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The Indian Child Welfare Act: Law, Policy and Practice

The Indian Child Welfare Act: Law, Policy and Practice. Statewide, Interdisciplinary CINA Conference October 6, 2010. Indian Child Welfare Act. Introductions Panel Diane Payne, ICWA trainer Angie Greene, PD/Parent attorney Jan Rutherdale, AAG Dennis Swain, OCS Barb Malchick, GAL

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The Indian Child Welfare Act: Law, Policy and Practice

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  1. The Indian Child Welfare Act:Law, Policy and Practice Statewide, Interdisciplinary CINA Conference October 6, 2010

  2. Indian Child Welfare Act Introductions Panel Diane Payne, ICWA trainer Angie Greene, PD/Parent attorney Jan Rutherdale, AAG Dennis Swain, OCS Barb Malchick, GAL Peter Ashman, Judge

  3. Indian Child Welfare Act/Overview Historical Context What was the impact of Western influx? What led to the passage of ICWA? ICWA Legal Provisions When does ICWA apply? What does ICWA require? What does state law require? Role of Legal Parties Practice tips Discussion of how to ensure ICWA compliance

  4. Historical context Important because challenges we face today working with abusive or neglectful Native families are very often a result of the history History of oppression damages the capacity to accept help from CP agencies Important to understand basis of ICWA provisions Increase capacity for empathy (while protecting child)

  5. Historical Context Focus on Alaska Similar history in Lower 48 Except for eradication policies And reservations Many generalizations about Alaska Natives Important to remember that there are 11 cultural groups in Alaska Variations from village to village

  6. Historical Context Alaska’s Indigenous People From the Alaska Native Heritage Center website

  7. Historical Context Native values: Children viewed as gifts from Creator Harmony with each other and all living things Subsistence lifestyle Rich traditions Impacted by Western influx

  8. Historical Context Some Impacts of Western Influx: Disease/famine Religious conversion Boarding schools Many other interrelated/complex factors: Laws affecting land (Statehood, ANCSA) War on Poverty; dependency Federal policies (i.e. relocation)

  9. Historical Context Disease/Famine (19th century) Small pox, measles, influenza, cholera No natural immunities Traditional healers unable to control Results: Population went from 100,000 to 25,000 Population shift Loss of leadership, knowledge Demoralized people; widespread apathy

  10. Historical Context Religious conversion (early 1900s) Sheldon Jackson “tame the savages” Divided up by region/religion Missionaries/orphanages Goal: conversion to Christianity Results: Loss of culture, tradition, language

  11. Historical Context Boarding schools (1940s -1970s) Purpose: assimilation All children rounded up and moved Students not allowed to speak language, wear clothes, dance, etc. Students were emotionally, physically and sexually abused

  12. Historical Context Boarding Schools – cont’d Results: Loss of culture (language, customs, etc.) Loss of parent-child attachment Loss of parenting knowledge/behaviors New dysfunctional behaviors Severe physical punishment Sexual abuse

  13. Historical Context Federal laws/policies prior to ICWA • Indian Reorganization Act (1936) • Relocation Act (1956) • Indian Adoption project (1958-67) • Statehood Act (1959) • ANCSA (1971)

  14. Historical Context Some impacts of these federal laws/policies: • Loss of land • Loss of subsistence lifestyle • Population shift • Fragmentation of families • Tensions between traditional tribal associations and Western style organizations • Institutional racism

  15. Historical Context Legislative History of ICWA 1972-1976: Congressional Hearings Testimony from Alaska Natives and American Indians at hearings around the nation 1978 – ICWA Passed

  16. ICWA Provisions - Jurisdiction Jurisdiction (25 USC 1901): Congress has plenary power over Indian affairs (through constitution) Responsibility for protection/preservation of Tribes (through statutes and treaties) State courts must follow ICWA

  17. ICWA Provisions Federal law v. state law State law and ICWA both apply Alaska Supreme Court: Follow both if possible State law provisions still apply: Definitions of abuse and neglect (CINA) Timelines Court process

