A voluntary proceeding is “a child-custody proceeding that is not an involuntary proceeding, such as a proceeding for foster-care, preadoptive, or adoptive placement that either parent, both parents,[1] or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, consented to for the Indian child, or a proceeding for voluntary termination of parental rights.” 25 CFR 23.2.
“The [ICWA] applies to voluntary proceedings [as well as to involuntary proceedings]. Relinquishing a child temporarily (to foster care) or permanently (to adoption) is a grave act, and a state court must ensure that a consenting parent or custodian knows and understands ‘the terms and consequences.’” Haaland v Brackeen, 599 US 255, 266-267 (2023), quoting 25 USC 1913(a). “Notably, a biological parent who voluntarily gives up an Indian child cannot necessarily choose the child’s foster or adoptive parents.” Haaland, 599 US at 267. “The child’s tribe has ‘a right to intervene at any point in [a] proceeding’ to place a child in foster care or terminate parental rights, as well as a right to collaterally attack the state court’s decree.” Id. at 267, quoting 25 USC 1911(c) (alteration in original). See also 25 USC 1914. “As a result, the tribe can sometimes enforce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family.” Haaland, 599 US at 267. See Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 49-52 (1989).
MIFPA provides a proceeding is voluntary when:
•both parents or Indian custodian voluntarily consent(s) to a petition for guardianship under MCL 700.5204 or MCL 700.5205, or
•a parent consents to “adoptive placement or the termination of his or her parental rights for the express purpose of adoption by executing a release under [MCL 710.28 and MCL 710.29], or consent under [MCL 710.43 and MCL 710.44.]” MCL 712B.13(1).
Note: For purposes of voluntary proceedings, MIFPA provides higher standards of protection under MCL 712B.13 by specifying certain circumstances that give rise to a voluntary proceeding than ICWA provides under 25 USC 1913. See 25 USC 1921 (providing that applicable state law prevails if it contains higher standards than ICWA). See also 25 CFR 23.103(b)(4) (providing that ICWA does not apply to “[a] voluntary placement that either parent, both parents, or the Indian custodian has, of his or her or their free will, without a threat of removal by a State agency, chosen for the Indian child and that does not operate to prohibit the child’s parent or Indian custodian from regaining custody of the child upon demand[]”).
“An individual parent’s consent is valid only as to [that parent].” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, I.6 (2016).2
“The State court must require the participants in a voluntary proceeding to state on the record whether the child is an Indian child, or whether there is reason to believe the child is an Indian child, as provided in [25 CFR 23.107]. If there is reason to believe the child is an Indian child, the State court must ensure that the party seeking placement has taken all reasonable steps to verify the child’s status. This may include contacting the Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) to verify the child’s status. As described in [25 CFR 23.107], where a consenting parent requests anonymity, a Tribe receiving such information must keep relevant documents and information confidential.” 25 CFR 23.124(a)-(b). For a detailed discussion on determining an Indian child’s status, finding an Indian child’s Tribe, and addressing confidentiality concerns, see Sections 11.6-11.7.
Once the parent(s) or Indian custodian has voluntarily consented, the court 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). See 25 USC 1915; MCL 712B.23; 25 CFR 23.124(c). For a detailed discussion of preferred placements of Indian children, see Section 11.19.
A.Consent to Guardianship of an Indian Child
A brief discussion of guardianships in the context of both parents or Indian custodian voluntarily consenting to a petition for guardianship under MCL 700.5204 and MCL 700.5205 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.
“A voluntary consent to guardianship of an Indian child must be executed by both parents or the Indian custodian.” MCR 5.404(B). See MCR 5.404(A)(3) (requiring the court to proceed under MCR 5.404(B) if the petition for guardianship of a minor “involves an Indian child and both parents intend to execute a consent pursuant to MCL 712B.13 and [MCR 5.404]”).
Note: If both parents do not intend to execute a petition for guardianship of a minor Indian child as is 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.” For additional information on involuntary guardianship proceedings involving an Indian child, see Section 11.16(C).
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). 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).” 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.”
