The Indian Child Welfare Act, 25 USC §§ 1901-1963, <http://www.nicwa.org/Indian_Child_Welfare_Act/ICWA.pdf>, is a federal law designed to protect Native American and Alaskan Native families from unnecessary breakup by requiring notice to tribes in divorce, child custody, and child welfare cases involving native children and by imposing procedural protections in such cases. This law was adopted because Congress thought that state child welfare officials were too aggressively interfering with native families. For the protections of the Act to apply, however, either the courts or the state child welfare agencies have to be aware they are dealing with native children. A recent case from Oregon, Dept. of Human Resources v. S.R.H., 278 Or App 427 (2016),, <http://www.publications.ojd.state.or.us/docs/A157952.pdf>, offers an example of why early notice and early confirmation of a child’s status as Native American or Alaskan Native is important. Failure to ensure that proper notice is given and confirmed before a court acts may result in an involuntary breakup of the family and placement of children with a non-native caregiver when that could have been avoided.
The case involved a mother descended from a member of the Karuk tribe and her two children. In 2004, during a Department of Human Services assessment, the mother informed DHS that she was a Karuk tribal member. DHS contacted the tribe for confirmation, but the tribe responded that although the mother was descended from a tribal member, she did not have a sufficient percentage of Karuk ancestry to qualify for membership, and that she and the children were not members. DHS noted the issue in its records, but relied on the tribe’s denial to determine that, at that time, the children were not native children.
In February 2011, DHS intervened again because of suspicions of sexual abuse by the father and substance abuse by the mother. The children were removed from the home on an emergency basis. At this time, DHS noted the 2004 inquiry into tribal membership and asked the mother about the children’s status. The mother claimed to have a tribal membership card, but stated that she did not know if she was an enrolled member. DHS sent her a form to claim native status, but she did not complete it. At a March 2011 shelter hearing, the judge noted that the issue of whether the Act applied was unresolved and temporarily placed the children with non-native foster parents.
The next hearing was in May 2011. At that time, the judge placed the children under the court’s jurisdiction and set an eventual goal of reunification. The orders for both children said nothing about whether the children were native children.
In June 2011, the parents completed forms for claiming native status, but both of them denied native ancestry. This would prove critical.
In February 2012, the court continued the foster placement and ordered the parents to participate in rehabilitative services so that the children could eventually be returned to them. The judgments again said nothing about their native status. The parents, unfortunately, did not participate in services.
In May 2012, the Karuk tribe issued the mother a membership card reflecting Enrolled Descendant Tribal Member status, which would be enough to show that the children were native children. She did not, however, inform DHS. As a result, at a permanent disposition hearing in June 2012, the Act was not mentioned. In light of the parents’ failure to participate in services, the judge ruled that reunification efforts were not successful and that the children should be placed with the foster parents on a permanent basis. Adoption was not recommended. Another hearing in June 2013 resulted in a continuation of the permanent placement. Adoption, again, was not recommended.
Only after that hearing did the mother again mention tribal status to DHS. In July 2013, she informed DHS that a tribe would be contacting them. In October 2013, the Karuk tribe notified DHS that the mother and children were enrolled descendant members. Based on this information, DHS concluded the children were native children and treated the case thereafter as subject to the Act.
In 2014, the mother challenged the court’s jurisdiction over the children, alleging violations of the Act. In a subsequent hearing, evidence of when the children’s status did or did not come to DHS’s and the court’s attention was presented. The tribe certified an expert, who also was an enrolled descendant member, to give an opinion as to proper placement. He reported that the tribe had decided not to intervene, had no objection to leaving the children with the foster parents, and had expressed no opinion on adoption. The expert also testified that his opinion regarding placement was that leaving the children with the foster parents was the best option. The judge ruled that the case had not been subject to the Act until late 2013, and that the Act only applied to developments after that date. The motion to dismiss the case was denied, and the children remained with the foster parents, but DHS’s recommendation to change the final goal to adoption was denied. The parents appealed.
Oregon state law requires that in cases when an involuntary placement of children under the court’s jurisdiction is being considered, the court must inquire into whether the children are native children, and Ii the court knows or has reason to know that they are, DHS must notify the tribe, and the case must be treated as being subject to the Act thereafter until the court decides otherwise. The Bureau of Indian Affairs has issued guidelines that assign information held by child welfare agencies to the effective knowledge of the court. This means that if DHS knows or has reason to know that the children are native children, the Act is considered to apply. If the procedures of the Act are violated, parents, children, and tribes may move to vacate the court’s rulings. As a result, the time DHS should know a child is native can be critical.
The Court of Appeals reviewed the evidence, and determined that the trial judge properly ruled that the Act did not apply when the children were removed from the family or when the goal of reunification was abandoned. It relied on the facts that DHS had inquired with the tribe in 2004 and been informed that the mother and children were not members, and that the mother refused to provide confirmation in 2011 that she had Karuk ancestry or complete the forms provided by DHS. Furthermore, when the forms were completed, the mother denied native ancestry. DHS was entitled to rely on this until it had information to the contrary, and the mother failed to inform DHS when she received a membership card before the reunification plan was abandoned.
Before a native child is removed from his or her parents, the Act requires that active efforts must be made to provide services to prevent the breakup of the family. Native children must remain with the parents or be placed with native caregivers unless that would be likely to cause serious emotional or physical harm to the child. The Court of Appeals noted, however, that these protections only apply once the court or DHS knows or should know that the children are native children, and ruled that a later finding does not require new active efforts if the children have already been placed with non-native caregivers. This does not change if the placement is continued at a subsequent hearing, because the placement has already been made. The Act only applies prospectively.
State law does require that in all cases, reasonable efforts at reunification must be made before changing a plan from reunification to other placement. This is a lesser standard than active efforts, and the parents’ refusal to engage in services satisfied it. A subsequent finding that the Act applies does not require new active efforts. Once the change is made, the boat has sailed.
Similarly, under state law, permanent placement generally only requires reasonable efforts to make a timely placement. Nobody disputed that DHS had made those reasonable efforts.
If you are native parents involved in a child welfare case, it will be to your advantage to notify DHS of your status as soon as possible and to confirm that status as often as necessary. You will gain the protection of tougher standards before the children can be removed. You will also get more protection against subsequent errors by the court and DHS. On the other hand, if you are a proposed caregiver, it may be in your interest to keep quiet on the subject until the parents, children, or tribe raises it.