icwa and ca law academy presentation
TRANSCRIPT
Indian Child Welfare Act
(ICWA)Training
This presentation was created by Tribal STAR. Successful Transitions for Adult Readiness
http://theacademy.sdsu.edu/TribalSTAR
Tribal STAR’s presentation has been adapted for use in the Indian Foster Youth Academy, 2010.
To explain the historical basis and purpose of the Indian Child Welfare Act (ICWA)
To clarify the essential elements of compliance with the ICWA and SB 678 and the role of tribes in child custody procedures
To help you practically apply these essential elements in an ICWA case
Our Goals
Agenda
History leading up to the passage of ICWA
Purposes, goals and key definitions under ICWA
Minimum federal and state standards for state courts
Working with dependency courts
1957 – Federal Indian Adoption Project
- 395 Native American/Alaskan Native children placed for adoption by non-Native families
States followed this federal example Evidence mounted that placements
were not positive for Indian children
History Behind ICWAHistory Behind ICWA
More History
U.S. Congress formed a task force to investigate these practices
- 1977 Congressional hearings held
1978 Congress passed the Indian Child Welfare Act
Congressional Findings
Hearings revealed pattern of wholesale public and private removal of Indian children
Nationally:
- Indian children 3 times more likely than non- Indian children to be placed for foster care or adoption
- About 25-35% of Indian children had been removed from homes and placed in foster homes, adoptive homes, or institutions
Congressional Findings
In California: 8 times as many Indian as non-
Indian children were in adoptive homes
90 % of these Indian children were in non-Indian homes
Congressional Findings
Indian children who had been placed in non-Indian adoptive homes frequently suffered serious adjustment and acceptance problems
- Loss of identity, sense of self, feeling like an outsider
- Higher rates of suicide
- Higher rates of substance abuse Conclusion: Legal means were necessary to
make sure these practices were stopped
Senate Bill (SB) 678
State law effective January 1, 2007 Codifies ICWA into state law Amends Family, Probate and Welfare &
Institutions Codes to include ICWA Clarifies application in family law, probate
and certain delinquency proceedings Expands protections for Indian families
and tribes in a few key areas
What is the ICWA?
Federal law passed in 1978 Establishes minimum federal
standards that must be applied in state child custody proceedings involving Indian children
Acknowledges and implements the tribes right to intervene in child custody proceedings
Purposes of the ICWA To stop the removal of Indian
children from their homes due to cultural bias
To acknowledge Tribal sovereignty To preserve bond between Indian
children and their tribes and culture
Indian Child
An unmarried person who is under the age of 18 and is either: A member of a federally-recognized
tribe, or Eligible for membership in a federally-
recognized tribe and is the biological child of a member of a federally-recognized tribe
Formal enrollment in tribe is not required Enrollment vs. membership
Indian Parent
Any biological parent or any Indian person who has lawfully adopted the child, including adoptions under tribal law and custom
Does not include unwed father where paternity has not been acknowledged or established
Biological parent need not be Indian: if the child is a tribal member or eligible for membership, then the parent is defined as an “Indian parent”
Indian Custodian
Any Indian person who has legal custody under tribal law or custom or under State law, or to whom temporary custody has been given by the parent
No written documentation is required
Extended Family
Defined by tribal law or custom or in the absence of such law or custom:
Person over 18 who is the child’s: Grandparent Aunt or uncle Brother or sister Brother-in-law or sister-in-law Niece or nephew First or second cousin Step-parent
Tribe Any tribe, band, nation, or other
organized group or community of Indians that has been recognized as eligible for services provided by the federal government
Includes any Alaskan Native village Common term “Federally recognized
Tribe” WIC 306.6 – discretionary participation
for unrecognized tribes (SB 678)
Indian Child’s Tribe
The tribe of which the child is a member or eligible for membership
If the child is eligible for membership in more than one tribe, the tribe with which the child has more significant contacts
Tribal Jurisdiction
Exclusive jurisdiction over children residing or domiciled on reservation except: Temporary emergency removals Where such jurisdiction is otherwise
vested in the state by existing federal law (Public Law 280 for California)
Tribes may reassume exclusive jurisdiction over child custody proceedings – Washoe Tribe of Nevada and California only tribe with exclusive jurisdiction in California
Tribal Jurisdiction
Tribes and PL 280 states have concurrent jurisdiction over child custody proceedings involving children domiciled on the reservation (Doe v. Mann, 9th Circuit 2005)
