These combined cases require us to examine the Indian Child Welfare Act (ICWA), 25 USC 1901 through 1963. In particular, we must decide several issues relating to ICWA’s notice provision, 25 USC 1912(a), which mandates that notice of certain involuntary child custody proceedings be sent to the appropriate Indian tribe or to the Secretary of the Interior “where the court knows or has reason to know that an Indian child is involved. . ..” Because the question whether notice violations occurred in the instant cases begins with determining whether the tribal-notice requirement of 25 USC 1912(a) was triggered, we must first consider the indicia of Indian heritage that will suffice to trigger the notice requirement. We must also consider whether a parent can waive the rights granted by ICWA to an Indian child’s tribe and determine the appropriate recordkeeping requirements necessary to document the trial court’s efforts to comply with ICWA’s notice provision. Finally, we must determine the proper appellate remedy for violations of ICWA’s notice provision.
While it is impossible to articulate a precise rule that will encompass every possible
In both the instant cases there existed sufficient indicia of Indian heritage to trigger the notice requirement of 25 USC 1912(a), yet neither trial court determined whether tribal notice had been properly made. Thus, in neither case did the trial courts determine whether — in addition to state law — the substantive and procedural protections of ICWA applied to the child custody proceedings.
Therefore, in In re Morris we reverse the judgment of the Court of Appeals with regard to the use of the conditional-affirmance remedy, conditionally reverse the trial court’s termination of parental rights, and remand to the trial court for resolution of the ICWAnotice issue. In In re Gordon we reverse the judgment of the Court of Appeals, conditionally reverse the trial court’s termination of parental rights, and remand to the trial court for resolution of the ICWA-notice issue.
I. FACTS AND PROCEDURAL HISTORY
In both cases, parental rights were terminated pursuant to Michigan law, even though the trial courts never conclusively determined whether ICWA applied to the proceedings.
A. In re MORRIS
C. I. Morris is the daughter of N. Brumley and D. Morris. The Department of Human Services (DHS) became involved in December 2008 when the newborn child tested positive for cocaine. Brumley admitted using cocaine and engaging in prostitution while pregnant. D. Morris admitted that he knew about Brumley’s cocaine use and prostitution. The DHS filed a temporary-custody petition for jurisdiction over the infant and to remove her from her mother’s custody.
At the April 7, 2009 adjudication trial, the referee found that one or more of the allegations in the petition were substantiated and that it was proper to exercise jurisdiction over the child. The referee further ordered both parents to comply with parent-agency agreements (PAA), with the goal being reunification. Approximately one year later, the trial court ordered the DHS to file a supplemental petition seeking termination of both parents’ parental rights because they had failed to substantially comply with their PAAs and had failed to benefit from the services that were offered. On July 21, 2010, the referee found that the child could not safely be returned to the parents within the foreseeable future and the court terminated both parents’ parental rights, finding that the cited statutory grounds were demonstrated by clear and convincing evidence and that termination was in the child’s best interests.
Brumley and D. Morris appealed, but did not raise the Indian-heritage issue in the Court of Appeals. Instead, the DHS raised sua sponte the insufficiency of notice to the Indian tribe under ICWA. In its response to the parents’ consolidated appeals, the Attorney General admitted that the record did not disclose whether ICWA notification had been completed. Rather than reverse the trial court, the Attorney General urged the Court of Appeals to conditionally affirm the termination but remand so that proper notice could be provided to any interested tribe. The Court of Appeals affirmed the termination, however, without addressing the ICWA-notice issue or petitioner’s admission of error. See In re Morris, unpublished opinion per curiam of the Court of Appeals, issued February 17, 2011 (Docket Nos. 299470 and 299471).
D. Morris alone applied for leave to appeal in this Court. In lieu of granting leave to appeal, we vacated that portion of the Court of Appeals judgment resolving the father’s appeal and remanded to the Court of Appeals for resolution of the ICWA-notice
B. In re GORDON
C. Hinkle gave birth to J. L. Gordon in May 2007.
In November 2007, while Hinkle was in jail on an unrelated conviction, she placed JL in a guardianship with Hinkle’s maternal aunt, a Saginaw Chippewa tribal member. But when Hinkle was released from jail, the guardianship was terminated and JL returned to Hinkle’s care. In May 2008, Hinkle resurfaced in Oakland County, and CPS again became involved after receiving a referral alleging that JL had been treated for second-degree burns to his hands after falling into a fireplace and that Hinkle had failed to bring the child back to the hospital’s burn unit for follow-up care. When CPS found Hinkle, the caseworker ordered Hinkle to take JL to the hospital for treatment of his burned hands. Hinkle apparently did not do so.
The child was taken into protective custody. Caseworker Nina Bailey filed a petition on behalf of the DHS, seeking temporary jurisdiction over JL, which was granted on May 22, 2008. On July 21, 2008, Hinkle pleaded no contest to the allegations in the petition, and the court ordered Hinkle to comply with a PAA. Following a dispositional hearing in September 2008, JL was placed back with Hinkle’s maternal aunt, the Saginaw Chippewa tribal member who had previously served as JL’s guardian.
