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STATE OF MICHIGAN 

COURT OF APPEALS 

 

FOR PUBLICATION 

In re SPEARS, Minors. March 19, 2015 

9:00 a.m. 

No. 320584 

Leelanau Circuit Court 

 Family Division 

LC No. 09-007999-NA 

 

Before: RIORDAN, P.J., and MARKEY and WILDER, JJ. 

PER CURIAM. 

 Appellant, Grand Traverse Band of Ottawa and Chippewa Indians (the “tribe”), appeals 

by leave granted the circuit court’s order denying its request to transfer adoption proceedings to 

the tribal court pursuant to § 7 of Michigan’s Indian Family Preservation Act (the “MIFPA”), 

MCL 712B.1 et seq. We conclude that the circuit court committed error warranting reversal in 

denying the tribe’s request to transfer these proceedings to the tribal court under MCL 

712B.7(5). The statute only permits the circuit court to deny a transfer request in two instances, 

and the circuit court improperly construed the statue to give it greater authority to deny a 

transfer. We therefore reverse and remand for further proceedings consistent with this opinion. 

I. FACTUAL BACKGROUND 

 This case began in 2010 when the Department of Human Services (DHS) petitioned the 

circuit court to take jurisdiction over the minors under MCL 712A.2 on the basis of alleged 

abuse and neglect. The court took jurisdiction over the minors in August 2010, and in September 

2010, the minors’ mother requested that the court transfer the case to the tribal court. The circuit 

court notified the tribe of the proceedings in November 2010, but the tribe responded that the 

minors were not members or eligible for tribal membership. The DHS filed a supplemental 

petition in November 2011 seeking the termination of the parental rights of the minors’ mother. 

 In December 2011, the tribe filed a notice of intervention, stating that the minors were, in 

fact, enrolled members or eligible for membership. The tribe stated that this determination was 

made possible after adoption records regarding the minors’ mother were unsealed and provided 

to the tribe’s membership office. The minors were enrolled as members in February 2012. On 

February 13, 2012, the minors’ mother filed a motion to dismiss the supplemental petition for 

noncompliance with the Indian Child Welfare Act (ICWA), 25 USC 1902 et seq. The mother 

also moved to transfer the case to the tribal court, which the circuit court granted but the tribal 

court denied the transfer, stating in part, that it would not be in the best interests of the minors. 
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 On April 6, 2012, the minors’ mother voluntarily released her parental rights to the 

minors. And, on April 18, 2012, following a hearing, the circuit court entered an order 

terminating the parental rights of the minors’ father. 

 The minors’ foster parents, respondents Tim Donn and Anne Donn, with whom the 

minors had been residing for several years, and the minors’ paternal grandparents in Missouri 

each wished to adopt the minors. The court ordered that the placement of the minors remain 

with the Donns until the Michigan Children’s Institute (MCI), through its agent, Bethany 

Christian Services, had completed its assessment and made a recommendation for adoptive 

placement. The tribe favored adoption with the minors’ paternal grandparents. 

 On December 6, 2013, the MCI recommended adoptive placement with the Donns, who 

filed a petition for adoption on December 13, 2013. The tribe filed a motion to transfer the 

proceedings to its tribal court on December 23, 2013. The tribe also filed a motion in the tribal 

court to accept the transfer. The minors’ attorney and guardian ad litem filed a recommendation 

in the circuit court to deny the requested transfer to the tribal court, stating there was good cause 

to not transfer based on the length of time the children had been in placement, the late stage of 

the proceedings, and the amount of time it would take to appoint and inform a new guardian ad 

litem in the tribal court regarding the lengthy background of the proceedings. 

 The circuit court held a hearing on February 6, 2014 regarding the tribe’s motion to 

transfer. The court denied the request due to the advanced stage of the case, noting that the tribal 

court had already denied a transfer once on the basis that it was not in the best interests of the 

minors and that nothing had changed since then other than the adoption recommendation. The 

circuit court also concluded a transfer would not be in the best interests of the children. 

