"The Michigan Supreme Court heard the oral argument today in the In re Lee case, which we’ve referenced before. The case involves both the issue of active efforts and the beyond a reasonable doubt standard required by the Indian Child Welfare Act. Specifically the Court asked whether active efforts have to be recent and for each individual Indian child and whether the beyond a reasonable doubt standard required contemporaneous evidence of the emotional or physical harm to the child if he remains with his parent. Both the American Indian Law Section and the Children’s Law Section of the Michigan bar filed amicus briefs in the case.

Justices Young, Markman and Corrigan asked the most questions, with one question from Justice Hathaway and one from Justice Weaver. The issue of active efforts as current efforts particularly concerned Justice Young. Justice Young went so far as to posit that it was unnecessary for the Court to reach a decision on what active efforts requires because of the beyond a reasonable doubt standard–that it would require “current evidence to make a rational decision” under the beyond a reasonable doubt standard. Therefore the question of “active” as “current” wouldn’t need to be reached.

Justice Markman was concerned about whether past efforts for a person who has a permanent disability would be enough to say that current active efforts would be futile. Our newest Justice, Justice Hathaway, wanted the Appellant’s attorney to concede that consideration of Appellant’s past behavior is still required to make a determination about termination–specifically that the attorneys must look to “the totality of the circumstances” when moving to terminate parental rights."

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In re Lee Oral Argument (Turtle Talk 3/4)