1. Grounds must be proved by "clear and convincing evidence"
2. Active efforts were made to prevent the break-up of the Indian family and those efforts have been unsuccessful.
3. There must be evidence that continued custody of the child with the parent will likely result in "serious emotional or physical damage to the child".
4. The termination of the parental rights is in the best interest of the child.
Emergency Removal of Indian Child
Current law allows a child to be removed from their parents even if that child is living on a reservation, but only when that child is temporarily located off the reservation. A court cannot authorize the removal of a child off of the reservation. An emergency removal is allowed only to prevent "imminent physical damage or harm to the child". If a child is subject to an emergency removal, a hearing must be held within 24 hours after the child is taken into custody. The court must provide notice to the tribe, parents and provide an expert to testify to provide the necessary "clear and convincing" evidence needed for a removal under the Indian Welfare Act. Once the "imminent danger" no longer exists, the child must be returned.
Failure to Comply with the Indian Welfare Act
If a petitioner can show that the Act was violated, the action of a Michigan state court can be invalidated. The Indian child, parent or tribe may file this petition. The remedy is usually remand in these types of cases for the tribal court to hear additional evidence to resolve issues affected by the Indian Welfare Act. Another remedy could be setting aside an order or dismissal, which would result in the child being returned to their parent.
Placement Preferences of Indian Child
If an Indian child is removed from their parents, preference will be given to placements that are likely to preserve the child's contact with family and with his/her tribe. Preference is given to relatives such as grandparents, aunt/uncle, brother, sister, niece, nephew and certain in-laws and step-parents. If a relative is not possible, the child must be placed in a foster home on institution approved by the child's tribe.