Washington State ICW Training

1. Washington State ICW Training

2. The Alliance for Child Welfare Excellence is Washington’s first comprehensive statewide training partnership dedicated to developing professional expertise for social workers and enhancing the skills of foster parents and caregivers working with vulnerable children and families.  The Power of Partnership

3. This curriculum was created in collaboration with the National Indian Child Welfare Association (NICWA), Children’s Administration (CA) and the Alliance for Child Welfare Excellence. The Power of Partnership

4. Traditional Child Welfare Systems • Before western influence, children were kept safe through various extended family and community interventions – the natural helping system • Natural helpers and healers • Oral tradition • Traditional ceremonies • Clan/tribal/community

5. Historical Trauma • What is historical trauma? • What impact has this had on tribal families and communities? • Do you know any families who had children adopted out or were forced to attend boarding schools? • Why do we need to address this in our work with tribal families?

6. Need for Change • Federal policy influence • Boarding schools, Adoption Project, interference with tribal governance and social structures, and relocation • State policy and practice • Large # removals (public and private) • Separation from family • Disconnected from culture and natural helping systems

7. 1960–1978Indian Country Child Welfare Findings • 25–35% of all AI/AN children removed from their homes—85% placed in non-Indian homes. • AI/AN children brought up in non-Indian homes suffered due to isolation from their families and culture. • In many AI/AN adoptions birth mothers were pressured and coerced into “voluntarily” relinquishing their parental rights.

8. Indian Child Welfare Act of 1978 Congress passed ICWA acknowledging: • Sovereignty: Tribe’s right to protect their families and children • Self-determination: That tribes best know the needs of their families and children • The Trust Relationship: Congress has a responsibility to right the wrongs of their past actions and ensure the well-being of AI/AN children

9. What Does ICWA Do? • Establishes minimum federal standards for state removal of AI/AN children from their families • Recognizes tribes’ inherent tribal jurisdiction over child custody proceedings • Provides tribal funding for the operation of child and family programs

10. AI/AN Treatment: Disparities White/Caucasian Children 200 Cases Reported 50 Investigated 25 Substantiated 8 Placed American Indian/Alaska Native Children 200 Cases Reported 100 Investigated 2X 50 Substantiated 2X 32 Placed 4X CSSP, 2007 4X

11. Disproportionality By State

12. Causal Factors • Children of color are overrepresented in many child welfare systems because of: • Individual bias • Systemic bias • Policy related barriers • Workforce challenges in working cross-culturally • The ability to effectively partner with tribes is key to eliminating disparities and disproportionality

13. ICWA is necessary because it: • Ensures that states consider tribal values • Empowers tribes to serve their children and families • Counterbalances bias in people and the system • Expands resources available • Protects the best interests and unique rights of American Indian and Alaska Native children as tribal members

14. New Federal Regulations • June 14, 2016 BIA released the first legally-binding ICWA regulations for state courts • Effective December 12, 2016 • BIA revised 2015 guidelines and has released them on • Clarify minimum federal standards • Require compliance consistent with • Language of ICWA • Intent of ICWA • Canons of statutory construction/interpretation

15. Washington State Policy • Washington Administrative Codes (1976) • Tribal-State ICWA Agreement (1987) • Administrative No. 7.01 Policy (1987) • Centennial Accord (1989) • Local Tribal-State MOU’s • Washington State ICWA law – RCW 13.38.010 et. seq. (2011) • Washington ICW Policies and Procedures (revised 2016)

16. Local Tribal/State MOU’s • Developed collaboratively with tribes to: • Clarify roles, responsibilities, and enhance coordination/cooperation • ICWA, Tribal/State Agreement, and WICWA authorize • Posted on CA intranet and DSHS internetafter approved • Applied in every tribal case • Regardless of the child’s placement location in Washington state

17. Tribal Nations in State of Washington

18. Where does ICWA apply? • Only in State Courts • Minimum standards for child welfare proceedings involving Indian children • ICWA does not apply in tribal courts • As sovereign nations the federal government can’t dictate tribal law

19. Why is it important that ICWA is applied correctly? • It is a federal law • Attorneys, judges and social workers have ethical obligations to uphold the law • Where ICWA is not followed proceedings can be invalidated • Child, parent, or tribe can petition for the invalidation of foster care placement or TPR proceedings • Non-compliance can create delays and deny children and parents important protections, resources, and opportunities

20. Application ICWA applies to: 1) all state child custodyproceedings 2) involving an Indian child • Unmarried • Under 18 years of age • Tribal member or child of tribal member and eligible for membership * Indian child is term defined in ICWA to denote AI/AN children who are members or eligible for membership in federally-recognized tribes.

