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Joseph F. Rice School of Law

Indian Child Welfare Act

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  • To protect the best interests of Indian children and promote the stability and security of Indian Tribes.
  • ICWA applies to child custody proceedings involving Indian children.
    • Child Custody Proceeding: foster care placements, TPRs, pre-adoptive placements, and adoption (not custody disputes in divorce proceedings or voluntary placements). 25 U.S.C. § 1903(1).
    • Indian Child: An unmarried person under 18 who is either: (1) a member of an Indian tribe or (2) the biological child of a member and eligible for membership in a federally recognized Indian Tribe. 25 U.S.C. § 1903(4).
  • ICWA inquiries must begin immediately at the beginning of a case, as failure to make such inquiries can cause a case to be reversed and the process begun again, delaying permanence for the child.
  • DSS must notify the parents (including adoptive parents) or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. 25 U.S.C. §1912(b).
    • This should include notification of any tribe with potential jurisdiction over the Indian child or for which the child may be a member or eligible for membership (Best Legal Practices).
    • If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary of the Interior, who shall have 15 days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe.
    • Notice is required for each proceeding, not just the first or last proceeding. BIA Guidelines, Section B.
  • No foster care placement or TPR proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary. 25 U.S.C. § 1912(a).
  • The matter must be continued for up to 20 days if requested by the parent or Indian custodian or the tribe. 25 U.S.C. § 1912(a).
  • An indigent Indian parent or custodian is entitled to an appointed attorney. 25 U.S.C. § 1912(b).
  • Each party is entitled to examine all reports or other documents filed with the court upon which any decision with respect to the action may be based. 25 U.S.C. § 1912(c).
  • Burden of proof is clear and convincing evidence in removal actions and beyond a reasonable doubt in TPR actions. 
Two findings, in addition to findings required under state law and ASFA, that the court must make in a ICWA case before foster care placement or TPR can be ordered:
  • that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. 25 U.S.C. § 1912(d).
  • that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. 25 U.S.C. § 1912(e) and (f).
    • Must be supported by expert testimony.
    • Must be supported by clear and convincing evidence in a foster care placement/removal case, and beyond a reasonable doubt in a TPR proceeding.
  • Placement of Indian children, in the absence of good cause shown, shall be made according to the applicable tribe’s placement preferences. If the tribe has not adopted its own preferences, the children shall be placed consistent with 25 U.S.C. § 1915.
  • Catawba Indian Nation, the only federally recognized Indian tribe in South Carolina, has passed a Tribal resolution for a different order of preference, which can be obtained from the Tribe.
  • Voluntary consent to foster care placement or TPR by a parent or Indian custodian, to be valid, must be done before a judge of a court of competent jurisdiction and accompanied by the judge’s certificate that the terms and consequences of the consent were fully explained in detail and fully understood by the parent or Indian custodian. 25 U.S.C. § 1913(a).
    • The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood.
    • Any consent given prior to or within ten days after birth of the Indian child shall not be valid. 25 U.S.C. § 1913(a).
    • Any parent or Indian custodian may withdraw consent to foster care placement at any time. 25 U.S.C. § 1913(c).
  • Adoptions may be vacated upon a finding that consent was obtained through fraud or duress for a period of two years. 25 U.S.C. § 1913(d).

The updated Bureau of Indian Affairs (BIA) guidelines, effective February 25, 2015, provide guidance to state courts and child welfare agencies implementing the ICWA provisions and best practices for ICWA compliance.

  • The court and DSS must ask, in every child custody proceeding, whether ICWA applies.
  • The court should follow ICWA procedures even when the Indian child is not removed from the home, in order to allow tribes to intervene as early as possible to assist in preventing a breakup of the family.
  • Where the court and DSS has reason to know that a child is an Indian child, they must treat that child as an Indian child unless and until it is determined that the child is not an Indian child.
  • DSS should document its efforts to comply with ICWA.
  • "Active efforts" require a level of effort beyond “reasonable efforts.” Examples provided by the guidelines include:
    • Engaging the Indian child and the child's parents, extended family members, and custodian(s);
    • Taking steps necessary to keep siblings together;
    • Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services;
    • Identifying, notifying, and inviting representatives of the Indian child's tribe to participate;
    • Conducting or causing to be conducted a diligent search for the Indian child's extended family members for assistance and possible placement;
    • Taking into account the Indian child's tribe's prevailing social and cultural conditions and way of life, and requesting the assistance of representatives designated by the Indian child's tribe with substantial knowledge of the prevailing social and cultural standards;
    • Offering and employing all available and culturally appropriate family preservation strategies;
    • Completing a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal;
    • Notifying and consulting with extended family members of the Indian child to provide family structure and support, to assure cultural connections, and to serve as placement resources for the Indian child;
    • Making arrangements to provide family interaction in the most natural setting that can ensure the child's safety during any necessary removal;
    • Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child's parents or extended family in utilizing and accessing those resources;
    • Monitoring progress and participation in services;
    • Providing consideration of alternative ways of addressing the needs of the Indian child's parents and extended family, if services do not exist or if existing services are not available;
    • Supporting regular visits and trial home visits of the Indian child during any period of removal, consistent with the need to ensure the safety of the child; and
    • Providing post-reunification services and monitoring.
  • "Active efforts" ("to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family." See 25 U.S.C. 1912(d).) must begin from the moment the possibility arises that the Indian child may be removed and should be conducted while verifying whether the child is an Indian child.
  • Emergency removal/placement is appropriate only if "necessary to prevent imminent physical damage or harm" to the child.
  • Emergency removal/placement must be as short as possible.
  • The time period for temporary custody without a hearing or extraordinary circumstances is shortened from 30 to 90 days.
  • The right to transfer is available at any stage of a proceeding, including during an emergency hearing.
  • The right to request a transfer occurs with each distinct proceeding.
  • Requires a demonstration that "active efforts" were made not only “prior to” the commencement of the proceeding, but also "until" the commencement of the proceeding.
  • Requires documentation of what "active efforts" were made.
  • Requires a showing that active efforts have been unsuccessful.
  • Establishes a preferential order for witnesses who are experts in the culture and customs of the Indian child’s tribe.
  • Clarifies that even in voluntary proceedings, it is necessary to determine whether ICWA applies, and to comply with ICWA provisions.
  • DSS bears the burden of proof if it departs from any of the placement preferences and must demonstrate that it conducted a diligent search to identify placement options that satisfy the placement preferences, including notification to the child’s parents or Indian custodians, extended family, tribe, and others.
  • The court determines whether "good cause" to deviate from the placement preferences exists before departing from the placement preferences.


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