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