By April 2010, Hinkle had made little progress toward reunification. Her compliance with the PAA was sporadic and incomplete, she had been arrested on an unrelated criminal charge, she was requesting shorter and less frequent visitations with JL, and she continued to maintain inappropriate living conditions. At an April 8, 2010 permanency planning hearing, the court recommended that the DHS file a supplemental petition seeking termination of Hinkle’s parental rights. After a three-day bifurcated hearing concluding on November 1, 2010, the court terminated Hinkle’s parental rights, finding that each of the statutory grounds alleged in the petition had been proven by clear and convincing evidence and that termination was in JL’s best interests.
The facts relevant to the ICWA-notice issue developed over the course of numerous hearings. At the May 21, 2008 hearing during which the DHS sought emergency custody of JL, Bailey indicated that
At a September 2008 dispositional review hearing, Hinkle clarified that her biological mother was not a member of the tribe, but her mother’s siblings were. Hinkle’s mother was present in the courtroom and confirmed that there was Indian heritage on her side of the family and that she was “waiting on that,” which apparently meant that she was waiting to hear from the tribe about her own eligibility for membership. The assistant prosecutor reiterated that notice had been sent to the Saginaw Chippewa Indian Tribe, but no response had been received. The court directed the prosecutor to place a copy of the notice in the court file, and she agreed to do so, but the record does not include a copy of the notice.
At a hearing held on January 5, 2009, DHS caseworker Lisa Smith stated that an ICWA representative had requested more family history information from Hinkle, that the requested information had been provided, and that the DHS was awaiting a response. The court directed Smith to notify it when a response was received and place a copy in the court file. Smith agreed to do so, but again, the record includes no such ICWA documentation.
At an April 21, 2009 hearing, Smith told the court that Hinkle’s mother had received direct notice from the tribe that the family was not eligible for tribal benefits. Hinkle’s mother was present and stated that she had been notified that she and her descendents were not entitled to tribal benefits or money. Hinkle then attempted to clarify for her mother, stating, “My son and I don’t have enough heritage to get — to be part of the tribe in other words.” The court stated that it was looking for “a letter” directly from the tribe. JL’s foster mother stated that she is a tribal member and had tried to obtain information regarding JL’s status from the tribe, but the tribe had refused to release the information to anyone but the DHS or the court. Smith reiterated that she had “sent papers to ICWA.”
On April 6, 2009, the court entered an order following a hearing, which noted, “Nothing received from ICWA — worker contacted ICWA again.” This is the last reference to ICWA that appears in the record. The record includes no copies of the actual notices purportedly sent to either the Saginaw Chippewa Indian Tribe or the Secretary of the Interior. There are no postal return receipts indicating whether notice was received and, if so, by whom. Lastly, the record includes no documentation of any tribal response or other subsequent communications documenting the court’s and the DHS’s efforts to ensure compliance with ICWA.
Hinkle appealed the November 2010 termination decision, and the Court of Appeals affirmed. In re Gordon, unpublished opinion per curiam of the Court of Appeals, issued August 11, 2011 (Docket No. 301592). The Court of Appeals noted that Hinkle had objected to neither the manner nor the insufficiency of tribal notice pursuant to ICWA and concluded that, even in the absence of documentation, the record showed that the DHS had complied with ICWA. Id. at 4. Further, the Court of Appeals concluded that by stating that she and her son were not eligible for tribal membership, Hinkle had relieved the trial court from making further tribal-notification efforts. Id. Hinkle applied for leave to appeal in this Court, and pursuant to MCR 7.302(H)(1), we directed the clerk to schedule oral argument on whether to grant the application or take other action. In re Gordon,
II. STANDARD OF REVIEW
Issues involving the application and interpretation of ICWA are questions of law that are reviewed de novo. In re JL,
III. THE INDIAN CHILD WELFARE ACT
In 1978, Congress enacted ICWA in response to growing concerns over “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Mississippi Band of Choctaw Indians v Holyfield,
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children ...;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian childcustody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families. [25 USC 1901.]
In response to these findings, Congress declared that the policy of our nation is
to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removed of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture .... [25 USC 1902.]
Thus, reflected in ICWA is a profound recognition of the separate and distinct rights of Indian tribes to their children, the most critical resource necessary to preserve not only tribal culture, but the tribes themselves. To address the problems identified in the hearings, ICWA establishes various substantive and procedural protections intended to govern child custody proceedings involving Indian children.
