Bill Text: MI SB0503 | 2015-2016 | 98th Legislature | Engrossed
Bill Title: Children; adoption; Michigan Indian family preservation act (MIFPA); modify. Amends secs. 3, 7, 13, 15 & 25, ch. XIIB of 1939 PA 288 (MCL 712B.3 et seq.).
Spectrum: Partisan Bill (Republican 4-0)
Status: (Passed) 2016-03-02 - Assigned Pa 0026'16 With Immediate Effect [SB0503 Detail]
Download: Michigan-2015-SB0503-Engrossed.html
SB-0503, As Passed House, February 10, 2016
SENATE BILL No. 503
September 24, 2015, Introduced by Senators EMMONS, CASPERSON, JONES and PAVLOV and referred to the Committee on Families, Seniors and Human Services.
A bill to amend 1939 PA 288, entitled
"Probate code of 1939,"
by amending sections 3, 7, 13, 15, and 25 of chapter XIIB (MCL
712B.3, 712B.7, 712B.13, 712B.15, and 712B.25), as added by 2012 PA
565.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
CHAPTER XIIB
Sec. 3. As used in this chapter:
(a) "Active efforts" means actions to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the Indian family and to reunify the Indian child with
the Indian family. Active efforts require more than a referral to a
service without actively engaging the Indian child and family.
Active efforts include reasonable efforts as required by title IV-E
of the social security act, 42 USC 670 to 679c, and also include,
but are not limited to, doing or addressing all of the following:
(i) Engaging the Indian child, child's parents, tribe,
extended family members, and individual Indian caregivers through
the utilization of culturally appropriate services and in
collaboration with the parent or child's Indian tribes and Indian
social services agencies.
(ii) Identifying appropriate services and helping the parents
to overcome barriers to compliance with those services.
(iii) Conducting or causing to be conducted a diligent search
for extended family members for placement.
(iv) Requesting representatives designated by the Indian
child's tribe with substantial knowledge of the prevailing social
and cultural standards and child rearing practice within the tribal
community to evaluate the circumstances of the Indian child's
family and to assist in developing a case plan that uses the
resources of the Indian tribe and Indian community, including
traditional and customary support, actions, and services, to
address those circumstances.
(v) Completing a comprehensive assessment of the situation of
the Indian child's family, including a determination of the
likelihood of protecting the Indian child's health, safety, and
welfare effectively in the Indian child's home.
(vi) Identifying, notifying, and inviting representatives of
the Indian child's tribe to participate in all aspects of the
Indian child custody proceeding at the earliest possible point in
the proceeding and actively soliciting the tribe's advice
throughout the proceeding.
(vii) Notifying and consulting with extended family members of
the Indian child, including extended family members who were
identified by the Indian child's tribe or parents, to identify and
to provide family structure and support for the Indian child, to
assure cultural connections, and to serve as placement resources
for the Indian child.
(viii) Making arrangements to provide natural and family
interaction in the most natural setting that can ensure the Indian
child's safety, as appropriate to the goals of the Indian child's
permanency plan, including, when requested by the tribe,
arrangements for transportation and other assistance to enable
family members to participate in that interaction.
(ix) Offering and employing all available family preservation
strategies and requesting the involvement of the Indian child's
tribe to identify those strategies and to ensure that those
strategies are culturally appropriate to the Indian child's tribe.
(x) Identifying community resources offering housing,
financial, and transportation assistance and in-home support
services, in-home intensive treatment services, community support
services, and specialized services for members of the Indian
child's family with special needs, and providing information about
those resources to the Indian child's family, and actively
assisting the Indian child's family or offering active assistance
in accessing those resources.
(xi) Monitoring client progress and client participation in
services.
(xii) Providing a consideration of alternative ways of
addressing the needs of the Indian child's family, if services do
not exist or if existing services are not available to the family.
(b) "Child custody proceeding" includes, but is not limited
to, 1 or more of the following:
(i) Foster care placement. Any action removing an Indian child
from his or her parent or Indian custodian, and where the parent or
Indian custodian cannot have the Indian child returned upon demand
but parental rights have not been terminated, for temporary
placement in, and not limited to, 1 or more of the following:
(A) Foster home or institution.
(B) The home of a guardian or limited guardian under part 2 of
article V of the estates and protected individuals code, 1998 PA
386, MCL 700.5201 to 700.5219.
(C) A juvenile guardianship under chapter XIIA.
(ii) Termination of parental rights. Any action resulting in
the termination of the parent-child relationship.
(iii) Preadoptive placement. Temporary placement of an Indian
child in a foster home or institution after the termination of
parental rights, but before or in lieu of adoptive placement.
