What are the extra responsibilities REQUIRED under the Indian Child Welfare Act (ICWA)?

Notice: ICWA requires that notice must be sent to the parent or any Indian custodian and the child’s tribe where there is reason to know the child may be an Indian child.[3427] Notice must be provided to incarcerated parents as well. To facilitate timely and effective notice of hearings to incarcerated parents, the social services agency must use the prisoner location system developed by the Department of Corrections and Rehabilitation.

For the jurisdictional hearing, a dispositional hearing, or a Welfare and Institutions Code § 366.26 permanency planning hearing, the notice must: (1) inform the incarcerated parent of his or her right to be physically present at the hearing and (2) explain how the parent may secure his or her presence or, if he or she waives the right to be physically present, appearance and participation. For a review hearing, or any other hearing in a dependency proceeding, the notice must inform the incarcerated parent of his or her options for requesting physical or telephonic appearance at and participation in the hearing.[3428]

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.”[3429]

This means the party seeking to remove a child (the social services agency, a person petitioning for guardianship, etc) must engage in active efforts to prevent removal of the child and keep the family intact, or if removal is necessary to provide active efforts reunification services. Examples of active efforts include:

    Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal.
    Identifying appropriate services and helping the parents overcome barriers, including actively assisting the parents in obtaining those services.
    Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning, and resolution of placement issues.
    Conducting or causing to be conducted a diligent search for the Indian child’s extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents.
    Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s tribe.
    Taking steps to keep siblings together whenever possible.
    Supporting regular visits with parents or Indian custodians in the most natural setting possible, as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child.
    Identifying community resources including housing, financial assistance, transportation, mental health and substance abuse services, and peer support services, and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources.
    Monitoring progress and participation in services. 
    Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available. 
    Providing post-reunification services and monitoring.[3430]

The above list of active efforts is not exhaustive, and is not a one-size fits all approach. What constitutes active efforts is made on a case-by-case basis and must include attempts to use the available resources of extended family members, the tribe, Indian social services agencies, and the individual Indian caregivers.[3431]

IMPORTANT NOTE: While active efforts services must be provided to incarcerated parents, the timelines of juvenile dependency cases are not altered due an incarcerated parent’s involvement. Therefore, it is critical that incarcerated parents work closely with their attorney to understand what services are available to them and/or a potential family placement and what timelines apply.

Placement Preferences

When an Indian child requires out of home placement, the placement must be in the least restrictive environment that most closely approximates their family,[3432] within the following preference order (in descending order):

    A member of the Indian child's extended family;
    A foster home licensed, approved, or specified by the Indian child's tribe;
    An Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
    An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.[3433]

County social welfare agencies have an active efforts responsibility to place within this preference order. If placement within the preference order cannot be located or if the placing agency wishes to deviate from the preference order, a court order specifying good cause is required prior to the placement being made.[3434]

Criminal background checks are required for placement of dependent children with relatives or prospective guardians who are not licensed or certified foster parents. Placement might not be allowed if the proposed caregiver has a criminal record.[3435]Certain violent felonies are an absolute bar to placement. However, an exemption may be granted for other crimes, including violent misdemeanors, where there is reason to believe that the potential placement is of good character and would not pose a risk of harm to the child.[3436]

A party seeking placement of an Indian child must either: (a) request an exemption for a potential placement with a criminal record if that placement would satisfy the ICWA’s preferences, or (b) “adequately support its reasons for not doing so if failure to request a waiver results in a placement that contravenes the ICWA preferences.”[3437]

    If you/or your choice for placement have a criminal background and would like to be placement for an Indian child, speak with your attorney, the case social worker and/or the child’s tribe to determine whether a criminal records exemption may be available.
    The child’s tribe has an absolute right to alter the placement preference order.[3438]
  1. 3427

    25 U.S.C. § 1912(a).

  2. 3428

    See Superior Court of California, Form JV-450 – Order for Prisoner’s Appearance at Hearing Affecting Parental Rights, http://www.courts.ca.gov/documents/jv450.pdf.

  3. 3429

    25 U.S.C. § 1912(d).

  4. 3430

    2016 Bureau of Indian Affairs ICWA Regulations, Quick Reference Sheet on Active Efforts, https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/ois/pdf/idc2-041405.pdf.

  5. 3431

    Welf & Inst. Code § 361.7(b).

  6. 3432

    25 U.S.C. § 1915(b); Welf. & Inst. Code § 361.31(b).

  7. 3433

    25 U.S.C. § 1915(a)-(b).

  8. 3434

    See Federal Register, Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, Section F, https://www.federalregister.gov/documents/2015/02/25/2015-03925/guidelines-for-state-courts-and-agencies-in-indian-child-custody-proceedings.

  9. 3435

    Welf. & Inst. Code § 361.4(d)(2); Health & Safety Code § 1522.

  10. 3436

    Welf. & Inst. Code § 361.4(d)(2); Health & Safety Code § 1522(g)(1).

  11. 3437

    In re Jullian B. (2000) 82 Cal. App. 4th 1337, 1347.

  12. 3438

    25 U.S.C. § 1915(c).