Two provisions define the exclusive or presumptive jurisdiction of the tribal courts over Indian children. First, if an Indian child “resides or is domiciled within the reservation of such tribe” or is a “ward of a tribal court,” the child’s tribe has exclusive jurisdiction “over any child custody proceeding.” 25 USC 1911(a). Second, in state court foster care or termination of parental rights proceedings involving Indian children who are not wards of the tribal court and are not residents of or domiciled within a reservation, the parent, the Indian custodian of the child, or the Indian child’s tribe may petition for the proceedings to be transferred to the tribal court. 25 USC 1911(b). In the absence of good cause to the contrary or declination by the tribal court, the state court “shall transfer” the proceedings to the tribal court. Id. Further, if the child is an Indian child and jurisdiction is not transferred to the tribal court, the child’s tribe retains the right to intervene in any state court foster care placement or termination of parental rights proceeding. 25 USC 1911(c). Regardless of whether the tribe intervenes, if the child involved in the child custody proceeding is an Indian child, state courts must still conform to the heightened protections afforded by ICWA.
As defined by ICWA, an “Indian child” is “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 USC 1903(4) (emphasis added).
Before turning to the specifics of the notice provision, however, we must briefly discuss ICWA’s enforcement provision, 25 USC 1914, which provides a powerful collateral remedy for violations of ICWA’s key provisions. That section provides:
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child’s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of [25 USC 1911, 1912, or 1913], [25 USC 1914 (emphasis added).]
Pursuant to this provision — and with no apparent time limitation on when the collateral action may be brought — the Indian child, a parent, an Indian custodian of the child, or the child’s tribe may petition a court to invalidate foster care placements and terminations of parental rights if the state court violated any provision included in 25 USC 1911, 1912, or 1913. The import of this powerful remedy is that such an action to invalidate the proceedings could be brought even after the children had established permanency with a new family.
IV THE NOTICE PROVISION OF ICWA, 25 USC 1912(a)
The notice provision of ICWA provides:
In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding. [25 USC 1912(a).]
Several requirements can easily be extracted from the plain text of the statute. First, 25 USC 1912(a) applies only to involuntary foster care placements and involuntary termination of parental rights proceedings occurring in state courts.
The application of the requirements of 25 USC 1912(a), however, is conditioned on whether the notice requirement is even triggered by indicia of Indian heritage sufficient to give the court actual knowledge or a “reason to know” that the child at issue is an Indian child.
A. THE MEANING OF “REASON TO KNOW”
As we have noted, the requirements of 25 USC 1912(a) apply only when “the court knows or has reason to know that an Indian child is involved . . . .” There is no difficulty in a situation where the court knows an Indian child is involved. In that case, the court would be privy to sufficient information to determine that the child satisfies the definition of “Indian child” set forth in 25 USC 1903(4) (i.e., the child is unmarried, under age 18, and either [a] a member of an Indian tribe or [b] eligible for membership and the biological child of a member of an Indian tribe). The difficulty arises when the court “has reason to know that an Indian child is involved . . . .” Specifically, how much information suggesting the child has or may have Indian heritage suffices to give the court “reason to know” that an Indian child is involved?
We think the “reason to know” standard for purposes of the notice requirement in 25 USC 1912(a) should set a rather low bar. First, we find instructive the Bureau of Indian Affairs (BIA) guidelines, which suggest a permissive standard:
Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include but are not limited to the following:
(i) Any party to the case, Indian tribe Indian organization or public or private agency informs the court that the child is an Indian child.
(ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.
(iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.
(iv) The residence or the domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.
(v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child. [Bureau of Indian Affairs, Guidelines for StateCourts; Indian Child Custody Proceedings, B.l(c), 44 Fed Reg 67584, 67586 (November 26, 1979) (BIA Guidelines) (emphasis added).]
By using the terms “reason to believe,” “suggests,” and “may be an Indian child,” this nonexhaustive list adopts a permissive standard we find consistent with the purposes animating ICWA. Further, our State Court Administrative Office recently adopted the BIA standards, with some slight variations, in its ICWA resource guide.
Second, we also find instructive BH v People ex rel XH,
Precisely what constitutes “reason to know” or “reason to believe” in any particular set of circumstances will necessarily evade meaningful description. As in other contexts, reasonable grounds to believe must depend upon the totality of the circumstances and include consideration of not only the nature and specificity of available information but also the credibility of the source of that information and the basis of the source’s knowledge. In light of the purpose of [ICWA], however, to permit tribal involvement in child-custody determinations whenever tribal members are involved, the threshold requirement for notice was clearly not intended to be high.
The court examined the BIA Guidelines and cases from other jurisdictions before concluding that “[b]ecause membership is peculiarly within the province of each Indian tribe, sufficiently reliable information of virtually any criteria upon which membership might be based must be considered adequate to trigger the notice provisions of the Act.” Id. at 304 (emphasis added); see also In re Antoinette S, 104 Cal App 4th 1401, 1407; 129 Cal Rptr 2d 15 (2002) (“[T]he ‘minimal showing’ required to trigger notice under the ICWA is merely evidence ‘suggesting] ’ the minor ‘may’ be an Indian child .. . .”), quoting Dwayne P v Superior Court, 103 Cal App 4th 247, 258; 126 Cal Rptr 2d 639 (2002) (second alteration in original).
