SB-1232, As Passed House, December 12, 2012

SUBSTITUTE FOR

SENATE BILL NO. 1232

A bill to amend 1939 PA 288, entitled

"Probate code of 1939,"

(MCL 710.21 to 712A.32) by adding chapter XIIB.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

CHAPTER XIIB

Sec. 1. This chapter shall be known and may be cited as the

"Michigan Indian family preservation act".

Sec. 3. As used in this chapter:

(a) "Active efforts" means actions to provide remedial

services and rehabilitative programs designed to prevent the

breakup of the Indian family and to reunify the child with the

Indian family. Active efforts require more than a referral to a

service without actively engaging the Indian child and family.

Active efforts include reasonable efforts as required by title IV-E

of the social security act, 42 USC 670 to 679c, and also include

doing or addressing all of the following:

(i) Engaging the Indian child, child's parents, tribe, extended

family members, and individual Indian caregivers through the

utilization of culturally appropriate services and in collaboration

with the parent or child's Indian tribes and Indian social services

agencies.

(ii) Identifying appropriate services and helping the parents

to overcome barriers to compliance with those services.

(iii) Conducting or causing to be conducted a diligent search

for extended family members for placement.

(iv) Requesting representatives designated by the Indian

child's tribe with substantial knowledge of the prevailing social

and cultural standards and child rearing practice within the tribal

community to evaluate the circumstances of the Indian child's

family and to assist in developing a case plan that uses the

resources of the Indian tribe and Indian community, including

traditional and customary support, actions, and services, to

address those circumstances.

(v) Completing a comprehensive assessment of the situation of

the Indian child's family, including a determination of the

likelihood of protecting the Indian child's health, safety, and

welfare effectively in the Indian child's home.

(vi) Identifying, notifying, and inviting representatives of

the Indian child's tribe to participate in all aspects of the

Indian child custody proceeding at the earliest possible point in

the proceeding and actively soliciting the tribe's advice

throughout the proceeding.

(vii) Notifying and consulting with extended family members of

the Indian child, including extended family members who were

identified by the Indian child's tribe or parents, to identify and

to provide family structure and support for the Indian child, to

assure cultural connections, and to serve as placement resources

for the Indian child.

(viii) Making arrangements to provide natural and family

interaction in the most natural setting that can ensure the Indian

child's safety, as appropriate to the goals of the Indian child's

permanency plan, including, when requested by the tribe,

arrangements for transportation and other assistance to enable

family members to participate in that interaction.

(ix) Offering and employing all available family preservation

strategies and requesting the involvement of the Indian child's

tribe to identify those strategies and to ensure that those

strategies are culturally appropriate to the Indian child's tribe.

(x) Identifying community resources offering housing,

financial, and transportation assistance and in-home support

services, in-home intensive treatment services, community support

services, and specialized services for members of the Indian

child's family with special needs, and providing information about

those resources to the Indian child's family, and actively

assisting the Indian child's family or offering active assistance

in accessing those resources.

(xi) Monitoring client progress and client participation in

services.

(xii) Providing a consideration of alternative ways of

addressing the needs of the Indian child's family, if services do

not exist or if existing services are not available to the family.

(b) "Child custody proceeding" includes, but is not limited

to, 1 or more of the following:

(i) Foster care placement. Any action removing an Indian child

from his or her parent or Indian custodian, and where the parent or

Indian custodian cannot have the child returned upon demand but

parental rights have not been terminated, for temporary placement

in, and not limited to, 1 or more of the following:

(A) Foster home or institution.

(B) The home of a guardian or limited guardian under part 2 of

article V of the estates and protected individuals code, 1998 PA

386, MCL 700.5201 to 700.5219.

(ii) Termination of parental rights. Any action resulting in

the termination of the parent-child relationship.

(iii) Preadoptive placement. Temporary placement of an Indian

child in a foster home or institution after the termination of

parental rights, but before or in lieu of adoptive placement.

(iv) Adoptive placement. Permanent placement of an Indian child

for adoption, including an action resulting in a final decree of

adoption.

(v) An Indian child is charged with a status offense in

violation of section 2(a)(2) to (4) or (d) of chapter XIIA.

(vi) Child custody proceeding does not include a placement

based on an act that, if committed by an adult, would be a crime or

based on an award, in a divorce proceeding, of custody to 1 of the

parents.

probate court.

