1. New ICWA Guidelines: What You Need to Know Kristi Taylor, Supreme Court Children’s Commission

2. Background Indian Child Welfare Act of 1978 (ICWA) – “An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children…” – Congress enacted ICWA to: Protect the best interests of Indian children Promote the stability and security of Indian tribes and families – By establishing minimum Federal standards for: Removal of Indian children from their families and Placement of such children in foster or adoptive homes or institutions which reflect the unique values of Indian culture. – Articulates a strong Federal policy that, where possible, an Indian child should remain in the Indian community.

3. The Indian Child Welfare Act 3 ICWA is FEDERAL LAW.  Since 1978 (P.L. 95-608 (11/8/78) / 25 U.S.C. § 1902, et seq)  Congressional Findings: (3) United States has a direct interest, as trustee, in protecting Indian children; (4) an alarmingly high percentage of Indian families are broken up (5) The States…have often failed to recognize the essential tribal relations of Indian people (excerpts from ICWA)

4. ICWA Timeline 1979 – Guidelines for State Court implementation of ICWA – Regulations on ICWA notice (grants sections updated in 1994) 1979-2014 – State courts interpret ICWA provisions in various ways 2014 – Listening sessions on 1979 Guidelines – AG Advisory Committee recommendations 2015 – Updated Guidelines for State Courts & Agencies, 80 FR 10146 (2/25/15) – Proposed Regulations for State Courts & Agencies, 80 FR 14880 (3/20/15)

5. Texas Hearing Observation Project In 2013, the Children’s Commission conducted the Hearing Observation Project where Judge Robin Sage observed and collected data from 164 child welfare hearings from around the state. In 60% of the cases observed, ICWA was not addressed in court or indicated in the court’s file. Only 4% of hearings addressed ICWA and only 39% of the case files mentioned ICWA.

6. TRIBAL/STATE COLLABORATIVE ROUND TABLE To develop a plan so that our Indian children can remain connected with their family and tribe while going through a child welfare case with an informed court and community about the important promise made in the ICWA. -- Judge Darlene Byrne 6

7. Three Federally-Recognized Tribes in Texas 7

8. Oglala Sioux Tribe v. Van Hunnik Federal District Court of South Dakota granted summary judgment for plaintiff, finding the judge, states attorney, the secretary of social services, and the head of CPS developed policies and procedures for the removal of Indian children in violation of ICWA and 14 th Amendment due process – Less than five minute hearings – Judge advised there was no need for an attorney – Indian parents did not receive copies of the petition and were not advised that they had a right to contest the state’s petition

9. HB 825 In 2015, HB 825 amended Sections 263.201 and 263.202 of the Texas Family Code to place a duty on judges to ask all parties present at the full adversary hearings, status hearings, and permanency hearings before final order whether the child or child’s family has Native American heritage and identify any Native American tribe with which the child may be associated.

10. In the Interest of V.L.R., a Child The El Paso 8 th Court of Appeals set aside a termination of parental rights, concluding that the court’s finding was legally insufficient. Specifically: The testifying caseworker was not shown to possess the required knowledge or expertise; There was no evidence that the caseworker was a member of the child’s tribe or another tribe, or that she was recognized by any tribe as having substantial experience in the delivery of child and family services to Indians; There was no evidence that the caseworker had knowledge of the prevailing social and cultural standards and childrearing practices within the tribe; and Even if the caseworker had been a qualified expert witness, she did not testify that continued custody of the child by the mother is likely to result in serious harm to the child.

11. In the Interest of V.L.R., a Child DFPS argued that because the child’s mother did not have custody of the child at the time the petition was filed, Section 1912(f) did not apply, relying on the recent U.S. Supreme Court Case, Baby Girl (Baby Veronica case). o The Eighth Court of Appeals held that V.L.R. is distinguishable from the Baby Veronica case because the mother in V.L.R., at one time, had custody of the child. o Further, the Court of Appeals held that failure to apply Section 1912(f) because the mother did not have actual custody of her child at the time the petition was filed, would render Section 1912(f) applicable only where the Indian parent has legal custody of the child when the custody proceeding is initiated, thereby eviscerating the stated purpose of ICWA. It is important to note that the tribe in this case is not located in Texas. This is often the case because 78 percent of Native American people live outside of a reservation. Attorneys cannot assume that there will not be Native American children involved in their child protection hearings because there is not a reservation nearby. Texas has the 4 th largest Native American population in the U.S.