21. Application: What is a “child custody proceeding”? Both voluntary and involuntary • Foster Care Placement • Foster care, institution, conservator or guardianship • Termination of Parental Rights • Pre-adoptive Placement • After TPR, but prior to adoption • Adoptive Placement • voluntary/involuntary

22. Application: What is a “child custody proceeding”? Other state child custody proceedings covered: • Status offenses (truancy, incorrigibility) • Status offenses can result in foster care, other out of home care, or TPR and may be adjudicated in the juvenile delinquency system.

23. Application: What is a “child custody proceeding”? State custody proceedings not covered: • Child custody disputes and divorce proceedings • Juvenile delinquency proceeding based on actions that would be a crime if the child was an adult • Voluntary placements where children have to be returned on demand

24. Application: Who is an Indian child? • State court must ask: • Guidelines: reason to believe a child is an Indian child • Regulations: knows or has reason to know a child is an Indian child • Partiesto tell court if later they have reason to know child is an Indian child • WICWA requires “good faith effort” to identify Indian child (state court, CPS, case manager, and NAIR)

25. Application: Who is an Indian child? • CA (NAIR Unit) can verify tribal membership by contacting either: • The designated agent for service of ICWA notice (www.bia.gov) • The tribe directly and identify the appropriate person for contact • The BIA (regional or central office) to determine the most appropriate tribal contact

26. Application: Who is an Indian child? • Only the tribe can verify a child’s membership or eligibility for membership • State court or agency may not substitute its own determination • LICWAC does not make this determination • See ICWA regulations on details when multiple tribes involved

27. Application: Process State case management: • Ask whether there is reason to know a child is an Indian child • Gather info on child’s family ancestry chart (FAC) • Create a FAC in FamLink • Identify all potential tribal affiliations, even if child is member of one tribe • Send all information about Native American ancestry to NAIR for formal tribal inquiries • Determine the residence and domicile of family • Consult with tribe and relatives of the child • Early and active engagement with the tribe • Present verification to the court • Encourage and support tribal membership

28. Application: Process Tribal case management: • Establish a process with enrollment office to respond to notice requests • Respond promptly and actively communicate with state workers at each decision point (e.g., finding relatives) • Collaborate with the state worker to verify whether or not the child is an Indian child • Assist the family with membership if necessary

29. Application: Practice Tips • Inquiries should ask the question of tribal heritage in different ways and multiple times throughout the life of the case. • Askextended family members for additional information • Don’t forget about absent or non-custodial parents

30. Notice • ICWA requires notice by registered orcertified mail with return receipt requested (legal notice). • Legal notice is required for each initial proceeding and every “child custody proceeding” thereafter • Notice is also required for emergency proceedings, although not legal notice (e.g. phone, email, fax, personal delivery) • NAIR Unit does not provide legal notice (provided by CW) * Contact with tribe ahead of legal notice is encouraged, but legal notice must still be sent

31. Notice: Where should it be sent? • Tribes: each tribe has a designated ICWA notice recipient (www.bia.gov). This information is also found in the ICW tab action pane in FamLink. • Parents (or Indian custodians) • If the identity of the parents or tribe cannot be confirmed, the BIA will make a reasonable attempt to locate and notify tribes, parents, and Indian custodians • Copy of legal notice to BIA Regional Director (regional office where the proceeding occurs)

32. Notice: When does it happen? A custody proceeding cannot go forward until: • At least 10 days after receipt of notice by parents (additional 20 days can be requested) • At least 10 days after receipt of notice to the tribe(s) (additional 20 days can be requested) • At least 15 days after receipt of notice by Regional BIA office if identity/location of parents or tribe is unknown

33. Notice: WICWA • WICWA - Tribe not responding to notice does not constitute evidence that child is not an Indian child (burden on party asserting ICWA)

34. Notice: Process State case management: • Immediately contact the tribe • Collect necessary information to provide legalnotice • Send or ensure that legal notice is sent within designated time period • If tribe doesn’t respond, legal notice for every future “child custody” proceeding must be sent

35. Notice: Process Tribal case management: • Designate an advocate to intervene or inform the state that the tribe declines intervention • Acknowledge receipt of each notification • Promptly respond to notice • Ask court for extra time if needed

