ICWA: Purposes, ICWA: Purposes, Procedures & Practice Procedures & Practice

ImplicationsImplicationsPrepared by:Prepared by:

Jerry R. Foxhoven,Jerry R. Foxhoven,

Executive Director, Drake Executive Director, Drake Legal ClinicLegal Clinic

Director, Middleton Center Director, Middleton Center for Children’s Rightsfor Children’s Rights

Drake University Law SchoolDrake University Law School

1/4 - 1/3 of All Native American Children Removed.5 X the Rate of Non-Native Families.State Version: Because Federal Law Seemed Ignored.

APPLICATION OF APPLICATION OF ICWA:ICWA:

Must be a “ChildMust be a “Child Custody Proceeding.”Custody Proceeding.”

Must be an “IndianMust be an “Indian Child.”Child.”

““Child Custody Child Custody Proceeding”Proceeding”

Includes:Includes: Foster Care Placement;Foster Care Placement; TPR;TPR; Pre-adoptive Placement;Pre-adoptive Placement; Adoptive Placement.Adoptive Placement.

Excludes:Excludes: Delinquency Cases;Delinquency Cases; Divorce Cases.Divorce Cases.

Must be an “Indian Must be an “Indian Child”Child”

Unmarried.Unmarried. Under 18.Under 18. Member of a RecognizedMember of a Recognized

Tribe (550) or Eligible forTribe (550) or Eligible for

Membership.Membership. Federal: Only 1 Tribe (Most Significant Federal: Only 1 Tribe (Most Significant

Contacts) But Contacts Not Required.Contacts) But Contacts Not Required.

TRIBE’S DETERMINATION IS CONCLUSIVE!TRIBE’S DETERMINATION IS CONCLUSIVE!

Iowa’s Additional Iowa’s Additional Interpretation of “Indian Interpretation of “Indian

Child”Child” More than 1 Tribe Possible.More than 1 Tribe Possible.

Constitutional?Constitutional? ““Child of the Tribe’s Community”.Child of the Tribe’s Community”.

In re A.W.: In re A.W.: UNCONSTITUTIONAL.UNCONSTITUTIONAL.

Determining Status of the Determining Status of the ChildChild

Exclusively a Tribal Question.Exclusively a Tribal Question. If Tribe does not, the Court shall “as If Tribe does not, the Court shall “as

soon as practicable.”soon as practicable.” Deemed to Know if “Court or any Deemed to Know if “Court or any

party”:party”: Was informed.Was informed. Child gives reason to believe.Child gives reason to believe. Child’s residence or domicile isChild’s residence or domicile is

““predominantly Indian community.”predominantly Indian community.”

UnderAge 18

Judicial or Tribal

Determination

A Child Custody

Proceeding

Unmarried

Tribal Member orEligible for Membership

APPLICABLITY OF ICWA

Responsibility: Person Initiating Action.

Registered Mail, Return Receipt Requested.

To: Parents, Indian Custodians AND Tribe.

Alternative: Secretary of Interior.

Notice ParticularsNotice Particulars

Notice ContentsNotice Contents: See 232B.5 (7)-: See 232B.5 (7)-(9).(9).

Hearings:Hearings: All Hearings, Including All Hearings, Including Reviews.Reviews.

When:When: Whenever Applicability Whenever Applicability Discovered.Discovered.

Result:Result: Jurisdictional; Strictly Jurisdictional; Strictly Applied.Applied.

Rights of PartiesRights of Parties

Delay of at Least 10 days After Receipt.Delay of at Least 10 days After Receipt. May Request 20 Days More.May Request 20 Days More. Indigent Parents or Indian Custodians: Indigent Parents or Indian Custodians:

Right to Court Appointed Attorney.Right to Court Appointed Attorney. Review of Documents or Reports.Review of Documents or Reports. Iowa: Child Gets Attorney.Iowa: Child Gets Attorney. Tribe Representation: Need Not be Tribe Representation: Need Not be

Attorney.Attorney.

Transfer to the Transfer to the TribeTribe

Exclusive Jurisdiction if Child on Exclusive Jurisdiction if Child on Reservation.Reservation.

Unless Parent Objects, Court Unless Parent Objects, Court MustMust Transfer if Requested.Transfer if Requested.

Federal Act: Both Parents have Federal Act: Both Parents have VETO power. (Iowa: If inconsistent VETO power. (Iowa: If inconsistent with Act. Constitutional??)with Act. Constitutional??)

Tribe has Tribe has Right to Decline Right to Decline Transfer.Transfer.

Good Cause for Refusal Good Cause for Refusal to Transferto Transfer

Federal and State differ some.Federal and State differ some. But see: In re: J.L., L.R. and S.G. – But see: In re: J.L., L.R. and S.G. –

unconstitutional not to let child object.unconstitutional not to let child object. Bonding with Non-Indian Custodian ≠ Bonding with Non-Indian Custodian ≠

Good Cause.Good Cause. Lateness in Proceedings ≠ Good Lateness in Proceedings ≠ Good

Cause.Cause. Best Interest of Child ≠ Good Cause.Best Interest of Child ≠ Good Cause.

Evidentiary Evidentiary RequirementsRequirements

Foster Care Placement:Foster Care Placement: Clear & Convincing EvidenceClear & Convincing Evidence Testimony of Expert WitnessesTestimony of Expert Witnesses Likely to Result in Physical or Likely to Result in Physical or

Emotional Damage.Emotional Damage.

Evidentiary Evidentiary RequirementsRequirements

T.P.R.:T.P.R.: Beyond a Reasonable Doubt.Beyond a Reasonable Doubt. Testimony of Expert Witnesses.Testimony of Expert Witnesses. Likely to Result in Serious Physical Likely to Result in Serious Physical

or Emotional Damage.or Emotional Damage.

