When Does ICWA Apply?

⧠ In a child custody proceeding defined as any action, other than an emergency proceeding, that may result in a foster care placement, termination of parental rights, pre-adoptive placement or adoptive placement; and 25 U.S.C. 1903(1);25 C.F.R. 23.2.

⧠ Involving an Indian child defined as

Unmarried, under the age of 18, and a member of an Indian Tribe; or

Unmarried, under the age of 18, eligible for membership in an Indian Tribe and is the biological child of a member of a federally-recognized Indian Tribe. 25 U.S.C. 1903(4);25 C.F.R. 23.2.

Each Tribe determines eligibility for membership or enrollment, not the court.

If ICWA applies, please also refer to NCJFCJ ICWA Checklists:

http://www.ncjfcj.org/sites/default/files/NCJFCJ_ICWA_Judicial_Benchbook_Final_Web.pdf

Notice 25 U.S.C. 1912(a); 25 C.F.R. 23.11

⧠ The childs parent, Indian custodian, and Tribe have been notified by registered mail or certified mail, return receipt requested, with copies to the appropriate BIA Regional Directors. Upon request of a party, the BIA will make a reasonable attempt to identify and locate the Tribe, parents or Indian custodian.

⧠ Finding on the record that timely notice was or was not provided as required.

If not sure, but there is reason to believe the child might be an Indian child, NOTIFY!

Foster Care or Pre-adoptive Placement Preferences 25 U.S.C. 1915(a)-(b); 25 C.F.R. 23.131

⧠ Child must be placed in the least restrictive setting that most approximates a family, taking into consideration sibling attachment, allows the Indian childs special needs (if any) to be met; and is in reasonable proximity to the Indian childs home, extended family, or siblings.

⧠ Where the Tribe has not established a different order, preference must be given, in descending order to (1) extended family; (2) a foster home approved by the Tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) an institution for children approved by an Indian Tribe or operated by an Indian organization which has a program suitable to meet the childs needs.

⧠ The court must, where appropriate, also consider the preference of the Indian child or the Indian childs parent.

⧠ If any party asserts that there is good cause not to follow the placement preferences, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties and the court. The party seeking departure from the placement preferences should bear the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preferences. A courts determination of good cause to depart from the placement preferences must be made on the record or in writing and should be based on one or more of the following considerations:

(1) The request of one or both of the Indian childs parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference;

(2) The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;

(3) The presence of a sibling attachment that can be maintained only through a particular placement; or

(4) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live.

Special Evidentiary Rules

⧠ Threshold for Removal of the Child 25 U.S.C. 1912(e)

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. The evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage. 25 C.F.R. 23.121.

Must include testimony of a qualified expert witness who is qualified to testify about whether the childs continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian childs tribe. 25 U.S.C. 1912(e); 25 C.F.R. 23.122.

Finding of Active Efforts to prevent the breakup of the Indian family and that those efforts have been unsuccessful. 25 U.S.C. 1912(d); 25 C.F.R. 23.120.

⧠ 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 and a causal relationship. 25 U.S.C. 1912(f); 25 C.F.R. 23.121.

Supported by testimony of a qualified expert witness. 25 U.S.C. 1912(f);25 C.F.R. 23.122.

Finding that Active Efforts have been made to prevent the breakup of the Indian family and that those efforts have been unsuccessful. 25 U.S.C. 1912(d);25 C.F.R. 23.120.

Best practices for Active Efforts include: (i) early contact and active engagement with the childs 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. Remember that active efforts must be documented in detail in the record.