Case Practice with American Indian Tribes 4/29/2020 · Case Practice with American Indian Tribes 4/29/2020 4 European Conquest: 1492‐1789 Columbus “discovers” America where

Case Practice with American Indian Tribes 4/29/2020

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Foundation Training

Intertribal Child Welfare Training Partnership

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Day 1 Agenda ‐

Introductions Historical Trauma Cultural Competence with American Indian Familes

Introduction to ICWA/WICWA Identification of Indian Children Applicability

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Day 2 Agenda

Notification

Emergency Removals

Placement Preferences

Active Efforts

Serious Damage & Qualified Expert Witness

Case Application

Collaboration with American Indian Tribes

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Introductions Name

Agency/Job Title

How long have you worked in child welfare?

Do you have any ICWA/WICWA Experience?

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Losses Exercise

Write one item on each card of something that is very precious to you.

Items can include names of family members/loved ones, family heirlooms/keepsakes, material items, or more abstract items like one’s religion, cultural identity, or other form of identification.

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Symptoms/features of unresolved historical trauma

Depression

Suicidal ideation and behavior

Substance Abuse

Guilt and concern about betraying the ancestors for being excluded from the suffering

Mistrust of members of the dominate culture

Obligation to share in the ancestral pain(Duran et al, 1998)

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Tiers of Trauma

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Tiers of Trauma

Tier One: Colonialism

Both European and U.S. Federal policies aim to either assimilate or annihilate American Indian people

Tribal governments not able to act independently

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European Conquest: 1492‐1789

Columbus “discovers” America where at least 10 to 12 million American Indians are residing

Europeans use this “discovery” as justification to begin to claim land occupied by American Indians

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Pre‐Reservation: 1789‐1871

Inherent Tribal Sovereignty Recognized

Sovereignty is a legal principle that refers to the rights of American Indian Nations to govern themselves and their land base

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Pre‐Reservation: 1789‐1871 First treaties are made with Tribes

Signed legal agreements between Federal and Tribal governments

Made provisions for special peace, alliance, trade and land rights

Established Tribe’s equivalent status to that of Federal government

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Pre‐Reservation: 1789‐1871 Policies are aimed to remove the “Indian problem”

Indian Removal Act of 1830 Trail of Tears: Cherokee, Creek, Choctaw, Chickasaw, and Seminole people forcibly moved to Oklahoma

Indian Appropriation Act of 1854 Authorized establishment of reservations

The Homestead Act of 1862 Authorized granting Indian land to settlers

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Tiers of Trauma Tier Two: Socioeconomic and Political Dependence on the U.S. Government

No longer allowed to live as sovereign nations

Forbidden to act without approval of U.S. Government

U.S. Policies in place to exterminate American Indians

Displacement from tribal lands to reservations

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Allotment & Assimilation: 1871‐1928

Policies aim to create dependence on U.S. Government & assimilate Indians

The Dawes Act moved American Indians from communal living to individual ownership

Blood quantum was established as a way to formulate tribal rolls

The Citizen Act of 1924 made all American Indians full U.S. citizens

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Tiers of Trauma Tier Three: Boarding Schools

American Indian children suffering various forms of abuse

Substance abuse in parents as a result of their loss and trauma

Repeated acts of genocide by U.S. Government by removing American Indian children from their families

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The philosophy of the Boarding School Movement as stated by the 1886 Commissioner of Indian Affairs:

“If you want to solve the Indian problem you can do it in one generation. You can take all of the children of school age and move them bodily out of Indian country and transport them to some other part of the United States where there are civilized people. If you take these kids away and educate them to make their own lives, they wouldn’t come back here.”

(Adams, 1995)

Boarding School Movement

Children as young as 6 subjected to:

Denial of contact with their families

Forced to cut their hair

Forced to adopt Christianity as their religion

Forbidden to speak their native language

Forced to adopt a new European name

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Discuss: What losses did the children experience at the boarding schools?

What impact could the boarding school experience have on children as they grew into adults?

