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Copyright 2017

The Indian Child Welfare Act in New York State

ICWA IS ABOUT…• The rights of the tribe* –

a separate government

• The preservation of tribes and native culture

• The child’s right to

to political identity

• “Tribe” can also be “band” “nation” “community”

• 25 USC §1903(8)

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• Stop unnecessary removal

of Indian children

• Don’t disconnect child from culture and tribe

• Promote tribal involvement in

Indian children’s lives

WHY?

PRIOR TO ICWA• Cultural bias in removals – Indian children

being removed at 3x the rate of non Indian

• “Save” child by removing from tribal culture, removing from reservations

• Policy of assimilation, boarding schools, Indian infant adoption programs –placement in non Indian families

• Devastating Results- loss of language, loss of connection to extended family, loss of spirituality, customs and traditions, harmed families, did not help

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Requires • Courts to make decisions that reflect values

of connections to tribe and Indian family –requires expert testimony to be heard and considered

• Agency to provide more than diligent efforts – ‘active efforts” to compensate for children having been more likely to be placed outside of the home

• Higher burdens of proof to remove ICWA children and free them for adoption

WHO ARE THE NYS TRIBAL NATIONS?

The Haudenosaunee or Iroquois Nations: Cayuga, Oneida, Onondaga, Saint Regis Mohawk, Seneca, Tuscarora, Tonawanda Band of Seneca

The Algonquain Tribal Nations:

Shinnecock and Unkechang

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NYS History

• Ongoing New York Treaty Obligations

• New York Indian Law

• Statutory Authority of OCFS – SSL § 39

• State Tribal Agreements

• NYS OCFS Bureau of Native American Services – their responsibilities and assistance they can provide to local districts

ICWA25 USC §1901 - 1963

1978Predates all the federal child

welfare laws we all work with everyday

FEDERAL LAW

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NYS LAW

SSL § 2 (35 + 36)

SSL §39

18 NYCRR §431.18

Also relevant – SSL§ 371 (10)(b)

FCA § 1012 (i)

New for ICWA

“Baby Veronica” 133 S. Ct. 2552 (2013)

New Federal Regulations – in effect in 12/16

New Federal Guidelines – in effect in 12/16

Changes to NYS Regulations

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Make Sure:

• Make sure you are using the NEW federal and NYS regulations and the NEW federal Guidelines when you are looking up the law

• Of course case law not really there yet but New Regs and New Guidelines have lots of commentary built in

New Regulations

• If there is reason to think the child may be ICWA, court MUST apply ICWA until there is confirmation that the child is not ICWA FR § 23.107(b)(2)

WOW!

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18 NYCRR §431.18 (e)

• In any VPA, TPR, PINS, Art. 10 or destitute child proceedings, DSS/ACS must ask if child is Indian and must notify the Family Court in writing if there is reason to know child is Indian

• If DSS/ACS finds information later that provides a reason to know then must notify court in wiriting

OK, so what does that mean • Court must ask all participants at the

beginning of the proceeding and record responses on the record, must instruct the parties to inform the court if they receive info

• Confirm on the record due diligence of agency or other party to ID and work with tribes to determine membership/eligibility

• Treat the child as an ICWA child if reason to know

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“Reason to Know” FR§ 23.107(c)• Anyone in case, any attorney, any tribe or

tribal organization or agency says the child is Indian or that they have discovered info that indicates child is Indian

• Child gives the court reason to know

• Court learns that child or parent’s domicile is on a reservation

• Court learns child is or was a ward of a tribal court

• Child or parent has a tribal ID cards

The Key Questions• 1. Is this an ICWA child?

• 2. Is this an ICWA action?

• 3. What is the proper jurisdiction?

• 4. Who needs to be noticed?

• 5. What are the special evidentiary rules if the matter stays in state court?

• 6. What are the placement preferences?

What is new under the new fed regs, new fed guidance, new NYS regs?

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Question 1

• Is this an Indian child under the Indian Child Welfare Act?