Third, we think the burden on the trial court and the DHS of complying with the notice requirement is minimal when compared to the potential costs of erroneously failing to send notice. At most, complying with 25 USC 1912(a) will extend the proceedings by some 30 days after the date the tribe or the Secretary of the Interior receives notice. If those entitled to notice do not respond within 10 days, the trial court may conduct the foster care placement or termination of parental rights proceedings. If the tribe replies to the notice, indicating that the child is not a member of the tribe and is not entitled to membership then, again, proceedings may resume. Finally, if those entitled to notice request an additional 20 days, then the court may have to wait a total of 30 days beyond the date the notice was received, as shown by the return receipt. An additional 30 days seems a comparatively low burden on the trial court and the DHS, especially when child custody cases generally take well over a year and the Indian heritage question will normally be raised at least by the time of the preliminary hearing. MCR 3.965(B)(2).
For the foregoing reasons, we adopt the permissive standard articulated by the Colorado Supreme Court and hold that sufficiently reliable information of virtually any criteria on which membership might be based is adequate to trigger the notice requirement of 25 USC 1912(a).
In the instant cases, we agree with the trial courts’ initial determinations that there existed sufficient indicia of Indian heritage to require tribal notice. In Morris, both parents informed the court at the December 11, 2008 preliminary hearing that they had Cherokee Indian heritage. And while the record does not reflect whether any attempt to provide notice was made at that time, the order entered after the preliminary hearing indicates that “[t]he child is a member of or eligible for membership in an American Indian tribe or band named CHEROKEE . . . .” Likewise in Gordon, Hinkle informed the court at the May 22, 2008 preliminary hearing that her family was part of the Saginaw Chippewa Indian Tribe, and the referee indicated that the DHS would be required to notify the Saginaw Chippewa tribe to conclusively resolve the issue. Thus, in both cases, we agree that the tribal-notice requirement of 25 USC 1912(a) was triggered because sufficient indicia of Indian heritage were presented to give the courts reason to believe that the children might be Indian children.
B. PARENTAL WAIVER OF THE TRIBAL RIGHT TO NOTICE
In Gordon, we asked the parties to address whether a parent can waive a minor child’s status as an Indian child or waive compliance with ICWA. This issue is easily resolved in the negative: a parent cannot waive either a child’s status as an Indian child or any of the tribe’s separate and distinct rights, as guaranteed by ICWA — including the right to notice under 25 USC 1912(a). The act makes clear that Indian tribes have “an interest in the child which is distinct from but on a parity with the interest of the parents.” In re Adoption of Halloway,
The numerous prerogatives accorded the tribes through the ICWA’s substantive provisions .. . must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves. [Holyfield,490 US at 49 .]
In recognition of the tribe’s protected interests in its children, the Court held that “[t]ribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe,” id. at 49, and allowing a parent to avoid the tribe’s right to exclusive jurisdiction over reservation domiciliaries would “nullify the purpose the ICWA was intended to accomplish,” id. at 52. While the Holyfield case is framed within the tribal right to exclusive jurisdiction, we conclude that the same principles hold true in the context of the tribal right to notice. Providing notice is a critical step to determining whether the separate and distinct tribal interests protected by ICWA are implicated. Tribes must be afforded the “opportunity to participate in determining whether the child is an Indian and to be heard on the issue of ICWA applicability.” BH,
Therefore, we hold that a parent cannot waive a child’s status as an Indian child or any right of the tribe that is guaranteed by ICWA. See id. at 304 (“Because the protection of a separate tribal interest is at the core of the ICWA,... otherwise sufficiently rehable information cannot be overcome by the statements, actions, or waiver of a parent____”), citing Holyfield,
C. 25 USC 1912(a) RECORDKEEPING REQUIREMENTS
In Gordon,
While ICWA is silent regarding the recordkeeping requirements of 25 USC 1912(a) notice compliance, we find it essential that certain documents be included in the record. First, our State Court Administrative Office recently adopted the BIA recommendation that “[t]he original or a copy of each notice sent pursuant to this section shall be filed with the court together with any return receipts or other proof of service.” BIA Guidelines B.5(d), 44 Fed Reg at 67588.
Indeed, Gordon illustrates the necessity for a documentary record of the attempts to comply with the notice requirements of 25 USC 1912(a). The lack of documentation in the record in Gordon prevents us from determining if the contents of the notice were sufficient to apprise the intended recipient of the pending child custody proceeding. We likewise are unable to determine to whom the notices were sent, even though the transcript includes references to both the Saginaw Chippewa Indian Tribe and to “ICWA,” the latter of which presumably means the Secretary of the Interior.
Therefore, we hold that trial courts have a duty to ensure that the record includes, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice. In addition, it would be helpful — especially for appellate purposes — for the record to include any additional correspondence between the petitioner, the court, and the Indian tribe or other person or entity entitled to notice under 25 USC 1912(a).
Having determined that the notice requirement of 25 USC 1912(a) was triggered in both cases before us and that the trial courts did not fully comply with that statute, we are left to consider the proper remedy for ICWA-notice violations.