 The circuit court also addressed the “good cause” requirement of MCL 712B.7(5) to deny 

the tribe’s transfer request. The circuit court observed that the tribe did have a tribal court, MCL 

712B.7(5)(a), but ruled that “undue hardship” of MCL 712B.7(5)(b) was not limited to the 

hardship imposed on witnesses to present evidence in the tribal court, explaining it found “clear 

and convincing evidence that hardship to the parties; to wit, the three children, would occur if 

this transfer were granted.” The court noted that the minors were undergoing stress and that they 

needed permanency. Additionally, the court found that the minors had been out of a parent’s 

home for nearly five years and should not be subjected to any more stress in that regard. 

 On February 7, 2014, the circuit court entered its order denying the tribe’s motion to 

transfer for the reasons stated on the record. The court also stayed all proceedings, including its 

order denying a transfer to tribal court, pending the exhaustion of appellate remedies. 

II. ANALYSIS 

A. STANDARD OF REVIEW 

 Statutory interpretation is a question of law that this Court reviews de novo. In re 

Morris, 491 Mich 81, 97; 815 NW2d 62 (2012). Any factual determinations of the lower court 

are reviewed for clear error. Id.; MCR 2.613(C). 
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 When interpreting a statute, a court’s primary goal is to ascertain and effectuate the intent 

of the Legislature. Titan Ins Co v State Farm Mut Auto Ins Co, 296 Mich App 75, 83; 817 

NW2d 621 (2012). The intent of the Legislature is found in the terms of the statute, giving its 

words their plain and ordinary meaning. Id.; In re Kostin Estate, 278 Mich App 47, 57; 748 

NW2d 583 (2008). Nontechnical “words and phrases shall be construed and understood 

according to the common and approved usage of the language . . . .” MCL 8.3a. Where a word 

used in a statute is undefined, a dictionary may be consulted to discern its common meaning. 

Echelon Homes, LLC v Carter Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005). Courts 

must enforce clear statutory language as written. Id. 

 “The Legislature is presumed to be aware of all existing statutes when enacting a new 

statute.” Hughes v Almena Twp, 284 Mich App 50, 626 771 NW2d 453 (2009). When statutes 

relate to the same subject or share a common purpose they are in pari materia and must be read 

together as one law, even if the statutes contain no reference to one another and were enacted on 

different dates. Id.; Titan Ins Co, 296 Mich App at 84. 

B. DISCUSSION 

 We begin our review of the MIFPA by looking at the legal background in which it was 

enacted. First, we examine federal law regarding Indian child welfare. Our Supreme Court 

summarized the legislative history of the ICWA: 

 In 1978, Congress enacted [the Indian Child Welfare Act, 25 USC 1901 et 

seq. (“ICWA”)] in response to growing concerns over “abusive child welfare 

practices that resulted in the separation of large numbers of Indian children from 

their families and tribes through adoption or foster care placement, usually in nonIndian homes.” Senate hearings conducted between 1974 and 1978 considered 

the harm of these child welfare practices, not only to the Indian children and their 

parents, but also to the Indian tribes. [In re Morris, 491 Mich at 97-98, quoting 

Mississippi Band of Choctaw Indians v Holyfield, 490 US 30, 32; 109 S Ct 1597; 

104 L Ed 2d 29 (1989).] 

 When it enacted the ICWA, Congress declared that it was establishing “minimum Federal 

standards for the removal of Indian children from their families and the placement of such 

children in foster or adoptive homes” in order to “protect the best interests of Indian children and 

promote the stability and security of Indian tribes and families[.]” 25 USC 1902 (emphasis 

added). The ICWA specifically defines “child custody proceeding” to include those concerning 

the foster care and adoptive placement of Indian children, 25 USC 1903(1), and provides that 

tribal courts have presumptive and concurrent jurisdiction with state courts over such 

proceedings when Indian children, such as the minors in this case, reside outside an Indian 

reservation and are not wards of the tribal court, 25 USC 1911(b). See Holyfield, 490 US at 36 

(“Section 1911(b) . . . creates concurrent but presumptively tribal jurisdiction in the case of 

children not domiciled on the reservation”). The statute, 25 USC 1911(b), provides: 

 In any State court proceeding for the foster care placement of, or 

termination of parental rights to, an Indian child not domiciled or residing within 

the reservation of the Indian child’s tribe, the court, in the absence of good cause 
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to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, 

absent objection by either parent, upon the petition of either parent or the Indian 

custodian or the Indian child’s tribe: Provided, that such transfer shall be subject 

to declination by the tribal court of such tribe. 