36. Jurisdiction • A court’s power to decide a case or issue a decree • For example, the court’s authority to decide if removal is appropriate or if parents’ rights should be terminated. • The state court must dismiss an action as soon as it determines that it lacks jurisdiction

37. Jurisdiction: Exclusive A tribe has exclusive jurisdiction when: • The child is domiciled on tribal lands and no federal law modifies jurisdiction (e.g. P.L. 280) • The child is a ward of tribal court *This means states have no authority to make decisions in these situations

38. Exclusive jurisdiction: What must state court do? • The state court must make a determination of the residence and domicile of the child, and if the child is a ward of a tribal court • If residence or domicile is on reservation or child is ward of tribal court then state court mustdismiss the case, notify the tribe of its jurisdiction, and transmit all information to the tribe

39. Jurisdiction: Concurrent A tribe has concurrent jurisdiction when • A child is domiciled off reservation and tribe asserts jurisdiction (transfer) • A child lives on tribal lands but a federal law states that jurisdiction is shared (P.L. 280) This means that both states and tribes have authority to make decisions in these situations • ButSCOTUS has said that jurisdiction is “presumptively tribal” (e.g., that transfer can and should occur)

40. Jurisdiction: Process • With concurrent jurisdiction: • Case in tribal court: proceed in tribal court • Case in state court: • Proceed in state court and ensure tribal notice, intervention, and respect tribal desire to transfer to tribal court • With tribal exclusive jurisdiction: proceed in tribal court

41. Jurisdiction: Transfer • Upon petition by the tribe, parent, or Indian custodian, proceedings must be transferred to tribal court • The right to request a transfer occurs at each proceeding and at each stage of the proceeding • Including voluntary and involuntary proceedings such as emergency removal, foster care, termination of parental rights, and adoption proceedings • Transfer will not occur if: • Either parent objects to the transfer • Tribal court declines jurisdiction • State court determines that “good cause” exists to deny transfer

42. Transfer: Good Cause Regulations ‘good cause’ restrictions: • The court must not consider • “Advanced stage” of proceeding if parties received late notice • Prior proceedings with no request for transfer • If transfer will mean a change of placement • Child’s contacts with the tribe • Tribal community socio-economic conditions • Perceived adequacy of the tribal agency or court The burden to establish “good cause” not to transfer is on the party opposing the transfer

43. Transfer: Practice Tips • Establish a process for planning and implementing transfer (tribal and state). • Address case planning, correspondence, and decision making. • If transfer occurs state CW should either promptly pass on all relevant documents and information to the tribal ICW and/or begin attending hearing in tribal court.

44. Jurisdiction: Practice Tips State case management • Ask the tribe early in the case if the child is or was ward of tribal court. • Document residence and domicile of parents/child (residence of parents, length of time, and intent to stay). Discuss with tribe. • Work closely with the tribal CW for smooth transition • Ensure timely and complete document/information transfer • Chapter 6, CA’s ICW Policies and Procedures

45. Jurisdiction: Practice Tips Tribal case management • Respond promptly with necessary information about transfer • Ask for any information on previous services, eligibility for federal programs, etc. • Work with tribal team to determine most appropriate jurisdiction

46. Emergency Removal • The state may exercise temporary emergency jurisdiction when the child is at risk of imminent physical damage or harm • Present or impending risk of serious bodily injury or death that will result in severe harm if safety intervention does not occur • Regulations require notice to tribes of emergency removal and proceedings * For children domiciled on tribal lands who are temporarily off tribal lands and children domiciled off tribal lands

47. Emergency Removal • Emergency removal must terminate immediately as soon as the imminent physical damage or harm no longer exists • Court may terminate emergency removal: • children have been returned to parents, • as soon as tribe exercises jurisdiction, or • child custody proceedings are initiated

48. Emergency Removal • Temporary emergency custody should not be continued for more than 30 days unless court makes all of the following determinations: • Restoring child to parent or Indian custodian would subject child to imminent physical damage or harm, • Court has been unable to transfer proceedings to the child’s tribal court, and • It has not been possible to initiate a child custody proceeding

49. Emergency Removal: Process State case management • Immediately document: • If child is in imminent physical danger • Indian status of child • Tribal affiliation • Most appropriate non-emergency jurisdiction (tribe or state) • Engage child’s tribe and seek input into continuation of placement and active efforts

50. Emergency Removal: Process Tribal case management • Respond promptly with Indian status, domicile of child, and relevant parts of the tribal code (jurisdiction) • Become actively engaged in CPS process and case planning • Determine if transfer is necessary • Provide input into continuation of placement and active efforts