Here is the opinion in In re Detmer/Beaudry. The question of whether an involuntary removal of a child triggers ICWA if the child is not placed in “foster home or institution or home of a guardian or conservator” 25 U.S.C. 1903(1)(i) is one that comes up pretty regularly. This case addresses that question under the Michigan Indian Family Preservation Act (MIFPA) and concludes that when a child is removed from respondent mother and placed with his non-respondent father, that removal still triggers MIFPA’s protections. The court focused on the dictionary definition of “removed” and found:
Thus, we understand “removed” in MCL 719B.15(2) to mean the instance when a court orders that a child be physically transferred or moved from the care and residence of a parent or custodian to the care and residence of some other person or institution. Based on this understanding, it becomes clear that the trial court erred with respect to AB. Over respondent mother’s objection, the trial court ordered that AB be physically placed with his nonrespondent father. AB had previously resided with respondent-mother and spent every other weekend with his nonrespondent father. The trial court’s order moved AB’s residence to his nonrespondent father’s home and conditioned respondent-mother’s visitation on the discretion of DHHS. Under our reading of MCL 712B.15(2), the trial court “removed” AB from respondent-mother.
Because AB was removed from a parent, the trial court was required under MIFPA to make findings on whether active efforts were made to provide remedial services, whether those efforts were successful, and whether respondent-mother’s continued custody of AB posed a risk of emotional or physical harm to the child. MCL 712B.15(2). The trial court was similarly required to hear testimony of a qualified expert witness concerning these matters. MCL 712B.15(2). The trial court made no such findings and heard no such testimony, and this was reversible error.
The ICWA Appellate Clinic at MSU Law co-authored the Tribe’s brief in this case.