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February 24, 2009

MSC Oral Argument: In re Lee

The Michigan Supreme Court will hear oral argument In re Lee on March 4, 2009. In Lee, the state is seeking to terminate the parental rights of Cheryl Lee, a member of the Sault Saint Marie Tribe of Chippewa Indians, to her son Jaden Lee. The Court has agreed to consider two issues involving the interpretation of the Indian Child Welfare Act: (1) whether the term "active efforts" in 25 U.S.C. ' 1912(d) requires the state to show that it has taken recent steps to prevent the break-up of the Indian family; and (2) whether the beyond-a-reasonable-doubt standard of 25 U.S.C. ' 1912(f) requires contemporaneous evidence that leaving the child in the custody of the Indian parent will likely harm the child. The Court's order granting leave may be found here. The briefs of the parties may be found here. The Michigan Court of Appeals' opinions may be found here and here.

Cheryl Lee was 16 years old when she gave birth to Jaden in 1999. Jaden was first removed from her custody in 2000. Since that time, Cheryl received a variety of services from several agencies, and Jaden has been returned to her and then removed several times. In 2004, Jaden's paternal grandmother began caring for him; Jaden's father obtained full custody shortly thereafter. Cheryl was not provided with services to reunite her with Jaden after 2004. Cheryl also developed a substance abuse problem after 2004. She was convicted of operating a motor vehicle while impaired, and received substance abuse counseling.

In 2007, the state began seeking to terminate her parental rights. The Sault Saint Marie Tribe of Chippewa Indians intervened in the matter, agreeing that Cheryl's rights to Jaden should be terminated. Cheryl's former service providers testified regarding the assistance they provided Cheryl, and also testified that returning Jaden to Cheryl would likely harm him. Testimony was also offered regarding her conviction for operating a motor vehicle while impaired, and her substance abuse counseling. The Mackinac Circuit Court granted the petition. The Michigan Court of Appeals affirmed.

Cheryl makes two arguments on appeal to the Supreme Court. First, she argues that because she has not received services since 2004, the state has not shown "active efforts" to reunite the family as the ICWA requires. Second, she argues that the state has presented insufficient evidence showing that she is presently likely to cause Jaden harm if he is returned to her; evidence of her past behavior is not enough. The Court's decision in Lee could make it more difficult to terminate the rights of Native American parents.

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