1 Washington State ICW Training

2 The Power of PartnershipThe Alliance for Child Welfare Excellence is Washington’s first comprehensive statewide training partnership dedicated to developing professional expertise for social workers and enhancing the skills of foster parents and caregivers working with vulnerable children and families. 

3 The Power of PartnershipThis curriculum was created in collaboration with the National Indian Child Welfare Association (NICWA), Children’s Administration (CA) and the Alliance for Child Welfare Excellence.

4 Traditional Child Welfare SystemsBefore western influence, children were kept safe through various extended family and community interventions – the natural helping system Natural helpers and healers Oral tradition Traditional ceremonies Clan/tribal/community

5 Historical Trauma What is historical trauma?What impact has this had on tribal families and communities? Do you know any families who had children adopted out or were forced to attend boarding schools? Why do we need to address this in our work with tribal families?

6 Need for Change Federal policy influence State policy and practiceBoarding schools, Adoption Project, interference with tribal governance and social structures, and relocation State policy and practice Large # removals (public and private) Separation from family Disconnected from culture and natural helping systems

7 1960–1978 Indian Country Child Welfare Findings25–35% of all AI/AN children removed from their homes—85% placed in non-Indian homes. AI/AN children brought up in non-Indian homes suffered due to isolation from their families and culture. In many AI/AN adoptions birth mothers were pressured and coerced into “voluntarily” relinquishing their parental rights. Tribes working with AAIA began questioning placement rate of their children into non-Indian homes found these statistics which were reported to Congress who then did more digging Tribal leaders and elders were watching their tribal membership decline and their culture disappear.

8 Indian Child Welfare Act of 1978Congress passed ICWA acknowledging: Sovereignty: Tribe’s right to protect their families and children Self-determination: That tribes best know the needs of their families and children The Trust Relationship: Congress has a responsibility to right the wrongs of their past actions and ensure the well-being of AI/AN children *** please discuss political status v. racial category here***

9 What Does ICWA Do? Establishes minimum federal standards for state removal of AI/AN children from their families Recognizes tribes’ inherent tribal jurisdiction over child custody proceedings Provides tribal funding for the operation of child and family programs

10 AI/AN Treatment: DisparitiesWhite/Caucasian Children 200 Cases Reported 50 Investigated 25 Substantiated 8 Placed American Indian/ Alaska Native Children 200 Cases Reported I like to say, at each decision point AI/AN children are less likely to face a decision that will keep them in their home and with their family- then cover the stats 2X as many AI/AN cases are investigated 2X as many AI/AN cases are Substantiated 4X as many AI/AN cases are placed in out of home care 100 Investigated 2X 50 Substantiated 2X 32 Placed 4X CSSP, 2007 4X

11 Disproportionality By StateThese do not include tribal child welfare numbers

12 Causal Factors Children of color are overrepresented in many child welfare systems because of: Individual bias Systemic bias Policy related barriers Workforce challenges in working cross-culturally The ability to effectively partner with tribes is key to eliminating disparities and disproportionality

13 ICWA is necessary because it:Ensures that states consider tribal values Empowers tribes to serve their children and families Counterbalances bias in people and the system Expands resources available Protects the best interests and unique rights of American Indian and Alaska Native children as tribal members

14 New Federal RegulationsJune 14, 2016 BIA released the first legally-binding ICWA regulations for state courts Effective December 12, 2016 BIA revised 2015 guidelines and has released them on Clarify minimum federal standards Require compliance consistent with Language of ICWA Intent of ICWA Canons of statutory construction/interpretation

15 Washington State PolicyWashington Administrative Codes (1976) Tribal-State ICWA Agreement (1987) Administrative No Policy (1987) Centennial Accord (1989) Local Tribal-State MOU’s Washington State ICWA law – RCW et. seq. (2011) Washington ICW Policies and Procedures (revised 2016)

16 Local Tribal/State MOU’sDeveloped collaboratively with tribes to: Clarify roles, responsibilities, and enhance coordination/cooperation ICWA, Tribal/State Agreement, and WICWA authorize Posted on CA intranet and DSHS internet after approved Applied in every tribal case Regardless of the child’s placement location in Washington state Purpose The purpose of tribal/state agreements, also referred to as Memoranda of Understanding (MOUs) is to clarify roles and responsibilities and to enhance coordination and cooperation between the tribal governments of Washington state, federally recognized tribes and Children’s Administration (CA) in providing appropriate child welfare services to Indian children. Talking points: This is a collaborative process and coordinated by CA staff with tribes in partnership with headquarters. Regional Administrator (RA) or designee have authority to develop with tribes in region Template used CA will review MOU’s every two years Agreement can be modified at any time Tribe and CA designated staff develop draft Draft sent to CA, AG, Executive Staff, and OIP for review Tribal govt. representatives review Tribe and CA collaborate to address issues/concerns Tribal govt. representatives and CA Asst. Secretary sign

17 Tribal Nations in State of Washington29 Washington State Tribes

18 Where does ICWA apply? Only in State CourtsMinimum standards for child welfare proceedings involving Indian children ICWA does not apply in tribal courts As sovereign nations the federal government can’t dictate tribal law

19 Why is it important that ICWA is applied correctly?It is a federal law Attorneys, judges and social workers have ethical obligations to uphold the law Where ICWA is not followed proceedings can be invalidated Child, parent, or tribe can petition for the invalidation of foster care placement or TPR proceedings Non-compliance can create delays and deny children and parents important protections, resources, and opportunities

20 Application ICWA applies to: 1) all state child custody proceedings2) involving an Indian child Unmarried Under 18 years of age Tribal member or child of tribal member and eligible for membership * Indian child is term defined in ICWA to denote AI/AN children who are members or eligible for membership in federally-recognized tribes. The court may not consider the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever had custody of the child, or the Indian child’s blood quantum.

