Sheri Freemont Sheldon Spotted Elk · Indian Child Welfare Act, 25 USC 1901 et. seq Sheri Freemont...
Transcript of Sheri Freemont Sheldon Spotted Elk · Indian Child Welfare Act, 25 USC 1901 et. seq Sheri Freemont...
Indian Child Welfare Act, 25 USC 1901 et. seq
Sheri FreemontSheldon Spotted ElkDenver ICWA CourtJanuary 31, 2020
Who is in the room?
History of Indian Child Welfare• Tribal people in communities,
clans, societies, etc. • Impact of colonization,
genocide, starvation, and forced reservations systems.
• Assimilation – Boarding Schools. Adoption Placement. Relocation.
• Compounded trauma (Separation + trauma of loss of nationhood, culture)
Boarding Schools
Indian Relocation Act of 1956
NICWA, Twitter, 2014
Why the Gold Standard of child welfare?
Community
Relatives
Families
Colorado DHS, ICWA Policy, https://www.colorado.gov/pacific/cdhs/policies-3
How do I know what to do?• Indian Child Welfare Act of 1978• *NEW* ICWA Regulations• Colorado ICWA Laws • Colorado Court Decisions • Tribal-State Agreements • CDHS Policies and Procedures• *NEW* ICWA Guidelines
ICWA Responsibilities
• Identification of “Indian Child(ren)”• Proper exercise of jurisdiction• Proper notice of proceedings• “Active efforts” to preserve the family• Use of QEW & proper standard of review• Placement preferences• Transfer to Tribal Court(s)
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What happens if ICWA isn’t followed?
“The problem wasn’t ICWA, it was that ICWA wasn’t followed”
When ICWA is not followed, proceedings can be invalidated.
§ 1914; § 23.137
When does ICWA apply?
In State Court
Not in tribal court
Indian Child
Under 18 at start of case;
Unmarried; and
Member of tribe; orEligible for
membership and one bio parent is a
member
Child Custody Proceeding
Emergency Proceeding
Involuntary Proceeding
Status Offense Proceeding
Voluntary Proceedings
§1903 (1), (3); § 23.103;
2. Verifying an Indian ChildIf there is “reason to believe” or “reason to
know” must:(1) Use due diligence to work with all of the Tribes of
which the child may be a member to verify that the child is an “Indian child”.
– What about multiple tribes? (2) Treat the child as an Indian child, until it is
determined that the child is not an ‘‘Indian child”. – Only a tribe makes the determination of a child’s
enrollment/membership status. – CPS does not make the determination.
§1903; § 23.108-109
Case Practice• Ask every child, parent, and relative about Native
heritage, residence, and previous court involvement. – (Don’t forget about absent parents!)– Genogram
• Document all evidence of Native heritage and present to the court
• Trauma informed practice– Soft skills of soliciting information
When does ICWA apply?
In State Court
Not in tribal court
Indian Child
Under 18;
Unmarried; and
Member of tribe; orEligible for
membership and one bio parent is a
member
Child Custody Proceeding
Emergency Proceeding
Involuntary Proceeding
Status Offense Proceeding
Voluntary Proceedings
§1903 (1), (3); § 23.103
What to Know-ticeWhen
• Before every child custody proceeding when there is reason to know or reason to believe child is a member of a tribe
• Every involuntary child-custody proceeding thereafter • There are
specific timelines
Who
•Parent(s)•Indian Custodian(s)•Every Tribe’s via direct contact or Designated Service Agent•BIA can assist with contact info, if tribe unknown send to BIA•CC BIA on Notices
How
• Registered or Certified mail Return Receipt
• Other forms of notice are fine if in addition
• Clear and Understandable language
§1912; § 23.105; § 23.111
TransferRequest• Either parent, the Indian custodian, or the Tribe may request, at any
time, transfer• Right to request a is available at any stage in each foster-care or
termination-of-parental-rights proceeding• Can be done orally or in writing
Notify Tribe• Must notified the Tribe in writing of the transfer petition. • May request a timely response regarding declination of the transfer.
Don’t Transfer if• Tribal Declination• Parent Objection• Good Cause
Otherwise Transfer
§ 1911; § 23.117-19
Casework
• Transfer the entire case file, including all case notes to tribal authorities upon receipt of a Court order granting the transfer– Following transfer, the case should be closed.