A tribe, parent or Indian custodian may petition the court to transfer the proceedings to the tribal court
State court shall transfer the case absent good cause to the contrary
Proceedings Covered by ICWA
Foster care placements Any action removing child from parent/Indian
Custodian for temporary placement in foster home, institution, guardianship
Parent/Indian Custodian cannot have child returned upon demand
Termination of parental rights, including step-parent adoption
Adoptive placements Probate Guardianships Placement with non-parent in family law
proceeding Certain delinquency proceedings
Minimum Federal Standards & CA State Standards
Inquiry
Notice
Evidentiary Requirements
Qualified Expert Witness
Active Efforts
Placement Preferences
Inquiry
The court and county welfare and probation departments have an affirmative and continuing duty to inquire whether a child is or may be an Indian child (WIC 224.3)
Status of inquiry must be clear in petition, notices and reports; new mandatory Judicial Council Form ICWA-010(A) must be filed with every 300 petition
Inquiry is an ongoing process
Notice After inquiry if there is reason to
know the child is an Indian child notice must be sent to the parent or legal guardian and Indian custodian of the child, and the child’s tribe
Judicial Council Form ICWA-030 must be used
Notice must comply with WIC 224.2
Notice: WIC 224.2 Registered or certified mail return
receipt requested –receipt must be filed in the court file
To tribal chairperson unless another agent designated
To all tribes of which the child may be a member or eligible for membership
BIA, area director and Secretary of the Interior
Notice: WIC 224.2 continued
Notice must be sent in this manner for every hearing unless and until: The tribe acknowledges the child is a member or is
eligible for membership
- Child’s name, birth date, birth place and
name of child’s tribe need to be included 60 days after the tribe and BIA receive proper notice,
if neither responds, the court may determine that ICWA does not apply
- Court must reverse this determination if a response is received later indicating the
child is an Indian child
- If new information is discovered, ICWA-compliant notice must be resent
The ICWA Timeline
Except for the detention hearing in a dependency case, you may not proceed with a hearing until 10 days after the tribe, parent or Indian custodian receive the notice
If requested parents, Indian custodians or tribes shall be granted up to an additional 20 days to prepare
ICWA provisions shall be applied until determination of Indian status or at least 60 days have passed
If tribe or BIA later confirms status as an Indian child, ICWA is to be applied prospectively
Intervention The tribe and Indian custodian have a right to
intervene at any point in a proceeding
Once tribe intervenes they are a party to the case and have all rights of a party
Tribe may designate anyone to serve as their representative for the case
May be an attorney (paid by the tribe)
Often will not be an attorney
Regardless tribal representative has the same rights and should be given same courtesies as legal counsel
Role of Non-Intervening Tribe
Tribe or Indian custodian is not required to formally intervene in order to participate
Courts may still permit participation in proceedings
Tribe can: Express placement preferences Facilitate identification of placement options Assist in identification of qualified expert
witness Identify available Indian services and
programs
Right to Information
Each party to a case has the right to examine all reports or other documents filed with the court
The Indian custodian and tribe are parties if they intervene
As a party they are entitled to be treated in the same manner as counsel
Evidentiary Requirements for FC and TPR
Burden of proof
Foster care: clear and convincing evidence and testimony of a qualified expert witness
Termination of parental rights: beyond a reasonable doubt and qualified expert witness testimony
Cultural evidence: The court must also consider evidence of the prevailing social and cultural standards of the Indian child’s tribe including family organization and child rearing
Qualified Expert Witness Before the court orders foster care,
guardianship or TPR, qualified expert witness must testify that continued custody by parent or Indian custodian is likely to result in serious emotional or physical damage to the child
Must be live testimony unless all the parties stipulate to a declaration
A knowing, intelligent and voluntary waiver is possible
Who is a Qualified Expert Witness
A qualified expert witness may include: social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal elder
The individual CANNOT be an employee of the person or agency recommending foster care, TPR or guardianship
(New SB 678 requirement)
Who is a Qualified Expert Witness
Individuals most likely to meet the requirements to be a qualified expert witness are:
Member of the child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices
