ICWA Home.. U.S.C. ICWA TEXT... ICWA Case Law ..U.S. 14th Amendment

This Page is going to be under construction for quite awhile. Please be patient as we allow it to remain online while we work. Although it is no where near in order yet, we know that this information is very important to certain families, so we want them to be able to get what they can as they can.....

Aug. 29, 2006

... mostly specific to Minnesota. Especially with good cause to deviate from placement
preferences, there are significant differences state to state.

Key Terms: Determination That

Child Is An Indian

. The determination by a tribe that a

child is or is not a member of that tribe,

is or is not eligible for membership in

that tribe, or that the biological parent is

or is not a member of that tribe is

conclusive.

Determining That Child Is An

Indian

. Circumstances under which a state court has reason

to believe a child is an Indian include:

. Any party to the case informs the court that the child is and

Indian child.

. Any agency involved in child protection services or family

support has discovered information which suggests that the

child is an Indian child.

Determining That Child Is An

Indian

. The child who is the subject of the proceeding gives

the court reason to believe he or she is an Indian

child.

. The residence or the domicile of the child, biological

parents, or Indian custodian is known by the court to

be or is shown to be a predominantly Indian

community.

. An officer of the court involved in the proceeding has

knowledge that the child may be an Indian child.

Determining That Child Is An

Indian

. SNR decision: tribal determination of Indian child’s

eligibility for membership, made by person

authorized to make eligibility determinations, is

conclusive, even where child is not be eligible for

enrollment. In re Welfare of S.N.R., 617 N.W.2d 77

(Minn. App. 2000).

. Repeat this phrase: eligibility for membership

Determining That Child Is An

Indian

. Enrollment is not always required in order to

be a member of a tribe. Some tribes do not

have written rolls. Others have rolls that list

only persons that were members as of a

certain date. Enrollment is the common

evidentiary means of establishing Indian

status, but it is not the only means nor is it

necessarily determinative. United States v.

Brocheau, 597 F. 2nd 1260, 1263 (9th Cir.

1979)

Determination That Child Is an

Indian

. What if you think child is Indian but the Tribe

has no records of eligibility (or won’t say)?

. Have Court direct inquiry to BIA.

Determination of Indian Child’s

Tribe

• Where an Indian child is a member of

more than one tribe or is eligible for

membership in more than one tribe but

is not a member of any of them, the

court is called upon to determine with

which tribe the child has more

significant contacts.

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Determination of Indian

Child’s Tribe

• What are “significant contacts?”

. length of residence and frequency of contacts

with each tribe

. child’s participation in activities of each tribe

. residence on tribe’s reservation by the child’s

relatives

. tribal membership of parent

. the child’s self identification.

Determination of Indian

Child’s Tribe

Why does it matter which tribe is the Indian

child’s tribe?

–Notice goes to right tribe

–Qualified expert witness

–Jurisdiction to transfer

–Placement preferences

Types of ICWA Cases: four

categories

(i) ''foster care placement'' which shall mean any

action removing an Indian child from its 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.

– ICWA applies to some 3rd party ICWA applies to some 3rd party

custody disputes (257C) in family court. custody disputes (257C) in family court.

Types of ICWA Cases: four

categories

(ii) ''termination of parental rights'' which shall

mean any action resulting in the termination of the

parent-child relationship.

Types of ICWA Cases: four

categories

(iii) ''preadoptive placement'' which shall mean 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.

Types of ICWA Cases: four

categories

(iv) ''adoptive placement'' which shall mean the

permanent placement of an Indian child for adoption,

including any action resulting in a final decree of

adoption.

Types of ICWA Cases: four

categories

ICWA shall not apply to;

“a placement based upon an act which, if committed

by an adult, would be deemed a crime…

or upon an award, in a divorce proceeding, of custody

to one of the parents.” 25 U.S. C. § 1912.

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So ICWA Applies, What Then?

Tribe and parents get notice:

In any involuntary proceeding in a State court,

where the court knows or has reason to know that

an Indian child is involved, the party seeking the

foster care placement of, or termination of parental

rights to, an Indian child shall notify the parent or

Indian custodian and the Indian child's tribe, by

registered mail with return receipt requested, of

the pending proceedings and of their right of

intervention. 25 U.S.C. 1912 (a).

So ICWA Applies, What Then?

Unknown parent or tribe?

If the identity or location of the parent or Indian

custodian and the tribe cannot be determined,

such notice shall be given to the Secretary in

like manner, who shall have fifteen days after

receipt to provide the requisite notice to the parent

or Indian custodian and the tribe.

“Parent”: to have standing, paternity must

be acknowledged or established.

So ICWA Applies, What Then?

Notice timelines:

No foster care placement or termination of

parental rights proceeding shall be held until at

least ten days after receipt of notice by the parent

or Indian custodian and the tribe or the Secretary:

Provided, That the parent or Indian custodian or

the tribe shall, upon request, be granted up to

twenty additional days to prepare for such

proceeding.

So ICWA Applies, What Then?

Notice timelines: Significance for GAL

– Can’t hold admit/deny hearing at EPC

– Admit/deny held at least 10 days after notice

So ICWA Applies, What Then?

Transfer to Tribal Court:

“…the court, in the absence of good cause to the

contrary, shall transfer such proceeding to the

jurisdiction of the tribe, absent objection by either

parent, upon the petition of either parent or the Indian

custodian or the Indian child's tribe….” 25 U.S.C. §

1911 (b)

So ICWA Applies, What Then?

Transfer to Tribal Court--Good cause to not

transfer:

• The proceeding at an advanced stage.

• The Indian child over 12 objects.

• The evidence could not presented in the

tribal court without undue hardship.

• The parents of child over 5 not available

and the child has no contact with the

child’s tribe.

So ICWA Applies, What Then?

Transfer to Tribal Court––Not good reasons to

oppose transfer:

– Judgments about adequacy of tribal services

– Judgments about perceived fairness of tribal

courts

So ICWA Applies, What Then?

Standards of Evidence: “Active efforts”

Any party seeking to effect a foster care

placement of, or termination of parental rights

to, an Indian child under State law shall satisfy

the court that active efforts have been made

to provide remedial services and rehabilitative

programs designed to prevent the breakup of

the Indian family and that these efforts have

proved unsuccessful. 25 U.S. C. § 1912 (d).