• Fed - 25 USC § 1903 (4)

• NY – SSL §2 (35), (36) and 18 NYCRR§431.18

Unmarried, under 21 and came into care before 18 and either

1.Member in a federally recognized or any state recognized tribe or

2. Eligible for membership in such tribe or

3. Biological child of a member of such a tribe and lives on that tribe’s reservation

Who is an ICWA child?NYS SSL §2 (35,36), 18 NYCRR §431.18

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VERY IMPORTANTNYS ADDS to the Federal Definition

• Adds NYS and other states’ recognized tribes

• Does not require member eligible youth to also be bio-child of a member

• Adds youth 18-21 (now added to federal)• Adds bio child of a member of a federally

or state recognized tribe if child lives on reservation or tribal land

Be careful if you read other state’s caselaw or any “national” information

25 USC 1903 (4) is not same as SSL§23(35,36)!!

New Federal Regulations• If child was ICWA before age 18 and the

proceedings continue after age 18, ICWA will continue to apply FR §23.103(d)

• Requires that in every emergency, involuntary or voluntary proceedings, the court must inquire if anyone knows or has reason to know that the child may fit the ICWA definition FR § 23.107(a)

• If it is not clear if child is ICWA, must be diligent efforts with tribes who may be child’s tribe to find out FR § 23.107(b)(1)

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What makes a child a member?

• The tribe or tribal nation decides membership rules – not the US, not DSS/ACS, not the Family Court

• Don’t forget that tribe may use different terms such as enrollment

New regs • In determining that the matter is ICWA, the

state court may not consider if the parents participate in tribal activities, may not consider the relationship of the child with the Indian parent, if the parent has ever had custody or the child’s blood quantum FR§23.103 (c)

• Also says that “continued custody” includes legal or physical custody or both as interpreted by tribal law, custom or state law FR § 23.2

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Bottom Line:

• Only the sovereign entity of the tribe can determine if the child is an ICWA child as only they can determine if child is a member or enrollable as a member and a child of a member

• This is underscored in the new Federal Regs and Guidelines

REMEMBER…

Remember that although there are 9 tribal nations in NYS, there are over 500 other federally recognized tribes in the US, and any child in NYS could be a member or eligible to be a member of those and there are many state recognized tribes that under NYS reg may also mean the child is ICWA

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18 NYCRR §431.18

• New NYS Regs provide much detail about choosing the appropriate ICWA tribe if a child is or could be ICWA due to a relationship with more than one tribe

• Only one tribe can be the ICWA tribe

Question 2

• Is this an action or proceeding that requires the application of the Indian Child Welfare Act?

• 25 USC § 1903 (1)

• NYCRR § 431.18

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TO WHAT LEGAL PROCEEDINGS DOES IT APPLY?

• Child being placed in foster care or with relative due to Art. 10 abuse/neglect matter (or transferred in care) or destitute child

• Child being placed on status offenses (PINs) or voluntary (SSL § 384-a) where child cannot be returned upon demand

• Federal Reg and guidelines - Even if child not yet removed but possible, ICWA should be applied

New Fed Regs• Clarifies that ICWA applies to a placement

that might be “consented to” by the parent or Indian custodian but this “consent” was done under threat of removal by the court or DSS/ACS

• Clarifies that “upon demand” means that a mere verbal request returns the child and if there is anything more needed then a verbal request, the placement is NOT voluntary

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MORE APPLICATIONS

• Child custody or guardianship with non-parent

• Termination or surrender proceedings

• Pre-adoptive placements

• Adoptions—including stepparent, public and private

ICWA does NOT apply to Divorce or Custody Between Two Parents

Juvenile Delinquency Paternity /SupportDomestic Violence

Totally voluntary at will placements

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• Unwed fathers who have not acknowledged paternity

• Non Indian parents who adopted an Indian child

In an ICWA case, the ICWA protections do not apply to

persons who are :

Question 3

• Where is the case heard? Who has jurisdiction? NYS Family Court or a Tribal court?