(d) "Culturally appropriate services" means services that

enhance an Indian child's and family's relationship to,

identification, and connection with the Indian child's tribe.

Culturally appropriate services should provide the opportunity to

practice the teachings, beliefs, customs, and ceremonies of the

Indian child's tribe so those may be incorporated into the Indian

child's daily life, as well as services that address the issues

that have brought the child and family to the attention of the

department that are consistent with the tribe's beliefs about child

rearing, child development, and family wellness. Culturally

appropriate services may involve tribal representatives, extended

family members, tribal elders, spiritual and cultural advisors,

tribal social services, individual Indian caregivers, medicine men

or women, and natural healers. If the Indian child's tribe

establishes a different definition of culturally appropriate

services, the court shall follow the tribe's definition.

(e) "Department" means the department of human services or any

successor department or agency.

(f) "Extended family members" means that term as defined by

the law or custom of the Indian child's tribe or, in the absence of

that law or custom, means a person who has reached the age of 18

and who is the Indian child's grandparent, aunt or uncle, brother

or sister, brother-in-law or sister-in-law, niece or nephew, first

or second cousin, or stepparent and includes the term "relative" as

that term is defined in section 13a(j) of chapter XIIA.

(g) "Foster home or institution" means a child caring

institution as that term is defined in section 1 of 1973 PA 116,

MCL 722.111.

(h) "Guardian" means a person who has qualified as a guardian

of a minor under a parental or spousal nomination or a court order

issued under section 19a or 19c of chapter XIIA, section 5204 or

5205 of the estates and protected individuals code, 1998 PA 386,

MCL 700.5204 and 700.5205, or sections 600 to 644 of the mental

health code, 1974 PA 258, MCL 330.1600 to 330.1644. Guardian may

also include a person appointed by a tribal court under tribal code

or custom. Guardian does not include a guardian ad litem.

(i) "Guardian ad litem" means an individual whom the court

appoints to assist the court in determining the child's best

interests. A guardian ad litem does not need to be an attorney.

(j) "Indian" means any member of any Indian tribe, band,

nation, or other organized group or community of Indians recognized

as eligible for the services provided to Indians by the secretary

because of their status as Indians, including any Alaska native

village as defined in section 1602(c) of the Alaska native claims

settlement act, 43 USC 1602.

(k) "Indian child" means an unmarried person who is under the

age of 18 and is either of the following:

(i) A member of an Indian tribe.

(ii) Eligible for membership in an Indian tribe as determined

by that Indian tribe.

(l) "Indian child's tribe" means the Indian tribe in which an

Indian child is a member or eligible for membership. In the case of

an Indian child who is a member of or eligible for membership in

more than 1 tribe, the Indian child's tribe is the tribe with which

the Indian child has the most significant contacts.

(m) "Indian child welfare act" means the Indian child welfare

act of 1978, 25 USC 1901 to 1963.

(n) "Indian custodian" means any Indian person who has custody

of an Indian child under tribal law or custom or under state law or

to whom temporary physical care, custody, and control have been

transferred by the child's parent.

(o) "Indian tribe" or "tribe" means any Indian tribe, band,

nation, or other organized group or community of Indians recognized

as eligible for the services provided to Indians by the secretary

because of their status as Indians, including any Alaska native

village as defined in section 1602(c) of the Alaska native claims

settlement act, 43 USC 1602.

(p) "Indian organization" means any group, association,

partnership, corporation, or other legal entity owned or controlled

by Indians, or a majority of whose members are Indians.

(q) "Lawyer-guardian ad litem" means an attorney appointed

under section 21 of this chapter. A lawyer-guardian ad litem

represents the child, and has the powers and duties, as set forth

in section 17d of chapter XIIA. The provisions of section 17d of

chapter XIIA also apply to a lawyer-guardian ad litem appointed for

the purposes of this chapter under each of the following:

(i) Section 5213 or 5219 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5213 and 700.5219.

(ii) Section 4 of the child custody act of 1970, 1970 PA 91,

MCL 722.24.

(iii) Section 10 of the child protection law, 1975 PA 238, MCL

722.630.

(r) "Official tribal representative" means an individual who

is designated by the Indian child's tribe to represent the tribe in

a court overseeing a child custody proceeding. An official tribal

representative does not need to be an attorney.

