ICWA Judges Check List case flow United States Code Indian Child Welfare Act of 1978 25 U.S.C. § 1901 et seq.

INDIAN CHILD WELFARE ACT

MINNESOTA INDIAN FAMILY PRESERVATION ACT

A Checklist For Judges

This outline covers the legal requirements of the Indian Child Welfare Act and the Minnesota Indian Family Preservation Act. It does not attempt to include all of the provisions that routinely apply to every juvenile or family proceeding. References in the outline are identified more fully at the end.

Prepared for the Annual Conference of Judges, December 3, 1992 by:

Janet C. Werness, Esq.
Southern Minnesota Regional Legal Services
700 Minnesota Building
46 E. 4th St.
St. Paul, Minnesota 55101
(612) 228-9823

Revised, June 1996 by:

Mark D. Fiddler, Esq.
Indian Child Welfare LawCenter
1433 East Franklin Avenue
Suite 18A
Minneapolis, Minnesota 55404
(612) 879-9165

TABLE OF CONTENTS

A. TYPES OF CASES GOVERNED BY ICWA AND MIFPA

1. Definition of Indian child

2. Cases governed by both acts

3. Cases governed only by MIFPA

B. ITEMS TO CHECK AT INITIAL HEARING

1. Indian status

2. Jurisdiction

3. Indian custodians

4. Notice to parents and Indian custodians

5. Notice to tribe(s)

6. Advice to unrepresented parents and custodians

7. Court-appointed attorneys

8. Guardian ad litem

9. Access to files

C. TRANSFER TO TRIBAL COURT

1. Mandatory transfer

2. Discretionary transfer

D. EMERGENCY HOLDS AND EX PARTE CUSTODY

1. Standard

2. Notice to tribe

3. Child's residence and domicile

4. Petition and affidavit seeking court order for immediate custody

5. Petition following peace officer hold

6. Findings and order

E. FINDINGS TO BE MADE AT ADJUDICATORY HEARING

1. Indian status

3. Active efforts

4. Success of active efforts

5. Qualified expert witnesses

6. Standard

7. Causal connection between conditions and harm

8. Burden of proof

9. Tribe's position

10. Availability of extended family

F. OUT-OF-HOME PLACEMENTS

1. Tribal order of preference

2. Notice to tribe

3. Extended Family

4. Family search

5. Tribal homes

6. Non-tribal Indian homes

7. Indian institutions

8. Search for Indian homes

9. Good cause not to follow preferences

G. VOLUNTARY PLACEMENTS AND CUSTODY AGREEMENTS

1. Notice to tribe

2. Notice to parent

3. Consent to placement

4. Content of consent document

5. Judge's certificate; findings

6. Withdrawal of consent

7. Placement preferences

H. CASE PLANS AND OTHER DISPOSITIONAL ISSUES

1. Tribal recommendations

2. Tribal input in case plan

3. Culturally appropriate services

4. Court appointed attorney

I. ADOPTIONS

1. Jurisdiction

2. Notice to tribe

3. Termination of parental rights

4. Voluntary adoptions

5. Adoptive placement preferences

6. Notice to BIA

7. Termination of adoptive parents' rights

8. Rights of adult adoptees

J. INVALIDATION PROCEEDINGS

1. Standing

2. Orders that can be invalidated

3. Bases for invalidation

K. STATUTORY CONSTRUCTION

L. SOURCES

INDIAN CHILD WELFARE ACT

MINNESOTA INDIAN FAMILY PRESERVATION ACT

A Checklist For Judges

A. TYPES OF CASES GOVERNED BY ICWA AND MIFPA:

1. Application of both laws is mandatory whenever an "Indian child" is involved

[25 U.S.C. §1903(4); Minn. Stat. §257.351 subd. 6]

_____ a. unmarried and under 18, and

_____ b. either:

_____ (i) a member of an Indian tribe; or

_____ (ii) eligible for membership in an Indian tribe (NOTE: the federal definition of Indian child requires that a child who is eligible for membership also have a biological parent who is a member of a tribe)

Court orders may be invalidated in cases involving an Indian child where there was non- compliance with the major provisions of the ICWA. [25 U.S.C. §1914]. Therefore, when in doubt, it is better to consider the child an Indian child until it is established with reasonable certainty that the child is not eligible for membership in a tribe.

