The INDIAN CHILD WELFARE ACT

Grudging Compliance or Constructive Implementation?

Child Abuse and Neglect: Essential Information for Practicing & Presiding in Child Welfare CasesAlbuquerque, New MexicoApril 23-24, 2009

JUDGE JOHN J. ROMERO, JR. albdjjr@nmcourts.gov

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Children & Families

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OVERVIEW

History and Purpose of ICWA

When Does ICWA Apply?

Relationship between ASFA & ICWA

Effectiveness?

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History and Purpose of ICWA

From the late 1800’s to the mid-1970s, Indian families were subjected to various forces which negatively impacted the family unit: Allotment Act Assimilation Termination

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History and Purpose of ICWA

By the 1960’s recognition that Indian families were

being broken apart at an alarming rate state social service departments removing

children from their homes and communities

Missionaries and social workers placing Indian children in non-Indian foster and adoptive homes

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History and Purpose of ICWA

Prior to ICWA Indian children were removed from their

homes and placed in foster and adoptive placements and institutional settings at rates far greater than non-Indian children

Adoption rates for Indian Children were

8 times higher than for non-Indians, and 90% of adoptions were in non-Indian

homes

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History and Purpose of ICWA

Studies in 1969 and 1974 showed that 25% to 35% of all Indian

children had been separated from their families and placed in adoptive families, foster

care, or institutions

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History and Purpose of ICWA

Studies – cont’d

in one state

1 in 8 Indian children under the age of 18 was in an adoptive home

during 1971-1972 nearly 1 in every 4 infants under 1 year of age was placed for adoption.

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History and Purpose of ICWA

Studies – cont’d

In another state, the risk of being separated from their children was 1,600% greater for Indians

In a state where Indian children made up only 7% of the population, 40% of all adoptions were of Indian children

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ICWA - 1978

CONGRESS ENACTED ICWA TO

PREVENT THE BREAK-UP OF

INDIAN FAMILIES To protect the best interests of

Indian children To promote the stability and

security of Indian tribes and families

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ICWA - 1978

WHY?Congress found that:

An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children…by non-tribal public and private agencies…. And

States…have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

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ICWA - 1978

ICWA’s three objectives:

1. Keep Indian children with their families.2. Defer to tribal judgments and decisions

about custody of Indian children.3. If Indian children must be removed from

their families, they should be placed with members of their extended family or members of their Tribe.

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ICWA applies when an ICWA applies when an Indian childIndian child is involved in a is involved in a child custody proceedingchild custody proceeding..

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INDIAN CHILD

“Indian child” means an unmarried person under 18

who is either: a member of an Indian tribe; or

eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

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CHILD CUSTODY PROCEEDING

“Child custody proceeding” means: Foster care placement (any action to remove an

Indian child from its parent or Indian custodian where the parent or Indian custodian cannot have the child returned upon demand)

Termination of Parental Rights Preadoptive placement (post-TPR) Adoptive placement

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Exclusive Jurisdiction25 U.S.C. 1911

Tribal Courts: have exclusive jurisdiction over any

child custody proceeding involving an Indian child who resides or is domiciled on an Indian reservation.

retain exclusive jurisdiction over any child who is a ward of the tribal court regardless of the child’s residence or domicile.

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Transfer of Proceedings25 U.S.C. 1911

A state court shall transfer to tribal court a foster care placement or TPR proceeding involving an Indian child not domiciled or residing within the reservation of the child’s tribe when:

there is no good cause to the contrary, neither parent objects, and the tribal court does not decline jurisdiction.

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Notice Requirements25 U.S.C. 1912

In any involuntary proceeding in a State court, the party seeking foster care of or TPR to an Indian child shall notify: the parent or Indian custodian AND the Indian child’s tribe

about the pending proceedings AND the right to intervene.

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Right to Intervene25 U.S.C. 1911

In any state court proceeding for the foster care placement or TPR of an Indian Child, the child’s Indian custodian and tribe have:

the right to intervene

at any point in the proceeding.

