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1. Multiethnic Placement Act of 1994 and Amendment (MEPA-IEP)
All state and county agencies that use federal funds must comply with the Multiethnic Placement Act of 1994, as amended by the Interethnic Adoption Provisions of 1996 (MEPA-IEP). The Multiethnic Placement Act is designed to “prevent discrimination in the placement of children in foster care and adoption on the basis of race, color, or national origin; decrease the length of time that children wait to be adopted; and facilitate the identification and recruitment of foster and adoptive parents.” The Act prohibits states or agencies that receive federal funds from delaying or denying the placement of any child on the basis of race, color, or national origin. Further, any consideration of race or ethnicity must be done in the context of individualized needs of the child, with the rationale specifically documented in the placement record. An agency may not rely on generalizations about the needs of children of a particular race or ethnicity, or on generalizations about the abilities of prospective parents of one race or ethnicity to care for a child of another race or ethnicity. Any violation of MEPA-IEP will be deemed a violation of Title VI of the Civil Rights Act.
Every agency must have a recruitment plan to comply with MEPA-IEP. The major thrust of MEPA’s recruitment requirements is that agencies provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State or county for whom foster and adoptive homes are needed. Federal guidelines specifically call for a thorough recruitment effort that includes both general and targeted campaigns and encompasses the following features:
To comply with MEPA’s “diligent efforts requirements,” each county’s recruitment plan must include the above-listed features. In addition, each plan must also include the following information:
The primary purpose of the Multiethnic Placement Act is to find permanent homes for foster children on a timely basis. The best strategy for full compliance with the Act is a comprehensive recruitment strategy that targets the general public and also specifically targets those communities that reflect the racial and ethnic diversity of your foster care population.
All state and county agencies using federal Title IV-E funds must comply with MEPA as amended by the Interethnic Adoption Provisions of the Small Business Job Protection Act of 1996. The amendment requires that race, culture or ethnicity may not be used as the basis for any denial of placement, nor may such factors be used as a reason to delay any foster or adoptive placement. Agencies, therefore, are prohibited from delaying or denying foster and adoptive placements on the basis of race, color or national origin.
MEPA-IEP specifically provides that it has no effect on the Indian Child Welfare Act of 1978.
2. Indian Child Welfare Act of 1978
The Indian Child Welfare Act of 1978 established nationwide procedures for the handling of Indian child placements and authorized the establishment of Indian child and family service programs. The act requires specific actions on behalf of a child who is a member of a federally recognized Indian Tribe, Aleuts, or members of certain native Alaskan villagers. Whenever it is suspected that a child may fit into any of these populations, the procedures outlined in this Act shall be followed.
a. Definition of Terms in This Act
Indian: An Indian is defined as any person who is a member of an Indian tribe, or who is an Alaskan Native and a member of a Regional Corporation, as defined in the Alaska Native Claims Settlement Act.
Indian Child: An Indian child means any unmarried person who is under 18 and is either (a) a member of an Indian tribe; or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Tribes determine their own standards for membership eligibility.
Indian Tribe: Any Indian tribe, band, nation, or other organized group of Indians recognized as eligible for the services provided to Indians by the Secretary of the Interior because of their status as Indians, including any Alaskan Native villager as defined in section 3(c) of the Alaska Native Claims Settlement Act.
Indian Child's Tribe: An Indian child's tribe is defined as (a) the Indian tribe in which an Indian child is a member or eligible for membership or (b) in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the most significant contacts.
Indian Reservation: Indian country as defined in Section 1151 of Title 18, United States Code and any lands, not covered under such section, title to which is either held by the United States in trust for any Indian tribe or individual subject to a restriction by the United States against alienation.
The Act applies to Indian child custody proceedings and includes:
The Act does not apply to a placement based on an act which, if committed by an adult would be deemed a crime (as in any situation in which a child was adjudicated delinquent and placed in foster care or a group home), or upon an award, in a divorce proceeding, of custody to one of the parents.
