Child Welfare Agreement Working with the State for the best outcomes for Indian Children and Families
Child Welfare Agreement History and Background • Draws from the framework of a similar agreement between Minnesota and the Tribes based there. • Negotiated with the State as part of the mediated settlement of the Tribe’s boundary litigation. • Agreement is binding on the State of Michigan’s DHS, including all of its county level sub-divisions and the Tribe.
State Law and the I.C.W.A How does this agreement help clarify child protection standards? • The Agreement specifically acknowledges that different standards apply to Indian children involved in child protection proceedings and that the Indian Child Welfare Act trumps state law regarding child protection for Indian children. • The Agreement specifically acknowledges that Indian Children are to benefit from other state and federal child protection laws if the standards are more protective than the ICWA, but any law providing for lower standards is overruled by ICWA.
Purpose of the Agreement • Indian Children should be kept with their families • Indian Children who must be removed from their homes should be placed with their own Extended Families and tribe(s); and • The Department will follow the tribal order of placement preferences consistent with 25 U.S.C. 1915. • Requires any ambiguity to be resolved in favor of a result most consistent with the above three policies.
Important Definitions • The agreement specifically sets out that an unwed father does not need to establish paternity pursuant to Michigan law. Any act of the unwed father to hold himself out as the Indian Child’s father, or any paternity determined by tribal custom is sufficient. • The agreement defines Active Efforts as a rigorous and concerted level of case work that uses prevailing social and cultural values, conditions, and way of life of the Indian Child’s Tribe to preseve the family, or return the child home at the earliest possible time.
Active Efforts Defined… • Active Efforts require a higher, more intensive and prolonged standard of effort than the reasonable efforts standard Michigan requires. Reasonable Efforts are merely those rationally calculated to prevent removal, and are not required in every case. • Active Efforts are required in every single Indian Child Custody Proceeding: unlike Michigan law, there are no acceptable excuses for not providing Active Efforts. • Active Efforts are required by any case involving DHS, and where a non-voluntary case not involving DHS occurs, (guardianship, contested stepparent adoption etc.,) the party seeking to effect the out of home placement must make and pay for the Active Efforts.
Examples of Active Efforts • Notification of SCIT as early as possible. • Have SCIT expert assist in evaluating the family and determining a case plan. • Provide family with both SCIT and non-SCIT resources, including financial assistance, food, housing, health care and transportation when needed. • Visitation is to take place outside an institutional setting whenever possible, and DHS will work with SCIT to ensure supervised visitation in a natural setting. Arrange regular visitation with extended family, siblings regardless of age and parents. • Provide transportation assistance such as bus passes
Active Efforts Examples Continued... • Consulting with SCIT regarding available family support services, prevention and reunification services, and possible referral to other tribes for available services • Consulting with extended family for help, guidance and resources. If family is difficult to work with, consult with ACFS on working with Indian families.
Active Efforts Examples Continued • Using all available appropriate resources from state, SCIT or other Indian agency to aid the family. • Providing services to help extended family members qualify as a placement for the child. • If the Michigan Court rules conflict with this agreement in the future, this agreement prevails.
Important Definitions Continued... • Agreement Compliance Contact: person designated by SCIT or DHS to represent each entity as a liasion to implement this agreement. • Best Interests: Best interests of Indian Child are interwoven with the child’s tribe. They support child’s sense of belonging to family, extended family, clan and tribe. State best interests standards do not control either this agreement or child custody proceedings.
Definitions… • Child Custody Proceeding: Foster Care Placement where the child is removed from his home, including a guardianship or conservatorship where the parent/custodian cannot have the child returned upon demand. • Termination of parental rights: action resulting in termination of the parent-child relationship.
Important Definitions Continued... • Pre-adoptive Placement: placement of an Indian Child into foster care or an institution after termination of parental rights before adoption or in lieu of adoption. • Adoptive Placement: permanent placement for adoption, including an action resulting in adoption decree. • Descendant Child: child with Indian ancestry who is not eligble for enrollment, or whose eligibility for enrollment cannot be determined.
Definitions Continued… • Emergency: condition caused by action or inaction of a parent or custodian that puts the child at risk of imminent physical damage or harm. Emergency ends after the immediate risk has passed. Removal must terminate when the emergency ends. The parties agree to follow BIA Guidelines on emergency removals. • Extended family is defined as: law or custom of the tribe, or adult grandparent, aunt, uncle, brother, sister (in-laws) niece, nephew, first or second cousins.
Good Cause Not to Follow Placement Preferences Examples of Acceptable and Unacceptable Reasons: • A competent biological parent or child age 13 or older requests the placements not be followed, unless the request is an attempt to defeat the application of the Act. • Expert testimony establishes the child’s extraordinary physical or emotional needs require highly specialized treatments. • A diligent search in conjunction with Active Efforts, discloses no placement appropriate family. In such a case, SCIT will assist DHS to locate a family. • Bonding or attachment to a foster family alone is NOT good cause to keep an Indian Child in a lower preference or non- preference placement.
