19.1.1  Specific Requirements of the ICWA:

1. The Division must use its federal financial resources when providing any treatment or out-of-home care resources regardless of tribal or juvenile court jurisdiction or a child’s cultural/ethnic/genetic heritage.

Native American/Indian children and families are eligible for all Division services if they meet the program eligibility requirements.  To use alternative care funds including Title IV-E, the child must be in Division custody which is one of this program’s eligibility requirements.  Tribal courts must place the child in Children’s Division (CD) custody for the child to receive CD alternative care payments including Title IV-E.

2. In any juvenile court proceedings, the Native American/Indian custodian or tribe of the child has the right to intervene at any point.
3. All parties to the proceeding have the right to examine all the reports, testimony, witnesses and exhibits upon which the court's decision may be based.
4. No hearing may be held until at least ten (10) days after receipt of the notice by the parent or Indian custodian and the tribe or the Secretary of the Interior.  The Secretary of the Interior has delegated authority to receive notice to the appropriate Bureau of Indian Affairs (BIA) Office.  For Missouri, this office is:

Indian Child Welfare Services
Bureau of Indian Affairs
Muskogee Area Office
P.O. Box 8002
Muskogee, OK 74402
Phone:  918-781-4613

NOTE:  The juvenile court under chapter 211, RSMo, may take protective custody of an Indian child and order that child into Division custody for out-of-home care placement to assure the child’s safety and protection.  Once the child’s Indian status and/or tribal membership is identified, the juvenile court must provide appropriate notice to the parent or Indian custodian and the tribe or Secretary of the Interior (via the BIA area office).  Juvenile courts should have access to Vol 44, FR (Federal Register) (Monday, November 26, 1979) pp. 67584 - 67595, Guidelines for State Courts:  Indian Child Custody Proceedings, Bureau of Indian Affairs, Department of Interior.  Juvenile courts will also have access to 25 CFR Part 22, Indian Child Welfare Act which includes regulations relating to relationships between state courts and Indian tribes and their courts.  Staff may refer courts to these documents for recommendations in handling Indian child custody proceedings.

5. Upon request, the parent or custodian shall be granted up to an additional 20 days to prepare for the proceeding.
6. The Native American/Indian parent has the right to appointed counsel if indigent.
7. In appointing counsel for the child, the court may exercise its discretionary power using the standard of "best interest of the child."
8. No termination of parental rights finding can be ordered unless it is supported by evidence beyond a reasonable doubt.  This is a higher standard than that required by Missouri law.
9. An expert witness in Indian matters for child custody proceedings (hearings) 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 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.
10. Any party seeking a termination of parental rights decision must satisfy the state court that active efforts have been made to provide remedial services and rehabilitative services designed to prevent breakup of the family and that these efforts have proved unsuccessful.
11. Records must be maintained for every placement and are to be available upon request to the Secretary of the Interior via the BIA Area Office or the Indian child's tribe.
12. Records must include the following:
    1. The name and tribal affiliation of the child;
    2. The names and addresses of the biological parents;
    3. The identity of any agency having files or information relating to an adoptive placement or foster care placement;
    4. Evidence of efforts to comply with placement preference order and services provided;
    5. The names and addresses of the adoptive parents, if applicable; and
    6. In adoptive placements, an affidavit certifying the biological parents' desire to have their identity remain confidential must be contained in the court file when their child has been adopted.
13. Records are not subject to the Freedom of Information Act and the Secretary of the Interior is responsible for maintaining confidentiality.

NOTE:  Information that a family shares with a Division staff member may be shared with an identified Indian center worker.  It is not necessary that the family sign a release of information for Children’s Division to release information.  Just as the Secretary of Interior is responsible for maintaining confidentiality, so are the Indian centers as Title II ICWA grantees.

14. When emergency placements are made, any responsible agency or court must insure that action to respect the Indian child's rights are taken expeditiously with consideration of the facts of the child's circumstances.
15. When replacements of an Indian child are necessary, the placement guidelines must be followed.
16. Licensing of foster families and institutions is the responsibility of the state unless such facilities are part of an Indian social services program operated by a tribe or organizations which have the assistance of Title II federal funding for the purpose of providing child welfare services to Indian children.

NOTE:  The state may enter into agreement with Indian tribes or organizations which have the assistance of federal child welfare service funding for the development of Indian foster placement resources and to meet the other provisions of ICWA.  These Indian foster placement resources may be used by the Division for Indian children by contacting the Indian centers.

