Michigan Indian Family Preservation Act MCL 712B Michigan Indian Family Preservation Act MCL 712B.1-41 June 19, 2013 Midwest Child Welfare Implementation Center Conference Faded picture background with full-color overlay (Intermediate)

Indian Child Welfare Act prior to the enactment of the Michigan Indian Family Preservation Act Faded picture background with full-color overlay (Intermediate)

Michigan Indian Legal Services (MILS) has been helping clients with Indian Child Welfare Act (ICWA) cases since ICWA became law. MILS was founded in 1975 by a coalition of Indian leaders from across the state of Michigan. MILS is a non-profit charitable organization that provides services without charge to eligible clients. Faded picture background with full-color overlay (Intermediate)

MILS provides legal assistance primarily in Indian law cases MILS provides legal assistance primarily in Indian law cases. Since the enactment of the Indian Child Welfare Act (ICWA) in 1978 MILS has prioritized assistance in ICWA cases. Faded picture background with full-color overlay (Intermediate)

MILS’ greatest impact on ICWA enforcement has come in its work in the appellate courts in Michigan. These cases generally indicate the types of problems that face parents even after the ICWA. Faded picture background with full-color overlay (Intermediate)

The Challenges Illustrated by cases that reached the Court of Appeals Faded picture background with full-color overlay (Intermediate)

In re Hanson, 188 Mich App 392; 470 NW 2d 669 (1991) In re Hanson, 188 Mich App 392; 470 NW 2d 669 (1991). The client, an adult adoptee, sought information about her biological parents to enroll in her tribe and obtain “other information as may be necessary to protect any rights flowing from the individual's tribal relationship”. The trial court refused to provide the records as required by §1917 of the ICWA. MILS appealed, won a reversal, and the client obtained her records. Faded picture background with full-color overlay (Intermediate)

In re Kiogima, 189 Mich App 6; 472 NW 2d 13 (1991) In re Kiogima, 189 Mich App 6; 472 NW 2d 13 (1991). This case was an unsuccessful appeal to help a mother revoke her consent to adoption under the authority of the ICWA. The court held the revocation must be made prior to the order terminating parental rights. MILS argued that the mother could revoke her consent any time prior to the adoption. Faded picture background with full-color overlay (Intermediate)

In re Elliott, 218 Mich App 196; 554 NW 2d 32 (1996) In re Elliott, 218 Mich App 196; 554 NW 2d 32 (1996). MILS successfully appealed an order terminating parental rights defeating the claim that the “existing Indian family” exception excused the failure to follow ICWA. Faded picture background with full-color overlay (Intermediate)

Empson-Laviolette v. Crago, 280 Mich App 620; 760 NW 2d 793 (2008) Empson-Laviolette v. Crago, 280 Mich App 620; 760 NW 2d 793 (2008). This case involved a guardianship. Often overlooked is the broad reach of ICWA to all “child custody proceedings”. In this case the lower court ruled that a guardianship order was not subject to the ICWA and refused to return the child to the mother when she ended the voluntary guardianship. The Court of Appeals agreed with MILS that ICWA applied to guardianships and ordered the return of the child to the mother. Faded picture background with full-color overlay (Intermediate)

In re Roe, 281 Mich App 88; 764 NW 2d 789 (2008) In re Roe, 281 Mich App 88; 764 NW 2d 789 (2008). In this termination of parental rights case the court did not find as required by ICWA “ that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” MILS appealed. The Court of Appeals agreed that the termination order should be reversed because ICWA was not followed. Faded picture background with full-color overlay (Intermediate)

Summary of the challenges Faded picture background with full-color overlay (Intermediate)

1. Courts do not enforce ICWA In re Hanson, §1917 ignored 1. Courts do not enforce ICWA In re Hanson, §1917 ignored. Empson-Laviolette v. Crago, ICWA not enforced in a guardianship. In re Roe, did not require “active efforts” Faded picture background with full-color overlay (Intermediate)

2. Courts create exceptions to ICWA In re Elliott , created the “Indian family exception” (this same issue was argued in Baby Veronica case) Faded picture background with full-color overlay (Intermediate)

The MIFPA will increase compliance with MIFPA and ICWA because it is better defined. Faded picture background with full-color overlay (Intermediate)

1. The ICWA does not define “good cause” when used to deny transfer of a case to tribal court. MIFPA defines good cause. Faded picture background with full-color overlay (Intermediate)

2. The ICWA broadly defines “child custody proceeding” and yet the Empson-Laviolette v. Crago court ruled ICWA did not apply in a guardianship case. MIFPA explicitly lists guardianships within the definition of “child custody proceeding”. Faded picture background with full-color overlay (Intermediate)

3. The ICWA does not define “active efforts” 3. The ICWA does not define “active efforts”. MIFPA defines “active efforts”. Faded picture background with full-color overlay (Intermediate)

4. In In re Kiogima the mother was not able to revoke her consent because she released her child for adoption instead consenting to an adoption. The MIFPA mandates that parents in both types of cases are allowed to revoke consent to adoption. Faded picture background with full-color overlay (Intermediate)

And last, but hopefully not least, it is thought that MIFPA may increase compliance with MIFPA and ICWA because it is a state law enforced by state judges. Faded picture background with full-color overlay (Intermediate)