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<< Click to Display Table of Contents >> III. A. Indian Child Welfare PolicyEffective 2/1/16 |
  
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Effective 2/1/16
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<< Click to Display Table of Contents >> III. A. Indian Child Welfare PolicyEffective 2/1/16 |
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I.SUBJECT
The Indian Child Welfare Policy outlines the practices and procedures that must be followed for children who are members of a federally recognized tribe, or who are eligible for membership in a federally recognized tribe throughout the life of the case. The policy further outlines how to partner with federally recognized tribes located in Maine; how ICWA is applied for children who enter state custody; and how to assure that the culture is respected for children with Indian heritage.
II.PHILOSOPHY
There is a history in this country of not valuing, supporting or recognizing the culture of Indian people. This was demonstrated by the child welfare practice of ‘rescuing’ Indian children from their culture and their families and forcibly removing children, denying children their own culture, family and language. In the 1970’s, prior to the passage of the Indian Child Welfare Act, Maine Wabanaki (the confederacy of tribes in Maine and Eastern Canada) children were removed at a much higher per capita rate than that of non-Indian children.
In 1978 the US Congress passed the Indian Child Welfare Act (ICWA), which codified higher standards for the protection of the rights of Indian children, their family and their tribal community. In the words of the Indian Child Welfare Act, the US Congress said that “no resource is more vital to the continued existence and integrity of Indian tribes than their children……and that child welfare agencies had failed to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families’ (25 U.S.C. §1901).”
The Department of Health and Human Services, Office of Child & Family Services (OCFS) believes that Indian children should remain with their family, relatives and their Tribe or Band when they cannot remain with their parents. Federal ICWA law states that tribes will be notified of child welfare involvement at the time the Petition is filed, however, the Department believes, commits to and expects involvement to begin at time of Intake and/or first contact because OCFS places high value on partnering with tribes and in joint decision making. Therefore, the most important philosophy to remember throughout a case involving the ICWA law is inclusion. It is imperative to include the appropriate Tribe or Band throughout the life of the case.
The Department not only recognizes the ICWA as federal law which it must follow, it understands the spirit and intent of the law. The Department is committed to tribes having maximum participation in an ICWA case, collaborating as co-case managers.
This policy supports the OCFS Practice Model in that OCFS believes that families are knowledgeable about their own families, that families have the right to raise their children and that we respect the family’s culture.
III.PURPOSE
The purpose of this policy is to ensure that staff are aware of the Indian Child Welfare Act and the spirit of the law to ensure that OCFS Caseworkers partner with Tribal Child Welfare Staff from the first call to Intake through permanency.
This policy will provide a guideline to staff when working with all federally recognized tribes rather than reiterating all sections of other policy. Federally recognized tribes and contact information can be found through the US Department of the Interior, Indian Affairs website http://www.bia.gov/
There are four federally recognized tribes in Maine with five locations. They are:
The Department has two tribal agreements, the 1987 Penobscot agreement and the 2002 Houlton Band of Maliseet Indians agreement, please see Appendix 4.
IV.PRACTICE MODEL
We recognize that family members know the most about their own families. It is our responsibility to understand children and families within the context of their own family rules, traditions, history and culture.
When children cannot live safely with their families, the first consideration for placement will be with kinship connections capable of providing a safe and nurturing home.
V.LEGAL BASE
Title 25 U.S.C. § 1901 – 1923, the Indian Child Welfare Act (ICWA) is the federal law Congress passed in 1978 “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.” Specific standards must be met before an Indian child may be removed from his or her family or placed in an adoptive or foster care placement; provide for placement preferences; require active remedial efforts towards reunification (a standard higher than reasonable efforts); and dictate higher evidentiary standards for the removal of custody from a parent and the termination of parental rights.
Title 22, M.R.S. § 7805, provides that the Maine licensing of facilities standards do not apply to any Indian foster family home, adoptive home or other facility licensed by a federally recognized Indian tribe in this State pursuant to the ICWA.
VI.DEFINITIONS (25 U.S.C. § 1903, 80 Fed. Reg. 10146-10159)
For the purposes of this Act, an “Indian child” is defined as any unmarried person who is under age eighteen 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.”
“Parent” means 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. It does not include the unwed father where paternity has not been acknowledged or established (putative fathers).”
“Indian custodian” means 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.”
“Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43”
“Indian child custody proceeding” means a “child custody proceeding” within the meaning of Section 1903 of the Indian Child Welfare Act which expressly includes the following: • Foster care placement - Any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand; or •Termination of Parental Rights – Any action resulting in the termination of the parent-child relationship; or •Pre-adoptive Placement – 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; or •Adoptive Placement – The permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. Active Efforts or Active Remedial Efforts: ICWA requires active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family. Active efforts must begin from the moment the possibility arises that the Indian child may be removed. Active efforts should be conducted while verifying whether the child is an Indian child. Active efforts include, but are not limited to: •Family Team Meetings engaging the Indian child, the Indian child’s parents, the Indian child’s extended family members, and inviting representatives of the Indian child’s tribe to participate; •Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services (e.g. transportation); •Taking into account the Indian child’s tribe’s prevailing social and cultural conditions and way of life and requesting assistance from the designated representative of the Indian child’s tribe in understanding prevailing social and cultural standards; •Completing a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; •Notifying and consulting with extended family members of the Indian child to provide family structure and support for the Indian child, to assure cultural connections, and to serve as placement resources for the Indian child; •Identifying community resources including housing, financial, transportation, mental health, substance abuse, peer support services, and actively assisting the parents or extended family in accessing and using those resources, including consideration of alternative ways to address the needs of the parents and extended family if services are available. Imminent Physical Damage or Harm: Present or impending risk of serious bodily injury or death that will result in severe harm without safety intervention. Qualified Expert Witness: A Qualified Expert Witness is someone who has specific knowledge of the culture and customs of the child’s tribe’s (see “Filing a Petition” for the preferred order of Qualified Expert Witnesses).
VII.PROCEDURE STATEMENT
Intake:
The Intake Unit is the Unit within OCFS that receives the initial referral regarding allegations of child abuse and/or neglect. When the Intake caseworker receives the call they must determine as soon as possible if it is an ICWA case. They will ask the referent if it is known if the child who is the subject of the referral is of Indian heritage. If it is determined that the child is of Indian heritage the Intake caseworker will ask:
The intake caseworker must make an initial investigation into whether the child may have connections to any Indian Tribe. Direct questions must be asked. Because the person who makes the report to Intake may not know whether there are any such tribal connections, and because such information may emerge over time, the assessment caseworker must also directly inquire, asking questions of the family members and pursuing additional information about any tribal affiliation. (See “Child Protective Assessment” below.) Ultimately, the Indian tribe determines whether the child is either a member or eligible for membership. This information will be documented in MACWIS, both in the Intake report and subsequent narrative log. Each individual federally recognized tribe establishes its own membership eligibility criteria. A child may be eligible for membership in more than one tribe. In that case, all applicable tribes must be notified and the tribe with the most significant contacts with the child, as determined by the designated representatives of the tribes, must be designated as the child’s tribe.
For children who do not live on Indian lands (fee land, trust land, reservation), an emergency removal requires imminent physical damage or harm to the child. If this is present, the petition must initially be filed in state court and the intake worker will contact the appropriate tribe with the referral information (See Appendix 1 for contact list) (See Filing a Petition section for more details on emergency removal).
