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  1. #1
    Join Date
    Apr 2013
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    23

    Question Indian Child Welfare Act and Placement of a Child

    My question involves adoption law for the State of: Colorado

    I am trying so hard to understand ICWA preferences and the law's intent. Please help!

    An Indian newborn is removed from mother, mother has no relatives who can take child (ICWA preference #1), and father is unknown and unidentified, and the tribe is contacted and has no homes (ICWA preference #2), and County finds an adoptive Indian foster home not of the child's tribe, licensed by County (ICWA preference #3) and places child there. Tribe is okay with this. So far so good. Everyone is compliant (I think).

    Meanwhile, relative (who can't take placement) talks and talks about how she has her suspicions about who the father is, and has talked to some potential fathers but she cannot convince them to go to court or contact the caseworker.

    County continues to make exceptional efforts to reunify with mother, but mother refuses.

    Time flies and County is fast approaching the ASFA time limit for permanency planning. Child is almost a year old now.

    Potential fathers who were aware the whole time suddenly decide to show up in court and ask for DNA testing.

    My question is, if one of them tests positive, and he has relatives who would take Child (ICWA preference #1), would ICWA require County to move child almost a year later even though placement was initially compliant and County did everything right to begin with? Or do the preferences only apply when placement decisions are being made, and not during a stable placement? Or does this fall under Good Cause Guideline #3, below, because they did search and at the time the relatives weren't available?

    I realize that mother has standing to object under ICWA (Good Cause Guideline #1, below), and that County has to make decisions regarding whether father gets a treatment plan when he sat around for a year, but I am asking about the situation of paternal relatives where mother does not show up to object.

    Not to mention the fact that ICWA may require a non-Indian relative who is a stranger to the child over a stable Indian home where the child is attached, drives me crazy. thank you for any input you have.

    Good Cause To Modify Preferences
    a. For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not
    to follow the order of preference set out above shall be based on one or more of the following
    considerations:
    a. (i) The request of the biological parents or the child when the child is of sufficient age.
    (ii) The extraordinary physical or emotional needs of the child as established by
    testimony of a qualified expert witness.
    (iii) The unavailability of suitable families for placement after a diligent search
    has been completed for families meeting the preference criteria.

  2. #2
    Join Date
    Sep 2005
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    Default Re: Indian Child Welfare Act and Placement of a Child

    See 25 U.S.C. Sec. 1915. You are quoting from the Guidelines for State Courts;  Indian Child Custody Proceedings, that were drafted by the BIA to assist state courts in their interpretation and application of the ICWA. Courts normally give those guidelines significant weight, but they are not technically binding.

    The placement of a child for foster care is not the same thing as an adoptive placement, so the prior proper consideration of the law during foster care proceedings is not going to allow a court to avoid applying 25 USC Sec. 1915 if the mother's rights are terminated and it is time to make a pre-adoptive placement.

    If a putative father comes forward before his rights have been terminated as an unknown father, and DNA testing establishes that he is the child's biological father, then he would be in a position to petition the court for custody; depending on the full facts, he may be able to obtain relief based upon a lack of Due Process even if his rights were terminated as an unknown father, but you have not shared enough facts to know if we need to get into that level of complexity. If his rights have been terminated and he is either not seeking relief from the termination or his efforts for relief have failed, his family would be in a position to assert its rights under 25 USC Sec. 1915, and the court will follow that statute and in all likelihood also follow the BIA's guidance on its interpretation and application.

  3. #3
    Join Date
    Mar 2013
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    18,340

    Default Re: Indian Child Welfare Act and Placement of a Child

    Quote Quoting willow26
    View Post

    Not to mention the fact that ICWA may require a non-Indian relative who is a stranger to the child over a stable Indian home where the child is attached, drives me crazy.
    How, exactly, are you involved in this scenario?

    Father of the child?

    Mother of the child?

    Relative?

    Something else?

  4. #4
    Join Date
    Apr 2013
    Posts
    23

    Default Re: Indian Child Welfare Act and Placement of a Child

    Thank you. No one's rights have been terminated yet but in a case where ICWA did not play a role, you'd be looking at one or two parents who waited almost a year doing nothing, and they would be highly unlikely to complete a treatment plan in time for permanency planning. The court would also be likely to find it's not in the childs best interests to move to any relative so late in the game. And when parent(s) did nothing so long the courts here would not find good cause to extend the ASFA deadline to help them out.

    Enter ICWA, and I was basically asking myself if ICWA only applies to foster care placement decisions as they are happening, or does ICWA continue to apply all the up to adoption finalization to change the child's placement repeatedly until it gets to preference (i).

    What I want to hear is that ICWA placement preferences apply when searching for a placement, and once the child is in permanent placement, ICWA placement preferences would only apply if County ignored or failed to search for a higher preference placement and violated the law. Or I would like to hear that if placement preference (iii) was the highest that could be found at the time, and that's the permanent placement, it won't be changed because it's on the list and is therefore compliant.

    What I am afraid I will hear is that ICWA kids must be moved repeatedly throughout the duration of the case from (iii) to (ii) to (i) as homes higher on the placement preference are searched for and found.

    I tried googling this and all I can find are articles and cases about permanent placements that are not on ICWA's list at all. That's not the case here, where current placement is (iii) on a list of (iv) already, so is that worth anything at all when a family that's (i) shows up.

    Thanks for taking the time to read this.

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