AMERICAN INNS OF COURT JANUARY 22, 2015 PRESENTER: HOWARD A. BELODOFF

LEGISLATIVE HISTORY Studies had shown that 25% to 35% of all Indian children nationally "had been separated from their families and placed in adoptive families, foster care or institutions." Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989), citing 1974 Senate Report at 15. Indian children in South Dakota were nearly ten times more likely to be "taken out of their homes and placed in adoptive or foster care" than non-Indian children Senate Report at 86 (Statistical Report, Association on American Indian Affairs). 85 percent Indian children placed in foster or adoptive homes were placed with white families, primarily because placement standards were "based upon middle-class values." 1974 Senate Report at 5.

CONGRESSIONAL FINDINGS AND POLICY ICWA is based upon the unique political status of tribes and Indian people established by the Constitution, statutes and treaties, not race. Congress acknowledged "that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children...." 25 U.S.C. § 1901(3). Congress found “that the States,.., have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in the Indian communities and families." 25 U.S.C. § 1901(5).

Mississippi Choctaw v. Holyfield, 490 U.S. 30 (1989) Mississippi Choctaw recognized that Congress found that it is in the best interests of Indian children to remain in the custody of their families and to protect their affiliation with their Tribes. Id. at Mississippi Choctaw held that the ICWA's "main effect" was to curtail the authority of the states. Id. at 45 n.17.

STATE COURTS MUST COMPLY WITH ICWA State courts are required to follow the mandates of the ICWA unless state law provides a higher level of protection. 25 U.S.C. § “If the prerequisites are met, ICWA supplies the procedural requirements and substantive standards that must be used by the state courts instead of procedures and standards under state law.” Matter of Baby Boy Doe, 123 Idaho 464, 468, 849 P.2d 934, 929 (1993).

WHEN DOES ICWA APPLY ICWA applies when a “child custody proceeding” involves an “Indian child.” Does not apply to child custody between parents. “Indian child” is a person under 18 years old who is unmarried and is a member of an Indian Tribe or eligible for membership. 25 U.S.C. § 1903(4).Tribes determine membership and enrollment criteria. The definition of “child custody proceeding” under ICWA includes child protection, parental termination, adoption, and guardianship cases involving an “Indian child.” 25 U.S.C. § 1903(1)(i)-(iv).

JURISDICTION AND TRANSFERS A tribal court has exclusive jurisdiction over Indian child: (1) who domiciled on a reservation or (2) who is a ward of the tribal court. 25 U.S.C. § 1911(a). Tribal and state courts have concurrent jurisdiction when Indian child: (1) is not domiciled on reservation or a ward of the tribal court; (2) where state has Public Law 280 jurisdiction over domestic relations and child protection; (3) if tribe has an agreement with state; and (4) limited emergency jurisdiction where child is temporarily off reservation and state has removed to prevent imminent physical harm. State courts, in the absence of good cause to the contrary, shall transfer case to tribal court unless parent objects or tribal court declines. 25 U.S.C. § 1911(b).

NOTICE TO PARENT, CUSTODIAN, AND TRIBE The Indian child’s Indian custodian and tribe have the right to intervene in any Indian child custody proceeding. 25 U.S.C. § 1911(c). State courts are required to provide written notice via registered mail to both the Indian custodian and the tribe to inform them of their right to intervene. 25 U.S.C. § 1912(a). See also BIA Guidelines, 44 Fed. Reg. at 67588; IDAPA § In re Custody of C.C.M., 202 P.3d 971, 979 (App. Wash. 1st Dist. 2009).

REQUIRED TEN DAY PERIOD The Indian child cannot be placed in foster care until ten (10) days after the Indian custodian and tribe have received the required notice. 25 U.S.C.A § Compliance with ICWA’s notice requirement falls “squarely and affirmatively” on the court when it knows or has reason to know who has the right to intervene in the child custody proceedings. Justin L. v. The Superior Court of Los Angeles, 81 Cal. Rptr. 884, 886 (Cal. App. 3d Dist. 2008).

NOTICE CANNOT BE WAIVED Compliance with ICWA’s notice requirement is mandatory and a parent cannot waive the tribe’s or Indian custodian’s right to notice. In re Jennifer A., 127 Cal. Rptr. 2d 54, (Cal. App. 4th Dist. 2002).

ACTIVE EFFORTS/REMEDIAL SERVICES Prior to seeking to remove an Indian child a party must first prove to the court that “active efforts” to prevent the breakup of the Indian family through “remedial services and rehabilitative programs” were unsuccessful. 25 U.S.C. at § 1912(d); see also IDAPA § “Active efforts must include contacts and working with an Indian child’s tribe.” IDAPA §

STATE MUST ACTUALLY PROVIDE SERVICES The adequacy of active efforts under § 1912(d) depends on the facts of the case and must be supported by substantial and competent evidence. Idaho Department of Health and Welfare v. John Doe, 152 Idaho 797, 805, 275 P.3d 23, 31 (2012) (“Doe II”). “[A]ctive efforts require that the state actually help the parent develop the skills required to keep custody of the children.” Doe II, 152 Idaho at 805 (citing Dashiell R. v. Alaska, Dep’t of Health and Soc. Servs., Office of Children’s Servs., 222 P.3d 841, 849 (Alaska 2009)).

STANDARD OF PROOF The Indian child must not removed unless the party seeking such placement has proved, “by clear and convincing evidence, including testimony of qualified expert witnesses, that continued custody of the Indian 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). In Interest of J.R.H., 358 N.W.2d 311, (Iowa 1984).

VOLUNTARY CONSENT A voluntary consent to removal must be knowingly made after being informed in specific detail of the consequences of their consent. 25 U.S.C. § 1913(a). Consent must be “executed in writing... and accompanied by the presiding judge’s certificate that the terms and consequences of the consent were fully explained in detail and fully understood by the parent or Indian custodian.” 25 U.S.C. § 1913(a). Consents can be rescinded at any time and the Indian child must be returned to the parent or Indian custodian. 25 U.S.C.A § 1913(b).

PLACEMENT PREFERENCES Mississippi Choctaw recognized that “[t]he most important substantive requirement imposed on state courts” is the placement preferences established by the ICWA. Id. at A court must give a preference for the placement, “in the absent of good cause to the contrary” to “(i) a member of the child’s extended family” or “(ii) a foster home licensed, approved, or specified by the child’s tribe” 25 U.S.C. § 1915(b).

TRIBAL TRADITIONS FOR CARING FOR CHILD The parent’s or extended family’s tribe’s “prevailing social and cultural standards” govern the placement preferences in any custody proceeding of an Indian child. 25 U.S.C. § 915(d). In re Jennifer A., 127 Cal. Rptr. 2d at

STEROTYPES AND CULTURAL BAIS The evidence justifying removal must not be based upon stereotypes, cultural biases or subjective and judgmental views of what may be better for the children. Court may not use the Idaho’s evidentiary standards or their biases to justify removal of children and placement because they provide less protection than § 1912(e). See 25 U.S.C. § See also, Matter of Baby Boy Doe, 123 Idaho at 468; A.B.M v. M.H., 651 P.2d 1170, (Alaska 1982).

IDHW RULES IDAPA § which states: “The federal and state laws which are the basis for these rules includes a number of mandatory protections and safeguards which are intended to ensure timely permanency for children and to protect the rights of children, their families, and their tribes.” (emphasis added).