For children who live on Indian land (fee land, trust land, reservation), an emergency removal likewise requires imminent physical damage or harm to the child. Two of the four federally recognized tribes in Maine, the Passamaquoddy Tribe and the Penobscot Nation exercise exclusive jurisdiction over child welfare cases. Therefore, if the child is on Penobscot Nation or Passamaquoddy Tribe land at the time of referral, then the intake worker must contact the child protective services of that particular tribe immediately. It is then the responsibility of the tribe to make the decision regarding the allegations and if the report is appropriate for assignment, referral to the Alternative Response Program or should be screened out.
In all cases involving an Indian child associated with any of the four federally recognized tribes in Maine, the Intake worker will contact the appropriate tribe at the soonest opportunity, including prior to any removal if possible. (See Appendix 1 for contact list.)
When the referral involves a child with possible connections to any Indian tribe in Maine, regardless of whether the child lives on tribal land or not, the child welfare representative of the tribe (See Appendix 1) will be contacted and made aware of the referral. The caseworker and the tribal child welfare representative(s) will act as a team, as co-case managers in deciding how to respond to the allegations whenever possible.
Child Protective Assessment:
Assignment Activities: When a child may be associated with one of the four federally recognized tribes in Maine, the assessment caseworker must partner with the tribe’s child welfare representative (See Appendix 1) and investigate any tribal lineage. In all cases where a child may be an Indian child, regardless of whether or not the federally recognized tribe is located in Maine, the caseworker must investigate and gather information as to any tribal lineage.
Prior to initiating the assessment, both the supervisor and caseworker are involved in the assignment process. During this process ICWA status must be identified. The assessment caseworker must also directly inquire about Indian heritage, asking questions of the family members and pursuing additional information about any tribal affiliation(s). If there is reason to believe that the child is an Indian child, then the assessment caseworker must seek information on whether the child is an Indian child from each named tribe. As soon as a child is identified as having any tribal affiliation, the applicable child welfare agency will be notified and asked to participate in the assessment process.
When the Indian child is associated with the Houlton Band of Maliseet Indians, the assessment caseworker will partner with the social services team with the understanding that the 2002 Agreement acknowledged the tribe’s maximum participation in matters involving tribal children.
From this point forward the tribal child welfare caseworker and/or team is a partner in the case. The initial assessment with the family, whenever possible, will be coordinated with the tribal child welfare caseworkers, who are equal decision makers. Assignment activities will be coordinated between the OCFS and the tribal child welfare caseworker. The tribal child welfare caseworker may have knowledge of the family that OCFS does not have and this should be considered before initial contact is made. If the Tribal child welfare caseworker is not able to attend the initial visit, the family will be given the name and contact information so they may contact the tribal child welfare caseworker. It is recognized that OCFS has specific timeframes that must be adhered to and the tribal child welfare caseworker may not be available to accompany the OCFS caseworker within these timeframes.
Assessment Activities:
Continued Activities: All CPA Assessment and service case policy will be followed in ICWA cases but the tribal child welfare caseworker and/or supervisor will be included as this is a joint decision process. DHHS, OCFS may have legal obligations to adhere if a joint decision cannot be reached and the AAG must be consulted.
Juvenile Proceedings: Maine law authorizes the commitment of a juvenile to the custody of DHHS as an alternative disposition for a juvenile adjudicated of a juvenile crime upon a showing that “reasonable efforts” have been made to prevent the need for removal of the juvenile from the juvenile’s home AND continuation in the home would be contrary to the child’s welfare. 15 M.R.S.A. §3314(1)(C-1). In all juvenile cases where there is a DHHS caseworker involved, and a possibility that DHHS will be granted custody of the child, the caseworker must ask the child, parents and any other persons if there is any Indian heritage or reason to believe the child is an Indian child. If the child is an Indian child or there is any reason to believe the child may be an Indian child, then notification must be sent to the implicated Indian tribe(s). In any actions involving an Indian child, the caseworker should make efforts to seek the involvement of the Indian tribe and follow ICWA placement preferences. (See “Placement”). Depending on the juvenile crime(s) with which the child has been charged, ICWA provisions may or may not apply. Contact an AAG if there are any questions.
ICWA requires a showing that “active efforts” have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family AND that these efforts have proven unsuccessful. 25 U.S.C. §1912(d). All active efforts to assist and engage the family by the juvenile worker, DHHS caseworker and tribal social worker to keep the Indian child in the home must be documented. The first priority of active efforts is to keep the Indian child in the home. The placement of a juvenile in the custody of DHHS is a “foster care placement” order which must be supported by clear and convincing evidence, including the testimony of a qualified expert witness, establishing that the continued custody by the parent(s) is likely to result in serious harm to the child. (See “Filing a Petition”).
Filing a Petition: When considering whether to file a PPO with regards to an Indian child, the state standards and the federal ICWA standards must both be satisfied. The state standard for emergency removal is a preponderance of the evidence that shows immediate risk of serious harm. The federal standard for emergency removal of an Indian child is clear and convincing evidence that the child is likely to suffer imminent physical damage or harm if returned to the custody of the parents or Indian custodians. The tribal child welfare representatives and those other supports they may want to include to support the family will be invited to the Facilitated Family Team Meeting. Collaborating with the tribe or band during the assessment phase of the case does not negate the official written notification that must be sent.
When filing a petition for Jeopardy with regards to an Indian child, the state standards and the federal ICWA standards must both be satisfied. The state standard for removal is a preponderance of the evidence that shows jeopardy and that remaining in the home is contrary to the welfare of the child. The federal standard for removal of an Indian child is clear and convincing evidence that the child is likely to suffer serious harm if permitted to remain in the custody of the parents of Indian custodians.
DHHS must demonstrate to the court that prior to the commencement of the proceeding, active efforts have been made to alleviate the need to remove the Indian child from his or her parents or Indian custodians. These efforts shall take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe. They shall also involve and use the available resources of the extended family, the tribe, Indian social services agencies, and the individual Indian caregivers.
In ICWA cases a Qualified Expert Witness must testify regarding removal and active remedial efforts, and provide cultural and historical context specific to the child’s tribe. Expert Witnesses are preferred in the following order: •A member of the Indian child’s tribe who is recognized by the tribe’s child protection team as knowledgeable in tribal customs regarding family organization and child rearing •A member of another tribe who is recognized by the child’s tribe as a Qualified Expert Witness based on their knowledge of delivery of child and family services to Indians and the child’s tribe •A layperson recognized by the child’s tribe as having substantial experience of delivery of child and family services to Indians and knowledge of prevailing social, cultural, and childrearing practices within the child’s tribe •A professional person having substantial education and knowledge in the area of his or her specialty who can demonstrate knowledge of the prevailing social and cultural standards and childrearing practices in the child’s tribe
Notification: Notification must be sent to any tribes, parents, and Indian custodians via registered mail with return receipt requested. Notification of a petition being served will occur through the tribes’ child welfare department and must be sent to the Tribal Child Welfare Director. All notices must contain the information required under ICWA guidelines (80 Fed. Reg. 10146, 10153(B.6)). Notification forms are located in Appendix 3. With regard to the Houlton Band of Maliseet Indians, notification must be sent through registered mail, return receipt requested, and both the tribal child welfare caseworker and tribal Chief must be served in hand as well. A copy of every notice sent to each tribe, parent and Indian custodian including a copy of the petition, must be sent to the Eastern Regional Director of the BIA. Cover Letters are located in Appendix 2. For tribal contacts of Maine tribes please see Appendix 1.