(iv) Adoptive placement. Permanent placement of an Indian
child for adoption, including an action resulting in a final decree
of adoption.
(v) An Indian child is charged with a status offense in
violation of section 2(a)(2) to (4) or (d) of chapter XIIA.
(vi) Child custody proceeding does not include a placement
based on an act that, if committed by an adult, would be a crime or
based on an award, in a divorce proceeding, of custody to 1 of the
parents.
(c) "Court" means the family division of circuit court or the
probate court.
(d) "Culturally appropriate services" means services that
enhance an Indian child's and family's relationship to,
identification, and connection with the Indian child's tribe.
Culturally appropriate services should provide the opportunity to
practice the teachings, beliefs, customs, and ceremonies of the
Indian child's tribe so those may be incorporated into the Indian
child's daily life, as well as services that address the issues
that have brought the Indian child and family to the attention of
the department that are consistent with the tribe's beliefs about
child rearing, child development, and family wellness. Culturally
appropriate services may involve tribal representatives, extended
family members, tribal elders, spiritual and cultural advisors,
tribal social services, individual Indian caregivers, medicine men
or women, and natural healers. If the Indian child's tribe
establishes a different definition of culturally appropriate
services, the court shall follow the tribe's definition.
(e) "Department" means the department of health and human
services
or any a successor department or agency.
(f) "Extended family members" means that term as defined by
the law or custom of the Indian child's tribe or, in the absence of
that law or custom, means a person who has reached the age of 18
and who is the Indian child's grandparent, aunt or uncle, brother
or sister, brother-in-law or sister-in-law, niece or nephew, first
or second cousin, or stepparent and includes the term "relative" as
that term is defined in section 13a(j) of chapter XIIA.
(g) "Foster home or institution" means a child caring
institution as that term is defined in section 1 of 1973 PA 116,
MCL 722.111.
(h) "Guardian" means a person who has qualified as a guardian
of a minor under a parental or spousal nomination or a court order
issued under section 19a or 19c of chapter XIIA, section 5204 or
5205 of the estates and protected individuals code, 1998 PA 386,
MCL 700.5204 and 700.5205, or sections 600 to 644 of the mental
health code, 1974 PA 258, MCL 330.1600 to 330.1644. Guardian may
also include a person appointed by a tribal court under tribal code
or custom. Guardian does not include a guardian ad litem.
(i) "Guardian ad litem" means an individual whom the court
appoints to assist the court in determining the child's best
interests. A guardian ad litem does not need to be an attorney.
(j) "Indian" means any member of any Indian tribe, band,
nation, or other organized group or community of Indians recognized
as eligible for the services provided to Indians by the secretary
because of their status as Indians, including any Alaska native
village as defined in section 1602(c) of the Alaska native claims
settlement act, 43 USC 1602.
(k) "Indian child" means an unmarried person who is under the
age of 18 and is either of the following:
(i) A member of an Indian tribe.
(ii) Eligible for membership in an Indian tribe as determined
by that Indian tribe.
(l) "Indian child's tribe" means the Indian tribe in which an
Indian child is a member or eligible for membership. In the case of
an Indian child who is a member of or eligible for membership in
more than 1 tribe, the Indian child's tribe is the tribe with which
the Indian child has the most significant contacts.
(m) "Indian child welfare act" means the Indian child welfare
act of 1978, 25 USC 1901 to 1963.
(n) "Indian custodian" means any Indian person who has custody
of an Indian child under tribal law or custom or under state law or
to whom temporary physical care, custody, and control have been
transferred by the Indian child's parent.
(o) "Indian tribe" or "tribe" means any Indian tribe, band,
nation, or other organized group or community of Indians recognized
as eligible for the services provided to Indians by the secretary
because of their status as Indians, including any Alaska native
village as defined in section 1602(c) of the Alaska native claims
settlement act, 43 USC 1602.
(p) "Indian organization" means any group, association,
partnership, corporation, or other legal entity owned or controlled
by Indians, or a majority of whose members are Indians.
(q) "Lawyer-guardian ad litem" means an attorney appointed
under section 21 of this chapter. A lawyer-guardian ad litem
represents the child, and has the powers and duties, as set forth
in section 17d of chapter XIIA. The provisions of section 17d of
chapter XIIA also apply to a lawyer-guardian ad litem appointed for
the purposes of this chapter under each of the following:
(i) Section 5213 or 5219 of the estates and protected
individuals code, 1998 PA 386, MCL 700.5213 and 700.5219.
(ii) Section 4 of the child custody act of 1970, 1970 PA 91,
MCL 722.24.