(s) "Parent" means any biological parent or parents of an

Indian child or any person who has lawfully adopted an Indian

child, including adoptions under tribal law or custom. Parent does

not include the putative father if paternity has not been

acknowledged or established.

(t) "Reservation" means Indian country as defined in 18 USC

1151 and any lands, not covered under that section, title to which

is either held by the United States in trust for the benefit of any

Indian tribe or individual or held by any Indian tribe or

individual subject to a restriction by the United States against

alienation.

(u) "Secretary" means the secretary of the interior.

(v) "Tribal court" means a court with jurisdiction over child

custody proceedings that is either a court of Indian offenses, a

court established and operated under the code or custom of an

Indian tribe, or any other administrative body of a tribe that is

vested with authority over child custody proceedings.

(w) "Ward of tribal court" means a child over whom an Indian

tribe exercises authority by official action in tribal court or by

the governing body of the tribe.

Sec. 5. In Indian child custody proceedings, the best

interests of the Indian child shall be determined, in consultation

with the Indian child's tribe, in accordance with the Indian child

welfare act, and the policy specified in this section. Courts shall

do both of the following:

(a) Protect the best interests of Indian children and promote

the stability and security of Indian tribes and families.

(b) Ensure that the department uses practices, in accordance

with the Indian child welfare act, this chapter, and other

applicable law, that are designed to prevent the voluntary or

involuntary out-of-home care placement of Indian children and, when

an out-of-home care placement, adoptive placement, or preadoptive

placement is necessary, place an Indian child in a placement that

reflects the unique values of the Indian child's tribal culture and

that is best able to assist the Indian child in establishing,

developing, and maintaining a political, cultural, and social

relationship with the Indian child's tribe and tribal community.

Sec. 7. (1) An Indian tribe has exclusive jurisdiction over

any child custody proceeding involving an Indian child who resides

or is domiciled within the reservation of that tribe. If a child is

a ward of a tribal court, the Indian tribe retains exclusive

jurisdiction, regardless of the residence or domicile, or

subsequent change in his or her residence or domicile.

(2) The state court may exercise limited emergency

jurisdiction if an Indian child who resides or is domiciled within

the reservation is temporarily off the reservation and the state

has removed the child in an emergency situation to prevent imminent

physical damage or harm to the child. The court must comply with

the emergency removal hearing requirements outlined in Michigan

court rules and sections 13a, 14, and 14a of chapter XIIA. The

emergency jurisdiction terminates when the removal or placement is

no longer necessary to prevent imminent physical damage or harm to

the child.

(3) In any state court child custody proceeding, for an Indian

child not domiciled or residing within the reservation of the

Indian child's tribe, the court, in the absence of good cause to

the contrary, shall transfer the proceeding to the Indian tribe's

jurisdiction, absent objection by either parent, upon the petition

of either parent or the Indian custodian or the Indian child's

tribe, provided that the transfer is subject to declination by the

tribal court of the Indian tribe.

(4) When a court makes a good cause determination under this

section, adequacy of the tribe, tribal court, or tribal social

services shall not be considered.

(5) A court may determine that good cause not to transfer a

case to tribal court exists only if the person opposing the

transfer shows by clear and convincing evidence that either of the

following applies:

(a) The Indian tribe does not have a tribal court.

(b) The 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.

(6) In any state court child custody proceeding, an Indian

child, the Indian custodian of the child, and the Indian child's

tribe have a right to intervene at any point in the child custody

proceeding.

(7) Official tribal representatives have the right to

participate in any proceeding that is subject to the Indian child

welfare act and this chapter.

(8) This state shall give full faith and credit to the public

acts, records, and judicial proceedings of any Indian tribe

applicable to Indian child custody proceedings to the same extent

given to the public acts, records, and judicial proceedings of any

other entity.

Sec. 9. (1) In a child custody proceeding, if the court knows

or has reason to know that an Indian child is involved, the

petitioner shall notify the parent or Indian custodian and the

Indian child's tribe, by registered mail with return receipt

requested, of the pending child custody proceeding and of the right

to intervene. If the identity or location of the parent or Indian

custodian and the tribe cannot be determined, notice shall be given

to the secretary in the same manner described in this subsection.

The secretary has 15 days after receipt of notice to provide the

requisite notice to the parent or Indian custodian and the tribe.

