Volume X, Issue III Spring 2007 Offi cial Publication of the State Bar of Michigan Children’s Law Section State Bar of Michigan Children’s Law Section Evelyn C. Tombers, Chairperson Mary C. Pino, Chairperson-elect Katrina Dawn Martin, Secretary John H. McKaig, II, Treasurer The Michigan Child Welfare Law Journal Table of Contents NON-PROFIT Permanency Planning Mediation Pilot Program: The Michigan Experience, Monaca Eaton, MSW; Peg Whalen, MSW, PhD; and U.S. POSTAGE PAID Gary Anderson, MSW, PhD ...................................................................................................................................................................................................2 When the Rules Shift: A Review of the Indian Child Welfare Act, M.C.R. 2.615, and Tribal Court Jurisdiction in Michigan Family Law Cases, LANSING, MI Kathryn Fort, staff attorney and adjunct instructor, Indigenous Law and Policy Center, Michigan State University College of Law ................................... 11 PERMIT NO. 191 Identifying and Reporting Child Abuse and Neglect, Vincent J. Palusci, MD, MS, medical director, Child Protection Center, Children’s Hospital of Michigan ..............................................................................................................................................................................................................................................................................................................................................................17 Relative Placement in Abuse Cases, or Maybe Not: An Analysis of MCL 712A.13a(5) of the Juvenile Code, Eric G. Scott, assistant prosecutor, Sanilac County .....................................................................................................................................................................................................................31 The Michigan State University Kinship Care Resource Center, Ama Agyemag, MSW, Program Coordinator, MSU Kinship Care Resource Center ................35 Lost And Alone On Some Forgotten Highway: ASFA, Binsfeld, and the Law of Unintended Consequences, Honorable Kenneth L. Tacoma, chief judge, Wexford County Probate Court ........................................................................................................................................................................37 “The Road Goes on Forever and the Party Never Ends”: A Response to Judge Tacoma’s Prescription for a Return to Foster Care “Limbo” and “Drift,”Frank E. Vandervort, JD ........................................................................................................................................................................................... 43 The Michigan Child Welfare Law Journal Call for Papers: Foster Care Issues ................................................................................................................. 59 Upcoming Training and Conferences .................................................................................................................................................................................. 60 Published by: MSU Chance at Childhood Program MSU School of Social Work MSU College of Law with funding from the Governor’s Task Force on Children’s Justice and the Children’s Law Section of the State Bar of Michigan The Michigan Child Welfare Law Journal Spring 2007 Editor’s Note—Spring 2007 Th is issue of the Michigan Child Welfare Law Code” (Scott), the author describes the use of relative Journal focuses on practice in child protection cases. placements as an alternative to placing a child in foster Many child welfare practitioners consider this fi eld care. Th e author stresses the importance of focusing on of practice the most important area of practice with the child’s needs when considering a relative placement. children because of the focus on children’s immediate Following this article is a description of the safety and well being. Kinship Care Resource Center. Th is center serves as Th e articles in this issue cover a variety of topics. In a resource center for the many families in Michigan “Permanency Planning Mediation Pilot Program: Th e currently providing kinship care to children removed Michigan Experience” (Eaton, Whalen, and Ander- from their parents. Anyone working with fami- son), the authors present the results of a study evaluat- lies providing kinship care should be aware of this ing the use of mediation to resolve child protection center’s existence. cases in Michigan. Th e authors make a number of key In “Lost And Alone On Some Forgotten Highway: fi ndings and reach a number of interesting conclu- ASFA, Binsfeld, and the Law of Unintended Conse- sions regarding the implementation of this