(iii) Section 10 of the child protection law, 1975 PA 238, MCL
722.630.
(r) "Official tribal representative" means an individual who
is designated by the Indian child's tribe to represent the tribe in
a court overseeing a child custody proceeding. An official tribal
representative does not need to be an attorney.
(s) "Parent" means any biological parent or parents of an
Indian child or any person who has lawfully adopted an Indian
child, including adoptions under tribal law or custom. Parent does
not include the putative father if paternity has not been
acknowledged or established.
(t) "Reservation" means Indian country as defined in 18 USC
1151 and any lands, not covered under that section, title to which
is either held by the United States in trust for the benefit of any
Indian tribe or individual or held by any Indian tribe or
individual subject to a restriction by the United States against
alienation.
(u)
"Secretary" means the secretary Secretary of the
interior.Interior.
(v) "Tribal court" means a court with jurisdiction over child
custody proceedings that is either a court of Indian offenses, a
court established and operated under the code or custom of an
Indian tribe, or any other administrative body of a tribe that is
vested with authority over child custody proceedings.
(w) "Ward of tribal court" means a child over whom an Indian
tribe exercises authority by official action in tribal court or by
the governing body of the tribe.
Sec. 7. (1) An Indian tribe has exclusive jurisdiction over
any child custody proceeding involving an Indian child who resides
or is domiciled within the reservation of that tribe. If a child is
a ward of a tribal court, the Indian tribe retains exclusive
jurisdiction, regardless of the residence or domicile, or
subsequent change in his or her residence or domicile.
(2) The state court may exercise limited emergency
jurisdiction if an Indian child who resides or is domiciled within
the reservation is temporarily off the reservation and the state
has removed the Indian child in an emergency situation to prevent
imminent physical damage or harm to the Indian child. The court
must comply with the emergency removal hearing requirements
outlined in Michigan court rules and sections 13a, 14, and 14a of
chapter XIIA. The emergency jurisdiction terminates when the
removal or placement is no longer necessary to prevent imminent
physical damage or harm to the Indian child.
(3) In any state court child custody proceeding, for an Indian
child not domiciled or residing within the reservation of the
Indian child's tribe, the court, in the absence of good cause to
the contrary, shall transfer the proceeding to the Indian tribe's
jurisdiction, absent objection by either parent, upon the petition
of either parent or the Indian custodian or the Indian child's
tribe, provided that the transfer is subject to declination by the
tribal court of the Indian tribe.
(4) When a court makes a good cause determination under this
section, adequacy of the tribe, tribal court, or tribal social
services shall not be considered.
(5) A court may determine that good cause not to transfer a
case to tribal court exists only if the person opposing the
transfer shows by clear and convincing evidence that either of the
following applies:
(a) The Indian tribe does not have a tribal court.
(b) The requirement of the parties or witnesses to present
evidence in tribal court would cause undue hardship to those
parties or witnesses that the Indian tribe is unable to mitigate.
(6)
In any state court child custody proceeding , of an
Indian
child,
the Indian custodian of the child , and the Indian child's
tribe have a right to intervene at any point in the child custody
proceeding.
(7) Official tribal representatives have the right to
participate in any proceeding that is subject to the Indian child
welfare act and this chapter.
(8) This state shall give full faith and credit to the public
acts, records, and judicial proceedings of any Indian tribe
applicable to Indian child custody proceedings to the same extent
given to the public acts, records, and judicial proceedings of any
other entity.
Sec. 13. (1) If both parents or Indian custodian voluntarily
consent to a petition for guardianship under section 5204 or 5205
of the estates and protected individuals code, 1998 PA 386, MCL
700.5204 and 700.5205, or if a parent consents to adoptive
placement or the termination of his or her parental rights for the
express
purpose of adoption by executing a release under section
sections
28 and 29 of chapter X, or
consent under section sections
43 and 44 of chapter X, the following requirements must be met:
(a) To be valid, consent under this section must be executed
on a form approved by the state court administrative office, in
writing, recorded before a judge of a court of competent
jurisdiction, and accompanied by the presiding judge's certificate
that the terms and consequences of the consent were fully explained
in detail and were fully understood by the parent or Indian
custodian. The court shall also certify that either the parent or
Indian custodian fully understood the explanation in English or
that it was interpreted into a language that the parent or Indian
custodian understood. Any consent given before, or within 10 days
after, birth of the Indian child is not valid.
(b) Notice of the pending proceeding must be given as
prescribed by Michigan supreme court rule, the Indian child welfare
act, and section 9 of this chapter.