2. Types of cases governed by both Indian Child Welfare Act [25 U.S.C. §1903(1)] and Minnesota Indian Family Preservation Act [Minn. Stat. §257.351 subd.3 & subd. 17]:

_____ a. CHIPS

_____ b. Termination of parental rights

_____ c. Voluntary placements

_____ d. Adoption

_____ e. Status offenses

_____ f. Delinquency cases where placement is required not because of the delinquent act but because of the parent's unfitness or child's needs

_____ g. Guardianship

_____ h. Third party custody cases

_____ i. Custody claims in OFP or other proceedings by a father who has not acknowledged paternity, who has not adopted the child under tribal law or custom, and who does not qualify as an "Indian custodian"

3. Types of cases governed only by the Minnesota Indian Family Preservation Act:

_____ a. Petty misdemeanor level delinquency cases, regardless of reason for placement [Minn. Stat. §257.352 subd.2]

B. ITEMS TO CHECK AT INITIAL HEARING:

_____ 1. Initial inquiry about Indian status [Minn. Stat. §257.351 subd. 6; 25 U.S.C. §1903(4) & §1912]:

The ICWA refers to "membership" in a tribe. [25 USC §1903 (3)(4)&(5)]. "Enrollment" is a common means of establishing membership in a tribe, but it is not the only means. A person may be a member of a tribe without being enrolled. Membership criteria may be established by tribal ordinance and may be unique to that tribe. The BIA may be able to establish whether a person is enrolled, but may not otherwise be able to establish a person's membership in a tribe. [DHS SSM XIII-3522]

_____ a. Both parents, child, and agency representatives are asked if child is American Indian or has American Indian ancestors [Minn. Stat. §257.354 subd. 2]

_____ b. All available information is reviewed for any indication of Indian heritage [DHS SSM XIII-3522; 44 Fed. Reg. 67586]

_____ c. All tribes are identified [Minn. Stat. §257.351 subd. 7 & §257.354; 25 U.S.C. §1903(5)]:

_____ (i). where child is/may be member

_____ (ii). where child is/may be eligible for membership

_____ (iii). where child has significant contacts, if child is eligible for membership in more than one tribe [44 Fed. Reg. 67587 and DHS SSM XIII-3523]

_____ 2. Jurisdiction:

If the child lives or resides on a reservation with jurisdiction over child custody matters, or if the child is already a ward of a tribal court, state courts lack jurisdiction and the case must be dismissed. [25 USC §1911(a); Minn. Stat. § 260.111 subd. 5]. When the child has been taken into custody in an emergency, the case may be transferred to tribal court in lieu of dismissal. [25 U.S.C. §1922]

_____ a. Inquiry is made to determine if child is ward of tribal court [25 U.S.C. §1911; Minn. Stat. §257.354]

_____ b. Inquiry is made to determine if child resides or is domiciled on a reservation with jurisdiction over child custody matters [25 U.S.C. §1911; Minn. Stat. §257.354]

_____ c. Jurisdiction shall be declined if the petitioner improperly removed the child from the parent or custodian, or improperly retained the child after a visit or other temporary relinquishment of custody [25 U.S.C. §1920]

_____ 3. Indian custodians, if any, are identified [25 USC §1903(6)]

"Indian custodian" means any Indian person who has legal custody 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. An Indian person who has adopted an Indian child under state law, or tribal law or custom is considered a parent for purposes of the ICWA. [25U.S.C. §1903(6)&(9)]

_____ 4. Parents and Indian custodians were given proper notice of proceedings:

_____ a. Notice was received by parents and custodians at least 10 days before hearing [25 USC §1912(a)]

_____ b. Notice was sent registered mail, return receipt requested [25 USC §1912(a)]

_____ c. Notice contained the following [44 Fed.Reg. 67588; DHS SSM XIII- 3561]:

_____ (i). child's name, birthdate, and birthplace

_____ (ii). child's tribal affiliation

_____ (iii). names of child's parents or Indian custodians, including birthdate, birthplace, and mother's maiden name

_____ (iv). copy of the petition or complaint

_____ (v). name of petitioner

_____ (vi). name and address of petitioner's attorney

_____ (vii). statement of right of parents, Indian custodians, and tribe to intervene in the proceedings

_____ (viii). statement of right of parents and Indian custodians to have counsel appointed if they are unable to afford counsel

