1. Revised BIA ICWA Guidelines: An Overview
Addie Smith, Government Affairs Staff Attorney
(503) , ext. 132
Jennifer Meyer, Assistant Attorney General

2. Child Welfare Disproportionality: Why the Guidelines Matter
4.3
AFCARS Self report of race; not broken down into IC status
Data in; data out
Numbers such as these have led to CA’s efforts to improve disproportionality
2015 report to the legislature shows some improvements as well
Summers & NCJFCJ, 2015

3. Acronym Key BIA= Bureau of Indian Affairs
DOI= Department of the Interior
ICPC= Interstate Compact on the Placement of Children
FOIA= Freedom of Information Act
TPR= Termination of parental rights
C&C= Clear and convincing evidence
BARD= Beyond a reasonable doubt

4. Revised Guidelines: Overview
February 25, 2015, DOI/BIA released revised ICWA Guidelines for state courts and agencies effective immediately
These supersede and replace the 1979 guidelines
Expand application from just state courts to state courts and state/private child welfare and adoption agencies

5. Proposed Federal Regulations: Overview
March 20, 2015, DOI/BIA released a Notice of Proposed Rulemaking (NPRM) for new ICWA regulations
Describe in detail the proposed ICWA regulations (rules not yet effective)
Allows for a 60 day “notice/comment” period
Describe tribal consultations/public meetings schedule
DOI/BIA will collect input and comments and incorporate/issue a final rule

6. Regulations v. Guidelines
Guidelines—persuasive, considered when interpreting a statute
Regulations—binding, given deference when interpreting a statute
Difference between following a best practice or manual guidance and following the law

7. Purpose of the Revised Guidelines
Clarify minimum federal standards
Where applicable state (or other federal law) provides a higher standard of protection to parents, those are to be followed
Where there is inconsistency, CA lawyers will argue statutory requirements
Ensure compliance consistent with
Language of ICWA
Intent of ICWA
Canons of statutory construction/interpretation
Where there is inconsistency, CA lawyers will argue statutory requirements.

8. Section A – General Provisions
Important terms clarified with new definitions:
Active efforts- more than reasonable efforts
Provides 15 examples of active efforts
Check them out!
Continued custody- physical and/or legal custody that a parent already has or had at any point. Bio mom has had custody.
Custody- physical and/or legal custody under any applicable tribal law or state law.

9. Example of difference in statute and guidelines
AE vs. RE
Legislature rejected legal definition in WSICWA that AE is more
AE in federal and state law is different – relates only to AE to provide remedial services/rehab to prevent break up of the Indian family
Free to do more than minimum required by law; but failure not a violation
WA ICWA manual:
“[a]ctive efforts include those services the social worker actively provides to rehabilitate and/or prevent the breakup of the family. Active efforts require more direct involvement by the social worker with the family than reasonable efforts.” (ICWA Manual 05.20).

10. Section A – General Provisions
Domicile- Physical presence and intent to remain. For Indian child domicile is their parent’s.
May be a place the child has never been
Cannot be defeated by the individual action of parent
Parent- any biological parent of an Indian child (or adoptive parent). Does not include an unwed father where paternity has not been acknowledged or established.
Acknowledging or establishing includes:
1) To the court in the action at hand; or
2) DNA testing.

11. Section A – General Provisions
Require courts and agencies to
Inquire in every proceeding if a child is Indian
Apply ICWA unless or until the court knows the child is not ICWA eligible
Provide instructions on how to contact a tribe to verify the ICWA-eligibility of a tribe:
1) contact ICWA notice recipient, 2) contact tribe directly, 3) contact BIA to assist you in identifying tribal contact.

12. Inquiry under Statute and Policy
Obligation under RCW :
Make good faith effort to determine whether Indian Child by consulting with parent(s), person with custody or where child resides and anyone else who may have information about membership or possibility of membership
Referral to NAIR
Inquiry to federally-recognized tribes
Result from NAIR can inform who gets legal notice under RCW
AGO may still do legal notice even if no confirmation
Challenges include that department process goes much broader than this to request any Native American ancestry, so child who does not actually meet the Indian child definition may end up having ICWA applied – equal protection problem – tension between importance of ICWA and identifying children who meet the definition and not overapplying the law such that you treat people differently based on their race.

13. Section B – Pretrial Requirements
Court should allow alternative methods of participation in court hearings
telephonic, videoconferencing, etc.
Active efforts should:
Begin at the moment a case or investigation may lead to removal
BIA role in determining membership in lieu of tribe is deleted.
Can do this by policy, but not a “violation” of ICWA.