A voluntary consent proceeding must meet three requirements:
(a) Valid execution of consent.
(b) Proper notice.
(c) Conform to certain court rule and statutory requirements. MCL 712B.13(1).
“To be valid, the consent [for guardianship of an Indian child] must contain the information prescribed by MCL 712B.13(2) and be executed on a form approved by the State Court Administrative Office, in writing, recorded before a judge of a court of competent jurisdiction,[3] and accompanied by the presiding judge’s certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood.” MCR 5.404(B)(1).4 See also MCL 712B.13(1)(a), which contains substantially similar requirements.
Note: “The court may use videoconferencing technology for the guardianship consent hearing required to be held under MCL 712B.13(1) and this subrule.” MCR 5.404(B)(1).
The court must also explain, before accepting the parent’s or Indian custodian’s consent, that the parent or Indian custodian may withdraw his or her consent “for any reason, at any time, and have the child returned[.]” 25 CFR 23.125(b)(2)(i).
A consent given before or within 10 days of an Indian child’s birth is not valid. 25 USC 1913(a); MCL 712B.13(1)(a); 25 CFR 23.125(e); MCR 5.404(B)(1).
Confidentiality. “Where confidentiality is requested or indicated, execution of consent need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with [25 CFR 23.125].” 25 CFR 23.125(d). For additional information on confidentiality concerns, see Section 11.7.
Required Content of Consent Document. “Consent described under [MCL 712B.13(1)] must contain the following information:
(a) The Indian child’s name and date of birth.
(b) The name of the Indian child’s tribe and any identifying number or other indication of the child’s membership in the tribe, if any.
(c) The name and address of the consenting parent or Indian custodian.
(d) A sworn statement from the translator, if any, attesting to the accuracy of the translation.
(e) The signature of the consenting parent, parents, or Indian custodian recorded before the judge, verifying an oath of understanding of the significance of the voluntary placement and the parent’s right to file a written demand to terminate the voluntary placement or consent at anytime.
(f) For consent for voluntary placement of the Indian child in foster care, the name and address of the person or entity who will arrange the foster care placement as well as the name and address of the prospective foster care parents if known at the time.
(g) For consent to termination of parental rights or adoption of an Indian child, in addition to the information [above], the name and address of the person or entity that will arrange the preadoptive or adoptive placement.” MCL 712B.13(2). See also 25 CFR 23.126(b), which requires similar information for a written consent.
“If there are any conditions to the consent, the written consent must clearly set out the conditions.” 25 CFR 23.126(a).
b.Notice
“Notice of the pending [voluntary] proceeding must be given as prescribed by Michigan [S]upreme [C]ourt rule, the [ICWA], and [MCL 712B.9(1)].” MCL 712B.13(1)(b); MCL 712B.27(3). For a detailed discussion of notice requirements, see Section 11.8.
c.Conforming to Court Rule and Statutory Requirements
“The voluntary custody proceeding shall be conducted in accordance with [the Michigan Court Rules,] and . . . [i]n a guardianship proceeding under . . . MCL 700.5204 [or MCL 700.5205], [MCL 712B.25] also applies.” MCL 712B.13(1)(c)(i).
“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).”5 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 in accordance with MCR 5.404 before entering an ordering appointing a guardian. MCR 5.404(B)(2) (emphasis added). “Notice of the hearing on the petition 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(B)(2).
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)].[6]
(b) that a valid consent has been executed by both parents or the Indian custodian as required by MCL 712B.13 and [MCR 5.404(B)(1)].
(c) if it is in the Indian child’s best interest to appoint a guardian.
(d) if a lawyer-guardian ad litem should be appointed to represent the Indian child.”7 MCR 5.404(B)(2).
“The court may use videoconferencing technology for the guardianship consent hearing required to be held under MCL 712B.13(1) and this subrule.” MCR 5.404(B)(1).
