7/23/19 Indian Child Welfare Act Law Center Presented by: Marlee Torrence, Equal Justice Works Fellow/Attorney & Teresa Nord, Parent Mentor July 23 rd , 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 1
7/23/19 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. 2
7/23/19 “…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/ 3
7/23/19 ICWA Basics- Indian Child Indian child under the Act means: 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). ICWA Basics- Active efforts Active efforts requirement under the Act : 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. 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). 4
7/23/19 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 5
7/23/19 Active efforts The statute does not define “active efforts,” but the regulation does: 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 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: • By its plain meaning “active” cannot merely mean passive 1) Affirmative 2) Active • State agency needs to take an active role in connecting the 3) Thorough; and parent or Indian custodian 4) Timely with resources. • The minimum actions required to meet the “active efforts” threshold will depend on unique circumstances of the case. 6
7/23/19 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. 7
7/23/19 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 of 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 8
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