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A Better Partnership
June 30, 2016

COA: In an involuntary child protective proceeding if there is reason to believe a child is an Indian child, notice must be made to the tribe he is believed to be a part of

Both the Michigan Indian Family Preservation Act (MIFPA) and the Indian Child Welfare Act (ICWA) establish substantive and procedural protections when an Indian child is involved in an involuntary child protective proceeding to promote the best interests of Indian children and their tribes.  When a child is involved in an involuntary child protective proceeding, the Court of Appeals held in In re Jones/Lehmann, No. 330945, that if there is any reason to believe that a child is of Indian descent, the Department of Health and Human Services has a duty actively to seek to determine whether the child is an Indian child and send notice to the parents and the tribe. If a tribe cannot be determined, notice must be given to all potential tribes in the area.
 
The children in In re Jones/Lehmann were involved in a hearing regarding the termination of their mother’s parental rights. Throughout the lengthy proceedings, the mother of the children informed the trial court that one of her children may be an Indian Child for purposes of MIFPA and ICWA. DHHS spoke to the child’s father who indicated that he may be of Cherokee Indian descent. Based on this information, DHHS sent a notice to the Department of Interior (DOI) about the possibility of the child being of Indian heritage, but the DOI responded saying there was insufficient information to determine tribal affiliation. DHHS did not send notice to the Cherokee tribe or any other tribes in the area regarding the proceedings.
 
The Court of Appeals held that there was sufficiently reliable information based on the child’s father’s suggestion that he might be an Indian to trigger the necessary notice requirement under MIFPA and ICWA. The Court relied on In re Morris, 491 Mich 81 (2012), stating that courts are to err on the side of caution to protect the interests of the Indian children, their families, and their tribes to avoid the possibility of later disruptions in the child’s life. The Court entered a conditional reversal of the termination of the mother’s rights with respect to the possibly Indian child and remanded for compliance with the MIFPA and ICWA notice requirements. 
 

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