§4 ch19: Special Populations – Native American and Refugee
19.1 Indian Child Welfare Act of 1978 (P.L. 95-608) – (ICWA)
The Indian Child Welfare Act (ICWA) of 1978, P.L. 95-608, is a federal law which regulates placement proceedings involving Indian children. It mandates preventive services before removal to protect the best interest of Indian children and to promote the stability and security of Indian families and tribes. The Children’s Division complies with all mandates of the federal Indian Child Welfare Act, which includes preventing the unnecessary and arbitrary removal of Indian children from their families and tribes; placing an Indian child who must be removed in an available and safe home that reflects the unique values of American Indian culture; and adheres to the placement requirements of the Indian Child Welfare Act.
- In any child protection or involuntary foster care proceeding or termination of parental rights, guardianship, pre-adoptive or adoptive proceeding in a state court where Children’s Division knows or has reason to know an Indian child is involved, the Children’s Service Worker (CSW) will make reasonable efforts to determine the identity and location of the child’s Indian parents, custodian and/or tribe. Once there is an indication or suspicion that a child is American Indian/Alaskan Native, the case is to be handled as an ICWA case until ALL the Tribes notified respond that the child is neither a tribal member nor eligible for tribal membership. Be sure that the Tribe provides this ruling in writing, on Tribal letterhead, to the Children’s Division office for the child’s file. If the case is not likely to be ICWA, handle as a non-ICWA case.
- Once American Indian/Alaskan Native heritage has been identified, the Children’s Division shall notify the identified tribe(s) and request assistance to provide the child and family with services.
- Under the laws of ICWA, child custody proceedings and foster care placements do not include a placement based on an act which, if committed by an adult, would be deemed a crime.
- ICWA is applicable to all termination of parental rights (TPR) proceedings whether those proceedings occur from a child protection or delinquency case or action. ICWA is not applicable to child custody proceedings between the child’s parents or other caregivers.
- Children’s Division may seek assistance from the Secretary of the Interior or his/her designees for information on the identity and location of the child’s Indian parents, custodians and/or tribe. The office to be contacted for the Missouri region is:
Indian Child Welfare Services
Bureau of Indian Affairs
Muskogee Area Office
PO Box 8002
Muskogee, OK 74402
- Children’s Division shall ensure that notification is provided to the Indian parents, custodian and/or tribe by certified mail with a return receipt requested, of the pending proceedings and of their right of intervention, either though direct notification or by providing information for the notification to the juvenile court.
- Children’s Division recognizes the child’s Indian tribe has an interest, separate from a parent’s interest, in any proceeding involving the child and that interest must be protected throughout the child custody proceeding. The child’s Indian tribe has the right to intervene at any point in the proceedings and absent good cause to the contrary, may receive a transfer of jurisdiction of the case to the appropriate tribal court.
- Every effort shall be made by the Children’s Division to ensure when Indian children must be placed into alternative care that the placement reflects the true values of the child’s Indian culture. Special preference is to be made to place the child with (in order of ICWA placement priority):
- 1) A member of the child’s extended family;
- 2) A foster home licensed, approved, or specified by the Indian child’s tribe.
- 3) An Indian foster home licensed or approved by an authorized non-Indian licensing or certifying authority;
- 4) Other members of the Indian child’s tribe;
- 5) Other Indian families;
- 6) A non-Indian foster family may be used when an Indian family resource is not available and after diligent efforts have been made to locate an Indian family.
- Voluntary consents for foster care or relinquishments must be made in writing and recorded before a court of competent jurisdiction and certified by the judge or the court.
- The CSW must use active efforts to work towards preventing the placement of the child as well as towards reunification for the family.
"Active Efforts" are energetic efforts that show an active attempt to assist in alleviating the problems or issues that led to removal of the child from the family. Active efforts must also take into consideration the family’s cultural norms and the tribe’s resources. Requirements for a CSW’s efforts to reunite an Indian/Native Alaskan family are greater than those for non-Indian families.
- Children’s Division shall be prepared for the court to review the Children’s Division actions to ensure:
- 1) American Indian/Alaskan Native heritage was determined.
- 2) The tribe was notified of its right to intervene.
- 3) That a "qualified expert" determined that the child was likely to suffer emotional or physical harm if left at home and will testify to this in court. The Tribe is the best source for identifying qualified experts, and the Bureau of Indian Affairs may also assist as needed.
- 4) Children’s Division has made active efforts to prevent placement.
- 5) Children’s Division considered and preference was given to place the child with extended family members, an approved tribal home, Indian foster home, or an Indian-approved institution as noted in section "h".
