The Michigan Supreme Court heard the oral argument today in the In re Lee case, which we’ve referenced before. The case involves both the issue of active efforts and the beyond a reasonable doubt standard required by the Indian Child Welfare Act. Specifically the Court asked whether active efforts have to be recent and for each individual Indian child and whether the beyond a reasonable doubt standard required contemporaneous evidence of the emotional or physical harm to the child if he remains with his parent. Both the American Indian Law Section and the Children’s Law Section of the Michigan bar filed amicus briefs in the case.
Justices Young, Markman and Corrigan asked the most questions, with one question from Justice Hathaway and one from Justice Weaver. The issue of active efforts as current efforts particularly concerned Justice Young. Justice Young went so far as to posit that it was unnecessary for the Court to reach a decision on what active efforts requires because of the beyond a reasonable doubt standard–that it would require “current evidence to make a rational decision” under the beyond a reasonable doubt standard. Therefore the question of “active” as “current” wouldn’t need to be reached.
Justice Markman was concerned about whether past efforts for a person who has a permanent disability would be enough to say that current active efforts would be futile. Our newest Justice, Justice Hathaway, wanted the Appellant’s attorney to concede that consideration of Appellant’s past behavior is still required to make a determination about termination–specifically that the attorneys must look to “the totality of the circumstances” when moving to terminate parental rights.
Justice Corrigan wanted to know what the Court should do with sibling termination proceedings, which she also addressed to the State’s attorney. Apparently the DHS manual does not require a social worker to provide any efforts to a parent whose rights have been terminated to other children in the past, which Justice Corrigan pointed out is the complete opposite of what ICWA requires.
In general the Justices seemed skeptical that active efforts required current efforts, but they were far more concerned about the lack of evidence on the record to reach a decision beyond a reasonable doubt that Appellant’s parental rights should have been terminated. Justice Young said he wasn’t sure how Congress could have been any more “emphatic” about the requirements on a state by using a standard primarily used in criminal cases and “rare in a civil context.” The fact the State had no current evidence on the record as to the Appellant or her son appeared to bother the Justices Corrigan and Young the most.
Most interestingly, both Justices Corrigan and Young wanted to the State’s attorney to acknowledge that there are other options to parental termination, and that the recent changes in state law allow for permanent guardianships and other permanency placements that do not require parental termination. While we did not include this in our final amicus brief, we did do some research into those laws for this case, and it was interesting to hear how much the Court wanted the State’s attorney to acknowledge their recent passage and application to the case at hand.
Finally Justice Young also seemed to want to know why this case wasn’t back in tribal court with a case involving the Appellant’s other two children. In this case, the Appellant objected to tribal court jurisdiction (a right she has pursuant to the ICWA). The recent remand of the case involving the Appellant’s other two children by the tribal appellate court was enough for Justice Young to ask the State’s attorney if the case at bar had “gone south” because the case overturned by the tribal appellate court (termination of sibilings) was the basis for the termination in this case.
A number of students from the Law College were there, including our entire Indian Child Welfare Act class. Any comments and thoughts from them are welcome to add to my account.