910 N.W.2d 318
Mich. Ct. App.2017Background
- Respondent-mother and her children AB and KD are eligible members of the Sault Ste. Marie Tribe; DHHS filed a child-protective petition in Sept. 2016 alleging prior CPS involvement and sexual-contact concerns among the children.
- At preliminary hearings the mother voluntarily placed most children with relatives; KD was voluntarily placed with her nonrespondent father; AB initially remained with mother.
- In Nov. 2016 the trial court assumed jurisdiction and ordered AB placed with his nonrespondent father (over mother’s objection); the court declined to make MIFPA "active efforts" or risk-of-harm findings, reasoning AB remained with a parent.
- Mother appealed claiming the Michigan Indian Family Preservation Act (MIFPA) protections (MCL 712B.15(2)) applied because the children were "removed"; the case became moot after the children were later returned and the case closed, but the court exercised the public-significance exception.
- The central legal question was whether MIFPA’s procedural protections attach when a Native American child is moved from the custody and residence of one parent to the custody and residence of the other parent (i.e., whether that movement constitutes a "removal").
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a Native child is "removed" when court orders transfer from one parent’s home to the other parent’s home | Mother: moving AB from her care to the father’s home is a "removal" triggering MIFPA active-efforts and risk findings | DHHS: AB was not "removed" because he remained with a parent; MIFPA protections therefore do not apply | Held: AB was "removed" — court-ordered change of residence from mother to father triggers MIFPA §712B.15(2) protections |
| Whether In re Sanders precludes MIFPA protections when child is placed with a nonrespondent parent | Mother: MIFPA still applies to protect adjudicated parent and child | DHHS/trial court: Sanders bars court from interfering with nonrespondent parent’s rights and thus MIFPA does not apply | Held: Sanders protects nonrespondent parent’s due-process rights but does not negate MIFPA’s statutory protections for a child removed from an adjudicated parent |
| Whether AB’s adjudication/order was reversible for failure to make active-efforts and risk-of-harm findings | Mother: trial court failed to make required findings and hear qualified-expert testimony | DHHS: placement with father meant no statutory findings required | Held: Trial court erred — it failed to make the required findings and hear expert testimony for AB; vacated and remanded as to AB |
| Whether KD’s placement with her father triggered MIFPA protections | Mother: placement of KD also violated MIFPA | DHHS: KD’s placement was voluntary so MIFPA does not apply | Held: KD’s placement was voluntary (mother retained decisionmaking) and MIFPA protections do not apply; affirm as to KD |
Key Cases Cited
- In re Sanders, 495 Mich. 394 (2014) (parental due-process requires adjudication of unfitness before state can infringe parent-child relationship)
- In re Midland Publishing Co., Inc., 420 Mich. 148 (1984) (exception to mootness for issues of public significance likely to recur and evade review)
- In re England, 314 Mich. App. 245 (2016) (interpretation of MIFPA in child-protective proceedings)
- In re Morris, 491 Mich. 81 (2012) (federal and state protections reflect respect for tribal interests in Indian children)