Child Welfare Agreement - Child Welfare Training Institute

Child Welfare Agreement
Working with the State for the best outcomes for Indian
Children and Families
Child Welfare Agreement
History and Background
▪ Draws from the framework of a similar agreement
between Minnesota and the Tribes based there.
▪ Negotiated with the State as part of the mediated
settlement of the Tribe’s boundary litigation.
▪ Agreement is binding on the State of Michigan’s
DHS, including all of its county level sub-divisions
and the Tribe.
State Law and the I.C.W.A
How does this agreement help clarify child protection
▪ The Agreement specifically acknowledges that different
standards apply to Indian children involved in child protection
proceedings and that the Indian Child Welfare Act trumps state
law regarding child protection for Indian children.
▪ The Agreement specifically acknowledges that Indian Children
are to benefit from other state and federal child protection laws if
the standards are more protective than the ICWA, but any law
providing for lower standards is overruled by ICWA.
Purpose of the Agreement
▪ Indian Children should be kept with their families
▪ Indian Children who must be removed from their
homes should be placed with their own Extended
Families and tribe(s); and
▪ The Department will follow the tribal order of
placement preferences consistent with 25 U.S.C.
▪ Requires any ambiguity to be resolved in favor of a
result most consistent with the above three policies.
Important Definitions
The agreement specifically sets out that an unwed father does
not need to establish paternity pursuant to Michigan law.
Any act of the unwed father to hold himself out as the Indian
Child’s father, or any paternity determined by tribal custom
is sufficient.
The agreement defines Active Efforts as a rigorous and
concerted level of case work that uses prevailing social and
cultural values, conditions, and way of life of the Indian
Child’s Tribe to preseve the family, or return the child home
at the earliest possible time.
Active Efforts Defined…
▪ Active Efforts require a higher, more intensive and prolonged
standard of effort than the reasonable efforts standard Michigan
requires. Reasonable Efforts are merely those rationally
calculated to prevent removal, and are not required in every case.
▪ Active Efforts are required in every single Indian Child
Custody Proceeding: unlike Michigan law, there are no acceptable
excuses for not providing Active Efforts.
▪ Active Efforts are required by any case involving DHS, and
where a non-voluntary case not involving DHS occurs,
(guardianship, contested stepparent adoption etc.,) the party
seeking to effect the out of home placement must make and pay
for the Active Efforts.
Examples of Active Efforts
▪ Notification of SCIT as early as possible.
▪ Have SCIT expert assist in evaluating the family and
determining a case plan.
▪ Provide family with both SCIT and non-SCIT resources,
including financial assistance, food, housing, health care and
transportation when needed.
▪ Visitation is to take place outside an institutional setting
whenever possible, and DHS will work with SCIT to ensure
supervised visitation in a natural setting. Arrange regular
visitation with extended family, siblings regardless of age and
▪ Provide transportation assistance such as bus passes
Active Efforts Examples Continued...
▪ Consulting with SCIT regarding available
family support services, prevention and
reunification services, and possible referral to
other tribes for available services
▪ Consulting with extended family for help,
guidance and resources. If family is difficult to
work with, consult with ACFS on working with
Indian families.
Active Efforts Examples Continued
▪ Using all available appropriate resources from
state, SCIT or other Indian agency to aid the
▪ Providing services to help extended family
members qualify as a placement for the child.
▪ If the Michigan Court rules conflict with this
agreement in the future, this agreement prevails.
Important Definitions Continued...
▪ Agreement Compliance Contact: person designated
by SCIT or DHS to represent each entity as a liasion
to implement this agreement.
▪ Best Interests: Best interests of Indian Child are
interwoven with the child’s tribe. They support
child’s sense of belonging to family, extended family,
clan and tribe. State best interests standards do not
control either this agreement or child custody
▪ Child Custody Proceeding: Foster Care
Placement where the child is removed from
his home, including a guardianship or
conservatorship where the parent/custodian
cannot have the child returned upon demand.