(2) No foster care placement or termination of parental rights

proceeding shall be held until at least 10 days after receipt of

notice by the parent or Indian custodian and the tribe or the

secretary. The parent or Indian custodian or the tribe shall, upon

request, be granted up to 20 additional days to prepare for the

proceeding. If the petitioner or court later discovers that the

child may be an Indian child, all further proceedings shall be

suspended until notice is received by the tribe or the secretary as

set forth in this subsection. If the court determines after a

hearing that the parent or tribe was prejudiced by lack of notice,

the prior decisions made by the court shall be vacated and the case

shall proceed from the first hearing. The petitioner has the burden

of proving lack of prejudice.

(3) The department shall actively seek to determine whether a

child at initial contact is an Indian child. If the department is

able to make an initial determination as to which Indian tribe or

tribes a child brought to its attention may be a member, the

department shall exercise due diligence to contact the Indian tribe

or tribes in writing so that the tribe may verify membership or

eligibility for membership. If the department is unable to make an

initial determination as to which tribe or tribes a child may be a

member, the department shall, at a minimum, contact in writing the

tribe or tribes located in the county where the child is located

and the secretary.

(4) Circumstances under which a court, the department, or

other party to a child custody proceeding has reason to believe a

child involved in a child custody proceeding is an Indian include,

but are not limited to, any of the following:

(a) Any party to the case, Indian tribe, Indian organization,

or public or private agency informs the court that the child is an

Indian child.

(b) Any public or state-licensed agency involved in child

protection services or family support has discovered information

that suggests that the child is an Indian child.

court reason to believe he or she is an Indian child.

(d) The residence or the domicile of the child, his or her

biological parents, or the Indian custodian is known by the court

to be or is shown to be a predominantly Indian community.

(e) An officer of the court involved in the proceeding has

knowledge that the child may be an Indian child.

(5) The department shall exercise due diligence to determine,

document, and contact the Indian child's extended family members in

accordance with the fostering connections to success and increasing

adoptions act of 2008, Public Law 110-351. If applicable,

determinations and documentation should be conducted in

consultation with the child or parent's tribe.

(6) A written determination or oral testimony by a person

authorized by the Indian tribe to speak on its behalf, regarding a

child's membership or eligibility for membership in a tribe, is

conclusive as to that tribe.

(7) The petitioner shall document all efforts made to

determine a child's membership or eligibility for membership in an

Indian tribe and shall provide them, upon request, to the court,

Indian tribe, Indian child, Indian child's lawyer guardian ad

litem, parent, or Indian custodian.

Sec. 11. Each party to a foster care or termination of

parental rights proceeding involving an Indian child has a right to

examine all reports or other documents filed with the court upon

which any decision with respect to that proceeding may be based.

Sec. 13. (1) If both parents or Indian custodian voluntarily

consent to a petition for guardianship under section 5204 or 5205

of the estates and protected individuals code, 1998 PA 386, MCL

700.5204 and 700.5205, or to adoptive placement or the termination

of his or her parental rights for the express purpose of adoption

by executing a release under section 28 of chapter X, or consent

under section 43 of chapter X, the following requirements must be

met:

(a) To be valid, consent under this section must be executed

on a form approved by the state court administrative office, in

writing, recorded before a judge of a court of competent

jurisdiction, and accompanied by the presiding judge's certificate

that the terms and consequences of the consent were fully explained

in detail and were fully understood by the parent or Indian

custodian. The court shall also certify that either the parent or

Indian custodian fully understood the explanation in English or

that it was interpreted into a language that the parent or Indian

custodian understood. Any consent given before, or within 10 days

after, birth of the Indian child is not valid.

(b) Notice of the pending proceeding must be given as

prescribed by Michigan supreme court rule, the Indian child welfare

act, and section 9 of this chapter.

accordance with Michigan supreme court rules and the following

statutes:

(i) In a guardianship proceeding under section 5204 or 5205 of

the estates and protected individuals code, 1998 PA 386, MCL

700.5204 and 700.5205, section 25 of this chapter also applies.

(ii) In an adoption proceeding, section 27 of this chapter also

applies.

(2) Consent described under subsection (1) must contain the

following information:

(a) The Indian child's name and date of birth.

(b) The name of the Indian child's tribe and any identifying

number or other indication of the child's membership in the tribe,

if any.

custodian.