If the location or identity of the Indian parents, Indian custodians, or child’s tribe cannot be determined, then the Notice and Petition along with the cover letter of inquiry, including all of the information required under ICWA guidelines, must be sent to the Eastern Regional Director of the BIA. Cover letters are located in Appendix 2.
A tribe may request transfer of jurisdiction to an applicable tribal court at any point through the life of the case. The filing of the petition is the first opportunity for a tribe to request that the case be transferred to tribal court. The Passamaquoddy Tribe and the Penobscot Nation each have tribal courts. Cases for the Houlton Band of Maliseet Indians and the Aroostook Band of Micmacs are presently held in state courts. As per the 2002 Agreement with the Houlton Band of Maliseet Indians, they may request a transfer of a case to an applicable tribal court.
No child protection hearing may be heard until at least 10 days after receipt of notice by parent, Indian custodian, and tribe. The parent, Indian custodian or Tribes may request, and will be granted, an additional 20 days to prepare for hearing (30 total days from receipt of notice).
Family Team Meetings/Facilitated Family Team Meetings: The Family Team Meeting (FTM) Policy outlines the decision points where FTM must occur, and the elements of the FTM process, which include preparation, implementation, planning and documentation. These elements do not change for an ICWA case. The difference in an ICWA case is that the steps of the FTM must be done in conjunction with the tribal child welfare caseworker from the planning phase, invitations, preparation and determining who will facilitate the meeting. It is important to remember that the family still needs to be at the core of developing the team members who are invited to the FTM, but just as OCFS has team members who are considered to be essential to planning for the family and must be invited, the tribe may also have team members that are considered essential and must be invited to the FTM. The two caseworkers will decide together how best to invite and prepare the attendees for the FTM and will communicate before the meeting occurs to ensure the preparation plan was followed. The two caseworkers will also decide together who will facilitate and scribe the meeting. It is important that the two caseworkers present a cohesive working relationship to best meet the family’s needs and assist them in planning for their child(ren)’s needs regarding safety, permanency and well-being. It is important to remember that cultural differences may lead to creative solutions that may be better accepted by the family as well as being more successful. Family team meetings play a crucial role in utilizing active efforts to prevent the breakup of an Indian family (see “ICWA Definitions” under Active Efforts).
Placement: The OCFS caseworker will make every effort to ensure that the placement of a child in an ICWA case, in both an emergency and non-emergency situation, be done in conjunction with and has the approval of the tribal child welfare agency. When this is not possible the tribal child welfare agency will be notified as soon after the placement as possible.
Placement of a child in an ICWA case should be made in consultation with the tribe. The standards to be applied in Indian child placements will be the prevailing social and cultural standards of the Indian tribe in which the parent or extended family member maintains social and cultural ties. It is important to remember these standards are defined by each tribe and not by the OCFS caseworker.
Unless the Court has made a judicial finding that there is good cause to deviate from ICWA placement preferences or the child’s tribe has established a different order of preference, the order of placement preference will be as follows:
1.A member of the Indian child’s extended family (either Indian or non-Indian). It is important to remember that a “relative placement” may be defined by the tribe. 2.A foster home licensed, approved or specified by the Indian Child’s tribe. 3.An Indian foster home licensed/approved by an authorized non-Indian licensing authority. 4.An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian Child’s needs.
If the placement preferences cannot be met we must demonstrate through clear and convincing evidence that a diligent search has been conducted and explain why those preferences could not be met.
Family Reunification: Family reunification is the primary goal when a child has been removed from their family. The family reunification plan that is developed, in conjunction with the parents, must also be developed in partnership with the tribal child welfare caseworker. It is important to consider and utilize the resources the tribe can bring to support the family. The tribe may have an already established relationship with extended family members who may also support the family during and after the reunification process. The services offered must be culturally supportive and the tribe, if they choose to, should arrange for counseling services if needed.
The reunification plan as outlined in policy and law applies to ICWA cases as well, with the distinction being that the plan development and monitoring must be done jointly with the tribal child welfare caseworker. If there is disagreement then the supervisors must be consulted. If a resolution cannot be reached the AAG must be consulted.
Any party seeking placement of or termination of parental rights to an Indian child shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. 25 U.S.C. § 1912(d). The Maine Law Court has interpreted this provision to mean that active remedial efforts to provide parents with rehabilitative services have proven unsuccessful.
Concurrent Planning: In all cases concurrent planning is a vital component in moving a child toward permanency. Steps toward permanency should be a topic of all FTMs and decisions must be made jointly between the two caseworkers and the family. In ICWA the discussions regarding permanency time frames and options for families are extremely important to have with both the tribe and the family. In some tribal cultures adoption is not the preferred permanency option. When working with a tribe who is opposed to adoption if a child cannot be reunified with a parent, Permanency Guardianship should be considered and discussed with tribal child welfare, regardless of the child’s age. Steps toward permanency should be a topic of all FTMs and decisions must be made jointly between the two caseworkers and the family.
Permanency: Permanency for children in ICWA cases is as urgent as it is in all cases; however Indian heritage provides a sufficient, compelling reason under state law not to file a petition to terminate parental rights when the child has been in foster care 15 out of the most recent 22 months. A concurrent plan will be developed with the tribal child welfare caseworker and the family. The inclusion of the tribal child welfare caseworker is expected through the life of the case, and is critical in the development of the alternative permanency plan as different tribes and bands have different cultural norms regarding permanency guardianship and adoption. The termination of parental rights is not an acceptable outcome in all tribes or bands and the views of the child’s tribe or band must be explored before an alternate goal of adoption is selected. Some tribes or bands have other alternate permanency options reflective of their tribal customs.
When termination proceedings move forward the state must prove that the required ‘Active Remedial Efforts’ were made prior to the filing of the TPR Petition and that they continued until the TPR hearing begins.
Permanency Guardianship: Unless the court has made a finding of good cause to deviate from the ICWA placement preferences or the child’s tribe has established a different order of preference, placement preferences must be considered in the following order: 1.A member of the Indian child’s extended family (either Indian or non-Indian). It is important to remember that a “relative placement” may be defined by the tribe. 2.A foster home licensed, approved or specified by the Indian Child’s tribe. 3.An Indian foster home licensed/approved by an authorized non-Indian licensing authority. 4.An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian Child’s needs.
Adoption: Unless the Court has made a finding of good cause to deviate from the ICWA adoption preferences or the child’s tribe has established a different order of preference, adoption preferences must be considered in the following order:
1.A member of the child’s extended family 2.Other members of the Indian child’s tribe 3.Other Indian families, including families of unwed individuals
Additionally, if families would like the adoption legalization hearing to occur in tribal court rather than in Probate Court, this must be arranged.
Within two years of the adoption a parent who consented can vacate due to fraud, duress, or ICWA non-compliance.
