By John DiMotto
Whenever a child is an enrolled member of an American Indian Tribe or a biological parent is an enrolled member of an American Indian Tribe and the child is eligible for enrollment, special federal and state statutory protections attend child custody proceedings including:
1) Placements made to foster care, institutions, guardians or conservators.
2) Termination of Parental Rights proceedings.
3) Preadoptive placements.
4) Adoptive placements.
However, these protections do not govern placements in:
1) Delinquency proceedings.
2) Award of custody in divorce proceedings.
The Declaration of Policy as set forth in 25 USC 1901 - 1963 (The Federal Indian Child Welfare Act [ICWA]) is twofold:
1) Protect the best interest of every American Indian child.
2) Promote the stability and security of Indian Tribes and families.
The Declaration of Policy as set forth in Wis. Stat. 48.028(2) (The State Indian Child Welfare Act [WICWA]) is also twofold:
1) Cooperate fully with Indian Tribes in order to ensure that the Federal ICWA is enforced in Wisconsin.
2) Protect the best interest of Indian children and promote stability and security of Indian Tribes and families by doing all of the following:
a) Establishing minimum standards for the removal of Indian children from their families and placing those children in out of home care placements, preadoptive and adoptive placements that will reflect the unique value of Indian culture.
b) Using practices, in accord with Federal ICWA, 8.028 and other applicable law, that are designed to prevent the voluntary or involuntary out of home placements and, when it is necessary, placing the Indian child in a placement that reflects the unique values of the Indian child's tribal culture and that is best able to assist the Indian child in establishing, developing and maintaining a political, cultural and social relationship with the Indian child's tribe and tribal community.
ICWA and WICWA apply to any Indian child custody proceeding regardless of whether the Indian child is in the legal custody or physical custody of an Indian parent, Indian custodian or any extended Indian family member or other person at the commencement of the proceeding and regardless of whether the Indian child lives on or off a reservation. If the child lives on a reservation the Indian tribe shall have exclusive jurisdiction over the child. Also, if an Indian child is a ward of a tribal court, the Indian tribe shall have exclusive jurisdiction over the Indian child. Furthermore, if the Indian tribe petitions for jurisdiction over an Indian child who does not live on a reservation, jurisdiction shall be transferred to the Indian tribal court a parent objects, the Indian tribe does not have a tribal court or there is good cause to deny the transfer. Good cause must be proven by clear and convincing evidence.
In any child custody proceeding in which ICWA and WICWA apply, the Indian Tribe and Indian custodian have the right to:
1) Intervene in the State court proceedings.
2) Notice of proceedings.
3) Examine all reports and documents filed with the court.
4) The right to court appointed counsel attends all Indian parents and Indian custodians.
Before an Indian child may be removed from the home of an Indian child's parent or custodian and placed out of home, the State must prove by clear and convincing evidence, including the testimony of one or more qualified experts that continued custody by the parent or custodian is likely to result in serious emotional or physical damage to the child and that active efforts have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian child's family and that those efforts have been unsuccessful. In TPR actions, the "serious emotional of physical damage" element must be proven beyond a reasonable doubt.
In terms of the "qualified experts" requirement, there is an order of preference for the selection of experts. The order of preference is as follows:
1) Member of the Indian tribe.
2) Member of another tribe.
3) Professional with substantial knowledge of Indian culture.
4) Layperson with substantial knowledge of Indian culture.
In terms of the "active efforts" requirement, 48.028(4)(g)1. sets forth nine activities that are to be undertaken. These include:
1) Evaluation of child's circumstances and development of a case plan.
2) Comprehensive assessment of family.
3) Timely notification to tribe about proceedings.
4) Extended family members notified and included in process.
5) Provision of natural and unsupervised family interaction in most natural setting where safe.
6) Available family preservation strategies offered and pursued.
7) Community resources identified and offered.
8) Monitoring progress of situation.
9) Consideration of alternatives.
Whenever a child custody proceeding involves an Indian child, it is of the utmost importance that ICWA and WICWA requirements be pursued with vigor. The best interest of the Indian child can only be obtained where there is sensitivity to the Indian child's tribal culture.
I had the pleasure of acting as the guardian ad litem in a Termination of Parental Rights proceding in Milwaukee Children's Court in May of 2011. As set forth above, WICWA requires proof to the highest standard of proof that continued custody will result in harm to the child and that active efforts have been made to prevent the breakup of the Indian child's (nuclear?) family....active efforts include (at least?) the nine factors set forth above....the long and the short is that in my case the expert witness appeared by telephone, had only a minimal knowledge of the history or current status of the case, and was massively underprepared for the substantial burden of proof.....expert witnesses in such cases should be brought in person to testify before the jury and must be properly prepared to address the statutory criteria in the context of the indivdual case....otherwise the prosecution, as was the case in my case, will be lost...Best of luck...Attorney Ira B. Bordow
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