(d) A sworn statement from the translator, if any, attesting

to the accuracy of the translation.

(e) The signature of the consenting parent, parents, or Indian

custodian recorded before the judge, verifying an oath of

understanding of the significance of the voluntary placement and

the parent's right to petition to terminate the voluntary placement

or consent at any time.

(f) For consent for voluntary placement of the Indian child in

foster care, the name and address of the person or entity who will

arrange the foster care placement as well as the name and address

of the prospective foster care parents if known at the time.

(g) For consent to termination of parental rights or adoption

of an Indian child, in addition to the information in subdivisions

(a) to (f), the name and address of the person or entity that will

arrange the preadoptive or adoptive placement.

(3) If the placement is for purposes of adoption, a consent

under subsection (1) of the Indian child's parent or Indian

custodian must be executed in conjunction with either a consent to

adopt, as required by section 43 of chapter X, or a release, as

required by section 28 of chapter X. A parent or Indian custodian

who executes a consent under this section may withdraw his or her

consent at any time before entry of a final order of adoption by

filing a written demand requesting the return of the child. Once a

demand is filed with the court, the court shall order the return of

the child. Withdrawal of consent under this section constitutes a

withdrawal of a release executed under section 28 of chapter X or a

consent to adopt executed under section 43 of chapter X.

(4) A parent or Indian custodian who executes a consent under

this section for the purpose of guardianship may withdraw his or

her consent at any time by sending written notice to the court

substantially in compliance on a form approved by the state court

administrative office that the parent or Indian custodian revokes

consent and wants his or her child returned.

(5) A release executed under section 28 of chapter X during a

pendency of a proceeding under section 2(b) of chapter XIIA is

subject to section 15 of this chapter. If the release follows the

initiation of a proceeding under section 2(b) of chapter XIIA, the

court shall make a finding that culturally appropriate services

were offered.

(6) A parent who executes a consent to adoption under section

43 of chapter X may withdraw that consent at any time before entry

of a final order for adoption by filing notification of the

withdrawal of consent with the court. In a direct placement, as

defined in section 22(o) of chapter X, a consent by a parent or

guardian shall be accompanied by a verified statement signed by the

parent or guardian that contains all of the following:

(a) That the parent or guardian has received a list of

community and federal resource supports and a copy of the written

document described in section 6(1)(c) of the foster care and

adoption services act, 1994 PA 204, MCL 722.956.

(b) As required by sections 29 and 44 of chapter X, that the

parent or guardian has received counseling related to the adoption

of his or her child or waives the counseling with the signing of

the verified statement.

promised any money or anything of value for the consent to adoption

of the child, except for lawful payments that are itemized on a

schedule filed with the consent.

(d) That the validity and finality of the consent are not

affected by any collateral or separate agreement between the parent

or guardian and the adoptive parent.

(e) That the parent or guardian understands that it serves the

welfare of the child for the parent to keep the child placing

agency, court, or department informed of any health problems that

the parent develops that could affect the child.

(f) That the parent or guardian understands that it serves the

welfare of the child for the parent or guardian to keep his or her

address current with the child placing agency, court, or department

in order to permit a response to any inquiry concerning medical or

social history from an adoptive parent of a minor adoptee or from

an adoptee who is 18 years or older.

Sec. 15. (1) If an Indian child is the subject of a child

protective proceeding under section 2(b) of chapter XIIA, including

instances in which the parent or Indian custodian executed a

release under section 28 of chapter X during the pendency of that

proceeding, or a guardianship proceeding under section 5204 or 5205

of the estates and protected individuals code, 1998 PA 386, MCL

700.5204 and 700.5205, if a parent does not provide consent as

described in section 13 of this chapter, or a guardianship

proceeding under section 19a or 19c of chapter XIIA, the following

requirements must be met:

(a) Notice of the pending proceeding must be given as

prescribed by Michigan supreme court rule, the Indian child welfare

act, and section 9 of this chapter.

(b) The proceeding shall be conducted in accordance with

Michigan supreme court rules and subsections (2) to (4).

proceeding under section 5204 or 5205 of the estates and protected

individuals code, 1998 PA 386, MCL 700.5204 and 700.5205.

