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Michigan Supreme Court Lansing, Michigan

Opinion
In re C. I. MORRIS, Minor.

Chief Justice:

Justices:

Robert P. Young, Jr. Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly Brian K. Zahra

FILED MAY 4, 2012 STATE OF MICHIGAN SUPREME COURT

No. 142759

In re J. L. GORDON, Minor. No. 143673

BEFORE THE ENTIRE BENCH CAVANAGH, J. 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 factual situation, in light of the interests protected by ICWA, the potentially high costs of erroneously concluding that notice need not be sent, and the relatively low burden of erring in favor of requiring notice, we think the standard for triggering the notice requirement of 25 USC 1912(a) must be a cautionary one. Therefore, we hold first that sufficiently reliable information of virtually any criteria on which tribal membership might be based suffices to trigger the notice requirement. We hold also that a parent of an Indian child cannot waive the separate and independent ICWA rights of an Indian child's tribe and 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.1 Finally, we hold that the proper remedy for an ICWA-notice violation is to conditionally reverse the trial court and remand for resolution of the ICWA-notice issue.

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.

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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 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. 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.2

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).

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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 December 11, 2008 preliminary hearing, both parents indicated that they had Indian heritage. The father stated that his great-grandmother was Indian and that he believed she was a member of the Cherokee tribe. The mother stated that her heritage also included Cherokee Indian. Without further addressing the child's Indian heritage, the trial court ordered the child placed into foster care. The order entered after the preliminary hearing included a checked box for the following statement: "The child is a member of or eligible for membership in an American Indian tribe or band named CHEROKEE (complete and mail form JC48)." Immediately following that statement, the order provided, "The findings required by MCR 3.980 have been made on the record."3 It appears, however, that tribal notice was never made. 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
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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.

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jurisdiction over the child. The referee further ordered both parents to comply with parent

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Michigan Law