6. Casework Activities for Court Proceedings

Approval: Jennifer Strus, Assistant Secretary

Original Date: September 1, 1991

Revised Date: September 12, 2016

Sunset Review: June 30, 2020


Purpose

Provide Children's Administration (CA) staff direction regarding what the best interest of an Indian child means and compliance with federal and state Indian Child Welfare Acts when out-of-home placement is needed to protect an Indian child.

Scope

This policy applies to CA staff.

Laws

RCW 13.38 Washington State Indian Child Welfare Act (WICWA)

RCW 13.34.050 Court Order to take child into custody, when – hearing

RCW 13.34.055 Custody by law enforcement officer – Release from liability

R.C.W. 13.38.130 Involuntary foster care placement, termination of parental rights – Determination – Qualified expert witness

RCW 13.38.140 Emergency removal or placement of Indian child – Notice

RCW 13.38.150 Consent to foster care placement or termination of parental rights - Withdrawal

RCW 13.38.160 Improper removal of Indian child

RCW 13.38.170 Removal of Indian child from adoptive or foster care placement

25 U.S.C. § 1901 - 1923  The Federal Indian Child Welfare Act (ICWA)

25 CFR Part 23  Bureau of Indian Affairs ICWA Regulations

Policy

  1. Placing an Indian child in out-of-home care
    The CA caseworker will:
    1. Ensure active efforts for services and programs [25 U.S.C.1912(d)] were made, in partnership with the Indian child’s tribe (when available), prior to any out-of-home placement except in emergent situations.
    2. Follow the requirements in any memorandum of understanding in place with a Washington state tribe.
    3. Follow CA ICW policies and procedures Chapter 3 Inquiry and Verification to determine the child’s tribe per federal and state ICWA, if not already completed.
    4. If placement is necessary, immediately contact the tribe to determine if the Indian child is a ward of a tribal court, domiciled, or a resident on an Indian reservation, and discuss the situation with the assigned AAG to determine tribal or state court jurisdiction.
      1. If the Indian child is a ward of a tribal court, confirm that the tribe wishes to retain jurisdiction. 
      2. If the Indian child is not a ward of the tribal court but resides or is domiciled on the reservation, determine if the tribe wants to assert jurisdiction. If a tribe asserts jurisdiction, provide the tribe with the case information.
      3. If the Indian child is not a ward of the tribal court and does not reside and is not domiciled on the reservation, take legal steps to arrange placement according to the emergent or non-emergent needs of the child.
    5. Contact the tribe within one business day of placement if it was not possible to verify jurisdiction with a tribe(s) prior to the placement, and if the state retains jurisdiction continue to meaningfully involve the tribe if the child is an Indian child.
    6. Follow CA ICW policies and procedures Chapter 10 Local Indian Child Welfare Advisory Committee (LICWAC)
    7. If out-of-home placement is needed, choose one of the following legal options:
      1. Voluntary Placement Agreement (VPA)
        1. Use a VPA only for a short-term out-of-home placement. Before creating a VPA determine: 
          1. The child is not currently a ward of a tribal court. 
          2. The child is at least ten calendar days old
        2. Draft and file a petition for an ICWA VPA in coordination with the local AAG or prosecuting attorney. 
          1. Provide the parent or Indian custodian the Consent to Foster Care Placement by Indian Child’s Parent or Indian Custodian JU 03.0920 
          2. Ensure the parents, Indian custodian, or legal guardian approve and sign the VPA in front of a juvenile state court judicial officer.
          3. Upload a copy of the Consent to Foster Care Placement and the judge’s certification in FamLink and file in the legal section of the case file.
        3. Follow CA ICW policies and procedures Chapter 7 Indian Child Placement Preferences and Relative Search and CA Practices and Procedures Voluntary Placement Agreement policy. VPA's may not be used to place a child or youth with an "other suitable person" per RCW 13.34.130
        4. Return the child to the custody of the parent or Indian custodian at any time upon request, unless returning the child will put him or her at imminent risk of serious harm. In that situation, take immediate steps to request the child be taken into protective custody by law enforcement, or work with your AAG to request a pick up order from the court and file a Dependency Petition JU 03.0100, and notify the parents or Indian custodian and tribe.25 U.S.C. §1913 (a),(b) RCW 13.38.150(1)and(2).
      2. Protective Custody by law enforcement
        1. Contact law enforcement if assistance is needed to place a child in protective custody when a child is at imminent risk of serious harm and follow: 
          1. CA Case Services Shelter Care policy. 
          2. File a Dependency Petition JU 03.0100 if needed, per CA Case Services Dependency Petition and Initial Court Order policies. 
          3. Follow the State Court Process for notice and summons.
      3. Court order authorizing placement in shelter care
        1. Use a court order authorizing placement when a VPA is not possible. 