(2) An Indian child may be removed from a parent or Indian

custodian, placed into a foster care placement, or, for an Indian

child already taken into protective custody, remain removed from a

parent or Indian custodian pending further proceedings, only upon

clear and convincing evidence, that includes testimony of at least

1 expert witness who has knowledge of child rearing practices of

the Indian child's tribe, that active efforts have been made to

provide remedial services and rehabilitative programs designed to

prevent the breakup of the Indian family, that the active efforts

were unsuccessful, and that the 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 must

take into account the prevailing social and cultural conditions and

way of life of the Indian child's tribe.

(3) A party seeking a termination of parental rights to an

Indian child under state law must demonstrate to the court's

satisfaction that active efforts have been made to provide remedial

services and rehabilitative programs designed to prevent the

breakup of the Indian family and that the active efforts were

unsuccessful.

(4) No termination of parental rights may be ordered in a

proceeding described in this section without a determination,

supported by evidence beyond a reasonable doubt, including

testimony of at least 1 qualified expert witness as described in

section 17, that the continued custody of the child by the parent

or Indian custodian is likely to result in serious emotional or

physical damage to the child.

(5) Any Indian child who is the subject of any action for

termination of parental rights under state law, any parent or

Indian custodian from whose custody the child was removed, and the

Indian child's tribe may petition any court of competent

jurisdiction to invalidate the action upon a showing that the

action violated any provision of this section.

Sec. 17. (1) If the testimony of a qualified expert witness is

required, the court shall accept either of the following in the

following order of preference:

(a) A member of the Indian child's tribe, or witness approved

by the Indian child's tribe, who is recognized by the tribal

community as knowledgeable in tribal customs and how the tribal

customs pertain to family organization and child rearing practices.

(b) A person with knowledge, skill, experience, training, or

education and who can speak to the Indian child's tribe and its

customs and how the tribal customs pertain to family organization

and child rearing practices.

(2) A party to a child custody proceeding may present his or

her own qualified expert witness to rebut the testimony of the

petitioner's qualified expert witness.

Sec. 19. If a court determines at a hearing that a petitioner

in an Indian child custody proceeding has improperly removed the

child from custody of the parent or Indian custodian or has

improperly retained custody after a visit or other temporary

relinquishment of custody, the court shall decline jurisdiction

over the petition and immediately return the child to his or her

parent or Indian custodian unless returning the child to his or her

parent or Indian custodian would subject the child to a substantial

and immediate danger or threat of danger.

Sec. 21. (1) In a case in which the court determines

indigency, the parent or Indian custodian has the right to court-

appointed counsel in a removal, placement, or termination

proceeding. The court may, in its discretion, appoint counsel for

the child upon a finding that the appointment is in the best

interest of the child. If state law makes no provision for

appointment of counsel in those proceedings, the court shall

promptly notify the secretary upon appointment of counsel.

(2) If state law does not require the appointment of a lawyer-

guardian ad litem for the child, the court may, in its discretion,

appoint a lawyer-guardian ad litem for the child upon a finding

that the appointment is in the best interest of the child.

Sec. 23. (1) Except for a placement for guardianship under

section 5204 or 5205 of the estates and protected individuals code,

1998 PA 386, MCL 700.5204 and 700.5205, where both parents submit a

consent for the guardianship, an Indian child shall be placed in

the least restrictive setting that most approximates a family and

in which his or her special needs, if any, may be met. The child

shall be placed within reasonable proximity to his or her home,

taking into account any special needs of the child. Absent good

cause to the contrary, the foster care or preadoptive placement of

an Indian child must be in the following order of preference:

(a) A member of the Indian child's extended family.

(b) A foster home licensed, approved, or specified by the

Indian child's tribe.

department.

(d) An institution for children approved by an Indian tribe or

operated by an Indian organization that has a program suitable to

meet the Indian child's needs.

(2) Absent good cause to the contrary, the adoptive placement

of an Indian child must be in the following order of preference:

(a) A member of the child's extended family.

(b) A member of the Indian child's tribe.

(3) The burden of establishing good cause not to follow the

order of preference is on the party requesting the deviation.

(4) The court shall not find good cause to deviate from the

placement preferences stated in this section without first ensuring

that all possible placements required under this section have been

thoroughly investigated and eliminated. All efforts made under this

section must be provided to the court in writing or stated on the

record. The court shall address efforts to place an Indian child in

accordance with this section at each hearing until the placement

meets the requirements of this section.