 The ICWA does not define “good cause” sufficient for a state court to deny a proper 

request to transfer an Indian child placement proceeding to a tribal court but the Bureau of Indian 

Affairs has issued guidelines commenting on the question. See Bureau of Indian Affairs, 

Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg No. 228, 67591, 

§ C.3 (November 26, 1979). According to the BIA guidelines, 

 (a) Good cause not to transfer the proceeding exists if the Indian child’s 

tribe does not have a tribal court as defined by the Act to which the case can be 

transferred. 

 (b) Good cause not to transfer the proceeding may exist if any of the 

following circumstances exists: 

 (i) The proceeding was at an advanced stage when the petition to transfer 

was received and the petitioner did not file the petition promptly after receiving 

notice of the hearing. 

 (ii) The Indian child is over twelve years of age and objects to the 

transfer. 

 (iii) The evidence necessary to decide the case could not be adequately 

presented in the tribal court without undue hardship to the parties or the witnesses. 

 (iv) The parents of a child over five years of age are not available and the 

child has had little or no contact with the child’s tribe or members of the 

child’s tribe. 

 (c) Socio-economic conditions and the perceived adequacy of tribal or 

Bureau of Indian Affairs social services or judicial systems may not be considered 

in a determination that good cause exists. 

 (d) The burden of establishing good cause to the contrary shall be on the 

party opposing the transfer. [Id.] 

 BIA guidelines also comment on the timeliness of a request to transfer a child custody 

proceeding to a tribal court: 

 While the Act permits intervention at any point in the proceeding, it does 

not explicitly authorize transfer requests at any time. Late interventions do not 

have nearly the disruptive effect on the proceeding that last minute transfers do. 

A case that is almost completed does not need to be retried when intervention is 

permitted. The problems resulting from late intervention are primarily those of 
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the intervenor, who has lost the opportunity to influence the portion of the 

proceedings that was completed prior to intervention. 

 Although the Act does not explicitly require transfer petitions to be timely, 

it does authorize the court to refuse to transfer a case for good cause. When a 

party who could have petitioned earlier waits until the case is almost complete to 

ask that it be transferred to another court and retried, good cause exists to deny the 

request. 

 Timeliness is a proven weapon of the courts against disruption caused by 

negligence or obstructionist tactics on the part of counsel. If a transfer petition 

must be honored at any point before judgment, a party could wait to see how the 

trial is going in state court and then obtain another trial if it appears the other side 

will win. Delaying a transfer request could be used as a tactic to wear down the 

other side by requiring the case to be tried twice. The Act was not intended to 

authorize such tactics and the “good cause” provision is ample authority for the 

court to prevent them. [BIA guidelines at 67590, § C.1 Commentary.] 

 Further, the BIA guidelines discuss undue hardship to the parties or the witnesses, 

§ C.3(b)(iii), as a factor for finding good cause to deny a transfer by quoting the House Report on 

the ICWA with respect to § 1911(b) and further commenting as follows: 

“The subsection is intended to permit a State court to apply a modified doctrine of 

forum non conveniens, in appropriate cases, to insure that the rights of the child as 

an Indian, the Indian parents or custodian, and the tribe are fully protected.” 

Where a child is in fact living in a dangerous situation, he or she should not be 

forced to remain there simply because the witnesses cannot afford to travel long 

distances to court. 

 Application of this criterion will tend to limit transfers to cases involving 

Indian children who do not live very far from the reservation. This problem may 

be alleviated in some instances by having the court come to the witnesses. 

* * * 

 The timeliness of the petition for transfer, discussed at length in the 

commentary to section C.l, is listed as a factor to be considered. . . . Long periods 

of uncertainty concerning the future are generally regarded as harmful to the wellbeing of children. For that reason, it is especially important to avoid unnecessary 

delays in child custody proceedings. [BIA guidelines at 67591-67592, § C.3 

Commentary.]