Existing Indian Family Doctrine is Expressly Rejected • The Indian Child is afforded ICWA protections regardless of which parent they live with, or what level of contact, including none, they have had with their tribe to date. • A non-Indian parent of an Indian Child receives the same protections in an ICWA proceeding that an Indian parent or Indian Custodian receives. • A Tribe’s determination that a child is eligible for membership or a member is conclusive, and not subject to state appeal.
Adoption Placement Preferences • If an Indian child cannot return home, where should the child be placed for adoption? • 1. With a member of the child’s extended family; • 2. With other member’s of the Indian child’s tribe; • 3. Other Indian families • Good Cause must be shown to deviate from this, and bonding alone is not good cause. To prevent additional disruption and heartache, foster care placements should conform to ICWA as soon as possible, to prepare for the possibility the child will not be able to return home.
Foster Care Placement Preferences Appropriate Placements and Criteria • Child should be placed in a setting approximating a family, where any special needs, if any, can be met, within reasonable proximity to the child’s home. • 1. Placement with a member of the extended family. • 2. A foster home licensed, approved or specified by the Indian Child’s tribe. • 3. An Indian Foster home licensed by a state or other non- Indian agency. • 4. An institution approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the child’s needs.
What makes a home an Indian home? The presence of siblings or half-siblings is NOT enough • Placement with extended family does NOT mean placing an Indian child with his or her siblings or half siblings. Kinship relationships are calculated by reference to the parents or Indian custodians. The extended family placement refers only to the responsible adults in the home. Those adults must be extended family to the child or the child’s parents, or Indian custodian.
Examples of Placements that Fail to Qualify Placement with Siblings is not enough to disregard ICWA • An Indian child placed with his half-siblings in a home with his half-sibling’s paternal grandmother, where they don’t share a common father is NOT an extended family placement. • Two Indian children placed together in a non-Indian state licensed home does NOT satisfy the ICWA placement criteria, whether or not the children are related to each other. • The Parents in the home must be extended family of the Indian child, not fictive kin via a half-sibling of the child.
DHS and the Lack of Indian Foster Homes • For SCIT children, their half-siblings and descendants, ACFS can suggest DHS use a borrowed bed agreement to use one of our Tribal licensed foster homes. Borrowed bed agreements are specifically endorsed in the settlement agreement. • ACFS can also suggest DHS contact other Tribes in Michigan and inquire about borrowing a bed from one of them. • Expect to need creative solutions to keep Indian children and their non-Indian half-siblings together in an ICWA qualified placement.
Cooperation, Placement and Protocol • The parties will work together to provide services to prevent child removal. • DHS must work with its county subdivisions to ensure they take advantage of all the resources SCIT has to offer SCIT and SCIT descendant children. • County DHS must immediately notify SCIT about an investigation involving a SCIT child, or child with indications of SCIT heritage. SCIT will have full access to all files permitted by law. • Collaborative approach will allow DHS and SCIT to provide more services to SCIT descendant children and their families even if ICWA does not apply.
SCIT Descendants and DHS Working together even when ICWA does not apply • For SCIT descendant children, DHS must consult with SCIT and carefully consider SCIT comments for issues including appropriate potential placements, sibling visits, and extended family visits. • Where allowed by law, coordinate with SCIT authorities to investigate and assess allegations of maltreatment and neglect of SCIT descendants domiciled on the Reservation. • DHS must consider joint investigations for SCIT descendant children domiciled outside the reservation.
DHS Central Registry and ACFS History Mutual Information Sharing Procedure for sharing information for investigations • DHS will continue to share information contained in its Central Registry of Child Abuse and Neglect upon request of ACFS. • SCIT establishes the following two part system for information sharing with the State: • 1. If DHS personnel have reason to believe that a person they contact as part of an active investigation may have been involved with an ACFS protection investigation they may verbally ask ACFS to confirm that information. ACFS will review their files and respond yes or no. • 2. IF ACFS responds yes, DHS may submit a written request for the case/contact history involving the person. ACFS will use its best efforts to locate and promptly produce a copy of the case/contact history for DHS.
Notices of Child Custody Proceedings and Emergency Placements • DHS must send SCIT a notice of proceeding if one is generated, and if not, a writting with enough information to determine the status of the case and the status of the SCIT child, so SCIT may participate in planning and hearings, or assert jurisdiction puruant to ICWA. • DHS must send notices to the Department of Interior when it lacks sufficient information to determine tribal status. • If DHS effects an emergency removal of a SCIT child, it shall notify SCIT via telephone or facsimile of the date, time and place of the emergency protective hearing. • All other notice provisions in the Court rules also apply.
