Indian child welfare

1. Any out-of-home care placement, which is any action removing an Indian child from his or her parent or Indian custodian, that is, an Indian person who has legal custody of an Indian child under tribal law or custom or state law or to whom temporary physical custody of an Indian child has been transferred by the Indian child's parent, for temporary placement in a foster home or institution, from which the parent or Indian custodian cannot have the Indian child removed on demand, but not including a placement that is based on an act that would be a crime if committed by an adult and not including an emergency removal of an Indian child from his or her parent or Indian custodian to prevent imminent physical harm to the child.

2. A termination of parental rights (TPR) proceeding.

3. A temporary placement of an Indian child in a foster home or institution after a TPR, but prior to or in lieu of an adoptive placement (preadoptive placement).

4. An adoptive placement.

The bill.

This bill incorporates the jurisdictional provisions of ICWA and the minimum standards for Indian child custody proceedings established by ICWA into the provisions of the Children's Code relating to child in need of protection or services (CHIPS), TPR, and adoption proceedings and the provisions of the Juvenile Justice Code relating to juvenile in need of protection or services (JIPS) proceedings, other than proceedings that are based on the commission of an act that would be a crime if committed by an adult and other than an emergency removal of an Indian child from the home of his or her parent or Indian custodian to prevent imminent physical harm to the child.

Jurisdiction Exclusive tribal jurisdiction.

Under ICWA, an Indian tribe has exclusive jurisdiction over an Indian child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the tribe and over an Indian child who is a ward of a tribal court, regardless of the residence or domicile of the Indian child, except when jurisdiction is otherwise vested in the state by federal law. This grant of jurisdiction, however, does not prevent the emergency removal of an Indian child who resides or is domiciled on a reservation, but who is temporarily located off the reservation, from his or her parent or Indian custodian in order to prevent imminent physical damage or harm to the Indian child.

Transfer of proceedings to tribes.

Also, under ICWA, a state court is required to transfer a proceeding involving an out-of-home care placement of, or TPR to, an Indian child who is not residing or domiciled within the reservation of the Indian child's tribe to the jurisdiction of the Indian child's tribe upon the petition of the Indian child's parent, Indian custodian, or tribe, unless a parent of the Indian child objects, the tribal court declines jurisdiction, or the state court finds good cause not to transfer the proceeding. In addition, ICWA permits an Indian child's parent, Indian custodian, or tribe to intervene at any point in an Indian child custody proceeding in state court involving the out-of-home care placement of, or TPR to, the Indian child.

Declination of jurisdiction.

Finally, with respect to jurisdiction over an Indian child custody proceeding, ICWA requires a state court to decline jurisdiction and to forthwith return an Indian child to his or her parent or Indian custodian, unless returning the Indian child would subject the Indian child to a substantial and immediate danger or threat of danger, when a petitioner in an Indian child custody proceeding has improperly removed the Indian child from the custody of his or her parent or Indian custodian or has improperly retained custody after a visit or other temporary relinquishment of custody.

The bill.

This bill incorporates those jurisdictional provisions of ICWA into the Children's Code and the Juvenile Justice Code. The bill also does all of the following:

1. Specifies that the provisions of ICWA and of the Children's Code and Juvenile Justice Code relating to Indian child custody proceedings apply to any Indian child custody proceeding regardless of whether the Indian child is in the custody of an Indian parent, Indian custodian, extended family member, or other person at the commencement of the proceeding and whether the Indian child resides or is domiciled on or off a reservation.

2. Prohibits a court assigned to exercise jurisdiction under the Children's Code and the Juvenile Justice Code (juvenile court) from determining whether those provisions apply to an Indian child custody proceeding based on whether the Indian child is part of an existing Indian family.