14. Section B – Pretrial Requirements
Agencies should ask EVERY family whether there is reason to believe a child is an Indian child
Court should ask all parties to certify on the record whether there is reason to believe the child is an Indian child
Can request genograms or domicile information as part of the certification
If there is reason to believe the child is an Indian child, then the court must confirm that the agency used active efforts to engage the child’s tribe(s) to verify membership
BIA role in determining membership in lieu of tribe is deleted.
AE requirement is an addition in guidelines and does not come from state or federal statute; while MOUs and policy contemplates working with tribes and families in advance of removal, this is not a statutory requirement and thus there is not a “violation” of ICWA if this is not done.

15. Legal Notice
RCW – where petitioning party “knows or has reason to know that the child is or may be an Indian child”
Legal notice to tribe (and parents, of course)
Potential for over application; usually err on side of caution because all that is required is legal notice

16. Section B – Pretrial Requirements
Where anonymity is a concern the obligation to determine ICWA eligibility is not relieved.
Relevant documents, however, must be kept confidential/under seal
Only a tribe can determine child’s membership.
No requirement that a child have certain contacts with tribe or certain blood quantum
Tribe need not formally enroll a child for the child to be a member
State cannot substitute its judgment
BIA can no longer provide determination
Guidance provided on how to determine the tribe if the child is a member or eligible for membership in two or more tribes
BIA role in determining membership in lieu of tribe is deleted.
Not a CA decision to determine which tribe has preference; advice is to defer to court.

17. Section B – Pretrial Requirements
Notice
Is required for each initial proceeding and every “child custody proceeding” thereafter
Must be sent by registered mail with return receipt--Notice may be sent in another format but this must supplement registered mail return receipt
Should include: genogram for both parents (with complete names, addresses, places of birth, tribal affiliation, etc.)
Should also include responding to requests for additional information
If a child is transferred between two states via ICPC both states’ courts and agencies must send notice to the tribe
BIA role in determining membership in lieu of tribe is deleted.
Not the same as the “inquiry” done by NAIR; important to share information from NAIR with AGO so that can do legal notice – (usually done by AGO but doen by CA in some offices)
Must be done on pattern form and include a copy of the petition (DPY or TRM)
Also not the same as informing a tribe that has intervened of upcoming review or perm planning hearing

18. Section B – Pretrial Requirements
Emergency Removal
State may only exercise temporary emergency jurisdiction when the child is at risk of imminent physical damage or harm
Must be as short as possible
Must terminate as soon as the imminent physical damage or harm no longer exists or the tribe exercises jurisdiction
Efforts to promote transfer to tribal court are to be made by the state at the time of emergency removal
Courts are split as to whether ICWA applies at these emergency proceeding (best practice says it does) § 1911(a)/§ 1922

19. Must harmonize with RCW 13. 34
Must harmonize with RCW which states that removal is permitted where health, safety and welfare would be seriously endangered and there is “imminent harm”
Courts are split because statute isn’t clear. Trying to harmonize the different provisions is difficult. As written, one interpretation of the statutory language is that an emergency removal takes place prior to an involuntary custody proceeding such that the notice and standards don’t apply; that said, it isn’t entirely clear – at shelter care there may not be enough information to determine whether child is Indian; As a practice point where there is, our lawyers will generally give notice to the tribe, and may establish need for shelter care at the higher standard and use a QEW, but it is a determination made on a case-by-case basis.
The guidelines suggest a hearing within an ICWA compliant hearing 30 days after the shelter care hearing to help states reconcile this very issue. It also takes into account recent lawsuits which highlight he widespread violation of parents’ constitutional rights and ICWA rights at shelter care hearings in a timeframe fails to meet constitutional DP requires.

20. Section C – Transfer to Tribal Court
Revised guidelines provide ‘good cause’ restrictions.
The court may not consider:
whether or not the case is at an “advanced stage”
whether transfer would result in a change of placement for the child
the child’s contacts with the tribe or reservation
the socio-economic conditions or any perceived adequacy of the tribal agency or court
the tribal court’s prospective placement for the child
The burden to establish “good cause” to not transfer is on the party opposing the transfer.
This standard may be difficult to apply since it is written in the negative, i.e, examples of what cannot be considered but no examples of what can be considered. Identified as an issue nationally -- at least one appellate court has refused to follow because guidelines doesn’t allow for individual consideration of child’s best interests. CA policy is to support transfer to tribal court whenever possible – if considering asking for a good cause finding then definitely want to staff up your chain of command and with your lawyer to see whether your worker’s reasoning is sound both from social work as well as legal perspective.

21. Section D – Involuntary Proceedings
State must show active efforts were provided prior to removal and before TPR
Must show that active efforts have been unsuccessful
Active efforts must be documented in detail
Should include extended family, tribe, and Indian care givers
Standards of proof (fc= c&c; TPR= BARD) require a causal connection between conditions in the home and serious physical or emotional harm to the child
Can’t consider poverty, single-parenting, inadequate housing, substance abuse, or non-conforming social behavior alone
Potential confidentiality issues around sharing information with caregivers and extended family, if questions then consult.