pilot quences” (Tacoma) the author discusses a variety of program. consequences of the Binsfeld legislation. Judge Tacoma In “When the Rules Shift: A Review of the Indian argues that the Binsfeld legislation requires certain Child Welfare Act, MCR 2.615 and Tribal Court actions that may not always be in the children’s best Jurisdiction in Michigan Family Law Cases” (Fort) the interest. Th is article has served as an impetus to new author reviews the relevance of ICWA and related law legislation being considered by the legislature to address to practice in this fi eld. ICWA is a complex statute some of the circumstances Judge Tacoma describes. with important implications for practice in this fi eld In “Th e Road Goes on Forever And the Party and this article clarifi es a number of key statutory Never Ends: A Response to Judge Tacoma’s Prescrip- provisions. tion for a Return to Foster Care Limbo and Drift” In “Identifying and Reporting Child Abuse and (Vandervort), the author presents a counterpoint to Neglect” Dr. Vincent J. Palusci, MD, MS, Medical some of the arguments Judge Tacoma makes, ensuring Director of the Child Protection Center at Children’s a healthy discussion of these complex issues. Hospital of Michigan, presents detailed information re- I hope you fi nd this issue interesting and useful. As garding the specifi c medical signs of abuse and neglect. always, the editorial board welcomes your feedback on In “Relative Placement In Abuse Cases, Or Maybe this and future issues to ensure that Th e Child Welfare Not: An Analysis of MCL 712A.13a(5) of the Juvenile Law Journal is of value to you. Editorial and Review Board Editor in Chief Frank E. Vandervort, JD Joseph Kozakiewicz, JD, MSW, Director Clinical Assistant Professor of Law Michigan State University Chance at Childhood Program University of Michigan Law School Copy Editor & Production Coordinator Kimberly Steed, LMSW, Coordinator Evelyn C. Tombers, JD, Associate Professor Michigan State University Chance at Childhood Program Thomas M. Cooley Law School John Seita, Assistant Professor Kathryn Falk Fehrman, JD, Director MSU School of Social Work Bay County Public Defender Delanie Pope, JD, Staff Attorney Michigan State University Chance at Childhood Program i Spring 2007 z Message from the Chair I’ll admit it. I have a legislative phobia. Put me Which brings me to the real point of this ram- in front of three to seven judges, and I’m a happy bling. I’m issuing my own challenge: get involved in camper. But make me talk to legislators . well . one of our section’s committees. We have an Educa- I’d rather have a root canal. tion Committee, a Legislative Committee, and an I recently had the opportunity to meet United Amicus Committee. Our Education Committee States Senator Debbie Stabenow (D. Michigan) at the plans our annual training, the Legislative Committee celebration of 30 years of the University of Michigan’s evaluates proposed legislation on children’s issues, and Child Advocacy Law Clinic. Before her address, I fool- the Amicus Committee writes amicus briefs in our ap- ishly told her of my phobia. I say foolishly because her pellate courts. From time to time, the council creates address to those attending the dinner exhorted us to ad-hoc committees to explore current issues. get involved with our legislators. She challenged us all So if you have a fl air for writing, a yearning to to advocate our positions to our legislators. Needless explore current legislation, or a teacher in you waiting to say, I wanted to crawl under the table. to get out, contact the section council, and we’ll fi nd a Th is is why I’m so thankful for the Children’s Law place for you. Section’s Legislative Committee. Its members are not Finally, if you have issues that need raising with the legislatively challenged. In fact, they enjoy advancing courts or with the legislature, let us know—you may the section’s positions with the legislature. And they’re fi nd yourself chairing an ad-hoc committee. working hard at it. Evelyn C. Tombers, Chair State Bar of Michigan Children’s Law Section 1 The Michigan Child Welfare Law Journal z Permanency Planning Mediation Pilot Program: The Michigan Experience by Monaca Eaton, MSW; Peg Whalen, MSW, PhD; and Gary Anderson, MSW, PhD Abstract Michigan CIP initiated the Permanency Planning Mediation Pilot Program. Th is article provides a retrospective look at the Th e statewide assessment recommended that fi rst three years of Michigan’s Permanency Planning mediation be implemented at various points in time Mediation Pilot (PPMP) Program (child protection mediation) in seven Michigan pilot program sites. in child protection proceedings. Mediation is defi ned Michigan’s federally funded Court Improvement Pro- as the process in which a neutral third