A parent or Indian custodian may withdraw his or her consent for guardianship of the minor Indian child “at any time by sending written notice to the court substantially in compliance on a form approved by the [S]tate [C]ourt [A]dministrative [O]ffice that the parent or Indian custodian revokes consent and wants his or her Indian child returned.” MCL 712B.13(4); MCL 712B.25(4).8 25 CFR 23.127(a)-(b) also permits “[t]he parent or Indian custodian [to] withdraw consent to voluntary foster-care placement at any time[] . . . [by] fil[ing] a written document with the court or otherwise testify[ing] before the court.”
“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 except, if both parents executed a consent, both parents must withdraw their consent or the court must conduct a hearing within 21 days to determine whether to terminate the guardianship.” MCR 5.404(B)(3). See also MCL 712B.25(5), which provides that “[t]he voluntary guardianship is terminated when the court receives from a parent or Indian custodian notice to withdraw consent to the guardianship, and the Indian child shall be immediately returned to the parent or Indian custodian[;]” 25 CFR 23.127(c), which provides that “[w]hen a parent or Indian custodian withdraws consent to a voluntary foster-care placement, the court must ensure that the Indian child is returned to that parent or Indian custodian as soon as practicable.”
4.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 also MCL 712B.25(6), which contains substantially similar language.
B.Consent to Adoptive Placement or Termination of Parental Rights for Purposes of Adoption
“[I]f a parent consents to adoptive placement or the termination of his or her parental rights[9] for the express purpose of adoption by executing a release under [MCL 710.28] and [MCL 710.29,] . . . or consent under [MCL 710.43] and [MCL 710.44,]” the requirements set out in MCL 712B.13(1)(a)-(c) must be met.10 MCL 712B.13(1).
“If the placement is for purposes of adoption, a consent under [MCL 712B.13(1)] of the Indian child’s parent must be executed in conjunction with either a consent to adopt, as required by [MCL 710.43] and [MCL 710.44,] . . . or a release, as required by [MCL 710.28] and [MCL 710.29.]” MCL 712B.13(3). “If a release or consent to adoption under [the Adoption Code, MCL 710.21 et seq.,] is executed, consent to voluntary placement of an Indian child must also be executed by both parents of the Indian child in accordance with [MCL 712B.13].” MCL 712B.27(1). But see MCR 3.804(A)(1), which states that both parents must consent “except in stepparent adoptions under MCL 710.23a(4)[.]”11
“The plain language of MCL 712B.13(1) requires only that a parent consent to ‘the termination of his or her parental rights for the express purpose of adoption by executing a release under [MCL 710.28] and [MCL 710.29].’” In re Williams, 501 Mich 289, 305-307 (2018) (finding the Court of Appeals “erred by construing the language ‘in conjunction with’ [found in MCL 712B.13(3)] to mean that a consenting parent must complete two separate forms. . . . A consent under MCL 712B.13(1) conjoins with a release under [MCL 710.28] and [MCL 710.29] because a consent under MCL 712B.13(1) is a release under [MCL 710.28] and [MCL 710.29] with more protections”), rev’g 320 Mich App 88 (2017).
A voluntary custody proceeding must meet three requirements:
(a) Valid execution of consent or release.
(b) Proper notice.
(c) Conform to certain court rule and statutory requirements. MCL 712B.13(1).
a.Valid Execution of Consent or Release
“In addition to the requirements of MCL 710.29[12] or MCL 710.44,[13] if a parent of an Indian child intends to voluntarily consent to adoptive placement or the termination of his or her parental rights for the express purpose of adoption pursuant to MCL 712B.13, the following requirements must be met:
(1) except in stepparent adoptions under MCL 710.23a(4),[14] both parents must consent.
(2) to be valid, consent must be executed on a form approved by the State Court Administrative Office,[15] in writing, recorded before a judge of a court of competent jurisdiction,[16] and accompanied by the presiding judge’s certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent. The court shall also certify that either the parent fully understood the explanation in English or that it was interpreted into a language that the parent understood. Any consent given before, or within 10 days after, the birth of the Indian child is not valid.[17]
(3) the consent must contain the information prescribed by MCL 712B.13(2).