▪ Termination of parental rights: action
resulting in termination of the parent-child
Important Definitions Continued...
▪ Pre-adoptive Placement: placement of an Indian
Child into foster care or an institution after
termination of parental rights before adoption or in
lieu of adoption.
▪ Adoptive Placement: permanent placement for
adoption, including an action resulting in adoption
▪ Descendant Child: child with Indian ancestry who is
not eligble for enrollment, or whose eligibility for
enrollment cannot be determined.
Definitions Continued…
▪ Emergency: condition caused by action or inaction
of a parent or custodian that puts the child at risk of
imminent physical damage or harm. Emergency ends
after the immediate risk has passed. Removal must
terminate when the emergency ends. The parties agree
to follow BIA Guidelines on emergency removals.
▪ Extended family is defined as: law or custom of the
tribe, or adult grandparent, aunt, uncle, brother, sister
(in-laws) niece, nephew, first or second cousins.
Good Cause Not to Follow Placement Preferences
Examples of Acceptable and Unacceptable Reasons:
A competent biological parent or child age 13 or older requests
the placements not be followed, unless the request is an attempt to
defeat the application of the Act.
Expert testimony establishes the child’s extraordinary physical or
emotional needs require highly specialized treatments.
A diligent search in conjunction with Active Efforts, discloses no
placement appropriate family. In such a case, SCIT will assist
DHS to locate a family.
Bonding or attachment to a foster family alone is NOT good cause
to keep an Indian Child in a lower preference or non- preference
Existing Indian Family Doctrine is Expressly
The Indian Child is afforded ICWA protections
regardless of which parent they live with, or what
level of contact, including none, they have had with
their tribe to date.
A non-Indian parent of an Indian Child receives the
same protections in an ICWA proceeding that an
Indian parent or Indian Custodian receives.
A Tribe’s determination that a child is eligible for
membership or a member is conclusive, and not
subject to state appeal.
Adoption Placement Preferences
If an Indian child cannot return home, where should the child
be placed for adoption?
1. With a member of the child’s extended family;
2. With other member’s of the Indian child’s tribe;
3. Other Indian families
Good Cause must be shown to deviate from this, and
bonding alone is not good cause. To prevent additional
disruption and heartache, foster care placements should
conform to ICWA as soon as possible, to prepare for the
possibility the child will not be able to return home.
Foster Care Placement Preferences
Appropriate Placements and Criteria
Child should be placed in a setting approximating a family, where
any special needs, if any, can be met, within reasonable proximity
to the child’s home.
1. Placement with a member of the extended family.
2. A foster home licensed, approved or specified by the Indian
Child’s tribe.
3. An Indian Foster home licensed by a state or other non- Indian
4. An institution approved by an Indian tribe or operated by an
Indian organization that has a program suitable to meet the child’s
What makes a home an Indian home?
The presence of siblings or half-siblings is NOT enough
Placement with extended family does NOT mean
placing an Indian child with his or her siblings or half
siblings. Kinship relationships are calculated by
reference to the parents or Indian custodians. The
extended family placement refers only to the
responsible adults in the home. Those adults must be
extended family to the child or the child’s parents, or
Indian custodian.
Examples of Placements that Fail to Qualify
Placement with Siblings is not enough to disregard ICWA
An Indian child placed with his half-siblings in a home with
his half-sibling’s paternal grandmother, where they don’t
share a common father is NOT an extended family
Two Indian children placed together in a non-Indian state
licensed home does NOT satisfy the ICWA placement
criteria, whether or not the children are related to each other.
The Parents in the home must be extended family of the
Indian child, not fictive kin via a half-sibling of the child.