21 Application: What is a “child custody proceeding”?Both voluntary and involuntary Foster Care Placement Foster care, institution, conservator or guardianship Termination of Parental Rights Pre-adoptive Placement After TPR, but prior to adoption Adoptive Placement voluntary/involuntary ICWA does apply to voluntary foster care and adoptive placements (consent and placement).

22 Application: What is a “child custody proceeding”?Other state child custody proceedings covered: Status offenses (truancy, incorrigibility) Status offenses can result in foster care, other out of home care, or TPR and may be adjudicated in the juvenile delinquency system.

23 Application: What is a “child custody proceeding”?State custody proceedings not covered: Child custody disputes and divorce proceedings Juvenile delinquency proceeding based on actions that would be a crime if the child was an adult Voluntary placements where children have to be returned on demand

24 Application: Who is an Indian child?State court must ask: Guidelines: reason to believe a child is an Indian child Regulations: knows or has reason to know a child is an Indian child Parties to tell court if later they have reason to know child is an Indian child WICWA requires “good faith effort” to identify Indian child (state court, CPS, case manager, and NAIR) Inquiry must happen at commencement of proceeding and be recorded Has reason to know a child is an Indian child: Any participant informs the court that the child is an Indian child or has information related to this Child gives the court reason to believe he/she is Indian child Domicile or residence of the child, parents, or Indian custodian is in Indian Country Child is or has been ward of a tribal court Parent or child posses tribal ID card Parent request for anonymity does not relieve any party from duty to comply with ICWA WSICWA – RCW

25 Application: Who is an Indian child?CA (NAIR Unit) can verify tribal membership by contacting either: The designated agent for service of ICWA notice (www.bia.gov) The tribe directly and identify the appropriate person for contact The BIA (regional or central office) to determine the most appropriate tribal contact

26 Application: Who is an Indian child?Only the tribe can verify a child’s membership or eligibility for membership State court or agency may not substitute its own determination LICWAC does not make this determination See ICWA regulations on details when multiple tribes involved If more than one tribe has an interest, the court should allow tribes to determine which tribe the child is a member of first and then determine which tribe has more significant contacts with the child if this is not possible.

27 Application: Process State case management:Ask whether there is reason to know a child is an Indian child Gather info on child’s family ancestry chart (FAC) Create a FAC in FamLink Identify all potential tribal affiliations, even if child is member of one tribe Send all information about Native American ancestry to NAIR for formal tribal inquiries Determine the residence and domicile of family Consult with tribe and relatives of the child Early and active engagement with the tribe Present verification to the court Encourage and support tribal membership

28 Application: Process Tribal case management:Establish a process with enrollment office to respond to notice requests Respond promptly and actively communicate with state workers at each decision point (e.g., finding relatives) Collaborate with the state worker to verify whether or not the child is an Indian child Assist the family with membership if necessary

29 Application: Practice TipsInquiries should ask the question of tribal heritage in different ways and multiple times throughout the life of the case. Ask extended family members for additional information Don’t forget about absent or non-custodial parents

30 Notice ICWA requires notice by registered or certified mail with return receipt requested (legal notice). Legal notice is required for each initial proceeding and every “child custody proceeding” thereafter Notice is also required for emergency proceedings, although not legal notice (e.g. phone, , fax, personal delivery) NAIR Unit does not provide legal notice (provided by CW) * Contact with tribe ahead of legal notice is encouraged, but legal notice must still be sent A proceeding can include more than one hearing Notice contents (regulations) (1) The child’s name, birthdate, and birthplace; (2) All names known (including maiden, married, and former names or aliases) of the parents, the parents’ birthdates and birthplaces, and Tribal enrollment numbers if known; (3) If known, the names, birthdates, birthplaces, and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparents; (4) The name of each Indian Tribe in which the child is a member (or may be eligible for membership if a biological parent is a member); (5) A copy of the petition, complaint, or other document by which the child custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing; (6) Statements setting out: (i) The name of the petitioner and the name and address of petitioner’s attorney; (ii) The right of any parent or Indian custodian of the child, if not already a party to the child-custody proceeding, to intervene in the proceedings. (iii) The Indian Tribe’s right to intervene at any time in a State-court proceeding for the foster-care placement of or termination of parental rights to an Indian child. (iv) That, if the child’s parent or Indian custodian is unable to afford counsel based on a determination of indigency by the court, the parent or Indian custodian has the right to court appointed counsel. (v) The right to be granted, upon request, up to 20 additional days to prepare for the child-custody proceedings. (vi) The right of the parent or Indian custodian and the Indian child’s Tribe to petition the court for transfer of the foster care placement or termination of parental rights proceeding to Tribal court as provided by 25 U.S.C and § (vii) The mailing addresses and telephone numbers of the court and information related to all parties to the child-custody proceeding and individuals notified under this section. (viii) The potential legal consequences of the child-custody proceedings on the future parental and custodial rights of the parent or Indian custodian. (ix) That all parties notified must keep confidential the information contained in the notice and the notice should not be handled by anyone not needing the information to exercise rights under ICWA. (e) If the identity or location of the child’s parents, the child’s Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see To establish Tribal identity, as much information as is known regarding the child’s direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact

