MI Rules MCR 3.905
Michigan Court Rules of 1985
Chapter 3. Special Proceedings and Actions
Subchapter 3.900. Proceedings Involving Juveniles (Refs & Annos)

RULE 3.905 INDIAN CHILDREN; JURISDICTION, NOTICE, TRANSFER, INTERVENTION

(A) If an Indian child is the subject of a protective proceeding or is charged with a status offense in violation of MCL 712A.2(a)(2)-(4) or (d), and if an Indian tribe has exclusive jurisdiction as defined in MCR 3.002(2), and the matter is not before the state court as a result of emergency removal pursuant to 25 USC 1922, the matter shall be dismissed.

(B) If an Indian child is the subject of a protective proceeding or is charged with a status offense in violation of MCL 712A.2(a)(2)-(4) or (d), and if an Indian tribe has exclusive jurisdiction as defined in MCR 3.002(2), and the matter is before the state court as a result of emergency removal pursuant to 25 USC 1922, and either the tribe notifies the state court that it is exercising its jurisdiction, or the emergency no longer exists, then the state court shall dismiss the matter.

(C) If an Indian child is the subject of a protective proceeding or is charged with a status offense in violation of MCL 712A.2(a)(2)-(4) or (d) and an Indian tribe does not have exclusive jurisdiction as defined in MCR 3. 002(2), the court shall ensure that the petitioner has given notice of the proceedings to the persons described in MCR 3.921 in accordance with MCR 3.920(C).

(1) If either parent or the Indian custodian or the Indian child's tribe petitions the court to transfer the proceeding to the tribal court, the court shall transfer the case to the tribal court unless either parent objects to the transfer of the case to tribal court jurisdiction or the court finds good cause not to transfer. In determining whether good cause not to transfer exists, the court shall consider the Bureau of Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg No 228, 67590-67592, C.2- C.4. (November 26, 1979). A perceived inadequacy of the tribal court or tribal services does not constitute good cause to refuse to transfer the case.

(2) The court shall not dismiss the matter until the transfer has been accepted by the tribal court.

(3) If the tribal court declines transfer, the Act applies to the continued proceeding in state court, as do the provisions of these rules that pertain to an Indian child. See 25 USC 1902, 1911(b).

(4) A petition to transfer may be made at any time in accordance with 25 USC 1911(b).

(D) The Indian custodian of the child and the Indian child's tribe have a right to intervene at any point in the proceeding pursuant to 25 USC 1911(c).

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.)

The staff comment is not an authoritative construction by the Court.

MI Rules MCR 3.905, MI R SPEC P MCR 3.905

         Current with amendments received through January 1, 2011.            

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