(A) "Active
efforts" means
prompt and diligent efforts
to:
affirmative, active, thorough, and timely
efforts intended primarily to maintain or reunite an Indian child with his or
her family. Where an agency is involved in the child custody proceeding, active
efforts involve assisting the parent or parents or Indian custodian through the
steps of a case plan and with accessing or developing the resources necessary
to satisfy the case plan. To the maximum extent possible, active efforts should
be provided in a manner consistent with the prevailing social and cultural
conditions and way of life of the Indian child's tribe and should be conducted
in partnership with the Indian child and the Indian child's parents, extended
family members, Indian custodians, and tribe. Active efforts shall be tailored
to the facts and circumstances of the case and may include, for example:
(1) Determine the child's tribe(s)
for which he or she may qualify for membership.
(2) Contact the child's tribe(s)
when known.
(3) Provide remedial services and
rehabilitative programs designed to prevent the breakup of the
family.
(4) Coordinate with the child's
tribe or any Indian organization to assist the Indian parent or Indian
custodian with services needed to avoid the need for placement, or in the event
placement becomes necessary, to serve as a placement for the
child.
(5) Make arrangements to ensure
visitation with the extended family, or if there is not family in the area,
with other tribal members to support the child's cultural
connections.
(6) Coordinate with the child's
tribe and family to identify significant cultural and important familial events
and arrange for the child's attendance.
(1)
Conducting a
comprehensive assessment of the circumstances of the Indian child's family,
with a focus on safe reunification as the most desirable goal;
(2)
Identifying
appropriate services and helping the parents to overcome barriers, including
actively assisting the parents in obtaining such services;
(3)
Identifying,
notifying, and inviting representatives of the Indian child's tribe to
participate in providing support and services to the Indian child's family and
in family team meetings, permanency planning, and resolution of placement
issues;
(4)
Conducting or causing to be conducted a diligent search
for the Indian child's extended family members, and contacting and consulting
with extended family members to provide family structure and support for the
Indian child and the Indian child's parents;
(5)
Offering and
employing all available and culturally appropriate family preservation
strategies and facilitating the use of remedial and rehabilitative services
provided by the child's tribe;
(6)
Taking steps to
keep siblings together whenever possible;
(7)
Supporting
regular visits with parents or Indian custodians in the most natural setting
possible as well as trial home visits of the Indian child during any period of
removal, consistent with the need to ensure the health, safety, and welfare of
the child;
(8)
Identifying community resources including housing,
financial, transportation, mental health, substance abuse, and peer support
services and actively assisting the Indian child's parents or, when
appropriate, the child's family, in utilizing and accessing those
resources;
(9)
Monitoring progress and participation in
services;
(10)
Considering alternative ways to address the needs of
the Indian child's parents and, where appropriate, the family, if the optimum
services do not exist or are not available; and
(11)
Providing
post-reunification services and monitoring.
(B)
"Agency" means a
nonprofit, for-profit, or governmental organization and its employees, agents,
or officials that performs, or provides services to biological parents, foster
parents, or adoptive parents to assist in the administrative and social work
necessary for foster, preadoptive, or adoptive placements.
(B) "Child custody proceedings"
include foster care placements, termination of parental rights, preadoptive
placements, and adoptive placements. A placement that meets the definition of
foster care placement and results from an act that would not be deemed a crime
if committed by an adult such as a status offense, is a child custody
proceeding under the Indian Child Welfare Act (ICWA) as reauthorized by the
"Child and Family Services Improvement Act" of 2006. A child custody placement
pursuant to a divorce where someone other than one of the parents will obtain
custody of the child is also a child custody proceeding under
ICWA.
(C)
"Child custody proceeding" means and includes the
following:
(1)
Any action, other than an emergency proceeding, that may culminate in one of
the following outcomes:
(a)
Foster care placement, which is any action removing an
Indian child from his or her parent or Indian custodian for temporary placement
in a foster home or institution or the home of a guardian or conservator where
the parent or Indian custodian cannot have the child returned upon demand, but
where parental rights have not been terminated;
(b)
Termination of
parental rights, which is any action resulting in the termination of the
parent-child relationship;
(c)
Preadoptive
placement, which is 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
(d)
Adoptive
placement, which is the permanent placement of an Indian child for adoption,
including any action resulting in a final decree of adoption.