(4) in a direct placement, as defined in MCL 710.22(o), a consent by a parent shall be accompanied by a verified statement that complies with MCL 712B.13(6).” MCR 3.804(A).
The court must also explain to the parents:
•Before accepting the parent’s consent to termination of parental rights, the parent may withdraw his or her consent “for any reason, at any time prior to the entry of the final decree of termination and have the child returned[.]” 25 CFR 23.125(b)(2)(ii).
•Before accepting the parent’s consent to an adoptive placement, the parent may withdraw his or her consent “for any reason, at any time prior to the entry of the final decree of adoption, and have the child returned.” 25 CFR 23.125(b)(2)(iii).
In addition, “[i]f the release follows the initiation of [a child protective proceeding under MCL 712A.2(b),] the court shall make a finding that culturally appropriate services were offered.” MCL 712B.13(5). “MCL 712B.13 . . . 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 289, 308-309 (2018), rev’g 320 Mich App 88, 104 (2017). Accordingly, “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. In re Williams, 501 Mich at 308-309. However, “when 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.”18 In re Williams, 501 Mich at 308 (emphasis added).
Confidentiality. “Where confidentiality is requested or indicated, execution of consent need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with [25 CFR 23.125].” 25 CFR 23.125(d). See Section 11.7 for additional information on confidentiality concerns.
Required Content of Consent Document. “Consent described in [MCL 712B.13(1)] must contain the following information:
(a) The Indian child’s name and date of birth.
(b) The name of the Indian child’s tribe and any identifying number or other indication of the child’s membership in the tribe, if any.
(c) The name and address of the consenting parent or Indian custodian.
(d) A sworn statement from the translator, if any, attesting to the accuracy of the translation.
(e) The signature of the consenting parent, parents, or Indian custodian recorded before the judge, verifying an oath of understanding of the significance of the voluntary placement and the parent’s right to file a written demand to terminate the voluntary placement or consent at anytime.
(f) For consent for voluntary placement of the Indian child in foster care, the name and address of the person or entity who will arrange the foster care placement as well as the name and address of the prospective foster care parents if known at the time.
(g) For consent to termination of parental rights or adoption of an Indian child, in addition to the information [above], the name and address of the person or entity that will arrange the preadoptive or adoptive placement.” MCL 712B.13(2). 25 CFR 23.126(b), which requires similar information for a written consent.
“If there are any conditions to the consent, the written consent must clearly set out the conditions.” 25 CFR 23.126(a).
Verified Statement Requirement for Direct Placement Adoption. Under a direct placement adoption, a parent or guardian voluntarily relinquishes his or her rights and consents to the child’s placement with a specific adoptive parent.19 See MCL 710.22(o). MCL 710.43 governs a parent’s or guardian’s authorization to execute his or her consent for a direct placement adoption.20
Note: In a direct placement adoption, the parent or guardian must personally select the prospective adoptive parent. MCL 710.23a(2).
For direct placement adoptions, MCL 712B.13(6) requires the parent’s or guardian’s consent to be “accompanied by a verified statement signed by the parent or guardian that contains all of the following:
(a) That the parent or guardian has received a list of community and federal resource supports and a copy of the written document described in [MCL 722.956(1)(c).]
(b) As required by [MCL 710.29] and [MCL 710.44,] . . . that the parent or guardian has received counseling related to the adoption of his or her Indian child or waives the counseling with the signing of the verified statement.
(c) That the parent or guardian has not received or been promised any money or anything of value for the consent to adoption of the Indian child, except for lawful payments that are itemized on a schedule filed with the consent.
(d) That the validity and finality of the consent are not affected by any collateral or separate agreement between the parent or guardian and the adoptive parent.
(e) That the parent or guardian understands that it serves the welfare of the Indian child for the parent to keep the child placing agency, court, or department informed of any health problems that the parent develops that could affect the Indian child.
