October 22, 2019

October 22, 2019

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October 21, 2019

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Michigan Court of Appeals Reverses Termination of Parental Rights; Cites Indian Child Welfare Act Standard

In any child custody proceeding involving Indian children, all parties should understand there are significant legal and procedural requirements that must be met before parental rights to Indian children may be terminated. The federal government and the State of Michigan show concern over potential separation of Indian children from their families and tribes through the Indian Child Welfare Act (ICWA) and the Michigan Indian Family Preservation Act (MIFPA), which require a heightened evidentiary standard. This heightened evidentiary standard is supplemented by additional procedural requirements contained in the Michigan Court Rules.

An example of "heightened evidentiary standard" may be found in a recent opinion of the Michigan Court of Appeals*. This case involved a petition in Calhoun County to terminate parental rights to four children, two of whom were enrolled members of an Indian tribe. A representative of the children's Indian tribe testified at the termination hearing, but was never qualified as an expert witness and, importantly, did not testify that the mother's "continued custody" of the minor children was "likely to result in serious emotional or physical damage to the" minor children as required by ICWA. Testimony on both of these points is part of the heightened "beyond a reasonable doubt" evidentiary standard of proof required at a termination hearing under ICWA. As a result, the Court of Appeals found that the trial court erred by applying the incorrect evidentiary standard of proof and reversed the termination of the parents' rights to the Indian children. The case was sent back to Calhoun County to hold additional proceedings that satisfied the ICWA standards.


*In re Payne, et. al. (a combined case, COA Docket Nos. 318105 and 318163) 

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About this Author

Mark E Hills, Litigation lawyer, Varnum
Partner

Mark is a member of the firm's Litigation Practice Team, and chair of the Family Law Team, with more than 20 years' experience in federal and state court jury and non-jury trials, international, federal and state-level arbitrations, and facilitative mediations. Mark was invited to join the Litigation Counsel of America Society in 2011, an honor extended to less than one percent of all attorneys in America.

Mark is a knowledgeable and effective trial attorney for national, state and community banks, private equity holders, and receivers throughout Michigan, and has...

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