(5) The court's determination of good cause to not follow the

order of preference shall be based on 1 or more of the following

conditions:

(a) A request was made by a child of sufficient age.

(b) A child has an extraordinary physical or emotional need as

established by testimony of an expert witness.

(6) In the case of a placement under subsection (1) or (2), if

the Indian child's tribe establishes a different order of

preference, the department or court ordering the placement shall

follow the tribe's order of preference.

(7) A record of each placement of an Indian child shall be

maintained by the department or court evidencing the efforts to

comply with the order of preference specified in this section. The

record shall be made available at any time upon the request of the

secretary or Indian child's tribe.

(8) The standards to be applied in meeting the placement

preferences established in this section shall be the prevailing

social and cultural standards of the Indian tribe or tribes in

which the parent or extended family resides or maintains social and

cultural ties.

(9) Nothing in this chapter or section prevents the emergency

removal, protective custody, or subsequent placement of an Indian

child who is a resident of or is domiciled on a reservation but is

temporarily located off the reservation.

(10) All efforts made to identify, locate, and place a child

according to this section shall be documented and, upon request,

made available to the court, tribe, Indian child, Indian child's

lawyer-guardian ad litem, parent, or Indian custodian.

Sec. 25. (1) If a petition for a guardianship is filed and is

determined to be involuntary under section 15 of this chapter and

the court knows or has reason to know that the child is an Indian

child, the court may order the department or a court employee to

conduct an investigation of the proposed guardianship and file a

written report of the investigation. In addition to the information

required in section 5204 of the estates and protected individuals

code, 1998 PA 386, MCL 700.5204, the report must include, but is

not limited to, the following information:

(a) Whether the child is or is not an Indian child.

(b) The identity and location of the child's parents, if

known.

address all of the following:

(i) The tribe or tribes of which the child is a member or

eligible for membership.

(ii) If the child and family need culturally appropriate and

other services to preserve the Indian family.

(iii) The identity and location of extended family members and

if no extended family members can be found, what efforts were made

to locate them.

(2) Notice of the pending proceeding must be given as

prescribed by Michigan supreme court rule, the Indian child welfare

act, and section 9 of this chapter. If the court knows or has

reason to know that the proceeding involves an Indian child, the

court shall conduct a hearing to determine all of the following:

(a) If the tribe has exclusive jurisdiction. If so, the court

shall issue an order terminating the guardianship or dismissing the

petition.

(b) If the current placement with the guardian meets the

placement requirements in section 23 of this chapter.

guardianship.

(d) If a lawyer-guardian ad litem should be appointed to

represent the Indian child.

(3) If a petition for guardianship is filed and is to be

accompanied by a consent to a voluntary placement of an Indian

child, the consent must be executed in accordance with section 13

of this chapter. If the Indian child's parents do not execute a

consent under section 13 of this chapter, the petition is

considered to be for an involuntary guardianship and the

requirements of section 15 of this chapter must be met.

(4) A parent or Indian custodian who executes a consent under

this section for the purpose of guardianship may withdraw his or

her consent at any time by sending written notice to the court

substantially in compliance on a form approved by the state court

administrative office that the parent or Indian custodian revokes

consent and wants his or her child returned.

(5) The guardianship is terminated when the court receives

from a parent or Indian custodian notice to withdraw consent to the

guardianship, and the child shall be immediately returned to the

parent or Indian custodian.

(6) If the court discovers a child may be an Indian child

after a guardianship is ordered, the court shall provide notice of

the guardianship and the potential applicability of the Indian

child welfare act, in compliance with Michigan court rules and the

Indian child welfare act, to the tribe, the parents or Indian

custodian, and the current guardian on a form approved by the state

court administrative office.

Sec. 27. (1) If a release or consent to adoption under chapter

X is executed, consent to voluntary placement of an Indian child

must also be executed by both parents of the Indian child in

accordance with section 13 of this chapter.

(2) At any time during an adoption proceeding, a court may

order visitation between the Indian child and 1 or more members of

the Indian child's tribe and extended family members.

(3) Notice of the pending proceeding must be given as

prescribed by Michigan supreme court rule, the Indian child welfare

act, and section 9 of this chapter.