• 25 USC§ 1911

• NYS SSL §39

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INDIAN TRIBE EXCLUSIVE JURISDICTION

• 25 USC § 1911(a), NYS SSL § 39

• Indian child who is a ward of a tribal court (even if the child lives off reservation)

• Indian child who resides or domiciled on a tribal reservation of tribe who has resumed custody of child welfare proceedings

Mississippi Band of Choctaw v Holyfield

490 US 30 (1989)

New Regs on “Domicle” FR §23.2

• For parent – place where person has been physically present and person regards as home, place that it person’s true, fixed and permanent address, place person intends to return and live indefinitely even if person may be currently residing elsewhere

• For child – the domicle of the child’s parents, if born out of wedlock, domicle of the custodial parent

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New Regs FR §23.110

• If exclusive jurisdiction – state court must notify the tribal court that it will dismiss, must then dismiss and make sure all info is sent to the tribal court such as pleadings and court record

A DSS/ACS CPS worker can do emergency removal of an Indian child who is temporarily located off the reservation BUT then the matter must be returned to tribal

jurisdiction.25 USC § 1922SSL § 39(5)(b)

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NYS allows 30 day emergency period for court to

handle protection

issues where child is

off reservation temporarily

NYS SSL §39, 18 NYCRR §431.18 (h) - now new federal regs say the same

STATE COURT JURISDICTION

ICWA child who does not live on the reservation BUT the case is then subject totransfer to a tribal court or to intervention

by tribe in state court proceeding

So if there is not exclusive jurisdiction to tribal court and it is staying in state court,

then two options are :

Transfer or Intervention

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TRIBAL INTERVENTION

• Tribe’s right –NYS SSL § 39 (7)

• At any time – including appeals

• Parent, agency, child, court cannot prevent

• Even where not going to appear in person

• Not specifically listed for adoption proceedings

• Remember that tribe does not have to intervene or do anything and court must still apply ICWA

Transfers to Tribal Court• Tribe or parent or, as applicable, Indian custodian

can ask for the transfer

• Either parent (tribal or not) can oppose and stop the transfer or tribal court can decline

• State court must transfer if both tribe and parents, or as applicable, Indian custodian, want it and can only retain jurisdiction if there is “good cause” – NYS SSL § 39 (6)

• Court can transfer case but child can stay in DSS/ACS care

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New Fed Regs

• Transfer request can be made orally or in writing FR §23.115(a)

• Available “at any stage” in each proceedings FR §23.115(b)

• Family Court must ensure that the tribal court is notified of the transfer request and may request timely response to question of tribal court declining FR § 23.116

Good Cause to Refuse Transfer? FR §23.118

• Either parent or tribe says they don’t want

• “Advanced Stage” when notice was not provided until advanced stage? NO

• Not sufficient connection to tribe? NO

• Prior proceeding where no request was made? NO

• Transfer might affect placement? NO

• Socio economic conditions or negative perceptions of tribes social services or court? NO

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New Regs on Transfer• Entity seeking refusal of a transfer (either

DSS/ACS or AFC) must state their “good cause” arguments on the record, other parties must be given opportunity to respond FR §23.118 (a)(b)

• Court should state basis if denying transfer on the record FR § 23.118 (d)

• If transferred – all records go to tribal courtFR §23.119

MATTER OF BABY BOY C.27 AD2d 34 (1st Dept. 2005)

Private adoption case—ICWA applied and says tribe should be noticed(not mandated under federal regs) and tribe should be allowed to appear to make sure placement procedures appropriate (also said “existing Indian family” exception will not be applied, which is now prohibited by new Fed regs as well)

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Question 4• Who gets noticed?

• 25 USC§ 1912

• FR § 23.111- in an involutary foster care placement or TPR

• 18 NYCRR 431.18 (c) adds PINs and destitute child

• The parents or Indian custodian, OCFS, the child’s tribe

• Local BIA FR § 23.11 (a) (Nashville for us)

• Registered mail with return receipt requested OR – certified mail with return receipt requested FR § 23.111(c) (can also do electronic or personal, but not as substitute

New Regs FR § 23.111 (e) • If identity or location of parents, Indian

custodian or tribe cannot be ascertained but there is reason to know child is Indian, notice is to be sent to the Regional Director in each BIA Regional office with as much info about the child’s ancestors as possible - and to OCFS 18 NYCRR 431.18(c)