22. RCW 13.38.130 – Involuntary child custody proceeding or termination
AE requirement = active efforts to provide remedial services and rehabilitative programs designed to prevent break up of Indian family
Depending on circumstances this may or may not also include services prior to removal
Addt’l reqs about QEW and continued custody
Same as in federal ICWA, 25 USC §1912(d) and (e)
Statutory language takes priority over guidance; policy is not inconsistent with the goal of AE before removal but that is not what is required by state or federal statute.

23. Section D – Involuntary Proceedings
A QEW should have specific knowledge of the child’s tribe, culture, and customs
The following individuals are preferred in this order:
Member of the Indian child’s tribe who is recognized as knowledgeable in tribal family organization and child rearing
Member of another tribe who is recognized by the child’s tribe as a QEW based on their knowledge and service delivery
Layperson recognized by the child’s tribe as having substantial experience and knowledge with the tribe, customs, and culture concerning child-rearing
A professional person having substantial education and knowledge in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices in the child’s tribe
Court or agency may request the assistance from the tribe or the regional BIA office to locate an appropriate QEW
Slight variations from our state ICWA; your lawyers would refer to it and MOU for guidance on who to call as QEW.
By far largest challenge our lawyers report is not being able to find a witness willing to testify or not getting a response from a tribe when requested to provide a witness

24. Section E – Voluntary Proceedings
Must ask whether a child is an Indian child
Should provide notice to the tribe
Note: This is not required by WA law; consult your AAG
Must be executed in writing and recorded before a judge
Need not be in open court (confidentiality)
Includes guidance on the content of consent
Withdrawal must be in the same court as the consent document
In adoptions parent must file an instrument executed under oath asserting withdrawal
Clerk must then notify the party by or through whom the adoption is occurring and child must be returned
Note to Addie: Our statute does not include voluntary proceedings in RCW , the notice statute, and so a reasonable statutory interpretation is that the legislature did not intend to include these proceedings as ones to which the tribe would be entitled to notice. This is the same with federal ICWA. This then informs whether there are confidentiality issues of the parents that would need to be sorted through. Headquarters advice would be to staff individual cases with local AAG to sort through and discuss with parents.
Closing the courtroom in WA is a challenge because of state law preference for open government and transparency; not impossible to do but there is a separate state law analysis that must be performed.

25. Section F – Dispositions
Placement preferences must be followed, unless there is good cause to not do so
If the preferences cannot be met, the agency must
Demonstrate through c&c evidence that a diligent search has been conducted
Must include notification and explanation provided to:
Parents
All known/identifiable family
The tribe
For foster care specifically
All of the homes approved/licensed by the tribe
All Native foster homes
Explain why the preferences cannot be met

26. Preferences themselves generally not an issue (but see MOUs)
Questions about Implementation
Court approval required even where no dispute among the parties?
Not typical; practical?
Confidentiality issues if non-Indian placement
Leeway to share with tribe, less clear with others, i.e., all Indian foster care providers

27. Section F – Dispositions
The party seeking to assert “good cause” must show one or more of the following considerations:
Request of the parents after reviewing ICWA preferences
Request of child if she can understand the decision at hand
Extraordinary physical or emotional needs of the child
Cannot include ordinary bonding or attachment due to a noncompliant placement
Does not include a best interest determination because the act describes the best interest
Unavailability of placement after a showing of active efforts to find a placement
Court may not consider the socio-economic status of one placement versus another.
This good cause analysis allows consideration of child’s needs (as compared with good cause issue and transfer to tribal court where no consideration of BI allowed); CA policy is to try to follow placement preference where available so be sure to consult your chain of command and/or lawyers to make sure that there are good social work and legal grounds to assert it if social worker is not going to follow.

28. Section F – Dispositions
Where there is a request for anonymity, the court should consider whether additional confidentiality protections are warranted
A request for anonymity does NOT relieve the agency or court of the obligation to comply with the placement preferences
Court should consider the preference of the child or parent

29. Section G – Post-Trial Rights
Within two years of the adoption a parent who consented can vacate due to fraud, duress, or ICWA non-compliance
Child, parent, or tribe can invalidate any action where Sec. 1911, 1912, or 1913 were not followed
Any party can bring forward issues with regard to the rights of another party that were violated

30. Section G – Post-Trial Rights
State must furnish to BIA all final adoption decrees/orders from state court
Specific information is required (includes enrollment info)
This information is not subject to FOIA (privacy is protected)
State must establish single location for all voluntary/involuntary foster care, pre-adoptive placement, and adoptive placements available within 7 days
Should include at minimum the complaint, all substantive orders, and record of placement determination

31. Guidance has a place but when in doubt, look to law,
Consider role of MOU and
If questions, consult your lawyers early and often.