An expert witness in Indian matters for child custody proceedings is qualified if either of the following criteria is met:
- 1) A member of the child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and child rearing practices.
- 2) A lay or professional expert witness 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.
- 3) A qualified expert witness is not an expert on the ICWA, but an expert on the child’s tribe.
There are several Indian Centers throughout the state that may assist the CSW in regards to services for Indian families, or for possible referral to a qualified expert witness:
American Indian Council
310 Armour Road, Suite 205
Kansas City, MO 64116
(816) 807-5917 or (816) 471-4898
American Indian Council
1017 Olive, Suite M-13
St. Louis, MO 63101
(314) 589-6653 or (314) 231-7923
Southwest Missouri Indian Center
543 S. Scenic Avenue
Springfield, MO 65802-4759
- During initial contact with the parent or custodian of the child, the Children’s Service Worker (CSW) shall ask if the child has any American Indian or Alaskan Native heritage. The CSW will complete the Indian Ancestry Questionnaire, CD-116, to document that the child does or does not have Indian/Alaskan Native heritage. If it is found that the child has Indian/Alaskan Native heritage, the CSW shall then compete the ICWA Checklist, CD-123, to ensure ICWA compliance throughout the life of the case.
- Phone contact to the appropriate ICWA representative of the tribe, if known, shall be made within 48 hours of the child being taken into protective custody and the CSW learning of the child’s Indian heritage.
- The appropriate written notification should follow, either directly by the CSW or by providing information to the juvenile court to make such notification. Written notification shall be made by certified mail with a return receipt requested.
- Notice shall be made by certified mail, concurrently with verbal notice, and no later than 48 hours to:
- 1) The Tribe (if known);
- 2) Parents or Indian custodian; and
- 3) Appropriate Bureau of Indian Affairs office
- Children’s Division should expect the ICWA director of the appropriate tribe to complete a referral to the appropriate tribal council for possible intervention or request to transfer jurisdiction to tribal court and the appropriate tribal social services office. Actual transfer of the child may occur upon determination that jurisdiction will transfer and receipt of the tribal court order covering jurisdiction of the child.
19.1.1 Definitions Specific to ICWA:
Child Custody Proceeding: Any action removing an American Indian/Alaskan Native from his/her parent or Indian custodian for temporary placement in a foster home or institution where the parent or custodian cannot have the child returned upon demand, but where parental rights have not been terminated.
Termination of Parental Rights (TPR): Any action resulting in the legal termination of a parent-child relationship. No termination of parental rights can be ordered unless it is supported by evidence that is beyond a reasonable doubt. This is a higher standard that required by Missouri law.
Indian: Any person who is a member of an Indian tribe, or who is an Alaskan Native and a member of the Regional Corporation as defined in Section 7 of the Alaska Native Claims Settlement Act. This definition of an Indian voids any previous definition used prior to the ICWA settlement.
Indian Child: Any unmarried person under the age of 18 who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and/or is the biological child of a member of an Indian tribe. At the age of 18, upon application, the Indian child who was the subject of an adoption shall be informed by the presiding court of the child’s tribal affiliation, if any. The child shall be given information regarding his/her biological parents, and any other information necessary to protect any rights allowed by the individual’s tribal membership.
Indian Child’s Tribe: The Indian tribe in which the child is a member or is eligible for membership. The tribal membership will be designated to that with which the child has the more significant contacts when the child’s membership or eligibility for membership is with more than one tribe.
Indian Custodian: Any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody and control has been transferred by the parent of such child.
Indian Extended Family Member: Is defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, to be a person who has reached the age of 18 and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or a step-parent.
Indian Organization: Any group, association, partnership, corporation, or other legal entity owned or controlled by Indians, or a majority of whose members are Indians.
Indian Parent: Any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoption under tribal law or custom. This definition does not include the unwed father where paternity has not been acknowledged or established. Federal statute states that a putative father of a child who is voluntarily relinquished by the mother must acknowledge paternity or his paternity must be established if his rights are to be respected in the custody proceedings. Since changes in case law since 1978 regarding putative father rights may effect this ICWA requirement, the CSW may contact the Division of Legal Services for further information.
Indian Tribal Court: A court with jurisdiction over child custody proceedings which is either a court of Indian offenses, a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings.
Indian Tribe: Any Indian tribe, band, nation or other group or community of Indians recognized as eligible for services provided to Indians by the Secretary of the Interior because of their status as Indians, including an Alaskan Native village.