• BIA Regional office will not determine if child is ICWA but will make reasonable and documented efforts to help locate the child’s tribe, the parents/the Indian custodian

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New Regs• Party seeking placement sends the notices

• Court who knows or has reason to know child is Indian must ensure that party has sent notice by copies filed with the court and the return receipt

• Must include list of info from the regs, copies of pleadings, list of rights

• If tribe, parent or Indian custodian cannot be IDed or located – notice must be sent to regional BIA office and NYS OCFS with as much info as possible

Notice• Formal notice must be done exactly as law

describes – follow NYS Reg as well

• Each “new” proceeding requires notice

• Notice goes to all parents (even if not tribal) and Indian custodians

• NYS VPAs do not require the formal notice but they are foster care placements, so other elements of ICWA apply, so we have to communicate with tribe to determine if child is ICWA

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Question 5

What are the special evidentiary rules that have to be applied if the matter stays in Family Court?

New Clarity • Which ICWA rules apply in what

proceedings? Three types of proceedings:

• Emergency- FR § 23.2 (d) – this is our “removal/remand” procedures

• Voluntary - child returned by parent simply asking, no procedures or conditions, not due to threat of involuntary – a surrender for example (NOT our VPAs! – they would be considered “involuntary”)

• Involuntary FR § 23.2 (i)

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Emergency Proceedings ISSUES• 25 § 1912 (d) and (e) and FR § 23.113

• “Active efforts” – New Regs give examples, stress actually accessing services and using culturally appropriate services

• Court must find that emergency placement is needed to prevent imminent physical damage or harm

• Must cease placement immediately if no longer necessary to prevent harm - new hearing if there is new evidence re this

Emergency Proceedings

• Can place for up to 30 days using proper NYS procedures but then must apply the ICWA procedures – meaning the notice, the higher burden of proof, the QEW, placement preferences

• WHEN does an action move from an emergency proceeding to a placement proceeding where all ICWA rules apply?

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• What happens if DSS/ACS does get an emergency removal but there is no FF for well over 30 days? (Which is almost always in NYS!)

• What happens if you do not know the child is ICWA for longer than 30 days? –Remember court is supposed to be following ICWA if there is reason to believe child may be ICWA, until it is determined child is not ICWA

Extraordinary Circumstances FR §23.113 (e) - after 30 days

• 1.Restoring child to parent or custodian would subject the child to imminent physical damage or harm AND

• 2. The state court has been unable to transfer the matter to tribal jurisdiction AND

• 3. It has not been possible to initiate a child custody proceeding – ie a foster care placement, TPR, preadoptive or adoptive

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Emergency Proceedings –CAVEAT!!

• If you have reason to think it may be an ICWA case:

1. TELL!!

2.Tribe SHOULD be notified even informally

3. Placement priorities should be strongly considered so that you don’t have to move the child unnecessarily

HOW LONG should it be considered an “emergency” ?

What are “active efforts”?• Efforts by the DSS/ACS to provide

remedial services and rehabilitative programs that have not been successful

• MORE than “reasonable efforts”

• CLEARLY meant to include working with tribe and seeking tribal resources

• New Regulations say must be done up to start of proceedings – gives examples –requires that court must document them on the record

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NYS Reg 431.18 (d)

• DSS/ACS must tell court in all VPAs, TPRs, PINS, Art. 10s and destitute child proceedings that active efforts were made to attempt to prevent removal – tailored to the facts of the case and must be documented in the child’s file

Of course, NYS law and regulations also require that there be “reasonable efforts” made to prevent a placement of an ICWA child in Art. 10, voluntary, and JD or PINs proceedings as per each FCA Article

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NYS

• OK, so the “emergency period” has ended, now what is required in the involuntary procceding?

Involuntary Placement of the Child in an Art. 10 (even where

parent consents)/ VPA/ PINs/destitute child

ICWA REQUIRES

• Proof of Active Efforts

• Qualified Expert Witness

• Likely to result in serious emotional or physical damage if child remains on a clear and convincing level of proof

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Involuntary Placement of Child or TPR – FR § 23.121

• Must show causal connection between conditions in the home and that continued custody by the parent or Indian custodian would result in serious emotional or physical damage

• Poverty or age of custodian without proof of a causal connection is not enough

When are ICWA experts (QEWs) used?