Reasonable vs. Reasonable vs. Active Active EffortsEfforts

Provide Remedial Services & Provide Remedial Services & Rehabilitative Programs.Rehabilitative Programs.

Reflect Prevailing Social & Cultural Reflect Prevailing Social & Cultural Values, Conditions, & Way of Life of Values, Conditions, & Way of Life of Tribe.Tribe.

Utilize Available Resources of Utilize Available Resources of Family, Tribe Indian Social Services Family, Tribe Indian Social Services Agencies, and Individual Indian Agencies, and Individual Indian Caregivers. Caregivers.

Active EffortsActive Efforts

More Than Reasonable Efforts.More Than Reasonable Efforts. Specific Examples in the Code -- Specific Examples in the Code --

232B.5(19).232B.5(19).

Placement PreferencesPlacement Preferences

For Adoptions:For Adoptions: (1) a member of the child’s extended (1) a member of the child’s extended

family; family; (2) other members of the child’s (2) other members of the child’s

extended family;extended family; (3) other Indian families.” (3) other Indian families.”

Placement PreferencesPlacement PreferencesFor For Non-PermanentNon-Permanent Placements: Placements:

(i) a member of the extended family; (i) a member of the extended family;

(ii) a foster home licensed, approved, or (ii) a foster home licensed, approved, or specified by the tribe;specified by the tribe;

(iii) an Indian foster home licensed or (iii) an Indian foster home licensed or approved by an authorized non-Indian approved by an authorized non-Indian licensing authority;licensing authority;

(iv) an institution for children approved (iv) an institution for children approved by an Indian tribe or operated by an by an Indian tribe or operated by an Indian organization.Indian organization.

Previously Submitted Previously Submitted QuestionsQuestions

Should we be concerned about Should we be concerned about ICWA in “DHS Eligible” CasesICWA in “DHS Eligible” Cases?? ICWA ICWA doesdoes apply (active efforts to apply (active efforts to

prevent removal).prevent removal). Notice is not necessary (yet).Notice is not necessary (yet). Since removal is possible, prepare now.Since removal is possible, prepare now.

Previously Submitted Previously Submitted QuestionsQuestions

What happens when ICWA & Safe What happens when ICWA & Safe Haven Collide?Haven Collide? ICWA Always Trumps Everything Else ICWA Always Trumps Everything Else

(Even ASFA).(Even ASFA). Iowa’s Statute Conflicts (voluntary TPR Iowa’s Statute Conflicts (voluntary TPR

& Adoption).& Adoption). Iowa’s Statute Found Unconstitutional. Iowa’s Statute Found Unconstitutional.

((In re: N.N.E.). Page 3 of outline.In re: N.N.E.). Page 3 of outline. Safe Haven Prevails.Safe Haven Prevails.

Previously Submitted Previously Submitted QuestionsQuestions

What is all this talk about the “footnote” What is all this talk about the “footnote” to the to the A.W. A.W. decision?decision?

7 Even in the juvenile court, the county attorney does not have the exclusive 7 Even in the juvenile court, the county attorney does not have the exclusive authority to represent the interests of the State. Section 232.90(2) authority to represent the interests of the State. Section 232.90(2) indicates that in instances of “disagreement between the department [of indicates that in instances of “disagreement between the department [of human services] and the county attorney regarding the appropriate action human services] and the county attorney regarding the appropriate action to be taken [in matters pending before the juvenile court], the to be taken [in matters pending before the juvenile court], the department may request to be represented by the attorney general in department may request to be represented by the attorney general in place of the county attorney.” The statute thus recognizes that, as they place of the county attorney.” The statute thus recognizes that, as they are representatives of the same interests, when conflicts arise between are representatives of the same interests, when conflicts arise between the attorney general and a county attorney regarding the prosecution of a the attorney general and a county attorney regarding the prosecution of a CINA matter, the attorney general shall represent the State’s interest CINA matter, the attorney general shall represent the State’s interest even in the juvenile court.even in the juvenile court.

Previously Submitted Previously Submitted QuestionsQuestions

How Does DHS’ Emphasis on How Does DHS’ Emphasis on Relative Placement Affect ICWA?Relative Placement Affect ICWA? It May HelpIt May Help: Placement with Native : Placement with Native

Family members.Family members. It May HurtIt May Hurt: May Violate Placement : May Violate Placement

Preferences and Active Efforts.Preferences and Active Efforts.

Previously Submitted Previously Submitted QuestionsQuestions

What Constitutes ‘Good Cause’ to What Constitutes ‘Good Cause’ to Deny Transfer to the Tribe?Deny Transfer to the Tribe? Federal Act: 5 specifics (Federal Act: 5 specifics (nonnonexclusive).exclusive). State Act: Only 4 (all on page 11).State Act: Only 4 (all on page 11).

Excludes Lateness in Proceeding.Excludes Lateness in Proceeding. Excludes Objection by Child over 12 (found Excludes Objection by Child over 12 (found

unconstitutional).unconstitutional). Excludes Child over 5 w/o Tribal Contacts.Excludes Child over 5 w/o Tribal Contacts. May be Unconstitutional.May be Unconstitutional.

QUESTIONS???QUESTIONS???

CONTACT INFORMATION:CONTACT INFORMATION:

Jerry Foxhoven, DirectorJerry Foxhoven, Director

Middleton Center for Children’s RightsMiddleton Center for Children’s Rights

Drake University Law SchoolDrake University Law School

2400 University Avenue2400 University Avenue

Des Moines, Iowa 50311Des Moines, Iowa 50311

jerry.foxhoven@drake.edujerry.foxhoven@drake.edu

515.271.2073515.271.2073