H. Rights of the Parents, Indian Custodian, and Tribe

The parents or an Indian custodian of an “Indian child” and the child's Tribe have specific rights under ICWA.

It is recommended that courts with the capacity permit family members and Tribes to participate by telephone, video conference, and other means. 25 C.F.R. § 23.133.[75] If there is reason to know a parent or Indian custodian has limited English proficiency, the court must provide interpreter services. 25 C.F.R. § 23.111(f).[76]

1. Mandatory Transfer to Tribal Court

A parent, an Indian custodian, or the child's Tribe may petition the state court to transfer a suit involving an “Indian child” to the Tribal court. A transfer request may be made orally on the record or in writing, at any stage of the proceedings. 25 C.F.R. § 23.115.[77] On receipt of a transfer request, the state court should immediately ensure the Tribal court is notified. Notice may include a request for timely response regarding whether the Tribe will decline the transfer. 25 C.F.R. § 23.116.

Transfer to the Tribal court is mandatory, unless the court makes a finding of good cause not to transfer, the Tribe declines transfer, or either parent objects. 25 U.S.C. § 1911(b); 25 C.F.R. § 23.117.[78] The court cannot consider the following factors in assessing good cause:

•   The advanced stage of the proceedings, if notice to the Tribe did not occur until an advanced stage;

•   Whether there was no petition to transfer in a prior proceeding involving the child;

•   Whether transfer would affect the child's placement;

•   The child's cultural connections with the Tribe or its reservation; or

•   The socio-economic conditions of the Tribe, BIA social services, or the judicial systems. 25 C.F.R. § 23.118(c).

The basis for any decision denying transfer must be a written order or in a statement on the record. 25 C.F.R. § 23.118(d). If transfer is ordered, the state court must promptly forward the court records and work with the Tribal court to accomplish a smooth transfer with minimal disruption in services to the family. 25 C.F.R. § 23.119.

2. Appointment of Counsel

Appointment of counsel for indigent parents or Indian custodians is mandatory under ICWA, whether the action is for removal and placement in foster care or for termination of parental rights. 25 U.S.C. § 1912(b). If a parent or Indian custodian appears without an attorney, the court must give an advisement of specific rights provided under ICWA. Appointment of counsel for a child is discretionary, but state law requires appointment of an attorney ad litem for a child if DFPS seeks conservatorship or termination. Tex. Fam. Code § 107.012. Note that the Texas Family Code provisions concerning admonishment of a right to counsel and appointment of an attorney to an indigent parent are not supplanted by 25 U.S.C. § 1912(b). Courts should abide by both sets of statutes if ICWA applies.

3. Right to Review Records

In a proceeding for emergency removal, foster care placement, or termination of parental rights, each party (including the child's Tribe and custodian) has the right to review all reports and records filed with the court. 25 U.S.C. § 1912(c); 25 C.F.R. § 23.134.[79] Even before a Tribe intervenes or in the event a Tribe elects not to intervene, it is good practice to share these records with the child's Tribe, if requested. Unless prohibited by confidentiality rules, sharing information promotes collaboration with the Tribe, in terms of locating resources, experts, or vital family history information.

4. Right to Intervene

The Tribe and the Indian custodian have the right to intervene in the state court action at any time in the proceedings. 25 U.S.C. § 1911(c). Intervention may be accomplished informally, by oral statement, or formally. Most important, if an “Indian child” is involved, ICWA applies whether or not the child's Tribe intervenes.

5. Full Faith and Credit

ICWA requires that all courts give full faith and credit to the “public acts, records, and judicial proceedings” of any federally recognized Indian Tribe regarding “Indian child” custody proceedings. 25 U.S.C. § 1911(d).