Indian Child Welfare Act

(ICWA)Training

This presentation was created by Tribal STAR. Successful Transitions for Adult Readiness

http://theacademy.sdsu.edu/TribalSTAR

Tribal STAR’s presentation has been adapted for use in the Indian Foster Youth Academy, 2010.

To explain the historical basis and purpose of the Indian Child Welfare Act (ICWA)

To clarify the essential elements of compliance with the ICWA and SB 678 and the role of tribes in child custody procedures

To help you practically apply these essential elements in an ICWA case

Our Goals

Agenda

History leading up to the passage of ICWA

Purposes, goals and key definitions under ICWA

Minimum federal and state standards for state courts

Working with dependency courts

1957 – Federal Indian Adoption Project

- 395 Native American/Alaskan Native children placed for adoption by non-Native families

States followed this federal example Evidence mounted that placements

were not positive for Indian children

History Behind ICWAHistory Behind ICWA

More History

U.S. Congress formed a task force to investigate these practices

- 1977 Congressional hearings held

1978 Congress passed the Indian Child Welfare Act

Congressional Findings

Hearings revealed pattern of wholesale public and private removal of Indian children

Nationally:

- Indian children 3 times more likely than non- Indian children to be placed for foster care or adoption

- About 25-35% of Indian children had been removed from homes and placed in foster homes, adoptive homes, or institutions

Congressional Findings

In California: 8 times as many Indian as non-

Indian children were in adoptive homes

90 % of these Indian children were in non-Indian homes

Congressional Findings

Indian children who had been placed in non-Indian adoptive homes frequently suffered serious adjustment and acceptance problems

- Loss of identity, sense of self, feeling like an outsider

- Higher rates of suicide

- Higher rates of substance abuse Conclusion: Legal means were necessary to

make sure these practices were stopped

Senate Bill (SB) 678

State law effective January 1, 2007 Codifies ICWA into state law Amends Family, Probate and Welfare &

Institutions Codes to include ICWA Clarifies application in family law, probate

and certain delinquency proceedings Expands protections for Indian families

and tribes in a few key areas

Overview of the ICWA

What is the ICWA?

Federal law passed in 1978 Establishes minimum federal

standards that must be applied in state child custody proceedings involving Indian children

Acknowledges and implements the tribes right to intervene in child custody proceedings

Purposes of the ICWA To stop the removal of Indian

children from their homes due to cultural bias

To acknowledge Tribal sovereignty To preserve bond between Indian

children and their tribes and culture

Key Definitions

Indian Child

An unmarried person who is under the age of 18 and is either: A member of a federally-recognized

tribe, or Eligible for membership in a federally-

recognized tribe and is the biological child of a member of a federally-recognized tribe

Formal enrollment in tribe is not required Enrollment vs. membership

Indian Parent

Any biological parent or any Indian person who has lawfully adopted the child, including adoptions under tribal law and custom

Does not include unwed father where paternity has not been acknowledged or established

Biological parent need not be Indian: if the child is a tribal member or eligible for membership, then the parent is defined as an “Indian parent”

Indian Custodian

Any Indian person who has legal custody under tribal law or custom or under State law, or to whom temporary custody has been given by the parent

No written documentation is required

Extended Family

Defined by tribal law or custom or in the absence of such law or custom:

Person over 18 who is the child’s: Grandparent Aunt or uncle Brother or sister Brother-in-law or sister-in-law Niece or nephew First or second cousin Step-parent

Tribe Any tribe, band, nation, or other

organized group or community of Indians that has been recognized as eligible for services provided by the federal government

Includes any Alaskan Native village Common term “Federally recognized

Tribe” WIC 306.6 – discretionary participation

for unrecognized tribes (SB 678)

Indian Child’s Tribe

The tribe of which the child is a member or eligible for membership

If the child is eligible for membership in more than one tribe, the tribe with which the child has more significant contacts

Tribal Jurisdiction

Exclusive jurisdiction over children residing or domiciled on reservation except: Temporary emergency removals Where such jurisdiction is otherwise

vested in the state by existing federal law (Public Law 280 for California)

Tribes may reassume exclusive jurisdiction over child custody proceedings – Washoe Tribe of Nevada and California only tribe with exclusive jurisdiction in California