31 Notice: Where should it be sent?Tribes: each tribe has a designated ICWA notice recipient (www.bia.gov). This information is also found in the ICW tab action pane in FamLink. Parents (or Indian custodians) If the identity of the parents or tribe cannot be confirmed, the BIA will make a reasonable attempt to locate and notify tribes, parents, and Indian custodians Copy of legal notice to BIA Regional Director (regional office where the proceeding occurs)

32 Notice: When does it happen?A custody proceeding cannot go forward until: At least 10 days after receipt of notice by parents (additional 20 days can be requested) At least 10 days after receipt of notice to the tribe(s) (additional 20 days can be requested) At least 15 days after receipt of notice by Regional BIA office if identity/location of parents or tribe is unknown These are minimum times

33 Notice: WICWA WICWA - Tribe not responding to notice does not constitute evidence that child is not an Indian child (burden on party asserting ICWA) WSICWA RCW (3)(c) Washington ICW Manual Chapters 6-7

34 Notice: Process State case management: Immediately contact the tribeCollect necessary information to provide legal notice Send or ensure that legal notice is sent within designated time period If tribe doesn’t respond, legal notice for every future “child custody” proceeding must be sent Again, another reminder to CA staff that notice is NOT the same as the NAIR membership inquiry process.

35 Notice: Process Tribal case management:Designate an advocate to intervene or inform the state that the tribe declines intervention Acknowledge receipt of each notification Promptly respond to notice Ask court for extra time if needed Again, another reminder to CA staff that notice is NOT the same as the NAIR membership inquiry process.

36 Jurisdiction A court’s power to decide a case or issue a decreeFor example, the court’s authority to decide if removal is appropriate or if parents’ rights should be terminated. The state court must dismiss an action as soon as it determines that it lacks jurisdiction

37 Jurisdiction: ExclusiveA tribe has exclusive jurisdiction when: The child is domiciled on tribal lands and no federal law modifies jurisdiction (e.g. P.L. 280) The child is a ward of tribal court *This means states have no authority to make decisions in these situations

38 Exclusive jurisdiction: What must state court do?The state court must make a determination of the residence and domicile of the child, and if the child is a ward of a tribal court If residence or domicile is on reservation or child is ward of tribal court then state court must dismiss the case, notify the tribe of its jurisdiction, and transmit all information to the tribe If the tribe declines jurisdiction for a child domiciled or resident on the reservation, the state may exercise jurisdiction (e.g. tribe does not have a court)

39 Jurisdiction: ConcurrentA tribe has concurrent jurisdiction when A child is domiciled off reservation and tribe asserts jurisdiction (transfer) A child lives on tribal lands but a federal law states that jurisdiction is shared (P.L. 280) This means that both states and tribes have authority to make decisions in these situations But SCOTUS has said that jurisdiction is “presumptively tribal” (e.g., that transfer can and should occur) Public Law 83- 280 (commonly referred to as Public Law 280 or PL 280) was a transfer of legal authority (jurisdiction) from the federal government to state governments which significantly changed the division of legal authority among tribal, federal, and state governments. Per Google search SCOTUS – Supreme Court of the United States

40 Jurisdiction: ProcessWith concurrent jurisdiction: Case in tribal court: proceed in tribal court Case in state court: Proceed in state court and ensure tribal notice, intervention, and respect tribal desire to transfer to tribal court With tribal exclusive jurisdiction: proceed in tribal court

41 Jurisdiction: TransferUpon petition by the tribe, parent, or Indian custodian, proceedings must be transferred to tribal court The right to request a transfer occurs at each proceeding and at each stage of the proceeding Including voluntary and involuntary proceedings such as emergency removal, foster care, termination of parental rights, and adoption proceedings Transfer will not occur if: Either parent objects to the transfer Tribal court declines jurisdiction State court determines that “good cause” exists to deny transfer Petition to transfer can be made orally on record or in writing State court must promptly ensure that tribal court is notified in writing once they receive transfer petition Washington ICW Manual Chapter 4

42 Transfer: Good Cause Regulations ‘good cause’ restrictions:The court must not consider “Advanced stage” of proceeding if parties received late notice Prior proceedings with no request for transfer If transfer will mean a change of placement Child’s contacts with the tribe Tribal community socio-economic conditions Perceived adequacy of the tribal agency or court The burden to establish “good cause” not to transfer is on the party opposing the transfer Reasons for good cause have to be documented in record or provided in writing to the parties Any party must have an opportunity to provide the court with views regarding whether good cause exists to deny transfer

