⁴ England, 314 Mich App at 253.

•“‘[A]t least one state statutory ground for termination was proven by clear and convincing evidence[.]’” England, 314 Mich App at 253, quoting In re Payne/Pumphrey/Fortson, 311 Mich App 49, 58 (2015).

•Proof, “by a preponderance of the evidence, ‘that termination is in the child’s best interests[.]’” England, 314 Mich App at 253-254, quoting In re Olive/Metts, 297 Mich App 35, 40 (2012).

Note: For the additional requirements under the Juvenile Code for the termination of parental rights, see the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Chapter 19.

“[T]he demands of ICWA, MIFPA, and MCR 3.977(G) govern termination of the parental rights of a non-Indian, biological parent of an Indian child.” In re Beers/Lebeau-Beers, 325 Mich App 653, 668 n 7 (2018). “Because [the child was] an Indian child and respondent-father [was the child’s] biological parent, . . . respondent-father’s parental rights should not have been terminated absent compliance with MIFPA, ICWA, and MCR 3.977(G), even though respondent-father himself [was] not of Indian descent.” In re Beers/Lebeau-Beers, 325 Mich App at 668. Because ICWA and MIFPA were not applied and “[g]iven the record regarding respondent-father” (indicating a clear risk of harm or danger to the child if released to him), “the proper remedy in this case [was] to conditionally reverse the order terminating respondent-father’s parental rights to [the child] and remand for the trial court to address and resolve the issues regarding active efforts and the potential of serious emotional or physical damage to [the child] if custody continued with respondent-father, as analyzed under a beyond-a-reasonable-doubt standard.” Id. at 678.

MCL 712B.13(5) also requires, “[i]f the release follows the initiation of [a child protective proceeding under MCL 712A.2(b),] the court [to] make a finding that culturally appropriate services were offered.”

1.Active Efforts to Prevent the Breakup of the Indian Family

“Prior to ordering . . . termination of parental rights, the court must conclude that active efforts have been made to prevent the breakup of the Indian family and that those efforts have been unsuccessful.” 25 CFR 23.120(a). See also 25 USC 1912(d), which contains substantially similar language. See also MCL 712B.15(3), which requires the party seeking the termination of parental rights to an Indian child under state law to “demonstrate to the court’s satisfaction that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that the active efforts were unsuccessful.” “The active efforts must take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe.”¹⁵ MCL 712B.15(2).

Note: “Active efforts must be documented in detail in the record.” 25 CFR 23.120(b). The Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act,¹⁶ 81 Federal Register 96476, E.6 (2016), “recommends that the State agency include the following in its documentation of active efforts, among any other relevant information:

•The issues the family is facing that the State agency is targeting with the active efforts (these should be the same issues that are threatening the breakup of the Indian family or preventing reunification);

•A list of active efforts the State agency determines would best address the issues and the reasoning for choosing those specific active efforts;

•Dates, persons contacted, and other details evidencing how the State agency provided active efforts;

•Results of the active efforts provided and, where the results were less than satisfactory, whether the State agency adjusted the active efforts to better address the issues.”

“[T]he ‘default’ evidentiary standard applicable in child protective proceedings—i.e. clear and convincing evidence— . . . appl[ies] to the findings required under MCL 712B.15(3) regarding whether ‘active efforts’ were made to prevent the breakup of the Indian family.”¹⁷ In re England, 314 Mich App 245, 259-261 (2016) (finding “there was clear and convincing evidence to conclude that active efforts were made” as required by MCL 712B.15(3) where a Child Protective Services (CPS) specialist solicited the involvement of the Indian child’s Tribe; maintained regular contact with the respondent, and the respondent’s service providers and probation officer, and the Tribe’s caseworker; and assisted the respondent in identifying barriers to reunification, developing a service plan, and obtaining counseling and other services through a culturally-appropriate referral service). See also 25 USC 1912(d), which contains substantially similar language as MCL 712B.15(3).

“[R]emedial services under [25 USC 1912(d)] are intended ‘to alleviate the need to remove the Indian child from his or her parents or Indian custodians,’ not to facilitate a transfer of the child to an Indian parent.” Adoptive Couple v Baby Girl, 570 US 637, 652 (2013).