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Trauma, Separation, and Loss Experiences

Separation from families; cut off from families –couldn’t go home for first few years

Train ride to Carlisle – not knowing what to expect

Little to eat; different food to eat

Given new names; loss of identity

Given new clothes – old ones taken away

Forbidden to use spiritual practices and native language

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Tiers of Trauma Tier Four: Current Cumulative Effects of Trauma on Native Communities

Child physical and sexual abuse

Family violence

Accidental deaths

Suicide

Depression

Substance Abuse(Gagne, 1998)

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Appreciating Differences Exercise

Spend a few minutes discussing how your assigned family tradition “looks” in your family

Generate a list of the traditions you appreciate and value from this discussion

Flipchart and report back to large group

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Children & Families Larger definition of extended family

Many adults often involved in decision‐making regarding children

Children seen as essential building blocks of community

All members of extended family and community responsible for rearing each child

Common for children to be cared for by extended family members for long periods of time

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Child Development & Learning Children receive more respect and equal status

Children allowed to develop more freely and urged toward self‐determination

Teach through observation, role modeling and storytelling

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Discipline

Traditionally, corporal forms of punishment did not exist

Shaming and role modeling were used to help children learn what they did wrong and how to correct it

Contact with the dominant culture has contributed to a loss of traditional ways of discipline and generational cycles of child abuse

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Cooperation Harmony with others is extremely important

Personal orientation (social harmony) is more important than task orientation

Respect for an individual's dignity and autonomy

People are not meant to be controlled and one does not interfere in the affairs of another

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Generosity

Sharing is greatly valued

Individual ownership exists but is not given prominence

Stinginess is a trait that is discouraged

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Saving

Value is not seen in amassing large quantities of goods (e.g., household possessions, saving accounts, life insurance policies, etc.)

In the past, nature’s bounty provided food, clothing, and shelter

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Time

Indians view time as flowing rather that as something one can control

In the past, only natural phenomena like the sun, the moon, and the seasons were used to mark the passage of time

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Courtesy Belief in polite, courteous behavior toward others

The avoidance of direct eye contact is based on the desire not to be rude

Speak soft, slow and deliberate—stressing the feelings rather than the words

Mask feelings of discomfort and will observe silently to inwardly determine what is expected of them

Convey feelings through behavior rather than words

Traditionally, criticism is communicated indirectly through another person or through non‐verbal signs

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Aging

Value wisdom that comes from age and experience

The family unit is close and discourages attempts to separate older family members from the rest of the family

Since the family is a strong unit there is not a problem with generation gap

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Spiritualism

Spirituality pervades all areas of life

Do not believe in forcing their beliefs on others

Silence is highly valued

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Values Exercise

Select a group member to take notes and report out to the large group

Utilizing your group’s assigned value, discuss how you are likely to see the value in your work with American Indian families – generating 3‐5 examples

Share with large group

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Essential Values for Culturally Competent Practice with American Indians

Helper wellness and self‐awareness

Humility and a willingness to learn

Respect, open‐mindedness and a non‐judgmental attitude

A social justice orientation

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Building a Culturally Responsive Foundation

Seek out information on the client’s culture and the client’s understanding of their culture

Cultural self‐examination

Confront personal biases and prejudices

Develop proficiency in such skills such as openness, trust, and positive communication

Be aware of underlying cultural assumption in assessment tools

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Indian Adoption Project

Collaborative project between BIA & Child Welfare League of America

395 Indian children placed for adoption with non‐Indian families

Poverty cited as a reason to break up Indian families

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Leading up to the ICWA

By the 1960s, there was recognition that Indian families were being broken apart at an alarming rate due to state social service departments removing children and placing them in non‐Indian homes.

Even after the Indian Adoption Project officially ended, premise continued that Indian children are better off growing up non‐Indian Child welfare workers often misinterpreted material poverty as sufficient grounds for removal

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Leading up to the ICWA 1969 & 1974 Association on American Indian Affairs Studies

• 25‐35% of all Indian children were separated from their families, placed in foster homes, adoptive homes or institutions.

• The national rate of removal for Indian children was 25 times higher than non‐Indian children

• In Wisconsin, the risk of an Indian child being separated from his or her family was 1600 times higher than for non‐Indian child.

• More than 17% of school aged Indian children from reservations were living in institutional facilities.

• 85% of all Indian children in foster homes were in non‐Indian homes.

