Indian Child Welfare Act (ICWA) Questions and Answers

From the National Indian Law Library, here is a list of FAQ’s regarding the Indian Child Welfare Act.

18.1 – What is an adoptive placement under the ICWA?

An adoptive placement under the Indian Child Welfare Act (ICWA) is the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. 25 U.S.C. 1903(1)(iv). An adoptive placement is one of the categories of child custody proceedings to which the ICWA applies, along with foster care placements, termination of parental rights, and pre-adoptive placements. 25 U.S.C. 1903(1). The Act applies to extended-family adoptive placements as well as step-parent adoptions. A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982); In re Baade, 462 N.W.2d 485 (S.D. 1990); In re Lindsay C., 280 Cal. Rptr. 194 (Ct. App. 1991). See FAQ 1.2, Application, for a further explanation of the issue related to the application of the ICWA in an intra-family dispute.

18.2 – What is the difference between an involuntary and voluntary adoptive placement and are there different procedural requirements?

The ICWA refers to involuntary proceedings, 1912(a), and to voluntary proceedings, 1913(a), which specifically include foster care placements and terminations of parental rights. As a result, adoption occurs after parental rights have been terminated. Thus, an involuntary adoptive placement is the result of an initial involuntary proceeding, such as removal of the child from his or her parent or Indian custodian where parental rights have been terminated, while a voluntary adoptive placement occurs as a result of the parents deliberate intention to relinquish their parental rights to and legal custody of their child, usually through a private adoption agreement.

The ICWA imposes several significant, but varying conditions on both proceedings. See also FAQ 4, Notice, FAQ 16, Placement and FAQ 17, Voluntary Proceedings.

18.3 – Does ICWA apply to private agency adoptive proceedings?

Yes. In enacting the ICWA, Congress noted the particularly harmful consequences of the unwarranted removal of Indian children from their families by nontribal public and private agencies, and their alarmingly high placements in non-Indian foster and adoptive homes and institutions. 25 U.S.C. 1901(4). State court child custody proceedings involving an adoptive placement of an Indian child, whether privately arranged or conducted by a state agency, are subject to the ICWA. 25 U.S.C. 1903(1)(iv); Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 39 (1989).

18.4 – When does an adoption of an Indian child become final?

It depends on state law if a state court handles the adoption, and tribal law if the adoption occurs in tribal court. In state court, an adoption becomes final upon entry of a formal decree or order of adoption. Each state specifies the time period between the termination of parental rights and adoptive placement and the final decree of adoption.

For example, Mississippi adoption law provides for a six month waiting period between the filing of the adoption petition and final decrees of adoption, but grants the state court discretionary authority to waive that requirement and immediately enter a final decree of adoption. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 38 (1989) (state court entered final decree of adoption less than one month after the babies birth). The waiting period between the filing of the petition and the final decree of adoption in Minnesota is ninety days and is six months in North Dakota. See MINN. STAT. 259.53(2) (1999); N.D. CENT. CODE 14-15-13(3)(a) (2003).

If the adoption occurs in tribal court when allowed under tribal law, and whether under tribal statutory or customary law, the timing and process of finalization of the adoption will depend on tribal law.

18.5 – Can you have an adoption without termination of parental rights?

Yes. Under certain circumstances. Adoption without termination of parental rights implements some of the purposes of the ICWA because it allows an Indian child to maintain contact with their family and tribal culture. The Administration for Children and Families within the federal Department of Health and Human Services has issued a bulletin concluding that the adoption of an Indian child can occur without the necessity of terminating parental rights, because of respect for tribal culture and tradition. Title IV-E Adoption Assistance (Eligibility & Ancillary Policies), POLY ANNOUNCEMENT (U.S. Dept of Health & Human Servs. Admin. for Children, Youth & Families, Washington, D.C.), Jan. 23, 2001.

Some tribal laws allow adoption without termination of parental rights. Most state laws require termination of parental rights as a matter of state law before (or at the time) an adoption decree can be entered, and this state law may inhibit an adoption without termination of parental rights.

18.6 – Can the adoption of an Indian child be challenged and, if so, for how long after the final adoption decree is entered?

