7/23/19 Indian Child Welfare Act Law Center Presented by: Marlee - - PDF document

7/23/19 1 Indian Child Welfare Act Law Center

Presented by: Marlee Torrence, Equal Justice Works Fellow/Attorney & Teresa Nord, Parent Mentor July 23rd , 2019

ICWA Law Center- Background

• Non-profit legal services org founded in 1993
• Represent Indian families affected by the child protection system
• Collaborate with tribes, community service providers, and child

protection to provide a responsive and meaningful approach

• Advocate for systematic responses
• Provide trainings focused on ICWA compliance
• Facilitate a national ICWA resource on our website- www.iclwc.org

ICWA Law Center- Staff

• Executive Director/Attorney- Shannon Smith, Esq.
• Litigation Director/Attorney- Andrea Braun, Esq.
• 2 staff attorneys
• 1 paralegal, 1 receptionist
• 2 Indian Advocates, 2 Parent Mentors
• 1 Equal Justice Works Fellow/Attorney
• 1 Elder in residence, 1 grant writer

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Our Mission

To work with the Indian community to preserve and reunite Indian families by providing culturally appropriate legal services to children, parents, family members, and tribes. To serve as a community development resource for Indian Child Welfare Act education, advocacy, and public policy.

Our Values

• 1. Justice
• 2. Engagement
• 3. Collaboration
• 4. Understanding

Indian Child Welfare Act (ICWA) 1978

• Enacted by Congress in 1978 in response to the unwarranted

removal of Indian children from their families and tribal communities in alarming numbers.

• 25%–35% of all Native children were being removed; of these, 85%

were placed outside of their families and communities—even when fit and willing relatives were available.

• These removals resulted in irreparable harm to the child and their

family.

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“…the wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.”

H.R. REP . 95-135896, at 9 (1978).

ICWA Basics- Intent

• The intent of Congress under ICWA was to “protect the best interests of

Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).

• Sets federal requirements that apply to state child custody proceedings

involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

• Labeled “the gold standard” of child welfare policy by experts and

national leading child advocacy organizations far beyond Indian Country.

https://www.nicwa.org/about-icwa/

ICWA Basics- Requirements

• ICWA requires caseworkers to make several considerations when

handling an ICWA case, including: 1) Provide active efforts to the family; 2) Identify a placement that fits under the ICWA preference provisions; 3) Notify the child’s tribe and the child’s parents of the child custody proceeding; and 4) Work actively to involve the child’s tribe and the child’s parents in the proceedings.

https://www.nicwa.org/about-icwa/

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ICWA Basics- Indian Child

1) The child is a member of a federally recognized Indian tribe OR 2) Eligible for membership in a federally recognized Indian tribe AND is the biological child of a member/citizen of a federally recognized Indian tribe.

25 U.S.C. § 1903(4).

Indian child under the Act means:

ICWA Basics- 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.

Active efforts requirement under the Act:

Why are active efforts required?

Active efforts are required to prevent the break up of an Indian family by preventing an out-of-home placement or by fostering reunification when the child is removed from the physical or legal custody of his or her parents.

25 U.S.C. 1901(4)-(5).

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Historical Trauma

• Genocide. Slavery. Forced relocation. Destruction of cultural
• practices. These experiences, shared by communities, can result

in cumulative emotional and psychological wounds that are carried across generations.

https://www.youtube.com/watch?v=AWmK314NVrs&feature=youtu.be

Effects of Historical Trauma

• The persistent cycle of trauma destroys family and communities

and threatens the vibrancy of entire cultures.

• Macroaggressions are everyday experiences of discrimination,

racism, and daily hassles that are targeted at individuals from diverse racial and ethnic groups (Evans-Campbell, 2008).

• Health disparities, substance abuse, and mental illness are all

commonly linked to experiences of historical trauma (Michaels, Rousseau, and Yang, 2010).

Healing

• Reconnecting people to the vibrant strengths of their ancestry and

culture, helping people process the grief of past traumas, and creating new historical narratives can have healing effects for those experiencing historical trauma. "When you think about healing, do not underestimate your ability to be an agent of change."— Jessica Gourneau, Ph.D

https://extension.umn.edu/mental-health/historical-trauma-and-cultural- healing#how-connection-to-culture-and-community-can-heal-the-wounds--378612

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Active efforts

1) Intended to maintain or reunite an Indian child with his or her family; 2) Must involve assisting the parent or parents or Indian custodian through the steps of the case plan; and 3) Assisting with accessing or developing resources necessary to satisfy the case plan

25 C.F.R. § 23.2

The statute does not define “active efforts,” but the regulation does:

Active efforts

• Sets a higher standard than reasonable efforts.
• Means a rigorous and concerted level of case work that uses

prevailing social and cultural values, conditions and way of life of an Indian child’s tribe (s) to:

a) preserve an Indian child’s family, to prevent out-of-home placement of an Indian child and; b) if placement occurs, to return an Indian child to their family at the earliest possible time.