Tribal Jurisdiction

Tribes and PL 280 states have concurrent jurisdiction over child custody proceedings involving children domiciled on the reservation (Doe v. Mann, 9th Circuit 2005)

A tribe, parent or Indian custodian may petition the court to transfer the proceedings to the tribal court

State court shall transfer the case absent good cause to the contrary

Proceedings Covered by ICWA

Foster care placements Any action removing child from parent/Indian

Custodian for temporary placement in foster home, institution, guardianship

Parent/Indian Custodian cannot have child returned upon demand

Termination of parental rights, including step-parent adoption

Adoptive placements Probate Guardianships Placement with non-parent in family law

proceeding Certain delinquency proceedings

Minimum Federal Standards & CA State Standards

Inquiry

Notice

Evidentiary Requirements

Qualified Expert Witness

Active Efforts

Placement Preferences

Inquiry

The court and county welfare and probation departments have an affirmative and continuing duty to inquire whether a child is or may be an Indian child (WIC 224.3)

Status of inquiry must be clear in petition, notices and reports; new mandatory Judicial Council Form ICWA-010(A) must be filed with every 300 petition

Inquiry is an ongoing process

Notice After inquiry if there is reason to

know the child is an Indian child notice must be sent to the parent or legal guardian and Indian custodian of the child, and the child’s tribe

Judicial Council Form ICWA-030 must be used

Notice must comply with WIC 224.2

Notice: WIC 224.2 Registered or certified mail return

receipt requested –receipt must be filed in the court file

To tribal chairperson unless another agent designated

To all tribes of which the child may be a member or eligible for membership

BIA, area director and Secretary of the Interior

Notice: WIC 224.2 continued

Notice must be sent in this manner for every hearing unless and until: The tribe acknowledges the child is a member or is

eligible for membership

- Child’s name, birth date, birth place and

name of child’s tribe need to be included 60 days after the tribe and BIA receive proper notice,

if neither responds, the court may determine that ICWA does not apply

- Court must reverse this determination if a response is received later indicating the

child is an Indian child

- If new information is discovered, ICWA-compliant notice must be resent

The ICWA Timeline

Except for the detention hearing in a dependency case, you may not proceed with a hearing until 10 days after the tribe, parent or Indian custodian receive the notice

If requested parents, Indian custodians or tribes shall be granted up to an additional 20 days to prepare

ICWA provisions shall be applied until determination of Indian status or at least 60 days have passed

If tribe or BIA later confirms status as an Indian child, ICWA is to be applied prospectively

Intervention The tribe and Indian custodian have a right to

intervene at any point in a proceeding

Once tribe intervenes they are a party to the case and have all rights of a party

Tribe may designate anyone to serve as their representative for the case

May be an attorney (paid by the tribe)

Often will not be an attorney

Regardless tribal representative has the same rights and should be given same courtesies as legal counsel

Role of Non-Intervening Tribe

Tribe or Indian custodian is not required to formally intervene in order to participate

Courts may still permit participation in proceedings

Tribe can: Express placement preferences Facilitate identification of placement options Assist in identification of qualified expert

witness Identify available Indian services and

programs

Right to Counsel

Indigent parents or Indian custodians have the right to court-appointed attorney

Right to Information

Each party to a case has the right to examine all reports or other documents filed with the court

The Indian custodian and tribe are parties if they intervene

As a party they are entitled to be treated in the same manner as counsel

Evidentiary Requirements for FC and TPR

Burden of proof

Foster care: clear and convincing evidence and testimony of a qualified expert witness

Termination of parental rights: beyond a reasonable doubt and qualified expert witness testimony

Cultural evidence: The court must also consider evidence of the prevailing social and cultural standards of the Indian child’s tribe including family organization and child rearing

Qualified Expert Witness Before the court orders foster care,

guardianship or TPR, qualified expert witness must testify that continued custody by parent or Indian custodian is likely to result in serious emotional or physical damage to the child

Must be live testimony unless all the parties stipulate to a declaration

A knowing, intelligent and voluntary waiver is possible

Who is a Qualified Expert Witness

A qualified expert witness may include: social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal elder

The individual CANNOT be an employee of the person or agency recommending foster care, TPR or guardianship

(New SB 678 requirement)

Who is a Qualified Expert Witness

Individuals most likely to meet the requirements to be a qualified expert witness are:

Member of the child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices

Person with substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and childrearing practices within the child’s tribe