So ICWA Applies, What Then?

Standards of Evidence: “Active efforts”

• Includes identifying extended family members

as resources for permanent legal custody.

Matter of Welfare of M.S.S., 465 N.W.2d 412

(Minn. App. 1991)

• Includes identifying and using available tribal

resources. Id.

So ICWA Applies, What Then?

Standards of Evidence: “Active efforts” ( or

“reasonable efforts plus”)

(1) relevant to the safety and protection of the child;

(2) adequate to meet the needs of the child and

family;

(3) culturally appropriate;

(4) available and accessible;

(5) consistent and timely;

(6) realistic under the circumstances.

So ICWA Applies, What Then?

Standards of Evidence: focus is on objective

evidence of harm in foster care (CHIPs)

adjudications

No foster care placement may be ordered in such

proceeding in the absence of a determination,

supported by clear and convincing evidence, including

testimony of qualified expert witnesses, that the

continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or

physical damage to the child. 25 U. S. C. § 1912 (e)

So ICWA Applies, What Then?

Standards of Evidence: focus is on objective

evidence or harm in terminations:

No termination of parental rights may be ordered in such

proceeding in the absence of a determination, supported

by evidence beyond a reasonable doubt, including

testimony of qualified expert witnesses, that the

continued custody of the child by the parent or Indian

custodian is likely to result in serious emotional or

physical damage to the child. 25 U.S.C. § 1912 (f).

So ICWA Applies, What Then?

Evidence of harm not--by itself:

• community or family poverty

• crowded or inadequate housing

• alcohol abuse

• or nonconforming social behavior

BIA Guidelines, D.3 (c) Standards of Evidence.

So ICWA Applies, What Then?

Evidence of harm is found when:

To be clear and convincing, the evidence

must show the existence of particular

conditions in the home that are likely to

result in serious emotional or physical

damage to the particular child who is the

subject of the proceeding. The evidence

must show the causal relationship

between the conditions that exist and

the damage that is likely to result.

So ICWA Applies, What Then?

Who is a “qualified expert witness”?

(i) A member of the Indian child’s tribe

who is recognized by the tribal

community as knowledgeable in tribal

customs as they pertain to family

organization and childrearing practices.

So ICWA Applies, What Then?

Who is a “qualified expert witness”?

(ii) Any 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

childrearing practices within the Indian

child’s tribe.

So ICWA Applies, What Then?

Who is a “qualified expert witness”?

(iii) A professional person having

substantial education and experience

in the area of his or her specialty.

T/F Trick question: does this witness need any

familiarity with cultural standards and child-rearing of

the child’s tribe?

So ICWA Applies, What Then?

Who is a “qualified expert witness”?

"The DHS manual adds to paragraph (iii) the

requirement that the professional have

'substantial knowledge of prevailing social and

cultural standards and child-rearing practices

within the Indian community.' " Matter of Welfare

of B.W., 454 N.W.2d at 442. In the Matter of the

Custody of S.E.G., 521 N.W. 2d 357 (1994).

So ICWA Applies, What Then?

When is “qualified expert witness” needed?

Absent extraordinary circumstances, temporary

emergency custody shall not be continued for

more than 90 days without a determination by

the court, supported by clear and convincing

evidence and the testimony of at least one

qualified expert witness, that custody of the

child by the parent or Indian custodian is likely

to result in serious emotional or physical

damage to the child.

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ICWA Applies: consent issues

. Voluntary consents to a foster care placement or to termination

of parental rights:

…shall not be valid unless executed in writing and recorded

before a judge of a court of competent jurisdiction and

accompanied by the presiding judge's certificate that the terms

and consequences of the consent were fully explained in detail

and were fully understood by the parent or Indian custodian.

The court shall also certify that either the parent or Indian

custodian fully understood the explanation in English or that it

was interpreted into a language that the parent or Indian

custodian understood. Any consent given prior to, or within ten

days after, birth of the Indian child shall not be valid. 25 U.S.C.

§ 1913(a)

ICWA Applies: consent issues

. In any voluntary proceeding for termination of

parental rights to, or adoptive placement of,

an Indian child, the consent of the parent

may be withdrawn for any reason at any

time prior to the entry of a final decree of

termination or adoption, as the case may be,

and the child shall be returned to the parent.

25 U.S.C. § 1913 (c).

ICWA Applies: Placement

Preferences

In any foster care or preadoptive placement, a

preference shall be given, in the absence of good cause

to the contrary, to a placement with -

(i)a member of the Indian child's extended family;

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

the Indian child's tribe;

(iii) an Indian foster home licensed or approved by an

authorized non-Indian licensing authority; or

(iv) an institution for children approved by an Indian

tribe or operated by an Indian organization which has

a program suitable to meet the Indian child's needs.

25 U.S.C. § 1915 (b).

ICWA Applies: Good Cause

Deviations

Good cause not to follow the order of preference set out above

shall be based on one or more of the following considerations:

. (i) The request of the biological parents or the child

when the child is of sufficient age.

. (ii) The extraordinary physical or emotional needs of the

child as established by testimony of a qualified expert

witness.

. (iii) The unavailability of suitable families for placement

after a diligent search has been completed for families

meeting the preference criteria.

When ICWA wasn’t applied but

should have been:

. § 1914. Petition to court of competent jurisdiction to

invalidate action upon showing of certain violations

Any Indian child who is the subject of any action for

foster care placement or termination of parental rights

under State law, any parent or Indian custodian from

whose custody such child was removed, and the Indian

child's tribe may petition any court of competent

jurisdiction to invalidate such action upon a showing

that such action violated any provision of sections

1911, 1912, and 1913 of this title.