Despite the best efforts of child-protection authorities and our trial courts, there will inevitably be the occasional, unintentional tribal-notice error. In neither of the instant cases did the trial courts conclusively resolve whether the children were Indian children, and therefore whether the act’s substantive and procedural protections applied to the child custody proceedings was not determined. Although the trial court in Morris determined that tribed notice was required, it appears that notice was not made. And while there were apparently attempts in Gordon to comply with 25 USC 1912(a), the documentary record is insufficient to determine whether the Saginaw Chippewa Indian Tribe actually received the requisite notice.
Because ICWA and our court rules are silent regarding the proper remedy for 25 USC 1912(a) notice violations, we must choose the best of three remedies suggested by the parties and the amici curiae.
We are guided in our assessment of these three possible remedies by the following considerations: (1) deference to tribal interests, as expressed by ICWA, (2) the best interests of the children, both Indian and non-Indian, in establishing and maintaining permanency, (3) the need to encourage compliance with ICWA, especially in light of the potential effects of the 25 USC 1914 remedy when errors occur, and (4) the conservation of judicial resources.
We must first reject the automatic-reversal remedy. The primary argument offered in support of automatic reversal is that once the 25 USC 1912(a) notice requirement is triggered, the court has no jurisdiction to enter any foster care or termination of parental rights orders pending resolution of the tribal-notice issue. Therefore, it is argued, any proceedings occurring after the notice requirement was triggered must be automatically reversed. The main case cited in support of this argument is In re NAH,
Although the automatic-reversal remedy would be the most deferential to tribal interests and would be the most effective in stressing to courts the imperative need to comply with ICWA, we decline to adopt the argument that the mere triggering of notice pursuant to 25 USC 1912(a) strips the state court of jurisdiction over the matter and requires immediate return of the children to the home from which they were removed. Several ICWA provisions indicate that Congress did not intend for state courts to lose jurisdiction once the 25 USC 1912(a) notice requirement is triggered. For example, pursuant to 25 USC 1922, a state court may conduct an emergency removal and arrange temporary foster care placement of even a child over whom the tribal court has exclusive jurisdiction when an Indian child “who is a resident of or is domiciled on a reservation” is “temporarily located off the reservation . . . .” While ICWA does not address those children not explicitly covered by 25 USC 1922, it would make no sense for Congress to allow for emergency removal and temporary placement of Indian children over whom the Indian tribe has exclusive jurisdiction pursuant to 25 USC 1911(a), yet preclude those emergency and temporary measures for all others, especially when it has yet to be determined if the child qualifies as an Indian child and whether the tribal court has exclusive jurisdiction over, the right to intervene in, or no interest in the matter. See, e.g., DED v State,
Further, even when a petitioner has improperly removed an Indian child from the home or improperly retained custody, the child need not be returned to her or his
Therefore, we conclude that the mere triggering of the notice requirement does not strip the trial court of jurisdiction over the children and does not mandate automatic reversal of all proceedings occurring after the notice requirement was triggered. The requirement to provide tribal notice under 25 USC 1912(a) is the means by which a court determines its jurisdiction, but is not itself a divestiture of jurisdiction.
We also do not believe that automatic reversal would be in the best interests of the children. In the majority of cases involving ICWA-notice violations that were conditionally affirmed by the Michigan Court of Appeals, it was eventually determined that the children were not Indian children and thus that ICWA did not apply. An automatic-reversal rule would require new termination proceedings in even the cases not involving Indian children, and this would disrupt or delay the permanent placement of the child. It would be counterproductive and nonsensical to disrupt the permanent placement of a child before it is determined whether the child is an Indian child. Additionally, an automatic-reversal rule would not conserve judicial resources because it would require the invalidation of all orders entered when there was an ICWA-notice violation, even if it is later determined that the child is not an Indian child.
Finally, the automatic-reversal remedy would be inconsistent with our longstanding disfavor of automatic reversals. See In re Osborne,
From a practical perspective, we realize there is little difference between the conditional remedies: both require a remand to remedy the notice violation. A conditional affirmance merely states that the lower court ruling is affirmed unless ICWA applies, whereas a conditional reversal states that the ruling is reversed unless ICWA does not apply. Under either remedy, if the child is determined to be an Indian child, then the foster care or termination proceedings are invalidated and the proceedings begin anew under ICWA’s standards. If no Indian child is involved, however, or the tribe given proper notice does not respond within the times allotted by 25 USC 1912(a), any notice violation is harmless.
As far as the best interests of the children, there is again little difference between the conditional-affirmance and conditional-reversal remedies. Under either remedy, the children will likely stay in their current placements until the notice violation is resolved, and thus their permanency is not unduly affected in the interim. Additionally, there is no difference between these remedies as far as conserving judicial resources. Both require a remand to remedy the notice violation.
