July 16th, 2019
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What You Should Know About The Federal “Indian Child Welfare Act”

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What You Should Know About The Federal “Indian Child Welfare Act”

The federal Indian Child Welfare Act (“ICWA”) is an important law that needs to be considered and evaluated in every domestic adoption. The ICWA was passed by the United States Congress more than 30 years ago and is codified in 25 U.S.C. 1901 et seq. California codified ICWA in its Family Code and Welfare and Institutions Code.

ICWA was passed to correct an unfair and disproportionate pattern of removal of Indian children from their homes by child protective services among the States. The statistics were startling as Congress discovered that Indian children were three times more likely to be removed from their homes and placed in foster care or adopted and approximately 25-35% of the Indian children who were removed from their homes were placed in foster care or adopted by non-Indian families. Congress realized that States did not understand or value the social and cultural differences in Indian communities and were culturally insensitive to the importance of extended Indian families and tribal relations. Congress passed ICWA to protect Indian children from such removal from their homes and their disproportionate placement with non-Indian families.

When does ICWA apply to an adoption?
As written, Congress intended for ICWA to apply only in involuntary custody proceedings when an Indian child is taken into child protective services. ICWA was not intended to apply to voluntary adoption proceedings where Indian birth parents voluntarily and willingly decide to place their child for adoption and select the family who will be the child’s adopting parents. Unfortunately, many courts have broadened the original scope of ICWA and apply ICWA to voluntary adoption proceedings whenever an “Indian child” is involved. These court rulings have created tension between the birth parents’ desire to place their child for adoption with a non-Indian family and the Indian tribe’s independent right to intervene in the adoption and place the child with an Indian family. The question of the constitutionality of applying ICWA to prevent a biological mother from voluntarily selecting who she would like to raise her child has not been adjudicated by the United States Supreme Court. Currently, each state has interpreted ICWA differently as it applies to voluntary adoptions.

In the vast majority of states, courts have ruled that ICWA applies whenever an “Indian child” is involved in a custody proceeding, including voluntary adoption. The term “Indian child” is defined as any unmarried person who is under 18 years old and is either (1) a member of a federally-recognized Indian tribe; or (2) eligible for membership in a federally-recognized Indian tribe and is the biological child of a member of a federally-recognized Indian tribe. There are more than 500 federally-recognized tribes in the United States. Although enrollment in a tribe is the typical way to establish membership, a person may be a member of a tribe without being enrolled. Questions of eligibility and membership are left to the tribe to decide and courts rarely disturb a tribe’s determination as to whether the child is an “Indian child.”

Therefore, in every adoption, it is imperative for the adoption attorney or adoption agency to ask the birth mother if she has American Indian or Native American ancestry at the outset of the adoption. If the birth father is known, he should be asked this question as well. If either birth parent indicates that he/she may have Indian ancestry, ICWA requires further inquiry about such ancestry. Indeed, the duty of notice under ICWA is triggered if one “knows or has reason to know that the child is an Indian.” The birth parent should speak with family members and relatives to obtain as much information about their family history in order to give notice to the proper tribe. If the birth parent does not know the names of their ancestors whom he/she thinks may be members of a tribe and/or the birth parent does not know the specific tribe, notice still must be given to the Bureau of Indian Affairs.

In California, if a person knowingly or willfully falsifies or conceals a material fact that concerns whether the child is an Indian child, the person is subject to court sanctions and fines.

What type of notice must be provided and to whom?
If a birth parent believes that he/she has Indian ancestry, notice must be sent to the tribe, or if the tribe is unknown, to the Bureau of Indian Affairs. A copy of the notice must be sent to the birth parents as well.

The notice must contain specific information: (1) notification that the tribe and biological Indian parents have an absolute right to intervene at any point in the adoption proceeding; (2) that counsel will be appointed to represent the Indian parent or Indian custodian where authorized by state law, and (3) that the tribe and biological Indian parent have the right to petition the court to transfer the adoption to the child’s tribal court, absent objection by either parent.