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LAW OFFICES OF
CALIFORNIA INDIAN LEGAL SERVICES
787North Main St., Suite D 609 S. Escondido Blvd. 324 F Street, Suite A 510 16th St., Fourth Floor
Bishop, CA 93514 Escondido, CA 92025 Eureka, CA 95501 Oakland, CA 94612
(760) 873-3581 (760) 746-8941 (707) 443-8397 (510) 835-0284
INDIAN CHILD WELFARE ACT OUTLINE
MINIMUM FEDERAL STANDARDS
STATE COURT PROCEEDINGS
April 2002

1§1903 (3) & (4) define the terms "Indian" and "Indian child", respectively. However, it should
be noted that §1934 contains a second and broader definition of Indian which is applicable to
§1932 & §1933 of the Act. Finally, §1912(a) creates what is essentially a third definition. One
need only have "reason to know" an Indian child is involved to activate the notice requirements
of §1912 (a). California Rules of Court, rule 1439(e) further specifies that the Act shall be
applied to the entire proceeding if the court has reason to know the child may be an Indian child,
however, only notice and further inquiry is required where the child may only possess Indian
ancestry.
1
A. Initial Determinations
1. Is the child an Indian? 25 U.S.C. §1903(4)1
a. The child must be unmarried and under 18.
b. The child must be 1) a member of an Indian tribe or 2) eligible for membership in
an Indian tribe and the biological child of a member of an Indian tribe.
[Enrollment not necessarily required for membership. In re Junious M. (1983) 144
Cal.App.3d 786,796.]
c. The juvenile court and county welfare department have an affirmative duty to
inquire whether a child is or may be an Indian child. (Cal. Rules of Court, rule
1439(d) [The California Rules of Court have the force of law. In re Richard S. 54
Cal.3d 857,863.]; Manual of Policies and Procedures, California Department of
Social Services, §31-515.1.11.111.)) The determination of whether a child is
Indian is not a racial one, but rather a question of political status. (Morton v.
Mancari (1974) 417 U.S. 535.) Tribal membership is an exclusively tribal
question. (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49.) A tribe’s
determination that a child is an Indian child is conclusive. (In re Junious M.,
supra, 144 Cal.App.3d at p. 788; Guidelines for State Courts: Indian Child
Custody Proceedings (44 Fed.Reg. 67584, 67586 (Nov. 26, 1979.))
d. One of the primary purposes of giving notice to the tribe is to enable the tribe to
determine whether the child is an Indian child. Where the agency failed to
provide notice, the fact the child is not enrolled until late in a proceeding, does not
preclude application of the Act to the entire proceeding. Further, a letter from a
former chairman, not accompanied by a tribal resolution and predating the birth of
the child does not satisfy the affirmative duty to inquire regarding a particular
child, nor does it constitute tribal participation or an express indication of no tribal
2
interest in the proceeding. (In re Desiree F. (2000) 83 Cal.App.4th 460; 99
Cal.Rptr.2d 688.) But see, In re William G. (2001) 89 Cal.App.4th 423, 107
Cal.Rptr.2d 436. [Failure to apply the Act in the absence of reason to know the
child is Indian is not a violation of the Act where the court proceeds to apply the
Act to the proceeding once Indian heritage is known.]
e. Even if the tribe does not respond to notice, California Rules of Court, rule
439(c)(3) and (e) specify that the Act shall be applied to the entire proceeding if
the court has reason to know the child may be an Indian child, however, only
notice and further inquiry is required where the child may only possess Indian
ancestry. (Cal. Rules of Court, rule 1439(e).)
f. The Bureau of Indian Affairs (BIA) of the Department of the Interior has
promulgated federal guidelines for state court ICWA proceedings. (44 Fed.Reg.
67584 - 67595 (Nov. 26, 1979.)) These are entitled to judicial deference. (In re
Junious M., supra, 144 Cal. App.3d at p. 792, fn. 7; In re Kahlen W. (1991) 23
Cal.App.3d 1414, 1422, fn. 3.) Absent a contrary determination by the tribe, a
determination by the BIA that a child is or is not an Indian is conclusive. (BIA
Guidelines, supra, 44 Fed. at p. 67586; Cal. Rules of Court, rule 1439(e) and
1439(g)(4).) In the absence of a tribal or BIA determination, it is up to the juvenile
court, not DSS or its social workers, to determine whether the Act applies under a
given set of circumstances. (In re Marinna J. (2001) 90 Cal.App.4th 731.)
g. The tribe must be a federally recognized Indian tribe, group or community. [Eligible
for federal services provided to Indians]. (25 U.S.C. §1903(8).) See 65 Fed.Reg.
13298 (Mar. 13, 2000)]; In re Wanomi P. (1989) 216 Cal.App.3d 156; In re John V.
(1992) 5 Cal.App.4th 1201.)
2. Is this child custody proceeding covered by the ICWA? 25 U.S.C. §1903(1)
a. The Act covers:
1.) Foster care placements, which is defined in the ICWA to mean any
temporary placement where the child need not be returned upon demand,
and includes placement in a foster home or institution or the home of a
guardian or conservator. All California guardianship proceedings meet
this definition and are covered by the Act. (E.g., Welf. & Inst. §§300 et
seq., §601, §636 [re: “602 placements”], §727 and §728; Prob. §1500 et
seq., §2112.)
2.) Termination of parental rights. (E.g., Fam.C. §7802 et. seq.; Fam.C.
§§7660-7664, §8605; Welf. & Inst. §366.26, §727.31, §727.4.)
3.) Pre-adoptive placement in a home or institution after termination of
parental rights but before or in lieu of adoptive placement.
4.) Adoptive placement. (Fam. C. §§8500 et. seq.; Welf & Inst. §366.26,
§727.31.)
b. ICWA coverage exceptions:
3
1.) The ICWA does not cover an award of custody to one parent as part of a
divorce proceeding. (25 U.S.C. §1903(1).) However, action by one parent
to terminate parental rights of other parent is covered by the Act. (In re
Crystal K. (1990) 226 Cal.App.3d 655 (review denied Mar. 14, 1991); In
re Adoption of Lindsay C. (1991) 229 Cal.App.3d 404.) Custody dispute
between unmarried parents may be covered. (Appeal of William Stanek, 8
Indian L.Rep.5021 (April 1981)(decision of the Commissioner of Indian
Affairs.))
2.) A placement based on an act which would be a crime if committed by an
adult.
i.) Juvenile delinquency matters are not generally covered. (i.e.,
Welf. & Inst. §§602 et. seq.) Status offenses, such as truancy are
covered. (i.e., Welf. & Inst. §§601 et. seq.)
a.) California Rules of Court, rule 1410(b), entitles parents,
Indian custodians, the child’s tribe (and counsel) to be present in
