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

Best practices for Active Efforts include: (i) early contact and active engagement with the child’s tribe; (ii) higher level of efforts using methods and providing services that are culturally appropriate; and (iii) commitment to the spirit of ICWA in the context of the historical trauma