(2)
A
status offense proceeding that results in a child being placed into foster care
or another out-of-home placement.
(D)
"Continued
custody" means physical custody, legal custody or both, under any applicable
tribal law, tribal custom or state law, that a parent or Indian custodian
already has or had at any point in the past.
(E)
"Custody" means
physical custody, legal custody or both, under any applicable tribal law,
tribal custom or state law. A party may demonstrate the existence of custody by
looking to tribal law or tribal custom or state law.
(F)
"Domicile"
means:
(1)
For
a parent or Indian custodian, the place at which a person has been physically
present and that the person regards as home; a person's true, fixed, principal,
and permanent home, to which that person intends to return and remain
indefinitely even though the person may be currently residing
elsewhere.
(2)
For an Indian child, the domicile of the Indian child's
parents or Indian custodian or guardian. In the case of an Indian child whose
parents are not married to each other, the domicile of the Indian child's
custodial parent.
(G)
"Emergency
proceeding" means and includes any court action that involves an emergency
removal or emergency placement of an Indian child.
(C)
(H)
"Extended family member" is defined by the law or custom of the Indian child's
tribe
, or
, in
the absence of such law or custom,
is a person
who has reached
the age
of eighteen and who is the Indian child's
grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law,
niece or nephew, first or second cousin, or step-parent.
(D) "Foster care placement" is any
action where an Indian child is removed from his or her parents or Indian
custodian for temporary placement in a home or institution, including
guardianship and conservatorship, and where the parent or custodian cannot have
the child returned upon demand but where parental rights have not been
terminated.
(E)
(I) "Indian"
is
means any
person who is a member of an Indian tribe
, or
who is an Alaskan native who is a member of a
regional corporation as defined by the Alaska Native Claims Settlement Act
, 43 U.S.C. Sec.
1606 (2008).
(F)
(J) "Indian child"
is
means any
unmarried person under age eighteen and
is
either:
(1)
Is
A
a member
or citizen of an Indian tribe.
; or
(2)
Is
Eligible
eligible for tribal membership or citizenship in an Indian tribe and is the
biological child of a member or citizen of an
Indian tribe, or an Alaskan native who is a member of a regional corporation as
defined by the Alaska Native Claim
Claims Settlement Act.
(G)
(K)
"Indian child's tribe"
is the Indian tribe in which
an Indian child is a member or eligible for membership, or in the case of an
Indian child who is a member of or eligible for membership in more than one
tribe, the Indian tribe with which the Indian child has the more significant
contacts.
means:
(1)
The Indian tribe
in which an Indian child is a member or eligible for membership;
or
(2)
In the case of an Indian child who is a member of or
eligible for membership in more than one tribe, the Indian tribe described in
25
C.F.R 23.109 (2016).
(H)
(L) "Indian custodian" is
means any Indian
person who has legal custody of an Indian
child under either
applicable tribal law or custom or under
state
applicable
state law, or to whom temporary physical
care, custody, or control has been transferred by the parent of the
child.
(M)
"Indian foster home" means a foster home where one or more of the licensed or
approved foster parents is an "Indian" as defined in
25
U.S.C. 1903(3)
(1978).
(I)
(N) "Indian organization" is
means any group,
association, partnership, corporation, or other
legal entity owned or controlled by Indians or a
tribe, or a majority of whose members are Indian
Indians.
(J)
(O) "Indian tribe"
is
means any
tribe
Indian
tribe, band, nation, or other organized group or community of Indians
federally recognized
by the secretary of the interior 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 3(c)
by
of the Alaska Native Claims Settlement Act,
43
U.S.C. Sec. 1602
(c) (2000).
