Working with the Indian Child Welfare Act IGA: An Overview

Presented by

Bernie Teba, Tribal Liaison, CYFDNew Mexico Children, Youth and Families Department

Regina Yazzie, MSW, Program DirectorNavajo Nation DSS, Navajo Children and Family Services

PURPOSE of the Intergovernmental Agreement (IGA)

1. Goals:a. Promote effective communication and collaboration

between state agencies and tribes.b. Develop positive state-tribal government-to-government

relations.c. Develop state agency cultural competency in order to

provide effective services to tribal governments and tribal citizens.

2. The outcome:CYFD staff will involve tribes early and have improved

interactions with tribes on policy issues, provision of services and actions that may have tribal implications.

Contents of the IGAs

I. Purpose and Policy

II. Definitions

III. General Provisions

IV. Notice

V. Intervention

VI. Transfer of Jurisdiction

VII.Child Protective Services

VIII.Remedial Services

IX. Placement Preferences

Contents of the IGAs

I. Foster Care – Pre-Adoptive Placements

II. Voluntary Relinquishments

III. Adoptive Placements – Voluntary and Involuntary

IV. Staff Training

V. Changes and Cancellation of Agreement

VI. Effective Date

VII.Effect of Prior Agreements

VIII.Sovereign Immunity

  Revised IGA

The New Mexico IGA was revised from 2004 to 2007, when it was approved in 2007.

The re-negotiated / revised IGA provided greater clarity, more defined, and increase user friendliness.

Facilitated overall discussion of policies and procedures for both the Nation and the states.

Identified barriers and allowed for internal policy and procedural revisions.

Cross-Cultural Communications

Problems in cross-cultural communication primarily occur because we assume that the elements of our own culture are natural, appropriate, and acceptable to others.

Cultural competency happens when: People of different cultures work together with trust and

respect There is understanding, regular communication and

cooperation There are common goals identified at the beginning of an

effort and are achieved together

Indian Child Welfare Act

– Protects Indian children from removal off reservation or adoption by non-Indians

– Restrains the authority of state agencies through procedural and substantive provisions by:

• The establishment of minimum federal standards .. …which reflect the unique values of Indian culture (25 USC 1902)

– Provides Tribes an opportunity to intervene and transfer jurisdiction over child welfare matters.

Indian Child Welfare Act

ICWA applies when an Indian child is involved in a State Child Custody Proceeding

• Fostercare placement

• Termination of Parental Rights (TPR)

• Pre-adoptive placement (post TPR)

• Adoptive placement

ICWA ApplicabilityBasic Provisions of ICWA

When does the ICWA not apply?

1. Tribe has exclusive jurisdiction.

2. Child is a ward of Tribal Court.

3. Divorce Proceedings

4. Juvenile Delinquency (unless child is also in the state CPS system)

Why A Tribal –CYFD ICWA IGA?

CYFD and Tribes recognize:

• There is no resource more vital to the existence and integrity of the Tribe than its children

• The United States has a direct interest, as trustee, in protecting Indian children

• CYFD has a direct interest in protecting Native American culture and encouraging the cultural diversity of the citizens of the State of New Mexico

Inquiry begins at State Wide Central Intake (SCI) & continues on through the life of the case.

• SCI caseworker inquiries from the source the race of the case participants & further inquiries about tribal affiliation & where the family resides.

Investigation case worker continues to inquiry through asking questions of parents, relatives and collateral contacts & can began utilizing the Resource Family Checklist tool.(Attachment A)-link

Report suspected child abuse or neglect by calling #SAFE (#7233) from a cell phone or 1-855-333-SAFE.

Determining ApplicabilityHow It Works in Practice

Determining Applicability Discovering Tribal identity & enrollment

status

•Are you or your child(ren)Native American? • What is the name of your Tribe?

•Are you enrolled as a tribal member?

•What tribal blood quantum are you? (heritage)

•Do you have a Census or Register # with your tribe?

Determining Applicability Discovering Tribal identity & enrollment

status

•Are any of your Family or Relatives enrolled tribal members (Names/Affiliation)? •Do you belong to a tribal clan? Mother’s clan? (Navajo Nation)?

•Do you reside on or off the reservation?

• Is there any history or current Tribal Services Involvement? •Is there any history or current Tribal Court Involvement?

Determining ApplicabilityHow It Works in Practice

If ICWA applies the investigation worker notifies the Tribe of any investigations involving Indian children, as required by the ICWA.

If PSD initiates an involuntary foster care placement of an Indian child, the Tribe is notified by registered mail return receipt requested.

The investigation worker consults with the children’s court attorney concerning custody of Indian children. Notification to Tribes of Investigations and Child Custody Proceedings [12-31-97; 11-30-04].

Determining ApplicabilityHow It Works in Practice

•If the child has Indian parentage but is not an enrolled member, CYFD pursues enrollment of the child by providing, in writing through certified mail return receipt requested, information about the child’s Indian parentage to the tribe for them to consider. ENROLLMENT OR VERIFICATION OF ENROLLMENT  [12-31-97; 11-30-04]

NotificationThe Tribal ICWA IGA

If the child is a Tribal child, CYFD must give notice to the Tribe of the following actions:

Involuntary proceedings Voluntary proceedings Judicial Hearings Disrupted or Dissolved adoptions

CYFD will use ICWA Notice Form to provide all available information.

Time LimitsWhen a Tribal child is taken into emergency custody by CYFD or when filing a neglect/abuse petition, notice to the Tribe must be provided by telephone within 24 hours and by registered mail within 5 days.

Notice regarding changes in scheduled hearings must be made by telephone no later than 24 hours before.