43 Transfer: Practice TipsEstablish a process for planning and implementing transfer (tribal and state). Address case planning, correspondence, and decision making. If transfer occurs state CW should either promptly pass on all relevant documents and information to the tribal ICW and/or begin attending hearing in tribal court. Washington ICW Manual Chapter 6

44 Jurisdiction: Practice TipsState case management Ask the tribe early in the case if the child is or was ward of tribal court. Document residence and domicile of parents/child (residence of parents, length of time, and intent to stay). Discuss with tribe. Work closely with the tribal CW for smooth transition Ensure timely and complete document/information transfer Chapter 6, CA’s ICW Policies and Procedures

45 Jurisdiction: Practice TipsTribal case management Respond promptly with necessary information about transfer Ask for any information on previous services, eligibility for federal programs, etc. Work with tribal team to determine most appropriate jurisdiction

46 Emergency Removal The state may exercise temporary emergency jurisdiction when the child is at risk of imminent physical damage or harm Present or impending risk of serious bodily injury or death that will result in severe harm if safety intervention does not occur Regulations require notice to tribes of emergency removal and proceedings * For children domiciled on tribal lands who are temporarily off tribal lands and children domiciled off tribal lands Federal regulations do not have definition of imminent physical damage or harm. Court must make finding on removal or placement was necessary to prevent harm and whether it is still warranted, promptly hold a hearing on whether placement continues to be necessary when new information indicates that emergency has ended, and immediately terminate emergency proceeding once emergency placement is no longer needed

47 Emergency Removal Emergency removal must terminate immediately as soon as the imminent physical damage or harm no longer exists Court may terminate emergency removal: children have been returned to parents, as soon as tribe exercises jurisdiction, or child custody proceedings are initiated Efforts to promote transfer should be made by the state at the time of emergency removal

48 Emergency Removal Temporary emergency custody should not be continued for more than 30 days unless court makes all of the following determinations: Restoring child to parent or Indian custodian would subject child to imminent physical damage or harm, Court has been unable to transfer proceedings to the child’s tribal court, and It has not been possible to initiate a child custody proceeding

49 Emergency Removal: ProcessState case management Immediately document: If child is in imminent physical danger Indian status of child Tribal affiliation Most appropriate non-emergency jurisdiction (tribe or state) Engage child’s tribe and seek input into continuation of placement and active efforts Washington ICW Manual Chapter 6

50 Emergency Removal: ProcessTribal case management Respond promptly with Indian status, domicile of child, and relevant parts of the tribal code (jurisdiction) Become actively engaged in CPS process and case planning Determine if transfer is necessary Provide input into continuation of placement and active efforts

51 Intervention Tribes, and parents and Indian custodians have a right to intervene in any ICWA proceeding at any point in the proceeding (voluntary or involuntary) When a tribe intervenes it is guaranteed all the privileges of any other legal party Courts should allow alternative methods of participation in state court proceedings (telephonic, videoconferencing, etc.) A tribe intervene for the first time– even on appeal Tribes right to intervene cannot be nullified by parents’ objection; it is absolute Intervention is important because it assures tribes active participation in and monitoring of the child custody proceeding– allows tribe to bring additional information and resources to help with a case plan

52 Intervention: What’s it look like?It is important for tribes to be in conversation with the State regarding intervention

53 Intervention: ProcessState case management Ensure tribal input in all aspects of case planning and recommendations to the court (use skype, conference calls, in-person meetings) Ensure tribal CW receives all necessary documents, and fully understands the process and upcoming decisions to be made Chapter 6, CA’s ICW Policies and Procedures

54 Intervention: ProcessTribal case management Ensure that the court has made findings that the child is an “Indian child” and that the proceeding is a “child custody proceeding” under ICWA Inform court of intervention Determine with tribal team the level of appropriate intervention at that time (can change later)

55 Involuntary Foster Care PlacementsNo foster care placement may be ordered without: Active efforts to keep the family together Clear and convincing evidence of serious emotional or physical damage Qualified expert witness testimony Following placement preferences

56 Active Efforts Active Efforts must be provided to “prevent the break-up” of AI/AN families who enter the child welfare system Active efforts are: required from the moment the possibility of removal arises (including investigation and provision of family services) made to maintain and reunite a child with his or her family required while a state or agency investigates whether a child is ICWA-eligible Number of AI/AN families preserved AI/AN children in out-of-home care Active efforts must be documented in detail in court record and why they were unsuccessful if applicable. Active efforts are required throughout the child welfare process up until the time the court has ordered termination of parental rights for each parent or Indian custodian. Prior to the adjudication of the petition, the state agency is required to provide active efforts to offer services to make it possible for the child to safely return home. Must offer services, even when the parents do not chose to engage in them.