DHS and the Lack of Indian Foster Homes
For SCIT children, their half-siblings and descendants,
ACFS can suggest DHS use a borrowed bed agreement to
use one of our Tribal licensed foster homes. Borrowed bed
agreements are specifically endorsed in the settlement
ACFS can also suggest DHS contact other Tribes in
Michigan and inquire about borrowing a bed from one of
Expect to need creative solutions to keep Indian children and
their non-Indian half-siblings together in an ICWA qualified
Cooperation, Placement and Protocol
▪ The parties will work together to provide services to prevent
child removal.
▪ DHS must work with its county subdivisions to ensure they
take advantage of all the resources SCIT has to offer SCIT and
SCIT descendant children.
▪ County DHS must immediately notify SCIT about an
investigation involving a SCIT child, or child with indications of
SCIT heritage. SCIT will have full access to all files permitted by
▪ Collaborative approach will allow DHS and SCIT to provide
more services to SCIT descendant children and their families even
if ICWA does not apply.
SCIT Descendants and DHS
Working together even when ICWA does not apply
▪ For SCIT descendant children, DHS must consult with
SCIT and carefully consider SCIT comments for issues
including appropriate potential placements, sibling visits,
and extended family visits.
▪ Where allowed by law, coordinate with SCIT authorities
to investigate and assess allegations of maltreatment and
neglect of SCIT descendants domiciled on the
▪ DHS must consider joint investigations for SCIT
descendant children domiciled outside the reservation.
DHS Central Registry and ACFS History
Mutual Information Sharing
Procedure for sharing information for investigations
▪ DHS will continue to share information contained in its Central
Registry of Child Abuse and Neglect upon request of ACFS.
▪ SCIT establishes the following two part system for information
sharing with the State:
▪ 1. If DHS personnel have reason to believe that a person they contact
as part of an active investigation may have been involved with an ACFS
protection investigation they may verbally ask ACFS to confirm that
information. ACFS will review their files and respond yes or no.
▪ 2. IF ACFS responds yes, DHS may submit a written request for the
case/contact history involving the person. ACFS will use its best efforts
to locate and promptly produce a copy of the case/contact history for
Notices of Child Custody Proceedings and
Emergency Placements
▪ DHS must send SCIT a notice of proceeding if one is
generated, and if not, a writting with enough information to
determine the status of the case and the status of the SCIT
child, so SCIT may participate in planning and hearings, or
assert jurisdiction puruant to ICWA.
▪ DHS must send notices to the Department of Interior when
it lacks sufficient information to determine tribal status.
▪ If DHS effects an emergency removal of a SCIT child, it
shall notify SCIT via telephone or facsimile of the date, time
and place of the emergency protective hearing.
▪ All other notice provisions in the Court rules also apply.
Obligation to respond to eligibility notices
▪ SCIT will respond to eligibility determination
requests as soon as possible. When a child’s eligibility
status is not immediately clear, but the child is at least
a descendant of the SCIT, SCIT shall so notify DHS
so they can prepare ICWA case planning from the
earliest stage of the proceedings, as well as collaborate
with ACFS on services and possible placement
Transfer to Tribal Court is Required in Some
Examples of when cases must be transferred to tribal court
▪ Any proceeding involving an Indian child
who is already a Tribal Court ward.
▪ All proceedings involving a SCIT child
residing or domiciled on the reservation,
including a newborn who may never have
been to the reservation.
Continuity of State Services
▪ DHS recognizes the need to make all services
available to any family available to any Indian family,
regardless of what programs the Tribe may have to
▪ DHS cannot eliminate the provision of services after
SCIT has transferred a child from State custody.
▪ The State must give full faith and credit to all
placement and other orders of the Tribal Court, for
example termination of parental rights or foster care
Transfer to Tribal Court
▪ Any parent, Indian Custodian, or SCIT can petition to
have any child custody proceeding involving a SCIT child
not residing or domiciled on the reservation transferred to
Tribal Court.
