The California Department of Social Services

1. Indian Child Welfare Act (ICWA)Training The California Department of Social Services

2. Our Goals • 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 1

3. 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 Agenda 2

4. History Behind ICWA • 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 3

5. 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

6. 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

7. 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 6

8. 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 7

9. 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

10. Overview of the ICWA 9

11. 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 tribesright to intervene in child custody proceedings 10

12. 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 11

13. Key Definitions

14. 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 13

15. 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” 14

16. 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 15

17. 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 16

18. 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) 17

19. 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 18

20. 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

21. Tribal Jurisdiction • Tribes and PL 280 states have concurrent jurisdictionover 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

22. 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 21

23. Minimum Federal Standards & CA State Standards • Inquiry • Notice • Evidentiary Requirements • Qualified Expert Witness • Active Efforts • Placement Preferences 22

24. 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

25. 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 22

26. 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

27. 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

28. 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 27

29. 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 28

30. 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

31. Right to Counsel • Indigent parents or Indian custodians have the right to court-appointed attorney

32. 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

33. 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 32

34. 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 33

35. 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)

36. 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 35

37. 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

38. 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 37

39. Placement Preferences:Adoptive 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 38

40. 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

41. “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 40

42. 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

43. Provisions for Voluntary Custody Proceedings 42

44. How the ICWA Applies to Voluntary Proceedings • Notice is not required under ICWA, however, California law now requires notice in voluntary proceedings. Case law also indicates that notice is best practice (Supreme Court case Mississippi Band of Choctaw vs. Holyfield) • Tribe’s right to intervene applies • Consent requirements apply 43

45. Consent Requirements • Must be in writing • Must be recorded before a court of competent jurisdiction • Judge must certify that terms and consequences of consent were fully explained • Judge must certify that the giver of consent understood English, or that it was interpreted into a language the person understood 44

46. Withdrawal of Consent for Voluntary Placement • Parent or Indian custodian may withdraw consent at any time before the entry of a final decree of adoption • After final decree, may withdraw consent only on the grounds that it was obtained through fraud or duress 45

47. Working with Dependency Court 46

48. 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 47

49. 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 48

50. 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 49