MODULE iii icwa key components MODEL ICWA JUDICIAL CURRICULUM

Learning Objectives The learning objectives of this session are: To understand the historical context for the Indian Child Welfare Act and how it was developed Learn about the major provisions of the law Understand when and how to apply the law

Indian Child Welfare Act ICWA recognized “that there is no resource … more vital to the continued existence and integrity of Indian tribes than their children” and that there has been a failure by non-Indian agencies “to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families” (25 U.S.C. 1901)

Indian Child Welfare Act In passing ICWA Congress stated: “It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operations of child and family service programs” (25 U.S.C. 1902)

Indian Child Welfare Act (ICWA) 1978 P.L. 95-608 Goals: To prevent the break-up of Indian families. To protect the best interests of Indian children. To promote the continued existence of Indian Tribes. P.L. 95-608, 25 U.S.C. § 1901 This legislation was enacted because State courts were removing a high proportion of Indian Children from their families and tribes and placing them in non-Indian environments. In some States, as many as 25-35% of Indian children were being placed in foster care; 85% of those children were placed in non-Indian homes. There was a growing concern that these children were losing their Indian culture and heritage. The State court systems did not take into consideration the tribal relations of Indian people and the cultural and social standards of Indian communities. See: www.nicwa.org/policy/law/icwa/index.asp

Indian Child Welfare Act In ICWA, Congress recognized cultural bias in the state court and social work systems, which affected Indian children and their families, and which placed the viability of tribes as political and cultural communities at risk 1978 P.L. 95-608

Applicability of ICWA Child custody proceedings involving “Indian children” Foster care placement Termination of parental rights Pre-adoptive placement Adoptive placement P.L. 95-608, 25 U.S.C. § 1903 (1)

Applicability of ICWA When ICWA does NOT Apply: An award of custody pursuant to a divorce where one of the parents will obtain custody of the child. If custody is to be awarded to someone other than one of the parents, ICWA will apply. A placement based upon an act which, if committed by an adult, would be deemed a crime (Juvenile Delinquency cases). 25 U.S.C. § 1903(1) An award of custody pursuant to a divorce where one of the parents will obtain custody of the child. If custody is to be awarded to someone other than the one of the parents, ICWA will apply. A placement based upon an act which, if committed by an adult, would be deemed a crime (Department of Juvenile Justice cases).

Applicability of ICWA Indian child An unmarried person under 18 who is either A member of an Indian tribe; or Eligible for membership in an Indian tribe AND is the biological child of a member of an Indian tribe. In Minnesota, the biological parent does not need to be a tribal member. P.L. 95-608, 25 U.S.C. § 1903 Minn. Stat. § 260.755

Applicability of ICWA Indian Tribe: Any Indian tribe, band, nation or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians. 25 U.S.C. § 1903(9)

Exclusive Tribal Jurisdiction Tribal Courts: Have exclusive jurisdiction if child is already ward of tribal court or resident or domiciled on a reservation of the tribe that exercises exclusive jurisdiction Concurrent if not exclusive If exclusive, state court must transfer If concurrent, state court must transfer upon request unless good cause not to transfer 25 U.S.C. § 1911

Emergency Removal ICWA allows emergency removal of an Indian child who is temporarily off the reservation in order to prevent imminent physical damage or harm. The Indian child must be returned home as soon as the threat of imminent physical harm has passed or the tribal court asserts jurisdiction, whichever is earlier. If the child is not returned or case transferred, the State Court “shall expeditiously initiate a child custody proceeding subject to the [ICWA]” U.S.C. 25 § 1922; BIA Guidelines

Jurisdiction A state court has jurisdiction over child custody proceedings involving an Indian child: Where the child is domiciled or resides off an Indian reservation, and is not a ward of the tribal court (25 U.S.C. 1911(b)); Where the state has been granted jurisdiction on the reservation under Public Law 280; Through a tribal-state agreement in which the tribe allocates jurisdiction to the state (25 U.S.C. 1919(a)); and Through limited emergency jurisdiction where a reservation-resident Indian child is temporarily off the reservation and the state has removed the child in an emergency situation to prevent imminent physical damage or harm to the child (25 U.S.C. 1922).This emergency jurisdiction terminates when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.

Jurisdiction A tribe has jurisdiction over child custody proceedings involving an Indian child: Where the child is domiciled or resides on an Indian reservation (25 U.S.C. 1911(a)); When the child is a ward of the tribal court, regardless of the child’s domicile or residence (25 U.S.C. 1911(a)); and Concurrent jurisdiction where the child is domiciled or resides off an Indian reservation and is not a ward of the tribe's court (25 U.S.C. 1911(b)).