Transitional Living: The Transitional Living Policy is the same for Indian children as it is for all children as well as an additional tuition waiver program. Indian children, as foster children in custody, qualify for the tuition waiver slots allotted by the University of Maine System and the Maine Community College System. However there is a separate waiver program that also applies to Indian children. To qualify the youth must be:
or,
Resource Homes: The approval of Indian resource homes either on the reservation or within other tribal lands is conducted by the tribe or band. The approval process of Indian resource homes not on the reservation or other tribal lands can be conducted by either the tribe or band, if they choose, or they can request that OCFS conduct the licensing of the home.
If a foster home is approved by the tribe or band it will be accepted as an approved resource home and entered into MACWIS as a tribally approved home when the following has occurred:
1.The tribe or band has completed a home study and the family has met the approval standards developed by the tribe. 2.The tribe or band has forwarded a copy of the home study to the OCFS Resource Unit Supervisor. 3.The background checks have been completed and forwarded to the OCFS Resource Unit Supervisor. The background check includes: •A criminal background check through the State Bureau of Investigation •A criminal background check through the tribal legal system •A fingerprint check •BMV records •A child protective background check through both the state of Maine OCFS and tribal child welfare The tribe or band may opt to have OCFS complete the background checks. If this is done, they must still provide OCFS with the tribal criminal background check and tribal child protective check.
APPENDIX 1
Contact Information for Federally Recognized Tribes in Maine (please make initial contact by phone and email)
Houlton Band of Maliseet Indians Lori Jewell, ICWA Program Director 13-2 Clover Court Houlton, ME 04730 532-7260 office, 532-7287 fax
Aroostook Band of Micmacs Luke Joseph, ICWA Program Director 7 North Road Presque Isle, Me 04769 764-1972 office, 764-7667 fax
Passamaquoddy Tribe at Pleasant Point (Sipayik) Frances LaCoute, Social Services Director PO Box 343 Perry, ME 04667 853-2600 office, 853-9618 fax
Passamaquoddy Tribe at Indian Township (Motahkomikuk) Dorothy Barnes, Supervisor PO Box 301 Princeton, ME 04668 796-6133 office, 796-5606 fax dot@passamaquoddy.onmicrosoft.com
Penobscot Nation Debi Francis, Social Services Director 9 Sarah’s Spring Drive Indian Island, ME 04468 817-7497 office, 817-7490 fax Debi.francis@penobscotnation.org
APPENDIX 2
Cover Letter to Eastern BIA Regional Office
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(Date)
Eastern Area Director
ATTN: Gloria York
Bureau of Indian Affairs
545 Marriot Drive, Suite 700
Nashville, TN 37214
RE: DHHS IN RE:
Docket No.:
To Whom it May Concern:
Notice of an Involuntary Child Protective Proceeding regarding the above captioned child(ren) has previously been provided pursuant to 25 C.F.R. § 23.11. However, the recently updated Guidelines for State Courts and Agencies in Indian Child Custody Proceedings indicates that registered mail notice to Indian Tribes, the child(ren)’s parents/Indian custodians is required for each proceeding. Pursuant to 25 C.F.R. § 23.11 governing notice, copies of these notices shall also be sent to the Secretary and the appropriate Area Director. Therefore, enclosed please find copies of the aforementioned notices. The child(ren) is/are a member of, or eligible for membership with, the __________________ Tribe.
☐ Hearing notice has been provided to the Mother, ______________, at _______________________.
☐ The whereabouts/identity of the Mother, _______________, are unknown to the Department. The Department hereby requests that, pursuant to 25 C.F.R. § 23.11(b) the BIA assist in locating the Mother.
☐ Hearing notice has been provided to the Father, ______________, at _______________________.
☐ The whereabouts/identity of the Father, _______________, are unknown to the Department. The Department hereby requests that, pursuant to 25 C.F.R. § 23.11(b) the BIA assist in locating the Father.
☐ Hearing notice has been provided to the Indian custodian, ______________, at _________________.
☐ The whereabouts/identity of the Indian custodian, _______________, are unknown to the Department. The Department hereby requests that, pursuant to 25 C.F.R. § 23.11(b) the BIA assist in locating the Indian custodian.
☐ Hearing notice has been provided to the child’s Indian tribe, ______________, at ________________.
☐ The whereabouts/identity of the child’s Indian tribe are unknown to the Department. The Department hereby requests that, pursuant to 25 C.F.R. § 23.11(b) the BIA assist in locating the child’s Indian tribe.
Sincerely,
DHHS Caseworker
cc: ________ District Court
Reg. No.:
APPENDIX 3
Notification Form
STATE OF MAINE District Court
, ss. Division:
Docket No.
MAINE DEPARTMENT OF HEALTH
AND HUMAN SERVICES
IN RE: NOTICE OF STATE COURT
INVOLUNTARY PROCEEDING:
PETITION FOR CHILD PROTECTION ORDER
NOTICE IS HEREBY GIVEN pursuant to 25 U.S.C. § 1912 of the following:
The State of Maine Department of Health and Human Services, pursuant to 22 M.R.S., Chapter 1071, Subchapter IV, has filed a Petition for Child Protection Order and/or Order of Preliminary Child Protection regarding the following named child:
Child’s Name:
Date of Birth:
Place of Birth:
Tribe(s) in which the child is enrolled or may be eligible for enrollment:
Biological Mother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Is Mother’s domicile on an Indian reservation or Indian community? Yes/No
Biological Father (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Is Father’s domicile on an Indian reservation or Indian community? Yes/No
Maternal Grandmother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Death:
Place of Birth and Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Maternal Grandfather (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Paternal Grandmother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth and Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Paternal Grandfather (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Maternal Great-Grandmother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Maternal Great-Grandfather (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Maternal Great-Grandmother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Maternal Great-Grandfather (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Paternal Great-Grandmother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Paternal Great-Grandfather (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Paternal Great-Grandmother (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Paternal Great-Grandfather (Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Indian Custodian (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Indian Custodian (Maiden Name/Former names/Aliases):
Address (current and former):
Date of Birth:
Place of Birth:
Place of Death:
Tribal Affiliation/Enrollment Number:
Other Identifying Information:
Indian Tribe Contact
Name:
Address (physical and mailing):
Telephone number:
The Petitioner, State of Maine Department of Health and Human Services, is represented by:
, Assistant Attorney General
State of Maine Office of the Attorney General
Address:
The following parties have been notified of these proceedings:
Parent:
Location:
Mailing Address:
Telephone Number:
Parent:
Location:
Mailing Address:
Telephone Number:
Indian Custodian:
Location:
Mailing Address:
Telephone Number:
Indian Custodian:
Location:
Mailing Address:
Telephone Number:
Indian Tribe:
Location:
Mailing Address:
Telephone Number:
A biological Indian parent, Indian custodian, and the tribe of the above named child have the right to intervene at any time in a State court proceeding for foster care placement or termination of parental rights. If the parent or Indian custodian of the above named child is unable to afford counsel, counsel will be appointed to represent him or her where authorized by state law.
Hearing on the above Petition shall not be held until at least ten days after receipt of notice by the parent or Indian custodian or the tribe. Moreover, the parent or Indian custodian or the tribe of the above named child shall, upon request, be granted up to twenty additional days to prepare for such proceeding. Any request for additional time may be made to the ________________ District Court located at _________________________________, by mailing such a request to _______________________________. The court can be reached via telephone at: __________________.