        2. Determine that the child is not a ward of a tribal court. 
        3. File a Dependency Petition JU 03.0100 per CA Case Services Dependency Petition policy.
        4. Follow CA Case Services Initial Court Order policy and Shelter Care policy. 
        5. Gather and document the following information used to determine if placement is needed that would need to be included in a petition for a court order authorizing an emergency removal or continued emergency placement:
          1. A statement of the risk of imminent physical damage or harm to the Indian child
          2. Any evidence that the emergency removal or placement continues to be necessary to prevent such imminent physical damage or harm to the child 
          3. The name, age, and last known address of the Indian child; 
          4. The name and address of the child’s parents and Indian custodians, if any; 
          5. The steps taken to provide notice to the child's parents, custodians, and tribe about the emergency proceeding; 
          6. If the child's parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the BIA Regional Director; 
          7. The residence and the domicile of the Indian child; 
          8. If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village; 
          9. The tribal affiliation of the child and of the parents or Indian custodians; 
          10. A specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to take that action; 
          11. If the child is believed to reside or be domiciled on a reservation where the tribe exercises exclusive jurisdiction over child-custody matters, a statement of efforts that have been made and are being made to contact the tribe and transfer the child to the tribe's jurisdiction; and 
          12. A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody. 25 CFR § 23.113(d).
    8. Follow placement preferences and notify the child’s extended family per CA ICW policies and procedures Chapter 7 Indian child Placement Preferences and Relative Search.
    9. Make active efforts toward reunification with the child’s parents or legal custodian unless the court terminates parental rights.
    10. Schedule an FTDM or shared planning meeting within 72 hours of placement (excluding weekends and holidays) and prior to return home.
    11. Develop a case plan with the family and the tribe (for available services and resources when involved) based on the assessment of the family’s needs. The case plan must address the risk factors and the identified safety threat(s) for the child. 
    12. Confirm that required notices were sent to the parent, Indian custodian (if any), and tribe(s) before hearings, and that there is documentation of the notice filed.
  2. Intervention by a tribe or Indian Custodian 25 U.S.C. § 1911(c)
    If a federally recognized Indian tribe or Indian custodian intervenes in a case in which the state has established jurisdiction, the caseworker will:
    1. Provide the tribe with the case information according to confidentiality requirements in CA ICW policies and procedures Chapter 4 Disclosure of Confidential Records/Information to Tribes; and 
    2. If requested, schedule a case staffing.
  3. Transfer of jurisdiction from state court to tribal court
    The CA caseworker will:
    1. Send JU 11.0900 Motion for Order Transferring Jurisdiction to Tribal Court, and Tribal Court’s Order Accepting/Declining Jurisdiction, JU 11.0960 to the tribe for its use for these purposes (a tribe may also use its own tribal court forms). Upon receipt of an order from a tribal court accepting jurisdiction, the state court shall dismiss the child custody proceeding without prejudice. 
    2. Provide the tribe with the case information, and if requested, schedule a transfer case staffing.
  4. State court process
    The CA caseworker will:
    1. Inform the tribe, parents, and/or Indian custodian(s), if applicable, of the date and time of the Shelter Care Hearing. 
    2. In all situations that require sending notice (not membership inquiries done by NAIR), coordinate with the assigned AAG or prosecuting attorney to determine who is responsible for sending. 
    3. Ensure the parent, Indian custodian (if/when identified), and tribe(s) are served with Indian Child Welfare Act Notice JU 03.0900, including Dependency Petition JU 03.0100 and Notice and Summons/Order JU03.200 which includes the date and time of the Fact Finding Hearing, by certified mail, return receipt requested. 25 C.F.R. Sec. 23.111(c)
      1. Follow publication process per RCW 13.34.080 if unable to locate parent(s) on whom to serve legal notice in person.
      2. Send a copy of the Indian Child Welfare Act Notice JU 03.0900, Notice and Summons/Order JU 03.0200 and Dependency Petition JU 03.0100 to the Portland Bureau of Indian Affairs (BIA) by certified mail, return receipt requested upon filing a dependency petition 25 U.S.C. § 1912(a)
    4. Immediately inform the child's parent(s), (including any alleged father), Indian custodian (if any), and the tribe of the time, date, and place of the Dispositional Hearing if it is scheduled at a different time, date and place than the Fact Finding Hearing.
    5. Provide a copy of the court report to the child's parent(s), Indian custodian (if any), the child's tribe, and any other legal party to the proceeding.