ICWA Requirements Inquiry and Notice Transfer of Proceedings Intervention Right to Counsel Active efforts Evidentiary burdens Qualified expert witness Placement preferences

ICWA Requirements Inquiry Who? –social worker, probation officer, petitioner and the court have affirmative and ongoing duty to inquire about Indian status When? –at removal or as soon as possible thereafter

ICWA Requirements Notice In any involuntary proceeding in a State Court, the party seeking foster care of or TPR to an Indian child shall notify: The parent or Indian Custodian AND The Indian child’s tribe About The pending proceedings AND The right to intervene 25 U.S.C. § 1912

Minnesota Requirements Notice Notice is also required in voluntary placements such as Voluntary Adoptive Placement (upon filing of TPR or within 90 days, whichever comes first) Preadoptive Placement (upon filing of TPR or within 90 days, whichever comes first) Voluntary Foster Care Place (within 7 days) Minn. Stat. § 260.765

ICWA Requirements Notice Timelines General rule The tribe and parents/custodians must receive notice 10 days prior to a hearing and may request an additional 20 days 25 U.S.C. 1912(a) Exceptions The Emergency Protective Care Placement Hearing Jurisdiction in delinquency where conflicts with a speedy trial Disposition in delinquency where good cause to deny, including moving a child to less restrictive setting

ICWA Requirements Transfer of Proceedings A State Court shall transfer to tribal court a foster care placement or TPR proceeding involving an Indian child not domiciled or residing within the reservation of the child’s tribe when: Requested to do so, There is no good cause to the contrary, Neither parent objects, and The tribal court does not decline jurisdiction 25 U.S.C. 1911

ICWA Requirements Full Faith and Credit ICWA provides that the U.S., every state and federal territory, and every Indian tribe must give full faith and credit to the “public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that those entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.” 25 U.S.C. 1911(d)

ICWA Requirements Right to Intervene In any state court proceeding for the foster care placement or TPR of an Indian Child, the child’s Indian custodian and tribe have: The right to intervene At any point in the proceeding 25 U.S.C. 1911(c) The child’s Indian custodian and Indian tribe are automatically parties to CHIPS and CHIPS Permanency proceedings. RJJP 21.02 1(c)

ICWA Requirements Right to Counsel ICWA mandates that the state court appoint counsel for an indigent parent or Indian custodian in a “removal, placement, or termination proceeding” ICWA also allows a state court to appoint a lawyer for the Indian child but does not make that appointment mandatory (the statute provides that appointment of counsel for the child depends on the best interest of the child) 25 U.S.C. 1912(b)

ICWA and Active Efforts Any party seeking foster care placement or TPR of an Indian child shall satisfy the court that: Active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the break up of the Indian family; and These active efforts have been unsuccessful. 25 U.S.C. 1912(d)

ICWA and Active Efforts Active efforts shall: Take into consideration the prevailing social and cultural conditions and way of life of the Indian child’s tribe; and Involve and use the available resources of the extended family, the tribe, Indian social services, and individual Indian caregivers. 25 U.S.C. 1912(d)

Active Efforts and ASFA ASFA does NOT alter ICWA’s active efforts requirement. Even where ASFA may relieve the State from proving reasonable efforts (e.g., when aggravated circumstances exist), active efforts must be proved. ACTIVE EFFORTS ARE REQUIRED IN EVERY ICWA CASE.

ICWA Heightened Burden of Proof No Foster care placement in the absence of clear and convincing evidence (including testimony of at least one qualified expert witness) that continued custody is likely to result in serious emotional or physical damage to the child No TPR in the absence of evidence: beyond a reasonable doubt (including testimony of at least one qualified expert witness) 25 U.S.C. 1912 (e-f)

ICWA and Voluntary Consents When a parent or Indian custodian voluntarily consents to foster care placement or relinquishment and TPR, it must be in writing and clear that the parent understand what they are agreeing to Whenever a parent(s) or Indian custodian(s) seek to temporarily place an Indian child out of the home, or to voluntarily terminate parental rights, consent to placement must: Not be given prior to or within 10 days after birth; Be in writing; and Be recorded before a judge 25 U.S.C. 1913

ICWA and Best Interests In ICWA, Congress determined that retaining an Indian child in his or her culture or placing an Indian child in a culturally appropriate placement best serves the needs of that Indian child 25 U.S.C. 1902 Caselaw holds that ICWA as a whole is in the best interests of the child

Minnesota -Best Interests for the Indian Child “The best interests of Indian children are inherently tied to the concept of belonging. Belonging can only be realized for Indian children by recognition of the values and ways of life of the child’s Tribe and support of the strengths inherent in the social and cultural standards of tribal family systems. Family preservation shall be the intended purpose and outcome of these efforts.” Tribal/State Agreement

ICWA Qualified Expert Testimony The finding that continued custody by the parent or Indian custodian will result in serious emotional or physical damage to the child must be supported by the testimony of “qualified expert witnesses.” 25 U.S.C. 1912 (e)

ICWA Qualified Expert Witness Person qualified to address whether continued custody will result in serious emotional or physical damage to the child Requires knowledge of tribal culture, family and child-rearing practices Cannot be an employee of the agency seeking foster care placement or TPR BIA Guidelines