 In 2010, the Michigan Court Rules were amended to reflect the requirements of the 

ICWA regarding petitions to transfer child custody proceedings to a tribal court and defined 

good cause not to transfer in reference to the BIA Guidelines. Specifically, MCR 3.905(C)(1), as 

adopted February 2, 2010, effective May 1, 2010, 485 Mich ccxxxiv, stated that “[i]n 

determining whether good cause not to transfer exists, the court shall consider the Bureau of 

Indian Affairs, Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed Reg No 
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228, 67590-67592, C.2-C.4 (November 26, 1979).” MCR 3.905(C)(1) was again amended on 

March 20, 2013, effective immediately, to reflect the Legislature’s adoption of the MIFPA, 

which established standards for finding of good cause to deny a transfer of an Indian child 

custody proceeding to a tribal court. 493 Mich cciv-ccv. The 2013 version of MCR 3.905(C)(1) 

did not refer to the BIA guidelines and instead incorporated the criterion of MCL 712B.7(3)-(5): 

 (1) If either parent or the Indian custodian or the Indian child’s tribe 

petitions the court to transfer the proceeding to the tribal court, the court shall 

transfer the case to the tribal court unless either parent objects to the transfer of 

the case to tribal court jurisdiction or the court finds good cause not to transfer. 

When the court makes a good-cause determination under this section, adequacy of 

the tribe, tribal court, or tribal social services shall not be considered. A court 

may determine that good cause not to transfer a case to tribal court exists only if 

the person opposing the transfer shows by clear and convincing evidence that 

either of the following applies: 

 (a) The Indian tribe does not have a tribal court. 

 (b) The requirement of the parties or witnesses to present evidence in 

tribal court would cause undue hardship to those parties or witnesses that the 

Indian tribe is unable to mitigate. [MCR 3.905(C)(1); 493 Mich cciv-ccv.] 

 The Michigan Legislature enacted the MIFPA, MCL 712B.1 et seq., which took effect on 

January 2, 2013, with the purpose of protecting “the best interests of Indian children and 

promot[ing] the stability and security of Indian tribes and families.” MCL 712B.5(a). The best 

interests of Indian children are to be determined in child custody proceedings in consultation 

with the Indian child’s tribe, in accordance with the IWCA, and the policy specified in the 

MIFPA. MCL 712B.5. The MIFPA addresses transfers to a tribal court of a child custody 

proceeding involving an Indian child not domiciled or residing within the reservation of the 

Indian child’s tribe in MCL 712B.7(3): 

 In any state court child custody proceeding, for an Indian child not 

domiciled or residing within the reservation of the Indian child’s tribe, the court, 

in the absence of good cause to the contrary, shall transfer the proceeding to the 

Indian tribe’s jurisdiction, absent objection by either parent, upon the petition of 

either parent or the Indian custodian or the Indian child’s tribe, provided that the 

transfer is subject to declination by the tribal court of the Indian tribe. 

 Unlike the ICWA, the MIFPA provides clear and unambiguous standards for circuit 

courts when exercising their discretion regarding what constitutes “good cause to the contrary” 

when considering a petition to transfer an Indian child custody case to a tribal court. MCL 

712B.7(5) provides: 

 A court may determine that good cause not to transfer a case to tribal court 

exists only if the person opposing the transfer shows by clear and convincing

evidence that either of the following applies: 

 (a) The Indian tribe does not have a tribal court. 
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 (b) The requirement of the parties or witnesses to present evidence in 

tribal court would cause undue hardship to those parties or witnesses that the 

Indian tribe is unable to mitigate. [Emphasis added.] 

Section 7(3) of MIFPA further provides: “When a court makes a good cause determination under 

this section, adequacy of the tribe, tribal court, or tribal social services shall not be considered.” 

MCL 712B.7(4). As noted already, MCR 3.905(C)(1) was amended to delete reference to the 

BIA guidelines and instead incorporates the requirements of the MIFPA.1 

 With this extended legal history, we address the issue presented in this case: May a 

circuit court find “good cause not to transfer a case to tribal court” under MCL 712B.7(5)(b) on 

the basis of “undue hardship” to an Indian child or children as a result of delay in the 

proceedings resulting from the transfer of a long-pending case to tribal court? Stated otherwise, 

does MCL 712B.7(5)(b) permit a circuit court to deny a request to transfer an Indian child 

custody proceeding to a tribal court based on the timeliness of the request or the effect the 

transfer may have on the child’s best interests? However meritorious these considerations may 

be, we conclude that the plain language of MCL 712B.7(5)(b) does not permit the circuit court to 

consider either the timeliness of the request or its possible effect on the child’s best interest in 

determining whether there exists “good cause not to transfer a case to tribal court.” 