(f) That the parent or guardian understands that it serves the welfare of the Indian child for the parent or guardian to keep his or her address current with the child placing agency, court, or department in order to permit a response to any inquiry concerning medical or social history from an adoptive parent of a minor adoptee or from an adoptee who is 18 years or older.”
b.Notice
“Notice of the pending [voluntary] proceeding must be given as prescribed by Michigan [S]upreme [C]ourt rule, the [ICWA], and [MCL 712B.9(1)].” MCL 712B.13(1)(b); MCL 712B.27(3). See Section 11.8 for a detailed discussion of notice requirements.
c.Conforming to Court Rule and Statutory Requirements
“The voluntary custody proceeding shall be conducted in accordance with [the Michigan Court Rules] and . . . [i]n an adoption proceeding, [MCL 712B.27] also applies.” MCL 712B.13(1)(c)(ii).
MCR 3.804(B)(2) requires “[a] consent hearing involving an Indian child pursuant to MCL 712B.13 [to] be held in conjunction with either a consent to adopt, as required by MCL 710.44, or a release, as required by MCL 710.29.[21] Notice of the hearing must be sent to the parties prescribed in MCR 3.800(B) in compliance with MCR 3.802(A)(3).”
“Except as otherwise provided, the court may allow the use of videoconferencing technology for proceedings under [subchapter 3.800, Adoption] in accordance with MCR 2.407.” MCR 3.811. However, MCR 3.804(B)(3) expressly prohibits the court’s use of videoconferencing technology for a consent hearing under MCR 3.804(B) involving an Indian child pursuant to MCL 712B.13. MCR 3.804(B)(3).
3.Withdrawal of Consent and Vacating Final Order of Adoption
a.Before Entry of Final Order of Termination or Adoption
“A parent who executes a consent under [MCL 712B.13] may withdraw his or her consent at any time before entry of a final order of adoption by filing a written demand requesting the return of the Indian child.” MCL 712B.13(3) (emphasis added). See also MCR 3.804(D), which contains substantially similar language, and MCL 712B.13(6), which permits “[a] parent who executes a consent to adoption under [MCL 710.43] and [MCL 710.44 to] withdraw that consent at any time before entry of a final order for adoption by filing notification of the withdrawal of consent with the court.” (Emphasis added.)
MCL 712B.13 permits a parent of an Indian child to withdraw his or her consent up until entry of the adoption order regardless of whether that parent executed a release of parental rights for the purpose of adoption under MCL 710.28 and MCL 710.29 or executed a consent to a specific adoptive placement under MCL 710.43 and MCL 710.44. In re Williams, 501 Mich 289, 304-305 (2018) (“agree[ing] with the Court of Appeals that ‘a specific adoptive placement was not required under [MCL] 712B.13(1),” and finding that respondent-father releasing “his children to DHHS rather than to a specific adoptive parent [was] not relevant to his ability to withdraw his consent; . . . [t]he plain language of MCL 712B.13 allows a parent of an Indian child to both consent to the termination of his or her parental rights for the express purpose of adoption by executing a release under [MCL 710.28] and [MCL 710.29] of the Adoption Code and also to withdraw that consent before a final order of adoption is entered”), rev’g and quoting 320 Mich App 88 (2017).
Note: If, during a child protective proceeding, a parent of an Indian child consents to the termination of his or her parental rights for the purpose of adoption and then seeks to withdraw that consent under MCL 712B.13 before a final order of adoption is entered, the parent “may withdraw his [or her] consent, but because he [or she] is still subject to MCL 712B.15, DHHS may refile a termination petition.” In re Williams, 501 Mich at 308. For a discussion on MCL 712B.15, see Section 11.16.
But see 25 CFR 23.125(b)(2)(ii)-(iii) and 25 CFR 23.128(a)-(b), which treat a consent for voluntary termination of parental rights separately from a consent to adoption, and permit a withdrawal of consent for voluntary termination of parental rights for any reason and at any time before entry of a final decree of termination, and a withdrawal of consent to adoption for any reason and at any time before entry of a final decree of adoption.22 See also 25 USC 1913(c), which permits withdrawal of consent to voluntary termination of parental rights or adoption for any reason and at any time before entry of a final decree of termination or adoption, as the case may be.23 See also In re Kiogima, 189 Mich App 6, 7 (1991) (finding the “respondent[-mother’s] right to withdraw her consent [to a voluntary release of her parental rights] pursuant to 25 USC 1913(c) expired with the entry of a final order terminating her parental rights”).