17. In adoption, for a voluntary consent to be valid it must be:
    1. Made in writing;
    2. Executed and recorded before the circuit judge in a formal court proceeding;
    3. Accompanied by a certification completed by the judge which verifies that the terms and consequences of the consent were fully explained in detail and understood by the Indian parent or custodian;
    4. Accompanied by a certification completed by the judge that the proceedings were interpreted into a language understood by the parent or custodian, if either does not understand English; and
    5. Completed ten (10) days after the birth of a child in the case of an infant.

    NOTE:  This contrasts with the 48 hours required by subsection 453.050, RSMo, for parents to sign consent to adoption and supercedes Missouri law.

18. The federal statute states that a putative father of a child who is voluntarily relinquished by the mother for adoptive placement must acknowledge paternity or his paternity must be established if his rights are to be respected in the custody proceedings.  Changes in case law since 1978 regarding putative father rights may effect this ICWA requirement.  For further information, contact the Division of Legal Services.
19. At age 18, upon application, the Indian child who was the subject of an adoption shall be informed by the court which granted the final decree of the following:
    1. The child's tribal affiliation, if any;
    2. The biological parents; and
    3. Any other information necessary to protect any rights flowing from the individual's tribal membership.

    NOTE:  This is in contrast to Missouri’s law which requires the child be 21 before requesting any identifying information.  ICWA would supercede Missouri law.

20. The right to background information and tribal privilege information applies irrespective of the time an adoption decree was granted.
21. Upon request, the Secretary must disclose any information necessary for the enrollment of an Indian child in a tribe.
22. The Bureau of Indian Affairs will conduct a confidential check to learn if the child meets the requirements for membership in an Indian tribe and will certify that fact to the juvenile court.  This will avoid breaching the confidentiality of the court's adoptive record.

NOTE:  This can be done via the Indian centers by asking for their help.

23. Withdrawal of consent for adoptive placement by a parent must follow these guidelines:
    1. May occur anytime prior to the entry of a final decree of adoption and the child returned to the parent.
    2. After the final decree has been entered, a withdrawal of consent may occur only if it is proved the consent was obtained through fraud or given under duress.  In this instance the parent or custodian must petition the court to vacate the consent.  If one of the grounds is proved, the court must vacate the consent.

NOTE:  Withdrawal of consent may also occur if procedural requirements of the Act are not followed.

24. A birth parent may select not to voluntarily relinquish a child within the preference order requirements of the Act.  However, procedures in the Act governing such a relinquishment must be followed as outlined in #18.

NOTE:  Under Title II of the ICWA, the U. S. Bureau of Indian Affairs (BIA) funds can be made available for organized Indian child welfare services.  Currently there are three such ICWA programs funded by BIA as Title II grantees to administer and assist with compliance of the ICWA.

Kansas City:   Heart of America Indian Center
600 W. 39th Street
Kansas City, MO  64111
Phone:  816-421-7608
Fax:  816-421-6493

Springfield:      Southwest Missouri Indian Center
543 South Scenic
Springfield, MO  65802
Phone:  417-869-9550
Fax:  417-869-0922

These Indian centers provide social and child welfare services to Indian children and families within the catchment areas.  In addition, they will provide assistance in determining any family or child's Indian tribal membership.  Some of the centers also have Indian families licensed to provide out-of-home care services.  For counties not included in the catchment areas, contact with the nearest Indian center could indicate what kind of help they can provide in determining Indian status or the possibility of protective or out-of-home care services.

If needed, the supervising BIA area office can provide assistance in matters relating to compliance with ICWA.  For Missouri, this office is:

Indian Child Welfare Services
Bureau of Indian Affairs
Muskogee Area Office
P.O. Box 8002
Muskogee, OK 74402
Phone:  918-781-4613

19.1.2  Native American Definitions

These are included here because they are very specific to the ICWA.

Child Custody Proceeding:  Means and includes foster care placement; i.e., any action removing an Indian child from his/her parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

Termination of Parental Rights:  Any action resulting in the termination of the parent-child relationship.

Pre-adoptive Placement:  The temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement.

Adoptive Placement:  The permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

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.

NOTE:  This definition of an Indian voids any previous definition used prior to the enactment of the Act.  Also, if child is not enrolled and cannot be enrolled, the child is not an Indian.

Indian Child:  Any unmarried person under age 18 who is either:

1. A member of an Indian tribe; or
2. Is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.

Indian Child's Tribe:

1. The Indian tribe in which the child is a member or eligible for membership.
2. 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 stepparent.

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.

NOTE:  This meaning does not include the unwed father where paternity has not been acknowledged or established.

Indian Tribal Court:  A court with jurisdiction over child custody proceedings and 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 organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians, including an Alaska Native village.