 In answering this question, our primary goal is to ascertain and effectuate the intent of the 

Legislature. Titan Ins Co, 296 Mich App at 83. In doing so, we must first examine “the most 

reliable evidence of the Legislature’s intent, the language of the statute itself.” Book-Gilbert v 

Greenleaf, 302 Mich App 538, 541; 840 NW2d 743 (2013). We must give effect to every word, 

phrase, and clause in a statute, and avoid a construction that would render part of the statute 

surplusage or nugatory. Id. Thus, we ascertain the intent of the Legislature from the terms of the 

statute, giving its words their plain and ordinary meaning. In re Kostin Estate, 278 Mich App at 

57. Where the terms of a statute are clear and unambiguous, we must enforce the statute as 

written. Id.; Book-Gilbert, 302 Mich App at 541. 

 MCL 712B.7(3) unambiguously provides that a court “shall” transfer proceedings to a 

tribal court unless either parent objects or there is “good cause to the contrary,” and MCL 

712B.7(5) unambiguously provides that good cause not to transfer a case to tribal court exists 

“only if,” by clear and convincing evidence, one or two circumstances exist. And because there 

is no dispute that a tribal court exists, MCL 712B.7(5)(a), the sole issue is whether the circuit 

court properly concluded that “[t]he requirement of the parties or witnesses to present evidence 

in tribal court would cause undue hardship to those parties or witnesses that the Indian tribe is 

unable to mitigate” under MCL 712B.7(5)(b). 

 

1

 MCR 3.807(B)(2)(a), adopted February 2, 2010 and effective May 1, 2010, was worded 

identically to MCR 3.905(C)(1), incorporating the BIA guidelines. See 485 Mich ccxxxi. MCR 

3.807(B)(2)(a) was also amended after the enactment of the MIFPA to eliminate reference to the 

BIA guidelines and incorporate the requirements of the MIFPA using language identical to the 

2013 version of MCR 3.905(C)(1). See 493 Mich ccii-cciii. 
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 By its plain language, good cause to not transfer an Indian child custody proceeding to a 

tribal court under MCL 712B.7(5)(b) has three components. First, there must be an undue 

hardship on the parties or witnesses that will be required to present evidence in the tribal court.2

 

See MCL 712B.7(5)(b) (stating “[t]he requirement of the parties or witnesses to present evidence 

in tribal court would cause undue hardship to those parties or witnesses”) (emphasis added). 

Second, the undue hardship must stem from the requirement to present evidence in the tribal 

court. See MCL 712B.7(5)(b) (mandating that “[t]he requirement of the parties or witnesses to 

present evidence would cause undue hardship”) (emphasis added). Third, the Indian tribe must 

be unable to mitigate the undue hardships caused by the requirement of the parties or witnesses 

present evidence in the tribal court. MCL 712B.7(5)(b). 

 In ruling that there was good cause not to transfer the proceedings to the tribal court, the 

circuit court ignored each of the criterion of MCL 712B.7(5)(b). First, the circuit court based its 

decision on an undue hardship to the minors without determining whether the minors had any 

requirement to present evidence in the tribal court. The circuit court also did not identify any 

other parties or witnesses that would be required to present evidence in the tribal court. And the 

circuit court failed to explain why the tribal court would be unable to mitigate the anticipated 

undue hardships. Moreover, the circuit court did not relate the anticipated undue hardship to the 

requirement to present evidence in the tribal court. Instead, the court ruled that it would give 

MCL 712B.7(5)(b) a “wider” interpretation, allowing it to consider the timeliness of the request 

and the minors’ bests interests. We have no doubt that the circuit court was motivated by its 

understanding of what would be in the minors’ best interests. Nevertheless, when the Legislature 

fails to address a concern in the statute with a specific provision, a court cannot insert a provision 

simply because it would have been wise for the Legislature to do so. Book-Gilbert, 302 Mich 

App at 542. However wise it may have been for the Legislature to provide that there is good 

cause not to transfer a case to a tribal court when the transfer request is made at an advanced 

stage of the proceeding or when a transfer would negatively affect a minor’s best interests, the 

Legislature chose to define “good cause” using different criteria than considered in the BIA 

guidelines. We must enforce the unambiguous language of MCL 712B.7(5)(b) as written. BookGilbert, 302 Mich App at 541; In re Kostin Estate, 278 Mich App at 57. 