A parent, Indian custodian, or tribe of the above named child has the right to petition the Maine District Court for transfer of proceedings on the above Petition to the jurisdiction of the tribal court pursuant to 25 U.S.C. § 1911 absent objection by either Parent. Such transfer shall be subject to declination by the tribal court of the child’s tribe.
Hearing on the above named Petition may result in a judicial order removing legal custody of the above child from the parents, Indian custodians, and granting custody to the State or other person. These proceedings could eventually lead to termination of parental rights under 22 M.R.S.A. §4051-4057 and 25 U.S.C. §1912.
The information contained in the Petition and Notice is confidential and should not be released except as necessary to exercise the Tribe’s rights under the Indian Child Welfare Act. 25 C.F.R. § 23.11 (e)(7).
A copy of the above Petition for Child Protection Order is attached to this notice.
A (type of hearing) on the above named child shall be heard at the _________________________ District Court with a mailing address of _______________________________ on a.m. for parents, custodians, other parties to appear and be heard. The phone number to the District Court is (207) .
Date: __________________________ _______________________________________
, DHHS Caseworker
Address
Telephone Number
APPENDIX 4
Intergovernmental Agreement: Houlton Band of Maliseet Indians and State of Maine
WHEREAS, the Houlton Band of Maliseet Indians (“Tribe”) is a Federally Recognized Tribe; and
WHEREAS, the State of Maine (“State”) currently provides child welfare services to the Tribe; and
WHEREAS, The United States Congress did in 1978 enact the Federal Indian Child Welfare Act, Public Law 95-608 (Codified at 25 §§ 190), et. seq. (“ICWA”); and
WHEREAS, the goal of ICWA is to place Indian children in Indian homes so that the Tribe’s culture can subsist in the future; and
WHEREAS, Both the State and the Tribe agree that Indian children and families deserve to receive the same level of services and protection form harm as non-Indian children and families, whether they live on or off the reservation, and also deserve the protections afforded them by ICWA;
WHEREAS, The Tribe has not had a Tribal Court available to assume jurisdiction of child welfare cases until now;
WHEREAS, The Tribe has entered into an agreement to use the services of the Tribal Court of the Penobscot Nation or the Passamaquoddy Nation as its own Tribal Court, until the Tribe has established its own Tribal Court;
WHEREAS, Both the State and the Tribe agree the appropriate care and placement of the Tribe’s children is essential to the cultural integrity of the Tribe; and
WHEREAS, Both parties want to improve the care and placement of the Tribe’s children, protect the children and ensure the preservation of the Tribe’s culture.
NOW THEREFORE BE IT RESOLVED, that the State and the Tribe shall enter into an Intergovernmental Agreement that meets the requirements of ICWA, as authorized by 25 USCS § 1919;
BE IT FURTHER RESOLVED, that the Tribe shall enter into a separate agreement with the Penobscot Nation to use the Penobscot Tribal Court or the Passamaquoddy Tribe to use the Passamaquoddy Tribal Court as the Tribe’s Tribal Court, until such time as the Tribe shall establish its own Tribal Court, and the Tribe will adopt a Chill Welfare Code and Policy, as well as foster home licensing rules;
BE IT FURTHER RESOLVED, that the Tribe will put in place a social services team, including social workers. To manage the care of any children of the Tribe who are in need of child protection services;
BE IT FURTHER RESOLVED, that for purposes of this agreement and for purposes of the application of ICWA and without prejudice to any party in any other discussion, disputed or contested matters, the Trust Lands held by the Tribe are defined as reservations(s).
BE IT FURTHER RESOLVED, that at the request of the Tribe, the State will request that the District Court transfer all pending child welfare and adoption cases to the Tribal Court in accord with ICWA, and request that any new actions filed in District Court be transferred to the Tribal Court in accordance with ICWA;
BE IT FURTHER RESOLVED, that the State will assist the Tribe in its efforts to reclaim its most valuable resource – its children, by providing funding and services when necessary to effectuate the goals of ICWA, as specified herein.
I. History. In 1978, the United States congress passed Public Law 95-608, the federal Indian Child Welfare Act (codified at 25 USC §§ 1901 et. seq.) (ICWA). Prior to the passage of ICWA, Indian children were being adopted and placed in foster care at a much higher rate than other children. As a result, Indian children were losing all contact with their families, tribes, and cultural traditions. Indian Tribes were becoming non-existent as their populations dwindled. ICWA attempted to remedy this by stating that “there is no resource…more vital to the continued existence and integrity of Indian tribes than their children” and that child welfare agencies had failed “to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families.’ (25 USC § 1901).
As a result of ICWA, Indian children are entitled to all rights given to other children with a higher standard of protections for the rights of Indian families to ensure that whenever possible, Indian families stay together. If it is not possible for children to remain with their parents, ICWA specifies and order of preference for placement of Indian children that favors placement with the extended family, the Tribe, or other Indian custodians.
In 1976, the Federal Indian Policy Review Commission found that in the early 1970’s Indian children in Aroostook County were placed in foster homes at a rate of 62.4 times (6,240 percent) greater than the Statewide rate for non-Indians. (Final Report of the Federal Indian Policy Review Commission: Task Force Four: Federal, State and Tribal Jurisdiction, p. 205). This situation was brought to the attention of the Congress during consideration of the Indian Child Welfare Act. (Senate Select Committee on Indian Affairs 95th Cong. 1st Session on S. 1214, the Indian Child Welfare Act of 1977, pp. 343-349.) The Tribe now intends to assume more responsibility under ICWA and reach an agreement with the State on child welfare matters to ensure the appropriate placement of the Tribe’s children in the future.
Because the Tribe has not had a Tribal Court, the Tribe has not been able to have its child protection cases heard by a Tribal Judge. All Maliseet child protection cases have been heard solely in the State court, which is not satisfactory to the Tribe. The Tribe has not had a tribal child welfare system until this time, and therefore has relied on the State for casework and foster care licensing. While the State and the Tribe have made efforts to recruit foster parents, there are a limited number of Indian foster homes available for placement.
II. Summary of ICWA. ICWA protects the integrity and longevity of Indian tribes by preventing the removal of Indian children from their families absent certain safeguards. ICWA accomplishes this through the following (The following statements are only provided as a summary and are not intended to amend or replace the actual ICWA provisions).
A. Requiring that active efforts be made to identify a child’s membership or eligibility for membership in and Indian Tribe.
B. Recognition of the jurisdiction of Indian Tribes and Tribal Courts.
C. Providing for exclusive jurisdiction of Indian Tribes over child custody proceedings involving an Indian child who resides or is domiciled on the reservation.
D. Providing for transfer of child custody proceedings to the jurisdiction of the Indian child’s tribe, absent objection by either parent, upon the petition of either parent of the Indian custodian or the Indian child’s tribe, provided that such transfer shall be subject to declination by the tribal court of such tribe.
E. Requiring that the State give full faith and credit to the public acts, records and judicial proceedings of any federally recognized Indian Tribe regarding child welfare proceedings.
F. Requiring state courts, in the placement of Indian children, to observe a high standard in order to promote the continuity of Indian families.
G. Requiring compliance with the order of preference for placement of Indian children as set forth by ICWA, or by the Tribe if the Tribe has selected and offer of preference compatible with its own history, culture and traditions.
H. Requiring notice to tribe(s), Indian parents and custodians of state court child custody proceeding involving Indian Children.