Yes. There are two principal ways in which the ICWA challenges an adoption. The first principle way occurs when someone obtains the adoption through fraud or duress. In these circumstances, the adoption is subject to challenge for two years after the final decree of adoption has been entered. 25 U.S.C. 1913(d). Unless permitted by state law, the adoption cannot be invalidated after two years.

The second is pursuant to 1914, which permits any parent or Indian custodian from whose custody [an Indian] child was removed, and the child’s tribe to petition any court of competent jurisdiction to invalidate a foster care placement or termination of parental rights for the violation of any provision of 1911 (jurisdiction), 1912 (notice, appointment of counsel, determination of damage to child), or 1913 (consent, withdrawal of consent, voluntary termination of parental rights). Numerous issues may arise under this provision.

One issue concerns the person from whose custody they removed the child. A non-custodial parent may challenge an adoptive placement under 1914. Morrow v. Winslow, 94 F.3d 1386, 1394 (10th Cir.1996); cf. In re Child of Indian Heritage (Indian Child II), 543 A.2d 925, 937-38 (N.J. 1988). Another issue involves the type of custodial relationship the parent or Indian custodian maintains with the child. The prevailing view is that 1914 permits a parent or Indian custodian who has legal custody to challenge an adoptive placement. Indian Child II, 543 A.2d at 937-38; cf. In re Baby Boy L., 643 P.2d 168 (Kan. 1982). A further issue pertains to the proper court to hear the challenge. Federal and state courts generally have authority to review alleged violations of the ICWA. Doe v. Mann (Mann II), 415 F.3d 1038 (9th Cir. 2005).

18.7 – May a parent petition for the return of an adopted Indian child if the adoption is vacated?

Following a vacated final adoption decree, 1916(a) permits either the parent or Indian custodian to petition the court for custody of the child, notwithstanding the prior voluntary consent to adoption, and the court shall grant such petition unless there is a showing, in a proceeding subject to the provision of section 1912 of [the ICWA], that such return of custody is not in the best interests of the child. A.B.M. v. M.H., 651 P.2d 1170, 117475 (Alaska 1982). See also, FAQ 16.10, Placement.

18.8 – What legal status do step-parents have under the ICWA?

The ICWA includes step-parents in the definition of extended family member, 1903(2), to whom preference is given in foster care and adoptive placements. 25 U.S.C. 1915(a)-(b). Although not included in the ICWAs definition of parent, 1903(9), an Indian step-parent may qualify as an Indian custodian, which means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child. 25 U.S.C. 1903(6). This status affords a step-parent certain legal rights and standing similar to those of a parent. See, e.g., 25 U.S.C. 1911(c), 1912(e).

18.9 – May an Indian child adoption be arranged prior to the birth of the child?

A voluntary placement may be planned prior to the birth of an Indian child. No legal action, however, may be taken until more than ten days after the birth of the child, at which time the childs parents may consent to the childs placement. 25 U.S.C. 1913(a). The consent must be validly given according to the ICWAs consent requirement.

18.10 – What are the procedural requirements for executing consent to an adoptive placement?

To effectuate a valid consent to a voluntary termination of parental rights or adoption, the ICWA requires that the consent be (1) in writing, (2) recorded before a judge of a court of competent jurisdiction, (3) certified to by the presiding judge that the consequences of the consent were fully explained, (4) certified to by the court that the parent or custodian understood the explanation in English or had the explanation translated into a language understood by the parent, and (5) executed after the child is more than ten days old. 25 U.S.C. 1913(a). The Bureau of Indian Affairs (BIA) Guidelines indicate that the consent should be executed in open court unless confidentiality is requested. Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,593 (Nov. 26, 1979) (guidelines for state courts). The Guidelines also specify the basic information to be provided in the consent. Id.

18.11 – What type of notice does the Act require for an adoptive placement?

In involuntary proceedings, the ICWA requires that notice be given to the parent or Indian custodian and the childs tribe by registered mail, return receipt requested, where the court knows or has reason to know that an Indian child is involved . . . . 25 U.S.C. 1912(a). An adoptive placement effected after an involuntary termination of parental rights is an involuntary proceeding and notice to the tribe of both the termination and the adoption is required.

