11.20Change in Placement of Indian Child
A.Change in Adoptive Indian Child’s Status
1.Notice of Adoptive Indian Child’s Status Change
“If an Indian child has been adopted, the court must notify, by registered or certified mail with return receipt requested, the child’s biological parent or prior Indian custodian and the Indian child’s Tribe whenever:
(1) A final decree of adoption of the Indian child has been vacated or set aside; or
(2) The adoptive parent has voluntarily consented to the termination of his or her parental rights to the child.” 25 CFR 23.139(a).
“The notice must state the current name, and any former name, of the Indian child, inform the recipient of the right to petition for return of custody of the child, and provide sufficient information to allow the recipient to participate in any scheduled hearings.” 25 CFR 23.139(b).
“A parent or Indian custodian may waive his or her right to such notice by executing a written waiver of notice and filing the waiver with the court.” 25 CFR 23.139(c). The court must:
(1) before accepting the waiver, “explain the consequences of the waiver and explain how the waiver may be revoked.” 25 CFR 23.139(c)(1).
(2) “certify that the terms and consequences of the waiver and how the waiver may be revoked were explained in detail in English (or the language of the parent or Indian custodian, if English is not the primary language), and were fully understood by the parent or Indian custodian.” 25 CFR 23.139(c)(2).
“Where confidentiality is requested or indicated, execution of the waiver need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with [25 CFR 23.139].” 25 CFR 23.139(c)(3).
“The biological parent or Indian custodian may revoke the waiver at any time by filing with the court a written notice of revocation.” 25 CFR 23.139(c)(4). “A revocation of the right to receive notice does not affect any child-custody proceeding that was completed before the filing of the notice of revocation.” 25 CFR 23.139(c)(5).
2.Petition for Return of Child
A biological parent or prior Indian custodian may petition for the return of custody of an Indian child under the following circumstances:
(1) The adoptive parents voluntarily consent to the termination of their parental rights to the child; or
(2) The final decree of adoption has been vacated or set aside. 25 USC 1916(a); MCL 712B.27(6). See Section 11.24 for information on invalidating an adoption, and Section 11.15(B)(3) for information on withdrawing consent to adoption.
25 USC 1916(a) requires the court to grant the petition “unless there is a showing, in a proceeding subject to the provisions of [25 USC 1912], that such return of custody is not in the best interests of the child.”1 The provisions of 25 USC 1912(a)-(f) include requirements governing the following:
(a) Notice of proceedings and time for preparation. See Section 11.8 for a detailed discussion of notice of proceedings.
(b) Appointment of counsel. See Section 11.11.
(c) The examination of reports or other documents. See Section 11.16(A)(1) and Section 11.16(B)(4).
(d) Remedial services, rehabilitative programs, and preventive measures. See Section 11.17.
(e) Foster care placement orders. For a detailed discussion of preferred placements of Indian children, see Section 11.19.
(f) Orders terminating parental rights. See Section 11.16(B).
B.Change in Foster Care Placement
When an Indian child is removed from foster care for the purpose of further foster care, preadoptive placement, or adoptive placement, the placement must be in accordance with the placement preferences and the provisions of ICWA, except when the Indian child is being returned to the parent or Indian custodian from whose custody the child was originally removed. 25 USC 1916(b).
MCL 712A.13b controls the procedure for changing foster care placements under the Juvenile Code. A foster care placement must not be changed until all the requirements of MCL 712A.13b(2) are met, unless one of the exceptions to those requirements in MCL 712A.13b(1) or MCL 712A.13b(7) applies. In addition to the placement change requirements for all children,2 the agency must meet the following additional requirements for Indian children:
•Notify the child’s tribe of the proposed placement change. MCL 712A.13b(2)(d).
•Include with the notice “[a] statement that the child is an Indian child,” and “[a] list of active efforts the agency took to place the child in compliance with [MCL 712B.23], including how the placement meets the standards provided in [MCL 712B.23(8)].” MCL 712A.13b(2)(d)(v).
Foster parents may appeal the proposed placement change within three days to a foster care review board (FCRB). MCL 712A.13b(2)(b).3 If a foster parent appeals the proposed change in placement, the FCRB must investigate the proposed change within seven days of the appeal and must report its findings and recommendations within three days after the investigation is completed. MCL 712A.13b(3). If the child involved is an Indian child, the FCRB must report its findings and recommendations to the child’s tribe. Id. When the child involved is an Indian child, the report must also include a statement of that fact and a list of active efforts taken by the agency to comply with placement considerations in MCL 712B.23. MCL 712A.13b(3)(a)-(b). An Indian child’s tribe must be invited to participate in the FCRB investigation following an appeal. MCL 712A.13b(4). When the child involved is an Indian child, the FCRB “must follow the best interests of the child standards and procedures identified in [MCL 712B.5].” MCL 712A.13b(4).
As noted, some exceptions apply to the requirements in MCL 712A.13b(2). See MCL 712A.13b(9). Proposed changes in an Indian child’s placement are not subject to the requirements of MCL 712A.13b when
•primary case management is provided by a contracted social services agency of a federally recognized tribal government, MCL 712A.13b(1)(b), or
•the Indian child’s foster care placement or proposed placement is within or is to the placement preferences listed in MCL 712B.23, MCL 712A.13b(1)(c)(v).
If an Indian child is placed in foster care and has not been removed from the FCRB’s consideration under MCL 712A.13b(1)(b) or MCL 712A.13b(1)(c)(v),
“the agency or MCI must not change the child’s placement or make a recommendation for placement change before notifying the Indian child’s tribe, and before a change in an Indian child’s foster care placement takes effect, the agency, or MCI, where applicable, must do all the following:
(a) Except as provided by [MCL 712A.13b(1)(c)(i), MCL 712A.13b(1)(c)(iii), or MCL 712A.13b(7)], the agency or MCI, where applicable, must notify an Indian child’s tribe at least 3 days before any proposed placement change of an Indian child. Notification under this subdivision may be given by ordinary mail and email to the designated Indian child welfare act agent with receipt 3 days before the beginning of the foster care review board investigation.
(b) At the time of or immediately following an Indian child’s removal under [MCL 712A.13b(7)], the agency or MCI must inform the Indian child’s tribe of the child’s placement.
(c) The agency, foster care review board, and MCI must comply with [MCL 712B.23] for any placement change, including a placement following a removal under [MCL 712A.13b(7)].” MCL 712A.13b(9).
1 See also MCL 712B.27(6), which contains substantially similar language.
2 See generally the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Section 8.10, for more information on the requirements for changing foster care placements.
3 See generally the Michigan Judicial Institute’s Child Protective Proceedings Benchbook, Section 8.11, for more information on foster care placement appeals.