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Association on American Indian Affairs

Conclusion of 1969 & 1974 StudiesOnly 1% were removed because of abuse. 99% were based on “neglect” or “social deprivation.”

Examples of “neglect” or “social deprivation” –

An Indian reservation was deemed an unsuitable place to rear a child

Adoptive parents were seen as being able to provide a better home Family sending children to tribal school rather than public school Mother was being “indiscreet” Poverty, poor housing, lack of modern plumbing, overcrowding Alcohol abuse, applied against Indian parents where it was not

applied against non‐Indian parents

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AAIA Findings on Removal Methods

“Voluntary” placement or waivers of parental rights

− Signed by parents, without any explanation of the meaning and then used as evidence of neglect and grounds for TPR

Fraud

Carried out without due process

Rarely represented by counsel

Rarely supporting testimony by expert witnesses

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Other Findings of AAIA Studies

Responsible tribal authorities and Indian community agencies not being consulted or informed when children were being removed

Public officials involved were unfamiliar with, and often disdainful of, Indian culture and society.

Children with Indian custodians rather than parents had even fewer protections.

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Purpose To protect the best interests of Indian children and to promote the stability and security of Indian tribes and families

Prevent the unwarranted breakup of American Indian families

Recognize tribal jurisdiction to make custody decisions involving the removal of Indian children

Establish minimum federal standards that county and/or state courts must follow when Indian children are removed from their homes for foster care, TPR, pre‐adoption, or adoption

We had ICWA, Why WICWA?Problems identified with Wisconsin compliance, particularly Identification and Notice:

2004 CFSR

eWiSACWIS

WI Children’s Court Improvement Program data

Reports by the Tribes themselves

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WICWA

Clarifies the requirements of ICWA

Places the procedures in Wisconsin law

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Tribal Sovereignty The U.S. government and the Tribes have a government‐to‐government relationship that is unique in the world system of governments.

Each tribe listed in the federal register is a separate political entity and must be recognized and addressed as a separate political entity, government to government.

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“Indian” DesignationThe designation of “Indian” by the federal government refers to a political status, rather than a racial status.

It recognizes that an Indian person is a member of a sovereign political entity ‐‐ of a tribe.

An Indian person is, in effect, a person with dual citizenship.

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Tribal Sovereignty and WICWA The tribe must be notified of all Indian child/juvenile custody proceedings.

The tribe has the right to formally intervene at any point during the proceeding and become a party to the case. Call witnesses & Present recommendations Examine all reports and documents filed with the court Tribe does not need to be represented by an attorney WICWA still applies even if the Tribe decides not to intervene in the case

Tribal courts have jurisdiction over Indian child /juvenile custody proceedings.

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Intent of WICWA Prevent the unwarranted removal of an Indian child from his or her home

Prevent an Indian child’s separation from the tribe, and

Facilitate a child’s relationship with his or her tribe

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Responsibility for WICWA

Who has major responsibility to see that WICWA and its intent are fulfilled?

*The Petitioning Child Welfare Agency*

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Best Interests of an Indian ChildWisconsin policy requires court and agencies responsible for child [juvenile] welfare to do all of the following:

Cooperate fully with Indian tribes to ensure that [ICWA] is enforced in this state

Protect the best interests of Indian children and promote the stability and security of Indian tribes and families

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WICWA applies when:

the child is an Indian child, and

the child is the subject of a legal proceeding or action governed by WICWA

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Photo Credits: First People Website

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Identification of Indian Children

Successful implementation of WICWA is dependent upon early and accurate identification of Indian children.

Who initiates the process to identify Indian children?

The Petitioning AgencyAsk as early as possible!

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Access Report

Agencies must provide notice to the appropriate tribe of all screened‐in or screened‐out CPS Reports received about an Indian child

The notice must be made within 24 hours from the receipt of the report by fax, phone, or email

Include the eWiSACWIS case I.D.

The CPS Report must be sent as part of the notice for the Menominee Nation

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The ICWA Record – Access Report

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Forms to Use For IdentifyingIndian Children

Screening for Child’s Status as Indian Form At Every CPS primary caregiver initial assessment

When child is taken into custody

Child’s Biological Family History Form

Request for Confirmation of Child’s Indian Status Form

All of these forms are found in the ICWA Record in eWiSACWIS

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The ICWA Record – Screening Tab

The ICWA Record – Family History Tab

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The ICWA Record – Request for Confirmation

The ICWA Record – Request for Confirmation

Identification of Indian Children

Screening

A child may still be a member or eligible for membership in a tribe, even if adopted by a non‐Indian person.