57 Active Efforts v. Reasonable EffortsActive efforts are different from “reasonable efforts”

58 Active Efforts ExamplesConducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; 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 in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues; Specific Active Efforts examples: A family decision meeting or conference with tribal input on attendees and agenda before important decisions A service agreement done in consultation with the tribe (not just mailed to the tribe for approval) A service plan that includes not just services, but frequent visitation based on the age of the child Culturally-appropriate assessments done with child and family

59 Active Efforts ExamplesActive Efforts examples (cont.): Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents; Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s Tribe; Taking steps to keep siblings together whenever possible;

60 Active Efforts ExamplesActive Efforts examples (cont.): Supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child; Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources;

61 Active Efforts ExamplesActive Efforts examples (cont.): Monitoring progress and participation in services; Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available; Providing post-reunification services and monitoring

62 Active Efforts Examples - WICWAWICWA Active Efforts examples: Engaging the parents or Indian custodian in reasonably available and culturally appropriate preventive, remedial, or rehabilitative services Using tribal services whenever available Applies when providing voluntary services prior to dependency proceeding Goes beyond simply providing referral for services Contractors and other that don’t have statutory or contractual obligation to provide services to or procure services for parents – documented, good faith effort to engage and facilitate services WSICWA examples (RCW )

63 Active Efforts: ProcessState case management Provide active efforts during and after an investigation and before removal, including voluntary family services Continue active efforts after the child has been removed Include extended family, tribe, Indian social service agencies, and Indian caregivers (e.g., family team meetings) Chapters 5 and 6, CA ICW Policies and Procedures Continually check the ICW tab in FamLink for tribal response updates If services are not readily accessible, the state agency should make efforts to develop, modify, and coordinate services that appropriately address the child and family’s needs.

64 Active Efforts: ProcessState case management Get tribal input on active efforts—document process and decision, and repeatedly review active efforts measures with the tribe Assist parents and child in maintaining ongoing relationship Document why services were chosen related to needs, cultural appropriateness of services, and tribal role in decision to choose/approve services

65 Active Efforts: ProcessTribal case management Participate in safety plan, case planning, and court proceedings Help locate and access resources that are most culturally appropriate Provide additional assistance as necessary to ensure active efforts are provided Help locate family and utilize family as a resource

66 Active Efforts: Tough SituationsThe parents refuse to participate in the services being provided. IF parents are not participating, diligent efforts to re-engage should be made and documented. IF diligent efforts to engage are unsuccessful, an active efforts finding can be made based on the services offered. The state has made an effort to provide services and the service provider does not fulfill their responsibility. State is still obligated to provide these services, which may include finding a different provider with whom the state contracts for services.. IF new services are not provided an active efforts finding cannot be made. Parents obligation begins when the court makes a finding on allegations of abuse/neglect and takes jurisdiction

67 Active Efforts: Tough SituationsThe state doesn’t have the resources necessary to provide the most appropriate services. State is obligated to find creative solutions and alternative but equally as appropriate services. Note: working with the tribe is imperative—often the best resources for a family are in their own community or extended family. IF a creative solution is not provided an active efforts finding cannot be made.

68 Legal Standards of Proof: What are they? Why do they matter?Burden of proof: Who has to prove something (e.g., that child is in imminent harm and removal necessary, parents are unfit) The state has this burden in all child welfare proceedings (fundamental right parents have to care and custody of their children) Standard of proof: How much evidence must be presented to prove something The standard varies but is always higher in ICWA hearings

69 Foster Care Standards: What does it actually mean?Clear and convincing evidence: must be enough evidence that a reasonable person would think it was adequate to support conclusion that continued custody of child with parent will result in serious emotional or physical damage Note: In non-ICWA cases the standard is often a preponderance of the evidence (the lowest possible standard)

70 Foster Care Standards: What does it actually mean?Evidence must show a causal relationship between the existence of conditions in the home and risk for serious emotional or physical damage to the child Evidence of these factors by themselves without additional contributing factors does not prove serious emotional or physical damage to a child: community or family poverty single parenthood custodian age crowded or inadequate housing substance abuse, or nonconforming social behavior

71 Qualified Expert WitnessesTestimony of qualified expert witnesses is required to support a state court’s decision to place the child outside of her home it must be part of the evidence presented court or agency may (and should) request the assistance from the tribe or the regional BIA office to locate an appropriate QEW WICWA requires: Contacting tribe and asking for QEW Order of preference for QEW qualifications Neither Caseworker or supervisor may be QEW Nothing in ICWA statutes or regulations prescribes what, if any, educational background a QEW must have for the purpose of providing testimony in regards to the child rearing practices and culture of a given tribe. Nothing in ICWA prohibits state courts from using more than one QEW, where needed. WSICWA QEW order (RCW ) A member of the child's Indian tribe or other person of the tribe's choice who is recognized by the tribe as knowledgeable regarding tribal customs as they pertain to family organization or child rearing practices for this purpose; Any person having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and child rearing practices within the Indian child's tribe; Any person having substantial experience in the delivery of child and family services to Indians, and knowledge of prevailing social and cultural standards and child rearing practices in Indian tribes with cultural similarities to the Indian child's tribe; or A professional person having substantial education and experience in the area of his or her specialty.

