Indian Child Welfare Act (ICWA) 624-05-15-52

(New 2/1/17 ML #3487)

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PI 17-32

 

Foster care case managers are responsible to comply with the Indian Child Welfare Act (ICWA) for all eligible children who enter foster care. ICWA is a federal law passed in 1978 in response to the high number of Indian children removed from their homes; the law was revised in 2016. The intent of ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian Tribes and families (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized Tribe.

 

ICWA promotes the well-being of American Indian children by keeping them connected to their families, Tribes, and cultural heritage. If removal is necessary, "active efforts" must be made for reunification. ICWA reinforces foster care placements should be in a least restrictive, most family-like setting where the child's needs may be met. ICWA only protects American Indian and Alaska Native children who are:

  1. Unmarried;
  2. Under 18 years old; AND
  3. A tribal member; OR
  4. Eligible for tribal membership AND have a biological parent who is a tribal member.

There are various areas of compliance that must be met for ICWA cases.

  1. Verification of Child's Indian Status

Foster care case managers must determine a child’s Indian status as soon as possible to serve in the best interests of the child, the Tribe and to preserve the child's culture. If determined by the CPS worker at the time of initial assessment that the child is a Tribal member or eligible for membership in an Indian Tribe, the foster care case manager will ensure the necessary notifications have been completed. If a determination has not been made, the foster care case manager must:

  1. Ask the child and family how they self-identify as part of the initial assessment (i.e. Family Assessment Instrument), and before every change or potential change in custody.
  2. Use due diligence to identify and work with the Tribe(s) of which there is:
    1. Reason to know the child may be a member or eligible for membership AND
    2. Verification the child is a member or their biological parent is a member and the child is eligible for membership;
  3. Treat the child as an Indian child, until it is determined on the court record that the child does not meet the definition of an Indian child. Include a minimum of one monthly contact to the Tribe(s) to request help in contacting the family or identifying family affiliation until the Tribe responds.
  4. Contact each Tribe where there is reason to know a child may be a member or eligible for membership. A child may be eligible for membership in more than one Tribe, however can only be enrolled in one Tribe at a time.

If the foster child does not meet the definition of “Indian child” outlined in the act, ICWA would not apply to the child’s case. Only a Tribe can determine whether a child is a member of their Tribe.

 

When the Child is Eligible for Tribal Membership

The foster care case manager must confirm the membership status of the biological parent. The response to both the Indian child’s and biological parent’s status must be documented in the case record, including date and source of documentation. The foster care case manager must:

  1. File in the case record the Tribe’s written statement declaring the Indian child’s eligibility for membership; AND
  2. Incorporate into any court hearing the Tribe’s written statement declaring the Indian child’s eligibility for membership and the biological parent’s membership; AND
  3. Assist the family in formally enrolling the Indian child or establishing membership of the Indian child (if necessary, the foster care case manager may counsel parents hesitant to enroll their Indian child by emphasizing the positive benefits of tribal membership, particularly in child welfare and adoption proceedings).
  1. Contacting a Tribe

If the foster care case manager does not have accurate contact information for a Tribe, or the contacted Tribe fails to respond to written inquiries, foster care case manager must:

  1. Seek assistance from the BIA local or regional office; OR
  2. Seek assistance from the BIA’s Central Office in Washington, DC (see www.bia.gov); OR
  3. Find the Tribe’s designated tribal agent for service of notice.
    1. BIA publishes a list each year in the Federal Register
    2. The list is also available at: www.bia.gov under the “Office of Indian Services” and “Division of Human Services”
  1. ICWA Exemptions

ICWA does not apply to:

  1. Custody of Indian child to one of the parents.
  2. Tribal court proceedings;
  3. Proceedings including criminal act(s) when the youth is adjudicated delinquent; as status offenses are not considered criminal if committed by an adult (Ex: truancy, running away from home, violating curfew, underage use of alcohol, etc.)

Note: ICWA may apply in a juvenile delinquency proceeding when the permanency goal is something other than reunification with the parents/guardians with whom the child was removed.

 

Parents cannot ask for an exemption or request to “opt out” of ICWA or application for their children. A parent can request the case not be transferred to a Tribal Court, but cannot decline ICWA regulations if ICWA applies to the child.

 

  1. Non-ICWA Cases

It may be determined that ICWA does not apply to an Indian child when a Tribe responds that the child is not a member or eligible for membership. When this occurs, the foster care case manager must:

  1. Provide a written statement to the court documenting the Tribe has declared the Indian child is not a member and is not eligible for membership.
  2. Document in the case activity log each contact made with the Tribe, as well as when a Tribe responds declaring the Indian child is not a member or eligible for membership.
  3. Change the Indian child’s ICWA status in the data management system (FRAME) to “no”.
  4. Develop a culturally appropriate case plan for the child.

 

  1. Indian Child Placement Preferences and Relative Search

The foster care case manager is required to discuss placement preferences with the child’s parent(s) and/or Tribe on an ongoing basis; preference review should be done during each Child and Family Team meeting, each court proceeding, etc.