_____ (ix). statement of right of parents, Indian custodians, and tribe to have an additional 20 days to prepare, if they request it

_____ (x). location, mailing address and phone number of the court

_____ (xi). statement of right of parents, Indian custodians, and tribe to petition for transfer of proceedings to tribal court, and their right to refuse to permit transfer

_____ (xii). statement of the potential legal consequences of an adjudication on future custodial and parental rights

_____ (xiii). statement that tribal officials should keep confidential the information contained in the notice and not reveal it to anyone who does not need the information in order to exercise the tribe's rights under the ICWA

_____ d. If identity or location of a parent or Indian custodian is unknown, notice is sent to the Secretary of the Interior who has been given at least 15 days to locate the parent or custodian [25 USC §1912(a)]

_____ e. If there is any reason to believe a parent on Indian custodian is not likely to understand the content of the notice because of lack of adequate comprehension of written English, copy must be sent to BIA agency nearest the person with request to have notice personally explained in the language best understood by the parent or custodian [44 Fed. Reg. 67583]

_____ 5. Child's tribe(s) given proper notice:

_____ a. If the child may be eligible for membership in more than one tribe, notice must be sent to each tribe [44 Fed. Reg. 67586-7 and DHS SSM XIII-3523]

_____ b. Notice was received by tribe(s) at least 10 days before hearing [25 USC §1912(a)]

_____ c. Notice was sent registered mail, return receipt requested [25 USC §1912(a)]

_____ d. Notice contained the following [44 Fed.Reg. 67588; DHS SSM XIII‑3561]:

_____ (i). child's name, birthdate, and birthplace

_____ (ii). child's tribal affiliation

_____ (iii). if the child may be eligible for membership in more than one tribe, the name of each tribe identified, together with a statement inviting each tribe's views as to which tribe shall be designated the tribe with which the child has the more significant contacts [DHS SSM XIII-3523]

_____ (iv). names of child's parents or Indian custodians, including birthdate, birthplace, and mother's maiden name

_____ (v). copy of the petition or complaint

_____ (vi). name of petitioner

_____ (vii). name and address of petitioner's attorney

_____ (viii). statement of right of parents, Indian custodians, and tribe to intervene in the proceedings

_____ (ix). statement of right of parents and Indian custodians to have

counsel appointed if they are unable to afford counsel

_____ (x). statement of right of parents, Indian custodians, and tribe to have an additional 20 days to prepare, if they request it

_____ (xi). location, mailing address and phone number of the court

_____ (xii). statement of right of parents, Indian custodians, and tribe to petition for transfer of proceedings to tribal court, and their right to refuse to permit transfer

_____ (xiii). statement of the potential legal consequences of an adjudication on future custodial and parental rights

_____ (xiv). statement that tribal officials should keep confidential the

information contained in the notice and not reveal it to anyone who does not need the information in order to exercise the tribe's rights under the ICWA

_____ e. If identity or location of the child's tribe is unknown, notice is sent to the Secretary of the Interior who has been given at least 15 days to locate the tribe [25 USC §1912(a)]

_____ 6. If parents or Indian custodians appear in court without an attorney, they are advised of [44 Fed. Reg. 67588]:

_____ a. Right to appointed counsel

_____ b. Right to request transfer of proceedings to tribal court, or to object to such transfer

_____ c. Right to request additional time to prepare for hearing, and

_____ d. Right to intervene in the proceedings if they are not already parties

_____ 7. Attorneys appointed for:

_____ a. Both parents [25 USC §1912(b)]

_____ b. Indian custodian(s) [25 USC §1912(b)]

_____ (i) B.I.A. notified for payment of costs [25 U.S.C. 21 §1912(b)]

_____ c. Child [25 USC §1912(b)]

_____ 8. If guardian ad litem is appointed, g.a.l. is American Indian and preferably a member of child's tribe; if that is not possible, g.a.l. can demonstrate knowledge and appreciation of child's tribal heritage. [Minn. Stat. §260.155 subd.4]

_____ 9. Tribe, parents and Indian custodians are given full access to court file and to social services file [25 U.S.C. §1912(c); Minn. Stat. §257.352 subd. 2 & §257.353 subd. 2; Minn. Stat. §13.04]