12. BIA GUIDELINES/PROPOSED RULE When ICWA Applies – Agencies & State courts must ask whether child is an “Indian child” – If there is reason to believe the child is an “Indian child,” Must treat the child as an Indian child Unless and until it is determined child is not an Indian child There is no so-called “existing Indian family” exception – Voluntary placements ICWA applies if parent consents to placement or termination ICWA does not apply if parent/custodian may regain custody of the child “upon demand”

13. Designation of a Tribe Only the tribe may determine whether a child is a member (or eligible for membership) Agency must notify all tribes in which child is potentially a member – Sets out steps if potentially a member of more than one tribe After designation of a tribe, agency must: – Notify all tribes that received notice of the designation – File designation with court – Send designation to each party and person that received notice of the proceeding

14. Notice Notice required – When agency or court knows of or has reason to believe child is an “Indian child” in any proceeding – Proceeding includes: Voluntary or involuntary proceeding Temporary custody proceeding Removal or foster care placement Adoptive placement Termination of parental or custodial rights – By registered mail with return receipt requested to: Each tribe of which the child may be member (or eligible) Parents (and, if applicable, Indian custodian)

15. Time Limits Time limits – No substantive proceedings, rulings, or decisions on child’s placement or termination of parental rights may occur until notice and waiting periods have elapsed – Additional extensions of time may be granted Proceeding may not begin until: – 10 days after each parent/Indian custodian and tribe receives notice – 30 days after parent/Indian custodian or tribe receives notice if they request an additional 20 days

16. Emergency Removal – At any court hearing on emergency removal/placement: Court must decide if removal/placement is no longer necessary to prevent imminent physical damage or harm to the child – Temporary emergency custody should be < 30 days, unless: Hearing with testimony of qualified expert witness; or Extraordinary circumstances exist. – Emergency removal or placement must end as soon as: Imminent physical damage or harm no longer exists; or Tribe exercises jurisdiction over the case

17. Transfers to Tribal Court Right to request transfer to Tribal court – Occurs with each proceeding – At any stage of proceeding State court must transfer unless: – Either parent objects, – Tribal court declines, or – State court determines good cause exists to deny transfer “Good cause” basis must be stated on record Court may not consider certain factors, for example: – Whether case is at an advanced stage – Child’s contacts with tribe or reservation – Tribal court’s prospective placement for child

18. Involuntary Placements, Adoptions, or Termination of Parental Rights Petition for placement or termination of parental rights must demonstrate to the Court that: – Active efforts to avoid the need to remove the child were made prior to, and until commencement of the proceeding; and – The active efforts were unsuccessful Active efforts must: – Be documented in detail – Use resources of extended family, tribe, Indian social service agencies, individual Indian caregivers, to the extent possible

19. Involuntary Placements, Adoptions, or Termination of Parental Rights Court may order foster care placement only if: – Clear & convincing evidence – Supported by testimony of one or more qualified expert witnesses – That continued custody with parent/Indian custodian is likely to result in serious physical damage or harm to the child Court may order termination of parental rights only if – Evidence beyond reasonable doubt – Supported by testimony of one or more qualified expert witnesses – That continued custody with parent/Indian custodian is likely to result in serious physical damage or harm to the child

20. Qualified Expert Witness Specific knowledge of the tribe’s culture and customs Characteristics presumed to meet requirements for QEW (in descending order) Member of child’s tribe Recognized by tribal community as knowledgeable in tribal customs of family organization and childrearing Member of another tribe Recognized by tribe as expert based on knowledge of delivery of child and family services to Indians and the tribe LaypersonRecognized as having substantial experience in delivery of child and family services to Indians and knowledge of prevailing social and cultural standards in child’s tribe ProfessionalWith education and experience in specialty who can demonstrate knowledge of prevailing social and cultural standards of childrearing practices within the tribe

21. Voluntary Proceedings In any voluntary proceeding, the agency & state court must: – Ask whether a child is an “Indian child” – Provide the tribe with notice of the voluntary proceeding, including notice of right to intervene Consent of parent or Indian custodian – Must be in writing, recorded before court – Court must explain consequences and terms of consent in detail – Court must certify that consequences and terms were explained and fully understood by the parent or Indian custodian – Consent document must set out any conditions to consent