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Active Efforts 25 U.S.C. 1912(d)

Any party seeking foster care placement or TPR of an Indian child shall satisfy the court that: active efforts have been made to:

provide remedial services & rehabilitative programs designed to prevent the break up of the Indian family; and

these active efforts have been unsuccessful.

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Active Efforts 25 U.S.C. 1912(d)

Active efforts shall:

take into consideration the prevailing social and cultural conditions and way of life of the Indian child’s tribe, and

involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers (such as medicine men).

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Active Efforts and ASFA

ASFA does NOT alter ICWA’s active efforts

requirement. Even where ASFA may relieve the State from

proving reasonable efforts (e.g., when

aggravated circumstances exist), active efforts

must be proved.

ACTIVE EFFORTS ARE REQUIRED IN EVERY ICWA

CASE.

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Foster Care Placement: Clear & Convincing Evidence 25 U.S.C. 1912

No foster care placement in the absence of:

clear and convincing evidence, including testimony of qualified expert

witnesses, that the continued custody is likely to result

in serious emotional or physical damage to the child.

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Termination of Parental Rights: Beyond a Reasonable Doubt25 U.S.C. 1912

No TPR in the absence of evidence:

beyond a reasonable doubt, including testimony of qualified expert

witnesses,

that continued custody is likely to result in serious emotional or physical damage to the child.

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Qualified Expert Witness

BIA guidelines identify three types of experts: A member of the Indian child’s tribe who is

recognized by the tribal community as knowledgeable in tribal customs as they pertain to family or organization in childrearing practices.

A lay expert witness having substantial experience in the delivery of child and family services to Indians and an extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe.

A professional having substantial education and experience in the area of his or her specialty.

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Priorities for Placement 25 U.S.C. 1915

Absent good cause to the contrary, a State court shall follow these preferences for the foster care placement of an Indian child:

1st Extended Family2nd Foster home licensed by Tribe3rd Indian foster home licensed by State4th Institution approved by Tribe5th Other foster homes licensed by State

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Voluntary Consent25 U.S.C. 1913

When a parent or custodian voluntarily consents to foster care placement or TPR, it must be in writing and clear that the parent understands what they are agreeing to.

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Withdrawal of Consent25 U.S.C. 1913

The parent or Indian custodian may withdraw consent to:

the Indian child’s placement in foster care at any time and the child must be returned.

voluntary TPR at any time prior to entry of a final decree of voluntary termination or adoption.

voluntary adoption within two years of entry of final decree of adoption when the court finds fraud or duress

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Emergency Removal25 U.S.C. 1922

ICWA does not prevent emergency removal of an Indian child who is temporarily off the reservation.

The Indian child must be returned home as soon as the threat of imminent harm has passed.

Custody proceedings shall be initiated quickly when appropriate.

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ISSUES?

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ISSUES?

Lack of (timely) notice to Tribes

Lack of identification of Indian children

Lack of Indian foster homes

Lack of active efforts

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ISSUES?

Existing Indian Family doctrine Some courts have made exceptions to the

application of ICWA by finding that the despite an Indian child’s membership in a tribe, the Act was not intended to apply when a family has no apparent cultural ties to a Tribe.

Trend is moving towards rejection of this unjustified doctrine.

Doctrine was essentially rejected in Holyfield v. Mississippi, 490 U.S. 30 (1989)

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ISSUES?

Safe haven for dropping off newborns

Conflicts with 10-day requirement under 25 USC 1912(a) No determination of membership

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Ideas for improvement

Mandatory training for social workers Better screening tools to ID Indian

children at intake More tribal – state interaction More education for judges,

prosecutors, attorneys and social workers

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ANSWERS?

What are the issues in your jurisdiction?

What are your success stories? What could be done to improve

compliance with the ICWA? What amendments, if any, are needed

to ICWA? What have been your experiences with

the Act in different jurisdictions?

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