An adult may be a member of a tribe, even if adopted by a non‐Indian as a child, and his or her child could also be a member or eligible for membership.

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SummaryIdentification of Indian Children

Your responsibility is to:

Initiate the process promptly

Gather sufficient information

Contact the tribes

Ensure eWiSACWIS data is updated and complete

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SummaryIdentification of Indian Children

If the initial screening does not raise any possibility of the child being Indian:

Proceed with the Case

Continue to ask family members about possibility of Indian Heritage

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2016 Federal Regulations If you have reason to know that the child may be

Indian, you must report to the court the due diligence you made in determining child’s Indian status.

Proceed as though it is a WICWA case until it is determined otherwise on the court record

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Photo Credits: Father and Son Retreat 2010 Stockbridge-Munsee Mohican News

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Definition of Indian ChildAn Indian child is:

a member of an Indian tribe, or

eligible for membership and the biological child of a member of an Indian tribe

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Definition of Indian Tribe Any Indian tribe, band, nation, or other organized group or community of Indians, including any Alaska native village, which is recognized as eligible for the services provided to Indians by the U.S. Secretary of the Interior because of Indian status.

As of 2018, there are 573 federally‐recognized tribes.

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Tribal Membership

Membership and eligibility for membership are determined by the tribe.

A determination by a tribe is not advisory; it is definitive.

Membership criteria differ from tribe to tribe.

Membership is not the same as enrollment.

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Indian Child/Juvenile Custody Proceeding

Includes: CHIPS proceedings (s. 48.13) A JIPS proceeding based on a petition that the youth is: uncontrollable habitually truant from school a school drop‐out habitually truant from home

Termination of Parental Rights proceedings Guardianship proceedings Any child custody proceeding in which a parent cannot have a child returned upon demand

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Proceedings and Actions NOT Governed by WICWA Proceeding based on a petition that the child has committed a delinquent act

Placement of a child with one of the parents through a divorce proceeding

Placements or involuntary commitments under Chapter 51

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Definition of Parent

For purposes of applying WICWA, a “parent” is:

A biological parent

An Indian person who has adopted an Indian child, including adoption under tribal law or custom

An Indian husband who has consented to artificial insemination of his wife

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Definition of Parent, cont. In the case of a nonmarital child who is not adopted and whose parents do not subsequently intermarry, a person:

Acknowledged under Wisconsin or other state’s law or under tribal law or custom to be the biological father, or

Adjudicated to be the biological father

Does not include any person whose parental rights have been terminated

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Definition of Indian Custodian

An “Indian custodian” is an Indian person:

Who has legal custody of an Indian child under tribal law or custom or under state law, or

To whom temporary physical care, custody, and control has been transferred by the parent of the child

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Voluntary Placements & Voluntary TPRs

Any such consents must be:• Executed in writing

• Recorded before a judge

• Accompanied by a written certificate by the judge that:

– the terms and consequences of the consent were fully explained, and

– the parent or Indian custodian fully understood

• Any consent given prior to or within 10 days after birth of the Indian child is not valid.

• Indian Child Welfare Act, 25 U.S.C. § 1913 (a)

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Withdrawal of Consent: Voluntary TPR

Parent may withdraw consent

for any reason

at any time

Prior to entry of final TPR order

Child must be returned

Unless an order or agreement that was in effect prior to the TPR provides for a different placement

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Withdrawal of ConsentPost‐Final TPR Order

• After a voluntary TPR, a parent may withdraw consent if obtained through fraud or duress.• Motion must be filed within 2 years after the order granting the adoption.

• If court finds fraud or duress, court mustvacate the TPR and adoption orders and return the Indian child to the parent• Unless an order or agreement that was in effect prior to the TPR provides for a different placement.