(P)
"Involuntary
proceeding" means a child custody proceeding in which the parent does not
consent of his or her free will to the foster care, preadoptive, or adoptive
placement or termination of parental rights or in which the parent consents to
the foster care, preadoptive, or adoptive placement under threat of removal of
the child by a state court or agency.
(K)
(Q) "Parent
or parents" means
the
any biological
parent or parents of an Indian child
, or
an
any Indian
person who has
lawfully adopted an Indian child
,
either under state law
or
including adoptions under tribal law
or custom.
This includes the non-Indian biological
parent but it
It does not include
a putative
an unwed
biological father
whose
where paternity has not been
acknowledged or established.
(L) "Qualified expert witness" means
an expert on the child's tribe. In addition, the bureau of Indian affairs has
promulgated "Guidelines for State Courts" which interpret the ICWA. The
following characteristics are set forth at 44 Federal Register 67,593 (1979) as
those most likely to qualify a witness as an expert under ICWA:
(1) A member of the Indian child's
tribe who is recognized by the tribal community as knowledgeable in tribal
customs as they pertain to family organization and child rearing
practices.
(2) A lay expert witness having
substantial experience in the delivery of child and family services to Indians,
and extensive knowledge of prevailing social and cultural standards and child
rearing practices within the Indian child's tribe.
(3) A professional person having
substantial education and experience in the area of his or her
specialty.
(R)
"Qualified expert witness" means a person who is
qualified to testify regarding whether the child's continued custody by the
parent or Indian custodian is likely to result in serious emotional or physical
damage to the child and should be qualified to testify as to the prevailing
social and cultural standards of the Indian child's tribe. The agency may
request the assistance of the Indian child's tribe or the bureau of Indian
affairs (BIA) office serving the Indian child's tribe in locating persons
qualified to serve as expert witnesses. The social worker regularly assigned to
the Indian child shall not serve as a qualified expert witness in child custody
proceedings concerning the child.
(M)
(S) "Reservation"
means Indian country as defined in
section 1151 of
Title 18, U.S.C.
18 U.S.C.
1151
(1949) and any lands
, not covered under that section, title to which is held
by
which are either held by the
United States in trust for the benefit of any Indian tribe or individual
, or held by any Indian tribe or individual
or held by any Indian tribe or individual subject
to a restriction by the U.S. against alienation.
(T)
"Secretary" means
the secretary of the interior or the secretary's authorized representative
acting under delegated authority.
(N)
(U) "State court of
competent jurisdiction" means an Ohio juvenile court.
(O) "Secretary" means U.S. secretary
of the interior.
(V)
"Status offenses"
mean offenses that would not be considered criminal if committed by an adult;
they are acts prohibited only because of a person's status as a
minor.
(P)
(W) "Tribal court" is
means a court
having
with
jurisdiction over child custody proceedings. It may
be an Indian court of offenses
and which is
either a court of Indian offenses, a court established and operated under
tribal law
the
code or custom of an Indian tribe, or any
other administrative body of a tribe which
is vested with authority over child custody proceedings.
(X)
"Tribal
government" means the federally recognized governing body of an Indian
tribe.
(Q) "Tribal intervention" means a
tribe may act on its right to participate in a child custody proceeding. This
intervention can be wide in its interpretation; the tribe may request to
transfer the case to tribal court (a transfer of jurisdiction) or the tribe may
choose to only monitor the case through court records. Transfer of jurisdiction
can be requested by either the parent or the tribe. A tribe may intervene at
any point in an Indian child custody proceeding.
(Y)
"Upon demand"
means that the parent or Indian custodian can regain custody simply upon verbal
request, without any formalities or contingencies.
(Z)
"Voluntary
proceeding" means a child custody proceeding that is not an involuntary
proceeding, such as a proceeding for foster care, preadoptive, or adoptive
placement that either parent, both parents, or the Indian custodian has, of his
or her or their free will, without a threat of removal by a state agency,
consented to for the Indian child, or a proceeding for voluntary termination of
parental rights.
