C. Required Notice
Giving notice under ICWA requires close attention to specific requirements governing the type of notice, the proper persons and entities who must be served, the type of service required and how compliance is demonstrated by filing proof of service with the court. In re R.R., 294 S.W. 3d 213 (Tex. App. — Fort Worth, March 19, 2009, no pet.).
The Notice of Pending Custody Proceeding Involving Indian Child must be sent to:
- Every known parent(s);
- Indian custodian;
- Any identified tribe;
- The Secretary of the Interior; and
- BIA, Area Director. 25 U.S.C. § 1912(a) and 25 C.F.R. § 23.11(a).
In addition, if the identity or location of a parent or Indian custodian is not known or the identity of the tribe cannot be determined, the Notice to Bureau of Indian Affairs: Parent, Custodian or Tribe of Child Cannot be Located or Determined must be sent to:
- The Secretary of Interior; and
- BIA, Area Director. 25 U.S.C. § 1912(a) and 25 C.F.R. § 23.11(b).
The new Guidelines provide that to contact a tribe to provide notice or obtain information or verification under these Guidelines, you should direct the notice or inquiry as follows:
- Many tribes designate an agent for receipt of ICWA notices. The BIA publishes a list of tribes’ designated tribal agents for service of ICWA notice in the Federal Register each year and makes the list available on its website at www.bia.gov.
- For tribes without a designated tribal agent for service of ICWA notice, contact the tribe(s) to be directed to the appropriate individual or office.
- If you do not have accurate contact information for the tribe(s) or the tribe(s) contacted fail(s) to respond to written inquiries, you may seek assistance in contacting the Indian tribe(s) from the BIA’s Regional Office and/or Central Office in Washington D.C.[72]
A parent includes the biological or adoptive parent of an Indian child and a non-Indian parent. 25 U.S.C. § 1903(9). An alleged father, however, must acknowledge paternity or be legally determined to be the father before being recognized as a parent for purposes of ICWA.[73]
“Indian custodian” is broadly defined as “any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.” 25 U.S.C. § 1903(6).
If the child has ties to more than one tribe, notice should be given to each tribe identified.
A child's family history is often key to a tribe's ability to confirm or deny a child's status as an Indian child. The new Guidelines provide that a court may require the agency to provide genograms or ancestry charts for a child’s parents, including specific family history information as part of the certification process, as well as the addresses for the child and parents.[74]
Notice must be sent by registered mail and must include a request for a return receipt.[75]
No “foster care placement or termination of parental rights” hearing can be held until at least ten (10) days after notice is received (subject to an additional 20 days if the parent/custodian/tribe requests additional time for preparation). 25 U.S.C. § 1912(a). Pursuant to the Guidelines, notice of each subsequent hearing must be given, at least as to those proceedings involving removal or foster care placement, termination of parental rights or adoption.[76] The updated Guidelines recommend that temporary emergency custody be 30 days or less.[77]