NotificationThe Tribal ICWA IGA

InterventionBasic Provisions of ICWA

• Tribe has the right to intervene in state child custody proceedings.

Observation: Tribes can do several things at different points in the process – do nothing, intervene or transfer jurisdiction.

InterventionThe Tribe ICWA IGA

•The Tribe may seek to intervene at any point in the proceeding.

Requirements for Removal The Tribal ICWA IGA

•Children domiciled off Tribal lands.- CYFD shall have primary responsibility

•Children domiciled on Tribal Lands.-The Tribe’s social services offices shall have primary responsibility-(What about public schools? Safety first-jurisdiction)

Active EffortsBasic Provisions of ICWA

States are required to provide active efforts to families, and the court will be asked to determine whether active efforts have been made.

ICWA mandates the state to make active efforts in two areas:1. Provide services to the family to prevent removal of an Indian

child from his or her parent or Indian custodian

2. Reunify an Indian child with his or her parent or Indian custodian after removal

Active Efforts and Reasonable Efforts

•How are active efforts different from reasonable efforts?

- Active efforts take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe

- Active efforts involve and use the available resources of the extended family, the tribe, Indian social service agencies and the individual Indian caregivers

Active EffortsThe Tribal ICWA IGA

• Remedial Services for Tribal Children and Families in Need of Services– Assess needs & strengths– Develop service plan to make it possible for

children to remain safely in the home– Identify and incorporate culturally appropriate

services

Expert WitnessesThe Tribal ICWA IGA

• Tribe will provide CYFD with name of persons qualified to testify as expert witnesses

• Determinations are made on an individual case basis

Placement PreferencesThe Tribal ICWA IGA

Adoption Placement Preferences:• Extended family member• A Tribal member.

– One or both parents must be a Tribal member.• Indian adoptive parent

– One or both parents are enrolled member of a federally recognized Indian Tribe.

• Other adoptive family approved by the Tribe.

Placement Preferences – Foster CareThe Tribal ICWA IGA

Foster Care Placement Preferences:• Permit the child to remain with

parent/caretaker/custodian.• Extended family member.• Foster home licensed or designated by the Tribe.• An Indian home licensed by CYFD.• Foster home consented to by the Tribe.• An institution for children licensed or designated

by CYFD which is approved by the Tribe.

Cultural Competence & Sensitivity

• Tribes are able to deliver culturally competent services to their families better than any other non-Indian provider

• The only way to learn about a culture is by someone from that culture sharing their knowledge

• Some things about culture can only be understood if you speak the language

• Key persons in tribes maintain tribal knowledge which may not be shared with non-tribal members

• Some kinds of knowledge can only be learned through experience - participation

Challenges to Tribal & State Relationships

• Turnover in agency and tribal administration.

• Each tribe is unique and it can be difficult to consult with multiple tribes.

• Confusion as to which Tribe(s) are to be involved.

• Lack of understanding/knowledge of:• Tribal customs and values• Tribal Court Structure and Procedure.• Agency policies and procedures.• District court procedures.

Need for an ICWA IGA

• ICWA Intergovernmental Agreements –clarifies roles and responsibilities

• Communication – Quarterly Coordination meetings, monthly case staffing

• Collaborative Foster care & Adoption Recruitment & Retention

• Joint Training Efforts• Share information• Relationship Building

Summary Analysis of Navajo Nation IGAs

Strengthens

•Promotes open dialogue with States

•Improves government-to-government relationship

•Facilitates greater understanding of ICWA compliance

•Client-based oriented, inclusive of case staffings, reviews, etc.

Summary Analysis of Navajo Nation IGAs

Weaknesses

•State judiciary system does not recognize the IGAs

•Lack of sanction for violations of IGA provisions and procedures

•Inconsistency between tribal and State statutes, procedures, and operations

•Inter-tribal coordination and information sharing among ICWA agencies

Summary Analysis of Navajo Nation IGAs

Opportunities

•Increase the number of IGAs. There are 3 IGA states out of 29 states that have the Nation has ICWA cases and a total of 47 states with no IGAs

•Piggy-back off other tribal IGAs in other states where Navajo cases exist

•Duplicate strategies used to engage states

Summary Analysis of Navajo Nation IGAs

Threats

•State agencies and courts undermine tribal governance and sovereignty

•General increase number of filings and appeals in state courts

Programmatic Best Practices for IGAs

1. Reunification of Children with Parents

Qualified, expert staffStable and consistent fundingTribal network of supportive service providersEngaging state and tribal agencies

Programmatic Best Practices for IGAs

2. Permanent Placement of Children with

Relatives

Strength of traditional extended family networkTribal legal and judiciary supportStreamlined public access, outreach, and referral process

Programmatic Best Practices for IGAs

3. State EngagementAwareness and education with state child welfare government and private agenciesAdvantages and disadvantages of IGAsPrioritize open dialogue with state at procedural levelBuilding trust in the short and long termFocus on continuous improvement

Next Steps

• Request that more NM Tribes consider an ICWA IGA. (Gov’t- to- Gov’t process).

• Tribal advocacy for Tribal Customary Adoption as a tribal alternative to the adoptive placement of Indian children in State custody.

• Increase the number of Title IV-E Tribal JPAs.

• Consider Tribal – CYFD ICWA Advisory Council

In Closing – ICWA of 1978

There is no resource that is more vital to the continued existence and integrity of American Indian tribes than their children … and that an alarming high percentage of such children are placed in non-Indian foster and adoptive homes and institutions. The states … have often failed to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families…

…It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families… ( 25 USC Sec. 1901, 1902)