MCWTS CWFT Module 11 Chapter 2. Indian Child Welfare Act (ICWA) Requirements for Child Welfare

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1 Module 11 Chapter 2 ICWA requirements must be met in all voluntary and involuntary child custody proceedings for American Indian children in the child welfare system. These requirements apply to children and families, tribes, child welfare workers and the courts. This chart highlights each of the seven major requirements, specific elements for each requirement, and the responsibilities for child welfare workers including additional Minnesota legal requirements. Note: TSA is the 2007 Tribal State Agreement and SSM is the Social Services Manual. Requirement Elements Responsibilities & Additional MN Requirements Membership Child must be: Unmarried & under age 18; & A member of a federally recognized tribe, or Biological child of a member & child is eligible for membership Ask at Intake and Initial Assessment: o American Indian heritage and which tribe(s) Contact tribe for written membership verification Treat as ICWA case until eligibility is determined o Tribe should be involved with case planning Notice Notice protects tribal interest; informs parent, Indian custodian & tribe of pending proceedings & tribe s right to intervene Send via registered mail, return receipt requested Send 10 days prior to any involuntary child custody proceeding or after determination that child will receive services for 30 or more days o Send to parent or Indian custodian, the Tribe, and the Tribal social or human services agency MN Requirements: Send formal notice to tribal social services within 7 days of determination that child s condition could lead to out-of-home placement & agency involvement will be required beyond 30 days send via registered mail, return receipt requested If identity or location of parent, Indian custodian, and/or tribe cannot be determined, send notice to Secretary of the US Dept. of the Interior, Bureau of Indian Affairs, via registered mail, return receipt requested 1

2 Active Efforts (AE) Active efforts include, at a minimum: o Active attempts to engage parents in services to alleviate problems that led to intervention and/or child removal o Active attempts to prevent child removal o Regular, documented contacts with child, child s family and child s tribe o Continuous efforts if child enters placement until final permanency decision is made AE exceed legal standard of reasonable efforts AE determined on a case-by-case basis o Court must be satisfied that sufficient efforts were made to meet AE requirements Provide culturally appropriate services & programs, within & outside of tribe, to prevent breakup of family & removal of Indian children Acknowledge traditional helping & healing systems of child s tribe Use AE at all times: o Identification of child o Potential out-of-home placement o Emergency placement o Identification of qualified expert witnesses o Case planning o Provision of services See 2007 TSA pgs or SSM 3559 for detailed examples 2

3 Qualified Expert Witness (QEW) Used to establish court determination of need for outof-home placement; required for permanency hearings o Testimony helps demonstrate that continued custody by the parent or Indian custodian will result in serious emotional or physical damage to the child o Clear and convincing evidence is standard used for foster care cases o Beyond a reasonable doubt is standard used for termination of parental rights & adoption cases Not defined in ICWA; legislative history provides that the phrase QEW is meant to apply to expertise beyond the normal social worker qualifications QEW must be a: o Member of child s tribe; & recognized by tribal community as knowledgeable in customs regarding family organization & child-rearing practices; or o Lay expert witness with substantial experience in delivery of child & family services to Indians; extensive knowledge of social & cultural standards, & child-rearing practices; or o Professional person with substantial education & experiences in the area of his or her specialty; substantial knowledge of social & cultural standards, & child-rearing practices Ensure QEW has sufficient information to answer questions as required by ICWA: o Is parental conduct likely to result in serious physical or emotional harm to the child? Serious physical or emotional harm does not include: evidence that only shows existence of community or family poverty, crowded or inadequate housing, alcohol abuse, or non-conforming social behavior o If such conduct will likely cause such harm, can the parents be persuaded to modify their conduct? o See 2007 TSA pgs. 17 & 23 for more detailed information 3

4 Right to Intervene Applies to: o Parents o Indian custodian o Child s tribe Is absolute Request can be written or oral Can be exercised at any time & any stage of a child custody proceeding Establish contact with tribe as soon as possible Provide appropriate notices to enable intervention o Invite tribes to staffing, visits, case planning meetings, relative search endeavors etc. o Court typically sends legal notices; best practice is calling tribal representative to ensure receipt of notice o Document contacts in SSIS Share information quickly: orally & copies of case documents o Document requests & method of compliance in SSIS Maintain tribal contact to learn decisions regarding all aspects of the case 4

5 Jurisdiction of Tribal Court Tribes have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe or is a ward of tribal court Transfer of Jurisdiction must occur (except in emergencies) if: o Tribe requests transfer; or o Child is a ward of tribal court; or o Child resides or is domiciled on reservation If child does not live on a reservation, court must grant petition to transfer unless: o Either parent objects; o Tribal court declines; or o Good cause exists to deny transfer Good cause to deny transfer is limited to: o Tribe has no court & no alternate tribal court is designated o Petition is inexcusably filed when proceeding is at an advanced stage o Necessary evidence can t be presented in tribal court without undue hardship to parties or witnesses MN Requirements: County that placed child in out-of-home placement remains financially responsible for placement costs if/when case is transferred to tribal court, or the jurisdiction of another county or state There are no additional responsibilities for county workers when jurisdiction has been transferred to tribal court and tribal social services agency is providing services See 2007 TSA pgs. 6-7 for more details 5

6 Legal Standards Other Considerations Includes active efforts Higher than non-icwa cases for removal of children & termination of parental rights Emergency removal: o To prevent imminent physical damage or harm to the child o Requires Clear & Convincing Evidence o QEW testimony must support evidence standard Termination of Parental Rights and Adoptions o QEW testimony must support evidence standard o Petitioner must establish, Beyond a Reasonable Doubt, that continued custody by parents or Indian custodian would result in serious emotional or physical harm to the child Foster care order of placement o Member of child s extended family o Foster home licensed & approved by child s tribe o Indian foster home licensed and approved by CPS o Children s institution that is approved by the tribe or operated by an Indian organization Pre-adoptive & adoptive order of placement o Member of child s extended family o Member of child s tribe o Other Indian families external to tribe MN Requirements: Emergency removal requires the agency to demonstrate, preferably by live testimony, or by affidavit, at initial emergency hold hearing, & at each subsequent hearing, the following: o Active efforts to assist parents or Indian custodians so child may be safely & promptly returned to their custody; and that o The specific, emergency condition continues to exist which threatens imminent physical damage or harm to the child Relationship to state and federal laws Follow ICWA procedures unless other federal or state laws provide a higher standard of protection for Indian child, parent, or Indian custodian o MIFPA & 2007 TSA provide higher standards in some cases; review these legislative articles in the next chapter via links MEPA/IEPA o Prohibit discrimination in out-of-home placement o MEPA/IEPA do not affect application of ICWA ASFA o States & child welfare workers must comply with ICWA and ASFA o ASFA does not supersede ICWA o DHS regulations that implement ASFA do not supersede ICWA requirements 6