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A Better Partnership
March 04, 2015

COA: State Law’s preference for placing Indian children within Indian culture more robust than that of Federal Law

The Michigan Indian Family Protection Act (“MIFPA”) endeavors to protect an Indian child’s Indian culture by giving trial courts less discretion than under the federal Indian Child Welfare Act (“ICWA”).  MIFPA grants courts less discretion than ICWA to deviate from placing a child with a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family.  Because of this, the Michigan Court of Appeals vacated a non-Indian couple’s adoption of an Indian child in In re KMN, Nos. 322329 and 322883.
Immediately after KMN’s birth, the Department of Human Services petitioned to remove KMN and terminate her mother Heidi Nelson’s parental rights due to Nelson’s lengthy history of abuse and neglect of her other children.  KMN’s biological father, Jason Carlson, is a Native American who voluntarily consented to terminate his parental rights.  Carlson and KMN’s cousin, Kelly Rose Levandoski and her husband expressed a desire to adopt KMN, as did a non-Indian couple, Cindy Ann and Joey Duarte Arbutante.  Only the Arbutantes properly filed a petition to adopt KMN.  The trial court ultimately ruled that ICWA and MIFPA did not apply to KMN’s adoption due to the Levandoskis’ failure to petition properly, and even if ICWA and MIFPA did apply, Nelson’s preference that the Arbutantes adopt KMN would constitute good cause to deviate from those laws’ placement preferences.  Intervenor Gun Lake Tribe appealed.
First, the Court of Appeals affirmed the trial court’s conclusion that KMN is an Indian child for purposes of ICWA and MIFPA.  ICWA and MIFPA provide that, absent good cause, the adoptive placement of an Indian child must give preference to a member of the child’s extended family, a member of the Indian child’s tribe, or an Indian family, in that order.  25 USC 1915(a); MCL 712B.23(2).  In Adoptive Couple v Baby Girl, 133 S Ct 2552, 2564 (2013), the Supreme Court held that ICWA’s adoptive placement “preferences are inapplicable in cases where no alternative party has formally sought to adopt the child.”  Under MIFPA, however, the fact that the Levandoskis had not yet filed a petition for adoption was irrelevant.  After the trial court was alerted that there were alternative possible placements consistent with MIFPA, they must be “thoroughly investigated and eliminated.”  MCL 712B.23(4).  Furthermore, under MIFPA, good cause to deviate from a preferred placement is limited to the conditions articulated in MCL 712B.23(5)—a request made by a child of sufficient age or a circumstance involving a child with an extraordinary need.  As such, the trial court erred in finding that Nelson’s preference for the Arbutantes amounted to good cause. 
The Court of Appeals additionally rejected the Arbutantes’ argument that ICWA preempted MIFPA.  Preemption occurs when a state law stands as an obstacle to the federal law’s purposes and objectives.  By giving trial courts less discretion to deviate from its placement preferences, MIFPA endeavors to protect further an Indian child’s Indian culture, which is also the purpose of ICWA.
Finally, the Court concluded that the trial court improperly ordered the Tribe to pay attorney fees to Nelson and the Arbutantes for defending the petition for rehearing.  An award of attorney fees and expenses under MCR 3.206(C) is for domestic relations actions, and adoption is not defined as a domestic relations action under MCR 3.201.


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