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Speaker Law

Definition of “Removed” Controls Use of MIFPA Protections

Posted on Monday, May 7, 2018

In the case of In re Detmer/Beaudry, Minor, No.336348, the two minor children, AB and KD, and their mother are members of the Sault Ste. Marie Tribe of Chippewa Indians (the Tribe) and thus, when AB was “removed” from his mother, the special protections of the Michigan Indian Family Preservation Act (MIFPA) applied. Because the trial court didn’t comply with those protections, the Michigan Court of Appeals (MCOA) vacated the court’s order and remanded for further proceedings. 

FACTS: In September 2016, the Department of Health and Human Services (DHHS) petitioned the trial court to remove the minor children from their mother’s care due to the mother’s extensive history with Children’s Protective Services. At the preliminary hearing, KD was voluntarily placed with her father, but AB remained in the mother’s care. In November 2016, the trial court ordered that AB be placed with the father due to concern for his safety with the mother. The court declined to make any findings as to active efforts or risk of harm to AB since he was not “out of the home of a parent.”

The mother appealed arguing that the placement of AB and KD violated the protections of MIFPA. When the matter came before the MCOA, the case below had been settled and the children returned to their mother. All parties agreed that the case was moot but asked the court to address the merits of the appeal because the case involved an issue of public significance that is likely to recur, yet evade appellate review. (In re Midland Publishing Co, Inc., 420 Mich 148, 152 n 2; 362 NW2d 580 (1984).

The Case is Moot but the Exception Against Deciding Moot Cases Applies:

  1. The question on appeal - whether a Native American child has been “removed” from a parent - has paramount public significance.
  2. The issue is likely to recur. One of the problems identified by Congress and our Legislature prior to enactment of the federal Indian Child Welfare Act and Michigan’s MIFPA was that Native American children were being removed from their families and tribes at alarmingly high rates.
  3. Due to the nature of these cases, often resolved before the MCOA can hear and review the issues, they evade appellate review.

When is child “removed” from a parent calling for the procedural protections of MIFPA to apply?

 Relying on language in MCL 712B.15(2), the mother argues that the trial court erred when it purportedly “removed” AB and KD without first making any findings as to active efforts or risk-of-harm. DHHS responds that the trial court did not “remove” either child and, accordingly, the provisions of MCL 712B.15(2) do not apply. Thus, to resolve this matter, we need to construe the meaning of “removed” under MIFPA.

The statute doesn’t define “removed.” After a review of other statutes, case law and Black’s Law dictionary the court wrote, “Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the

Based on this understanding, the MCOA stated, “it becomes clear that the trial court erred with respect to AB. Over mother’s objection, the trial court ordered that AB be physically placed with his father. AB had previously resided with his mother and spent every other weekend with his father. The trial court’s order moved AB’s residence to his father’s home and conditioned mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.

Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.”

The trial court didn’t err with regard to KD since the placement was voluntary and not intended to be permanent. This is not “removal” but simply a mother making decisions regarding her child.

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