9. 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 25 U.S.C. § 1903(1)

⧠ 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 25 U.S.C. § 1903(4)

•   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. 25 U.S.C. § 1903(8)

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 25 U.S.C. § 1912(a)

⧠ 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 25 U.S.C. § 1915(a)-(b)

⧠ 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 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.

•   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. 25 U.S.C. § 1912(e)

•   Finding of “Active Efforts” to prevent removal from the home. 25 U.S.C. § 1912(d)

⧠ 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. 25 U.S.C. § 1912(f)

•   Supported by testimony of a “qualified expert witness”. 25 U.S.C. § 1912(f)

•   Finding that “Active Efforts” have been made to return the child to the home. 25 U.S.C. § 1912(d)

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.