A. When Does ICWA Apply?
ICWA applies to any “child custody proceeding” involving an “Indian child,” if the court "knows or has reason to know that an Indian child is involved.” 25 U.S.C. § 1912(a).
A suit seeking foster care placement, termination of parental rights, pre-adoptive or an adoptive placement is subject to ICWA. ICWA does not apply to most juvenile delinquency actions; nor does it apply to custody actions in divorce or separation proceedings (unless custody may be awarded to a non-parent).
An Indian child is an unmarried person under age 18 who is either a member of an Indian tribe or eligible for membership and the biological child of a member. 25 U.S.C. § 1903(4). There are more than 500 federally recognized tribes, but tribes from Mexico and Canada, as well as some U.S. tribes, are excluded.
The new Guidelines clarify that agencies and state courts must ask, in every child custody proceeding, whether ICWA applies. The new Guidelines state:
Agencies and State courts, in every child custody proceeding, must ask whether the child is or could be an Indian child and conduct an investigation into whether the child is an Indian child. Even in those cases in which the child is not removed from the home, such as when an agency opens an investigation or the court orders the family to engage in services to keep the child in the home as part of a diversion, differential, alternative response or other program, agencies and courts should follow the verification and notice provisions of these guidelines.
The Guidelines also provide that state courts must ask, as a threshold question at the start of any State court child custody proceeding, whether there is reason to believe the child who is the subject of the proceeding is an Indian child by asking each party to the case, including the guardian ad litem and the agency representative, to certify on the record whether they have discovered or know of any information that suggests or indicates the child is an Indian child. Amendments to the Texas Family Code in the 84th Legislative session also mandate that the court ask all parties whether the child or the family has Native American heritage and to identify any tribe at the Adversary Hearing, Status Hearing, and Permanency Hearing Before Final Order. Tex. Fam. Code § 262.201(a-4), Tex. Fam. Code § 263.202(f-1), and Tex. Fam. Code § 263.306.
Special Issue: When ICWA notice is sent, DFPS could also send a letter asking the tribe to confirm or deny the child’s membership or eligibility for membership status. In every case, DFPS or courts should confirm that all appropriate persons have been asked about possible tribal family history. If all family members deny any tribal family history, this should be documented. If there is any information to suggest a tribal association, by giving the tribe notice and following up as necessary to verify a child's status you can eliminate a potentially devastating delay that can undermine permanency.