IN RE TIMOTHY BENNETT MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of KEVEN BENNETT, Minor.
FAMILY INDEPENDENCE AGENCY,
UNPUBLISHED
November 6, 2001
Petitioner-Appellee,
v
No. 233095
Montcalm Circuit Court
Family Division
LC No. 99-010310-NA
TIMOTHY BENNETT,
Respondent-Appellant,
and
CHRISTINE PEKKALA,
Respondent.
In the Matter of JASON BENNETT, Minor.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
V
No. 233096
Montcalm Circuit Court
Family Division
LC No. 99-010311-NA
TIMOTHY BENNETT,
Respondent-Appellant,
and
CHRISTINE PEKKALA,
Respondent.
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In the Matter of TIMOTHY BENNETT, Minor.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellee,
v
TIMOTHY BENNETT,
No. 233097
Montcalm Circuit Court
Family Division
LC No. 99-010312-NA
Respondent-Appellant,
and
CHRISTINE PEKKALA,
Respondent.
Before: Doctoroff, P.J., and Wilder and C. C. Schmucker*, JJ.
PER CURIAM.
Respondent-appellant Timothy Bennett appeals by delayed leave granted from the trial
court’s order terminating his parental rights to the minor children under MCL 712A.19b(3)(c)(i)
and (g). We affirm.
Respondent-appellant argues that the trial court applied an improper standard of proof in
its decision terminating his parental rights. Respondent-appellant predicates this claim on the
assumption that the Indian Child Welfare Act (ICWA) applied to these proceedings. We find no
merit to respondent-appellant’s claim.
25 USC 1912(a) provides:
In any involuntary proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved, the party seeking the foster
care placement of, or termination of parental rights to, an Indian child shall notify
the parent or Indian custodian and the Indian child’s tribe, by registered mail with
return receipt requested, of the pending proceedings and of their right of
intervention. If the identity or location of the parent or Indian custodian and the
tribe cannot be determined, such notice shall be given to the Secretary [of the
Interior] in like manner, who shall have fifteen days after receipt to provide the
requisite notice to the parent or Indian custodian and the tribe.
* Circuit judge, sitting on the Court of Appeals by assignment
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An “Indian child” is defined as “any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is
the biological child of a member of an Indian tribe.” 25 USC 1903(4). Once notice is provided
to the appropriate tribe, it is for the tribe to decide if the minor child qualifies as an “Indian
child.” In re IEM, 233 Mich App 438, 447-448; 592 NW2d 751 (1999); In re TM (After
Remand), 245 Mich App 181, 187; ___ NW2d ___ (2001). If proper notice is provided and a
tribe fails to either respond or intervene in the matter, the burden shifts to the parents to show
that the ICWA still applies. In re IEM, supra at 449; In re TM (After Remand), supra at 187.
In this case, respondent-appellant informed the court at the preliminary hearing that he
was Cherokee Indian. The record reveals that both the Cherokee Nation and the Eastern Band of
Cherokee Indians were notified of the proceedings and responded by indicating that the children
were not members of the tribe or eligible for membership. Because the required notice was
provided to the Indian tribes who declined to intervene, it was respondent-appellant’s burden to
show that the ICWA still applies. In re IEM, supra at 449; In re TM (After Remand), supra at
187. Respondent-appellant never objected to the determinations made by the Indian
organizations or take any further action to show that the ICWA applied. Accordingly, the
children were not Indian children as defined in the ICWA. Further, once notice was properly
provided to the Indian organizations and they declined to intervene, it was not necessary to notify
the organizations after the petitions requesting termination of respondent-appellant’s parental
rights were filed.
Affirmed.
/s/ Martin M. Doctoroff
/s/ Kurtis T. Wilder
/s/ Chad C. Schmucker
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