The only Federally recognized tribal grounds in North Carolina are those of the Eastern Band of the Cherokee. Cherokee Family Services is the agency of the Eastern Band of the Cherokee that handles the cases that involve the Indian Child Welfare act. Barbara Jones is the director of Cherokee Family Services. If there is belief that the child is a Cherokee Indian child, you can contact Cherokee Family Services at P.O. Box 507 Cherokee, North Carolina 28719, (828)-497-6092. They can assist in checking with the enrollment office to determine whether the child is an "Indian child.” If the child is an "Indian child,” then Cherokee Family Services will be the representative of the Tribe that will be involved in the case. Members of other federally recognized tribes live and work in North Carolina and are afforded the protections of this Act. The Bureau of Indian Affairs (BIA) has a listing updated each year of the appropriate tribal person to receive questions about membership and ICWA proceedings http://www.doi.gov/bia/.
While the Indian Child Welfare Act only protects members of federally recognized tribes, children in state recognized tribes merit similar consideration. N.C.G.S. § 143B-139.5A was enacted in 2001 to support collaboration between the Division of Social Services, the NC Directors of Social Services Association and the Commission of Indian Affairs.
The goal of this legislation is to create relationships so tribes can receive reasonable notice when Indian children are placed in foster care or for adoption, recruitment of North Carolina Indians as foster and adoptive parents can be increased, and training on Indian culture and history can be provided to social workers and foster and adoptive parents. It is important to remember that the Multi Ethnic Placement Act applies to the placement of Indian children who are not covered by ICWA. When considering placement for any Indian child, every effort should be made to involve the tribal community in planning for the child in a setting that reflects his or her Indian culture.
The North Carolina Commission of Indian Affairs (919-789-5900) is a good resource for counties who are working with Indian children and families. The Commission can help in regard to local tribes and can also facilitate contact with tribal leadership for tribes located in other parts of the country. Many North Carolina Indians are members of state recognized tribes:
Contact Information is available at http://www.doa.state.nc.us/cia/tribesorg.htm
c. Procedures
Nothing in the Indian Child Welfare Act shall be construed as preventing the emergency removal of an Indian child in order to prevent imminent physical damage or harm to that child. Therefore, if a social worker believes that a child is in imminent danger, the same procedures are followed as in any other emergency removal.
The ICWA specifies that tribal courts have exclusive jurisdiction of children who reside on the reservation. If the child is a ward of a tribal court, but does not reside on a reservation, the jurisdiction of the case must be transferred to the tribal court. In any action leading to a foster care placement or in any termination of parental rights action affecting an Indian child who does not reside on the reservation, the parents, guardian or custodian of the child may petition for transfer of jurisdiction to a tribal court.
At any time during proceedings of a foster care placement, the Indian custodian and Indian tribe have the right to intervene in the proceedings at any time. Tribal courts have the same authority as any State court and any decisions made by them that follow the ICWA guidelines have the effect of any other court decision.
As in any other proceedings, the parents of the child must be notified of the pending foster care proceedings. However, the parent, Indian custodian and Indian tribe must be informed by registered mail, return receipt requested, of the proceedings and of their right to intervene at any point in the proceedings. The notice must include the following information:
Parents and Indian custodians have the right to a court appointed lawyer in custody proceedings whenever indigence is a factor and the court may also appoint an attorney for the child to ensure that his/her interests are protected.
If the agency is unable to locate the parent, Indian custodian, or cannot determine the Indian tribe, then the agency must notify the Secretary of the Bureau of Indian Affairs at the appropriate office by registered mail, return receipt requested, of the child's pending court proceedings. There is no provision for service by publication. The Secretary has fifteen (15) days after receipt of this notice to inform the parent, Indian custodian and Indian tribe of the foster care proceedings. Under ICWA, “parent” does not include the unwed father where paternity has not been acknowledged or established.
