§1.05 Indian Child Welfare Act

[1] Background
[2] Initial Requirements
[3] Details of Notice
[4] Member of Tribe
[5] Special Findings

[1] Background
The Indian Child Welfare Act (referred to as “ICWA”) applies to all proceedings involving Indian children that may result in an involuntary foster care placement. [25 USC §§1901–1923; WIC §§224, 224.2; CRC 5.480.] Congress passed ICWA in 1978 to establish minimum federal standards governing involuntary out-of-home placement of Indian children to protect an Indian child’s tribal ties and cultural heritage and the tribe’s interests in its children. [25 USC §§1901–1902.] California recently codified many of these requirements to govern Indian child custody proceedings in dependency, delinquency, probate guardianship, and family court cases. [See Stats 2006, ch 838 (SB 678).]

[2] Initial Requirements
In every dependency proceeding in which the child is at risk of involuntary foster care placement, you and the social services agency are required to inquire whether a child is or may be an Indian child, and you must ensure that proper notice is given in compliance with ICWA. [WIC §§224.2, 224.3; CRC 5.481.] You must also ensure that the agency’s inquiry into the child’s Indian status complies with ICWA and an Indian Child Inquiry Attachment form has been completed by the agency and attached to the petition (form ICWA-010(A)).

At the first court appearance by a parent, Indian custodian, or guardian in any dependency case, you must order the parent, Indian custodian, or guardian to complete the Parental Notification of Indian Status form (form ICWA-020). If the parent, Indian custodian, or guardian does not appear at the proceeding, you must order the agency to use reasonable diligence to find and inform them that the court has ordered them to complete form ICWA-020. [CRC 5.481.]

[3] Details of Notice
If it is known or there is reason to know that an Indian child is involved in the dependency proceedings, you must ensure that the Notice of Child Custody Proceeding for Indian Child (form ICWA-030) is sent to the Indian child’s tribe, parent or legal guardian, and Indian custodian in compliance with WIC §224.2. [CRC 5.481(b).]

You must ensure accurate and full compliance with the ICWA notice provisions. [See, e.g., Nicole K. v Superior Court (2007) 146 CA4th 779 (notice to tribe inadequate because it was sent to wrong address); In re Mary G. (2007) 151 CA4th 184 (termination of parental rights reversed because agency sent notice to another tribe at wrong address, and record contained no response from the tribe nor any evidence that the tribe received actual notice); In re J.T. (2007) 154 CA4th 986 (notice sent to Bureau of Indian Affairs (BIA), rather than to all federally recognized tribes identified by mother, was inadequate and had to be addressed to tribal chairperson or designated agent for service).]

Notice to the tribes must include specified information about the child, family, and the case. [See WIC §224.2(a)(5).]  It must also advise the child’s parents, Indian custodian, and tribe of their rights to intervene, to petition the court to transfer the case to the tribal court, to be granted up to an additional 20 days from receipt of the notice to prepare for the hearing, and to have counsel appointed (for the parents and Indian custodian) if unable to afford counsel, and of the potential legal consequences of the proceeding and the duty to maintain confidentiality of the information contained in the notice. [WIC §224.2(a)(5)(G).] 

Proof of notice, including copies of all notices sent and all return receipts and responses, must be filed with the court in advance of any proceeding, except for the detention hearing, which permits filing within 10 days after the petition is filed if notice of the detention hearing is given as soon as possible after filing of the petition. [WIC §224.2(c), (d); CRC 5.482(a).]

Once proper ICWA notice is provided, if a tribe responds that a child is eligible for membership if certain steps are taken, you should also ensure that the agency provides active efforts to secure tribal membership for the child. [CRC 5.482(c).]

[4] Member of Tribe

This act applies to dependency cases when a child is at risk of entering foster care or is in foster care and may be [25 USC §1903(4); WIC §§224(a)(1), (c), 224.3; CRC 5.480]:

• A member of an Indian tribe ; or
• Eligible for membership in one and is the biological child of a member of a federally recognized tribe.

The tribe, or the Bureau of Indian Affairs when no particular tribe can reasonably be identified, determines if a child is a member or eligible for membership. [25 USC §1911(a); WIC §§224(c), 224.3(e)(2).] The tribe may intervene or request transfer to tribal jurisdiction at any point in the proceeding. [25 USC §1911(b), (c); WIC §§224.4, 305.5(b);CRC 5.482(e).] If no tribe intervenes or requests transfer, you may proceed to exercise jurisdiction regarding an Indian child under state law, but in accordance with ICWA’s standards and procedures. [WIC §224(b), (d).] If after a reasonable period (not less than 60 days) no determinative response is received, you may determine that the act does not apply unless further evidence is later received. [WIC §224.3(e)(3); CRC 5.482(d).]

[5] Special Findings

Special findings and procedures are required before you may place an Indian child in foster care, establish a guardianship, make other out-of-home placements [see 25 USC §§1912(d), (e), 1915(a), (b); WIC §§361(c), (d), 361.7; CRC 5.484], or terminate parental rights [see 25 USC §1912(f); WIC §366.26(c)(1)(B)(iv), (vi); CRC 5.485]. Cautions appear throughout the course to alert you to situations when ICWA may apply. For more guidance, see the Bench Handbook: The Indian Child Welfare Act (Cal CJER).  

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