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Photo Credits: First People Website

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Formal Notice

Notice must be sent to:

the Indian child’s parent

the Indian custodian, if any, and

the tribe in which the Indian child is a member, or

the tribe or tribes in which the Indian child may be eligible for membership, or

if the child’s tribe is not known, the Bureau of Indian Affairs

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Formal Notice The notice of the first hearing in an involuntary Indian child/juvenile custody proceeding must be sent by registered mail, return receipt requested.

The return receipt must be filed with the court.

Copies of the initial notices sent to the parents, tribe, and Indian custodian must be sent to the BIA Midwest Regional office by registered or certified mail, return receipt requested.

Subsequent notices can be sent regular mail

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Initial NoticeNotice of Involuntary Child Custody Proceeding Involving an Indian Child Form

Must be used instead of standard hearing notice because it includes the information required under WICWA

The copy sent to the tribe (or BIA) must include the following forms, unless they have already been sent:

◦ Screening◦ Biological Family History

◦ Request for Confirmation

Petition must be included

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The ICWA Record ‐ Notice

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Initial Hearing May not be held until 10 days after parent, Indian custodian, and tribe receive the notice

May not be held until 15 days after BIA receives notice if parent or tribe is unknown

The court must grant an additional 20 days for preparation upon the request of the:

Parent Indian custodian Tribe

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Emergency Removals: Exclusive Jurisdiction WICWA does not prevent an agency from removing and placing an Indian child who is:

A resident of or domiciled on a reservation,

Temporarily located off the reservation, and

Who is in danger of imminent physical damage or harm

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Emergency Removals: Concurrent Jurisdiction The child is not residing or domiciled on a reservation

CHIPS/JIPS Proceeding will be initiated in county court

Tribe may still choose to transfer to tribal court

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Emergency RemovalsCourt must promptly hold a hearing and make a finding on the record that emergency placement/removal is necessary to prevent imminent physical damage or harm to the child.

An emergency placement must be terminated immediately when it is no longer necessary to prevent imminent physical damage or harm to the child by:

Initiating child custody proceeding (i.e., CHIPS) subject to the provisions of ICWA,

Transferring the child to jurisdiction of the tribe, or

Restoring child to parent or Indian custodian.

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When Indian Child is Taken Into Emergency Custody Emergency hearing is not considered a child/juvenile custody proceeding

Hearing can be held before 10 days

Formal notification to the tribe by registered mail is not required

The tribe must be notified of the hearing with same diligence and timeliness as parents

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Photo Credits: Rebecca Greendeer and grandchildren 93

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Taking a Child/Youth into Custody

An Indian child may not be placed outside of the placement preferences unless the person responsible for the placement believes:

• good cause exists, or

• that emergency conditions necessitate departing from preferences

When the reason for departing from the placement preferences is resolved, the Indian child must be placed in compliance with the order of placement preferences.

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Best Interests of an Indian Child

When placement is necessary, an Indian child should be in a placement that reflects the unique values of the Indian child’s tribal culture, and

That assists the child in establishing, developing, and maintaining a political, cultural, and social relationship with the Indian child’s tribe.

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Placement of an Indian Child

Indian children must be placed according to specific identified preferences, unless good cause exists to depart from the preferences, when they are:

held in temporary physical custody

placed in out‐of‐home care

placed in a pre‐adoptive placement

placed for adoption

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Placement PreferencesFor holding in physical custody, out‐of‐home care, and pre‐adoptive placements, preference must be given to placement, in the order of the following:

1. The home of an extended family member of the Indian child

2. A foster home or treatment foster home licensed, approved, or specified by the Indian child’s tribe

3. An Indian foster home or treatment foster home licensed or approved by the department, a county department or a child welfare agency

4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian child

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In placing an Indian child for adoption, preference must be given to a placement with one of the following, in the order of preference listed:

1. An extended family member of the Indian child

2. Another member of the Indian child’s tribe

3. Another Indian family

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Definition of Extended Family Member A person who is defined as a member of an Indian child’s extended family by the law or custom of the Indian child’s tribe.

In the absence of such law or custom, a person who:

• is at least 18 years old, and

• fits definition of relative under s. 48.02(15).