Once a written demand requesting the return of the Indian child is filed with the court, the court must order that the child be returned. MCL 712B.13(3); MCR 3.804(D). “[U]nder MCL 712B.13(3), a parent who consents during an involuntary termination proceeding is not entitled to ‘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.” In re Williams, 510 Mich at 310.
25 CFR 23.128(d) also requires the court with which the withdrawal of consent is filed to promptly notify any person or entity that arranged the voluntary preadoptive or adoptive placement for the Indian child, and to return the child to the parent as soon as is practicable. See also 25 USC 1913(c), which requires a return of the child once a consent is withdrawn.24
“Withdrawal of consent under [MCL 712B.13] constitutes a withdrawal of a release executed under [MCL 710.28] and [MCL 710.29] or a consent to adopt executed under [MCL 710.43] and [MCL 710.44.]” MCL 712B.13(3). See also MCR 3.804(D), which contains substantially similar language.
b.After Entry of Final Order of Adoption
“After the entry of a final order of adoption of an Indian child in any state court, the parent may withdraw consent on the grounds that consent was obtained through fraud or duress and may petition the court to vacate the final order of adoption.” MCL 712B.27(5). See also 25 USC 1913(d), which contains substantially similar language.
“Upon the parent’s filing of a petition to vacate the final decree of adoption of the parent’s Indian child, the court must give notice to all parties to the adoption proceedings and the Indian child’s Tribe and must hold a hearing on the petition.” 25 CFR 23.136(b).
If the court finds that the consent was obtained through fraud or duress, the court must vacate the adoption order, order the parent’s consent revoked, and return the child to the parent. 25 USC 1913(d); MCL 712B.27(5); 25 CFR 23.136(c). An adoption may not be vacated under 25 USC 1913(d) or MCL 712B.27(5) if the adoption has been effective for at least two years, unless otherwise permitted by law. 25 USC 1913(d); MCL 712B.27(5). See also 25 CFR 23.136(a), which permits the court to invalidate a voluntary adoption of an Indian child on a finding that the parent’s consent was obtained through fraud or duress “[w]ithin two years after a final decree of adoption . . . or within any longer period of time permitted by the law of the State[.]”
1 “If a parent refuses to consent to the foster-care, preadoptive, or adoptive placement or [termination of parental rights], the proceeding would meet the definition of an ‘involuntary proceeding.’ Nothing in the statute indicates that the consent of one parent eliminates the rights and protections provided by ICWA to a non-consenting parent.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, L.21 (2016). Note: The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
2 The link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
3 For a detailed discussion of jurisdiction, see Section 11.10.
4 See also 25 USC 1913(a), MCL 712B.13(1)(a), 25 CFR 23.125(a), 25 CFR 23.125(b)(1), and 25 CFR 23.125(c), which contain substantially similar consent requirements.
5 MCR 5.404(A)(1) requires “[a] petition for guardianship of a minor [to] be filed on a form approved by the State Court Administrative Office[, t]he petitioner [to] state in the petition whether or not the minor is an Indian child or whether that fact is unknown[, and t]he petitioner [to] document all efforts made to determine a child’s membership or eligibility for membership in an Indian tribe and [to] provide them, upon request, to the court, Indian tribe, Indian child, Indian child’s lawyer-guardian ad litem, parent, or Indian custodian.”
6 For additional information on jurisdiction, see Section 11.10.
7 For additional information on appointments of lawyer-guardian ad litems, see Section 11.11.
8 See also MCR 5.404(B)(3), which contains substantially similar language.
9 When the court has taken jurisdiction of a child in a child protective proceeding, the court has the authority to conduct a hearing under MCL 712A.19b of the Juvenile Code to determine if parental rights should be involuntarily terminated. However, the parent may elect to voluntarily terminate his or her parental rights by either executing a release and termination of parental rights under the Adoption Code under MCL 710.28, or admitting to a ground for termination or enter a no contest plea under the Juvenile Code. In re Toler, 193 Mich App 474, 477 (1992).