72 Qualified Expert Witnesses: What do they do?QEW must provide evidence by speaking specifically to the issue of whether continued custody by parents is likely to result in serious physical or emotional damage to the child. Specifically, they testify to: Their own qualifications Whether continued custody of the child by the parent or Indian custodian is likely to result in emotional or physical damage Whether foster care placement standards and adoptive placement standards have been appropriately applied Whether active efforts have been provided

73 How to find a Qualified Expert WitnessState case management Work with Tribe/BIA to help a court locate a QEW Contact urban Indian programs that serve children and families if appropriate Tribal case management Identify and train QEW’s - Keep a list of approved QEW’s you have worked with in the past

74 Foster Care: Placement PreferencesUnless there is “good cause to the contrary,” out-of-home placement must be with a family who is: A member of the Indian child’s extended family (defined by tribe) A foster home, licensed, approved or specified by the child’s tribe An Indian foster home licensed or approved by an authorized non-Indian licensing authority (e.g. state) An institution for children approved by an Indian tribe or operated by an Indian org suitable to child’s needs (in this order of preference) The tribe can create a different order of placement preferences

75 Foster Care: Placement PreferencesIn addition, the child must be placed in the least restrictive setting that: Most approximates a family Allows the child’s special needs to be met Is reasonably proximate to the child’s home/family

76 Foster Care: Placement PreferencesIF the preferences cannot be met, then the agency must: Demonstrate through C&C evidence that a diligent search has been conducted The standard for proving that a placement was unavailable must conform to the main social and cultural standards of parent’s or extended family’s Indian community Part of the clear and convincing evidence for CA is the Relative Search efforts policy. The search for relatives is done via a centralized statewide Relative Search unit.

77 WICWA Placement PreferencesMust make good faith effort to place child within the placement preferences WICWA includes two additional preferences following ICWA placement preferences non-Indian foster care approved by the tribe non-Indian foster care committed to supporting child’s connection to their tribe and culture Washington State ICWA – RCW The last two bullets highlight the need for CA caseworkers to be in regular contact with the tribe(s) and be discussing preferred placement preferences.

78 Placement Preferences: ProcessState case management: Contact the child’s tribe to discuss tribal placement preferences ASAP Perform a genogram and engage the child’s extended family (both sides) Conduct a search of state and county lists of Indian foster parents Treat any tribal representative as a partner in the placement process – tribes license/approve homes too Document efforts to follow placement preferences Chapter 7, CA ICW Policies and Procedures Homes licensed by the tribe shall be deemed equivalent to licensing/approval by the state

79 Placement Preferences: ProcessTribal case management: Work with state as a partner in the placement efforts Help family members go through state licensing process Create a process to work with the enrollment office to help locate extended relatives for a child Create a master list of tribally approved or licensed foster homes Work on foster care/adoptive home recruitment of Indian families Homes licensed by the tribe shall be deemed equivalent to licensing/approval by the state 25 USC § 1931(b)

80 Placement Preferences: Good CauseThe party seeking to assert good cause must show by C&C evidence one or more of five considerations. The court may not consider the socio-economic status of one placement versus another. The court may not consider ordinary bonding or attachment that occurs with child in non- compliant placement Party asserting good cause bears the burden of proving good cause Reasons for believing good cause exists must be stated orally on the record or in writing to the parties Court determination of good cause to depart must be on the record or in writing Regulations provide example of extraordinary physical or emotional needs, such as specialized treatment that only exists outside of where placement preference families live Analysis for unavailability of an ICWA preferred placement uses prevailing social and cultural standards of child’s tribes Five considerations The request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference; The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made; The presence of a sibling attachment that can be maintained only through a particular placement; The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.

81 Placement Preferences: Good Cause ProcessState case management: Conduct family team decision making (FTDM) meeting to discuss options If placement is outside the preference the reason should be documented and the tribe should be regularly updated If any party believes that “good cause” exists, documentation of the reasons for that belief should be in the case record and in court reports Tribal case management: Ask for family team meeting to discuss options Help identify alternative placement families Monitor efforts to locate placement and evaluate for due diligence (e.g. did they contact all relatives) Share tribal placement preferences and standards

82 Involuntary TPR Termination of parental rights may not be ordered without: Active efforts to prevent family breakup §1912(d) Evidence “beyond a reasonable doubt” that “continued custody of a child by the parent is likely to result in serious emotional or physical damage to the child.” § 1912(f) A qualified expert witness (QEW) testimony § 1912(f) If adoption occurs, placement preferences must be followed § 1915(a)

83 Termination of Parental Rights: What does it actually mean?Beyond a reasonable doubt: The evidence must be tipped STRONGLY in favor of the person asking for TPR This is the highest evidentiary standard There must be a causal connection Note: the standard for non-ICWA cases is clear and convincing evidence Parents State if remains with parents Child will experience serious physical or emotional harm No other logical explanation

84 Qualified Expert WitnessesTestimony of qualified expert witnesses is required to support court’s determination of TPR it must be part of the evidence presented to meet the standard of proof requirements court or agency should request the assistance from the tribe or the regional BIA office to locate an appropriate QEW Social worker or supervisor on the case cannot be the QEW WICWA requirements

85 TPR Court Process State case managementDocument and collect evidence on Conditions of the home or parenting that place the child at risk of imminent harm Causal connection between these conditions and the risk of harm faced by the child That conditions will likely result in harm to child & efforts were made to support the parent to change harmful behaviors (active efforts)

86 TPR Court Process Provide & document active efforts to rectify conditions (before and after removal) Document when and how efforts were unsuccessful Identify a qualified expert witness Provide sufficient information for QEW to determine if TPR is necessary, appropriate, and aligned with tribal standards (is there an alternative action or placement) Washington ICW Manual Chapter 6

87 TPR Court Process Tribal case managementParticipate in case planning and court proceedings – monitor for accuracy of information Advocate for alternatives to TPR Speak up and ask questions Communicate community standards Make sure ICWA is followed Help locate a qualified expert witness

88 Adoption Placement PreferencesUnless there is “good cause to the contrary,” adoptive placement of an Indian child must be with a family in this order: Child’s extended family (as defined by the tribe) Other members of the child’s tribe Other Indian families The tribe can offer their own placement preferences.