Note: “[25 USC 1912(d)] applies only in cases where an Indian family’s ‘breakup’ would be precipitated by the termination of the parent’s rights. The term ‘breakup’ refers in this context to ‘[t]he discontinuance of a relationship,’ or ‘an ending as an effective entity,’ [b]ut when an Indian parent abandons an Indian child prior to [the child’s] birth and that child has never been in the Indian parent’s legal or physical custody, there is no ‘relationship’ that would be ‘discontinu[ed]’–and no ‘effective entity’ that would be ‘end[ed]’–by the termination of the Indian parent’s rights. Adoptive Couple v Baby Girl, 570 US 637, 651-652 (2013) (first, fourth, and fifth alterations in original). “In such a situation, the ‘breakup of the Indian family’ has long since occurred, and [25 USC 1912(d)] is inapplicable.” Adoptive Couple, 570 US at 641, 651-652 (the South Carolina Supreme Court erred in finding that “[the] [b]iological [Indian-f]ather’s parental rights could not be terminated because [the] [couple wishing to adopt the child] had not demonstrated that [the] [b]iological [Indian-f]ather had been provided remedial services in accordance with [25 USC 1912(d)]” where “the [biological Indian-father] abandoned the Indian child before [the child’s] birth and never had custody of the child[]”).

2.Continued Custody Will Likely Result in Serious Emotional or Physical Damage to Child

“The court must not order a termination of parental rights for an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child’s continued custody by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”¹⁸ 25 CFR 23.121(b) (emphasis added). See also 25 USC 1912(f), MCL 712B.15(4), MCR 3.977(A), and MCR 3.977(G)(2), which contain substantially similar language.¹⁹

Continued custody. “[T]he heightened standards of ICWA, MIFPA, and MCR 3.977(G) [may] apply to the termination of respondent-father’s parental rights when he never had legal or physical custody rights with regard to [the Indian child].” In re Beers/Lebeau-Beers, 325 Mich App 653, 670 (2018). In the Beers case, the respondent-father signed an affidavit of parentage, which by operation of law under MCL 722.1006²⁰ provided the respondent-mother with legal and physical custody of the child, and no court proceedings regarding custody were held. In re Beers/Lebeau-Beers, 325 Mich App at 669-670. Although the respondent-father never had any legal or physical custody rights, the heightened beyond a reasonable doubt standard under 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2) applied to his termination of parental rights because “for a short period . . . respondent-father, respondent-mother, and [the child] lived together as a familial unit wherein respondent-father was providing some care and custody for [the child,] . . . [DHHS] was providing reunification services[, t]he family unit dissolved only when [the child] was removed by court order, although respondents remained together[, and t]he removal of [the child] discontinued the custodial arrangement that had existed with respect to both respondents and [the child], if not in law, in practice.”). See, however, Adoptive Couple v Baby Girl, 570 US 637, 643-644, 648-649 (2013), where, because the biological Indian-parent abandoned his child before the child’s birth, did not provide any support to the mother, and never exercised legal or physical custody over the child, 25 USC 1912(f)²¹ was inapplicable because there was no custody to continue. 25 USC 1912(f) “was primarily intended to stem the unwarranted removal of Indian children from intact Indian families.” Adoptive Couple, 570 US at 649. Thus, “[25 USC 1912(f)] does not apply in cases where the Indian parent never had custody of the Indian child.” Adoptive Couple, 570 US at 648. “The phrase ‘continued custody’ . . . refers to custody that a parent already has (or at least had at some point in the past).” Id.

Serious emotional or physical damage. “For . . . termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child-custody proceeding.” 25 CFR 23.121(c). Without the causal relationship, “evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute  . . . evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.” 25 CFR 23.121(d).

In terminating the mother’s parental rights over her Indian children,²² the trial court failed to adhere to the requirements of 25 USC 1912(f), MCL 712B.15(4), and MCR 3.977(G)(2) when “the trial court explicitly recognized that [the assigned qualified expert witness], the only expert witness at the termination [of parental rights] hearing, did not support termination and specifically testified that returning [the Indian children] to [the mother’s] care would not likely result in serious emotional or physical damage to either [Indian] child[, but the court n]onetheless, considering the other evidence presented, . . . determined that returning [the Indian children] to [the mother’s] care would result in such damage beyond a reasonable doubt.” In re Payne/Pumphrey/Fortson, 311 Mich App 49, 62 (2015).

