H. Conservatorship or Termination of Parental Rights of Indian Child

If ICWA applies, the burden of proof and standards for an order placing a child in foster care (in effect a removal) or a final order seeking permanent managing conservatorship or termination of parental rights are different than under the Texas Family Code. In summary, if ICWA applies the requirements are:

Including qualified expert testimony that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and active efforts to provide remedial and rehabilitative services to prevent the breakup of the Indian family were made by proved unsuccessful.

Including qualified expert testimony that continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and active efforts to provide remedial and rehabilitative services to prevent the breakup of the Indian family were made but proved unsuccessful. 25 U.S.C. § 1912(d) and 25 U.S.C. § 1912(f).

1. Serious Emotional or Physical Damage

Evidence of poverty, crowded or inadequate housing, alcohol abuse, or nonconforming social behavior alone is not sufficient to show serious emotional or physical damage. There must be evidence

of particular conditions in the home that are likely to result in serious emotional or physical damage to a specific child. The Guidelines add: “Clear and convincing evidence must show a causal relationship between the existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding.”[88]

2. Active Efforts

There must be evidence of “active efforts” to alleviate the cause for removal, taking into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. 25 U.S.C. § 1912(d). Active efforts are intended primarily to maintain and reunite an Indian child with his or her family or tribal community and constitute more than reasonable efforts. “Active efforts” is not defined by ICWA, but the new Guidelines offer a non-exhaustive list of examples:

•   Engaging the Indian child, the Indian child’s parents, the Indian child’s extended family members, and the Indian child’s custodian(s);

•   Taking steps necessary to keep siblings together;

•   Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;

•   Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate;

•   Conducting or causing to be conducted a diligent search for the Indian child’s extended family members for assistance and possible placement;

•   Taking into account the Indian child’s tribe’s prevailing social and cultural conditions and way of life, and requesting the assistance of representatives designated by the Indian child’s tribe with substantial knowledge of the prevailing social and cultural standards;

•   Offering and employing all available and culturally appropriate family preservation strategies;

•   Completing a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal;

•   Notifying and consulting with extended family members of the Indian child to provide family structure and support for the Indian child, to assure cultural connections, and to serve as placement resources for the Indian child;

•   Making arrangements to provide family interaction in the most natural setting that can ensure the Indian child’s safety during any necessary removal;

•   Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or extended family in utilizing and accessing those resources;

•   Monitoring progress and participation in services;

•   Providing consideration of alternative ways of addressing the needs of the Indian child’s parents and extended family, if services do not exist or if existing services are not available;

•   Supporting regular visits and trial home visits of the Indian child during any period of removal, consistent with the need to ensure the safety of the child; and

•   Providing post-reunification services and monitoring.[89]

The Guidelines further state that active efforts begin from the moment the possibility arises that the Indian child may be removed, and during the time Indian status is being verified.[90]

3. Parent Without Prior Custody

If a parent in a case subject to ICWA has never had custody of a child, an action for foster care or termination of parental rights could proceed without meeting the higher burden of proof or standards in 25 U.S.C. § 1912(d) and (f). Baby Girl, 133 S.Ct. 2552. However, the Baby Girl decision does not impact other substantive rights under ICWA, including the right to notice and appointment of counsel for indigent parents.