C. TRANSFER OF CASES TO TRIBAL COURT:

_____ 1. Mandatory transfer:

_____ a. Child is ward of tribal court (NOTE: in non-emergency situations the case must be dismissed, not transferred) [25 U.S.C. §1922]

_____ b. Child resides or is domiciled on reservation with jurisdiction over child custody matters (NOTE: in non-emergency situations the case must be dismissed, not transferred) [25 U.S.C. §1922]

_____ c. Either parent, Indian custodian or the tribe request transfer, unless

_____ (i). a parent objects to transfer [25 USC §1911(b)];

__________ (ii). the tribe does not have a tribal court, or declines to take the case [25 USC §1911(b) and 44 Fed. Reg. 67590-1]; or

_____ (iii). any party opposing transfer proves there is "good

cause" not to transfer the case [25 U.S.C. §1911(b); 44 Fed. Reg. 67591 and DHS SSM XIII-3573]

_____ 2. Discretionary transfer: the court may evaluate the following factors in determining whether or not a party opposing transfer has proven there is "good cause" to deny transfer [44 Fed. Reg. 67590-91 and DHS SSM XIII-3573]:

_____ a. Proceedings are at a late stage and the petitioner did not file for transfer promptly after receiving notice of the proceedings

_____ b. The child is over 12 and objects

_____ c. Necessary evidence could not be presented in tribal court without undue hardship to the parties or the witnesses

_____ d. The child is over 5, the parents are not available, and the child has had little or no contact with the tribe or members of the tribe for a significant period of time

_____ e. Socio-economic conditions or the perceived adequacy of tribal or BIA social services may not be considered in a good cause determination

"...we emphasize that it is essential to the purposes of the ICWA to allow appropriate tribal authorities to determine these matters according to tribal law, customs and mores best known to them. ... transfer of jurisdiction over Indian child custody matters to tribal authorities is mandated by the ICWA whenever possible." [Matter of Welfare of B.W., 454 N.W.2d 437 (Minn. App. 1990)]

D. EMERGENCY HOLDS AND EX PARTE CUSTODY:

_____ 1. Placement is necessary to prevent imminent physical damage or harm [25 USC §1922]

_____ a. An expert with substantial knowledge of prevailing social and cultural standards and child-rearing practices within the Indian community testifies or otherwise presents evidence of the imminent harm [But see, dicta in Matter of J.A.S., F.A.B., and C.J.S. Jr., 488 N.W.2d 332 (Minn. App. 1992)]

_____ 2. Tribe has been notified by phone or FAX of emergency hold hearing

_____ 3. Residence and domicile of child are determined

_____ a. If child currently resides or is domiciled on a reservation with child custody jurisdiction, case must be transferred to tribal court or dismissed [25 USC §1922]

_____ b. If child previously resided or was domiciled on a reservation the court shall contact the tribal court to determine if the child is a ward of the tribal court [44 Fed. Reg. 67588; DHS SSM XIII-3572]; if the child is a ward of the tribal court, the case must be transferred to tribal court or dismissed [25 USC §1922]

The emergency hold provision of the ICWA is a narrow exception to a tribe's exclusive jurisdiction over resident member children and non-resident member children who are the subject of a tribal court order. A child detained in an emergency must be returned to the parents or Indian custodians as soon as the emergency abates, or, the state court must promptly transfer the case to tribal court.

_____ 4. Petitions that seek a court order for immediate custody of the child pursuant to Minn. Stat. §260.135 subd.5 or ex parte custody by a non-parent, must be accompanied by affidavit that contains the following information [44 Fed. Reg. 67589]:

_____ a. Name, age and last known address of child

_____ b. Name and address of the child's parents and Indian custodians, if any; if unknown, then a detailed explanation of what efforts have been made to locate them

_____ c. Facts necessary to determine residence and domicile, and whether either is believed to be on a reservation; name of reservation shall be stated

_____ d. Tribal affiliation of child and parents and/or Indian custodian

_____ e. Specific and detailed account of the circumstances that led the agency to seek immediate custody

_____ f. If the child is believed to reside or be domiciled on a reservation where the tribe has exclusive jurisdiction over child custody matters, a statement