Why A Tribal –CYFD ICWA IGA?

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Working with the Indian Child Welfare Act IGA:
An Overview
Presented by
Bernie Teba, Tribal Liaison, CYFD
New Mexico Children, Youth and Families Department
Regina Yazzie, MSW, Program Director
Navajo Nation DSS, Navajo Children and Family Services
PURPOSE of the Intergovernmental Agreement (IGA)
1. Goals:
a. Promote effective communication and collaboration
between state agencies and tribes.
b. Develop positive state-tribal government-togovernment relations.
c. Develop state agency cultural competency in order to
provide effective services to tribal governments and
tribal citizens.
2. The outcome:
CYFD staff will involve tribes early and have improved
interactions with tribes on policy issues, provision of
services and actions that may have tribal implications.
Contents of the IGAs
I. Purpose and Policy
II. Definitions
III. General Provisions
IV. Notice
V. Intervention
VI. Transfer of Jurisdiction
VII.Child Protective Services
VIII.Remedial Services
IX. Placement Preferences
Contents of the IGAs
I. Foster Care – Pre-Adoptive Placements
II. Voluntary Relinquishments
III. Adoptive Placements – Voluntary and Involuntary
IV. Staff Training
V. Changes and Cancellation of Agreement
VI. Effective Date
VII.Effect of Prior Agreements
VIII.Sovereign Immunity
Revised IGA
The New Mexico IGA was revised from 2004 to
2007, when it was approved in 2007.
The re-negotiated / revised IGA provided greater
clarity, more defined, and increase user
friendliness.
Facilitated overall discussion of policies and
procedures for both the Nation and the states.
Identified barriers and allowed for internal policy
and procedural revisions.
Cross-Cultural Communications
Problems in cross-cultural communication primarily
occur because we assume that the elements of our own
culture are natural, appropriate, and acceptable to
others.
Cultural competency happens when:
 People of different cultures work together with trust and
respect
 There is understanding, regular communication and
cooperation
 There are common goals identified at the beginning of an
effort and are achieved together
Indian Child Welfare Act
– Protects Indian children from removal off reservation or
adoption by non-Indians
– Restrains the authority of state agencies through
procedural and substantive provisions by:
• The establishment of minimum federal standards ..
…which reflect the unique values of Indian culture
(25 USC 1902)
– Provides Tribes an opportunity to intervene and
transfer jurisdiction over child welfare matters.
Indian Child Welfare Act
ICWA applies when an Indian child is
involved in a State Child Custody
Proceeding
• Fostercare placement
• Termination of Parental Rights (TPR)
• Pre-adoptive placement (post TPR)
• Adoptive placement
ICWA Applicability
Basic Provisions of ICWA
When does the ICWA not apply?
1.
2.
3.
4.
Tribe has exclusive jurisdiction.
Child is a ward of Tribal Court.
Divorce Proceedings
Juvenile Delinquency (unless child is also in
the state CPS system)
Why A Tribal –CYFD ICWA IGA?
CYFD and Tribes recognize:
• There is no resource more vital to the existence and integrity
of the Tribe than its children
• The United States has a direct interest, as trustee, in
protecting Indian children
• CYFD has a direct interest in protecting Native American
culture and encouraging the cultural diversity of the citizens
of the State of New Mexico
Determining Applicability
How It Works in Practice
Inquiry begins at State Wide Central Intake (SCI) & continues on
through the life of the case.
• SCI caseworker inquiries from the source the race of the case
participants & further inquiries about tribal affiliation & where the
family resides.
Investigation case worker continues to inquiry through asking
questions of parents, relatives and collateral contacts & can began
utilizing the Resource Family Checklist tool.(Attachment A)-link
Report suspected child abuse or neglect by calling #SAFE (#7233)
from a cell phone or 1-855-333-SAFE.
Determining Applicability
Discovering Tribal identity & enrollment status
•Are you or your child(ren)Native American?
• What is the name of your Tribe?
•Are you enrolled as a tribal member?
