The notification requirements under the Indian Child Welfare Act (ICWA) & the Michigan Indian Family Preservation Act (MIFPA); 25 USC § 1912(a); In re Morris; MCL 712B.9(4)(e); In re Jones; Whether the requirements were triggered; In re Johnson; Due process; Testimony about an event that took place after the petition was filed; In re Dearmon

Holding that a brief statement by respondent-mother’s counsel triggered the notice requirements of the ICWA and the MIFPA, the court conditionally reversed the termination order and remanded to the trial court only to resolve the notice issue. It rejected respondent’s claim that her due process rights were violated by admission of testimony at the adjudication trial about an event that took place after the petition was filed. Her counsel informed the trial court at the preliminary hearing “that respondent said that she had ‘some’ Indian heritage ‘down the line’ and that she thought that [the child’s] father also may have some Indian heritage.” This statement constituted “sufficient indicia of Indian heritage as to trigger the” requirements. The court noted that “the information came directly from an officer of the court, i.e., respondent’s counsel, and ultimately from respondent. Under MCL 712B.9(4)(e), this is sufficient to trigger the notification mandate.” Further, the fact that they “did not provide a specific tribe is not determinative because ‘indicia sufficient to trigger tribal notice’ also exists when ‘no particular Indian tribe can be identified.’” The court noted that the trigger for the requirement “is a ‘low bar[.]’” There was no indication “the DHHS ever notified potential tribes or the Secretary of the Interior. At most, the court reports indicate that the DHHS made a ‘Native American Inquiry,’ with the ultimate determination that there was not any ‘Native American affiliation.’ However, there is no indication or explanation in the record as to how the DHHS came to this conclusion, and the trial court never made any specific findings regarding whether notice was sent or whether [the child] was considered an ‘Indian child’ under ICWA and MIFPA.” This case was very similar to Johnson, where the court likewise determined that remand was necessary. But it rejected respondent’s claim that “her due-process rights were violated by the admission of a process server’s testimony at the adjudication trial.” It concluded in Dearmon that “‘[n]either the juvenile code nor the court rules mandates the exclusion of evidence concerning events that occur after a jurisdictional petition has been filed.’”