  18. ICWA Provisions - Findings • Congressional findings (25 USC 1901(3)): “There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children…”

  19. ICWA Provisions - Findings Congressional findings (25 USC 1901(4)): “An alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions”

  20. ICWA Provisions - Findings • Congressional findings (25 USC 1901(5)): “The States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”

  21. ICWA Provisions - Policy Declaration of Policy (25 USC 1902): “Protect the best interests of Indian children and promote the stability and security of tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”

  22. ICWA Provisions Interpreting ICWA: Language of ICWA Legislative History BIA Guidelines (not binding) Alaska Supreme Court decisions CINA Rules

  23. ICWA Provisions - Proceedings ICWA applies to “child custody proceedings” 25 USC 1903(1) Foster care placements Termination of parental rights Preadoptive placements Adoptive placements ICWA does not apply to: Divorce/custody actions between parents Juvenile delinquency cases

  24. ICWA Provisions – Indian Child ICWA applies if child is an “Indian child” Definition (25 USC 1903(4)): Member of federally recognized Tribe; or Child of member and eligible for membership Tribe’s determination of “membership” governs So, not all Native children are covered ICWA standards apply to non-Native parent

  25. Practical Issues: Indian Child • Determination of child’s membership or eligibility • Determination of parents’ membership

  26. ICWA Provisions - Tribe Indian Child’s Tribe Definition of Indian tribe includes Alaska Native villages (§1903(8)) If more than one tribe, tribe with which child has more significant contacts Tribe’s Rights Right to be notified of proceedings (§1912) Right to intervene as legal party (§1911(c)) Right to review records (§1912(c)) Right to request extra time to prepare for court hearings (§1912(a))

  27. ICWA Provisions - Transfer Transfer to Tribal Court Jurisdiction(§1911(b); CINA R. 23) Any party can request transfer Parent(s) or Tribe can veto Possible “good cause” exceptions not to transfer (from BIA Guidelines): Child over 12 objects Late in the proceedings Minimal contact between child and Tribe Hardship for witnesses and parties Best interests?

  28. CINA Rules: Tribe CINA R. 7(f): State (AG) must send notification to identified tribes & BIA CINA R. 8: Parent must provide name and location of tribes in which child may be member or eligible for membership CINA R. 11(f): GAL/CASA must advocate for early tribal identification CINA R. 23: transfer to tribal court

  29. Practical Issues: Tribes • Identification of Tribe • Notification to Tribe • Participation of Tribe(s)

  30. ICWA Provisions – Indian Custodian “Indian custodian” Definition (§1903(6)): Indian person who has Legal custody under tribal law or custom Or to whom temporary care, custody or control has been transferred by parent Right to intervene as legal party (§1911(c)) Right to attorney (§1912(b))

  31. Legal Issues: Indian Custodian Several Indian Custodian Legal Issues are Unsettled: What is the status of the Indian Custodian if the parents are seeking reunification and don’t want Indian Custodian involved anymore? Is TPR necessary to end the Indian Custodian’s rights? Is the Indian Custodian entitled to active efforts? Status of Indian Custodian if parents’ rights terminated

  32. Practical Issues: Indian Custodian • Identification of Indian Custodian • Notification of Indian Custodian • On-going status of Indian Custodian

  33. ICWA Provisions: Removal “Removal standards” Foster care placement (§1912(e)) Clear and convincing evidence, including expert testimony, that continued custody is likely to result in serious emotional or physical damage to the child Termination of rights (§1912(f)) Evidence beyond a reasonable doubt….