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Placement Preferences:Good Cause to Depart• Request of parent or child (sufficient age and developmental level) unless request is to avoid application of WICWA

• Extraordinary physical, mental, or emotional health needs, established by an expert witness – length of time in placement does not in itself constitute an extraordinary mental health need

– bonding with a foster parent does not in itself constitute an extraordinary mental health need

• A sibling attachment that can only be maintained through a particular placement

• Unavailability of suitable placement after diligent efforts have been made to comply

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Documenting Placement Preferences

Document your diligent efforts for each tier of the preferences in the placement tab

Once your placement is entered you cannot go back to input this information so be sure to enter it when entering the placement in eWiSACWIS!

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Documenting Placement Preferences

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Photo Credits: Tom Jones Professor UW-Madison103

Active Efforts StandardFrom your first contacts with a family in a WICWA case, you must vigorously, continuously and diligently work to preserve the family.

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You must make active efforts to prevent the breakup of the family.

There are no exceptions

Active Efforts StandardThe court may not order an Indian child to be removed from the home of the Indian child’s parent or Indian custodian and placed in out‐of‐home care or order an involuntary TPR unless the court or jury finds:

• that active efforts have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child’s family, and

• those efforts proved unsuccessful.

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Active Efforts Standard

An ongoing, vigorous, and concerted level of case work made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe…

Wis. Statute 48.028(4)(g)1

938.028(4)(f)1

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Active Efforts Standard… that utilizes the available resources of:

The Indian child’s tribeTribal and other Indian child welfare agencies

Extended family membersOther individual Indian caregivers Other culturally appropriate service providers.

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Active Efforts vs Reasonable Efforts

How are they the same?

How are they different?

Is it possible to conduct reasonable efforts without engaging the family? Active efforts?

Is it possible to conduct reasonable efforts without engaging the tribe? Active efforts?

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Active Efforts Specific Activities Complete a comprehensive assessment of the situation of the family.

Determine the likelihood of protecting the Indian child’s health, safety, and welfare effectively in the Indian child’s home.

Determine what services could be provided in order to avoid an out‐of‐home placement of the Indian child.

Wis. Statute 48.028(4)(g)1 am

938.028(4)(f)1 am

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Active Efforts Specific Activities

Contact representatives designated by the Indian child’s tribe to assist in:

Evaluation of circumstances affecting the family

Development of a case plan that uses resources of the tribe and Indian community, including traditional and customary support, actions, and services, to address those circumstances.

Wis. Statute 48.028(4)(g)1 a

938.028(4)(f)1 a

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Identify, notify, and invite representatives designated by the Indian child’s tribe to participate in all aspects of the custody proceeding at the earliest possible point.

Actively solicit their advice throughout the proceeding.

Wis. Statute 48.028(4)(g)1 b

938.028(4)(f)1 b

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Notify and consult with extended family members identified by the Indian child’s tribe or parents in order to:

Locate and provide family structure and support for the Indian child;

Assure cultural connections; and

Serve as placement resources for the Indian child.

Wis. Statute 48.028(4)(g)1 c

938.028(4)(f)1 c

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Arrange unsupervised family interaction in the most natural setting that can ensure the Indian child’s safety.

Assist with transportation and other services to enable family members to participate in that interaction.

Wis. Statute 48.028(4)(g)1 d

938.028(4)(f)1 d

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Offer or employ all available family preservation strategies

Communicate with the Indian child’s tribe to identify strategies and ensure they are culturally appropriate to the child’s tribe.

Wis. Statute 48.028(4)(g)1 e

938.028(4)(f)1 e

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• Identify and provide information to the Indian child’s family about community resources.

• Actively assist the family or offer active assistance in accessing those resources.

Wis. Statute 48.028(4)(g)1 f

938.028(4)(f)1 f

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Monitor client progress and client participation in services.

If services do not exist or existing services are not available to the family, find alternate ways of addressing the needs of the family.

Wis. Statute 48.028(4)(g)1 g

938.028(4)(f)1 g

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If any of the specific activities were not conducted, the person seeking the out‐of‐home placement or involuntary TPR must document and explain to the court why the activity was not conducted.

A court cannot order an out‐of‐home placement or involuntary TPR without finding that active efforts have been provided.

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Documenting Active Efforts

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Serious Damage Standard

The court may not order:

• an Indian child to be removed from the home of the Indian child’s parent or Indian custodian and placed in out‐of‐home care or

• an involuntary termination of parental rights to an Indian child

Unless evidence shows a causal relationship between conditions in the home and likelihood that continued custody of the child will result in serious emotional or physical damage to this child.