3. Permits a juvenile court to find good cause to deny transfer of a proceeding to an Indian child's tribe only if it is shown that: 1) the Indian child is 12 years of age or over and objects to the transfer; 2) the evidence or testimony necessary to decide the case cannot be presented in tribal court without undue hardship to the parties or the witnesses, and the tribal court is unable to mitigate the hardship by making arrangements to receive the evidence or testimony by use of telephone or live audiovisual means, by hearing the evidence or testimony at a location that is convenient to the parties and witnesses, or by use of other means permissible under the tribal court's rules of evidence; or 3) the Indian child's tribe has received notice of the proceeding, the tribe has not indicated that the tribe is monitoring the proceeding and may request a transfer at a later date, and because of gross negligence the tribe has not petitioned for a transfer within three months after receiving notice of the proceeding. The juvenile court may not consider any perceived inadequacy of the tribal social services department or the tribal court of the Indian child's tribe in determining whether good cause exists to deny the transfer.

Out-of-home care placements and TPR proceedings Notice.

ICWA requires a party seeking an out-of-home care placement of, or TPR to, an Indian child in an involuntary proceeding in state court to notify the Indian child's parent, Indian custodian, and tribe, by registered mail with return receipt requested, of the proceeding and of their right to intervene in the proceeding.

Under ICWA, if the identity or location of the parent, Indian custodian, or tribe cannot be determined, notice of the proceeding must be provided to the U.S. secretary of the interior, who then has 15 days after receipt of the notice to provide the notice to the parent, Indian custodian, and tribe. ICWA prohibits an out-of-home care placement or TPR proceeding from being heard until at least ten days after receipt of notice by the parent, Indian custodian, or tribe or by the U.S. secretary of the interior and permits a parent, Indian custodian, or tribe to request up to 20 additional days to prepare for the proceeding.

This bill requires the party seeking an out-of-home care placement of an Indian child in a CHIPS or JIPS proceeding or seeking an involuntary TPR to an Indian child to notify by registered mail, return receipt requested, the Indian child's parent, Indian custodian, and tribe of the first hearing of the proceeding and file the return receipt with the court. The bill requires similar notice to those persons of a change-in-placement proceeding that would remove the Indian child from the home of his or her parent or Indian custodian. For subsequent hearings in a proceeding, notice may be provided by mail, personal delivery, or facsimile transmission, but not by electronic mail. The bill prohibits an initial CHIPS, JIPS, or TPR hearing or a change in placement hearing removing an Indian child from the home of his or her parent or Indian custodian from being held until at least ten days after receipt of notice of the hearing by the parent, Indian custodian, or tribe or until at least ten days after receipt of notice of the hearing by the U.S. secretary of the interior and permits a parent, Indian custodian, or tribe to request up to 20 additional days to prepare for the hearing.

Right to counsel.

Under ICWA, a parent or Indian custodian who is indigent has the right to court-appointed counsel in any proceeding involving the removal of an Indian child from his or her home, placement of an Indian child in an out-of-home care placement, or TPR to an Indian child. This bill incorporates that right into the Children's Code and the Juvenile Justice Code with respect to a parent 18 years of age or over or an Indian custodian. With respect to a parent under 18 years of age, the bill retains current law, which provides for the appointment of counsel without a determination of indigency.

Active efforts and serious damage findings.

ICWA requires a party seeking to effect an out-of-home care placement of, or an involuntary TPR to, an Indian child to satisfy the state court that active efforts have been made to provide remedial services and rehabilitation programs to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. ICWA also prohibits a state court from ordering an out-of-home care placement of, or involuntary TPR to, an Indian child in the absence of a determination, supported by clear and convincing evidence in the case of out-of-home care placement and by evidence beyond a reasonable doubt in the case of TPR, including the testimony of qualified expert witnesses, that continued custody of the Indian child by his or her parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child.