all juvenile proceedings, including §602 proceedings.
ii.) §602 proceedings are covered in certain circumstances:
a.) When a placement in a §602 case is made for the child’s
welfare after reasonable efforts have been made to prevent the need
for removal of the child from his or her home, as required to
qualify for federal IV-E funds, i.e, federal welfare aid to fund the
cost of the child’s placement. Such placements would include
those made to relatives, foster care or licensed group homes and
treatment facilities. (Welf. & Inst. §§636, 727 et seq.)
b.) When the juvenile court grants, or modifies a guardianship
pursuant to Welf. & Inst.Code §728, or pursues termination of
parental rights pursuant to Welf. & Inst. Code §727.31.
c. Existing Indian family exception. A split in authority developed regarding the
judicially created “existing Indian family doctrine.”
1.) The judicial split. Other than as expressly excepted, intra-family, private
child custody actions and actions involving children who may not be part
of an existing Indian family are covered. (See In re Junious M., supra; 144
Cal.App.3d 786; In re Crystal K., supra, 226 Cal.App.3d 655; Adoption of
Lindsay C., supra, 229 Cal.App.3d 404; In re Alicia S. (1998) 65
Cal.App.4th 79, 76 Cal.Rprt.2d 121; Cal.Rules of Court, rule 1439.) -Vrs-
Under the existing Indian family doctrine, three California courts refused
to apply the ICWA unless the Indian child or at least one parent has a
significant social, cultural or political relationship with Indian life. This is
a factual determination for the trial court. (In re Alexandria Y. (1996) 45
Cal.App.4th 1483, 53 Cal.Rptr.2d 679; In re Bridget R. (1996) 41
Cal.App.4th 1483, 49 Cal.Rptr.2d 507; In re Crystal R. (1997) 59
Cal.App.4th 703., 69 Cal.Rptr.2d 414.; In re Derek W. (1999) 86 Cal.
Rptr.2d 742; In re Santos Y. (2001) 92 Cal.App.4th 1274.)
4
2.) Legislative action. The California legislature rejected the existing
Indian family doctrine in AB 65. The bill, effective September 1, 1999,
and codified at Fam. Code §7810 and Welf. & Inst. Code §§305.5 and
360.6, directs the courts to strive to promote the stability and security of
Indian tribes and families and to comply with ICWA in all Indian child
custody proceedings, as specified, and requires that the Act be applied if
the tribe determines that an unmarried person, who is under the age of 18
years, is a member of the tribe or is eligible for membership and is a
biological child of a member of a tribe.
Judicial Reaction: In In re Santos Y., filed October 19, 2001, the Second
Appellate District rejected §360.6 as a dispositive rejection of the existing
Indian Family Doctrine, at least as applied to the particular facts of that
case. To the extent Santos Y is not read narrowly, it resurrects the preexisting
split among the districts.
3. Is state jurisdiction proper in this case?
a. If the child resides or is domiciled on an Indian reservation, the tribe has exclusive
jurisdiction over the proceeding. (25 U.S.C. §1911(a).) In all other cases,
jurisdiction is concurrent, but presumptively tribal. (Mississippi Choctaw Indian
Band v. Holyfield (1989) 490 U.S. 30, 104 L.Ed.2d 29, 38-39. [Federal common
law definition of “domicile.”])
1.) The tribe must have exclusive jurisdiction, so P.L. 280 tribes, such as
California tribes, may not be covered by §1911(a). P.L. 280 tribes may
reassume exclusive or referral jurisdiction under the Act. [P.L.280 is
codified at 28 U.S.C. §1360.) California law imposes time frames on
transfer to a tribe what has reassumed exclusive jurisdiction. (Welf. &
Inst. Code §305.5.)
2.) P.L. 280 tribes, such as tribes in California, possess concurrent civil
jurisdiction with the state. (Native Village of Venetie I.R.A Council v.
State of Alaska (9th Cir. 1991) 944 F.2d 548; In re Laura F. (2000) 83
Cal.App.4th 583; 99 Cal.Rptr.2d 859.)
3.) A state court shall exercise temporary jurisdiction over a child who resides
or is domiciled on a reservation, but is temporarily off the reservation, if
there is an immediate threat of serious physical damage or harm to the
child. Such removal must terminate when the danger passes, the child
must be returned to the reservation, or an ICWA proceeding must be
completed within 90 days. 25 U.S.C. §1922, 44 Fed.Reg. 67589-90 (B.7).
b. If the child is not domiciled or residing on a reservation, the state court shall
transfer jurisdiction to the tribal court in the absence of good cause to the contrary.
(25 U.S.C. §1911(b); Cal.Rules of Court, rule 1439(c).) See, In re Robert T.
(1988) 200 Cal. App. 3d. 657 [confine reading to timeliness of requests and forum
non conveniens holdings, i.e., which forum provides the better opportunity to
produce valuable evidence.])
5
1.) The tribe, parent or Indian custodian must petition the court to transfer.
2.) Either parent may object to the transfer of jurisdiction. Parental objection
vetos the transfer. (In re Larissa G. (1996) 43 Cal.App.4th 505, 51
Cal.Rptr.2d 16.)
3.) The tribal court may decline the transfer of jurisdiction.
c. State courts have no jurisdiction to proceed with dependency proceedings
involving a possible Indian child until a period of at least 10 days after the receipt
of such notice by the tribe. Section 1922 of the Act authorizes emergency
removal of Indian children, even those not domiciled on a reservation. (In re
Desiree F. (2000) 83 Cal.App.4th 460; 99 Cal.Rptr.2d 688)
B. Child Custody Proceedings in State Court
1. The Indian custodian and Indian child’s tribe have a right to intervene at any point in an
Indian child custody proceeding. (25 U.S.C. §1911(c).)
a. A parent whose rights are subject to limitation or termination is a party.
b. An Indian custodian is any Indian person who has:
1.) legal custody of an Indian child under tribal law or custom, or under state
law. (In re Charloe (Ore. 1982) 640 P.2d 608; Cal. Rules of Court, rule
1439(a)(3)(A).)
2.) temporary physical care, custody and control which has been transferred
by the parent of such child. 25 U.S.C. §1903(6); Cal. Rules of Court, rule
1439(3)(b).)
c. A parent includes the biological parents of an Indian child or any Indian person
who has lawfully adopted such a child, including adoption under tribal law or
custom. It does not include an unwed father where paternity has not been
determined or acknowledged. (Cal. Rules of Court, rule 1439(a)(4).)
d. An Indian tribe may appear on its own behalf. (Cal.Rules of Court, rule
1410(b)(7) and rule 1412(i); State Ex Rel. Juvenile Dept. of Lane County v. Shuey
(Ore. 1993) 850 P.2d 378. [State statutes requiring groups to be represented by
