Module 16: Out-of-Home Placement of Indian Children

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1 Module 16: Out-of-Home Placement of Indian Children Overview The Indian Child Welfare Act of 1978 (ICWA) endeavors to preserve and strengthen Indian families and the Indian culture by requiring that, if at all possible, Indian children remain with their extended families, or at least within the Indian community. ICWA prioritizes placement possibilities. When these preferences cannot be followed, ICWA mandates that the reasons must be documented. ICWA also requires Indian children to be placed in the least restrictive settings possible and gives Indian parents a specific amount of time to change their minds when they voluntarily relinquish custody of their children. Module Objectives With the use of this course material, learners should be able to: Describe the documentation required in cases resulting in the involuntary placement of an Indian child outside the home Give at least one example of how the differences in child-rearing values between Indian culture and other cultures can be misinterpreted Describe foster care placement preferences for Indian children Describe adoption placement preferences for Indian children Describe the rights of parents who voluntarily place an Indian child for adoption Describe required notification when a child s placement is changed Describe required notification when an adoption is disrupted Tribal child welfare workers need to communicate community standards, participate in case planning and implementation, and help identify resources for reunification and/or permanency planning. Documentation Before Involuntary Placement Documentation in the case record should give indications of the likelihood of serious emotional or physical damage because of particular conditions in the home. The documentation should show how the conditions would cause serious emotional or physical damage to the child. For example, it is not adequate to show that the parent abuses alcohol. It is necessary to show how, because of alcohol abuse, the parent may cause emotional or physical damage to the child. C A U S E S Cross-Cultural Consideration Because children in the Indian community are viewed as belonging to the community, not just to their biological parents, children are sometimes left in the care of others for longer periods of time than in 2002, NICWA Page 1 of 6

2 other cultures. Without understanding the Indian client in the context of his or her culture, this can be misinterpreted as neglect or abandonment of a child. Performance Steps In cases of out-of-home placements, document the active efforts that were unsuccessful. Before initiating court proceedings to remove a child, document in the case record: That the conduct or condition of the parent will likely result in serious physical or emotional harm to the child, and That efforts were made to counsel the parent(s) and change their behavior, and that these efforts have failed. te Active efforts must be well documented. The minimum sufficient level of care standard is usually higher in tribal communities. Foster Care and Kinship Placement Preferences ICWA requires that: The child must be placed in the least restrictive setting available, which most approximates a family (25 U.S.C. 1915[b]). The child must be placed in reasonable proximity to the child s permanent home (25 U.S.C. 1915[b]). Inquiry should be made of the child s tribe regarding the tribe s customary definition of extended family (25 U.S.C. 1903[2]). The child must be placed within the preferences established by ICWA, which are: 1. A member of the child s extended family 2. A foster home licensed, approved, or specified by the Indian child s tribe 3. An Indian foster home licensed or approved by an authorized non-indian agency 4. An institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child s needs Performance Steps Contact the child s tribe(s) to discuss tribal placement preferences as early as possible in case development. Ask the tribe(s) if a tribal resolution has established a placement preference different from those required by ICWA. Ask the tribal child welfare worker about concurrent planning options early in the case. Document efforts to follow ICWA s placement preferences. Contact the tribe s social service program for input. Establish contact with the child s extended family. Conduct a search of state and county lists of Indian foster homes. Contact other tribes and Indian organizations with available placement resources. If the placement is outside the preferences established by ICWA, document the reason and provide regular updates to the tribe. If any party believes that good cause exists to place the child outside the placement preferences, document the reasons for that belief in the case record. 2002, NICWA Page 2 of 6

3 te The Supreme Court called the placement preferences the most important substantive provisions of ICWA. When placement falls outside the preferences, there must be a finding in a court, after a hearing, of good cause to place a child outside the preferences. Involuntary Adoption Placements Preferences ICWA establishes a placement preference for the adoption of Indian children (25 U.S.C. 1915[a]). The placement preference is: 1. Child s extended family 2. Other members of the child s tribe 3. Other Indian families The tribe has the authority to establish, by resolution, a different order of preference (25 U.S.C. 1915[c]). The state must then follow the tribe s alternate preference order, as long as it is the least restrictive setting appropriate to the particular needs of the child. When appropriate, the preferences of the Indian child or parent(s) must be considered. Tribal child welfare workers should become full partners in the placement process, participating in placement decisions, developing and implementing service plans, identifying resources of culturally appropriate services, and giving training to providers. te There must be a finding in a court, after a hearing, of good cause to place a child outside the placement preferences of ICWA. Performance Steps Contact the tribe early to ask if they have established a placement preference different from those in 25 U.S.C. 1915(a). If the placement is outside the preferences established by ICWA, document the reason. If any party believes that good cause exists to place a child outside the placement preferences, document the reasons for that belief in the case record. If there is a finding in a court order of good cause to place a child outside the placement preferences of ICWA, document the reasons in the case record. Voluntary Consent for Adoptions ICWA, including the placement preferences, applies to voluntary placements involving both public and private agencies. When the consenting parent requests anonymity, however, the court must give weight to a parent s request for anonymity in applying the preferences. If placement falls outside the preferences, there must be a finding in a court, after a hearing, of good cause to place a child outside the preferences. Tribal child welfare workers may need to educate private adoption agencies about ICWA. For a valid consent to be given, the following conditions must be met: The child is over 10 days old. The consent is in writing and recorded before a judge. The consent is accompanied by the judge s certification that the terms and consequences of the consent were fully explained in detail and fully understood by the Indian parents or Indian custodian. 2002, NICWA Page 3 of 6