Obligation to respond to eligibility notices • SCIT will respond to eligibility determination requests as soon as possible. When a child’s eligibility status is not immediately clear, but the child is at least a descendant of the SCIT, SCIT shall so notify DHS so they can prepare ICWA case planning from the earliest stage of the proceedings, as well as collaborate with ACFS on services and possible placement options.
Transfer to Tribal Court is Required in Some Cases Examples of when cases must be transferred to tribal court • Any proceeding involving an Indian child who is already a Tribal Court ward. • All proceedings involving a SCIT child residing or domiciled on the reservation, including a newborn who may never have been to the reservation.
Continuity of State Services • DHS recognizes the need to make all services available to any family available to any Indian family, regardless of what programs the Tribe may have to offer. • DHS cannot eliminate the provision of services after SCIT has transferred a child from State custody. • The State must give full faith and credit to all placement and other orders of the Tribal Court, for example termination of parental rights or foster care placements.
Transfer to Tribal Court • Any parent, Indian Custodian, or SCIT can petition to have any child custody proceeding involving a SCIT child not residing or domiciled on the reservation transferred to Tribal Court. • This transfer must be granted absent good cause. Good cause can never be the perceived inadequacy of the ACFS or Tribal Court, or reference to social conditions of the reservation. • The party who opposes tranfer bears the burden of proof. • If DHS opposes transfer, they must provide SCIT a copy of materials filed with the Court in support of any opposition to transfer.
DHS Manual, Compliance Contact and Sub- Contractors • This Agreement prevails if the DHS manual and this agreement are in conflict. • Each party agrees to update the agreement compliance contact information as needed. • This Agreement covers the work of DHS subcontractors providing services and placements for court wards. • DHS agrees to provide training on ICWA and this agreement to its staff and private agency sub- contractors.
Minimum Training for DHS • Tribal values, belief, religion, customs, ways of being, and family recognition system of the child’s tribe. • Behaviors and responses stemming from traditional ways of life through assimilated ways of life. • Socioeconomic context of the care and condition of the family home and children. • Importance of sharing with extended family. • Reality of negative historical experience of Indian people with non-Indian governmental systems • Different cultural requirements for social interaction, such as lack of eye contact or reticence in speaking.
Concepts Continued... Who should be trained, and how to pay for training? • Recognizing traditional disciplinary methods and clan support. • Parenting skills affected by historic isolation and abuse. • Judges, GALs, lawyers, probation officers, and law enforcement who work with Indian children should be offered trainings. • DHS will seek reimbursements for training under Title I-V E, and other federal programs.
Recruiting Indian Foster Care Families and the Master List • DHS and SCIT will develop a recruitment plan together, using media, social media, door to door, and mailing to Indian organizations. DHS and SCIT will work to train new recruits to license them. • The Master List is a list of SCIT foster homes available for accepting placement of SCIT children, descendants, siblings or minor parents of the above. • Shall include any preconditions to acceptance, or state no preconditions. • SCIT retains right to deny state placement in SCIT licensed homes.
Master List Continued... • DHS agrees to make a copy of the Master List available to all county level DHS offices as a guide for acceptable placements for SCIT connected children. • A borrowed bed agreement must be signed before any state ward can be placed in a SCIT home. • DHS will generate a protocol to identify and list which of its foster homes have a tribal affiliation, and what that affiliation is.
Tracking SCIT Children • DHS must create a report on all SCIT or SCIT descendant children in state custody, or placed out of Michigan or into Michigan through the interstate compact, and remedy any placements which do not conform to the placement preferences.
Other Federal Child Protection Laws and their Implications • Interstate Compact: DHS must follow ICWA placement preferences if the paperwork shows an Indian child. If the placement doesn’t comport with ICWA, DHS should deny the transfer absent a letter from the child’s Tribe approving the placment for good cause. • If the child is a SCIT child or descendant DHS must consider SCIT’s opinion before making a final decision.
Other laws continued... • The Adoption and Safe Families Act does not preempt ICWA. • The Interethnic Adoption Act does not affect the placement preferences in ICWA. • The Parties reserve the right to enter into a Title IV-E agreement in the future.
Points to Remember… • Nothing replaces good working relationships with our counterparts. • Ongoing education will be paramount, given the DHS hiring of over 500 new social workers and chronic turnover. • Tribe needs to create a Master List of foster care homes and get it to DHS. DHS needs to do a summary report on SCIT children in its custody. • Borrowed beds are approved, no state litigation withstanding. • The Master List may grow to include other Tribe’s licensed foster homes with their permission.
Saginaw Chippewa Indian TribeTribal Contacts: • Jodie Garner Office: 989.775.4901 firstname.lastname@example.org • Tracey Defeyter • email@example.com • Fax: 989.775.4912
DHSNative American Affairs (NAA) • Stacey M. Tadgerson, Director • TadgersonS@michigan.gov • Phone: 517.335.7782