Required to testify where ICWA child and requested foster care placement or a TPR

Possibly advise agency, tribe and court where ICWA child on placement decisions

Can ask the tribe, or the local BIA regional office for help in locating a QEW

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Who is this QEW? • FR § 23.122, 18 NYCRR §431.18

• Person should be qualified to testify as to prevailing social and cultural standards of the child’s tribe and must be qualified to testify on the issue whether continued custody likely to result in serious emotional or physical damage

• Can be designated by the child’s tribe

• Cannot be the state social worker regularly assigned to the Indian child’s matter (not DSS/ACS or private foster care agency)

Who is a QEW?

18 NYRR § 431.18(a)(5)

NYS reg gives you examples of QEWs

Be careful if you read any other state’s case law or if you refer to national materials

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Who would be a good “qualified expert witness”?

NYS regs use same description above and also say that a person will be most likely to meet the requirements where:

Member of Indian child’s tribe who is recognized by tribal community as knowledgeable in tribal customs as they pertain to family organizations and childrearing practices

18 NYCRR §431.18 (a)(5)(i)

OR is :

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

18 NYCRR §431.18 (a)(5)(ii)

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OR is -A professional person having substantial

education and experience in the area the provision of services to Indian children and their families 18 NYCRR §431.18(a)(5)(iii)

Remember person should be able to testify as to prevailing social and cultural standards of the child’s tribe and testify to continued custody likely to result in serious emotional or physical damage

Who has to offer the expert’s testimony? Is it paid for? Can there be more than one witness? If there is no objection to what is occurring, will there still have to be a QEW testifying?

Court should determine if offered person is proper QEW and make that ruling

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TPR ISSUES• ASFA applies – including

the exceptions!

• 25 USC § 1912 (f)

• NYS TPR grounds AND

• QEW testimony

• Return home would likely result in serious emotional or physical damage by proof beyond a reasonable doubt

• Active efforts – must be documented by the court

“Voluntary Placement” or Surrender

• Definition of “voluntary” – remember our VPAs would not be voluntary under fed law and neither are “consents” in Art. 10s

• Notice is not required by federal law

• HOWEVER, still must determine if child is ICWA so must communicate with tribe to find out if child is ICWA and if parent wants anonymity, there is still an obligation to find out if child is ICWA

• § 23.107 (d)

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SURRENDER ISSUES FR § 23.125

• Consent/Surrender must be in writing and before a family court judge (or surrogate) with record kept

• Judge’s certificate, language of parent

• More than ten days after the birth for a surrender FR §23.125(e)

• Explain terms, consequences and limits on the record

• Can be in closed court if parent wants FR §23.125(d)

Surrender• Can revoke surrender/consent to an TPR or

consent to an adoption at any time before adoption occurs, can file a written document or testify to revoke --child is to be returned §§ 23.125 (b)(2)(ii)(iii), 23.128

• Of course could be underlying court order, perhaps a perm order on a freed child – but essentially this means all surrenders of ICWA children are revocable

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ADOPTION ISSUES

• Adoption can be vacated on fraud/duress grounds-, notice, hearing-return to parentFR §23.136 (not the same as NYS DRL!)

• No adoption can be vacated after two years

• Where a parent who is consenting to an adoption wants anonymity, court and tribe must keep info confidential, but still must communicate with each other about ICWA,

FR §§23.107 (d), 23.124 (b)

• What if an adoptive parent later surrenders an ICWA child?

There can be a petition to return the child to the birth parents- 25 USC § 1916

Court must give notice to birth parent if adoption of an ICWA child is vacated or set aside or adoptive parent surrenders child, give info to allow birth parent to participate – this could be waived and waiver can be revoked FR § 23.139

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Question 6

• What are the placement preferences?

