Besides my mediation and arbitration work, I am also a Court Appointed Special Advocate (CASA) and guardian ad litem (GAL) in New Mexico. Recently, the Second Judicial District CASA Program organized Indian Child Welfare Act (ICWA) Trianing at the Juvenile Justice Center. Bernie Teba, member of the Navajo Tribe and Santa Clara Pueblo, and the CYFD Tribal Liaison, discussed various ICWA processes and placement requirements which I will recount here.
As a threshold matter, a child must meet certain requirements to be a "Indian child" covered under ICWA. He or she must be an enrolled member or eligible for enrollment in a Tribe; be unmarried and under eighteen years of age; and have one or both biological parents been members of a federally recognized Tribe.
Even then, however, ICWA does not apply to certain cases: where the Tribe has exclusive jurisdiction, such as when the matter is already in Tribal Court, or the family is domiciled and abuse/neglect occurred on the reservation; in divorce and custody disputes; and in pure juvenile delinquency cases.
If ICWA does apply, a Tribe must be notified within ten (10) days when a potential member child is involved in an abuse neglect case. Such notice is usually provided to a designated ICWA representative. At that point, the Tribe can take of of three (3) actions in response: (1) do nothing; (2) intervene; or (3) request a transfer of the case to Tribal jurisdiction. A Tribe may elect to do nothing when it does not know the member, and/or the State has better resources. The Tribe may limit its involvement to intervention where, again, the State has greater resources. Not all Tribes choose to intervene, although some (such as the Mescalero and Jicarrilla Apache Tribes) usually do so.
If a Tribe is involved in the case, but does not request transfer of jurisdiction, Tribal approval will be required for any foster or adoptive placement. Generally, foster and/or adoptive placements should be with a family or Tribal member. However, approval is not required for emergency placements, and as a practical matter Indian placement often will not be feasible for treatment foster care.
The burden on CYFD throughout the proceedings will be to take "active" (versus merely "reasonable") steps to provide "culturally appropriate" remedial and reunification services." The treatment plan (TP) should reflect the requirement to provide culturally appropriate services for both the parents(s) and child(ren). However, the TP should also be specific in identifying such "culturally appropriate" services, while it can be quite difficult if not impossible for outsiders to know what such "culturally appropriate" services would even be. In that case, CYFD and CASA workers are encouraged to contact Mr. Teba, who can assist in obtaining such information from the Tribe.
The final step will be identifying a Tribal member for adoptive placement, a burden that necessarily must reside with the Tribe, but may require prompting and coordination by CYFD. The requirement of a Tribal placement is referred to as "preference placement." Under ICWA, the long term damage to both Tribes and children by out-of-Tribe placements is recognized as being quite severe. In the event that a non-Tribal adoptive placement is nonetheless in the best interests of the child (such as if a Tribe member cannot be identified in a timely fashion), the Tribe will be more likely to approve such a placement if there is a "cultural connection agreement." Under such an agreement, which is between the Tribe and the prospective adoptive family, the prospective family agrees to maintain the child's cultural connection.
If you are interested in child-related mediation or GAL (guardian ad litem) services, please contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
