Indian Child Welfare Act (ICWA) in California Juvenile Dependency

Indian Child Welfare Act (ICWA) in California Juvenile Dependency Court

What ICWA is and why it exists

The Indian Child Welfare Act is a federal law enacted in response to decades of removal of Native American children from their families and tribes by state child welfare systems. Congress found that an alarmingly high percentage of Indian families were broken up by the unwarranted removal of their children, often by nontribal public and private agencies. ICWA establishes minimum federal standards for the removal of Indian children from their families and the placement of those children.

California has enacted parallel and supplementary statutes that codify ICWA into state law and add additional protections. ICWA applies in dependency cases, certain delinquency cases, voluntary placements, guardianships, and adoptions involving Indian children.

When ICWA applies

ICWA applies when the child is an Indian child, defined as an unmarried person under 18 who is either a member of a federally recognized Indian tribe or eligible for membership in a federally recognized Indian tribe and the biological child of a member.

The court must apply ICWA whenever there is reason to know that the child is or may be an Indian child. Reason to know can come from:

• A parent's, grandparent's, or other relative's statement that the child has Indian ancestry
• The child's enrollment or eligibility for enrollment in a federally recognized tribe
• Tribal residency or domicile
• Information from the agency, the court, or a tribe

Inquiry and notice

California law requires the court and the agency to ask about Native American ancestry at the first hearing and to follow up if any reason to know exists. Notice must be sent to the relevant tribe or tribes in a specific format and within specific timeframes. Failure to comply with inquiry and notice is one of the most common ICWA errors and is a frequent basis for appellate reversal.

If the agency has not properly inquired about ancestry or has not sent proper notice, counsel should raise the issue immediately. Errors that go unaddressed at the trial level can still be raised on appeal in many circumstances.

Higher evidence standards

ICWA imposes higher evidence standards than ordinary dependency cases:

• Foster care placement: requires clear and convincing evidence that continued custody by the parent is likely to result in serious emotional or physical damage to the child, supported by qualified expert witness testimony.
• Termination of parental rights: requires evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage, supported by qualified expert witness testimony.

These standards are significantly higher than the standards applied in non-ICWA cases. The qualified expert witness requirement is also strict and often requires a witness with specific tribal cultural knowledge.

Active efforts

ICWA requires active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family before any foster care placement or termination of parental rights. Active efforts is a higher standard than reasonable efforts. It requires affirmative, thorough, and culturally appropriate work by the agency, often in coordination with the child's tribe.

If the agency has not made active efforts, the court cannot make foster care or termination findings. Counsel should examine the active efforts record at every ICWA hearing.

Placement preferences

ICWA establishes placement preferences for Indian children. In foster care and pre-adoptive placements, the order of preference is generally:

1. A member of the child's extended family
2. A foster home licensed, approved, or specified by the child's tribe
3. An Indian foster home licensed or approved by an authorized non-Indian licensing authority
4. An institution for children approved by the tribe or operated by an Indian organization

For adoptive placements, the order of preference is generally:

1. A member of the child's extended family
2. Other members of the child's tribe
3. Other Indian families

The court can deviate from these preferences only for good cause, and the burden is on the party seeking to deviate.

Tribal customary adoption

California allows tribal customary adoption as a permanent plan option for Indian children. Tribal customary adoption does not require termination of parental rights. Instead, the tribe enters an order recognizing the adoption under tribal customary law, and the state court enters an order giving the tribal order full effect. This option preserves tribal relationships in a way that traditional adoption cannot.

Tribal participation

The child's tribe has a right to intervene in the dependency case at any stage. The tribe may appear, present evidence, request transfer to tribal court, and participate in placement and permanency decisions. Tribal participation can change the dynamics of a case significantly and is often a strong protective factor for the family.

Common ICWA issues to watch for

• Failure to ask about Native American ancestry at the first hearing
• Failure to follow up after a parent identifies possible ancestry
• Improper or missing notice to tribes
• Use of a non-qualified expert witness
• Application of the wrong evidence standard
• Reasonable efforts findings instead of active efforts findings
• Placement deviations without good cause findings
• Failure to consider tribal customary adoption when appropriate

Defense strategies in ICWA cases

Raise inquiry and notice issues immediately

If the parent has any Native American ancestry, real or possible, counsel should raise it at the first hearing and ensure the court makes a record of the inquiry. Errors at this stage compound throughout the case.

Engage with the tribe

The tribe is often the parent's strongest ally. Tribal involvement can lead to active efforts the agency had not considered, placement options the agency had not explored, and permanency plans that preserve the family.

Insist on qualified expert witnesses

The qualified expert witness must meet specific criteria. Counsel should challenge unqualified witnesses and insist on a witness with the appropriate tribal cultural knowledge.

Document active efforts

Counsel should examine the agency's active efforts record at every hearing. Active efforts is a higher and more specific standard than reasonable efforts, and many agency files do not meet it.