If proper notice has been sent and neither the tribe nor the BIA provide a response regarding the child’s eligibility for membership within 60 days of receipt of the notice, the adopting parents may file a motion requesting the court determine that ICWA no longer applies. If the court grants the motion, then notices are not required unless either the tribe or BIA subsequently confirm the child is an Indian child and ICWA applies. In that case, the court must reverse its determination and apply ICWA prospectively.

If the tribe chooses to intervene in the adoption, what can it do?
If the tribe confirms that the child is eligible for membership in the tribe, the tribe may choose to intervene in the adoption proceeding. The tribe is entitled to notice of all hearings and the tribe has the right to participate in the adoption proceeding and take various actions. It is important to remember that the tribe’s rights are independent and separate from the rights of the birth parents. One right that the tribe has is that it can petition the court to transfer the adoption to a tribal forum. In a tribal forum, tribal law applies and the tribes are not subject to federal ICWA standards like a state court. However, the transfer of jurisdiction to a tribal forum may be defeated if one of the birth parents objects to the transfer.

The tribe also may exercise its right to determine the placement of the child according to a specific preference order. In an adoptive placement, the preference order for an Indian child is: (1) with a member of the child’s extended family; (2) with other members of the child’s tribe; and (3) with other Indian families. The Indian child may be placed in a non-Indian home only if the court finds that a diligent search has failed to locate a suitable Indian home.

This preference order may be modified only for good cause, which includes: (1) the requests of the parent or Indian custodian; (2) the requests of the Indian child; (3) the extraordinary physical or emotional needs of the Indian child established by a qualified expert witness; and (4) the unavailability of suitable families based on a diligent effort to identify families meeting the preference criteria. The burden of proving that good cause exists is on the party seeking to modify the preference order.

Under ICWA, can a birth parent withdraw consent to the adoption?
If a birth parent signs a standard consent form and then it is determined that the child is eligible for membership in an Indian tribe, the birth parent’s consent becomes void. ICWA requires a birth parent to sign ICWA-compliant placement papers before a judge no earlier than 10 days from the birth of the child.

A birth parent who signs a consent form before a judge pursuant to ICWA may withdraw his/her consent any time before the court enters the final adoption order at the finalization hearing. Within two years of entry of the final Adoption Order, a birth parent may only withdraw his/her consent upon a showing that the consent was obtained by fraud or duress. A birth parent cannot withdraw his/her consent two or more years after the final Adoption Order is entered.

Can a private adoption be invalidated for violating ICWA even after the adoption has been finalized? 
ICWA provides that a child custody proceeding may be invalidated upon a showing that ICWA has been violated. ICWA does not specify a time limit in which a petition to invalidate the adoption must be filed.

In 1996, however, the California Court of Appeal for the Second District held that the right to invalidate a private adoption is not absolute. In In re Bridget R., 41 Cal. App. 4th 1483 (1996), the Second District reversed a trial court’s order returning Indian children twins to their birth parents on the ground that the children had an independent constitutional right to a stable and permanent placement under the Fifth, Tenth, and Fourteenth Amendment of the U.S. Constitution and application of ICWA in that case would violate the children’s constitutional rights. The Court held that ICWA should only be applied to Indian parents who have significant connection with the tribal culture at the time of placement, referred to as the “existing Indian family doctrine.”

The California Legislature responded to Bridget R. by enacting Assembly Bill 65, now codified in Welfare and Institutions Code Section 224, which provided that ICWA applies whenever the tribe determines that the child is an “Indian child” under ICWA. However, in 2001, the Second District continued its application of the existing Indian family doctrine stating that the California Legislature violated the Tenth Amendment by enacting AB 65 because Congress has the exclusive power to enact laws involving federally-recognized Indian tribes. See In re Santos Y., 92 Cal. App. 4th 1274 (2001).

Other California appellate courts are split on this issue and neither the California Superior Court nor the United States Supreme Court has addressed the validity of the existing Indian family doctrine.

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