ICWA

Investigating Abuse Cases

Instructions:-

As an investigator of alleged abuse/neglect, what does ICWA require you to do first?

Solution

Investigating Abuse Cases

The history of the ICWA began in 1978. The Indian Child Welfare Act is a federal law that was enacted to provide minimum standards for the removal of Indian or Native American children from their homes and away from their families. This law was enacted due to the very high percentage of Native American children that were being removed from their homes in the late 1800’s to mid-1900’s  and being placed in foster homes, BIA boarding schools, and work homes that were not culturally familiar to them or for any real cause or reason. As part of the war department this organization set up by Richard Pratt founded the first federal Indian boarding school and stated in the opening speech to “Kill the Indian, Save the man”(Kids Matter Inc.,2016) Children were forcefully taken from their homes and forced to either learn manual labor skills such as farming or perform domestic work such as cleaning and sewing as well as attend school to learn reading, writing, history, and math in the “white point of view”. In the 1960’s tribes began challenging the placements of these children and by the 1970’s began having a direct interest in protecting Indian children. With the enacting of ICWA in 1978 it gave tribes the right to intervene and participate in decision concerning the welfare of their children.

                ICWA Provisions and Requirements for removal standards, foster care, pre-adoptive, and adoptive placements:

• No child can be removed from the home of their family without active efforts being made to preserve the family and prevent the break-up of parents and their children. Active efforts mean taking actions such as rehabilitative services to address any issues at home that may be objectively endangering the child or causing concerns of neglect. 25 U.S.C. 1903 The child must be treated as an Indian child until proven to not be whether they are in or out of the family home.
• Identification of an Indian Child- This is done by considering the child’s age which must be under the age of 18, they must be unmarried, and are either a member of an Indian tribe or the child of a member of a tribe and eligible for membership. The tribe must be identified and notified of their possible membership and confirmation must be received that the child is or is not a member or eligible. They must also be notified of their Rights of Intervention by registered mail of the pending court proceedings.
• Determine Applicability of ICWA- Determine whether this is applicable to the child in question consider whether it is State or Tribal Court and Indian Tribal Jurisdiction, is this a Child Custody Proceeding, has the determination or verification been made as to the tribal relation of the child, and is this an emergency proceeding? 25 U.S.C. 1912(d)
• Placement- Considerations must be made and ICWA Guidelines must be followed when determining appropriate placement for an Indian child. Consider existing family exceptions.
• Emergency Proceeding- Emergency proceedings come with a higher burden of proof and requires more evidence-based standards for removal of a child. 25 U.S.C. 1915(a)-(b)
• Emergency Placement- There must be evidence of imminent danger or harm to the child to consider emergency removal and the placement of the child must be considered by all parties and preferred placement is to be considered into an Indian family home before the option of foster care or non-Indian family placement. Consider temporary custody. 25 U.S.C. 1915(a)

As an investigator of alleged abuse/neglect, what does ICWA require you to do first?

As an investigator of abuse or neglect of possible or confirmed Indian/Native American child, the first thing you are required to do is to determine the applicability and eligibility of the child and the situation to the ICWA regulations and guideline. In doing this you must verify the membership status of the child and ancestry to the tribe in question and provide them with notification in a timely manner as set by ICWA or state guidelines.

How would Anne’s lineage be determined?

An investigation into the ancestry of Anne’s parents is done by contacting the tribe for membership verification and if the tribe does not respond in a set amount of time the State can make a determination only after Due Diligence to gather tribal documentation or citizenship verification.

Can Anne be removed from her home and placed in foster care if she is of Native American descent?

In order to be able to remove Anne for her home, there is a high burden of proof to meet to determine if she is in need of removal from the home however according to ICWA guideline, if she is removed from her home, the consideration must be made about her cultural relations and the impact that a foster care home would have on her as a child from an Indian home. I see this situation as a possible emergency circumstance so foster care would be an option if a preferred placement home was not available for her.

Reference

(2013). Understanding Child Abuse and Neglect. [Colorado Technical University (CTU)]. Retrieved from https://coloradotech.vitalsource.com/#/books/9781323388099/

National Indian Child Welfare Association. (2009). Retrieved December 2, 2009, from http://www.nicwa.org/

National Archives and Records Administration. (2016, June 14). Indian Child Welfare Act Proceedings. Retrieved September 9, 2020, from https://www.federalregister.gov/documents/2016/06/14/2016-13686/indian-child-welfare-act-proceedings

Kids Matter Inc. (2018, November 5). Boarding Schools and the History of ICWA. Retrieved September 9, 2020, from https://kidsmatterinc.org/boarding-schools-and-the-history-of-icwa/?gclid=EAIaIQobChMIr4v2rOvf6wIVGaSzCh1c2AnyEAAYASAAEgJcR_D_BwE

AdvoKids. (2018, December 12). Indian Child Welfare Act (ICWA). Retrieved September 9, 2020, from https://www.advokids.org/legal-tools/indian-child-welfare-act-icwa/

Cornell Law School. (n.d.). 25 U.S. Code § 1913 – Parental rights; voluntary termination. Retrieved September 10, 2020, from https://www.law.cornell.edu/uscode/text/25/1913