 

All efforts for child placement must be in a location where the parent can have regular access to the child without undue economic, physical, or cultural hardship. When ICWA applies to an Indian child, placement preferences apply in any foster care, pre-adoptive, and adoptive placement, unless the court finds good cause to deviate from the placement preferences, or the Indian child’s Tribe has established a different order of preference than those identified by ICWA law.

  1. Order of Placement Preference are:
    1. a. A member of the child's extended family.
    2. b. A foster home licensed or specified by the Tribe.
    3. c. An American Indian foster home approved by the state.
    4. d. A group home or facility approved by a Tribe or operated by an American Indian organization that has a program suitable to meet the child's needs.
  2. Good Cause - Placement Preferences

The foster care case manager must follow placement preferences unless good cause exists not to comply. ICWA states that the party asserting that there is good cause to deviate from the placement preferences must state on the record, in court or in writing to the parties, the reason for that assertion or belief. Good cause should be based upon:

  1. Preference of parents after reviewing placement options,
  2. Request of the child,
  3. Presence of sibling(s),
  4. Unavailability of placement after a diligent search, or
  5. Unavailability of a placement based on the Indian community’s cultural standards.

Good cause not to follow placement preferences cannot be based on ordinary bonding and attachment or the socioeconomic status of one placement versus another.

 

  1. Court Proceedings

The foster care case manager must be prepared to present to the court all the evidence it has about a child’s connection to a Tribe. If ICWA does apply, the court is responsible to follow specific criteria for Indian children. ND Supreme Court created an ICWA hard card for the Judicial Bench book; a tool to help prepare proper language for the affidavit presented to the court regarding ICWA.

 

ND foster care case managers must request that the court make a finding on the record at every custody proceeding (emergency, involuntary, voluntary, etc.) if any participant knows or has reason to know that the child is an Indian child and whether ICWA applies.

 

If the court does not have sufficient evidence to confirm that the child is an Indian child, the court must make diligent efforts to work with the Tribe(s) where there is reason to know the Indian child may be affiliated. The court will proceed by applying ICWA until they have confirmation that the child is not an Indian child or ICWA does not apply. The Tribe believed to be the child’s Tribe is the only entity that can make a determination of whether a child is an Indian child or not.

 

Emergency Removals

ICWA regulations state that emergency removals are authorized to protect an Indian child in imminent physical damage or harm, but they should cease immediately when the placement is no longer necessary to prevent imminent harm.

  1. ICWA regulations state that emergency removals should not last longer than 30 days unless the court makes required determinations.
  2. ICWA regulations require the court and/or custodial agency or its agent provide a Qualified Expert Witness (QEW) be present at the removal hearing.

Notice in Child Custody Proceedings

ICWA requires that notice must be provided by the party seeking placement or termination of parental rights to the parent(s), Indian custodian, and child’s Tribe. If a court proceeding has been scheduled, notice must be

  1. Sent by registered mail, return receipt requested.
  2. A copy of this notice should be filed in the case file and with the court, along with any returned receipts.
  3. No requests for a court proceeding (with the exception of emergency removals) can be made until:
    1. At least 10 days after receipt of notice by parents or Indian Custodian, or after 30 days if 20 additional days are requested by the parents or Indian Custodian to prepare for the proceedings; OR
    2. At least 10 days after receipt of notice by the Tribe, or after 30 days if the Tribe requests an additional 20 days to prepare or the proceeding; OR
    3. No fewer than 15 days after receipt of notice by the Bureau of Indian Affairs.

If the Tribe Does Not Respond

If a Tribe does not respond to an official notice sent, or if it replies that it does not wish to intervene in the proceeding, the foster care case manager must continue to send the Tribe notices of every proceeding. The Tribe can intervene at any point in the proceeding and therefore it has the right to notice of all hearings related to the case.

 

Transfer of Jurisdiction to Tribal Court

A request for transfer of jurisdiction may be made orally on the record in court or in writing by either a parent or the Indian child’s Tribe. The right to request transfer is available at any stage of child custody proceedings. ICWA regulations contain five factors that the court cannot consider in determining whether good cause exists not to transfer jurisdiction, including:

  1. Whether the proceedings are at an advanced stage when the Tribe, parents, or Indian custodian have not received notice of the proceedings until an advanced stage
  2. Whether transfer was requested in prior proceedings
  3. Whether transfer could affect the placement of the Indian child,
  4. The Indian child’s cultural connections to the Tribe, or
  5. Socio-economic conditions or any negative perception of tribal or BIA social services or judicial systems.

Late Evidence

If the court determined on the record that there was no reason to know the child was an Indian child and it was determined that ICWA did not apply, and a party later comes forward with reason to know ICWA does applies, the court shall to apply ICWA standards to the case. If new evidence is identified during a case that gives reason to know the child is an Indian child; such as

  1. A Tribe changing eligibility requirements over the course of a case where a child is a member or eligible for membership, or
  2. A Tribe has recently received federal recognition; the child’s foster care case manager must bring new evidence to the court’s attention. 25 C.F.R. § 23.107(a).

