| Mi. R. Spec. P. MCR 3.980
Michigan Compiled Laws
Michigan Court Rules of 1985
Chapter 3. Special Proceedings and Actions
Subchapter 3.900. Proceedings Involving Juveniles
Rule 3.980 American Indian Children
(A) Notice;
Transfer. If
any Indian child as defined by the Indian Child Welfare Act, 25 USC 1901
et seq.,
is the subject of a protective proceeding or is charged with an offense
in violation of MCL 712A.2(a)(2)-(4) or (d), the following procedures
shall be used:
(1)
If the Indian child resides on a reservation or is under tribal court
jurisdiction at the time of referral, the matter shall be transferred
to the tribal court having jurisdiction.
(2)
If the child does not reside on a reservation, the court shall ensure
that the
petitioner has given notice of the proceedings to the child's tribe and
the child's parents or Indian custodian and, if the tribe is unknown,
to the Secretary of the Interior.
(3)
If the tribe exercises its right to appear in the proceeding and requests
that the proceeding be transferred to 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. A perceived inadequacy of the tribal court or tribal
services does not constitute good cause to refuse to transfer the case.
(B)
Emergency Removal.
(1)
An Indian child who resides or is domiciled on a reservation, but is temporarily
located off the reservation, must not be removed from a parent or Indian
custodian unless the removal is to prevent imminent physical harm to the
child.
(2)
An Indian child not residing or domiciled on a reservation may be temporarily
removed if reasonable efforts have been made to prevent removal of the
child, and continued placement with the parent or Indian custodian would
be contrary to the welfare of the child.
(C)
Removal Hearing.
(1)
After Emergency
Removal. If
an Indian child is removed under subrule (B)(1) or (2), a removal hearing
must be completed within 28 days of removal from the parent or Indian
custodian.
(2)
Non-Emergency
Removal. Except
in cases of emergency removal under subrules (B)(1) or (2), a removal
hearing must be completed before an Indian child may be removed from the
parent or Indian custodian.
(3)
Evidence.
An Indian child must not be removed from a parent or Indian custodian,
or, for an Indian child removed under subrules (B)(1) or (2), remain removed
from a parent or Indian custodian pending further proceedings, without
clear and convincing evidence, including the testimony of at least one
expert witness who has knowledge about the child-rearing practices of
the Indian child's tribe, that services designed to prevent the break
up of the Indian family have been furnished to the family and that continued
custody of the child by the parent or Indian custodian is likely to result
in serious emotional or physical injury to the child.
(4)
A removal hearing may be combined with any other hearing.
(5)
The Indian child, if removed from home, must be placed, in descending
order of preference, with:
(a)
a member of the child's extended family,
(b)
a foster home licensed, approved, or specified by the child's tribe,
(c)
an Indian foster family licensed or approved by a non-Indian licensing
authority,
(d)
an institution for children approved by an Indian tribe or operated by
an Indian organization that has a program suitable to meet the child's
needs.
The court may order another
placement for good cause shown.
(D)
Termination of Parental Rights.
In addition to the required findings under MCR 3.977, the parental rights
of a parent of an Indian child must not be terminated unless there is
also evidence beyond a reasonable doubt, including testimony of qualified
expert witnesses, that parental rights should be terminated because continued
custody of the child by the parent or Indian custodian will likely result
in serious emotional or physical damage to the child.
CREDIT(S)
[Adopted February 4, 2003,
effective May 1, 2003, 467 Mich; amended April 30, 2003,
effective May 1, 2003, 467 Mich.]
COMMENTS
2003 Main Volume
Note
MCR 3.980 corresponds
to former Rule 5.980.
In subrule (B), regarding
temporary removal of an Indian child not residing or domiciled on a reservation,
a requirement is added that reasonable efforts must have been made to
prevent removal.
Subrule (C) (1)(b) requires
that the evidence at a removal hearing include testimony from expert witnesses
who have knowledge about the child-rearing practices of the tribe.
Subrule (D) is modified
to require not only that the standard for removal mandated
by federal law be met, but also that the state standards for termination
of parental rights under MCR 5.977 be satisfied.
Staff Comment to 2003
Amendment
The April 30, 2003, order
makes corrections to a number of the rules governing proceedings regarding
juveniles that had been adopted on February 4, 2003. The changes are effective
May 1, corresponding to the effective date of the February 4 amendments.
In addition to these changes, a number of corrections of punctuation and
capitalization and changes in the Notes that accompanied the rules have
been made and will appear in the published version of the rules.
The amendments of MCR
3.903(D)(8)(m), 6.903(H)(16), 6.931(E)(3), and 6.933(C)(1) conform the
rules to 2002 PA 665, which changed the amounts of controlled substances
required for certain violations. See MCL 333.7401(2)(a)(i), 333.7403(2)(a)(i).
MCR 3.933(C)(1) is also modified in light of People
v Valentin,
457 Mich 1 (1998).
The amendment of MCR 3.935(B)(1)
corrects the inadvertent omission of references to guardians and legal
custodians.
The
amendments of MCR 3.922(E)(1)(c), 3.943(A), 3.945(A)(1), 3.965(E)(1),
and 3.972(C)(2)(c) correct minor errors in wording.
The amendment of MCR 3.977(G)
deletes the word "hearing" in the reference to progress reviews.
Under MCR 3.974(A)(1), progress reviews do not require hearings.
The amendment of MCR 3.980(B)
and (C) revise the provisions on removal of American Indian children from
the home to clarify the distinction between emergency removals and removals
after hearing.
The amendments of MCR
3.982(A), 6.903(I)-(L) and 6.937(A) correct cross-reference, citation
and numbering errors.
CROSS
REFERENCES
Preliminary hearing, see
MCR 3.935, 3.965.
Termination of parental
rights, see MCR 3.977.
MCR 3.980, MI R SPEC P
MCR 3.980
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