  34. State Law: Removal • ICWA Cases: • Predisposition (CINA R. 10(c)(3),(e)(2)(B); 15(f)(1)) • Prevent imminent physical harm; or • Clear and convincing evidence of likely physical or emotional harm if left with parent (w/ expert testimony) • Disposition and after (CINA R. 17(d)(2)) : • Clear and convincing evidence of likely physical or emotional harm if left with parent (w/ expert testimony) • Termination (CINA R.18(c)(4)): • Evidence beyond a reasonable doubt of likely physical or emotional harm (w/ expert testimony) • All cases: Contrary to the welfare of the child to remain in the home

  35. ICWA Provisions: Expert Witness “Qualified expert witnesses” Not defined in ICWA BIA Guidelines Alaska Supreme Court cases Expertise beyond the normal social worker qualifications If no cultural practices at issue, need not be expert in Native culture Expert testimony is one piece of evidence supporting conclusion

  36. Practical Issues: Expert Witness • Finding the right expert • Situations relating to “cultural practices” • Expert disclosure (CINA Rule 8(d)) • Stipulations to expertise

  37. ICWA Provisions: Placement Preferences* Foster Care (§1915(b)) Extended family Foster home licensed/approved/ specified by Tribe Indian home licensed by state Institution approved by Tribe Adoption (§1915(a)) Extended family Member of child’s Tribe Other Indian family) *To be followed “in the absence of good cause to the contrary”

  38. ICWA Provisions: Placement Foster placement criteria (§1915(b)): Least restrictive setting which most approximates a family Where special needs may be met Reasonable proximity to home Tribe may establish different order of preference (foster and adoptive) by resolution (§1915(c)) The “prevailing social and cultural standards” of the family are to be applied in meeting the preference requirements (§1915(d))

  39. ICWA Provisions: Placement “Extended family member” §1903(2) Defined by Tribe’s law or custom Default definition: grandparent, aunt or uncle, adult brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent Can be non-Native

  40. ICWA Provisions: Placement Exception: “good cause to the contrary” (§1915) BIA Guidelines (F.3): Request by parents or child Extraordinary needs of child No suitable family available Alaska Supreme Court: any factor relating to the best interests of the child Person seeking to deviate from placement preference has to prove “good cause”

  41. State Statutes: Placement • Foster care (AS 47.14.100(e)) • Adult family member • Family friend • Licensed foster home • Suitable institution • Adoption (AS 25.23.127) • Adult family member w/ 1 year of physical custody

  42. Court Rules: Placement Preferences CINA R. 10.1 requires Court to inquire about efforts to follow placement preferences at every court hearing CINA R. 8(c) requires parents to give names & contact information for relatives CINA R. 11 requires GAL/CASA to identify relatives/placement options CINA R. 8(c) requires intervening Tribe to give names & contact information for extended family and other potential placements

  43. Practical Issues: Placement • Tribe’s definition of extended family • Identification of potential placements • Strategies if child in non-Native placement • Keeping children close to parents v. placement with relatives in village

  44. ICWA Provisions: Active Efforts Active efforts (§1912(d)) “Active efforts” must be made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family Alaska Supreme Court: not passive; can’t expect plan to effectuate itself Services should be culturally appropriate Less efforts required for uncooperative parents Special problem: incarcerated parents

  45. State Law: Reasonable Efforts • “Family Support Services” must be provided to prevent out-of-home placement or to enable safe return • Court may dispense with reasonable efforts requirement in aggravated circumstances or if insufficient progress by permanency hearing

  46. Court Rules: Active Efforts • CINA Rule 10.1(b) requires the court to inquire into and determine whether active efforts are being made at every hearing • CINA Rule 11(f) requires GAL/CASA to request court orders for services • CINA Rule 11(f) requires GAL/CASA to monitor provision and utilization of services • CINA Rule 11(f) requires GAL/CASA to take action when services are not being made available; when family fails to take advantage of services; when services are not achieving purpose

  47. Practical Issues: Active Efforts • Identifying available resources • Identifying appropriate resources • Incarcerated parents • Thinking outside the box!

  48. ICWA Provisions: Voluntary Actions Voluntary Actions (§1913(a)): Consent to foster care placement, relinquishment, consent to adopt must be: In writing On the record Accompanied by a judicial certificate that parent understands

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