attorney preempted when applied to Indian tribe’s attempt to intervene under
ICWA.])
2. The parent, Indian custodian and Indian child’s tribe are entitled to notice of the pending
proceedings and of their right to intervene whenever the court has reason to believe the
child may be an Indian child. (25 U.S.C. §1912(a); 25 C.F.R. §23.11; Cal. Rules of
Court, rule 1439(f); Manual of Policies and Procedures California Department of Social
Services §31-515.1.12; In re Junious M., supra, 144 Cal. App. 3d 786; In re Adoption of
Lindsay C., supra, 229 Cal.App.3d 404; In re Kahlen W., supra, 233 Cal.App.3d 1414.)
Substantial compliance is not adequate. The notice requirement is not satisfied unless
there is strict adherence to the federal statute. (In re Desiree F. (2000) 83 Cal.App.4th
6
460, 99 Cal.Rptr.2d 688; In re Jonathan D. (2001) 92 Cal.App.4th 105, 111 Cal.Rptr.2d
628. )
a. The court must only “know or have reason to know” that an Indian child is
involved before it is required to send out notice. (See 44 Fed.Reg. 67586(B1); Cal.
Rules of Court, rule 1439(d)(2) [what constitutes reason to know.]) Indian status of
child need not be certain before notice required. (In re Kahlen W., supra.) A
previous determination that the child’s siblings were not Indian children under the
Act is not dispositive of the child’s Indian status. (In re Desiree F. (2000) 83
Cal.App.4th 460, 99 Cal.Rptr.2d 688; In re Jonathan D. (2001) 92 Cal.App.4th
105, 111 Cal.Rptr.2d 628. )
b. If the court has reason to know only that the child may be of Indian ancestry, notice
is all that is required, absent status confirmation from a tribe or the Bureau of
Indian Affairs. (Cal. Rules of Court, rule 1439(e).) When there is only a
suggestion of Indian ancestry and the BIA fails to respond to notice, unless the
juvenile court has some further basis on which to predicate the belief a child is an
Indian under the Act, the court is not required to make further inquiry. (In re Levi
U. (2000) 78 Cal.App.4th 191.)] However, when a party proffers the name of a
tribe, there is a duty to notify the tribe. (In re Marinna J. (2001) 90 Cal.App.4th
731.) [Where parent identifies Cherokee ancestry, each Cherokee Tribe must be
noticed.]
c. If the identity and location of the parent, Indian custodian and tribe are known,
notice must be sent directly, with a copy to the Secretary. (25 C.F.R. §23.11(a).)
d. Notice must be sent by registered mail with return receipt requested. (25 U.S.C.
§1912(a).) The Notice must contain specified information required to determine
Indian status, as well as advisement of rights. (25 C.F.R. §23.11(d).) Notice to the
tribe is to tribal chairman unless the tribe has designated another agent for service.
(25 C.F.R. §23.12; Cal. Rules of Court, rule 1439(f)(2).)
e. State law imposes pleading requirements and further specifies the form of notice.
(Cal. Rules of Court, rule 1439(f); Manual of Policies and Procedures California
Department of Social Services §31-515.1.12.121.) When there is reason to believe
a child is an Indian, ICWA notice must be sent for every hearing unless and until it
is determined the child is not an Indian. (Cal. Rules of Court, rule 1439(f)(5).)
Once the tribe (or parent) is a party, there is no necessity to repeat the formal
ICWA notice to that party. (In re Krystle D. (1994) 30 Cal.App.4th 1778.)
f. If an Indian child is eligible for membership in more than one tribe, the court may
need to determine which tribe has the more significant contacts. (See 44 Fed.Reg.
67587-7(B2); 25 U.S.C. §1903(5).) The court shall keep a record of its
determination on this issue.
1.) It is the tribe’s prerogative to determine whether a child is eligible for
membership.
2.) Notice must be sent to all tribes in which the child may be eligible for
membership. (In re Desiree F. (2000) 83 Cal.App.4th 460; 99 Cal.Rptr.2d
688)
7
g. If the identity or location of the parent or Indian custodian and the tribe cannot be
determined, notice must be sent to the Secretary of the Interior. (25 U.S.C.
§1912(a); In re Kahlen W., supra.)
1.) 25 C.F.R §23.11 specifies which office should receive notice.
2.) The Secretary has 15 days to provide the required notice to the parent,
Indian custodian, or tribe. and must inform the court if unable to verify the
child’s status or locate parties. (25 C.F.R. §23.11(f).)
h. State courts have no jurisdiction to proceed with the custody proceeding until at
least 10 days after receipt of notice by those entitled to it. (In re Jonathan D.
(2001) 92 Cal.App.4th 105, 111 Cal.Rptr.2d 628. )
i. The parent, Indian custodian or tribe will be granted up to a 20-day delay to
prepare for the proceeding upon request to the court. (25 U.S.C. §1912(a).)
3. If the court determines indigence, the parent or Indian custodian have a right to courtappointed
counsel. (25 U.S.C. §1912(b).)
a. The court may, in its discretion, appoint counsel for a child on finding that it would
be in the “best interests” of the child as defined by the Act.
b. When appointment of counsel is not authorized under state law, a procedure exists
for requesting payment of fees by the Bureau of Indian Affairs. (25 C.F.R.
§23.13.)
4. All parties to an Indian child custody proceeding and their attorneys have the right
to examine all reports or other documents filed with the court on which any decision to
order foster placement or termination of parental rights may be based. (25 U.S.C.
§1912(c). Cal. Rules of Court, rule 1439(h)(2).) A non-party representative designated by
the child’s tribe may be permitted access to court documents and participate in the
proceedings. (Cal. Rules of Court, rule 1412(I)(2).)
5. The court must be satisfied that active rehabilitative efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family. (25 U.S.C. §1912(d); In re Crystal K., supra, 226 Cal.App.3d at p. 666; In
re Pima County Juvenile Action (Ariz.Ct.App. 1981) 635 P.2d 187.)
a. The ICWA contemplates an effort beyond the passive service normally provided by
states, and imposes an additional federal requirement in this regard. (H.R. Rep.
No. 1386, 95th Cong. 2d Sess. 22 (1978).)
b. The rehabilitative effort should take into account the prevailing social and cultural
conditions and way of life of the child’s tribe. (44 Fed.Reg. 67582(D2).) Efforts
shall include attempts to utilize the available resources of extended family
members, the tribe, Indian social service agencies, and individual Indian care
givers. (Cal. Rules of Court, rule 1439(k)(2); rule 1439(l)(4).)
c. The efforts must have proved unsuccessful before removal can be recommended.
