Department for Community Based Services

Standards of Practice Online Manual

4.2 Indian Child Welfare Act (ICWA)

Cabinet for Health and Family Services

Department for Community Based Services
Division of Protection and Permanency
Standards of Practice Online Manual
Chapter:
Chapter 4-Out of Home Care Services (OOHC)
Effective:
7/15/2013
Section:
4.2 Indian Child Welfare Act (ICWA)
Version:
2

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Legal Authority/Introduction

LEGAL AUTHORITY:

The Indian Child Welfare Act (ICWA) of 1978 is a federal law that governs the removal and out of home placement of American Indian children.  The law was enacted after recognition by the federal government that American Indian children were being removed from their homes and communities at a much higher rate than non-Native children.  Under ICWA standards were established for the placement of Indian children in foster and adoptive homes and allowed tribes and Indian families to be involved in child welfare cases.

The following SOP provides guidance for staff regarding how to work with tribal agencies, to ensure the cultural well-being of the child is preserved while continuing monitor overall safety. 

Procedure 

The SSW:

  1. Asks both birth parents, for all children (for all cases), whether one is of American Indian heritage or is an enrolled member of a federally recognized Indian tribe or Alaskan Native village and documents the responses in the investigative and/or ongoing assessment;
  2. Follows the guidelines outlined in the Indian Child Welfare Act Compliance Desk Aid if either parent reports being of American Indian heritage or is a member of a tribe;
  3. Consults with the Family Services Office Supervisor (FSOS) or designee on case planning and follows provisions of The Indian Child Welfare Act (ICWA) (refer to National Indian Child Welfare Association), upon learning that a child is a member of an Indian tribe or eligible for membership in an Indian tribe;
  4. Sends a letter, to the Bureau of Indian Affairs (BIA) to document diligent efforts to identify the tribe, if a parent claims they have American Indian heritage, but are unable to name a specific tribe; 1 
  5. Notifies the child’s parent or Indian custodian and the child’s Indian nation/tribe, by registered mail, of pending child custody proceedings and of their right to intervene;
  6. Ensures that the contents of the notification letter includes the following information:
    1. The child’s name, date of birth and place of birth;
    2. The child’s tribal affiliation, if known;
    3. The names of the child’s parents, parents’ birth places and the child’s mother’s maiden name;
    4. A copy of the petition filed with the court;
    5. A statement of the rights of the biological parents/custodians to intervene in the proceedings;
    6. A statement of right under federal law to court appointed counsel; and
    7. The location, mailing address and telephone number of the court;
  7. Ensures that the family is aware of their right to intervene in the following court proceedings: 
    1. Child protective cases;
    2. Adoptions;
    3. Guardianships;
    4. Termination of parental rights actions;
    5. Runaway or truancy matters; or
    6. Voluntary placements of children;
  8. Consults with the tribe to determine if the tribe will request transfer of the case to tribal jurisdiction;
  9. Informs the tribe that they must file a motion or petition to intervene if case transfer or custody is requested;
  10. Ensures title IV-E eligibility has been established, as outlined in SOP 31.2 Title IV-E Eligibility and Reimbursability, at the time of transfer if an eligibility determination has not already been completed;
  11. Provides the tribal title IV-E agency or Indian tribe, the documents listed on the DSS-1259 Benefits Action Transmittal and information necessary to continue a child’s title IV-E and Medicaid eligibility, including but not limited to the following:
    1. All judicial determinations stating that continuation in the home from which the child was removed would be contrary to the welfare of the child and that reasonable efforts have been made (section 471(a)(15));
    2. Other documentation that relates to the child’s title IV-E eligibility under sections 472 and 473 of the Act; (guardianship and the child re-enters care);
    3. Information and documentation available regarding the child’s eligibility or potential eligibility for other federal benefits; and
    4. The case plan including health and education records (section 475(1) and 475(1)(C));
  12. Ensures that if an American Indian child is removed from home, that he/she is placed with:
    1. Extended family members;
    2. Other tribal members; or
    3. Other Indian families;
  13. Notifies the private child caring (PCC) or child placing (PCP) agency, when a child is placed in this setting, to inform the agency that the child meets special circumstances for cultural exemptions (i.e. cutting the child's hair).

The FSOS:

  1. Researches the procedures with a central office specialist when questions arise concerning ICWA.

Practice Guidance

  • When a child resides on a reservation, or is a ward of a tribe, the tribe has exclusive tribal jurisdiction over the case (25 USC section 1911).
  • Testimony from expert witnesses, who are familiar with Indian culture, is required before a child can be removed from the home (except during an emergency situation or approval by the FSOS) (25 USC section 1902).
 

Footnotes

  1. The BIA completes a search and provides the results, in writing, to the department to determine the next steps.

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