The trial court correctly concluded that giving the respondent-mother custody of the children “would likely result in serious emotional or physical damage to [the children]” where she failed “to cooperate with and benefit from services designed to address her substance abuse,” failed “to acknowledge that she had a substance abuse problem,” resisted “therapy and the need for another 18 to 24 months of intensive therapy to address her emotional instability,” failed “to take personal responsibility for her children being in care,” . . . missed parenting times,” and where the tribal expert testified “that the tribe’s board of directors believed it was in the best interests of the children to terminate respondent-mother’s parental rights.” In re Beers/Lebeau-Beers, 325 Mich App at 683.

3.Statutory Ground for Termination

In addition to meeting the requirements of ICWA and MIFPA, the petitioner must also establish statutory grounds for termination pursuant to state law. In re Payne/Pumphrey/Fortson, 311 Mich App at 58, citing In re Elliot, 218 Mich App at 209-210. Therefore, in order to involuntarily terminate the parental rights of an Indian child’s parent or Indian custodian, the court must find the following:

(1) Evidence beyond a reasonable doubt that the child would suffer serious emotional or physical damage if returned to the custody of the parent, and

(2) A statutory basis for the termination of parental rights. See MCR 3.977(A), MCR 3.977(E)-(H).

See Sections 2.10–2.11 for statutory grounds for termination of parental rights as well as the standard of proof required to establish each statutory ground.

4.Party’s Right to Examine Reports and Documents

“Each party to . . . [a] termination-of-parental-rights proceeding under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.”²³ 25 CFR 23.134. See also MCL 712B.11 and 25 USC 1912(c), which contain substantially similar language.

5.Placement Preferences

Once the court has terminated the parental rights of an Indian child’s parent or Indian custodian, it must follow ICWA’s and MIFPA’s placement preferences (unless the Indian child’s Tribe has established a different order of preference or good cause is shown to the contrary). 25 USC 1915; MCL 712B.23; 25 CFR 23.129.

An Indian child’s placement must be determined according to preferences established in 25 USC 1915 and 25 CFR 23.131 unless the Indian child’s tribe has established a different order of preferred placement. 25 USC 1915(c); 25 CFR 23.130 (adoptive placements); 25 CFR 23.131(b)-(c) (foster care or preadoptive placements). That state courts and agencies are required to adhere to the order of preferred placements does not violate the Tenth Amendment (powers not delegated to the federal government by the Constitution and not prohibited by it to the States, are reserved to the States or to the people). Haaland v Brackeen, 599 US 255, 285, 286, 287, 296 (2023). The “diligent search” mentioned in 25 CFR 23.132(c)(5) “applies to both private and public parties”; the petitioners in Haaland did not show that the “diligent search” requirement “demand[ed] the use of state sovereign authority.” Haaland, 599 US at 286. “Instead, [when placement is at issue,] the burden is on the tribe or other objecting party to produce a higher-ranked placement.” Id. at 286.

For a detailed discussion on preferred placements of Indian children, see Section 11.19.

6.Invalidation of State Court Action if ICWA or MIFPA Violated

“Any Indian child who is the subject of any action for termination of parental rights under state law, any parent or Indian custodian from whose custody the Indian child was removed, and the Indian child’s tribe^[24] may petition any court of competent jurisdiction to invalidate the action upon a showing that the action violated any provision of [MCL 712B.15].” MCL 712B.15(5). For additional information on invalidation of state court action for violation of ICWA or MIFPA, see Section 11.24.

C.Involuntary Guardianship Proceedings Involving an Indian Child

 A brief discussion of involuntary guardianships is included in this subsection. Although a detailed discussion of guardianships as it relates to specific requirements of providing notice and petitioning the court for a guardianship are beyond the scope of this benchbook, see the Michigan Judicial Institute’s checklist on appointing a guardian for an Indian child.

If the petition for guardianship of a minor involves an Indian child, but both parents do not intend to execute a consent as required under MCL 712B.13, it is considered an involuntary guardianship and the court must proceed under MCR 5.404(C). MCR 5.404(A)(3). See also MCL 712B.25(3), which provides that “[i]f a petition for guardianship is filed and is to be accompanied by a consent to a voluntary placement of an Indian child, the consent must be executed in accordance with [MCL 712B.13][; i]f the Indian child’s parents do not execute a consent under [MCL 712B.13], the petition is considered to be for an involuntary guardianship and the requirements of [MCL 712B.15] must be met.”

Note: If both parents or the Indian custodian intend to execute a petition for guardianship of a minor Indian child as is required under MCL 712B.13, it is considered a voluntary guardianship and the court must proceed under MCR 5.404(B). MCR 5.404(A)(3); MCR 5.404(B). For additional information on voluntary guardianship proceedings involving an Indian child, see Section 11.15(B).