8
d. Stipulation or failure to object constitutes a waiver only if the court is satisfied that
the party has been fully advised of the requirements of the Act, and has knowingly,
intelligently and voluntarily waived them. (Cal. Rules of Court, rule 1439(I)(2)
and rule 1439(j)(2).)
e. The active efforts requirement must be supported by clear and convincing
evidence. (In re Michael G. (1998) 63 Cal.App.4th 700, 74 Cal.Rprt.3d 642.)
f. The phrase active efforts, requires that timely and affirmative steps be taken to
remedy problems which might lead to severance of the parent-child relationship.
The state may rely upon recent but unsuccessful reunification efforts with the same
parent but a different child where “substantial but unsuccessful efforts have just
been made to address a parent’s thoroughly entrenched drug problem . . . and the
parent has shown no desire to change. . ..” The law does not require the
performance of idle acts. (emphasis added.) (In re Letitia V. v. Superior Court
(2000) 81 Cal.App.4th 1009, 97 Cal.Rptr.2d 303.)
g. The Act requires that active efforts be made to provide services, not that services
be provided regardless of when a parent becomes available to receive those
services. Where a parent chooses to make himself unavailable, the active efforts
requirement may be met by a showing of repeated attempts to contact appellant and
to notify him of the proceedings. (In re William G. (2001) 89 Cal.App.4th 423, 107
Cal.Rptr.2d 436.)
h. In a California dependency case, the court must make the ICWA section 1912(f)
finding before it terminates parental rights. One court has held that the finding
should generally be made at the final review hearing at which a section 366.26
hearing is scheduled. If it is, a court need not readdress the issue at the section
366.26 hearing, unless the parent presents evidence of changed circumstances or
shows the finding was stale because the period between the referral hearing and the
section 366.26 hearing was substantially longer than the 120-day statutory period.
However, if the finding was not made at the final review hearing and the court
intends to terminate parental rights, the section 1912(f) finding must be made at the
section 366.26 hearing. (In re Matthew Z. (2000) 80 Cal.App.4th 545; 95
Cal.Rptr.2d 343.)
6. No foster placement may be ordered in the absence of “clear and convincing evidence,”
including testimony of qualified expert witnesses, that continued custody is likely to result
in serious emotional or physical damage. (25 U.S.C. §1912(e).) Under the ICWA, no
termination of parental rights may be ordered in the absence of “evidence beyond a
reasonable doubt,” including expert testimony that continued custody likely to result in
serious emotional or physical damage to the child. (25 U.S.C. §1912(f).) The ICWA
controls contradictory state law. (25 U.S.C. §1921.)
a. Custody means something more than actual physical custody. Term refers to legal
and/or physical custody provided under state law or tribal law or custom. (See In
re Crystal K., supra.; Cal. Rules of Court, rule 1439(a)(5).)
b. The testimony of qualified expert witnesses is required to support the court’s
9
determination.
1.) A “qualified expert” is meant to apply to expertise beyond the normal
social worker qualifications. (H.R. Rep. No. 1386 at 22; In re Pima County
Juvenile Action (1981) 635 P.2d 187.)
2.) Persons likely to meet the requirements of a qualified expert include:
i.) Tribal members knowledgeable in family organization and child
rearing;
ii.) lay experts with experience in Indian child and family services and a
knowledge of the social and cultural standards of the child’s tribe;
or
iii.) a professional person. (44 Fed.Reg. 67583, 67593(D4).)
3.) California rules add an additional category of expert, preferring before a
professional person, a professional person with substantial education and
experience working with Indian families and familiar with Indian social and
cultural standards, particularly those of the child’s tribe. (Cal. Rules of
Court, rule 1439(a)(10)(C).)
4.) California DSS regulations have similar standards; the expert cannot be the
referring social worker. (Manual of Policies and Procedures, California
Department of Social Services §31-515.14.141.)
5.) Experts should speak specifically to the issue of whether the parent’s or
Indian custodian’s conduct is likely to cause serious emotional or physical
damage to the child. (See BIA Guidelines for State Courts.)
c. Stipulation or failure to object may waive 1912(d) and (e) showing. (In re Riva M.
(1991) 235 App.3d 403.) Stipulations or failure to object constitute a waiver only
if the court is satisfied that the party has been fully advised of the requirements of
the Act, and has knowingly, intelligently and voluntarily waived them. (Cal. Rules
of Court, rule 1439(I)(2) and rule 1439(j)(2).)
d. The Act does not preclude presentation of otherwise expert opinion evidence
because the witness did not have an expertise in Indian matters. (In re Krystle D.
(1994) 30 Cal.App.4th 1778.)
e. The standards for removal in the ICWA are meant to change the state’s rule of law
in regard to the placement of Indian children. The child may not be removed only
because there is someone who can do a better job or because it would be in the best
interests of a child to live with someone else, or that the parents are generally
“unfit.” Mere non-conformance with non-Indian family and child rearing
stereotypes, or the existence of other behavior or conditions that are considered
inappropriate, does not justify removal. (44 Fed.Reg.67582-3(D3).)
7. Foster and adoptive placement preferences must follow a specified order in the absence of
good cause to the contrary. (25 U.S.C. §1915(a),(b).)
10
a. Standards to be applied in placing an Indian child shall be the prevailing social
and cultural standards of the Indian community where the parent or extended
family member resides, or with which they maintain social and cultural contacts.
(25 U.S.C. §1915(d).)
b. In an adoptive placement, preference must be given to a placement with:
1.) a member of the child’s extended family;
2.) other members of the child’s tribe; or
3.) other Indian families.
c. In foster or pre-adoptive placement, preference must be given to a placement with:
1.) a member of the child’s extended family;
2.) a foster home licensed or approved by the Indian child’s tribe;
3.) an Indian foster home licensed or approved by CWS; or
4.) a children’s institution approved by the tribe or operated by an Indian