22. Placement Preferences Agency must follow ICWA (or tribal) placement preferences – Even if there is a request for anonymity – Must provide clear and convincing evidence it conducted a diligent search to meet preferences and explain if couldn’t be met – Notify parents/Indian custodians, family members, tribe, etc. – Must maintain documentation of placements Departure from placement preferences only if court finds good cause to depart – “Good cause” basis must be included in the record – Party asserting “good cause” has burden to prove good cause by clear and convincing evidence

23. Good Cause Good cause to depart from placement preferences must be based on: – Parents’ request, if both attest they reviewed placement options; – Child’s request, if able to understand the decision; – Child’s extraordinary physical or emotional needs- As established by QEW, Does not include bonding/attachment from placement; or – Unavailability of placement and a determination by court that active efforts were made to find placements Good cause may not be based on: – Socio-economic status of any placement relative to another placement

24. Post-Trial Rights Establishes procedures to vacate an adoption if consent was obtained by fraud or duress, or proceeding violated ICWA Establishes who can invalidate an action based on a violation of ICWA – Indian child, parent/Indian custodian, tribe, regardless of whether that particular party’s rights were violated Establishes adult adoptees rights to learn their tribal affiliation – Encourages States to designate someone to assist adult- adoptees Requires notice of any change in the child’s status (such as a change in placement)

25. Cultural Awareness 25

26. Be Mindful of Culturally Appropriate Communication Tribes have Sovereignty Historical trauma is still present Perspective that ICWA enhances the likelihood that the child’s best interest will be served Times zones might affect a tribe’s availability

27. Tips for Active Efforts Agency must make active efforts to maintain and reunite and Indian child with his or her family or tribal community, defined in A.2 Guidelines, 23.2 Proposed Rule Engaging child, parents, extended family Taking steps to keep siblings together Identifying appropriate services and helping parents to overcome barriers, including actively assisting the parents in obtaining such services Conducting a diligent search for extended family members Offering all culturally appropriate family preservation strategies Texas Family Code § 107.0131(1) (D): the attorney ad litem for the parent “shall take any action consistent with the parent’s interests that the attorney ad litem considers necessary to expedite the proceedings.”

28. Document Active Efforts The new Guidelines require documentation of active efforts. For example, the Guidelines suggest notes on who was contacted at the tribe, rather than notes that merely indicate the tribe was contacted.

29. Make Genograms for Both Parents The new Guidelines state that the agency should submit in their notice ancestry charts for both parents. Consider using Family-finding services. Never assume that you can predict Native American heritage. Do not rely on the file for information about Native American heritage.

30. Think about PMC and TPR Many tribes do not agree philosophically with Terminations of Parental Rights PMC w/o TPR can be appropriate. – Don’t need TPR—relative placement identified. – Don’t want TPR—older child wants to maintain relationship with parent. PMC w/ TPR of only one parent can also be appropriate. – Violent parent terminated but parent with an ongoing relationship with an older child is not. PMC w/o TPR may be all the evidence supports.

31. Seek Services for Special Needs/ Medical Care The court has the duty to ensure that the child receives services to meet their special needs. (Tex. Fam. Code §§ 263.306, 263.503) The attorney ad litem should not forget to use Section 266.004(e) of the Family Code. “An attorney ad litem may petition the court for any order related to medical care for a foster child that [attorney ad litem] believes is in the best interest of the child.” Section 266.004(g) of the Family Code provides that: –“…the court may issue any order related to the medical care of a foster child that the court determines is in the best interest of the child.” *Credit: Richard LaVallo, J.D.

32. Tribal Principles 32 – Use Peacemaking rather than adversarial approach. – Create Traditional Adoptions to allow biological parents time to heal and possibly reconcile. – Focus on relationships when problem-solving. – Respect the oral tradition. Listen with humility. – Recognize that wholeness of mind and spirit is essential to well-being. – Build on family and tribal strengths.

33. Resources NCJFCJ National American Indian Court Judges Assoc. Native American Rights Fund Children’s Commission Bench Book CPS Handbook: Sections 1225, 5340, 5840 – Appendices 1226 A and B – Child-Placing Requirements for ICWA and Compliance Checklist