(4) Upon application by an Indian individual who has reached

the age of 18 and who was subject to adoptive placement, the court

that entered the order of adoption shall inform the individual of

his or her tribal affiliation, if known, of the individual's

biological parents, and provide any information as necessary to

protect any rights from the individual's tribal relationship.

(5) After the entry of a final order of adoption of an Indian

child in any state court, the parent may withdraw consent on the

grounds that consent was obtained through fraud or duress and may

petition the court to vacate the final order of adoption. Upon a

finding that the consent was obtained through fraud or duress, the

court shall vacate the final order of adoption and return the child

to the parent. No adoption that has been effective for at least 2

years may be invalidated under the provisions of this subsection

unless otherwise permitted under state law.

(6) Notwithstanding state law to the contrary, whenever a

final order of adoption of an Indian child has been vacated or set

aside or the adoptive parents voluntarily consent to the

termination of their parental rights to the child, a biological

parent or prior Indian custodian may petition for return of custody

and the court shall grant the petition unless there is a showing,

in a proceeding subject to the provisions of section 1912 of the

Indian child welfare act, 25 USC 1912, that the return of custody

is not in the best interests of the child.

Sec. 29. (1) If an Indian child is taken into custody under

section 14 of chapter XIIA, the subsequent placement shall

terminate immediately when the removal and placement are no longer

necessary to prevent imminent physical damage or harm to the child.

(2) If a child is taken into custody under section 14 of

chapter XIIA and the child is under the exclusive jurisdiction of

an Indian tribe or is domiciled on a reservation but temporarily

located off the reservation, the court shall immediately initiate a

child custody proceeding and do either of the following:

(a) Transfer the child to the jurisdiction of the appropriate

Indian tribe.

(b) Return the child to the parent or Indian custodian.

Sec. 31. (1) The state is authorized to enter into agreements

with tribes in this state regarding the care and custody of Indian

children, funding of the care and custody of Indian children, and

jurisdiction over child custody proceedings, including agreements

that may provide for transfer of jurisdiction on a case-by-case

basis and agreements that provide for concurrent jurisdiction

between the state and Indian tribes.

(2) Unless the agreement provides otherwise, both of the

following apply:

(a) The agreements described in subsection (1) may be revoked

by either party upon 180 days' written notice to the other party.

(b) Revocation of an agreement does not affect any action or

proceeding over which the court already has jurisdiction.

Sec. 33. The department, in consultation with Indian tribes in

this state, shall establish standards and procedures for the

department's review of cases subject to this chapter and methods

for monitoring the department's compliance with provisions of the

Indian child welfare act and this chapter.

Sec. 35. (1) A Michigan court entering a final decree or order

in any Indian child adoptive placement shall provide the secretary

and the tribal enrollment officer of the appropriate tribe with a

copy of the decree or order together with other information as may

be necessary to show the following:

(a) The name, date of birth, and tribal affiliation of the

child.

(b) The names and addresses of the biological parents, if

known.

(d) The identity of any agency having files or information

relating to the adoptive placement.

(2) If court records contain a statement of identifying

information of the biological parent or parents that their identity

remains confidential, the court shall include the statement of

identifying information with the other information sent to the

secretary and the tribal enrollment officer of the appropriate

Indian tribe described in subsection (1).

Sec. 37. The department shall publish annually a census with

no individually identifiable information of all Indian children in

the department's care and custody. The census shall include, by

county and statewide, information regarding the Indian children on

all of the following:

(a) Legal status.

(b) Placement information and whether it complies with this

chapter.

(d) Sex.

(e) Tribe in which the child is a member or eligible for

membership.

(f) Accumulated length of time in foster care.

(g) Other demographic information considered appropriate

concerning all Indian children who are the subject of child custody

proceedings.

Sec. 39. Any Indian child who is the subject of an action for

foster care placement or termination of parental rights under state

law, any parent or Indian custodian from whose custody an Indian

child was removed, and the Indian child's tribe may petition any

court of competent jurisdiction to invalidate the action upon a

showing that the action violated any provision of sections 7, 9,

11, 13, 15, 21, 23, 25, 27, and 29 of this chapter.

Sec. 41. If any provision of this chapter or its application

to any person or circumstance is held invalid for any reason in a

court of competent jurisdiction, the invalidity does not affect

other provisions or any other application of this chapter that can

be given effect without the invalid provision or application. For

this purpose, the provisions of this chapter are severable.