|
Or.
Admin. R. 413-070-0170
OREGON
ADMINISTRATIVE RULES COMPILATION
CHAPTER
413. DEPARTMENT OF HUMAN SERVICES, CHILD WELFARE PROGRAMS
DIVISION
70. SUBSTITUTE CARE
PLACEMENT
OF INDIAN CHILDREN
413-070-0170
ICWA Procedures at Initial Contact
This section presents
the initial steps to follow in providing services and taking legal action
for child custody proceedings covered by the ICWA.
(1) Determination of Indian
Status:
(a) Oral inquiry shall
be made in every case which involves or could involve changes in custody
to determine whether the case involves an Indian child. Agency staff shall
routinely request racial/ethnic data of parents or guardian by reading
aloud from the intake form the racial/ethnic categories for the client's
self-identification. If the child's parents are unavailable or unable
to provide a reliable answer regarding the Indian heritage of their child,
agency staff shall consider the following in determining a child's Indian
heritage:
A thorough review of all documentation in the file (including contact
with previous caseworkers, if any);
(A) Close observation
of the child's physical characteristics and the physical characteristics
of parents, as well as other siblings or relatives accompanying the child;
(B) Consultation with
relatives/collaterals providing information which suggests the child/parent
may be Indian;
(C) Examination of any
other information bearing on the determination of the child's Indian heritage,
such as communication from other sources including Indian tribes and organizations;
(b) If, in following the
above steps, information obtained suggests the child may be of Indian
heritage but the tribe cannot be determined, staff shall contact the agency
ICWA Manager to determine if:
(A) The birth place of
the child/parent, or the current/former residence of the child/parent
is known to be a common residence of Indian families;
(B) The surname of the
child/parent is one which is known to be common among members of Indian
tribes.
(2) Determination of Indian
Tribe. If it appears the child is of Indian heritage, the service worker
must determine the tribe in which the child is a member or eligible for
membership. Agency staff shall ask the child's parents or custodian tribe(s)
the child may be affiliated. If this inquiry does not provide
the necessary information, agency staff shall, at a minimum, contact the
following:
(a) Relatives and extended
family members;
(b) Indian tribes and
organizations in Oregon, such as the Commission on Indian Services;
(c) The appropriate Bureau
of Indian Affairs (BIA) Office.
(3) ICWA Eligibility.
For a child to be considered an Indian under the Act, the child must be:
(a) An unmarried person
under the age of eighteen; and
(b) A person who is either:
a member of an Indian tribe, or eligible for membership in an Indian tribe
and the biological child of a member of an Indian tribe;
(c) In order for the worker
to determine if the child is a tribal member or eligible for membership,
the tribe or possible tribes identified must be contacted.
(4) Tribal Membership:
(a) A tribal determination
of membership is conclusive because each tribe defines the criteria for
membership in the tribe and determines who meets those criteria. Inquiries
to the tribe must be sent "Return Receipt Requested" to a membership
committee, an enrollment clerk, or individual who is accustomed to responding
to questions about tribal membership. If the tribe does not respond, agency
staff shall contact the tribe by telephone. The service worker may request
that all information given be treated confidentially.
(b) If the child is a
member of one tribe and eligible for membership in others, the tribe of
actual membership is the child's tribe. If the child is not now a member
of a tribe, the service worker must ascertain whether the child is eligible
for membership and is the biological child of a member of an Indian tribe.
To do this, the service worker shall:
(A) Ask the child (if
old enough to respond);
(B) Ask the parent(s)
or relatives, including in-laws, as appropriate;
(C) Ask the tribe.
(5) BIA Assistance. If
the tribe does not respond to a letter sent "Return Receipt Requested"
and cannot be reached by phone, the service worker shall write or call
the Bureau of Indian Affairs Area (local) Office and the ICWA Manager
for assistance.
(6) Out-of-State Tribes.
When an Indian child is a member of or eligible for membership in a tribe
located in another state, the Act still applies and all applicable provisions,
including provisions governing notification of the tribe, must be followed.
(7) Multi-Tribal Membership:
(a) The child may be eligible
for membership in more than one tribe. In that case the Indian child's
tribe is the tribe with which the child has the most significant
contacts. In considering with which tribe the child has the most significant
contacts, the service worker shall investigate:
(A) The length of residence
on or near the reservation of each tribe and the frequency of contacts
with each tribe;
(B) The child's participation
in activities of each tribe;
(C) The child's fluency
in the language of each tribe;
(D) Whether there has
been a previous adjudication with respect to the child by a court of one
of the tribes;
(E) Residence on or near
one of the tribes' reservation of the child's relatives;
(F) Tribal membership
of custodial parent or Indian custodian;
(G) Interest asserted
by each tribe in response to the notice specified in OAR 413-070-0210.
(b) Documentation of such
investigation shall be submitted to the court so that it can consider
the comparative interests of each tribe in the child's welfare in making
its decision on the matter.
(8) Enrollment of Indian
Clients. If the child is not a member of his or her tribe, but is applying
to become a member, the service worker shall proceed as though the child
is a member and follow the requirements of the Act. Agency staff shall
assist the family in filling out and returning required paperwork to the
appropriate tribe and, as necessary, counsel parents hesitant to enroll
a
child by emphasizing the positive benefits of tribal enrollment/membership.
(9) ICWA Not Applicable.
Once determined, tribal status should be clearly documented in the case
record, along with the date and source of documentation. An Indian child
who is officially determined by the tribe not to be a member nor eligible
for membership is not subject to the requirements of the Indian Child
Welfare Act. In such cases, agency staff shall:
(a) Document in the case
record steps taken to determine the child's Indian/tribal ancestry and
the tribe's written statement declaring the child ineligible for membership;
(b) Incorporate in any
court hearing the tribe's written statement declaring the child ineligible
for membership.
(10) Cultural Heritage
Protection. In instances where the ICWA does not apply, but the child
is biologically an Indian or considered an Indian by the Indian community,
the agency shall respect the child's right to participate in the culture
of origin in case planning, particularly if such child is identifiably
Indian by physical features and/or social relationship.
Stat. Auth.: ORS 418.005
Stats. Implemented: 25
USC §1901
Hist.: SCF 6-1995, f.
12-22-95, cert. ef. 12-29-95; SOSCF 41-2001, f. 12-31-01, cert. ef. 1-1-02
|