Michigan Court Of Appeals Orders Tribal Court Transfer

On March 19, 2015, the Michigan Court of Appeals held in a family case that the circuit court erred  when it refused to transfer adoption proceedings to the tribal court - the court with proper jurisdiction under Michigan's Indian Family Preservation Act (MIFPA).

In In re Spears, Minors, Docket No. 320584, the Michigan Court of Appeals addressed the issue of whether the circuit court or the tribal court was the proper forum for deciding issues surrounding the adoption of Indian children.  

The Court first recited the facts of the case.

This case began in 2010 when the Department of Human Services (DHS) petitioned the circuit court to take jurisdiction over the minors under MCL 712A.2 on the basis of alleged abuse and neglect. The court took jurisdiction over the minors in August 2010, and in September 2010, the minors’ mother requested that the court transfer the case to the tribal court. The circuit court notified the tribe of the proceedings in November 2010, but the tribe responded that the minors were not members or eligible for tribal membership. The DHS filed a supplemental petition in November 2011 seeking the termination of the parental rights of the minors’ mother.

In December 2011, the tribe filed a notice of intervention, stating that the minors were, in fact, enrolled members or eligible for membership. The tribe stated that this determination was made possible after adoption records regarding the minors’ mother were unsealed and provided to the tribe’s membership office. The minors were enrolled as members in February 2012. On February 13, 2012, the minors’ mother filed a motion to dismiss the supplemental petition for noncompliance with the Indian Child Welfare Act (ICWA), 25 USC 1902 et seq. The mother also moved to transfer the case to the tribal court, which the circuit court granted but the tribal court denied the transfer, stating in part, that it would not be in the best interests of the minors . . . .

The circuit court held a hearing on February 6, 2014 regarding the tribe’s motion to transfer. The court denied the request due to the advanced stage of the case, noting that the tribal court had already denied a transfer once on the basis that it was not in the best interests of the minors and that nothing had changed since then other than the adoption recommendation. The circuit court also concluded a transfer would not be in the best interests of the children.

The circuit court also addressed the “good cause” requirement of MCL 712B.7(5) to deny the tribe’s transfer request. The circuit court observed that the tribe did have a tribal court, MCL 712B.7(5)(a), but ruled that “undue hardship” of MCL 712B.7(5)(b) was not limited to the hardship imposed on witnesses to present evidence in the tribal court, explaining it found “clear and convincing evidence that hardship to the parties; to wit, the three children, would occur if this transfer were granted.” The court noted that the minors were undergoing stress and that they needed permanency. Additionally, the court found that the minors had been out of a parent’s home for nearly five years and should not be subjected to any more stress in that regard.

On February 7, 2014, the circuit court entered its order denying the tribe’s motion to transfer for the reasons stated on the record. The court also stayed all proceedings, including its order denying a transfer to tribal court, pending the exhaustion of appellate remedies.

The Court's analysis of whether the circuit court erred in denying the transfer request to the tribal court followed.

. . . [W]e address the issue presented in this case: May a circuit court find “good cause not to transfer a case to tribal court” under MCL 712B.7(5)(b) on the basis of “undue hardship” to an Indian child or children as a result of delay in the proceedings resulting from the transfer of a long-pending case to tribal court? Stated otherwise, does MCL 712B.7(5)(b) permit a circuit court to deny a request to transfer an Indian child custody proceeding to a tribal court based on the timeliness of the request or the effect the transfer may have on the child’s best interests? However meritorious these considerations may be, we conclude that the plain language of MCL 712B.7(5)(b) does not permit the circuit court to consider either the timeliness of the request or its possible effect on the child’s best interest in determining whether there exists “good cause not to transfer a case to tribal court . . . .”

MCL 712B.7(3) unambiguously provides that a court “shall” transfer proceedings to a tribal court unless either parent objects or there is “good cause to the contrary,” and MCL 712B.7(5) unambiguously provides that good cause not to transfer a case to tribal court exists “only if,” by clear and convincing evidence, one or two circumstances exist. And because there is no dispute that a tribal court exists, MCL 712B.7(5)(a), the sole issue is whether the circuit court properly concluded that “[t]he 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” under MCL 712B.7(5)(b) . . . .

By its plain language, good cause to not transfer an Indian child custody proceeding to a tribal court under MCL 712B.7(5)(b) has three components. First, there must be an undue hardship on the parties or witnesses that will be required to present evidence in the tribal court.2 See MCL 712B.7(5)(b) (stating “[t]he requirement of the parties or witnesses to present evidence in tribal court would cause undue hardship to those parties or witnesses”) (emphasis added). Second, the undue hardship must stem from the requirement to present evidence in the tribal court. See MCL 712B.7(5)(b) (mandating that “[t]he requirement of the parties or witnesses to present evidence would cause undue hardship”) (emphasis added). Third, the Indian tribe must be unable to mitigate the undue hardships caused by the requirement of the parties or witnesses present evidence in the tribal court. MCL 712B.7(5)(b).

In ruling that there was good cause not to transfer the proceedings to the tribal court, the circuit court ignored each of the criterion of MCL 712B.7(5)(b). First, the circuit court based its decision on an undue hardship to the minors without determining whether the minors had any requirement to present evidence in the tribal court. The circuit court also did not identify any other parties or witnesses that would be required to present evidence in the tribal court. And the circuit court failed to explain why the tribal court would be unable to mitigate the anticipated undue hardships. Moreover, the circuit court did not relate the anticipated undue hardship to the requirement to present evidence in the tribal court. Instead, the court ruled that it would give MCL 712B.7(5)(b) a “wider” interpretation, allowing it to consider the timeliness of the request and the minors’ bests interests. We have no doubt that the circuit court was motivated by its understanding of what would be in the minors’ best interests. Nevertheless, when the Legislature fails to address a concern in the statute with a specific provision, a court cannot insert a provision simply because it would have been wise for the Legislature to do so. Book-Gilbert, 302 Mich App at 542. However wise it may have been for the Legislature to provide that there is good cause not to transfer a case to a tribal court when the transfer request is made at an advanced stage of the proceeding or when a transfer would negatively affect a minor’s best interests, the Legislature chose to define “good cause” using different criteria than considered in the BIA guidelines. We must enforce the unambiguous language of MCL 712B.7(5)(b) as written. Book- Gilbert, 302 Mich App at 541; In re Kostin Estate, 278 Mich App at 57 . . . .