Nevertheless, in other ways, substantial differences exist between the two remedies. First, we think the use of a conditional reversal is more consistent with the text of 25 USC 1912(a), which mandates that “[n]o foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary....” Second, between the two remedies, conditional reversal is more deferential to tribal interests, as expressed by ICWA, and is more likely to ensure these interests are protected by the trial courts. The term “conditional reversal” sends a clearer signal to the lower courts and the DHS that they must pay closer attention when ICWA is implicated. In sum, we think that the conditional-reversal remedy is more emphatic, more consistent with the text and purposes animating ICWA, and more likely to encourage compliance with ICWA.
Therefore, we overrule IEM and its progeny and hold that conditional reversal is the proper remedy for violations of 25 USC 1912(a).
We hold that the proper remedy for ICWA-notice violations is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue. In addition, we hold that virtually any criteria on which tribal membership might be based suffices to trigger the 25 USC 1912(a) notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent rights of an Indian child’s tribe, as guaranteed by ICWA. Lastly, we hold that the trial court must maintain a documentary record including, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice.
In In re Morris we reverse the judgment of the Court of Appeals with regard to the use of the conditionalaffirmance remedy, conditionally reverse the trial court’s termination of parental rights, and remand to the trial court for resolution of the ICWA-notice issue. In In re Gordon we reverse the judgment of the Court of Appeals, conditionally reverse the trial court’s termination of parental rights, and remand to the trial court for resolution of the ICWA-notice issue. On remand, the trial courts shall first ensure that notice is properly made to the appropriate entities. If the trial courts conclusively determine that ICWA does not apply to the involuntary child custody proceedings — because the children are not Indian children or because the properly noticed tribes do not respond within the allotted time — the trial courts’ respective orders terminating parental rights are reinstated. If, however, the trial courts conclude that ICWA does apply to the child custody proceedings, the trial courts’ orders terminating parental rights must be vacated and all proceedings must begin anew in accord with the procedural and substantive requirements of ICWA. We do not retain jurisdiction.
APPENDIX:
AN OVERVIEW OF THE 25 USC 1912(a) NOTICE PROCESS
To aid our lower courts in properly applying the notice requirement of 25 USC 1912(a), we offer the following cursory overview. While this overview begins at the preliminary hearing, we recognize that the Department of Human Services, pursuant to its own policies and procedures, will have previously begun the process of gathering the information necessary to determine the applicability of the Indian Child Welfare Act (ICWA). As noted in the opinion, for more comprehensive guidance, see ICWA Special Committee, Indian Child Welfare Act of 1978: A Court Resource Guide (State Court Administrative Office, 2011) (SCAO ICWA Resource Guide).
1. At the preliminary hearing, the court must inquire about Indian heritage. While MCR 3.965(B)(2) frames the inquiry in terms of actual tribal membership, sufficiently reliable information of virtually any criteria on which membership might be based is adequate to trigger the notice requirement of 25 USC 1912(a). See part IV(A) of the
2. If sufficient indicia of Indian heritage are presented to give the court a reason to believe the child is or may be an Indian child, determination of the tribal status of the child, the parents, or both requires notice pursuant to 25 USC 1912(a).
3. The trial court must identify the child’s tribe
4. Notice must be made by personal service or sent by registered mail with return receipt requested. See n 22 of the opinion.
5. Other than temporary placements pending the tribal or BIA notification, the trial court may not conduct any foster care placement or termination of parental rights proceedings until (1) the expiration of the time periods stated in 25 USC 1912(a), or (2) the child’s tribe or the BIA responds with information sufficient to allow the trial court to conclude that the child is not an Indian child within the meaning of ICWA. The possibility that the child is an Indian child does not divest the trial court of jurisdiction to order temporary foster care pending tribal notice. See part V of the opinion.
6. When the tribe does not have exclusive jurisdiction under 25 USC 1911(a), if the child’s tribe or the BIA responds with information sufficient for the trial court to conclude that the child is an Indian child within the meaning of ICWA and the child’s tribe declines the transfer of jurisdiction or the trial court determines that there exists good cause to keep the matter in state court pursuant to 25 USC 1911(b), the substantive and procedural protections afforded by ICWA still apply to the proceedings. The application of ICWA to the state-court proceedings does not depend on whether the tribe chooses to intervene. See n 29 of the opinion. If the child is an “Indian child,” ICWA applies. See n 9 of the opinion and accompanying text.
7. The trial court has a duty to ensure the record includes, at minimum, (1) the original or a copy of each actual notice personally served or sent via registered mail pursuant to 25 USC 1912(a), and (2) the original or a legible copy of the return receipt or other proof of service showing delivery of the notice. In addition, the record should include any additional correspondence between the petitioner, the court, and the Indian tribe or
Notes
As noted in part IV(C), a complete record should also include any additional correspondence between the Department of Human Services, the trial court, and the Indian tribe or other person or entity entitled to notice.
Assuming ICWA does not apply to these child custody proceedings, we conclude that neither Court of Appeals panel in the instant cases clearly erred in holding that parental rights were properly terminated pursuant to Michigan law. See In re Morris, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2011 (Docket Nos. 299470 and 299471) (readopting the court’s February 17, 2011 opinion with regard to termination under state law); In re Gordon, unpublished opinion per curiam of the Court of Appeals, issued August 11, 2011 (Docket No. 301592).
