8. Indian Child Welfare Act (ICWA)
When Does ICWA Apply?
⧠ In a “child custody proceeding” defined as an action effecting foster care placement, termination of parental rights, pre-adoptive placement or adoptive placement; and
⧠ Involving an “Indian child” defined as
• Unmarried, under the age of 18, and a member of a federally recognized Indian Tribe or eligible for membership in a Tribe, as determined by the Tribe; or
• Unmarried, under the age of 18, and is the biological child of a member of a federally recognized Indian Tribe, as determined by the Tribe
Each of the 500-plus federally-recognized tribes determines eligibility for membership or enrollment, not the court
If ICWA applies, please refer to NCJFCJ ICWA Checklists:
http://www.ncjfcj.org/resource-library/publications/tribal-work-and-icwa
Notice
⧠ The child’s parent, Indian Custodian, and Tribe have been notified by registered mail, return receipt requested
⧠ If Tribe cannot be determined, the court must ensure notice to the Secretary of the Interior and the Bureau of Indian Affairs by registered mail, return receipt requested
⧠ Finding on the record that timely notice was or was not provided as required
If not sure, but Indian heritage is indicated or identified, NOTIFY!
Placement Preferences
⧠ Placement according to ICWA Preferences, defined in descending order (extended family, tribal foster home, or tribal community) unless good cause shown for child to be moved
Special Evidentiary Rules
⧠ Threshold for Removal of the Child
• “Clear and convincing evidence” that custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child
• Must include testimony of a “qualified expert witness” defined by ICWA in descending preferential order, with the highest preference given to a member of the child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs in childrearing practices
• Finding of “Active Efforts” to prevent removal from the home
⧠ Threshold for Termination of Parental Rights
• Evidence beyond a reasonable doubt that custody of the child by the parent of Indian custodian is likely to result in serious emotional or physical damage to the child
• Supported by testimony of a “qualified expert witness”
• Finding that “Active Efforts” have been made to return the child to the home
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