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According to the Court of Appeals, Michigan’s Indian Family Preservation Act (MIFPA) does not permit a circuit court to deny a request to transfer an Indian child custody proceeding to a tribal court based on the timeliness of the request or the effect the transfer may have on the child’s best interests despite the merit of these considerations.  As such, the Court reversed the circuit court’s denial of the tribe’s transfer request in <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150319_C320584_38_320584.OPN.PDF">In re Spears</a>, No. 320584, even though the proceedings began back in 2010 and the tribe only submitted its request after the Michigan Children’s Institute failed to recommend the tribe’s preferred adoptive placement. 
  
In 2010 the Department of Human Services (DHS) petitioned the circuit court to take jurisdiction over the minors under MCL 712A.2 on the basis of alleged abuse and neglect. The circuit court notified the tribe of the proceedings in November 2010, but the tribe responded that the minors were not members or eligible for tribal membership. The DHS filed a supplemental petition in November 2011 seeking the termination of the parental rights of the minors’ mother.  In December 2011, the tribe filed a notice of intervention, stating that the minors were, in fact, eligible for membership.  In February 2012, the minors were enrolled as tribal members and the mother moved to transfer the case to the tribal court.  The circuit court granted the request but the tribal court denied the transfer, stating in part, that it would not be in the best interests of the minors. 
  
On December 6, 2013, after the termination of parental rights, and despite the tribe’s preference that the paternal grandparents adopt the minors, the Michigan Children’s Institute recommended adoptive placement with the minors’ foster parents, with whom they had been residing for several years.  The tribe filed a motion to transfer the proceedings to its tribal court on December 23, 2013.  The circuit court denied the request due to the advanced stage of the case and its conclusion that a transfer would not be in the best interests of the children.  The tribe appealed. 
  
Although the federal Indian Child Welfare Act (ICWA) does not explicitly require transfer petitions to be timely, it authorizes the court to refuse to transfer a case for good cause. The Bureau of Indian Affairs explains that if a circuit court was required to honor a transfer request at any point before judgment, a party could wait to see how the trial is going in state court and then obtain another trial if it appears the other side will win. ICWA was not intended to authorize such tactics and the “good cause” provision allows the court to prevent them. 
  
Unlike ICWA, however, MIFPA provides clear and unambiguous standards regarding what constitutes good cause when considering a transfer request. MCL 712B.7(5) provides: 
  
A court may determine that good cause not to transfer a case to tribal court exists only if the person opposing the transfer shows by clear and convincing evidence that either of the following applies: (a) The Indian tribe does not have a tribal court. (b) The requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is unable to mitigate. 
  
Because the circuit court ignored the criteria of MCL 712B.7(5) and instead denied the request due to the advanced stage of the case and its conclusion that a transfer would not be in the best interests of the children, it improperly construed the statue to give it greater authority to deny the transfer than it actually had.  The Court of Appeals therefore reversed and remanded for further proceedings consistent with its opinion.

core/freeform

Senior Counsel

Conor B. Dugan

Labor and Employment

MIFPA’s high standard for denying request to transfer adoption proceedings to tribal court may give tribes a second bite at the apple

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MIFPA’s high standard for denying request to transfer adoption proceedings to tribal court may give tribes a second bite at the apple

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