At the time of these proceedings, MCR 3.980 was still in effect and required the trial court to ensure that notice of the proceedings was given to the child’s tribe and the child’s parents. As of May 1, 2010, MCR 3.980 has been replaced by MCR 3.905 and MCR 3.967.
The statutory grounds for termination relied on by the trial court were MCL 712A.19b(3)(c)(¿), (g), (j), and (m).
The father’s identity remains unknown.
The statutory grounds for termination were MCL 712A.19b(3)(c)(i), (g), and (j).
A review of the transcripts reveals that the repeated references to notifying “ICWA” are apparently references to notifications sent directly to the Secretary of the Interior. We are unclear why notice would be sent to the Secretary of the Interior in this case. Section 1912(a) only requires that notice be sent to the secretary if “the identity or location of the parent or Indian custodian and the tribe cannot be determined. ...” Hinkle specifically stated that some of her relatives were members of the Saginaw Chippewa Indian Tribe. Thus, the appropriate tribe had been determined.
Four types of proceedings are included in the definition of “child custody proceeding” found in 25 USC 1903(l)(i) through (iv): foster care placements, terminations of parental rights, preadoptive placements, and adoptive placements. See also MCR 3.002(l)(a) through (d). As discussed within this opinion, “Indian child” is defined by 25 USC 1903(4).
The various protections afforded by ICWA in proceedings involving Indian children include the appointment of counsel, 25 USC 1912(b); the duty to show that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” in foster care placement or termination of parental rights proceedings, 25 USC 1912(d); a “determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” in foster care placement proceedings, 25 USC 1912(e); a “determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” in termination of parental rights proceedings, 25 USC 1912(f); and adoptive, preadoptive, and foster care placement preferences, 25 USC 1915.
“Indian tribe” is defined as “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians ... .” 25 USC 1903(8).
For example, in Holyfield, the Indian tribe of twin children over which it had exclusive jurisdiction successfully used 25 USC 1914 to challenge a voluntary adoption two months after the entry of the fined decree of adoption. Holyfield,
We point out why 25 USC 1914 is not an available remedy in either of the instant cases. That provision gives standing to the Indian child, the parents and the Indian custodians of the Indian child, and the Indian child’s tribe. See also 25 USC 1903(9) (defining “parent”). Thus, while any one or more of the four parties may bring an action pursuant to 25 USC 1914, any such action is prefaced on the condition that the child meets the definition of an “Indian child” found in 25 USC 1903(4). Because only the Indian tribe can determine membership or eligibility for membership, an action brought under 25 USC 1914 must necessarily include a tribal determination of membership or eligibility for membership, even though the tribe itself need not intervene in the state-court proceedings. See In re Kreft,
Voluntary foster care placements, voluntary termination of parental rights proceedings, and voluntary adoptive placements are governed by 25 USC 1913.
“Secretary” is defined as “the Secretary of the Interior.” 25 USC 1903(11). Pursuant to 25 CFR 23.11(b) and (c)(2), when notice to the Secretary of the Interior is required under 25 USC 1912(a) for proceedings in Michigan, it is actually sent to the Minneapolis Area Director, Bureau of Indian Affairs.
This does not mean that if the notice condition is triggered the children must automatically be returned to the home. As discussed in part Y until the ICWA-notice issue is resolved, the trial court need not change, and may order, temporary placements of the children because the mere triggering of 25 USC 1912(a) notice does not divest the court of jurisdiction.
See ICWA Special Committee, Indian Child Welfare Act of 1978: A Court Resource Guide (State Court Administrative Office, 2011), p 22 (hereinafter “SCAO ICWA Resource Guide”), available at <http://courts.michigan.gov/scao/resources/publications/manuals/cws/ ICWACtResourceGuide.pdf> (accessed April 27, 2012).
MCR 3.965(B)(2) requires that the court inquire about Indian heritage at the preliminary hearing. We recognize that MCR 3.965(B)(2) is not entirely consistent with this opinion because the court rule incorporates the definition of “Indian child” into the trial court’s initial determination of whether notice must he sent to the tribe:
The court must inquire if the child or either parent is a member of an Indian tribe. If the child is a member, or if a parent is a member and the child is eligible for membership in the tribe, the court must determine the identity of the child’s tribe, notify the tribe .... [MCR 3.965(B)(2).]
Only after the appropriate tribe responds can it be determined whether a parent, the child, or both are tribal members or are eligible for membership. And only with that information can the trial court determine whether the child meets the definition of “Indian child.” Instead, the court rule should likely reflect a standard of “knows or has reason to know” or “knows or has reason to believe.” This Court is considering opening an administrative file for the purpose of amending MCR 3.965(B)(2).
