When the state removes a child from his or her home, it must petition the state court to approve the removal and to make the child a ward of the state. In Alaska, these child welfare cases are called Child in Need of Aid cases, or CINA (pronounced “China”) cases. Other states have different names for these types of cases. For example, in Washington, they are “dependency” cases.
Child welfare cases differ from ordinary custody cases because the state has legal authority over the children, and the dispute is between the state and the parents. In ordinary custody cases, the court is deciding custody disputes between parents or other family members and a child welfare agency is not involved.
The Tribe’s right to participate in a child welfare case is guaranteed by federal law: the Indian Child Welfare Act. The child’s Tribe has a right to participate as a party in any child welfare case in any state, including CINA cases in Alaska. As a party, the Tribe has the ability, just like the states, parents,and guardian ad litem, to speak up in court, submit reports and other documents to the court, ask the court to set or change hearings, and to ask questions of witnesses.
The process of becoming a party to a CINA case is called intervention. A Tribe can intervene in a CINA case by filing notice with the CINA court.
The following “Life of an ICWA Case” charts how a CINA case proceeds, from beginning to end. The whole process may take years to complete, depending on the family.
When there is an emergency and the state removes a child from their home before there can be a court hearing, and before lawyers are appointed for the parents, family members may get answers to basic questions in ALSC’s KNOW YOUR RIGHTS pamphlet:
The Tribe may also request basic information about a tribal child in state custody before formally intervening in a court case. The following letter can be sent to OCS to get that basic information. More complete information will be available to the Tribe after it intervenes.
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The Tribe can designate a non-attorney and/or an attorney representative to represent the Tribe’s interests in the state court case. Often, this is the ICWA worker.
The Tribe can intervene at any point during the CINA case, but the earlier the Tribe intervenes, the more the Tribe will be able to effectively advocate for the child.
Tribes wanting to intervene should file an intervention packet that includes a:
– Notice of Intervention
– Designation of Tribal Representative
– Affidavit of Tribal Membership, and a
– Certificate of mailing
It is helpful to include a letter to the Clerk of Court as well.
Change in Representation
If it becomes necessary for the Tribe to change the person representing them in the state court proceeding (for example they hire a new ICWA worker), the Tribe can file a Substitution of Designated Tribal Representative.
When requesting the transfer of a child in need of aid case from state court to tribal court, the Tribe should submit a Petition to Transfer Jurisdiction. The Tribe can request the transfer under 25 U.S.C. 1911(b) of the Indian Child Welfare Act.
The case will not be transferred to tribal court if the tribal court does not agree to accept it. In addition, the case will not be transferred if the mother or father objects, or if another party convinces the court that there is “good cause” to keep the case in state court.
If a Tribe would like to have a case transferred, it is better to request at the beginning of the case, instead of after the case has been in state court for a long time.
Once a case is transferred, the state and the Office of Children’s Services ends its involvement, as well as its financial support.
One of the primary purposes of the Indian Child Welfare Act (ICWA) is to protect the right of Native American and Alaska Native children to live in homes that reflect their culture and values. In furtherance of this goal, ICWA contains certain “placement preferences” to help ensure that Native children are able to live the Native families whenever possible. ICWA also requires state agencies to keep a record of their efforts to place Native children in Native homes. Tribes have the right to request this record at any time.
Under ICWA, when a child is removed from his home, the highest placement preference is for that child to be placed in a relative’s home. If this is not done, it may be helpful for the Tribe to request the Office of Children’s Services (OCS) compliance with ICWA’s relative home placement preference. A template letter to OCS can be found here.
Despite the law, state agencies such as OCS still place children outside of ICWA’s placement preferences. When this happens, Tribes can ask the judicial system to order the state agency to comply with the law: either by more actively trying to recruit a relative foster home, or by moving the child to a higher-preference home that has requested placement.
A Motion to Compel is one tool that the tribes can use to force the state to provide a detailed explanation of why children are not placed in ICWA compliant homes in an effort to increase the number of Native children in ICWA-compliant placements.
The Tribe can object to a child’s placement. When objecting, though, it is best to have a suggestion for alternative placement ready for the court.
The Tribe also has the power to alter placement preferences by passing a Resolution.
An intervening Tribe can, but does not have to, file a Disposition Report before the Disposition Hearing. The Tribe’s report can provide information about the child or family that is missing from the OCS or GAL report, correct errors in the other disposition reports, and/or provide different or additional recommendations. The report may cover:
– Whether removal is still necessary
– Whether OCS is making active efforts to reunify
– Whether OCS has followed placement preference and is actively seeking a relative placement if not
– How long the child remain in state custody
A Qualified Expert Witness is a person who should be qualified to testify about the social and cultural standards of the child’s tribe and can assess whether the removal of a child from his or her family in a particular case is consistent with those standards.
The state is required in many ICWA hearings to call a qualified expert witness to validate the state social worker’s decision to remove or terminate, looking at the risks to the child if returned home.
For more information on Qualified Expert Witnesses, see ALSC’s Qualified Expert Witnesses: FAQ.