B. 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).

1. Child Custody Proceedings

A suit seeking foster care placement, termination of parental rights, pre-adoptive, or 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).

The Regulations clarify that ICWA applies to a voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child.…" 25 C.F.R. § 23.103(a)(1)(ii) and (4). This does not include voluntary placement made without threat of removal by a state agency, if a parent or Indian custodian may regain custody on demand. If a parent or Indian custodian consents to voluntary foster care placement, that consent can be withdrawn at any time by filing a written document or testifying in court. 25 C.F.R. § 23.127.

2. “Indian Child”

An “Indian child” is an unmarried person under age 18 who is either a member of an Indian Tribe or eligible for membership and is the biological child of a member. 25 U.S.C. § 1903(4). An Indian Tribe includes any of the more than 500 federally recognized tribes in the U.S. If DFPS becomes involved with an “Indian child” associated with any of these Tribes, ICWA will likely apply.

There are also three federally recognized Tribes with reservations in Texas:

•   Ysleta del Sur Pueblo, also known as the Tigua, in El Paso;

•   Kickapoo Tribe of Texas, in Eagle Pass; and

•   Alabama Coushatta Tribe of Texas near Livingston.

Native children who reside on one of these reservations have specific legal protections (see Tribal and State Jurisdiction section below) and, in some cases, DFPS and the Tribe have agreed to a written protocol for handling these cases in the form of a Memorandum of Understanding or an Intergovernmental Agreement.

3. Reason to Know

A court has reason to know a child is an “Indian child:”

•   If any party, Tribe, or agency informs the agency or court that the child is an “Indian child;”

•   Any participant, officer of the court, or agency involved in the proceedings informs the court it has discovered such information;

•   The child gives the court reason to know he or she is an “Indian child;”

•   The domicile or residence of the child, parent, or Indian custodian is on a reservation or in an Alaska Native village;

•   The court is informed the child is or has been a ward of a Tribal court; or

•   The court is informed either parent or the child has a Tribal membership card. 25 C.F.R. § 23.107(c).

4. How Are Possible “Indian Children” Identified?

A common reason for failure to comply with ICWA is the failure to identify children subject to ICWA. Two important requirements are designed to remedy this problem:

At the Adversary, Status, and each Permanency Hearing, Texas courts are required to ask the parties whether the child or child's family has Native American heritage and identify any Native American Tribe with which the child may be associated. Tex. Fam. Code § 262.201(f), Tex. Fam. Code § 263.202(f-1), and Tex. Fam. Code § 263.306 (a-1)(3).

The Regulations require that the state court judge ask each participant at the commencement of any of the above proceedings whether the person knows or has reason to know the child is an “Indian child” and to instruct the parties to inform the court of any such information that arises later. 25 C.F.R. § 23.107(a).

By far the most significant impact of failing to identify an ICWA case is that a final order can be invalidated if key ICWA provisions are violated. The remedy for violation of key ICWA provisions is a petition to invalidate. 25 U.S.C. § 1914. Similarly, if there is not sufficient information in the record to assess whether ICWA applies, an appeal can be abated. In either scenario, permanency is delayed.