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Serious Damage Standard This is not just a finding that the court makes.

It is the standard you must use when considering removing an Indian child from his or her parent or Indian custodian.

There are no exceptions.

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Qualified Expert Witness

Evidence supporting the court finding that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child must include the testimony of one or more qualified expert witnesses.

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• Purpose of Testimony:

To ensure that basis for the action is not tainted by cultural bias

• Subject of Testimony:

Whether continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage.

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Qualified Expert Witness • The party seeking to place the Indian child in out‐of‐home care or terminate parental rights to the Indian child must utilize a qualified expert witness (QEW).

• Any other party may utilize a qualified expert witness.

• The testimony of a qualified expert witness cannot be waived by any party.

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Who may be a QEW?Qualified expert witnesses, in the descending order of preference: A member of the Indian child’s tribe. A member of another tribe. A professional person with substantial education and experience in his or her field.

A lay person with substantial experience in delivering child and family services to Indians.

All must be knowledgeable regarding the customs of the Indian child’s tribe relating to family organization and child‐rearing practices.

The QEW cannot be the assigned county caseworker

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Role of QEW

To testify as to whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child, using his or her expertise on the child rearing practices and family organization of the child’s tribe.

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Qualified Expert WitnessThe petitioning agency must arrange for a QEW when out‐of‐home placement or termination of parental rights is being requested:

At a consent decree At the fact‐finding hearing (CHIPS, JIPS, or involuntary TPR)

At the dispositional hearing, if it was not done at the fact‐finding hearing because of a summary judgment

At a change in placement hearing, if child/youth from is moved from in‐home to a placement out of the home

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Qualified Expert Witness• May be chosen from lower category only if party calling the witness has made a diligent effort to obtain a witness from higher order of preference

• The level of the order of preference may not be the sole consideration in weighing their testimony

• Court must consider as paramount the best interests of the Indian child as provided in s. 48.01(2).

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Tribal View of TPR/Adoption

The historical stigma attached to adoption has resulted in many tribes being opposed to the concept of adoption

Many tribes have the belief that the parent‐child bond is one that cannot be severed and so do not believe in termination of parental rights

Some tribes utilize a customary adoption procedure that does not require a TPR

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What About ASFA?

ASFA applies to all children in out‐of‐home care

WICWA applies to Indian children in out‐of‐home care

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What About ASFA? • Active efforts are required even in specific circumstances where state statutes say that reasonable efforts are not required.

[s. 48.355(2d), Stats.]

• The TPR petition requirement for a child placed out of the home for 15 of the past 22 months still applies; however, the fact that the child is an Indian child can be the compelling reason that TPR is not in the best interests of the Indian child.

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Noncompliance and Invalidation If the WICWA is not followed, a party may move to invalidate the entire proceedings. This could result in:

Possible return of custody to Indian parent

Nullification of adoption orders

Instability of placements of children

Delay in permanence for a child

None of these are in the best interests of an Indian Child

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AccessYour agency receives a report from the local school regarding a 7 year old girl named Sophie. Sophie’s teacher is concerned because she is frequently coming to school very tired and fell asleep in class today. Sophie told the teacher that her mom had a party at the house last night and that she could not sleep well because of the noise. She said that often after her mom has parties she will sleep the entire next day leaving Sophie and her younger brother, Mason, aged 4, to take care of themselves. The parties also scare Sophie because they get very loud and out‐of‐control, and sometimes people get into fights. The teacher is concerned that Sophie’s mom is using drugs.

The teacher believes that Sophie is Native American, but is not sure what tribe she is affiliated with.

What are your agency’s responsibility at access in this case?

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Initial Assessment

Your agency begins an Initial Assessment of Sophie’s family. Sophie lives with her younger brother, and her mother, Nicole. Nicole and Sophie’s dad, Jake, broke up shortly after Sophie was born and he has not been involved in her life since then. Nicole states that Jake is Chippewa, but does not know any further information about what tribe he was from or whether or not he was actually a member. Mason has a different dad who is not Native American.

What steps should your agency take at Initial Assessment to determine whether or not Sophie is a member or eligible for membership?