I. Providing for the right of parents, custodians, and Tribes to intervene as parties to any State court proceeding.
J. Providing for court-appointed lawyers to represent indigent parents and court-appointed guardians ad litem to represent Indian Children.
K. Providing protections for the parents who voluntarily place their child in foster care of terminate their parental rights.
L. Recognition of Tribal licensing and/or approval of standards for foster homes, group homes, and adoptive families, and social services.
M. Funding of Tribal social services to Indian families for use in connection with child welfare goals.
N. Providing for a process to invalidate the State court actions when ICWA has been violated.
O. Assisting adults who were adopted out of their Tribes to research Tribal affiliation.
III. Purpose. This Agreement was developed to ensure that the Houlton Band of Maliseet Indians (“Tribe”) have maximum participation in determining the disposition of cases involving the Tribe’s children. Both parties agree that the history of child welfare and adoption services within the Tribe have ceded authority to the State and resulted in placement outside of Maliseet homes. Additionally, both parties agree that it is in the Tribe’s best interest to certify more foster and pre-adoptive homes, have a larger social-services network that allows the Tribe and State to work cooperatively to protect Indian Children and families.
The Agreement outlines the rights and responsibilities of both the State and the Tribe under ICWA and governs all proceedings having to do with the placement of the Tribe’s children.
The Agreement provides for the confidential exchange of information regarding Indian families so that Tribe and the State can work cooperatively to give Indian families the best possible resources available.
IV. Legal Authority. 25 USC § 1919 authorizes States and Indian Tribes to enter into Intergovernmental Agreements involving the care and custody of Indian children. Because the State is responsible for all children in its jurisdiction, 42 USC §670, et.seq. (Social Security Act) authorizes Tribes to enter into agreements with States for child welfare assistance monies and adoption assistance.
V. Jurisdiction. The parties acknowledge and agree that the Tribe has jurisdiction over child custody proceedings as described by ICWA. This jurisdiction extends to all of the Tribe’s children who are members or eligible for membership under the Tribe’s definition, regardless of whether domiciled on the Reservation or not.
The parties agree that in order for the Tribe to meaningfully participate in the placement of its children, notice must be made to the Tribe every time the custody or care of a Tribal child is at issue.
The Parties agree that it is in the best interest of the Indian Children and families and the tribe for the Tribe to take jurisdiction of existing cases and all future cases as contemplated by ICWA.
VI. Full Faith and Credit. The parties agree to provide full faith and credit for the public acts, records, and judicial proceedings of the other in matters governed by the Agreement.
VII. Interpretation of Agreement. This Agreement shall be construed liberally so as to achieve results consistent with ICWA and this Agreement. The following guidelines shall be followed:
A. Indian Families should be preserved;
B. Cases involving the Tribe’s children should be heard in a Tribal Court whenever possible.
C. Indian children who must be removed from their homes should have placements within their own families or Tribe.
D. The State and the Tribe will collaborate on child welfare and custody decisions for children who remain in the custody of the State. The State will defer to Tribal determinations on child welfare and custody, unless the State believes that such Tribal determinations pose a risk to the child. Where the State disagrees with the Tribal determination and makes a different determination, the Tribe retains the right to raise the issue in the appropriate forum.
VIII. Definitions.
| The following definitions shall apply to this Agreement, unless otherwise indicated: |
A. “Adoption” means the permanent placement of an Indian child for adoption that results in a final decree of adoption.
B. “Active Efforts” means active and thorough efforts by the State and Tribe social services agencies to fulfill its obligations of ICWA and this Agreement and to keep the child in the home as a first priority.
C. “Best Interests of the Indian Child” means the standard of review required under ICWA. Meeting the Best Interests of the Indian Child recognizes the importance of maintaining connections with the family and with the Tribe.
D. “Case Plan” means a written plan prepared by the Tribe’s social services department that documents the reasons the child is under the jurisdiction of the Court and the steps that must be taken in order for the child to receive a permanent placement.
E. “Custodian” means a person over 18 years of age who has custody of a child but does not have parental rights.
F. “Department of Human Services (DHS)” means the Maine State Department of Human Services.
G. “Dispositional Review Hearing” means any scheduled court hearing to review the status of the child and family.
H. “Domicile” means a person’s true, permanent home, or the place that the person intends to return even though the person is actually residing elsewhere; a child’s domicile is determined by the domicile of his/her custodial parent(s) and/or guardian or custodian.
I. “Guardian” means a person over 18 years of age who has legal custody of an Indian Child as so ordered by a court but who does not have parental rights.
J. “Extended Family” shall be defined by the Tribe. Should the Tribe fail to identify a child’s Extended Family. Extended Family shall mean a person who is at least eighteen (18) and who is the child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, second cousin, or step-parent.
K.“Foster Placement” means any and all initial and subsequent actions involving the removal of an Indian child from its parents or Indian guardian or custodian for temporary placement in a foster home or institution or the home of a guardian or custodian, where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.
L. “ICWA” means the Indian Child Welfare Act, 25 USC §§ 1901, et.seq.
M. “Imminent physical danger” means a threat of immediate physical injury to an Indian Child.
N. “Indian” means any person who is a member of any Indian Tribe, or who is an Alaska Native as defined in the Alaska Native Claims Settlement Act (43 USC § 1602(g)).
O. “Indian Child” means any unmarried person who is under the age of eighteen (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.
P. “Indian Tribe” means any Indian tribe, band, nation, or other organized group or community of Indians that is federally recognized.
Q. “Legal Custody” means the legally enforceable duty, responsibility, and authority to provide care and control of a child as interpreted by the State court or the Tribal Court when transferring legal responsibility for care form a parent, custodian, or guardian to the Tribe, DHS, the Tribal Court, or individual pursuant to a court order.
R. “Notice” shall mean the notification of the Tribe that an Indian Child is the subject of a foster placement or adoption hearing according to ICWA and the Agreement.
S. “Order of Placement” shall mean the following order of preference in placing Indian Children, unless the Tribe determines a different order of preference:
1. Member of a Child’s Extended Family;
2. Other member of the Child’s Tribe;
3. Other Indian family; or, if the above cannot be met,
4. Non-Indian family.
T. “Qualified Expert Witness” is a person who is a member of the Indian Child’s Tribe who is recognized by the Tribe as familiar with the Tribe’s custom and organization as the child-rearing or a lay expert witness who has substantial experience in his or her field or a certified professional who has substantial education and experience with Indian Children. “Qualified Expert Witness” as used here has the same meaning as the term is used in the Indian Child Welfare Act.
U. “Termination of Parental Rights” (TPR) means any actions by the State or the Tribe resulting in the permanent severing of the parent-child relationship.
V. “Tribal Court” shall mean any Court authorized by the Tribe to uphold the Tribe’s laws, regulation and customs.
W. “Tribal Social Services Agency” means the Tribal departments with responsibility for implementing ICWA and/or the provision of social services to Indian families.
X. “Ward of Tribal Court” shall mean a child who is deemed in need of services and has been placed in this custody of the Tribal Court. A child may be a Ward of Tribal Court without being available for adoption within the State.
XI. Agreement with State of Maine
A. The State desires to assist the Tribe in protecting its children and promoting the future of the Tribe. Therefore, the State agrees to do the following:
1. Notify the Tribe whenever an Indian Child is at risk of placement, and offer an opportunity to intervene by the Tribe to avoid placement by DHS. When a case has been assigned to a caseworker, the State will notify the parents of the parents’ option to notify the Tribe and to seek services from the Tribe.
