Revised BIA Guidelines for State Courts and Agencies in Indian Child Custody Proceedings
The BIA has recently released updated ICWA guidelines. These ICWA guidelines apply to state and state court entities. AIAN kids are still 4x more likely to be removed and placed in a non-native home. Here are some of the key updates in my opinion:
-State courts must apply ICWA until the court knows the child is not ICWA eligible
—Basically they must verify (through ways outlined in the guidelines) the child is not Native before they can treat the case as a regular case.
—To this extent the guidelines require more and more strenuous active efforts than were previously required.
-It REJECTS the Existing Indian Family Exception
-In emergency removals
—Should only be removed when a child is in imminent danger, not when parenting could be better. And should be as short as possible.
—When working with a child, emergency removal can’t last longer than 30 days when ICWA applies.
-In involuntary proceedings
—Active efforts (AE) must be shown to be unsuccessful. And documentation needs to show in detail. AE needs to be culturally relevant.
—Standards of proof updated: Can no longer consider poverty, single parenting, inadequate housing, substance abuse, non-conforming social behavior alone.
—The connection and pathway has to be clearly stated. Can’t remove b/c parent has mental disorder (e.g. bipolar) must say parent has bipolar and historically has left the children unsupervised and efforts to help change this have not succeeded.
-Adoptions where ICWA becomes an issue is where ICWA wasn’t followed in the initial stages of the case.
-Placement preferences must be followed unless good cause is shown.
-Post-trial rights:
—Within 2 years of adoption the parent who consented can vacate due to fraud, duress or ICWA non-compliance.
—Can invalidate if certain sections were not followed 1911, 1912, 1913. At any point a party can bring forward issues that rights were violated.
