MI R SPEC P MCR 3.002

MI Rules MCR 3.002
Michigan Court Rules of 1985
Chapter 3. Special Proceedings and Actions
Subchapter 3.000. General Provisions

RULE 3.002 INDIAN CHILDREN

For purposes of applying the Act, 25 USC 1901 et seq., to proceedings under the Juvenile Code, the Adoption Code, and the Estates and Protected Individuals Code, the following definitions taken from 25 USC 1903 and 25 USC 1911(a) shall apply.

(1) "Child custody proceeding" shall mean and include

(a) "foster-care placement," which shall mean any action removing an Indian child from his or her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated,

(b) "termination of parental rights," which shall mean any action resulting in the termination of the parent-child relationship,

(c) "preadoptive placement," which shall mean the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but before or in lieu of adoptive placement, and

(d) "adoptive placement," which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

Such term or terms shall not include a placement based upon an act that, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

(2) "Exclusive jurisdiction" shall mean that an Indian tribe has jurisdiction exclusive as to any state over any child custody proceeding as defined above involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the state by existing federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. 25 USC 1911[a].

(3) "Extended family member" shall be as defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, shall be a person who has reached the age of 18 years and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

(4) "Indian" means any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in 43 USC 1606.

(5) "Indian child" means any unmarried person who is under age 18 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.

(6) "Indian child's tribe" means

(a) the Indian tribe of which an Indian child is a member or eligible for membership, or

(b) in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.

(7) "Indian custodian" means any Indian person who has legal custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control has been transferred by the parent of such child.

(8) "Indian organization" means any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians.

(9) "Indian tribe" means 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 because of their status as Indians, including any Alaska Native village as defined in section 43 USC 1602(c).

(10) "Parent" means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include an unwed father whose paternity has not been acknowledged or established.

(11) "Reservation" means Indian country as defined in section 18 USC 1151 and any lands not covered under such section, for which title is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

(12) "Secretary" means the Secretary of the Interior.

(13) "Tribal court" means a court with jurisdiction over child custody proceedings and that is either a Court of Indian Offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe that is vested with authority over child custody proceedings.

CREDIT(S)

[Adopted February 2, effective May 1, 485 Mich.]

COMMENTS

2010 Staff Comment

These amendments incorporate provisions of the Indian Child Welfare Act into specific provisions within various rules relating to child protective proceedings and juvenile status offenses. The language is designed to make the rules reflect a more integrated approach to addressing issues specific to Indian children.

MCR 3.002(1)(c) defines "preadoptive placement" to mean the "temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but before or in lieu of adoptive placement, and ..." The phrase "in lieu of adoptive placement" is not intended to mean that it is permissible to leave a child in foster care indefinitely, in violation of MCL 712A.19b(6) or (7) or 45 CFR 1355.20, 45 CFR 1356.21, or 45 CFR 1356.50. Rather, it addresses situations where the parental rights to a child have been terminated and there is no permanency plan for adoption of the child. One example is when the child has been placed with a juvenile guardian and the guardianship is subsequently revoked. In this situation, jurisdiction over the child pursuant to MCL 712A.2(b) will be reinstated and the child is placed in foster care.

MCR 3.002(1): The definition of "child custody proceeding" is intended to apply the Indian Child Welfare Act to delinquency proceedings if an "Indian child" is charged with a so-called status offense in violation of MCL 712A.2(a)(2)-(4) or (d). Delinquency proceedings involving an Indian child charged with any other non-status offense are generally not subject to the Indian Child Welfare Act; however, if the initial investigation or subsequent review of a non-status delinquency case reveals that the Indian child involved suffers from child abuse or neglect, a separate child protective proceeding may be initiated, which would be subject to the Indian Child Welfare Act.

The amendment of MCR 3.905(C)(1) states that a court shall consider guidelines established by the Bureau of Indian Affairs (BIA) in determining whether good cause not to transfer exists (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg No 228, 67590-67592, C.2-C.4. [November 26, 1979]). Some examples of good cause are that the Indian tribe does not have a tribal court or that the Indian child is over 12 years old and objects to the transfer. For additional examples of good cause and relevant case law, see the BIA guidelines cited above and A Practical Guide to the Indian Child Welfare Act. (Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act [Boulder, CO: Native American Rights Fund, 2007], 7.15 and 7.16, p 60.)

MI Rules MCR 3.002, MI R SPEC P MCR 3.002

         Current with amendments received through January 1, 2011.            

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map