A nonexhaustive list of indicia sufficient to trigger tribal notice includes situations in which (1) the trial court has information suggesting that the child, a parent of the child, or members of a parent’s family are tribal members, (2) the trial court has information indicating that the child has Indian heritage, even though no particular Indian tribe can be identified, (3) the child’s birth certificate or other official record indicates that the child or a parent of the child is of Indian descent, (4) the child, the child’s parents, or the child’s Indian custodian resides or is domiciled in a predominantly Indian community and (5) the child or the child’s family has received services or benefits from a tribe or the federal government that are available to Indians. The state of California has codified a similarly permissive standard. See Cal Welf & Inst Code 224.3(b). While we recognize that California law is not binding on Michigan courts, we find California’s codified standard an instructive template for this opinion’s nonexhaustive list of sufficient indicia of Indian heritage. See also BIA Guideline B.l(c), quoted earlier.
There exist numerous possible scenarios in which a child may not appear to meet the ICWA definition of “Indian child” early in the proceeding, yet satisfy those conditions at some point during the pendency of the proceedings. For example, a tribe could determine that both a parent and the child are eligible for membership. In that case, if the parent accepts tribal membership, the child would meet ICWA’s definition of “Indian child.” It is likewise possible for a parent to be a tribal member since birth or early childhood, yet not be aware of her or his membership status until the tribe is contacted. See, e.g., In re Termination of Parental Rights to Arianna RG,
We do not think that the purported communication from the tribe to Hinkle’s mother about her eligibility for tribal benefits suffices for any purpose relevant to ICWA. First, the purported letter to Hinkle’s mother had nothing to do with ICWA or the child custody proceedings. Second, it is not clear that ineligibility for tribal benefits equates with ineligibility for tribal membership. Lastly, the trial court was correct to conclude that the tribe’s response to the notice of the child custody proceedings needed to be sent from the tribe or the Secretary of the Interior directly to the DHS or the trial court. A communication from a tribe to a relative of a respondent about eligibility for tribal benefits is insufficient to support any conclusion that ICWA does not apply to the child custody proceedings.
This issue was not raised in Morris because, by all accounts, there were no efforts to comply with 25 USC 1912(a) after the December 11, 2008 preliminary hearing, during which the trial court found that 25 USC 1912(a) was triggered but apparently did not otherwise comply with its requirements. However, our ruling regarding recordkeeping requirements applies equally to Morris on remand.
We are unable to determine from the record in Gordon whether the notice referred to was sent via registered or certified mail. However, the text of 25 USC 1912(a) specifically requires registered mail. See also MCR 3.920(C)(1) (requiring notice to parents and tribes “by personal service or by registered mail with return receipt requested”). We note that there are differences between certified and registered mail, the latter of which is more secure. Additionally, the BIA recommends that only personal service — which affords greater protections — may substitute for registered mail. BIA Guidelines B.5(e), 44 Fed Reg at 67588. Because the trial court did not determine whether tribal notice had been made, we need not opine at this time on whether actual notice achieved via certified mail instead of registered mail would be subject to harmless error review. See, e.g., In re Alexis H, 132 Cal App 4th 11, 16; 33 Cal Rptr 3d 242 (2005); Nicole K v Superior Court, 146 Cal App 4th 779, 784; 53 Cal Rptr 3d 251 (2007).
See SCAO ICWA Resource Guide, p 25 (“The original or a copy of each notice along with return receipts or other proofs of service must be filed with the court.”).
See n 7 of this opinion.
Recent amendments of our court rules incorporate many ICWA standards. See, e.g., MCR 3.002; MCR 3.905; MCR 3.920(C); MCR 3.921; MCR 3.961(B)(5) and (6); MCR 3.965(B)(2) and (12)(b); MCR 3.967; MCR 3.977(A)(1). None of the relevant court rules, however, provides a remedy for ICWA-notice violations.
See, e.g., In re TM (After Remand),
However, the NAH opinion does not include enough information for us to determine whether the Oglala Sioux Tribe had exclusive jurisdiction over the children pursuant to 25 USC 1911(a) or merely presumptive jurisdiction pursuant to 25 USC 1911(b). When a tribe has exclusive jurisdiction, then of course the state court has no jurisdiction to terminate parental rights. When a tribe merely has presumptive jurisdiction, however, we do not think that inadequate tribal notice automatically divests a state court of jurisdiction. Moreover, the merits of NAH have been questioned. See In re Kerby,
However, when an appellate court can conclude from the record properly before it that a child is an Indian child entitled to the benefits and protections of ICWA, an outright reversal may be an appropriate remedy if the trial court failed to apply ICWA’s standards.
We also clarify another aspect of IEM. The Court of Appeals quoted with approval a Vermont case for the proposition that after remanding to the trial court for proper notice to the Indian tribe, “ ‘[i]f the tribe does not seek to intervene, or after intervention the trial court still concludes that the ICWA does not apply, the original orders will stand.’ ” IEM,
For information on determining the child’s tribe, see Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, B.2, 44 Fed Reg 67584, 67586-67587 (November 26, 1979); SCAO ICWA Resource Guide, pp 22-24.