 Although the BIA guidelines provide separately that good cause not to transfer a case to a 

tribal court may exist if a request to transfer is made at “an advanced stage . . . and the petitioner 

did not file the petition promptly after receiving notice of the hearing,” BIA guidelines, at 67591, 

§ C.3(b)(i), the Michigan Legislature chose not to include timeliness of the request for transfer as 

a basis for finding good cause under MCL 712B.7(5). Instead, the Michigan Legislature decided 

 

2

 We note that MCR 3.903(A)(19)(b) defines “party” to include the “petitioner, child, 

respondent, and parent, guardian, or legal custodian in a protective proceeding.” We also 

observe that MCL 712B.7(6), MCR 3.807(B)(3) and MCR 3.905(D) all extend the right to 

intervene in an Indian child custody proceeding to the Indian child. “In any state court child 

custody proceeding, an Indian child, the Indian custodian of the child, and the Indian child’s 

tribe have a right to intervene at any point in the child custody proceeding.” MCL 712B.7(6) 

(emphasis added). 
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to impose a more exacting standard than provided in the ICWA’s “minimum Federal standards,” 

25 USC 1902, by specifying that good cause not to transfer exists “only if” (1) “[t]he Indian tribe 

does not have a tribal court,” or (2) “[t]he requirement of the parties or witnesses to present 

evidence in tribal court would cause undue hardship to those parties or witnesses that the Indian 

tribe is unable to mitigate.” MCL 712B.7(5) (emphasis added). 

 Further, the BIA guidelines consider the timeliness of a request to transfer in part because 

the ICWA permits Indian tribes to intervene in state child custody proceedings at any time, but 

do not explicitly permit them to request transfers at any time. BIA guidelines, at 67590, § C.1. 

Compare 25 USC 1911(c) (permitting intervention in state court proceedings “at any point in the 

proceeding”) with 25 USC 1911(b) (requiring transfers in the absence of good cause to the 

contrary or an objection by either parent, without specifying when transfer requests may or may 

not be made). But unlike the ICWA, Michigan Court Rules expressly provide that “[a] petition 

to transfer may be made at any time in accordance with MCL 712B.7(3).” MCR 3.807(B)(2)(d); 

MCR 905(C)(4) (emphasis added). See e.g., In re NV, 744 NW2d 634, 638 (Iowa, 2008) 

(finding that the Iowa legislature, when it adopted the Iowa version of the ICWA, included the 

undue hardship provision of the BIA guidelines but not the provision dealing with the timeliness 

of a transfer request). 

 Finally, although the Donns argue that the circuit court’s decision should be affirmed 

because the tribal court waived its right to accept a transfer by denying a prior transfer request, 

they present no authority supporting the position that a tribal court can waive its jurisdiction at 

all, let alone by merely denying a prior request. Accordingly, we find this argument has been 

abandoned. See Bronson Methodist Hosp v Mich Assigned Claims Facility, 298 Mich App 192, 

199; 826 NW2d 197 (2012) (holding than an appellant abandons an argument made with only 

superficial treatment and little or no citation of supporting authority). Further, our Court Rules 

broadly provide that “[a] petition to transfer may be made at any time . . .,” MCR 3.802(2)(d); 

MCR 905(C)(4), and respondents point to no authority limiting this right. 

 We reverse and remand for further proceedings consistent with this opinion. Because a 

question of public policy is involved, no taxable costs may be assessed under MCR 7.219. We 

do not retain jurisdiction. 

/s/ Michael J. Riordan 

/s/ Jane E. Markey 

/s/ Kurtis T. Wilder