Indian Child Welfare Act, 25 USC 1901 et. seq

Sheri FreemontSheldon Spotted ElkDenver ICWA CourtJanuary 31, 2020

Who is in the room?

History of Indian Child Welfare• Tribal people in communities,

clans, societies, etc. • Impact of colonization,

genocide, starvation, and forced reservations systems.

• Assimilation – Boarding Schools. Adoption Placement. Relocation.

• Compounded trauma (Separation + trauma of loss of nationhood, culture)

Boarding Schools

Indian Relocation Act of 1956

NICWA, Twitter, 2014

Why the Gold Standard of child welfare?

Community

Relatives

Families

Colorado DHS, ICWA Policy, https://www.colorado.gov/pacific/cdhs/policies-3

How do I know what to do?• Indian Child Welfare Act of 1978• *NEW* ICWA Regulations• Colorado ICWA Laws • Colorado Court Decisions • Tribal-State Agreements • CDHS Policies and Procedures• *NEW* ICWA Guidelines

ICWA Responsibilities

• Identification of “Indian Child(ren)”• Proper exercise of jurisdiction• Proper notice of proceedings• “Active efforts” to preserve the family• Use of QEW & proper standard of review• Placement preferences• Transfer to Tribal Court(s)

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What happens if ICWA isn’t followed?

“The problem wasn’t ICWA, it was that ICWA wasn’t followed”

When ICWA is not followed, proceedings can be invalidated.

§ 1914; § 23.137

When does ICWA apply?

In State Court

Not in tribal court

Indian Child

Under 18 at start of case;

Unmarried; and

Member of tribe; orEligible for

membership and one bio parent is a

member

Child Custody Proceeding

Emergency Proceeding

Involuntary Proceeding

Status Offense Proceeding

Voluntary Proceedings

§1903 (1), (3); § 23.103;

2. Verifying an Indian ChildIf there is “reason to believe” or “reason to

know” must:(1) Use due diligence to work with all of the Tribes of

which the child may be a member to verify that the child is an “Indian child”.

– What about multiple tribes? (2) Treat the child as an Indian child, until it is

determined that the child is not an ‘‘Indian child”. – Only a tribe makes the determination of a child’s

enrollment/membership status. – CPS does not make the determination.

§1903; § 23.108-109

Case Practice• Ask every child, parent, and relative about Native

heritage, residence, and previous court involvement. – (Don’t forget about absent parents!)– Genogram

• Document all evidence of Native heritage and present to the court

• Trauma informed practice– Soft skills of soliciting information

When does ICWA apply?

In State Court

Not in tribal court

Indian Child

Under 18;

Unmarried; and

Member of tribe; orEligible for

membership and one bio parent is a

member

Child Custody Proceeding

Emergency Proceeding

Involuntary Proceeding

Status Offense Proceeding

Voluntary Proceedings

§1903 (1), (3); § 23.103

What to Know-ticeWhen

• Before every child custody proceeding when there is reason to know or reason to believe child is a member of a tribe

• Every involuntary child-custody proceeding thereafter • There are

specific timelines

Who

•Parent(s)•Indian Custodian(s)•Every Tribe’s via direct contact or Designated Service Agent•BIA can assist with contact info, if tribe unknown send to BIA•CC BIA on Notices

How

• Registered or Certified mail Return Receipt

• Other forms of notice are fine if in addition

• Clear and Understandable language

§1912; § 23.105; § 23.111

TransferRequest• Either parent, the Indian custodian, or the Tribe may request, at any

time, transfer• Right to request a is available at any stage in each foster-care or

termination-of-parental-rights proceeding• Can be done orally or in writing

Notify Tribe• Must notified the Tribe in writing of the transfer petition. • May request a timely response regarding declination of the transfer.

Don’t Transfer if• Tribal Declination• Parent Objection• Good Cause

Otherwise Transfer

§ 1911; § 23.117-19

Casework

• Transfer the entire case file, including all case notes to tribal authorities upon receipt of a Court order granting the transfer– Following transfer, the case should be closed.