    6. Inform the parent(s), Indian custodian, if any, and the child’s tribe(s) of all upcoming review hearings at least 14 calendar days prior to the Dependency Review Hearing. 
    7. Permanency planning:
      1. Continue active efforts to return the child home.
      2. Work with the AAG or local prosecuting attorney to request that the court make a finding on the record about: 
        1. whether the child is an Indian child, and if so 
        2. which tribe is serving as the Indian child’s tribe.
      3. If guardianship is identified as the permanent plan, follow CA Practices and Procedures Guardianship policy, Regional Administrator or designee approval is required prior to asking the court to support guardianship as a permanent plan, and:
        1. Facilitate a case staffing with the child’s tribal designee and obtain tribal recommendations. 
        2. Ensure the parent, Indian custodian (if/when identified), and tribe(s) are served with Indian Child Welfare Act Notice JU 03.0900, including Guardianship Petition JU 14.0100 and Notice and Summons/Order JU14.0200 which includes the date and time of the Guardianship Hearing, by certified mail, return receipt requested. 25 C.F.R. Sec. 23.111(c)
        3. Follow publication process per RCW 13.34.080 if unable to serve notice in person.
        4. Send a copy of the Indian Child Welfare Act Notice JU 03.0900, Guardianship Petition JU 14.0100 and Notice and Summons/Order JU 14.0200 to the Portland BIA by certified mail, return receipt requested upon filing a guardianship petition 25 U.S.C. § 1912(a)
    8. Prior to filing a termination petition, facilitate a case staffing with the child’s tribal designee and obtain tribal recommendations:
      1. Work with the AAG or local prosecuting attorney to request that the court make a finding on the record about: 
        1. whether the child is an Indian child, and if so 
        2. which tribe is serving as the Indian child’s tribe.
      2. Follow CA Practices and Procedures Filing a Petition to Terminate Parental rights policy.
      3. Follow CA Practices and Procedures Termination of Parental Rights – Compelling Reasons policy.
      4. Petitions for voluntary termination of parental rights may not be initiated for an unborn Indian child. The hearing on the petitions for relinquishment or termination cannot occur until the parent has signed the consent to adoption and at least 10 days after the birth of the child per 25 U.S.C. §1913 (a). 
      5. Consult with the CA supervisor and Assistant Attorney General when a tribe is not in agreement with the termination. 
      6. Ensure the parent, Indian custodian (if/when identified), tribe(s) are served with Indian Child Welfare Act Notice JU 03.0900, Notice and Summons/Order JU03.0200 and Termination Petition JU 04.0100, which includes the date and time of the Termination Hearing, by certified mail, return receipt requested. 25 C.F.R. Sec. 23.111(c).
        1. Follow the publication process per RCW 13.34.080 if unable to locate parent(s) on whom to serve notice for the termination hearing in person.
        2. Send a copy of the Indian Child Welfare Act Notice JU 03.0900, Notice and Summons/Order JU 03.0200 and Termination Petition JU 04.0100 to the Portland BIA by certified mail, return receipt requested upon filing a termination petition 25 U.S.C. § 1912(a).
      7. Coordinate with the local AAG or prosecuting attorney when service attempts are unsuccessful. The attorney will request the worker complete affidavit Motion and Declaration to Publish Notice and Summons JU 03.0210 and will file a motion and declaration to publish notice and summons.
    9. Qualified Expert Witness:
      1. Work with the local AAG or prosecuting attorney to identify a qualified expert witness for dependency disposition or termination hearings to meet the “clear, cogent and convincing” standard of proof that continued parental custody will likely result in serious emotional or physical damage to the child. 25 U.S.C. § 1912 (e) (f), 25 C.F.R. § 23.121 and 23.122
      2. When  the child’s tribe has an memorandum of understanding with the Department, review the MOU to determine if it lists the contact information for the tribe’s preferred qualified expert witness. For all other tribes, contact the Indian child’s tribe at least twenty (20) days prior to any evidentiary hearing in which the testimony of a qualified expert witness is required to request that the tribe identify a qualified expert witness. If the tribe does not identify someone in a timely manner, follow RCW 13.38.130 (4)(b)(i-iv)-(c) to identify a qualified expert witness.
      3. If additional assistance is needed in locating a qualified expert witness, contact regional ICW consultants or CA headquarters ICW program.
    10. Document all ICW activities, e.g., notifications and information provided to tribes by creating a FamLink case note and selecting Tribal Contact under the activities tab. Tribal contact case notes, including proof of services to the family are extremely important to CA and the assigned AAG to assess whether CA met its ICWA obligations. 
    11. File all ICWA/ICW correspondence and documents in the ICW section of the most recent physical case file.

Forms

Resources

Bureau of Indian Affairs
Portland Regional Director
911 NE 11th Ave
Portland, Oregon 97232