A petition for guardianship of a minor Indian child must be filed on a form approved by the State Court Administrative Office, and must state “whether or not the minor is an Indian child or whether that fact is unknown.” MCR 5.404(A)(1). “If the petition involves an Indian child and a consent will not be executed [by both parents] pursuant to MCL 712B.13 and [MCR 5.404], the petitioner shall state in the petition what active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family as defined in MCR 3.002(1).” MCR 5.404(A)(3). For additional information on active efforts, see Section 11.17.

The petitioner must also “document all efforts made to determine a child’s membership or eligibility for membership in an Indian tribe and shall provide them, upon request, to the court, Indian tribe, Indian child, Indian child’s lawyer-guardian ad litem, parent, or Indian custodian.” MCR 5.404(A)(1).

On the filing of the petition for guardianship of a minor Indian child, “the court may appoint a guardian ad litem to represent the interests of a minor and may order the [DHHS] or a court employee or agent to conduct an investigation of the proposed guardianship and file a written report of the investigation in accordance with MCL 700.5204(1).”²⁵ MCR 5.404(A)(2). “If the petition for guardianship states that it is unknown whether the minor is an Indian child, the investigation shall include an inquiry into Indian tribal membership.”Id.

“If the petition involves an Indian child, the report shall contain the information required in MCL 712B.25(1)[ and] . . . shall be filed with the court and served no later than 7 days before the hearing on the petition.” MCR 5.404(A)(2). MCL 712B.25(1) requires, “[i]n addition to the information required in . . . MCL 700.5204, the report [to] include, but . . . not [be] limited to, the following information:

(a) Whether the child is or is not an Indian child.

(b) The identity and location of the Indian child’s parents, if known.

(c) If the child is an Indian child, the report must also address all of the following:

(i) The tribe or tribes of which the Indian child is a member or eligible for membership.

(ii) If the Indian child and family need culturally appropriate and other services to preserve the Indian family.

(iii) The identity and location of extended family members and if no extended family members can be found, what efforts were made to locate them.”

1.Videoconferencing Technology

“Except as otherwise prescribed by this rule, upon request of any participant or sua sponte, the court may allow the use of videoconferencing technology under this chapter in accordance with MCR 2.407.” MCR 5.140(A). “The use of videoconferencing under this chapter must be in accordance with the standards established by the State Court Administrative Office. All proceedings at which videoconferencing technology is used must be recorded verbatim by the court.” MCR 5.140(D).

“[I]f the subject of the petition wants to be physically present, the court must allow the individual to be present.” MCR 5.140(C). Note, however, “[t]he right to be physically present for the subject of a minor guardianship applies only to a minor 14 years of age or older.” MCR 5.140(C).

“Subject to this right to be present and to MCR 2.407(B)(5), the use of videoconferencing technology is presumed in all uncontested petitions or motions in guardianship, conservatorship, protected individual and decedent estates.” MCR 5.140(C).

2.Hearing

“If the petition for guardianship of a minor does not indicate that the minor is an Indian child as defined in MCR 3.002(12), the court[, at the hearing on the petition,] must inquire if the child or either parent is a member of an Indian tribe. If the child is a member or if a parent is a member and the child is eligible for membership in the tribe, the court shall either dismiss the petition or allow the petitioner to comply with MCR 5.404(A)(1).” MCR 5.404(D) (emphasis added).

If the petition for guardianship of a minor indicates the minor is an Indian child, the court must conduct a hearing on the petition for involuntary guardianship in accordance with MCR 5.404 before entering an order appointing a guardian. MCR 5.404(C)(1) (emphasis added). “Notice of the hearing must be sent to the persons prescribed in MCR 5.125(A)(8) and [MCR 5.125(C)(20)] in compliance with MCR 5.109(1).” MCR 5.404(C)(1).

At the consent hearing, the court must determine:

“(a) if the tribe has exclusive jurisdiction as defined in MCR 3.002(6). The court shall comply with MCR 5.402(E)(2)[ (requiring dismissal of the petition if the petition for guardianship involves a minor Indian child and an Indian tribe has exclusive jurisdiction)].^[26]

(b) if the placement with the guardian meets the placement requirements in [MCR 5.404(C)(2)] and [MCR 5.404(C)(3)].