Casework

• Contact tribal social service director (in addition to notice) ASAP– Brief him/her on the case – Request placement and QEW assistance

• Tribe's representative shall be allowed to fully participate in staff discussions regarding placement and case plan. – All proposed plans developed without the representative

present shall be shared with the tribe's representative prior to implementation (unless emergency)

Emergency Proceedings• Requires imminent physical damage or

harm to the child– VERY specific petition requirements– Should not last more than 30 days

• Emergency removal must terminate when placement is no longer necessary– Transfer; ICWA proceeding; Reunification

§1922; §23.113-14

Casework • Document imminent physical harm; native heritage;

domicile; wardship• Contact tribe(s)• Use a Family Group Decision-Making process for

placement, if necessary.• Terminate the emergency placement as soon as it is

no longer necessary – If it is not safe to return the child, transfer the child to the

jurisdiction of the tribe

SCENARIO #1 Emergency Proceedings

Involuntary Foster Care Proceedings: Adjudication

Denver County must do/show three things:

Clear & Convincing Evidence

• That continued custody will result in serious emotional or physical damage– Note on AC v. BG; Matter of J.S.

• Evidence must show a causal relationship

Issue

Emotional/Physical Damage

§1912; §23.121

Active Efforts

§1912; §23.120

Actions intended primarily to maintain and reunite an Indian child with her family or tribal community • Constitute more than reasonable efforts

Must be provided to prevent removal and to promote reunification• From the time a CPS specialist becomes involved

Must be proven by clear and convincing evidence

NICWA, Pathways, 2016 http://www.nicwa.org/pathways/ICWA-Active-Efforts-Best-Practice.asp

Casework • Include extended family, tribe, Indian social

service agencies, and Indian caregiver’s input (e.g., family team meetings)– Repeatedly review active efforts, progress, and

barriers together• Document why services were chosen related to

needs, cultural appropriateness of services, and tribal role in decision in affidavit

• Be prepared to testify to these measures in court

SCENARIO #2Active Efforts

Qualified Expert Witness

§1912; §23.122

Must be qualified to

testify to the child’s

continued custody and

the likelihood of serious

emotional or physical harm

May NOT be the social

worker assigned to

the case

Must be qualified to

testify to the prevailing social and

cultural standards of

the child’s tribe

Tribe or BIA may be able to assist in

finding QEW

May be designated by

the tribe

Disposition/Placement 1) Threshold questions:

– Least restrictive setting– Most approximates family– Reasonable proximity to home

2) Placement preferences (absent “good cause”)– Extended family – Tribal foster home/home approved by tribe– Native foster home licensed by state– Treatment program approved by tribe/run by Indian

organization

§1915; §23.131-32

Placement: Good Cause • Reasons for good cause must

be stated on the record or provided in writing– Any party seeking departure

from the placement preference bears the burden of proving “good cause “ by C&C evidence

• Reasons for departure must be states on the record or in a written order

• May NOT consider:– SES of any placement– Bonding bc of ICWA violation

• Court may ONLY consider: – Request of parents, if they attest

that they have reviewed the placement options

– Request of the child, if the child is of sufficient age and capacity;

– presence of a sibling attachment;

– Extraordinary physical, mental, or emotional needs;

– Unavailability of a suitable placement after a determination by the court that a diligent search was conducted

§1915; §23.131-32

SCENARIO #3Placement Preferences

Termination of Parental Rights Proceedings

Denver County must do and show three things:

Active Efforts

§1912; §23.2; §23.120

Actions intended primarily to maintain and reunite an Indian child with her family or tribal community • Constitute more than reasonable efforts

Must be provided to prevent removal and to promote reunification• From the time a CPS specialist becomes involved

Must be proven beyond a reasonable doubt

Qualified Expert Witness

§1912; §23.122

Must be qualified to

testify to the child’s

continued custody and

the likelihood of serious

emotional or physical harm

May NOT be the social

worker assigned to

the case

Must be qualified to

testify to the prevailing social and

cultural standards of

the child’s tribe

Tribe or BIA may be able to assist in

finding QEW

May be designated by

the tribe

“Let us put our minds together and see what life we can make for our children.”

Sitting Bull

What if I still have Questions? • Oklahoma ICWA Resources:

– http://www.okdhs.org/services/cws/Pages/TribalFosterCare.aspx– Casey Family Programs: www.casey.org

• National Indian Child Welfare Association: – www.nicwa.org

• National Council for Family & Juvenile Court Judges:– ncjfcj.org

• ICWA Appellate Project at Michigan State University Law;– turtletalk.wordpress.com/fort/icwa/

• Bureau of Indian Affairs: – bia.gov