Some courts hold that notice is not required to be sent to a tribe in voluntary adoptive placements. Catholic Soc. Servs., Inc. v. C.A.A., 783 P.2d 1159 (Alaska 1990). Several practical reasons dictate that notice be given to a tribe in voluntary child custody proceedings. For one, once parental rights have been terminated, particularly in a matter involving a child who resides or is domiciled on the reservation, the tribes interest in the child becomes paramount, and the ICWA anticipates tribal involvement in voluntary foster care placement and termination of parental rights proceedings through transfer and intervention petitions, 1911(b)-(c), and in placement decisions. 25 U.S.C. 1915; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989). For another, it is not uncommon that voluntary placements later convert to involuntary child custody proceedings in which notice is required.

18.12 – Do the placement preferences of the Act apply to adoptive placements?

Yes. State courts must follow the ICWAs placement preference in adoptive and pre-adoptive placements. 25 U.S.C. 1915(a)-(b). This requirement corresponds to the ICWAs goal of placing Indian children in foster or adoptive homes which will reflect the unique values of Indian culture. 25 U.S.C. 1902; H.R. REP. NO. 95-1386, at 8 (1978).

18.13 – What are the placement preference criteria for adoptive placements?

Section 1915(a) provides, [i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the childs extended family; (2) other members of the Indian childs tribe; or (3) other Indian families. The ICWA also provides that in meeting the preference requirements of this section, courts shall apply a standard of the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties. 25 U.S.C. 1915(d).

It also is important to note that a tribe may establish a different order of preference by tribal law and resolution which must be followed in state court placements so long as the placement is the least restrictive setting appropriate to the particular needs of the child. 25 U.S.C. 1915(c). See also FAQ 16.5, Placement.

18.14 – What constitutes good cause to the contrary for a court to deviate from the placement preferences?

1915(a) of the ICWA permits state courts to deviate from the placement preference upon a showing of good cause to the contrary. In addition, the burden of establishing the existence of good cause not to follow the placement preferences rests with the party seeking the deviation. Indian Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,594, (Bureau of Indian Affairs Nov. 26 1979) (guidelines for state courts). Although the ICWA does not define the term good cause, the BIA Guidelines suggest three grounds to deviate from the preferences.

For the purposes of adoptive placement, a determination of good cause not to follow the order of preference shall be based on one or more of the following considerations: (i) The request of the biological parents or the child when the child is of sufficient age. (ii) The extraordinary physical 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. Indian Child Custody Proceedings, 44 Fed. Reg. at 67,594. See also FAQ 16.4 , Placement.

Authority is split on the burden of persuasion required to show good cause. The Minnesota Supreme Court requires clear and convincing evidence, while the Alaska Supreme Court deems a preponderance of the evidence sufficient. See In re S.E.G. (S.E.G. II), 521 N.W.2d 357 (Minn. 1994); In re N.P.S., 868 P.2d 934 (Alaska 1994). See also FAQ 16.4, Placement.

18.15 – What are the rights of the child to tribal benefits after and during adoption?

Generally, tribal benefits require a person to be recognized as a member of the tribe, usually through formal enrollment. Membership is an internal matter within the tribes exclusive authority. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). An adopted Indian child may become enrolled in a tribe depending on the tribes membership and enrollment criteria. The membership process may be a complicated process where the birth parents have requested that their identities be kept confidential, the original birth certificates have been modified and the court records are sealed. In an open adoption or customary adoption under tribal law, the childs tribal affiliation may be more readily established.

The ICWA specifically authorizes an adopted Indian child to obtain information about his or her tribal affiliation upon attaining the age of eighteen. Section 1917 permits the individual to receive information about his or her tribal affiliation and other information as may be necessary to protect any rights flowing from the individuals tribal relationship. See FAQ 15, Access to Adoption Records.

For more information about the Indian Child Welfare Act or adoption information, contact Adoption Choices of Texas. You can call us at 945-444-0333, text us at 945-444-0333, or email us here. If you are hoping to adopt, please visit us here. We look forward to helping you through your adoption journey!