A professional person having substantial education and experience in the area of his or her specialty

Active Efforts Party seeking FC, guardianship or TPR must

provide evidence that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts were unsuccessful

Must consider the prevailing social and cultural values and way of life of the Indian child’s tribe

Must use extended family, the tribe, Indian social service agencies, and individual Indian caregivers

Placement Preferences:Foster Care

1) With a member of the child’s extended family

2) With a foster home licensed or approved by the tribe

3) With an Indian foster home licensed or approved by a non-Indian licensing authority

4) With an institution approved by an Indian tribe or operated by an Indian organization

5) As determined by the child’s tribe

1) With a member of the child’s extended family

2) With other members of the Indian child’s tribe

3) With other Indian families

4) As determined by the child’s tribe

Placement Preferences:Adoptive

Placement Preferences

When no preferred placement is available, active efforts must be made to place the child with a family committed to enabling extended family visitation and cultural and ceremonial events of the child’s tribe

Must follow preferences unless court determines that there is good cause not to

“Good Cause”Court may make exception to

placement preferences due to: Request of biological parents, or

child, if child is of sufficient age Extraordinary physical or emotional

needs of child, as established by testimony of expert witness

Unavailability of suitable homes within placement preferences

New TPR ExceptionSB 678

New compelling reason not to TPR for Indian child

Compelling reasons include but are not limited to: Substantial interference with the child’s

connection to the tribal community would be caused

Child’s tribe has identified another planned permanent living arrangement for the child

Working with Dependency Court

Steps in the Dependency Court

Process County places child in protective

custody Detention Hearing (first hearing) Jurisdiction Hearing Disposition Hearing Initiation of Active Efforts for

Reunification Review Hearings

Role of the Tribal Rep: Proactive Action

Help recruit and license foster homes

Pursue alternate placements before county becomes involved

Join or form county working group

Follow up aggressively on notices received

Intervene as early as possible

Role of the Tribal Rep: During Proceeding

Work with social worker on case Consult with attorney Testify, if called Make certain that case plan

includes active reunification effort Help parents get resources If change of placement is to be

requested, do as soon as possible

How the Tribe May Participate

Petition for transfer to tribal forum

Exercise rights to alter the minimum federal standards

Intervene as a party

Provide evidence and testimony

Tribal child or family service programs may provide support

Tribal members monitor vs intervening

Who May Be PresentThe following persons are entitled tobe present at a juvenile court proceeding: All parents, de facto parents, Indian

custodians, and guardians of the child

Counsel representing the child or the parent, de facto parent, guardian or adult relative Indian custodian or the tribe of an Indian child

A representative of the Indian child’s tribe

Who May Appear on Behalf of Tribes

Individuals may be present as: Family member

Witness

Duly authorized representative of tribe

Tribal social services provider

It is desirable to clarify role Caution: Rights can be waived by the

fact that the tribe had representation but did not raise objection

Invalidation of a State Court Proceeding

Can be invalidated if certain provisions of the ICWA were violated

Petition brought in juvenile court

Petition may be brought by:

The Indian child

The child’s parents

The child’s last custodian

The child’s tribe

Delinquency

Status Offenses (WIC sec.601): ICWA applies to delinquency

proceedings where the act would not have been a crime if committed by an adult.

California Law: expands scope to WIC sec.602.

Delinquency

ICWA matters in delinquency because “Notice”, “active efforts”, and “placement preferences” are tools for helping youth to receive culturally appropriate and effective rehabilitative services.

Resources Federal

25 USC Sections 1901-1963 25 CFR Sections 23.1-23.83 Dept. of Interior, BIA, Guidelines for State

Courts, Indian Child Custody Proceedings (44Fed. Reg.67,584 (1979))

State CDSS – www.childsworld.ca.gov 2008 Cal. Rules of Court, Rules 5.480 –

5.487

Resources The ICWA Handbook and Quick Reference Guide

California Indian Legal Services www.calindian.orgCalifornia Judge’s Benchguide -ICWA

CDSS ICWA SpecialistAna Bolanos-Kellison, MSW(916) 651-6031ana.bolanos-kellison@dss.ca.gov

Center for Families, Children @ the Courts ICWA Initiativewww.courtinfo.ca.gov/programs/cfcc/programs/description/jrta-IndianChild.htm