Active efforts

Active efforts should be: 1) Affirmative 2) Active 3) Thorough; and 4) Timely

• By its plain meaning “active”

cannot merely mean passive

• State agency needs to take an

active role in connecting the parent or Indian custodian with resources.

• The minimum actions required

to meet the “active efforts” threshold will depend on unique circumstances of the case.

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Do active efforts include the extended family?

• Yes. The Bureau of Indian Affairs (BIA) Guidelines provide that a

court should take into account "the prevailing social and cultural conditions and way of life of the Indian child's tribe.

• [Remedial services] shall also involve and use the available

resources of the extended family, the tribe, Indian social services agencies and individual Indian care givers."

Indian Child Welfare Proceedings, 44 Fed. Reg. 67,584, 67,592 (Nov. 26, 1979) (guidelines for state courts).

Active efforts require acknowledging traditional helping and healing systems of an Indian child’s tribe(s), engaging the Indian child’s tribe(s) prior to a decision to remove a child from his/her family, inquiry of tribal lineage, and much more.

AFCARS

• The federal Adoption Foster Care Analysis and Reporting System

(AFCARS) collects foster care and adoption information on children in the child welfare system.

• Minnesota Department of Human Services (DHS) complies with the

federal reporting requirements by collecting this data in the Social Service Information System (SSIS).

• The AFCARS regulations were originally published in December

1993 and the new regulations were published in January 2017.

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The majority of the new reporting requirements focus on the documentation of a local social services agency’s (county agency) efforts to implement the Indian Child Welfare Act (ICWA) for Indian

• children. County agencies are required to report:
• Active efforts
• Inquiry of tribal lineage
• Notice(s) to an Indian child’s tribe(s)
• Placement preferences
• Good case to deviate from placement preferences
• Transfer to tribal court
• Qualified expert witness

Practice Tips- Active Efforts

• A rule of thumb is that "active efforts" is to engage the family

while "reasonable efforts" simply offers referrals to the family, and leaves it to them to seek out assistance.

• To best meet the needs of the child and family and to avoid

unnecessary conflicts, the best practice is to seriously consider whether one has met the "active efforts" requirement, as opposed to reasonable efforts, prior to filing a petition to terminate parental rights.

https://narf.org/nill/documents/icwa/faq/active.html

Minnesota Data 2017

• American Indian children were 18.5 times more likely to be

placed out-of-home in 2017.

• American Indian children comprised the second largest group
• f continuers, at 24.1 percent.
• 3,334 American Indian in 2017 out of 16,593 (this is 20%)

https://www.leg.state.mn.us/docs/2018/mandated/181 111.pdf

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https://www.health.state.mn.us/communities/alcohol/data/suicideopioidalcohol.ht ml

7/23/19 11 Parent Mentor Program

Provides families with information, support, and guidance as they navigate the child welfare system

How can Parent Mentors be helpful?

• 1. Provide peer to peer support through lived experience;
• 2. Represent a parent’s point of view;
• 3. Assist parents with case plans provided by DHS;
• 4. Connect parents with valuable resources; and
• 5. Accompany parents to necessary appointments.
• 1. Chemical Dependency
• 2. Relapse Prevention
• 3. Sober Living
• 4. Cultural Connections
• 5. Housing
• 6. Transportation
• 7. Employment
• 8. Family Reunification/Permanency Planning
• 9. Parenting/life skills

10.Education 11.Criminal Matters

Parent Mentors can provide support in the areas of:

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Our Goals

• Increase reunification rates
• Shorten length of time of out of home placement
• Prevent out of home placement when possible
• Expand parental support system
• Empower the parent

Why are Parent Mentors are needed in the child protection system?

• Disproportional rates of American Indian families involved in the system
• Minnesota has one of the highest rates of out-of-home care for Native

American children in the country

• Families are in need of positive support, encouragement, and hope
• Parents faced with the removal of a child or investigation of child

abuse/neglect experience a range of emotions including:

• Mistrust
• Fear
• Shame Biases
• Historical Trauma