4 The consent is accompanied by the judge s certification that the terms and consequences of the consent were fully explained in English or translated into a language understood by the parents or Indian custodian. Tribes are encouraged to identify their permanency planning needs, and develop community resources to meet them. Consent from Both Parents Consent should be obtained from both parents. If this is not possible, the non-consenting parent s rights must be terminated involuntarily in accordance with ICWA. If a case involves an unwed father, and the father has acknowledged or established paternity, the state must treat the father as a parent. Acknowledgement of paternity under ICWA does not have to meet state paternity standards. The consent signed by Indian parent(s) or custodian should contain: Name and birth date of child Name of child s tribe Child s enrollment number or other indication of membership in the tribe Name and address of consenting parent(s) or Indian custodian Name and address of prospective parent(s), if known, for substitute care placements Name and address of person or agency through whom placement was arranged, if any, for adoptive placements Parent(s) right to withdraw consent from termination and regain custody of child before entry of official order terminating parental rights Parent(s) or Indian custodian s right to be notified if the adoption is set aside or vacated, or otherwise unsuccessful, and the right to petition court for custody A statement of the parent(s) right for parental consent to be signed in closed court Assess voluntary placements carefully. Fully explain possible ramifications of each step to birth parents. 2002, NICWA Page 4 of 6

5 Withdrawal of Consent A parent or Indian custodian has the right to withdraw consent to the adoption of an Indian child or termination of parental rights at any time prior to the entry of the final decree. If the parent(s) gave consent to adoption under fraud or duress, they may petition the court to vacate the adoption decree up to two years after the adoption. te that ICWA treats voluntary termination of parental rights and voluntary adoption proceedings differently. If consent is given in a voluntary termination of parental rights proceeding, regardless of the name for the consent or language it includes, the parent s right to withdraw that consent under ICWA ends when the court enters a final decree of termination. This map shows the process for withdrawal of consent. Withdrawal of Consent Adoption or termination of parental rights proceeding? Termination of parental rights Adoption Final decree of termination entered? Final decree of adoption entered? Finding of fraud or duress? Within two years of adoption? withdrawal of decree Child returned Child returned withdrawal of decree withdrawal of decree Child Removal permitted returned = Decision = Result or activity Voluntary Consent for Kinship or for Foster Care Placement Efforts must be made to make a voluntary foster care placement in a setting that follows the placement priorities established by the tribe or ICWA (25 U.S.C. 1915[b]): 1. A member of the child s extended family; 2. A foster home licensed, approved, or specified by the Indian child s tribe; 3. An Indian foster home licensed or approved by an authorized non-indian licensing authority; or 4. An institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child s needs. Performance Step When required placement preferences have not been followed, document in detail all efforts to find suitable placements within those preferences. The consent signed by Indian parent(s) or custodian should contain: 2002, NICWA Page 5 of 6

6 Name and birth date of child Name of child s tribe Child s enrollment number or other indication of membership in the tribe Name and address of consenting parent(s) or custodian(s) Name and address of prospective parent(s), if known, for substitute care placements Name and address of person or agency through whom placement was arranged, if any, for foster care placements Change of Placement: tify Parents When an Indian child is to be moved from one placement to another, or if the foster family plans to move, the child s parent(s) or Indian custodian(s) and the tribe must be notified in writing. This applies to both voluntary and involuntary foster care placements. Disrupted Adoptive Placements If an adoption is set aside, or adoptive parents voluntarily consent to termination of parental rights, the Indian parent(s) or custodian(s) and tribe must be notified. The notice should include a statement of the parent(s) or Indian custodian(s) right to the return of the child and that such petition will be granted, unless the court rules that custody by the parent(s) or Indian custodian(s) is likely to result in serious emotional or physical damage to the child. Record of Placement Written records are to be maintained on each Indian child, separate from the court record, of all placements that are out of compliance with ICWA. A record should be kept of the efforts made to comply with the ICWA placement preferences. Upon request, the placement records shall be made available to the Indian child s tribe and the Secretary of the Interior, 25 U.S.C. 1951(b). Tribes should keep records that are consistent with federal and state regulations to comply with funding sources. Tribes should also maintain the confidentiality of their records. 2002, NICWA Page 6 of 6