89 Adoption Placement PreferencesIF the preferences cannot be met, then the agency must Demonstrate through C&C evidence that a diligent search has been conducted Should include notification and explanation provided to: Parents All known/identifiable family The tribe

90 Adoption Placement PreferencesIf there is a request for anonymity, the court must give that request consideration, BUT a request for anonymity does NOT relieve the agency or court of the obligation to comply with the placement preferences Court must consider, where appropriate, the preference of the child or parent

91 Adoption Placement Preferences ProcessState case management: Contact the child’s tribe to discuss tribal placement preferences Perform a genogram and seek contact with the child’s extended family (both sides) – conduct FTDM meeting Treat any tribal representative as a partner in the placement process – tribes license/approve homes too Use extended family as a resource not just for placement but to locate & support placements Document efforts to follow placement preferences - Chapter 7, CA ICW Policies and Procedures Washington ICW Manual Chapter 7 Homes licensed by the tribe shall be deemed equivalent to licensing/approval by the state

92 Adoption Placement Preferences ProcessTribal case management: Ask for a FTDM meeting/Shared Planning staffing Consider customary adoption Work with state as a partner in the placement efforts Create a process to work with the enrollment office to help locate extended relatives for a child Create a master list of tribal adoptive homes

93 Placement Preferences: Good CauseIf a party is asserting good cause to deviate from the placement preferences, they must show by C&C evidence one or more of five considerations. The court may not consider: The socio-economic status of one placement versus another, or Ordinary bonding or attachment that occurs with the child in a non-compliant placement Five considerations The request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference; The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made; The presence of a sibling attachment that can be maintained only through a particular placement; The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.

94 Adoption Placement Preferences: Good Cause ProcessState case management: If placement is outside the preference, then the reason should be documented and the tribe should be regularly updated and engaged If any party believes that “good cause” exists to place the child outside the preferences, then documentation of the reasons for that belief should be in the case record and court reports Continue to engage the tribe as an equal partner Tribal case management: Work with state as a partner in the placement efforts Work on foster care/adoptive home recruitment of Indian families

95 Voluntary Consent: NoticeNotice in voluntary proceedings is not required by ICWA Can be required by state law (WA) Best practice is to send notice: The tribe may have exclusive jurisdiction and/or the right to intervene Early notice aids agencies and courts in determining whether or not the child is ICWA-eligible

96 Voluntary Consent: NoticeStates where voluntary notice is required: Washington California Iowa Michigan Minnesota Oklahoma Oregon Wisconsin

97 Voluntary Consent: Foster CareParents can voluntarily consent to foster care Consent must be executed in writing and recorded before a judge of a court of competent jurisdiction The placement preferences of ICWA must still be followed in voluntary foster care placements. State must return children to parents upon withdrawal of consent In all voluntary proceedings court must ask if participants know or reason to know if child is an Indian Child and document this in the record If there is a reason to know the child is an Indian Child, the court must ensure that the party seeking placement has taken all reasonable efforts to verify the child’s status. This may include contacting the tribe. Parents may withdraw consent at any time – this must be done in writing and filed with a state court. Voluntary placements are differentiated from involuntary ones by either parent, both parents, or the Indian custodian having, of his or her free will, without a threat of removal by a State agency, chosen for the Indian child and that does not operate to prohibit the child’s parent or Indian custodian from regaining custody of the child upon demand. Any time there is a contingency or formality as opposed to being able to demand return of the child with a verbal request (e.g. agreement, court proceedings, or repayment of child’s expenses) the proceeding is considered involuntary.

98 Voluntary Consent: TPR and AdoptionParents can voluntarily consent to the termination of their parental rights and the adoption of their child The placement preferences of ICWA must still be followed in voluntary adoptive placements the same guidelines and tips as the one’s discussed for involuntary adoptions apply in voluntary proceedings Consent must be executed in writing before a judge and not until the child is at least 11 days old (NICWA) - (CA Manual) Voluntary Placement Agreement (VPA) Use a VPA only for a short-term out-of-home placement. Before creating a VPA determine: The child is not currently a ward of a tribal court. The child is at least ten calendar days old. (BIA) A consent given prior to, or within 10 days after, the birth of an Indian child is not valid

99 Voluntary Consent Consent must be obtained by BOTH parentsIf voluntary consent cannot be obtained from both parents then the rights of the non-consenting parent must be terminated by involuntary procedures An unwed father must be treated as a father if he has acknowledged or established paternity Establishment can be based on tribal law or custom as well as state law Acknowledging paternity in the proceeding at hand DNA testing

100 Withdrawal of Consent Parents have the right to withdraw consent to:The adoption at any time before a final court decree of the adoption. The termination of parental rights at any time prior to the entry of a final court decree of termination. Parent must file in the court where consent was given a document executed under oath stating the parent’s intention to withdraw consent Clerk must notify the other parties to the case and the child must be returned as soon as practicable