(c) The voluntary custody proceeding shall be conducted in
accordance with Michigan supreme court rules and the following
statutes:
(i) In a guardianship proceeding under section 5204 or 5205 of
the estates and protected individuals code, 1998 PA 386, MCL
700.5204 and 700.5205, section 25 of this chapter also applies.
(ii) In an adoption proceeding, section 27 of this chapter
also applies.
(2) Consent described under subsection (1) must contain the
following information:
(a) The Indian child's name and date of birth.
(b) The name of the Indian child's tribe and any identifying
number or other indication of the child's membership in the tribe,
if any.
(c) The name and address of the consenting parent or Indian
custodian.
(d) A sworn statement from the translator, if any, attesting
to the accuracy of the translation.
(e) The signature of the consenting parent, parents, or Indian
custodian recorded before the judge, verifying an oath of
understanding of the significance of the voluntary placement and
the
parent's right to petition file
a written demand to terminate
the voluntary placement or consent at any time.
(f) For consent for voluntary placement of the Indian child in
foster care, the name and address of the person or entity who will
arrange the foster care placement as well as the name and address
of the prospective foster care parents if known at the time.
(g) For consent to termination of parental rights or adoption
of an Indian child, in addition to the information in subdivisions
(a) to (f), the name and address of the person or entity that will
arrange the preadoptive or adoptive placement.
(3) If the placement is for purposes of adoption, a consent
under
subsection (1) of the Indian child's parent or Indian
custodian
must be executed in conjunction
with either a consent to
adopt,
as required by section sections
43 and 44 of chapter X, or a
release,
as required by section sections
28 and 29 of chapter X. A
parent
or Indian custodian who executes a consent under this
section may withdraw his or her consent at any time before entry of
a final order of adoption by filing a written demand requesting the
return of the Indian child. Once a demand is filed with the court,
the court shall order the return of the Indian child. Withdrawal of
consent under this section constitutes a withdrawal of a release
executed
under section sections 28 and
29 of chapter X or a consent
to
adopt executed under section sections
43 and 44 of chapter X.
(4) A parent or Indian custodian who executes a consent under
this section for the purpose of guardianship may withdraw his or
her consent at any time by sending written notice to the court
substantially in compliance on a form approved by the state court
administrative office that the parent or Indian custodian revokes
consent and wants his or her Indian child returned.
(5)
A release executed under section sections 28 and 29 of
chapter X during a pendency of a proceeding under section 2(b) of
chapter XIIA is subject to section 15 of this chapter. If the
release follows the initiation of a proceeding under section 2(b)
of chapter XIIA, the court shall make a finding that culturally
appropriate services were offered.
(6)
A parent who executes a consent to adoption under section
sections 43 and 44 of chapter X may withdraw that consent at any
time before entry of a final order for adoption by filing
notification of the withdrawal of consent with the court. In a
direct placement, as defined in section 22(o) of chapter X, a
consent by a parent or guardian shall be accompanied by a verified
statement signed by the parent or guardian that contains all of the
following:
(a) That the parent or guardian has received a list of
community and federal resource supports and a copy of the written
document described in section 6(1)(c) of the foster care and
adoption services act, 1994 PA 204, MCL 722.956.
(b) As required by sections 29 and 44 of chapter X, that the
parent or guardian has received counseling related to the adoption
of his or her Indian child or waives the counseling with the
signing of the verified statement.
(c) That the parent or guardian has not received or been
promised any money or anything of value for the consent to adoption
of the Indian child, except for lawful payments that are itemized
on a schedule filed with the consent.
(d) That the validity and finality of the consent are not
affected by any collateral or separate agreement between the parent
or guardian and the adoptive parent.
(e) That the parent or guardian understands that it serves the
welfare of the Indian child for the parent to keep the child
placing agency, court, or department informed of any health
problems that the parent develops that could affect the Indian
child.
(f) That the parent or guardian understands that it serves the
welfare of the Indian child for the parent or guardian to keep his
or her address current with the child placing agency, court, or
department in order to permit a response to any inquiry concerning
medical or social history from an adoptive parent of a minor
adoptee or from an adoptee who is 18 years or older.
Sec. 15. (1) If an Indian child is the subject of a child
protective proceeding under section 2(b) of chapter XIIA, including
instances
in which the parent or Indian custodian executed a
release under section 28 of chapter X during the pendency of that
proceeding, or a guardianship proceeding under section 5204 or 5205
of the estates and protected individuals code, 1998 PA 386, MCL
700.5204 and 700.5205, and if a parent does not provide consent as
described in section 13 of this chapter, or a guardianship
proceeding under section 19a or 19c of chapter XIIA, the following
requirements must be met:
(a) Notice of the pending proceeding must be given as
prescribed by Michigan supreme court rule, the Indian child welfare
act, and section 9 of this chapter.
