The INDIAN CHILD WELFARE ACT Grudging Compliance or Constructive Implementation?

1. The INDIAN CHILD WELFARE ACTGrudging Compliance or Constructive Implementation? Child Abuse and Neglect: Essential Information for Practicing & Presiding in Child Welfare Cases Albuquerque, New Mexico April 23-24, 2009 JUDGE JOHN J. ROMERO, JR. albdjjr@nmcourts.gov

2. Children & Families

3. OVERVIEW • History and Purpose of ICWA • When Does ICWA Apply? • Relationship between ASFA & ICWA • Effectiveness?

4. History and Purpose of ICWA • From the late 1800’s to the mid-1970s, Indian families were subjected to various forces which negatively impacted the family unit: • Allotment Act • Assimilation • Termination

6. History and Purpose of ICWA By the 1960’s • recognition that Indian families were being broken apart at an alarming rate • state social service departments removing children from their homes and communities • Missionaries and social workers placing Indian children in non-Indian foster and adoptive homes

7. History and Purpose of ICWA • Prior to ICWA • Indian children were removed from their homes and placed in foster and adoptive placements and institutional settings at rates far greater than non-Indian children • Adoption rates for Indian Children were 8 times higher than for non-Indians, and • 90% of adoptions were in non-Indian homes

9. History and Purpose of ICWA • Studies in 1969 and 1974 showed that • 25% to 35% of all Indian children had been • separated from their families and • placed in adoptive families, foster care, or institutions

10. History and Purpose of ICWA • Studies – cont’d • in one state • 1 in 8 Indian children under the age of 18 was in an adoptive home • during 1971-1972 nearly 1 in every 4infants under 1 year of age was placed for adoption.

11. History and Purpose of ICWA • Studies – cont’d • In another state, the risk of being separated from their children was 1,600% greater for Indians • In a state where Indian children made up only 7% of the population, 40% of all adoptions were of Indian children

13. ICWA - 1978 CONGRESS ENACTED ICWA TO PREVENT THE BREAK-UP OF INDIAN FAMILIES • To protect the best interests of Indian children • To promote the stability and security of Indian tribes and families

14. ICWA - 1978 • WHY? Congress found that: • An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children…by non-tribal public and private agencies…. And • States…have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

15. ICWA - 1978 ICWA’s three objectives: 1. Keep Indian children with their families. 2. Defer to tribal judgments and decisions about custody of Indian children. 3. If Indian children must be removed from their families, they should be placed with members of their extended family or members of their Tribe.

17. ICWA applies when an Indian child is involved in a child custody proceeding.

18. INDIAN CHILD “Indian child” means • an unmarried personunder 18 who is either: • a member of an Indian tribe; or • eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

20. CHILD CUSTODY PROCEEDING “Child custody proceeding” means: • Foster care placement (any action to remove an Indian child from its parent or Indian custodian where the parent or Indian custodian cannot have the child returned upon demand)‏ • Termination of Parental Rights • Preadoptive placement (post-TPR) • Adoptive placement

21. Exclusive Jurisdiction25 U.S.C. 1911 Tribal Courts: • have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled on an Indian reservation. • retain exclusive jurisdiction over any child who is a ward of the tribal court regardless of the child’s residence or domicile.

22. Transfer of Proceedings25 U.S.C. 1911 A state courtshall transfer to tribal court a foster care placement or TPR proceeding involving an Indian child not domiciled or residing within the reservation of the child’s tribe when: • there is no good cause to the contrary, • neither parent objects, and • the tribal court does not decline jurisdiction.

23. Notice Requirements25 U.S.C. 1912 In any involuntary proceeding in a State court, the party seeking foster care of or TPR to an Indian child shall notify: • the parent or Indian custodian AND • the Indian child’s tribe about • the pending proceedings AND • the right to intervene.

24. Right to Intervene25 U.S.C. 1911 In any state court proceeding for the foster care placement or TPR of an Indian Child, the child’s Indian custodian and tribe have: • the right to intervene • at any point in the proceeding.