10 See Section 2.2 for information on releasing a child for adoption under MCL 710.28 and MCL 710.29, and Section 2.6 for information on consent to adopt under MCL 710.43 and MCL 710.44.
11 For additional information on stepparent adoptions, see Section 8.3
12 MCL 710.29 provides for certain requirements that must be met in order for a parent to properly release his or her parental rights over a child under the Adoption Code. Note that MCL 712B.13 refers to MCL 710.28 and MCL 710.29. See Section 2.2 for additional information.
13 MCL 710.44 provides for certain requirements that must be met in order for a parent to properly consent to his or her child’s adoption. Note that MCL 712B.13 refers to MCL 710.43 and MCL 710.44. See Section 2.6 for additional information.
14 For additional information on stepparent adoptions, see Section 8.3.
15 See the SCAO Form PCA 305i, Release of Indian Child by Parent and Form PCA 308i, Consent by Parent to Adoption of Indian Child.
16 For a detailed discussion of jurisdiction, see Section 11.10.
17 See also 25 USC 1913(a), MCL 712B.13(1)(a), 25 CFR 23.125(a), 25 CFR 23.125(b)(1), 25 CFR 23.125(c), and 25 CFR 23.125(e), which contain substantially similar consent requirements.
18 “MCL 712B.15 applies when ‘an Indian child is the subject of a child protective proceeding . . . [and] a parent does not provide consent’ to the termination of his or her parental rights for the express purpose of adoption. MCL 712B.15(1). MCL 712B.13 applies when ‘a parent consents to adoptive placement or the termination of his or her parental rights for the express purpose of adoption . . . .’ MCL 712B.13(1).” In re Williams, 501 Mich at 308-309 (alteration in original).
19 Direct placement adoptions do not include adoptions where a stepparent or relative is involved. MCL 710.22(o). For additional information on stepparent adoptions, see Section 8.3, and for additional information on relative adoptions, see Section 8.4.
20 With a few exceptions, a parent or guardian executes his or her consent to a direct placement adoption under MCL 710.43, which is the same procedural and documentary requirements as those for other types of adoptions. For the procedural and documentary requirements set out under MCL 710.43, see Sections 2.6–2.9, and for the additional procedural and documentary requirements a direct placement adoption requires, see Section 8.2.
21 For a discussion of release hearings under MCL 710.29, see Section 2.2. For a discussion of consent hearings under MCL 710.44, see Section 2.6.
22 Note, however, “if a parent’s or Indian custodian’s parental rights have already been terminated, then the parent or Indian custodian may no longer withdraw consent to the adoption, because they no longer legally qualify as a parent or Indian custodian.” Bureau of Indian Affairs, Guidelines for Implementing the Indian Child Welfare Act, 81 Federal Register 96476, I.7 (2016). Note: Th link to this resource was created using Perma.cc and directs the reader to an archived record of the page.
23 Note that 25 USC 1913(c) and 25 CFR 23.125(b)(2)(ii) permit the parent or Indian custodian to consent to the termination of parental rights, and 25 USC 1913(c), 25 CFR 23.125(b)(2)(iii), and 25 CFR 23.128(b) permit the parent or Indian custodian to consent to adoption. The MIFPA, however, no longer allows an Indian custodian to consent to the termination of parental rights or adoptive placement. See MCL 712B.13(1) and MCL712B.13(3) as amended by 2016 PA 26, effective May 30, 2016.
24 Note that 25 USC 1913(c) and 25 CFR 23.128(d) require return of the child to the parent or Indian custodian. MIFPA, however, no longer allows an Indian custodian to consent to the termination of parental rights or adoptive placement. See MCL 712B.13(1) and MCL 712B.13(3) as amended by 2016 PA 26, effective May 30, 2016.