What should you do if you determine that she is eligible or a member?

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Temporary Physical Custody

During the course of the Initial Assessment you determine that Sophie is eligible for membership in the Lac du Flambeau Band of Lake Superior Chippewa in Wisconsin. However, an after hours call comes in after the neighbors call the police to break up a fight during a party one night at Sophie’s house. Sophie’s mom is found to be incapacitated as she had been injecting heroin so the children are taken into temporary physical custody.

What are your agency’s responsibilities at the point of emergency removal?

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Initial Hearing

Following the emergency removal, your agency decides to file a CHIPS petition on the family. You have been in contact with the worker at the Lac du Flambeau tribe and they have decided that they will not transfer the case into tribal court.

What does your agency need to do to prepare for the initial hearing?

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Placement

At the emergency removal your agency placed Sophie and Mason in a temporary receiving home, but is now looking for a longer term placement for them.

What considerations must be made as far as the placement for Sophie and Mason?

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Active Efforts

Develop a case plan for Sophie’s family with 5‐6 goals that are culturally specific and seek to meet the active efforts requirement.

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What are your agency’s responsibilities regarding the Qualified Expert Witness requirement?

What should you do if the Lac du Flambeau tribe does not agree with your case plan and will not provide QEW testimony?

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Collaboration Defined

to work jointly with others, to cooperate with or willingly assist a person or an agency with which one is not immediately connected

Collaborating with the tribe is required as part of your active efforts

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11 Wisconsin Tribes Bad River Band of the Lake Superior Tribe of Chippewa

Indians (Ojibwe)

Forest County Potawatomi Community (Potawatomi)

Ho‐Chunk Nation (Ho‐Chunk)

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin (Ojibwe)

Lac du Flambeau Band of Lake Superior Chippewa Indians (Ojibwe)

Menominee Indian Tribe of Wisconsin (Menominee)

Oneida Tribe of Indians of Wisconsin (Oneida)

Red Cliff Band of Lake Superior Chippewa Indians (Ojibwe)

Sokaogon Chippewa Community (Ojibwe)

St. Croix Chippewa Indians of Wisconsin (Ojibwe)

Stockbridge‐Munsee Community (Mohican)

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Tribal Contacts on eWiSACWIS

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Resources: https://media.wcwpds.wisc.edu/foundation/WICWA_Online_Resource/

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Collaboration Exercise

What works well for developing successful collaboration with the tribes in your area / county / region?

What obstacles impede successful collaboration?

How can you overcome these obstacles?

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Ten Tips for State/Tribe Collaboration1. Approach tribes with respect as unique, sovereign entities.

Treat tribes as partners, not adversaries.

2. Know the law and state/tribal agreements.

3. Inquire whether children/parents are American Indian in all cases at every stage of the case.

4. Provide tribes with timely notice of ICWA cases. Be sure to notify the right contact at the tribe; in Wisconsin, notify the tribe’s Indian child welfare office.

5. Give tribal court orders and acts full faith and credit. Tribal courts have full authority to conduct Indian child custody proceedings (ICWA, P.L. 95‐608, Section 1911 (d)).

6. Work collaboratively with tribal child welfare workers in implementing ICWA requirements and include tribal social workers in all aspects of case plan development, including permanency planning.

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Ten Tips for State/Tribe Collaboration (Continued)

7. Remember that active efforts is a higher standard than reasonable efforts.

8. Contact extended family members. Remember that American Indian extended families are much larger than mainstream families and include relatives beyond grandparents, aunts, uncles, and cousins. The definition of extended family member may vary from tribe to tribe; be sure you know the definition for the tribe with which you are working.

9. Follow ICWA or Tribal Placement Preferences.10. Do not fast‐track potential Indian child welfare cases

without immediately involving the tribes and extended family members.

Source: Amanda Cross, Institute for Child and Family Policy, Muskie School, University of Southern Maine, in consultation with the National Indian Child Welfare Association

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"Let us put our minds together and see what kind of life we can build for our children."

Sitting Bull

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Documents

Case Practice with American Indian Tribes 4/29/2020 · Case Practice with American Indian Tribes 4/29/2020 4 European Conquest: 1492‐1789 Columbus “discovers” America where