organization.
5.) The home shall be in reasonable proximity to his or her home, and the child
shall be placed in the least restrictive setting which most approximates a
family.
d. An Indian child may be placed in a non-Indian home only if the court makes a
finding that a “diligent” search has failed to find an Indian home. (44 Fed.Reg.
67584(F3); Cal. Rules of Court, rule 1439(j)(3).)
e. The tribe may establish a different preference order, by resolution, which shall
be followed if it is the least restrictive setting. (25 U.S.C. §1915(c).)
f. Counties may claim state and federal AFDC-FC on behalf of an eligible Indian
child in foster care placement made pursuant to the ICWA. These placements may
include a state licensed or approved facility and any home of a relative or
nonrelative located on or off the reservation which is licensed, approved or
specified by the Indian child’s tribe. (Cal.W&I §11401; SDSS All County Letter
No. 95-07, February 9, 1995.)
g. Where appropriate, the preference of the Indian child or parent shall be considered,
including a parent’s desire for anonymity. (Cal. Rules of Court, rule 1439(k)(4).)
h. Good cause to modify the preference orders may include a diligent but
unsuccessful search for appropriate homes, the requests of the parents, and
extraordinary needs of the child as established by a qualified expert witness. (44
Fed.Reg. 67584(F3); In re Baby Girl A. (1991) 230 Cal.App.3d 1611; But see
Adoption of Lindsay C., supra.)
i. The Act limits an agency’s discretion in selecting a permanent placement for an
Indian child. Thus, the agency must search diligently for a placement that falls
within the preferences of the Act and may reject a preferred placement only on a
showing of good cause. Where a prospective adoptive parent has suffered a
criminal conviction that brings the person within Welf. & Inst. Code §361.4, or
11
where the adoptive household includes such a person, good cause may exist to
reject a placement preferred by the Act. However, the agency must either ask for a
waiver of the disqualification or adequately support its reasons for not doing so if
failure to request a waiver results in a placement that contravenes the Act’s
preferences. In turn, where a waiver is requested, the Director of the Department
of Social Services may not unreasonably deny such exemption. Failure to follow
applicable regulations could be evidence of a lack of good cause. (In re Julian B.
(2000) 82 Cal.App.4th 1337; 99 Cal.Rptr.2d 241.)
j. Factors flowing from a placement made in flagrant violation of the ICWA,
including but not limited to bonding with a foster family and the trauma which may
occur in terminating that placement, may not be considered in determining whether
good cause exists to deviate from the placement preferences. (In re Desiree F.
(2000) 83 Cal.App.4th 460; 99 Cal.Rptr.2d 688.)
k. California’s de facto parent doctrine is not preempted by the Indian Child Welfare
Act. The doctrine expands the definition of extended family for placement
preference purposes to include de facto parents. In re Brandon M. (1997) 63
Cal.Rptr.2d 671.
l. A record of each placement of an Indian child under state law shall be maintained
by the state, evidencing the efforts to comply with the preference order. The
Secretary of the Interior or the child’s tribe may request such records at anytime.
(25 U.S.C. §1915(e); Calif-SDSS-Manual 31-520.3.)
C. Voluntary Consent Placements
1. A voluntary consent to foster care placement or termination of parental rights must be
executed in writing and recorded in the presence of a judge of a court of competent
jurisdiction. (25 U.S.C. §1913(a); Calif-SDSS-Manual 31-520.2.23.)
2. The presiding judge must accompany the consent with a certificate stating that the terms
and consequences of the consent were fully explained.
a. The certificate must state that the parent or Indian custodian fully understood their
consent.
b. The court shall also certify that the consent was fully understood in English or that
it was interpreted into a language that the parent or Indian custodian understood.
3. Consent given prior to, or within 10 days after, birth of the Indian child shall not be valid.
4. Consent to foster placement under state law may be withdrawn at any time and the child
shall be returned to the parent or Indian custodian. (25 U.S.C. §1913(b). [State regs.
establish 3 to 7 day time frame.])
5. Consent to adoption may be withdrawn at any time for any reason prior to the entry of
final decree of adoption and the child shall be returned to the parent. An adoption can be
overturned within 2 years after entry of the decree if fraud or duress can be proven. (25
U.S.C. §1913(c),(d); In re Pima County Juvenile Action (Ariz. 1981) 635 P.2d 187.) A
hearing may be required prior to return of custody.
12
6. Indian Child Welfare Act (ICWA) did not give Indian tribe automatic right to intervene in
ancillary proceeding intended to assist in completing voluntary adoptive placement;
however, ICWA did not preclude intervention. Indian tribe was entitled to intervene,
under state law, in ancillary proceeding intended to assist in completing voluntary adoptive
placement of child of tribe member. (In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 282
Cal.Rptr.105.)
7. Failure to comply with terms of ICWA in securing parent’s consent to adoption constitutes
professional malpractice. (Doe v. Hughes, Thorsness, Gantz, et al. (Alaska 1992) 838
P.2d 804. [Malpractice found even though child ultimately determined not to be Indian at
conclusion of protracted litigation.])
D. Post-Proceeding Action
1. Any Indian child, parent, Indian custodian from whose custody such child was removed,
and the Indian child’s tribe, may petition any court of competent jurisdiction to invalidate
a foster placement or termination of parental rights upon a showing that such action
violated any provisions of 25 U.S.C. §§1911, 1912, 1913. The invalidation is mandatory
on a showing that rights were violated. (25 U.S.C. §1914.)
a. Superior court without jurisdiction to entertain petition while dependency matter is
before juvenile court. (Slone v. Inyo County Juvenile Court (1991) 230
Cal.App.3d 263.)
b. Proceeding will not be invalidated on the basis of failure of notice where the Tribe
makes a general appearance and actually participates in the proceeding. (In re
Krystle D. (1994) 30 Cal.App.4th 1778.)
c. A parent who appears in a proceeding and has knowledge of ICWA applicability is
foreclosed on appeal from raising ICWA notice issues by failure to challenge
