Native American Law

This summary also appears under Family Law


Issues: Adoption; The Indian Child Welfare Act (ICWA) (25 USC § 1901 et seq.); § 1915(a); Adoptive Couple v. Baby Girl; The Michigan Indian Family Protection Act (MIFPA) (MCL 712B.1 et seq.); MCL 712B.23(2); Whether there was "good cause" for disregarding the list of potential placements in MCL 712B.23; Whether the birth mother's preference constituted good cause; MCL 712B.23(5); The doctrine of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another); "Possible" defined; Whether the MIFPA is preempted by the ICWA; Packowski v. United Food & Commercial Workers Local 951; "Obstacle preemption"; Ter Beek v. City of Wyoming; Hillsborough Cnty., FL v. Automated Med. Labs., Inc.; Attorney fees; The "American rule"; Haliw v. City of Sterling Heights; MCR 3.206(C); MCR 3.201(A);Whether the child was an "Indian child"; § 1903(4); MCL 712B.3(k); Rule that a court speaks through its written orders; In re Contempt of Henry; The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians or Gun Lake Tribe (the Tribe)

Court: Michigan Court of Appeals (Published)

Case Name: In re KMN

e-Journal Number: 59389

Judge(s): Wilder, Riordan, and Markey


Holding that the MIFPA is not preempted by the ICWA, that the child (KMN) is an Indian child, and that the trial court failed to follow the mandates of MCL 712B.23 in allowing the petitioners to adopt her, the court vacated several trial court orders. It also vacated the portion of an order requiring the intervenor-Tribe to pay attorney fees to the child's mother (N) and the petitioners. The court held that KMN is an Indian child under both the ICWA and the MIFPA, and that while the "trial court made somewhat inconsistent statements" its written orders showed it found that KMN is an Indian child. Thus, there was no error on this issue. The court rejected the Tribe's claim that the trial court failed to apply the ICWA's adoptive placement preferences. "Absent a pending adoption petition of an alternative party that was eligible to be preferred under § 1915(a), there was no ICWA preference to apply" at the 6/4/14 hearing. However, the "MIFPA differs from ICWA in that it does not give a preference to eligible parties over ineligible parties. Rather, MIFPA requires that, absent good cause, the adoptive placement must be either with a member of the child's extended family, a member of the Indian child's tribe, or an Indian family, in that 'order of preference.'" The petitioners had no familial connection to KMN, are not connected to the Tribe, and are not an Indian family. Thus, absent a good cause finding, MIFPA precluded the trial court from placing KMN with them. The trial court erred in ruling that N's preference constituted good cause. Further, pursuant to MCL 712B.23(4), "the trial court was required to give meaningful consideration to KMN's possible placement with" a cousin, "as extended family and make findings as to why that placement should be eliminated before making any determination that there was good cause to deviate from the statutory placement criteria." Unlike ICWA, "under MIFPA, the fact that no alternate petition for adoption had yet been filed is irrelevant." The court rejected petitioners' argument that the MIFPA was preempted by the ICWA on the basis of obstacle preemption, concluding that the "Legislature's definition of good cause does not stand as an obstacle to the accomplishment of" the purpose of ICWA. Rather, "the Legislature endeavored to further protect the Indian child's Indian culture - a purpose consistent with ICWA." Finally, the court held that N and petitioners improperly requested attorney fees under MCR 3.206(C) given that adoption is not defined as a domestic relations action under MCR 3.201. Affirmed in part, vacated and reversed in part, and remanded.


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