Rule 3.967.Removal Hearing for Indian Child

MCR 3.967 adds a separate hearing to a child protective case whenever the child is an Indian child and removal is on the table. It is not a substitute for the preliminary hearing. It is an additional finding the court must make before an Indian child stays out of the home.

Two triggers, two timelines

Subrule (A) covers the child already in protective custody. When an Indian child has been taken into custody under MCR 3.963(A) or (B) or MCR 3.974, the removal hearing must be completed within 14 days after removal from a parent or Indian custodian. Two things extend that: a parent or Indian custodian may request an additional 20 days under MCL 712B.9(2), and the hearing may be adjourned under MCR 3.923(G). An outer boundary sits over the whole process. Absent extraordinary circumstances that make additional delay unavoidable, temporary emergency custody shall not be continued for more than 45 days.

Subrule (B) covers the child who has not been taken into custody. If the petition asks for removal of an Indian child, the removal hearing has to happen before the court may enter an order removing that child from the parent or Indian custodian. There is no shortcut through an ordinary placement finding.

Notice

Subrule (C) sends notice of the removal hearing to the parties prescribed in MCR 3.921, in compliance with MCR 3.920(C)(1).

The evidentiary standard

Subrule (D) is where the rule does its real work, and it applies both to removing an Indian child and to keeping one removed pending further proceedings. The court needs clear and convincing evidence of three things:

• that active efforts, as defined in MCR 3.002, have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family;
• that those efforts have proved unsuccessful; and
• that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

The active efforts inquiry is not measured against a generic service list. The rule directs that active efforts take into account the prevailing social and cultural conditions and way of life of the Indian child's tribe. And the third finding cannot be made on the caseworker's word alone. The evidence must include testimony from at least one qualified expert witness who has knowledge of the child rearing practices of the child's tribe, addressing the likelihood of serious emotional or physical damage from continued custody.

Combining hearings and placement preferences

Subrule (E) allows a removal hearing to be combined with any other hearing. MCR 3.965(B)(2) sets the conditions for holding it in conjunction with the preliminary hearing: all necessary parties notified as MCR 3.905 requires, no objection from the parties, and at least one qualified expert witness present to give testimony.

Subrule (F) then orders placement by descending preference: a member of the child's extended family, a foster home licensed, approved, or specified by the child's tribe, an Indian foster family licensed or approved by the department, and an institution for children approved by an Indian tribe or operated by an Indian organization with a suitable program. The court may order a different placement for good cause shown under MCL 712B.23(3)-(5). If the tribe has set its own order of preference, that order controls so long as the placement is the least restrictive setting appropriate to the child's particular needs, as MCL 712B.23(6) provides. Throughout, the standards applied are the prevailing social and cultural standards of the Indian community where the parent or extended family lives or keeps social and cultural ties.