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:
10/22/2019
Section:
4.2 Indian Child Welfare Act (ICWA)
Version:
3

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Legal Authority/Introduction

LEGAL AUTHORITY:

The Indian Child Welfare Act (ICWA) is a federal law that seeks to keep American Indian/Alaskan Native children with American Indian/Alaskan Native families.  Congress passed ICWA in 1978 in response to the alarming number of American Indian/Alaskan Native children being removed from their homes in communities by both public and private agencies at a much higher rate than non-native children.  The intent of Congress under ICWA was to "protect the best interests of American Indian/Alaskan Native children and to promote the stability and security of Indian tribes and families" (25 U.S.C 192).  ICWA sets federal requirements that apply to state child custody proceedings involving an American Indian/Alaskan Native child who is a member of, or is eligible for membership in, a federally recognized tribe.

ICWA is an integral policy framework on which tribal child welfare programs rely.  It provides structure and requirements for how public and private child welfare agencies and state courts view and conduct their work to serve tribal children and families.  It also acknowledges and promotes the role that tribal governments play in supporting tribal families, both on and off tribal lands.  However, as is the case with many laws, proper implementation of ICWA requires vigilance, resources, and advocacy. [1]

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 in home and out of home care (OOHC) cases), if they are of American Indian/Alaskan Native heritage or enrolled as a member of a federally recognized American Indian/Alaskan Native tribe. SSW 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 American Indian/Alaskan Native tribe or eligible for membership in an American Indian/Alaskan Native tribe;
  4. Sends the Tribal Notification Letter to the designated tribal agent of the tribe(s) indicated, based on the identified American Indian/Alaskan Native heritage.  Copies of the Tribal Notification Letter must be sent to the Bureau of Indian Affairs (BIA) regional office where the tribe is located, the BIA regional office where the child is located, and to the Out of Home Care branch manager.
  5. Sends the Tribal Notification Letter to each federally recognized tribe with the identified tribal affiliation if the family reports American Indian/Alaskan Native heritage, is able to determine tribal affiliation, but cannot identify a specific federally recognized tribe.   Copies of the Tribal Notification Letter must be sent to the BIA regional office(s) where each affiliated tribe is located, the BIA regional office where the child is located, and to the Out of Home Care branch manager.  [1]
  6. Sends a letter, to the Bureau of Indian Affairs (BIA) Eastern Regional Office to document diligent efforts to identify the tribe, if the family reports American Indian/ Alaskan Native heritage, but can not provide information as to tribal affiliation.  This notification is required for both OOHC and in-home cases; 
  7. Notifies the child’s parent or American Indian/Alaskan Native custodian and the child’s Tribal Nation, by registered mail, of any child custody proceedings and of their right to intervene and/or assume jurisdiction;
  8. 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, documenting the imminent risk necessitating the child's removal;
    5. Active efforts made by DCBS to prevent the child's removal or active efforts that are being made to achieve reunification; [2]
    6. A statement of the rights of the biological parents/custodians to intervene in the proceedings;
    7. A statement of right under federal law to court appointed counsel; and
    8. The location, mailing address and telephone number of the court;
  9. Ensures that the family and/or affiliated tribe 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 (voluntary and involuntary);
    5. Runaway or truancy matters; or
    6. Voluntary placements of children;
  10. Consults with the tribe to determine if the tribe will request transfer of the case to tribal jurisdiction;
  11. Informs the tribe that they must file a motion or petition to intervene if case transfer or custody is requested;
  12. 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;
  13. Provides the tribal title IV-E agency or American Indian/Alaskan Native Indian tribe, any 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));
  14. Ensures that if an American Indian/Alaskan Native child is removed from home, that he/she is placed in compliance with ICWA preferred placements:
    1. Extended family members;
    2. Other tribal members; or
    3. Other American Indian/Alaskan Native families;
  15. 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 the Out of Home Care branch manager when questions arise concerning ICWA.
  2. Ensures that staff send notification as soon as possible upon the identification of a child of American Indian/Alaskan Native heritage. 

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 American Indian/Alaskan Native culture, is required before a child can be removed from the home (except during an emergency situation or approval by the FSOS) due to documentable imminent risk (25 USC section 1902).
  • Active efforts must be made to provide remedial services and rehabilitative programs designed to prevent the breakup of or promote the reunification of the American Indian/Alaskan Native family.
  • Active efforts must begin from the moment the possibility arises that the American Indian/Alaskan Native child may be removed.  Active efforts are defined in 25 CFR 23.2. [2]

 

 Contingencies and Clarifications

  • If the child and the tribe(s) are located in the BIA Eastern Region, only one copy needs to be sent to that regional office.  If more than one tribe is notified and more than one tribe is located in the same BIA region, only one letter needs to be sent to the indicated BIA regional office.  Addresses for the BIA regional offices are provided in the Designated Tribal Agent list.
  • ICWA has specific standards that must be met for a witness to be considered an expert witness.  See Guidelines for Implementing the Indian Child Welfare Act
 

Footnotes

  1. Kentucky is located in the BIA Eastern Region.  
  2. Active efforts is a higher burden than reasonable efforts.  See the Quick Reference Sheet on active efforts.

 

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