Qualified Expert Witness – BIA Guidelines: 3 Types of Experts Member of Indian child’s tribe - Recognized by tribal community as knowledgeable in tribal customs Lay expert witness -Substantial experience in delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and child-rearing practices within child’s tribe Professional -Substantial education and experience in the area of his/her speciality In re N.L., 754 P.2d 863, 867 (Okl.1988) “An expert witness must be able to provide the Court with knowledge of the social and cultural aspects of Indian life [in order] to diminish the risk of any cultural bias” In re N.L., 754 P.2d 863, 867 (Okl.1988)

Qualified Expert Witness – Minnesota In Minnesota three categories of persons may be considered as QEWs: Tribal Members - recognized by their tribal community as knowledgeable in the tribe’s customs and practices regarding family life and child rearing; Lay Persons - substantial experience delivering child and family services to Indians and who have extensive knowledge of the prevailing social and cultural standards and child rearing practices within the Indian child’s tribe; Professional Person - substantial education and experience in her specialty area and substantial knowledge of the prevailing social and cultural standards and child rearing practices within the Indian community. See In re the Custody of S.E.G., 521 N.W.2d 357, 364‐65 (Minn. 1994); In the Matter of the Welfare of B.W., 454 N.W. 2d 437, 442 (Minn. App. 1990).

Minnesota - QEW Testimony Required for Out of Home Placement and Permanency Rules of Juvenile Protection Procedure: Rule 49.01 – QEW Testimony required within 90 days of temporary emergency custody Rule 49.02 – QEW Testimony required in foster care placement Rule 49.03 – QEW Testimony required in termination of parental rights

ICWA Priorities for Placement 25 U.S.C. 1915 (b) Absent good cause to the contrary, a State court shall follow these preferences for the foster care placement of an Indian child: 1st Extended Family 2nd Foster home licensed by Tribe 3rd Indian foster home licensed by State 4th Institution approved by Tribe 5th Other foster homes licensed by State Indian tribes are permitted under ICWA to change the order of the act's placement preferences, so you must investigate with each tribe you encounter the order of its particular preference scheme

ICWA Priorities for Placement Absent good cause to the contrary, a State court shall follow these preferences for the adoptive placement of an Indian child: 1st Member of child’s extended family 2nd Other members of the child’s Indian tribe 3rd Other Indian families 25 U.S.C. 1915 (a)

Minnesota –Placement “Relative . . . means a person related to the child by blood, marriage, or adoption, or an individual who is an important friend with whom the child has resided or had significant contact. For an Indian child, relative includes members of the extended family as defined by the law or custom of the Indian child’s tribe or, in the absence of laws or custom, nieces, nephews, or first or second cousins, as provided in the Indian Child Welfare Act.” Minn. Stat. § 260.755 “Bonding or attachment to a foster family alone without the existence of [other] conditions is not good cause to keep an Indian child in a lower preference or non-preference home.” See In re Adoption of M.T.S., 489 N.W. 2d 285, 288 (Minn. Ct. App. 1992); Tribal/State Agreement

ICWA Post-Placement Removal from Foster Home –if an Indian child is removed from a foster home or other institution, the placement preference criteria apply to any future placement, unless the removal from the foster home is for the purpose of returning the child to his or her parent or Indian custodian (25 U.S.C. 1916(b)).   Vacation of Adoption Decree – If an adoption decree is set aside under state law or the adoptive parent voluntarily terminates their parental rights, the biological or prior Indian custodian may petition the court for a return of custody and shall be restored to custody unless there is a showing that return would not be in the best interest of the child (25 U.S.C. 1916(a)).

ICWA – In Summary ICWA accomplishes its goals by Requiring active efforts Providing for dismissal or mandatory transfer of cases where tribe has exclusive jurisdiction Providing transfer of jurisdiction to tribal court upon request barring good cause to contrary Requiring full faith and credit Requiring state courts to observe highest standards applicable in placement and TPR of Indian children

ICWA – In Summary ICWA accomplishes its goals by Requiring compliance with order of preference of placement Requiring prevailing social and cultural standards of Indian community be applied in placement decisions Requiring notice to tribe(s), Indian parent(s), and Indian custodian(s) of state court child custody proceedings Providing right to intervene Providing for court appointed counsel

ICWA – In Summary ICWA accomplishes its goals by Providing protections for parent(s) who voluntarily place their child in foster care or TPR Requiring tribal and parental access to records maintained by state Recognizing tribal licensing and/or approval of standards for foster homes Funding of tribal social services Providing process to invalidate state court’s action when ICWA has been violated Assisting Indian adults who were adopted as children to establish tribal affiliation

Conclusion ANY THOUGHTS ABOUT HOW THESE PROCEDURES ARE CURRENTLY WORKING IN MINNESOTA?