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)