For NC proceedings, BIA notice should be sent to Gloria York, Indian Child Welfare Services, BIA Regional Office, 545 Marriot Drive, Suite 700, Nashville, TN 37214 (615) 564-6740. The BIA Eastern Region stretches from Maine to Florida and west to eastern Oklahoma. Parents have 10 days beyond the 15 day period before any foster care proceeding can take place. However, the parent, Indian custodian or the tribe may request and be granted up to a 20 day extension to prepare for the proceedings. Thus DSS may have to ask the court to continue a 7-day or other hearing to comply with ICWA. If ICWA requirements are not met, the tribe, Indian custodian or parent can move to vacate the proceeding and begin again.
d. Special Provisions
Though procedures for obtaining legal custody and placement responsibility of an Indian child are similar to those regarding any other child, there are some major differences. For instance, all agencies must demonstrate to the court that “active” efforts were made to maintain the child in his/her own home. In the case of an Indian child, the agency must also specifically detail what remedial efforts and rehabilitative programs were provided to the family to keep it intact and how these efforts were unsuccessful. These are efforts that take into account the social and cultural conditions of the tribe and use the resources of the extended family, tribe and Indian social service agencies. Thus, active efforts can be more extensive than reasonable efforts. In addition, the agency must prove by clear and convincing evidence that staying in the home would result in serious emotional or physical damage to the child. That finding must be based on testimony from a “qualified expert witness” who is, in priority order;
(1) a member of the child’s tribe recognized by tribe knowledge in tribal custom,
(2) a lay expert witness with substantial experience in the delivery of family services to Indians and knowledge of tribal child rearing practices, or
(3) a professional person having substantial educational and experience in his specialty. The BIA can assist in identifying a qualified expert witness, if requested to do so by a party or the court. If foster care placement is to be made using State laws, each party to the case has the right to examine the documents filed with the court which serve as the basis of a decision by the court. In addition, the agency must demonstrate that it has offered remedial services to maintain the child with the family and that these efforts have failed.
e. Choosing a Placement
Whenever placement is contemplated for a child who may be eligible for the Indian Child Welfare Act, the placement must be the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child must also be placed within reasonable proximity to his or her home. Placement resources for the child should be chosen based on the following preferences:
Good cause to deviate from these preferences exists if the parents or child “of sufficient age” so request or the extraordinary needs of the child require another placement or no families meeting the preference criteria can be found after a diligent search.
These procedures pertain to initial foster care placements of Indian children. The Act contains other procedures relating to termination of parental rights and adoption.
f. Voluntary Placement Agreements under the ICWA
For children that fall under the special provisions of the Indian Child Welfare Act, Voluntary Placement Agreements (DSS-1789) between the agency and parent or guardian have additional requirements.
A Voluntary Placement Agreement will not be considered valid unless the agreement is signed before a judge of competent jurisdiction and is accompanied by a judge's certificate stating that the terms and conditions of the agreement were fully explained and understood by the parent or Indian custodian of the child. The certificate must also state that the parent or Indian custodian had the agreement explained either in English or through an interpreter in a language that the parent or Indian custodian understood.
Any consent given prior to or within ten (10) days of the birth of the Indian child shall not be valid. At any time that the parent or Indian custodian of the child requests that the child be returned, the agency must return the child as in any other Voluntary Placement Agreement. If the agency feels that the child would be harmed, then it must petition the Court ensuring that all of the rights and duties of an agency are followed in relation to the Indian child.
g. Termination of Parental Rights
To terminate parental rights, the state court must make the same findings as previously discussed, using expert testimony, but the likelihood of damage must be established beyond a reasonable doubt. For a case example where a county DSS terminated the parental rights on an Indian child following both NC and ICWA requirements, see In Re: Bluebird, 105 NC App 42 (1992). Absent good cause to the contrary, the child must be placed for adoption with a member of his extended family, other members of his tribe or other Indian families.
NOTE: An excellent resource tool known as the Indian Child Welfare Act Compliance Checklist (DSS-5291) is available on the forms website to assist with navigating the many procedures to comply with ICWA.
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For questions or clarification on any of the policy contained in these manuals, please contact your local county office. |
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