•What tribal blood quantum are you? (heritage)
•Do you have a Census or Register # with your tribe?
Determining Applicability
Discovering Tribal identity & enrollment
status
•Are any of your Family or Relatives enrolled tribal members
(Names/Affiliation)?
•Do you belong to a tribal clan? Mother’s clan? (Navajo
Nation)?
•Do you reside on or off the reservation?
• Is there any history or current Tribal Services Involvement?
•Is there any history or current Tribal Court Involvement?
Determining Applicability
How It Works in Practice
If ICWA applies the investigation worker notifies the Tribe of
any investigations involving Indian children, as required by the
ICWA.
If PSD initiates an involuntary foster care placement of an Indian child, the
Tribe is notified by registered mail return receipt requested.
The investigation worker consults with the children’s court attorney
concerning custody of Indian children. Notification to Tribes of
Investigations and Child Custody Proceedings [12-31-97; 11-30-04].
Determining Applicability
How It Works in Practice
•If the child has Indian parentage but is not an enrolled member,
CYFD pursues enrollment of the child by providing, in writing
through certified mail return receipt requested, information about
the child’s Indian parentage to the tribe for them to consider.
ENROLLMENT OR VERIFICATION OF ENROLLMENT [12-31-97; 11-30-04]
Notification
The Tribal ICWA IGA
If the child is a Tribal child, CYFD must give notice to
the Tribe of the following actions:




Involuntary proceedings
Voluntary proceedings
Judicial Hearings
Disrupted or Dissolved adoptions
CYFD will use ICWA Notice Form to provide all available
information.
Notification
The Tribal ICWA IGA
Time Limits
When a Tribal child is taken into emergency
custody by CYFD or when filing a neglect/abuse
petition, notice to the Tribe must be provided by
telephone within 24 hours and by registered mail
within 5 days.
Notice regarding changes in scheduled hearings
must be made by telephone no later than 24 hours
before.
Intervention
Basic Provisions of ICWA
• Tribe has the right to intervene in state child custody
proceedings.
Observation: Tribes can do several things at different points in
the process – do nothing, intervene or transfer jurisdiction.
Intervention
The Tribe ICWA IGA
•The Tribe may seek to intervene at any point in the
proceeding.
Requirements for Removal
The Tribal ICWA IGA
•Children domiciled off Tribal lands.
- CYFD shall have primary responsibility
•Children domiciled on Tribal Lands.
-The Tribe’s social services offices shall have
primary responsibility
-(What about public schools? Safety firstjurisdiction)
Active Efforts
Basic Provisions of ICWA
 States are required to provide active efforts to families,
and the court will be asked to determine whether active
efforts have been made.
 ICWA mandates the state to make active efforts in two
areas:
1. Provide services to the family to prevent removal of an Indian
child from his or her parent or Indian custodian
2. Reunify an Indian child with his or her parent or Indian
custodian after removal
Active Efforts and Reasonable Efforts
•How are active efforts different from reasonable
efforts?
- Active efforts take into account the prevailing
social and cultural conditions and way of life of the
Indian child’s tribe
- Active efforts involve and use the available
resources of the extended family, the tribe, Indian
social service agencies and the individual Indian
caregivers
Active Efforts
The Tribal ICWA IGA
• Remedial Services for Tribal Children and
Families in Need of Services
– Assess needs & strengths
– Develop service plan to make it possible for
children to remain safely in the home
– Identify and incorporate culturally appropriate
services
Expert Witnesses
The Tribal ICWA IGA
• Tribe will provide CYFD with name of persons
qualified to testify as expert witnesses
• Determinations are made on an individual case
basis
Placement Preferences
The Tribal ICWA IGA
Adoption Placement Preferences:
• Extended family member
• A Tribal member.
– One or both parents must be a Tribal member.
• Indian adoptive parent
– One or both parents are enrolled member of a
federally recognized Indian Tribe.
• Other adoptive family approved by the Tribe.