2. Establish a system of regularly scheduled training for DHS staff that will emphasize the importance of identifying an Indian Child’s Tribal affiliations and extended family for placement purposes.
3. Make training programs for caseworkers and foster parents available to any potential foster parents or caseworkers for the Tribe;
4. Provide notice to the Tribe and for intervention by the Tribe in cases of child custody proceeding.
5. Provide appropriate notice to the Tribe for administrative hearings and reviewing of child custody proceedings that involve an Indian Child.
6. Provide the Tribe a copy of any court decrees regarding adoptions of Indian Children of the Tribe.
7. Provide any information to a Tribe, adoptive family or Indian Child that may be necessary to establish membership.
8. Maintain records on Indian Children in residential facilities including group homes and foster homes, including the extent of compliance with placement preferences in ICWA.
B. Funding Issues: The State and or DHS will do the following to assist with funding:
1. To the extent possible, assist the Tribe in obtaining state and federal funding to facilitate the Tribe’s ability to provide services that address the conditions in a child’s home to support the goal of family preservation. This means that the State will do the following:
a. Promote access by the Tribe to services available with providers who have contracted with the State by providing information and any necessary authorizations;
b. Advocate for direct funding to the Tribe by the federal government through Title IV-E of the Social Security Act, and/or work to develop an agreement to pass through IV-E funds to the tribe; and
c. Assist the Tribe to maximize funding available through Medicaid, including the provision of technical assistance.
X. Implementation of Agreement.
A. Timing. The State agrees that all child welfare and pre-adoption cases currently open involving an Indian Child shall, upon request of the Tribe, be transferred to Tribal Court, absent an objection by either parent and subject to declination by the Tribal Court. Tribal Court will hear the case at the next dispositional review hearing.
B. Notice. The State shall review all cases currently active in DHS to ensure that proper notice was given to the Tribe under ICWA and this Agreement. The State will take corrective action in cases where no notice or improper notice was given to notify the Tribe immediately of the error.
C. Confidentiality. DHS shall disclose confidential information to the Tribe in any case where the Tribe has exercised its right to intervene in support of the purposes of ICWA. DHS will comply with any State or Tribal Court order requiring disclosure of such information. The parties will execute a confidentiality agreement to ensure that the confidentiality of cases that are exchanged between the Tribe and the State is protected. The Tribe will share confidential child protection information with the State where the State has initiated a child protection investigation and the Tribe has relevant information about the family. Both parties recognize the importance of confidentiality in child welfare proceedings and will train their staff on how to ensure such confidentiality.
D. Training and Preparation. Whenever possible the State shall assist the Tribe in training and preparing staff for the ICWA caseload. The State and the Tribe will work collaboratively to make training available at least two times per year. DHS caseworkers, at the request of the Tribe, shall work directly with counselors from Tribal Social Services to ensure a smooth transition for the families.
E. Continuing DHS Responsibility for Services. DHS shall continue to be responsible for cases until they are completely transferred to the Tribe’s jurisdiction and custody has been transferred to the Tribe, Tribal Court or other entity. The parties agree that the transfer to Tribal Court includes a transfer of custody from DHS to the Tribe, the Tribal Court or other entity specified in the transfer order.
F. Procedures for cases in Tribal Court. Within 120 days of the signing of this Agreement, the State and the Tribe shall work together to create procedures for identifying the Tribe’s children currently in the custody of DHS, effecting Tribal Court jurisdiction over new cases, and transferring continuing cases to Tribal Court. The State and the Tribe shall also establish written policies for the implementation of the Agreement that each party will follow. A copy of these procedures will be provided to all DHS employees, Tribal social services employees, State and Tribal Court judges and clerks and al others whose actions or activities may fall under this Agreement.
G. Compliance Agreement. The Tribe and DHS agree to each appoint an individual to be designed for working with ICWA compliance. This compliance “team” shall meet quarterly with Tribe and State specialists to review procedures created under this Agreement and propose any new procedures required to improve services in the future. The team will review any Indian Child cases in State or Tribal Court upon the request of a social worker from either the Tribe or the State, to examine ICWA compliance and make recommendations to the parties.
H. Sanctions for Non-Compliance. The State and the Tribe shall work together to determine appropriate sanctions for violations of ICWA and this Agreement. At a minimum sanctions will include further monitoring of the situation, and may include a corrective action plan.
I. Inter-Agency Coordination. The Tribe and DHS agree to coordinate with the other agency to implement the terms of this Agreement. Such coordination will include training, on-going consultation, developing and negotiating agreements with other agencies, and any appropriate measures to ensure that this Agreement is understood and effectively implemented.
XI. Training. DHS shall require its state child welfare professionals who handle cases dealing with Indian Children, and strongly encourage private agencies who work with child welfare and placing Indian Children, to require their staff members to receive training specific to the Indian Child Welfare Act and this Agreement. Additionally, the Tribe shall require that its social service workers and court personnel attend such training.
A. This training shall include (but not be limited to) the following areas:
1. Procedures to implement ICWA and this Agreement,
2. Notice Requirements,
3. Provision of protective services,
4. Provisions of emergency foster care placement services,
5. Legal requirements to complete involuntary foster care placement or termination of parental rights,
6. Voluntary foster care placement,
7. Applicability of placement preference standards,
8. Record maintenance,
9. Adoption of Indian Children; and
10. Cultural issues affecting the Tribe
B. The tribe will develop and deliver training in collaboration with the State to promote knowledge and understanding of the following:
1. Behavioral issues that come with the clashing of two sets of cultural norms;
2. Socio-economic factors effecting the Tribe;
3. Historical relationship with the State and child welfare personnel;
4. Parenting skill support;
5. Reality that parent “substitutes” may have raised children;
6. Extended family and non-family members who are family-like in their relationship to the Indian Child; and
7. Any other issues specific to the child’s Tribe or the area.
C. DHS agrees to assist with logistics and funding for these trainings.
XII. Transfers to Tribal Social Services Agencies and to Tribal Courts.
A. Mandatory Transfers. The parties agree that except for an emergency or an objection by a parent, in the absence of good cause to the contrary, all child protection proceedings in Indian Child cases, at the request of the Tribe, must be transferred to the Tribal Social Services agencies for appropriate action in Tribal Court or directly to Tribal Court.
B. Transfer Procedures. The parties further agree that the procedures they develop will include procedures for identifying cases that trigger ICWA and this Agreement, preferably prior to any action being taken in State court. The State agrees that it will provide training to DHS workers to help them identify the Tribe’s children and notify the “Tribe when such a child has been reported to that agency.
C. Emergencies. The parties shall establish written procedures for identifying emergencies and providing for placements that are temporary until a placement under ICWA and this Agreement can be secured.
D. Review of Indian Children currently in placement. Within 120 days of the implementation of this Agreement DHS shall review all of its cases involving Indian Children. If the State of Tribe learns of a placement that fails to meet the placement preferences or the good cause exception in ICWA, DHS will work with the Tribe to develop a plan that is satisfactory to all parties.
XIII. Funding Issues
A. Foster Care Maintenance Payments. The parties agree that families providing family foster care for Indian Children in the custody of DHS shall be paid the customary maintenance amount that DHS would have provided the family had they been fostering a non-Indian Child.
