In an interesting case, Michigan's court of appeals (COA) decided yesterday that the Indian Child Welfare Act applies to foster care placement of an Indian child, guardianships and consents for adoption. The court held that when a mother withdraws her consent to the action prior to termination of her parental rights, the trial court must dismiss the action and return the child to the Indian parent whenever the child is an enrolled member of a tribe regardless whether the placement is voluntary.
In this case, a child was born in 1996 to a member of an Indian tribe and the child was also enrolled as a member of the tribe. The boy initially lived with his maternal grandparents. After allegations of abuse by the grandfather were made, the mother consented in 2004 to placement of the boy in foster care with the Scotts who were appointed as guardians.
Subsequently, the mother filed a motion to terminate the guardianship claiming that it had been obtained by fraud and/or coercion. The Scotts then filed a motion seeking sole custody of the boy. The mother argued that the proceedings were subject to the Indian Child Welfare Act ("ICWA") and that she was thus entitled to revoke her consent to the guardianship. She claimed that the Scotts had effectively removed her son from her custody without compliance with the standards of the ICWA.
The trial court concluded that because the initial custody proceedings had been consensual the ICWA did not apply. It therefore granted sole custody to the Scotts.
The COA held that the fact that the mother had initially consented to the guardianship was irrelevant to whether the proceeding was a child custody proceeding. The guardianship proceeding had removed an Indian child from his parent or custodian, the child had been placed in a foster home, the parent had been unable to have the child returned on demand, and the appointment of the appellees as guardians had removed the child from the parent's custody, and thus the proceeding had been a child custody proceeding subject to the ICWA. See 25 USC 1903(1), 25 USC 1903(1)(i)
The ICWA provides that any parent or Indian custodian may withdraw consent to a foster care placement under state law at any time and, upon such withdrawal, the child must be returned to the parent or Indian custodian. In this case, the plaintiff was entitled to withdraw her consent to foster care placement of her son.
The COA overruled the trial court and ordered the child returned to his mother.
To read the case, Empson-Laviolette v Crago, click here.