2. Applicability of the Icwa

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

There are two predicates necessary for the Indian Child Welfare Act (ICWA) to be applicable to a child custody case in state court.¹ The definition of ICWA terms is crucial to the applicability analysis. The first predicate is whether the case is a child custody proceeding as defined by the ICWA. The ICWA defines a child custody proceeding to include foster-care placements, pre-adoptive placements and adoptive placements as those terms are uniquely defined according to the Act. The second predicate includes whether the child involved in the child custody proceeding is an Indian child as defined in the Act.

This chapter will identify the parameters of an ICWA child custody proceeding and explore whether a child is an Indian child for ICWA purposes. The chapter also illuminates what type of cases fall outside the parameters of the ICWA and concludes with the current status of a highly questionable judicially created exception to the ICWA known as the Existing Indian Family Exception (EIFE).

The Types of Child Custody Proceedings Covered by the ICWA

The ICWA defines a child custody proceeding to include foster care placements, terminations of parental rights, preadoptive and adoptive placements, both voluntary and involuntary. Note that emergency proceedings are not encompassed in the definition of a child custody proceeding; nonetheless, the ICWA statutory language and the ICWA regulations address emergency proceedings, recognizing the need might arise for states to remove Indian children in order to prevent imminent physical damage or harm to the child.² More information regarding emergency proceedings involving an Indian child is addressed in Chapter 4.

Foster Care Placement

The ICWA defines a foster care placement as any action removing an Indian child from a parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.³ A foster care placement requires an act of removing an Indian child from either a parent or Indian custodian. The ICWA defines a parent to include any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom but does not include any unwed father where paternity has not been acknowledged or established.⁴ This encompasses paternity determined by tribal acknowledgment, tribal adoptions, tribal laws, and tribal customs, as well as state law.⁵ The term Indian custodian includes 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.⁶ An Indian person may demonstrate that he or she is an Indian custodian by looking to tribal law, tribal custom, or state law.⁷

The ICWA applies to both voluntary and involuntary foster care placements of an Indian child.⁸ A voluntary placement is a placement made with the consent of a biological parent or Indian custodian. Section 1913 of the statute specifies the formalities for consent and withdrawal of consent to a foster care placement.⁹ Note that ICWA does not include a placement, where the parent or Indian custodian can regain custody of the child upon demand.¹⁰ The regulations clarify that "upon demand" means that the parent can have the child returned upon a mere verbal request, without any express or implied formalities or contingencies.¹¹ This exclusion ensures that parents and courts are not burdened every time a parent is desirous of temporarily placing a child, but the regulations and guidelines are clear-cut that any time a court is invoked, or formal action required, the ICWA would apply.

Thus, the ICWA would apply in a situation where an Indian parent or Indian custodian voluntarily places his or her child with a state social services agency or private agency on a temporary basis according to a state court order, since the parent/Indian custodian cannot have the child returned upon verbal request.¹² It is also important to note that if a parent or Indian custodian consents to a foster care placement because of threats by an agency that a child will otherwise be removed if parental consent is not forthcoming, that is considered an involuntary proceeding under the Act, not a voluntary proceeding.¹³

The application of the ICWA to involuntary foster care proceedings is straightforward. The ICWA applies to the involuntary removal of the Indian child from a parent or Indian custodian.¹⁴ The ICWA also applies to involuntary guardianships or conservatorships.¹⁵ The ICWA is triggered if the possible result of a proceeding includes a foster care placement or termination of parental rights, even if the actual decision at the proceeding is to leave the child in the home.¹⁶ The Act applies even if the outcomes ultimately do not materialize.¹⁷

Termination of Parental Rights Proceedings

The ICWA defines termination of parental rights to mean any action resulting in the termination of the parent-child relationship.¹⁸ As with the foster care placement segment already mentioned, it is critical to determine whether the termination of parental rights is a voluntary proceeding or an involuntary proceeding, as the ICWA has specific statutory language and protections based upon that distinction.¹⁹ Although the ICWA does not prohibit the practice of allowing Indian parents to voluntarily terminate their parental rights, the ICWA does place stringent requirements on the procedures for termination including a provision that sets forth that any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.²⁰ The Act applies to private terminations of parental rights.²¹ including any proceeding in which the termination of parental rights is a potential disposition.²² This includes stepparent adoptions.²³

Preadoptive Placements

The ICWA states that a "preadoptive placement" means the temporary placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement.²⁴ While the ICWA pertains to a preadoptive placement as a child custody proceeding for jurisdictional purposes because the specific language in the ICWA transfer section, a preadoptive placement will also trigger certain procedural provisions of the Act. For example, the ICWA contain references foster care placements and termination of parental rights and does not specifically address transfers from state court to tribal court in preadoptive or adoptive placements.²⁵ As a result, a recent Arizona case held that a tribe may not obtain a transfer from state court to tribal court of a preadoptive or adoptive placement pursuant to the ICWA, although it opined that transfer might occur under other authorities.²⁶ Preadoptive placements include any long-term foster care placement, provided the parental rights of one or both of the natural parents have been terminated.

Most of the ICWA provisions germane to preadoptive placements pertain to where Indian children should be placed and not to any particular procedural formalities a state court must satisfy to effectuate a preadoptive placement. The ICWA placement preference provisions are discussed in Chapter 5.

Adoptive Placements

The ICWA defines adoptive placements as "the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption."²⁷ This definition covers adoptions arranged by state social services agencies as well as private adoption agencies.²⁸ It also encompasses stepparent adoptions, although it is difficult to reconcile the adoptive placement preference provisions with the stepparent adoption scenario, especially when the custodial parent is non-Indian.²⁹

The ICWA strongly suggests that the provisions of the ICWA continue to apply up to the point of a final adoption decree being rendered by a state court and not only up to the point where an adoptive placement is affected.³⁰ This may be important in certain cases when an Indian tribe or relatives of an Indian family become aware of an Indian child being placed for adoption after the placement is accomplished.³¹ The ICWA clearly permits these parties to advance the goals of the Act even though the placement has already been effected. Indeed, the ICWA even applies to certain matters that arise after a final decree of adoption has taken place, as one provision allows certain parties collaterally to attack a final decree of adoption,³² and yet another provision allows a parent to petition for the return of an adopted Indian child if the adoption is vacated.³³

At least one court has held that the adoption of an Indian child must necessarily be preceded by a lawful termination of parental rights, either voluntary or involuntary, in compliance with the provisions of the ICWA.³⁴ However, the ICWA guidelines specifically clarified this point by stating that adoptions that do not involve a termination of parental rights are still included within the ICWA's definition of a "child custody proceeding" as either a foster care placement or an adoptive placement because the statutory language of the ICWA does not require a termination of parental rights prior to adoption.³⁵

Indian Child

The ICWA applies to the types of child custody proceedings previously discussed that involve an Indian child.³⁶ The ICWA definition of Indian child includes any unmarried person who is under the age of eighteen and is either a member of a Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.³⁷ An Indian tribe is defined as any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for services provided to Indians by the Secretary...