Person with substantial experience in the delivery of child and family services to Indians and extensive knowledge of prevailing social and cultural standards and childrearing practices within the child’s tribe
A professional person having substantial education and experience in the area of his or her specialty
Active Efforts Party seeking FC, guardianship or TPR must
provide evidence that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts were unsuccessful
Must consider the prevailing social and cultural values and way of life of the Indian child’s tribe
Must use extended family, the tribe, Indian social service agencies, and individual Indian caregivers
Placement Preferences:Foster Care
1) With a member of the child’s extended family
2) With a foster home licensed or approved by the tribe
3) With an Indian foster home licensed or approved by a non-Indian licensing authority
4) With an institution approved by an Indian tribe or operated by an Indian organization
5) As determined by the child’s tribe
1) With a member of the child’s extended family
2) With other members of the Indian child’s tribe
3) With other Indian families
4) As determined by the child’s tribe
Placement Preferences:Adoptive
Placement Preferences
When no preferred placement is available, active efforts must be made to place the child with a family committed to enabling extended family visitation and cultural and ceremonial events of the child’s tribe
Must follow preferences unless court determines that there is good cause not to
“Good Cause”Court may make exception to
placement preferences due to: Request of biological parents, or
child, if child is of sufficient age Extraordinary physical or emotional
needs of child, as established by testimony of expert witness
Unavailability of suitable homes within placement preferences
New TPR ExceptionSB 678
New compelling reason not to TPR for Indian child
Compelling reasons include but are not limited to: Substantial interference with the child’s
connection to the tribal community would be caused
Child’s tribe has identified another planned permanent living arrangement for the child
Steps in the Dependency Court
Process County places child in protective
custody Detention Hearing (first hearing) Jurisdiction Hearing Disposition Hearing Initiation of Active Efforts for
Reunification Review Hearings
Role of the Tribal Rep: Proactive Action
Help recruit and license foster homes
Pursue alternate placements before county becomes involved
Join or form county working group
Follow up aggressively on notices received
Intervene as early as possible
Role of the Tribal Rep: During Proceeding
Work with social worker on case Consult with attorney Testify, if called Make certain that case plan
includes active reunification effort Help parents get resources If change of placement is to be
requested, do as soon as possible
How the Tribe May Participate
Petition for transfer to tribal forum
Exercise rights to alter the minimum federal standards
Intervene as a party
Provide evidence and testimony
Tribal child or family service programs may provide support
Tribal members monitor vs intervening
Who May Be PresentThe following persons are entitled tobe present at a juvenile court proceeding: All parents, de facto parents, Indian
custodians, and guardians of the child
Counsel representing the child or the parent, de facto parent, guardian or adult relative Indian custodian or the tribe of an Indian child
A representative of the Indian child’s tribe
Who May Appear on Behalf of Tribes
Individuals may be present as: Family member
Witness
Duly authorized representative of tribe
Tribal social services provider
It is desirable to clarify role Caution: Rights can be waived by the
fact that the tribe had representation but did not raise objection
Invalidation of a State Court Proceeding
Can be invalidated if certain provisions of the ICWA were violated
Petition brought in juvenile court
Petition may be brought by:
The Indian child
The child’s parents
The child’s last custodian
The child’s tribe
Delinquency
Status Offenses (WIC sec.601): ICWA applies to delinquency
proceedings where the act would not have been a crime if committed by an adult.
California Law: expands scope to WIC sec.602.
Delinquency
ICWA matters in delinquency because “Notice”, “active efforts”, and “placement preferences” are tools for helping youth to receive culturally appropriate and effective rehabilitative services.
Resources Federal
25 USC Sections 1901-1963 25 CFR Sections 23.1-23.83 Dept. of Interior, BIA, Guidelines for State
Courts, Indian Child Custody Proceedings (44Fed. Reg.67,584 (1979))
State CDSS – www.childsworld.ca.gov 2008 Cal. Rules of Court, Rules 5.480 –
5.487
Resources The ICWA Handbook and Quick Reference Guide
California Indian Legal Services www.calindian.orgCalifornia Judge’s Benchguide -ICWA
CDSS ICWA SpecialistAna Bolanos-Kellison, MSW(916) [email protected]
Center for Families, Children @ the Courts ICWA Initiativewww.courtinfo.ca.gov/programs/cfcc/programs/description/jrta-IndianChild.htm