▪ This transfer must be granted absent good cause. Good
cause can never be the perceived inadequacy of the ACFS or
Tribal Court, or reference to social conditions of the
▪ The party who opposes tranfer bears the burden of proof.
▪ If DHS opposes transfer, they must provide SCIT a copy
of materials filed with the Court in support of any opposition
DHS Manual, Compliance Contact and SubContractors
▪ This Agreement prevails if the DHS manual and
this agreement are in conflict.
▪ Each party agrees to update the agreement
compliance contact information as needed.
▪ This Agreement covers the work of DHS
subcontractors providing services and placements
for court wards.
▪ DHS agrees to provide training on ICWA and this
agreement to its staff and private agency subcontractors.
Minimum Training for DHS
▪ Tribal values, belief, religion, customs, ways of being, and
family recognition system of the child’s tribe.
▪ Behaviors and responses stemming from traditional ways of
life through assimilated ways of life.
▪ Socioeconomic context of the care and condition of the
family home and children.
▪ Importance of sharing with extended family.
▪ Reality of negative historical experience of Indian people
with non-Indian governmental systems
▪ Different cultural requirements for social interaction, such as
lack of eye contact or reticence in speaking.
Concepts Continued...
Who should be trained, and how to pay for training?
▪ Recognizing traditional disciplinary methods and
clan support.
▪ Parenting skills affected by historic isolation and
▪ Judges, GALs, lawyers, probation officers, and law
enforcement who work with Indian children should be
offered trainings.
▪ DHS will seek reimbursements for training under
Title I-V E, and other federal programs.
Recruiting Indian Foster Care
Families and the Master List
▪ DHS and SCIT will develop a recruitment plan together,
using media, social media, door to door, and mailing to
Indian organizations. DHS and SCIT will work to train new
recruits to license them.
▪ The Master List is a list of SCIT foster homes available
for accepting placement of SCIT children, descendants,
siblings or minor parents of the above.
▪ Shall include any preconditions to acceptance, or state no
▪ SCIT retains right to deny state placement in SCIT
licensed homes.
Master List Continued...
▪ DHS agrees to make a copy of the Master List
available to all county level DHS offices as a guide for
acceptable placements for SCIT connected children.
▪ A borrowed bed agreement must be signed before
any state ward can be placed in a SCIT home.
▪ DHS will generate a protocol to identify and list
which of its foster homes have a tribal affiliation, and
what that affiliation is.
Tracking SCIT Children
▪ DHS must create a report on all SCIT or SCIT
descendant children in state custody, or placed
out of Michigan or into Michigan through the
interstate compact, and remedy any placements
which do not conform to the placement
Other Federal Child Protection Laws
and their Implications
▪ Interstate Compact: DHS must follow ICWA
placement preferences if the paperwork shows an
Indian child. If the placement doesn’t comport with
ICWA, DHS should deny the transfer absent a letter
from the child’s Tribe approving the placment for
good cause.
▪ If the child is a SCIT child or descendant DHS must
consider SCIT’s opinion before making a final
Other laws continued...
The Adoption and Safe Families Act does
not preempt ICWA.
The Interethnic Adoption Act does not affect
the placement preferences in ICWA.
The Parties reserve the right to enter into a
Title IV-E agreement in the future.
Points to Remember…
Nothing replaces good working relationships with our
Ongoing education will be paramount, given the DHS hiring
of over 500 new social workers and chronic turnover.
Tribe needs to create a Master List of foster care homes and
get it to DHS. DHS needs to do a summary report on SCIT
children in its custody.
Borrowed beds are approved, no state litigation
The Master List may grow to include other Tribe’s licensed
foster homes with their permission.
Saginaw Chippewa Indian Tribe
Tribal Contacts:
Jodie Garner
Office: 989.775.4901
[email protected]
Tracey Defeyter
[email protected]
Fax: 989.775.4912
Native American Affairs (NAA)
Stacey M. Tadgerson, Director
[email protected]
Phone: 517.335.7782