• Placement preferences apply in all foster care, preadoptive or adoptive placements –including voluntary (again for NYS this would mostly be surrenders and adoptions) but if parent wants anonymity, the court can take that into account in looking at the preferences FR § 23.129

Concepts• Placements are listed in descending order

• Don’t move to the next one without documenting reason moving to next level in court order

• There are good cause arguments

• Tribe can change preferences and child and parent’s positions can be considered

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FOSTER CARE PLACEMENTS• Family setting, sibling attachment

• Reasonable proximity to their home, family, sibs

• Special needs

• Preferences - 25 USC § 1915 (b), FR §23.131, 18 NYCRR §431.18 (f)– 1.extended family – Indian and non Indian family

– 2.foster home licensed, certified, approved, or specified by tribe

– 3.Indian foster parents licensed or certified or approved by state/county/ authorized agency – Fed Reg says at least one of the foster parents must be Indian as per ICWA definition FR § 23.2(h)

– 4. foster care facility approved/operated by a tribe

Foster Care Placements FR §23.131 (c), (d)

• Tribal resolution can establish different preferences and they would then apply provided it is least restrictive and appropriate to the child’s needs

• May consider the preference of the child or the parent

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ADOPTIVE PLACEMENTS• Preferences 25 USC §1915 (a), FR§ 23.130,

18 NYCRR §431.18 (g)

• 1. Extended family members – Indian and non Indian family members

• 2. Members of child’s tribe

• 3. Other Indian families

• If tribe has a resolution for different order of preferences, tribal preferences will apply

• Court may, where appropriate, consider the preference of the parent or child !

Can you deviate from placement preferences?

• FR § 23.132

• Party who wants to deviate must state why/reason for deviation on the record, in court or in writing to all the parties and that party has burden of proof by clear and convincing evidence that there is good cause to deviate

• Court that is going to deviate must state good cause on the record

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Fed/NYS regs – Can you deviate?• Tribe has described different preferences by

tribal resolution• Parent requests anonymity in a voluntary

surrender, court must weigh –FR§ 23.129

• Request of parent after all reviewing options for placement

• Request of mature child• Presence of sibling attachment • Extraordinary needs of the child • Nothing available at each level after

diligent search, active efforts to locate

New Regs – Can you deviate?

• When determining that there is no suitable placement at a level of preference must conform to the prevailing social and cultural standards of the Indian community of the parents

• Good cause to deviate must include that a diligent search was conducted to find suitable placement within the preferences but none was located

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Not Good Cause to Deviate-

• “Ordinary” bonding with a placement family that did not comply with ICWA –NO!

• Court may not deviate due to socio-economic differences in placement alternatives

Fed Regs FR §23.133, 23.134

• State court should allow persons to participate by telephone, video conference

• Every party to an emergency proceeding a foster care placement or a TPR has right to examine all documents filed in court

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Rights of Adult Adoptees to Adoption Records

25 USC § 1917 and FR § 23.138•Adoptee over 18 can ask court who did adoption to provide information that would show possible tribal affiliations and state court must inform adoptee.

•State Court must provide a copy of an order regarding a voluntary or an involuntary adoption or adoptive placement of an ICWA child within 30 days to BIA in DC

•The BIA will now have central files of state adoptions of Indian children

FR-§ 23.141

• States must maintain records of all voluntary and involuntary placements in foster care, placements in preadoptive homes, and adoptive placements of ICWA children and must make those records available within 14 days to the child’s tribe or the BIA if they ask for the records.

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FAILURE TO FOLLOW ICWA?• Parent, Indian custodian or tribe may petition

to invalidate a state court order which was in violation of 25 USC §1911- jurisdiction, §1912 – notice, timing, rules of evidence or §1913 – surrenders/consents –

• FR § 23.137 child can also petition to invalidate and person who moves to invalidate, need not prove that his/her rights were violated, only that the law was violated

ASK and TELL !

• Caseworkers, court and attorneys should make it routine to ask repeatedly

• ICWA findings at every stage clearly documented in court order

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NEXT STEPS

• Training on new law, good time to refresh on all concepts – today’s presentation is a “mini” one – solid presentation takes ½ day – ask for training for your agency, attorneys, court

• Agency and Court forms and procedures have to change