## Facts

- The Michigan Department of Human Services initiated child-protective proceedings seeking termination of parental rights.
- In the Morris matter, the mother reported Cherokee ancestry and the father stated his great-grandmother was a member of a Cherokee tribe.
- The trial court recognized the child might be eligible for tribal membership but did not ensure notice was sent to the relevant Cherokee tribes or, if necessary, the Secretary of the Interior under the Indian Child Welfare Act (ICWA).
- The trial court placed the child in foster care and later terminated parental rights.
- After appellate proceedings, the Michigan Supreme Court consolidated In re Morris with a related termination case (In re Gordon) to address ICWA notice and remedies for noncompliance.

## Issues

1. What level of information about Indian ancestry gives a court “reason to know” an Indian child is involved, triggering ICWA’s notice requirement.
2. Whether a parent can waive ICWA rights that belong to a child’s tribe, including the tribe’s right to notice and participation.
3. What record the trial court must make to allow review of ICWA notice compliance.
4. What appellate remedy is required when termination orders were entered without required ICWA notice, including whether “conditional affirmance” is permissible.

## Decision

- The court held that a cautionary standard applies: credible indicia of Indian ancestry are sufficient to trigger ICWA notice duties.
- The court held that parents cannot waive ICWA rights that belong to tribes; tribal rights are independent of parental litigation choices.
- The court required trial courts to create and preserve a record showing what steps were taken to determine tribal affiliation and to provide ICWA-compliant notice.
- The court rejected the Court of Appeals’ conditional-affirmance approach.
- The court ordered conditional reversal of the termination orders and remanded for proper ICWA notice and further proceedings.
- The court indicated that termination could be reinstated if, after proper notice, no tribe confirmed the child as an Indian child; otherwise, the court must proceed under ICWA.

## Legal Principles

- ICWA notice under 25 U.S.C. § 1912(a) is required when the court knows or has reason to know an Indian child is involved; credible statements of specific tribal ancestry can satisfy “reason to know.”
- Because erroneous non-notice risks substantial harm and notice is a low-burden step, courts should err on the side of sending notice.
- ICWA confers rights on tribes (including notice and the opportunity to intervene) that are not derivative of parental rights and cannot be waived by parents.
- Trial courts must document notices sent, responses received, and the basis for any determination that ICWA does or does not apply.
- When required ICWA notice was not provided before termination, the proper appellate disposition is conditional reversal and remand for notice, not conditional affirmance.

## Conclusion

The Michigan Supreme Court held that credible indicia of Indian ancestry triggers ICWA notice obligations, that parents cannot waive a tribe’s ICWA rights, that trial courts must preserve a clear record of notice compliance, and that failure to provide required notice requires conditional reversal and remand before termination may be treated as final.


In re Morris, 815 N.W.2d 62 (Mich. 2012)