(c) if it is in the Indian child’s best interests to appoint a guardian.

(d) if a lawyer-guardian ad litem should be appointed to represent the Indian child.^[27] 

(e) whether or not each parent wants to consent to the guardianship if consents were not filed with the petition. If each parent wants to consent to the guardianship, the court shall proceed in accordance with [MCR 5.404(B)].”²⁸ MCR 5.404(C)(1). See also MCL 712B.25(2), which contains substantially similar language.

a.Placement

MCR 5.404(C)(2) sets out the following placement requirements:

“An Indian child shall be placed in the least restrictive setting that most approximates a family and in which his or her special needs, if any, may be met. The child shall be placed within reasonable proximity to his or her home, taking into account any special needs of the child. Absent good cause to the contrary, the placement of an Indian child must be in descending order of preference with:

(a) a member of the child’s extended family,

(b) a foster home licensed, approved, or specified by the child’s tribe,

(c) an Indian foster family licensed or approved by the [DHHS],

(d) an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child’s needs.

The standards to be applied in meeting the preference requirements above shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.”

b.Deviating From Placement

“The court may order another placement for good cause shown in accordance with MCL 712B.23(3)-(5) and 25 USC 1915(c). If the Indian child’s tribe has established a different order of preference than the order prescribed in [MCR 5.404(C)(2)], placement shall follow that tribe’s order of preference as long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in MCL 712B.23(6). Where appropriate, the preference of the Indian child or parent shall be considered.” MCR 5.404(C)(3). For additional information on deviating from the preferred placements of Indian children, see Section 11.19(C).

3.Evidentiary Requirements for Removal of Indian Child for Placement With Guardian

MCR 5.404(F)(1) sets out the evidentiary requirements under an involuntary guardianship for removal of an Indian child from the child’s parent or Indian custodian for placement with a guardian:

“If a petition for guardianship involves an Indian child and the petition was not accompanied by a consent executed pursuant to MCL 712B.13 and [MCR 5.404],^[29] the court may remove the Indian child from a parent or Indian custodian and place that child with a guardian only upon clear and convincing evidence that:

(a) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family,

(b) these efforts have proved unsuccessful, and

(c) continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 

The evidence shall include the testimony of at least one qualified expert witness, as described in MCL 712B.17,^[30] who has knowledge about the child-rearing practices of the Indian child’s tribe. The active efforts must take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. If the petitioner cannot show active efforts have been made, the court shall dismiss the petition and may refer the petitioner to the [DHHS] for child protective services or to the tribe for services.”

See also MCL 712B.15(2), which provides substantially similar language except that it specifies that to establish clear and convincing evidence, the qualified expert witness must testify that the continued custody will likely result in serious emotional or physical damage to the Indian child.

4.Termination of Guardianship

“The guardianship of an Indian child established pursuant to [MCR 5.404(C)] shall be terminated in accordance with [MCR 5.404(B)(3)].” MCR 5.404(H)(6). Under MCR 5.404(B)(3), “[a] consent may be withdrawn at any time by sending written notice to the court substantially in compliance with a form approved by the State Court Administrative Office.” MCR 5.404(B)(3).

“Upon receipt of the notice, the court shall immediately enter an ex parte order terminating the guardianship and returning the Indian child to the parent or Indian custodian[.]” MCR 5.404(B)(3).

5.Discovering Child is Indian Child After Guardianship Ordered

“If the court discovers a child may be an Indian child after a guardianship is ordered, the court shall do all of the following:

(a) schedule a hearing to be conducted in accordance with MCR 5.404(C) and MCR 5.404(F).

(b) enter an order for an investigation in accordance with MCR 5.404(A)(2). The order shall be on a form approved by the State Court Administrative Office and shall require the guardian to cooperate in the investigation. The court shall mail a copy of the order to the persons prescribed in MCR 5.125(A)(8), [MCR 5.125(C)(20)], and [MCR 5.125(C)(26)] by first-class mail.

(c) provide notice of the guardianship and the hearing scheduled in subrule (5)(a) and the potential applicability of the [ICWA] and the [MIFPA] on a form approved by the State Court Administrative Office to the persons prescribed in MCR 5.125(A)(8), [MCR 5.125(C)(20)], and [MCR 5.125(C)(26)] in accordance with MCR 5.109(1). A copy of the notice shall be served on the guardian.” MCR 5.402(E)(5). See MCL 712B.25(6), which contains substantially similar language.