Qualified Expert Witness (QEW):

The foster care case manager must request a QEW be present to support removal and termination (including contested termination). A QEW shall testify regarding whether the child’s custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. A QEW:

  1. Must be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe.
  2. Cannot be the case manager regularly assigned to the Indian child.

The court and/or custodial agency or its agent must provide a QEW be present at the removal hearing and ongoing hearing thereafter. If an agency is experiencing challenges in locating QEW, they may request assistance from the Tribe.

 

  1. Active Efforts Required in ICWA Cases:

“Active efforts” means not just an identification of the challenges a family faces and providing solutions. It also requires a foster care case manager make efforts to actively assist a family in making the changes necessary for an Indian child to return safely to their home and reunify with family.

 

Active efforts must be undertaken to provide remedial services after an investigation and before a decision is made to place the Indian child out of the home. However, active efforts must also be provided after the Indian child has been removed in order to prevent the breakup of the family by working toward reunification.

 

Active efforts can be demonstrated by the following:

  1. Making a strength-based evaluation of the family’s circumstances that takes into account the prevailing social and cultural conditions and way of life of the Indian child’s Tribe.
  2. Intervening only when necessary. Foster care case managers conducting such an intervention must:
    1. Develop a case plan with assistance from the parents or Indian Custodian that involves use of Tribal Indian community resources; AND
    2. Seek out the necessary family preservation services to support the family with the Indian child in the home, except where imminent physical or emotional harm may result; AND
    3. Involve the child, if of sufficient age, in the design and implementation of case plan
  3. Assisting parents or Indian Custodian and Indian child in maintaining an ongoing family relationship, and
  4. Engaging the Indian child’s Tribe early and working closely with the Indian child’s Tribe to access culturally relevant resources and informal support networks.
  1. Termination of Parental Rights

ND foster care case managers must be prepared to present to the court all the evidence detailing a child’s connection to a Tribe, case planning, permanency goals, active efforts, etc. A foster care case manager must:

  1. Petition to terminate parental rights,
  2. Notify the Tribe, biological parents, Indian custodians, an all relevant parties,
  3. If a Tribe does not respond after 12 months to the agency’s required attempts to determine if the child is a member or eligible for membership, the foster care case manager will consult with BIA Regional Director to establish if the foster care case manager applied due diligence in trying to obtain a response from a Tribe.
  4. If the review of information documented by the foster care case manager’s efforts to contact the Tribe determines that additional efforts must be made, the case manager must make those efforts before presenting the termination of parental rights to the court.
  5. If the court determines on the record that there is no reason to know the child is an Indian child and it is determined that ICWA does not apply, a party who later comes forward with reason to know ICWA applies can request the court to apply ICWA standards before proceeding with a termination of parental rights.
  6. If new evidence is identified during a case that gives reason to know the child is an Indian child (such as a Tribe changing eligibility requirements over the course of a case where a child is a member or eligible for membership, or a Tribe has recently received federal recognition), the child’s foster care case manager must bring new evidence to the court’s attention. 25 C.F.R. § 23.107(a).
  1. Abandoned Child - Domicile

If a public agency obtains custody of a child, and the agency has reason to know a child is an Indian child due to the domicile or residence of the child’s parent or custodian is on a reservation (25 CFR sec. 23.107(c)(4), the case must be treated as an ICWA case until it is determined the child does not meet the definition (25 CFR sec. 23.107(b)(2)). The foster care case manager would need to determine if the child or parent’s domicile is on the reservation; meaning residence with an intent to stay, or return. If domicile of the parent is in fact on the reservation, the agency will need to work directly with the Tribe to determine if ICWA applies.

The Tribe is the only entity who can determine if a child is an Indian child, and a public agency cannot (25 CFR 23.108(b)). A blood or DNA test will not confirm to an agency if ICWA applies to a child; tribal membership is not about race it is a matter of citizenship.

 

  1. ICWA Resources

Various resources have been developed nationwide to assist case managers with full compliance of ICWA regulation.

  1. ND Court Hard Card
  2. ND Court Desk Reference
  3. A Guide to Compliance with the Indian Child Welfare Act
    1. This guide is designed to help individuals understand ICWA’s requirements. http://www.nicwa.org/Indian_Child_Welfare_Act/documents/2015Guide%20to%20ICWA%20Compliance.pdf
  4. Casey Family Programs Indian Child Welfare Programs
    1. Technical assistance and resources, education, training and support to state and county-based child welfare systems to improve ICWA compliance. www.casey.org/OurWork/DirectoService/icw.htm
  5. Federal Register
    1. Provides names and addresses of federally recognized Tribes for service of notice of proceedings subject to ICWA http://www.bia.gov/cs/groups/public/documents/text/idc012540.pdf