(b) The proceeding shall be conducted in accordance with
Michigan supreme court rules and subsections (2) to (4).
(c) Section 25 of this chapter applies in a guardianship
proceeding under section 5204 or 5205 of the estates and protected
individuals code, 1998 PA 386, MCL 700.5204 and 700.5205.
(2) An Indian child may be removed from a parent or Indian
custodian, placed into a foster care placement, or, for an Indian
child already taken into protective custody, remain removed from a
parent or Indian custodian pending further proceedings, only upon
clear
and convincing evidence , that includes testimony of at least
1
expert witness who has knowledge of child rearing practices of
the
Indian child's tribe, that active
efforts have been made to
provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family, that the active efforts
were unsuccessful, and that the continued custody of the Indian
child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the Indian child. The
active efforts must take into account the prevailing social and
cultural conditions and way of life of the Indian child's tribe.
The evidence must include the testimony of at least 1 qualified
expert witness, who has knowledge of the child rearing practices of
the Indian child's tribe, that the continued custody of the Indian
child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the Indian child.
(3) A party seeking a termination of parental rights to an
Indian child under state law must demonstrate to the court's
satisfaction that active efforts have been made to provide remedial
services and rehabilitative programs designed to prevent the
breakup of the Indian family and that the active efforts were
unsuccessful.
(4) No termination of parental rights may be ordered in a
proceeding described in this section without a determination,
supported by evidence beyond a reasonable doubt, including
testimony of at least 1 qualified expert witness as described in
section 17, that the continued custody of the Indian child by the
parent or Indian custodian is likely to result in serious emotional
or physical damage to the Indian child.
(5) Any Indian child who is the subject of any action for
termination of parental rights under state law, any parent or
Indian custodian from whose custody the Indian child was removed,
and the Indian child's tribe may petition any court of competent
jurisdiction to invalidate the action upon a showing that the
action violated any provision of this section.
Sec. 25. (1) If a petition for a guardianship is filed and is
determined to be involuntary under section 15 of this chapter and
the court knows or has reason to know that the child is an Indian
child, the court may order the department or a court employee to
conduct an investigation of the proposed guardianship and file a
written report of the investigation. In addition to the information
required in section 5204 of the estates and protected individuals
code, 1998 PA 386, MCL 700.5204, the report must include, but is
not limited to, the following information:
(a) Whether the child is or is not an Indian child.
(b) The identity and location of the Indian child's parents,
if known.
(c) If the child is an Indian child, the report must also
address all of the following:
(i) The tribe or tribes of which the Indian child is a member
or eligible for membership.
(ii) If the Indian child and family need culturally
appropriate and other services to preserve the Indian family.
(iii) The identity and location of extended family members and
if no extended family members can be found, what efforts were made
to locate them.
(2) Notice of the pending proceeding must be given as
prescribed by Michigan supreme court rule, the Indian child welfare
act, and section 9 of this chapter. If the court knows or has
reason to know that the proceeding involves an Indian child, the
court shall conduct a hearing to determine all of the following:
(a) If the tribe has exclusive jurisdiction. If so, the court
shall issue an order terminating the guardianship or dismissing the
petition.
(b) If the current placement with the guardian meets the
placement requirements in section 23 of this chapter.
(c) If it is in the Indian child's best interest to order the
guardianship.
(d) If a lawyer-guardian ad litem should be appointed to
represent the Indian child.
(3) If a petition for guardianship is filed and is to be
accompanied by a consent to a voluntary placement of an Indian
child, the consent must be executed in accordance with section 13
of this chapter. If the Indian child's parents do not execute a
consent under section 13 of this chapter, the petition is
considered to be for an involuntary guardianship and the
requirements of section 15 of this chapter must be met.
(4) A parent or Indian custodian who executes a consent under
this section for the purpose of voluntary guardianship may withdraw
his or her consent at any time by sending written notice to the
court substantially in compliance on a form approved by the state
court administrative office that the parent or Indian custodian
revokes consent and wants his or her Indian child returned.
(5) The voluntary guardianship is terminated when the court
receives from a parent or Indian custodian notice to withdraw
consent to the guardianship, and the Indian child shall be
immediately returned to the parent or Indian custodian.
(6) If the court discovers a child may be an Indian child
after a guardianship is ordered, the court shall provide notice of
the guardianship and the potential applicability of this chapter
and the Indian child welfare act, in compliance with Michigan court
rules, this chapter, and the Indian child welfare act, to the
tribe, the parents or Indian custodian, and the current guardian on
a form approved by the state court administrative office.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