This bill requires a CHIPS or JIPS order or a change-in-placement order removing an Indian child from the home of his or her parent or Indian custodian and placing the Indian child outside the home or a consent decree maintaining an Indian child in a voluntary out-of-home placement to include a finding by the juvenile court or jury, supported by clear and convincing evidence, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian child by his or her parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child and a finding, supported by clear and convincing evidence, that active efforts have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. The bill also requires the juvenile court or jury in an involuntary TPR proceeding to determine if it is proved beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses, that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and if it is proved by clear and convincing evidence that active efforts have been made to prevent the breakup of the Indian child's family and that those efforts have proved unsuccessful. In addition, the bill requires an order extending a CHIPS or JIPS dispositional order for an Indian child who is placed outside the home of his or her parent or Indian custodian and a summary of a permanency plan review for such a child to include a determination as to whether active efforts were made to prevent the breakup of the Indian child's family and as to whether those efforts have proved unsuccessful.

Qualified expert witness.

The bill defines a "qualified expert witness" as a person who is a member of the Indian child's tribe knowledgeable in the tribe's customs relating to family organization or child-rearing practices, a member of another tribe who is knowledgeable in those customs, a professional person having substantial knowledge of those customs, or a layperson having substantial knowledge of those customs; the bill requires a qualified expert witness to be chosen in that order of preference, unless the party calling the qualified expert witness shows that it has made a diligent effort to secure a qualified expert witness from a higher order of preference. The bill also specifies that the evidence of active efforts to prevent the breakup of the Indian child's family must show that there has been an ongoing, vigorous, and concerted level of case work and that the active efforts were made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child's tribe and to utilize the available resources of the Indian child's tribe, tribal and other Indian child welfare agencies, extended family members, other individual Indian caregivers, and other culturally appropriate service providers.

Order of placement preference.

ICWA further requires an Indian child who is accepted for an out-of-home care placement or a preadoptive placement to be placed in the least restrictive setting which most approximates a family and in which the Indian child's special needs, if any, may be met and requires an Indian child to be placed within reasonable proximity to his or her home, taking into account any special needs of the Indian child. ICWA also requires that a preference be given, in the absence of good cause to the contrary, to a placement with a member of the Indian child's extended family, a foster home licensed, approved, or specified by the Indian child's tribe, an Indian foster home licensed or approved by an authorized non-Indian licensing authority, or an institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs, unless the Indian child's tribe has established a different order of preference. ICWA also specifies that the standards to be applied in meeting the placement preference requirements of ICWA are 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 parent or extended family maintains social and cultural ties.

This bill requires the juvenile court, in placing or changing the placement of an Indian child who is in need of protection or services, in placing an Indian child in a preadoptive placement following a TPR, or in placing an Indian child in temporary physical custody, to designate one of the following as the placement for the Indian child, in the order of preference listed, unless the Indian child's tribe has established a different order of preference, good cause is shown for departing from that order of preference or, in the case of placing an Indian child in temporary physical custody, emergency conditions necessitate departing from that order of preference:

1. The home of an extended family member of the Indian child.

2. A foster home or treatment foster home licensed, approved, or specified by the Indian child's tribe.

3. An Indian foster home or treatment foster home licensed or approved by the Department of Children and Families (DCF), a county department of human services or social services (county department), or a child welfare agency.

4. A group home or residential care center for children and youth approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the needs of the Indian child.

The bill requires the juvenile court to designate a placement that is the least restrictive setting that most approximates a family, that meets the Indian child's special needs, if any, and that is within reasonable proximity to the Indian child's home, taking into account the Indian child's special needs. The bill also specifies that the standards to be applied in meeting the placement preference requirements of the bill are the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family members reside or with which the parent or extended family members maintain social and cultural ties.

In addition, the bill requires a determination as to whether there is good cause to depart from the order of placement preference requirements of the bill to be based on: 1) the request of a parent or, if the Indian child is of sufficient age and developmental level to make an informed decision, the Indian child, unless the request is made for the purpose of avoiding the application of the bill and ICWA; 2) any extraordinary physical, mental, or emotional health needs of the Indian child requiring highly specialized treatment services as established by the testimony of an expert witness, including a qualified expert witness; and 3) the unavailability of a suitable placement after diligent efforts have been made to place the child in accordance with those order of placement preference requirements.

Invalid placements.