timely the juvenile court’s action. (In re Pedro N. (1995) 35 Cal.App.4th 183;
Contra, In re Marinna J. (2001) 90 Cal.App.4th 731.) Where the notice
requirements of the Act were violated and the parents did not raise that claim in a
timely fashion, the waiver doctrine cannot be invoked to bar consideration of the
notice error on appeal. [Parental inaction could not excuse the failure of the
juvenile court to ensure that notice was provided to the Indian tribe named in the
proceeding.]
d. First applying the ICWA to a dependency case at the selection and implementation
hearing would require the setting aside of all prior orders in the case, or all such
orders to which a party petitioning for invalidation objects, and full compliance
with notice, services and expert witness requirements. (In re Derek W. (1999) 86
Cal. Rptr.2d 742; In re Desiree F., supra.)
2. If a final decree of adoption is vacated or set aside, or the adoptive parents voluntarily
consent to the termination of their parental rights, a biological parent or prior Indian
custodian may petition for a return of custody. (25 U.S.C. §1916(a).)
a. The court shall grant such petition unless there is a showing that such return of
custody is not in the best interests of the child.
13
b. Such showing must take place in a proceeding subject to 25 U.S.C. §1912.
3. Whenever an Indian child is removed from a foster home or institution for further foster,
pre-adoptive or adoptive placement, such placement shall be in accordance with the
provisions of the ICWA. (25 U.S.C. §1916(b).)
a. If the child is removed from the home of an Indian custodian or parent, the
standards of evidence must be met in the removal process.
b. If the Indian child is removed from a home not subject to ICWA protections, the
subsequent placement must be in accordance with the preference provisions of the
ICWA.
c. ICWA provisions need not be followed if the child is being returned to the parent
or Indian custodian from whose custody the child was originally removed.
4. The ICWA does not apply to child custody proceedings initiated prior to May 7, 1979, but
it does apply to “subsequent proceedings in the same matter” or subsequent proceedings
affecting the custody or placement of the same child. (25 U.S.C. §1923.) [E.g., provisions
authorizing access to birth information apply in petitions to open records in adoptions
entered prior to 1979.]
5. Where a petitioner in an Indian child custody proceeding (e.g. guardianship) before a state
court has improperly removed the child from custody of the parent or Indian custodian or
has improperly retained custody after a visit or other temporary relinquishment of custody,
the court shall decline jurisdiction over such petition. (25 U.S.C. §1920.)
a. The court shall immediately return the child to his or her parents or Indian
custodian.
b. If returning the child to the parent or Indian custodian would subject the child to a
substantial and immediate danger or the threat of such danger the court may
transfer jurisdiction to the tribe (exclusive jurisdiction), or initiate a state ICWA
proceeding.
E. Miscellaneous
1. The U.S., all territories, every state and every Indian tribe shall give full faith and credit
to the “public acts, records, and judicial proceedings of any Indian tribe applicable to
Indian child custody proceedings.” (25 U.S.C. §1911(d).)
a. Provision provides federal cause of action. (See, Native Village of Venetie I.R.A
Council v. State of Alaska, supra.)
b. The full faith and credit provision of the ICWA does not require a state court to
apply a tribe’s law in violation of the state’s own legitimate policy nor does it
empower a tribe to control the outcome of the state court proceeding. While the
Constitution requires each state to give effect to official acts of other states,
precedence differentiates the credit owed to laws and to judgments. A obligation
14
is exacting as to judgments, provided there is jurisdiction over the parties and
subject matter. The same rule does not necessarily apply to statutory law. The
full faith and credit clause does not compel a state either to substitute the statutes
of other states for its own statutes dealing with a subject matter concerning which
it is competent to legislate, or to apply another state’s statutory law in violation of
its own legitimate public policy. (In re Laura F. (2000) 83 Cal.App.4th 583; 99
Cal.Rptr.2d 859.) [Tribal resolution opposing adoption was a public act or record
entitled to judicial notice, but not a judgment entitled to full faith and credit.])
2. In any case where state or federal law applicable to child custody proceedings under state
or federal law provides a higher standard of protection to the rights of a parent or Indian
custodian than the ICWA, the state or federal court shall apply the higher state or federal
standard. (25 U.S.C. §1921.)
3. The ICWA does not preempt state law unless there is an express preemption clause,
implied preemption (“occupation of the field”), or a conflict between the provisions of
federal and state law. In re Brandon M. (1997) 63 Cal.Rptr.2d 671. [ICWA does not
preempt California’s de facto parent doctrine.]
4. State courts entering adoption decrees shall provide the Secretary with a copy of the
decree and additional information necessary to establish the child’s tribal affiliation. (25
U.S.C. §1951(a); 25 C.F.R. §23.71; Fam.C. §8619.) [See SDSS All County Letter No.
89-26, Procedures for Certifying Indian Blood for children in adoption planning.] Said
information may be disclosed for enrollment purposes or, where anonymity has been
requested, the Secretary certifies eligibility.
5. Upon application by an Indian who has reached 18 years of age and who was the subject
of an adoptive placement, the court which entered the final decree shall inform such
individual of the tribal affiliation of the person’s biological parents and provide such
other information necessary to protect any rights deriving from the person’s tribal
relationship. (25 U.S.C. §1917.)
6. State/tribal agreements authorized. (25 U.S.C. §1919.)
a. Tribes may contract with the Director of the State Department of Social Services
relative to tribal operation of Indian child welfare systems. (California Welfare
and Institutions Code §10553.1 [Director’s delegation agreement with Indian
Tribe.]; Section 11401(e) [AFDC-FC for Indian placements]; Manual of Policies
and Procedures, California Department of Social Services, §45-101; §45-202,
§45-203. [Implementing §11401(e)].)
15

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