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The Importance of Following ICWA From the Beginning

It is imperative that everyone - attorneys, social workers, the court – ask whether the child may be an Indian child at the very beginning of a dependency case. In some jurisdictions, ICWA placements are presumed to be the best interests of the child. If an Indian foster child is not placed into an ICWA-preferred placement, that child may later be moved to a tribally sanctioned home. That move is likely to be traumatic for the child. If ICWA is not followed the case may be overturned or invalidated at any stage, including post finalization of an adoption.

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The Social Worker and the Court Have the Duty to Inquire if a Child Has Indian Heritage and Provide Notice to the Appropriate Tribe(s)

State agencies, social workers and courts have an initial and ongoing duty to:

1.  Inquire if a child before them is an Indian child, and
2.  Provide proper notice to the designated tribal representative, as listed in the Federal Register, of any and every tribe the child may belong to.

Federal Register list can be found here.

The notice must be sent, at a minimum, by registered mail, return receipt requested. Personal service or other types of service may be in addition to but not in lieu of such mail. The duty to inquire and to give notice as required by the law is affirmative and continues throughout the lifetime of the child and the case.  Welfare and Institutions Code §§ 224.2, 224.3

Only the tribe may decide who is an Indian child.  Welfare and Institutions Code § 224.3(h) 

If there is reason to know that the child may be an Indian child, the court must treat the child as an Indian child unless and until the court makes a determination, on the record--after reviewing the social worker’s report of the due diligence employed to identify the appropriate tribe(s), the notices sent to the tribe(s), the return receipts showing service of notice on the tribe(s), and the tribe(s)’ responses to the notice—that  the child is not an Indian child as defined by ICWA.

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Intervention by the Tribal Court

Once the child has been recognized by an Indian tribe, the tribe may choose to intervene in the state proceedings or may request transfer of the case to their tribal court. A petition to transfer the case to a Tribal court may be made by the Indian parent, Indian custodian or the tribe.

The right to transfer a case to Tribal court is available at any time and at any stage of proceedings, including during an emergency removal and up to and including a termination of parental rights determination and adoption finalization.  25 U.S.C. § 1911

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Placement Provisions of ICWA

ICWA sets forward removal standards and placement preferences that must be followed in foster care, preadoptive and adoptive placements of Indian children.

The issue of placement must be reassessed each time a change in placement is required and at each separate phase of the proceedings: foster care placement, termination of parental rights, preadoptive placement, and adoptive placement.  25 C.F.R. §§ 23.129 and 23.132

No removal of an Indian Child (away from the biological parents, adoptive parents, or Indian custodian) can be made without:

1. Active efforts to preserve the family through remedial and rehabilitative services designed to prevent the breakup of the Indian family. Active efforts are “affirmative, active, thorough and timely efforts intended primarily to maintain or reunite an Indian child with his or her family.” 25 C.F.R. § 23.2.  For a detailed list of active efforts see also: All County Information Notice 1-29-16 pp. 2 and 3, and;
2. Clear and convincing evidence that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. A qualified expert witness is required to establish the clear and convincing standard. The social and cultural standards of the Indian community in which the parent or extended family resides must be applied to removal from a parent or an Indian custodian.
   25 U.S.C. § 1915(d)

Once the removal standard is met, the following foster or foster-adopt placement preferences, in priority order, are to be applied:

1. A member of the child’s extended family;
2. A foster home licensed, approved or specified by the child’s Tribe;
3. An Indian foster home licensed or approved by an authorized non-Indian licensing authority (such as the state or a private licensing agency); 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.
   25 U.S.C. Section 1915(b)

When parental rights have been terminated or relinquished the following adoptive placement preferences are to be applied:

1. A member of the child’s extended family;
2. A member of the child’s Tribe; or
3. Another Indian family, including families of unwed individuals.
4. The agency and the court should, where appropriate, also consider the preference of the Indian child or parent.  25 U.S.C. Section 1915(a)

A Tribe may, by resolution, change the order of preference for foster care or adoptive placements as to their Indian child.  25 U.S.C. Section 1915(c)

When there is an emergency removal of an Indian child under state law, in order to protect the child from imminent physical damage or harm to the child, the child must be returned to the parent or Indian custodian once the removal is no longer necessary to prevent imminent hard to the child.  25 U.S.C. Section 1922

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Good Cause Exception

ICWA placement preferences must be followed.  To deviate the agency must demonstrate a diligent search for options that comply and obtain a court determination of “good cause” to deviate, which is based on one or more of the following:

• The request of the parents, if both parents attest they have reviewed the placement options that comply with the order of placement preference.
• The request of the child, if the child is able to comprehend the decision that is being made.
• The extraordinary physical or emotional needs of the child such as specialized treatment that may not be available near to the prospective Indian placement, as established by clear and convincing evidence from the testimony of one or more qualified expert witnesses.

A good cause exception is set at a high bar. The majority of cases will need to comply with ICWA placement preferences.
25 U.S.C. § 1915

The court may not depart from the placement preferences based on the socioeconomic status of any placement relative to another placement, nor may the court find good cause to deviate from the placement preferences “based solely on ordinary bonding and attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA.”
25 C.R.F. § 23.132 (d) and (e)

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