2023 WL 6151159
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Supreme Court of Michigan.

IN RE AAS, AAR1, AAR2, and AFR, Minors.

SC: 165651
COA: 362906
September 20, 2023

Clinton CC Family Division: 21-030254-NA


By order of July 14, 2023, petitioner, the Department of Health and Human Services, was directed to answer the respondent’s application for leave to appeal the March 30, 2023 judgment of the Court of Appeals. On order of the Court, an answer having been received from the Department of Health and Human Services as well as from the children’s lawyer-guardian ad litem, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, while retaining jurisdiction, we REMAND this case to the Clinton Circuit Court Family Division.

Pursuant to the Indian Child Welfare Act (ICWA), 25 USC 1901 et seq., if there are sufficient indicia that a child is an “Indian child,” a circuit court may not terminate a respondent’s parental rights without first providing notice to the child’s potential Indian tribe. See generally In re Morris, 491 Mich. 81, 815 N.W.2d 62 (2012). All of the parties agree that sufficient indicia of Indian heritage were presented to the trial court, triggering the ICWA notice requirement. This issue was raised for the first time in this Court, and this Court has received information pertaining to the children’s eligibility for tribal membership.

This Court is not the appropriate forum for fact-finding. Accordingly, we remand this case to the Clinton Circuit Court Family Division for review of the information received by this Court and to conduct any proceedings necessary to ascertain the children’s tribal membership and the adequacy of the tribal notices. We note that this Court has explained that where “no Indian child is involved, ... any notice violation is harmless.” Id. at 120-121, 815 N.W.2d 62. Following the proceedings on remand, the circuit judge shall issue a written opinion setting forth findings of fact and conclusions of law, which shall be forwarded to the Clerk of this Court within 60 days of the date of this order.

We retain jurisdiction.

All Citations
--- N.W.2d ----, 2023 WL 6151159 (Mem)