B. Sections XII (C) and (D) of this agreement below, where a child is in Tribal custody and is adopted, will become effective upon the implementation of an agreement between the Department and the Tribe to pass through federal IV-E funds to the Tribe and then following a change in the Adoption rules to allow the Department to use state funds for adoption assistance in this situation.
C. Adoptive Placement Costs. A child placement agency responsible for the pre-adoptive placement of Indian Children shall be reimbursed at the usual and customary rate for such costs form the State. The State will work with the Tribe to develop a Tribal placement agency that will receive the usual and customary rate from the State.
D. Adoption Assistance Payment. DHS, in coordination with the Tribe’s social services department, agrees to provide adoption assistance payments to approved adoptive parents who have obtained a child through a Tribal Court proceeding, provided that the child and the parent meet all of the eligibility requirements set out in 42 USC § 670, and state law (Maine Title 18-A, Article IX Part 4 and the Maine Rules for Adoption Assistance) or the Tribe’s adoption standards.
E. Future Funding. DHS also agrees to provide assistance to the Tribe to identify, evaluate and obtain other social service funding.
XIV. Recruitment and Registry of Foster Homes and Adoptive Homes.
A. Recruitment. The parties agree to cooperate in a joint effort to develop a plan to recruit Indian foster and adoptive homes. The recruiting plan may include public advertising and other means likely to secure appropriate Indian homes. DHS shall provide training to assist potential Indian foster care providers to comply with the State and Tribe licensing requirements for foster or adoptive care.
B. Registry. The parties agree to establish and maintain a registry of all Indian Homes licensed by the State of Maine, licensed or approved by the Tribe and available to receive Indian Children for foster care or adoption. The registry will identify the name, address, tribal affiliation of the home, whether the home is licensed or registered with the State or the Tribe, and whether the home is available for foster or adoptive placement or both. The registry will be established by the State and maintained collaboratively by the Tribe, the State and any other tribe that wishes to participate. The registry will be accessible by both the Tribe(s) and the State.
XV. Inter-State Issues.
A. If another state requests that the Department assume responsibility for a child that the other state wishes to place in Maine, the Department will ask the Tribe to determine whether or not the child is a member of or eligible for membership in the Tribe and will subsequently notify the Tribe. The Department will refuse to accept responsibility for the child until a mutually developed plan for the child has been established between the Tribe and the Department.
B. When DHS makes a request to another state that an Indian Child be sent there for the purpose of foster care or pre-adoptive placement, a copy of the request shall be sent at the same time to the Child’s Tribe.
C. Retention of Jurisdiction. The sending state or Tribe shall retain jurisdiction over the Indian Child until the receiving state or the Tribe has accepted jurisdiction of the case.
XVI. Coordination of Agencies. DHS will notify all other State agencies currently associated with the care or protection of Indian Children, about the existence and contents of this Agreement and will coordinate other state services that support the goals of this Agreement. Nothing in this agreement obligates other state agencies that are not a party to this agreement to take or refrain from any specific action.
XVII. Dispute Resolution. The parties agree that, upon the request of either party, disputes arising under this Agreement shall be submitted for resolution to a dispute resolution “team” consisting of one DHS designee, one Tribe designee and a third member selected by both the DHS and the Tribe. A dispute shall only be referred to the dispute resolution team after other informal efforts at resolving the dispute have been unsuccessful. The parties agree to be bound by the decision of the dispute resolution team. Each party will have an opportunity to be heard by the team as to the merits of its position. The decision of the team will be in writing. The parties to this agreement will develop rules and procedures as to how the team’s hearing will be conducted.
XVIII. Amendment of Agreement. The parties agree that amendments to this Agreement shall be in writing and must be agreed to by both parties.
XV. Termination of Agreement. This Agreement shall remain in effect until revoked. Either party may revoke giving sixty (60) days written notice to the other, provided that any services provided under this Agreement do not lapse until provisions have been otherwise made.
XVI. Severability Clause. Should any clause in this Agreement be deemed invalid or unlawful, the rest of the Agreement shall still be binding and remain in full force and effect.
This agreement was signed on September 16, 2002 by Brenda Commander, Tribal Chief, Houlton Band of Maliseet Indians; Kevin Concannon, Commissioner, Department of Human Services, State of Maine; and G. Steven Rowe, Attorney General, State of Maine.
Child Welfare Agreement Between the Maine Department of Human Services and The Penobscot Indian Nation
I.Introductory Statement
Protection of children who are suspected to be or are victims of abuse or neglect is a goal of the Department of Human Services (DHS) and the Penobscot Indian Nation (PIN). Both agree to work cooperatively toward this goal. Furthermore, if jurisdiction is not clear, nothing in this agreement is to prevent either the State or the nation from taking what action it believes necessary to protect a child from immediate risk of serious harm, provided the other is notified and jurisdiction established as soon after as possible. This agreement is intended to advance, and not to in any way impede or inhibit, cooperation between DHS and PIN toward the goal of protection of children.
II.Definitions
Child Protective Referral: A written or oral report from a person who knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.
Child Protective Services:
Receipt and investigation of referrals of suspected child abuse or neglect, case planning, referral to appropriate services and resources, and case management toward the elimination or alleviation of child abuse or neglect of a child in his own home, initiation of court action to protect child.
Indian Child:
An unmarried person who is under age eighteen and is either (a) a member of a federally recognized Indian tribe or Alaskan native group; or (b) is eligible for membership in such a tribe or group and is the biological child of a member of such a tribe or group (Reference 25.U.SC. 1903).
Intake Study:
The process of fact gathering and assessment by which a referral for child protective services is received and the decision is made whether there is risk of child abuse or neglect and what action is to be taken.
Interstate Compact on the Placement of Children:
Enacted by almost all states and jurisdiction within the United States, this uniform law establishes orderly procedures for the interstate placement of children and fixes responsibilities for those involved in the placement of the child (Title 22 M.R.S.A. 4191-4247).
Substitute Care Services:
Assessment, case planning, case management, provision or arrangement of needed services for a child placed outside his own home by a state or tribal agency which has custody of the child or a voluntary agreement for placement with the parent.
III.Specific Provisions
A. Child Protective Services for Children Residing in the Penobscot Indian Reservation
The Maine Department of Human Services under Title 22 M.R.S.A. $4001 et.seq. Is required to receive and investigate allegations of suspected abuse and neglect of children. Through this agreement the responsibility of the Penobscot Indian nation for the receipt and investigation of such referrals regarding Indian children as defined by the Indian Child Welfare Act who reside on the reservation is recognized. The Maine Department of Human Services retains responsibility for referrals regarding children who are not Indian children as defined by the Indian Child Welfare Act.
H. Amendment and Termination 1. This agreement does not terminate any other child specific agreement entered into by two parties 2.This agreement may be amended at any time upon the mutual agreement of the parties. 3.This agreement may be terminated by either party upon notification of the other party 180 days in advance.
I. Computer Matching
The parties agree to continue to explore computer matching of tribal census roles to DHS computers so as to facilitate identification of tribal members.
This agreement was signed in November 1987 by the Governor of the Penobscot Indian Nation, the Director of the Bureau of Social Services and the Commissioner of the Department of Human Services. |
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