Casework
• Contact tribal social service director (in addition to notice) ASAP– Brief him/her on the case – Request placement and QEW assistance
• Tribe's representative shall be allowed to fully participate in staff discussions regarding placement and case plan. – All proposed plans developed without the representative
present shall be shared with the tribe's representative prior to implementation (unless emergency)
Emergency Proceedings• Requires imminent physical damage or
harm to the child– VERY specific petition requirements– Should not last more than 30 days
• Emergency removal must terminate when placement is no longer necessary– Transfer; ICWA proceeding; Reunification
§1922; §23.113-14
Casework • Document imminent physical harm; native heritage;
domicile; wardship• Contact tribe(s)• Use a Family Group Decision-Making process for
placement, if necessary.• Terminate the emergency placement as soon as it is
no longer necessary – If it is not safe to return the child, transfer the child to the
jurisdiction of the tribe
SCENARIO #1 Emergency Proceedings
Involuntary Foster Care Proceedings: Adjudication
Denver County must do/show three things:
Clear & Convincing Evidence
• That continued custody will result in serious emotional or physical damage– Note on AC v. BG; Matter of J.S.
• Evidence must show a causal relationship
Issue
Emotional/Physical Damage
§1912; §23.121
Active Efforts
§1912; §23.120
Actions intended primarily to maintain and reunite an Indian child with her family or tribal community • Constitute more than reasonable efforts
Must be provided to prevent removal and to promote reunification• From the time a CPS specialist becomes involved
Must be proven by clear and convincing evidence
NICWA, Pathways, 2016 http://www.nicwa.org/pathways/ICWA-Active-Efforts-Best-Practice.asp
Casework • Include extended family, tribe, Indian social
service agencies, and Indian caregiver’s input (e.g., family team meetings)– Repeatedly review active efforts, progress, and
barriers together• Document why services were chosen related to
needs, cultural appropriateness of services, and tribal role in decision in affidavit
• Be prepared to testify to these measures in court
SCENARIO #2Active Efforts
Qualified Expert Witness
§1912; §23.122
Must be qualified to
testify to the child’s
continued custody and
the likelihood of serious
emotional or physical harm
May NOT be the social
worker assigned to
the case
Must be qualified to
testify to the prevailing social and
cultural standards of
the child’s tribe
Tribe or BIA may be able to assist in
finding QEW
May be designated by
the tribe
Disposition/Placement 1) Threshold questions:
– Least restrictive setting– Most approximates family– Reasonable proximity to home
2) Placement preferences (absent “good cause”)– Extended family – Tribal foster home/home approved by tribe– Native foster home licensed by state– Treatment program approved by tribe/run by Indian
organization
§1915; §23.131-32
Placement: Good Cause • Reasons for good cause must
be stated on the record or provided in writing– Any party seeking departure
from the placement preference bears the burden of proving “good cause “ by C&C evidence
• Reasons for departure must be states on the record or in a written order
• May NOT consider:– SES of any placement– Bonding bc of ICWA violation
• Court may ONLY consider: – Request of parents, if they attest
that they have reviewed the placement options
– Request of the child, if the child is of sufficient age and capacity;
– presence of a sibling attachment;
– Extraordinary physical, mental, or emotional needs;
– Unavailability of a suitable placement after a determination by the court that a diligent search was conducted
§1915; §23.131-32
SCENARIO #3Placement Preferences
Termination of Parental Rights Proceedings
Denver County must do and show three things:
Active Efforts
§1912; §23.2; §23.120
Actions intended primarily to maintain and reunite an Indian child with her family or tribal community • Constitute more than reasonable efforts
Must be provided to prevent removal and to promote reunification• From the time a CPS specialist becomes involved
Must be proven beyond a reasonable doubt
Qualified Expert Witness
§1912; §23.122
Must be qualified to
testify to the child’s
continued custody and
the likelihood of serious
emotional or physical harm
May NOT be the social
worker assigned to
the case
Must be qualified to
testify to the prevailing social and
cultural standards of
the child’s tribe
Tribe or BIA may be able to assist in
finding QEW
May be designated by
the tribe
“Let us put our minds together and see what life we can make for our children.”
Sitting Bull
What if I still have Questions? • Oklahoma ICWA Resources:
– http://www.okdhs.org/services/cws/Pages/TribalFosterCare.aspx– Casey Family Programs: www.casey.org
• National Indian Child Welfare Association: – www.nicwa.org
• National Council for Family & Juvenile Court Judges:– ncjfcj.org
• ICWA Appellate Project at Michigan State University Law;– turtletalk.wordpress.com/fort/icwa/
• Bureau of Indian Affairs: – bia.gov