Placement Preferences – Foster Care
The Tribal ICWA IGA
Foster Care Placement Preferences:
• Permit the child to remain with
parent/caretaker/custodian.
• Extended family member.
• Foster home licensed or designated by the Tribe.
• An Indian home licensed by CYFD.
• Foster home consented to by the Tribe.
• An institution for children licensed or designated
by CYFD which is approved by the Tribe.
Cultural Competence & Sensitivity
• Tribes are able to deliver culturally competent services
to their families better than any other non-Indian
provider
• The only way to learn about a culture is by someone
from that culture sharing their knowledge
• Some things about culture can only be understood if
you speak the language
• Key persons in tribes maintain tribal knowledge which
may not be shared with non-tribal members
• Some kinds of knowledge can only be learned through
experience - participation
Challenges to Tribal & State Relationships
• Turnover in agency and tribal administration.
• Each tribe is unique and it can be difficult to
consult with multiple tribes.
• Confusion as to which Tribe(s) are to be involved.
• Lack of understanding/knowledge of:
• Tribal customs and values
• Tribal Court Structure and Procedure.
• Agency policies and procedures.
• District court procedures.
Need for an ICWA IGA
• ICWA Intergovernmental Agreements –clarifies
roles and responsibilities
• Communication – Quarterly Coordination
meetings, monthly case staffing
• Collaborative Foster care & Adoption Recruitment
& Retention
• Joint Training Efforts
• Share information
• Relationship Building
Summary Analysis of Navajo Nation IGAs
Strengthens
• Promotes open dialogue with States
• Improves government-to-government
relationship
• Facilitates greater understanding of ICWA
compliance
• Client-based oriented, inclusive of case
staffings, reviews, etc.
Summary Analysis of Navajo Nation IGAs
Weaknesses
• State judiciary system does not recognize the
IGAs
• Lack of sanction for violations of IGA
provisions and procedures
• Inconsistency between tribal and State statutes,
procedures, and operations
• Inter-tribal coordination and information
sharing among ICWA agencies
Summary Analysis of Navajo Nation IGAs
Opportunities
• Increase the number of IGAs. There are 3
IGA states out of 29 states that have the
Nation has ICWA cases and a total of 47
states with no IGAs
• Piggy-back off other tribal IGAs in other
states where Navajo cases exist
• Duplicate strategies used to engage states
Summary Analysis of Navajo Nation IGAs
Threats
• State agencies and courts undermine tribal
governance and sovereignty
• General increase number of filings and
appeals in state courts
Programmatic Best Practices for IGAs
1. Reunification of Children with Parents
 Qualified, expert staff
 Stable and consistent funding
 Tribal network of supportive service
providers
 Engaging state and tribal agencies
Programmatic Best Practices for IGAs
2. Permanent Placement of Children with
Relatives
 Strength of traditional extended family
network
 Tribal legal and judiciary support
 Streamlined public access, outreach, and
referral process
Programmatic Best Practices for IGAs
3. State Engagement
 Awareness and education with state child
welfare government and private agencies
 Advantages and disadvantages of IGAs
 Prioritize open dialogue with state at
procedural level
 Building trust in the short and long term
 Focus on continuous improvement
Next Steps
• Request that more NM Tribes consider an
ICWA IGA. (Gov’t- to- Gov’t process).
• Tribal advocacy for Tribal Customary
Adoption as a tribal alternative to the adoptive
placement of Indian children in State custody.
• Increase the number of Title IV-E Tribal JPAs.
• Consider Tribal – CYFD ICWA Advisory
Council
In Closing – ICWA of 1978
There is no resource that is more vital to the continued
existence and integrity of American Indian tribes than their
children … and that an alarming high percentage of such
children are placed in non-Indian foster and adoptive homes
and institutions. The states … have often failed to recognize the
essential tribal relations of Indian people and the culture and
social standards prevailing in Indian communities and
families…
…It is the policy of this Nation to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families… ( 25 USC Sec. 1901, 1902)
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