Involuntary Child Custody Proceedings under the Indian Child Welfare Act

Involuntary Child Custody Proceedings under the Indian Child Welfare Act

When an agency of a state believes that it is the best interests of a child, who could be of Native American descent, to take involuntary custody of the child from his or her parents, the procedures set forth in the Indian Child Welfare Act must be followed. The Act requires notice, a right to intervene in the proceedings by the child’s tribe and Indian custodian, appointment of counsel for an indigent parent or Indian custodian, access to court records, and jurisdictional and trial considerations.

The Indian Child Welfare Act must be complied with whenever a state seeks to place an Indian child in foster care or to terminate parental rights. A proper notice is necessary. The notice must be sent to the parents, the Indian custodian, and the child’s tribe. It must inform them of the involuntary state child custody proceeding and advise them of their right to intervene in the action. The proceedings cannot be held until least ten days after the receipt of the notice. The recipients have a right to continue those proceedings for another twenty days to allow them to prepare for it. The notice must be sent by registered mail, return receipt requested. A copy of the notice and return receipt must be provided to the court.

The Indian child’s parents have a right to be a part of the custody proceeding for foster care placement or termination of parental rights. The Indian Child Welfare Act permits the child’s tribe and Indian custodian to also take part in the proceedings. The intervention takes the form of a petition by the child’s parents, tribe, or Indian custodian to transfer the child custody proceedings to the tribal court. The tribal court can decline jurisdiction over the matter. If the child’s parents are indigent, the state must appoint and pay for an attorney. If state law does not provide for counsel in the proceedings, the attorney fees and expenses will be paid by the Bureau of Indian Affairs designated for the state. If it is in the best interest of the child that he or she has appointed counsel, the court may also appoint counsel for the child.

For foster care placement, the Indian Child Welfare Act requires clear and convincing evidence that the continued custody of the child by his or her parent or Indian custodian is likely to result in serious emotional or physical damage. For termination of parental rights, the evidence must be beyond a reasonable doubt that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. State courts must apply these standards to the proceedings. Also, the state must show that actions were taken to rehabilitate and keep the Indian family together. The Indian child’s tribe should normally be involved in assisting with rehabilitative services to the family.