What is the Indian Child Welfare Act?
The Indian Child Welfare Act (ICWA) -- 25 U.S.C. § 1901 et seq. is a federal law passed in 1978 that requires minimum federal standards be applied in state court proceedings involving Indian children "...to protect the best interest of Indian children and promote the stability and security of Indian families and tribes."
Who is Protected by ICWA?
To be covered under the ICWA, the child must be:
- Unmarried and under 18
- A member of an Indian tribe or
- Eligible for membership in an Indian tribe and
- The biological child of a member of an Indian tribe
What Proceedings are Covered by the ICWA?
- Foster care placements
- Termination of parental rights
- Pre-adoptive placement in a home or institution after termination of parental rights
- Adoptive placements
- Family Law
- Probate Matters (Guardianships)
- Delinquency Proceedings
Proceedings NOT Covered by the ICWA
- Custody to one parent in a divorce proceeding.
- Placement based on an act which would be a crime if committed by an adult.
- Placements occurring before May 7, 1979.
How does ICWA Operate?
When a child has been or will be detained or removed by the Child Protective Services (CPS on behalf of the State of California) or another party, an initial inquiry is required to be made as to whether the child is an Indian. If such determination is made, the party seeking removal must notify the parents or Indian custodian and the child's tribe of the pending proceedings and of their right to intervene.
At court proceedings "clear and convincing evidence" finding must be produced before the court will order foster placement, including the testimony of a qualified expert witness. "Evidence beyond a reasonable doubt" finding is required, including expert witness testimony, or remove a child permanently from his/her parents or Indian custodians. A "qualified expert witness" is one who has expertise beyond the normal social worker, specifically:
- Tribal people knowledgeable in tribal family organization and child rearing practices;
- Lay experts with experience in Indian child and family services and social and cultural standards of the child's tribe;
- A professional person with substantial education and experience working with Indian families and familiar with Indian social and cultural standards, particularly those of the child's tribe; or
- Professional person (e.g. therapist, teacher).
Foster care and pre-adoptive placement preferences must follow a specific order:
- Member of child's extended family
- Foster home licensed/approved by child's tribe
- Indian foster homes
- Children's institution approved by the tribe or operated by an Indian organization
In adoptive placements, the order of placement is:
- Member of child's extended family
- Other members of the child's tribe
- Other Indian families
- Tribe specifies by resolution a different preferred placement
An Indian child may be placed in a non-Indian home only if a "diligent" search has failed to find an Indian home. The tribe may establish a different preference order by resolution, and this shall be followed if it is the "least restrictive" placement. Where appropriate, the preference of the Indian child, parent and tribe shall be considered. Recent changes in the law: SB 678, effective January 1, 2007. Exceptions to termination of parental rights (TPR):
- Substantial interference with the child's connection to the tribal community; and
- Child's tribe has identified a permanent plan other than TPR
Rights of Parents and/or Indian Custodians
- Right to have an attorney appointed at all stages of an involuntary placement proceeding if the parent or custodian cannot afford one.
- Right to remedial services: The court must be satisfied that active efforts have been made to provide rehabilitative services and programs designed to prevent the breakup of the Indian family through reunification or priort to removal in non-emergency situations. These services can include, but are not limited to, substance abuse treatment, counseling, parenting classes and life skills education.
- Confidentiality: On any involuntary adoption, the parents' identity that can be concealed from everyone but those officials handling the adoption, including tribal officials.
- Return upon Demand: In voluntary placements, the parent or Indian custodian is entitled to the return of the child "on demand ." In a voluntary adoption, the parent can seek the return of the child until the adoption decree is final.
Rights of Tribes
- Full participation in ICWA proceedings: A tribe may intervene at any point in proceedings, present testimony, cross examine witnesses and have access to all records.
- Licensing Indian adoptive or foster homes: A tribe may establish and operate a licensing system to in order to regulate and license Indian foster and adoptive homes.
- Transfer to tribal court: A tribe may request transfer of a child custody or adoption proceeding from the state or county court to tribal court.
Indian Foster Home Recruitment Under ICWA
Foster parenting is an old concept for the Indian Community. Generations ago, Indian foster parents were sipmply called "extended family." Without the extended family, we could not have maintained our valuable Indian traditions. Providing foster care is a fulfilling and meaningful family experience.
ICFPP recruits and offers assistance to interested people seeking to become licensed to care for Indian children. This includes payment of application fees, assistance with the completion of application fees, assistance with the completion of paperwork and interface with licensing departments to comply with rigid background processes.
If you are interested in becoming a foster parent, please email us.