25. Active Efforts 25 U.S.C. 1912(d) Any party seeking foster care placement or TPR of an Indian child shall satisfy the court that: • active efforts have been made to: • provide remedial services & rehabilitative programs designed to prevent the break up of the Indian family; and • these active efforts have been unsuccessful.

26. Active Efforts 25 U.S.C. 1912(d) Active efforts shall: • take into consideration the prevailing social and cultural conditions and way of life of the Indian child’s tribe, and • involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers (such as medicine men).

28. Active Efforts and ASFA ASFA does NOT alter ICWA’s active efforts requirement. • Even where ASFA may relieve the State from proving reasonable efforts (e.g., when aggravated circumstances exist), active efforts must be proved. • ACTIVE EFFORTS ARE REQUIRED IN EVERY ICWA CASE.

29. Foster Care Placement: Clear & Convincing Evidence25 U.S.C. 1912 No foster care placement in the absence of: • clear and convincing evidence, • including testimony of qualified expert witnesses, • that the continued custody is likely to result in serious emotional or physical damage to the child.

30. Termination of Parental Rights: Beyond a Reasonable Doubt25 U.S.C. 1912 No TPR in the absence of evidence: • beyond a reasonable doubt, • including testimony of qualified expert witnesses, • that continued custody is likely to result in serious emotional or physical damage to the child.

31. Qualified Expert Witness BIA guidelines identify three types of experts: • A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family or organization in childrearing practices. • A lay expert witness having substantial experience in the delivery of child and family services to Indians and an extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child’s tribe. • A professional having substantial education and experience in the area of his or her specialty.

32. Priorities for Placement25 U.S.C. 1915 Absent good cause to the contrary, a State court shall follow these preferences for the foster careplacement of an Indian child: 1st Extended Family 2nd Foster home licensed by Tribe 3rd Indian foster home licensed by State 4th Institution approved by Tribe 5th Other foster homes licensed by State

33. Voluntary Consent25 U.S.C. 1913 When a parent or custodian voluntarily consents to foster care placement or TPR, it must be in writing and clear that the parent understands what they are agreeing to.

34. Withdrawal of Consent25 U.S.C. 1913 The parent or Indian custodian may withdraw consent to: • the Indian child’s placement in foster care at any time and the child must be returned. • voluntary TPR at any time prior to entry of a final decree of voluntary termination or adoption. • voluntary adoption within two years of entry of final decree of adoption when the court finds fraud or duress

35. Emergency Removal25 U.S.C. 1922 • ICWA does not prevent emergency removal of an Indian child who is temporarily off the reservation. • The Indian child must be returned home as soon as the threat of imminent harm has passed. • Custody proceedings shall be initiated quickly when appropriate.

36. ISSUES?

37. ISSUES? • Lack of (timely) notice to Tribes • Lack of identification of Indian children • Lack of Indian foster homes • Lack of active efforts

38. ISSUES? • Existing Indian Family doctrine • Some courts have made exceptions to the application of ICWA by finding that the despite an Indian child’s membership in a tribe, the Act was not intended to apply when a family has no apparent cultural ties to a Tribe. • Trend is moving towards rejection of this unjustified doctrine. • Doctrine was essentially rejected in Holyfield v. Mississippi, 490 U.S. 30 (1989)

39. ISSUES? • Safe haven for dropping off newborns • Conflicts with 10-day requirement under 25 USC 1912(a) • No determination of membership

40. Ideas for improvement • Mandatory training for social workers • Better screening tools to ID Indian children at intake • More tribal – state interaction • More education for judges, prosecutors, attorneys and social workers

41. ANSWERS? • What are the issues in your jurisdiction? • What are your success stories? • What could be done to improve compliance with the ICWA? • What amendments, if any, are needed to ICWA? • What have been your experiences with the Act in different jurisdictions?