101 Withdrawal of Consent If consent was given under fraud or duress, or where ICWA was not properly followed, then parents may petition the court to vacate the adoption decree up to two years after the adoption (or longer if state law allows)

102 Voluntary Consent: ProcessState case management: Assess placements carefully—Is this a fully informed consent? Fully explain the possible ramifications of each step to birth parents and rights under ICWA Ensure that all requirements for voluntary placements are fulfilled Immediately notify tribe and contact extended family to find an appropriate placement in accordance with ICWA (document) Respect parents’ rights to withdraw consent

103 Voluntary Consent: ProcessTribal case management: Assess placements carefully—Is this a fully informed consent? Contact birth parents and discuss their options with them Fully explain the possible ramifications of each step to birth parents Aid state CW to find most appropriate placement, locate extended family, and resources

104 Voluntary Consent: Practice TipsInvolve all people affected by placement (tribe and family members) Use effective planning and decision making processes (e.g., Family Team Decision Making meeting) Explore alternatives to adoption (relative care, guardianship, customary adoption) Ensure that collateral workers understand these principles and have skills to implement (i.e., ICPC, contract agencies)

105 Disrupted Adoptions Notice by court or agency of this change of status must be given to the bio parents and the tribe (this right can be waived, and that waiver can be revoked) If an adoption is set aside, or adoptive parents voluntarily consent to TPR, the biological parents and the tribe may petition for return of custody, and this shall be granted UNLESS: In a proceeding that includes counsel, an active efforts finding, and a finding that by clear and convincing evidence return of the child will result in serious harm to the child (i.e., not in the best interests of the child)

106 Local Indian Child Welfare Advisory Committees (LICWAC)LICWAC staffing: Multidisciplinary team for CA in the development of culturally specific case plans. Reviews potential placements in non-Indian homes when child’s tribe is unavailable or not participating

107 LICWAC Child Protection Team (CPT) meeting when requested, and the case and LICWAC members meet CPT requirements. Permanency planning group for Indian children when child’s tribe is not involved or requests LICWAC conduct permanency planning. Administrative case review when court hearing cannot occur within 6 months of the child’s original placement date.

108 LICWAC: Caseworker DutiesInvite participants five days before staffing Arrange staffing in coordination with LICWAC liaison (see criteria in Chapter 10, CA ICW Policies and Procedures) Different process for children from non-federally recognized tribes Be aware of timeframes for LICWAC convening Careful coordination with child’s tribe required Presentation of case to LICWAC Bring child’s case file information Present key facts in the case Document in FamLink Contact child’s tribe when closing a case Criteria: When the caseworker receives a request from the following individuals: Tribal designee LICWAC committee CA worker’s supervisor LICWAC Liaison Child’s parent, legal guardian, or Indian custodian. When the case involves: Children whose status with a federally recognized Tribe is pending. Indian children whose tribe is unavailable. Children whose tribe is requesting LICWAC involvement.

109 ICPC and Indian ChildrenFollow 5600 – Interstate Compact on Placement of Children (ICPC) policies when: Considering out-of-state placement for an Indian child in the care and custody of CA. A federally recognized tribe has jurisdiction, and requests CA involvement to place an Indian child across state lines A sending state submits an ICPC request to CA HQ ICPC. Criteria: When the caseworker receives a request from the following individuals: Tribal designee LICWAC committee CA worker’s supervisor LICWAC Liaison Child’s parent, legal guardian, or Indian custodian. When the case involves: Children whose status with a federally recognized Tribe is pending. Indian children whose tribe is unavailable. Children whose tribe is requesting LICWAC involvement.

110 ICPC and Indian ChildrenCA will maintain jurisdiction of Indian child in CA’s care and custody who is placed out-of-state. When a federally recognized tribe chooses to work through the state ICPC, the tribe must agree to follow all parts of the ICPC regulations and laws. ICPC is not required if a federally recognized tribe places an Indian child in their jurisdiction out-of-state without CA involvement or a state court transfers a case to tribal jurisdiction

111 ICPC and Indian ChildrenWhen a Washington state federally recognized tribe requests out-of-state placement of an Indian child under tribal jurisdiction, HQ ICPC will assist the tribe in determining if a receiving state will accept the ICPC request. A CA caseworker may assist the tribe in referring their request to ICPC HQ.

112 Casework With Non-federally Recognized & Canadian First NationsFederal ICWA does not apply with non-federally recognized or Canadian First Nations children and families Follow all CA practice and procedure policies including: 1140. Family Assessment-Assessment of Progress 4222. Community-Informed Decision-Making 4223 Culturally Appropriate Assessment

113 Casework With Non-federally Recognized & Canadian First NationsContact the tribe or Canadian First Nation for help in locating a relative or other placement and available service resources Obtain written consent using Consent DSHS from at least one parent to share other information beyond the request for help locating placement and service resources Preserve the child’s culture of origin and respect the child’s right to participate in his or her culture, when developing case plans. This includes helping the family enroll the child.

114 The Power of PartnershipAgain, our thanks to the collaborative work with the National Indian Child Welfare Association (NICWA) and Children’s Administration (CA) for creating the Washington State ICW training curriculum.