Child Welfare Agreement

1
Child Welfare Agreement

• Working with the State for the best outcomes for
  Indian Children and Families

2
Child Welfare Agreement
History and Background

• Draws from the framework of a similar agreement
  between Minnesota and the Tribes based there.
• Negotiated with the State as part of the mediated
  settlement of the Tribes boundary litigation.
• Agreement is binding on the State of Michigans
  DHS, including all of its county level
  sub-divisions and the Tribe.

3
State Law and the I.C.W.A
How does this agreement help clarify child
protection standards?

• The Agreement specifically acknowledges that
  different standards apply to Indian children
  involved in child protection proceedings and that
  the Indian Child Welfare Act trumps state law
  regarding child protection for Indian children.
• The Agreement specifically acknowledges that
  Indian Children are to benefit from other state
  and federal child protection laws if the
  standards are more protective than the ICWA, but
  any law providing for lower standards is
  overruled by ICWA.

4
Purpose of the Agreement

• Indian Children should be kept with their
  families
• Indian Children who must be removed from their
  homes should be placed with their own Extended
  Families and tribe(s) and
• The Department will follow the tribal order of
  placement preferences consistent with 25 U.S.C.
  1915.
• Requires any ambiguity to be resolved in favor of
  a result most consistent with the above three
  policies.

5
Important Definitions

• The agreement specifically sets out that an unwed
  father does not need to establish paternity
  pursuant to Michigan law. Any act of the unwed
  father to hold himself out as the Indian Childs
  father, or any paternity determined by tribal
  custom is sufficient.
• The agreement defines Active Efforts as a
  rigorous and concerted level of case work that
  uses prevailing social and cultural values,
  conditions, and way of life of the Indian Childs
  Tribe to preseve the family, or return the child
  home at the earliest possible time.

6
Active Efforts Defined

• Active Efforts require a higher, more intensive
  and prolonged standard of effort than the
  reasonable efforts standard Michigan requires.
  Reasonable Efforts are merely those rationally
  calculated to prevent removal, and are not
  required in every case.
• Active Efforts are required in every single
  Indian Child Custody Proceeding unlike Michigan
  law, there are no acceptable excuses for not
  providing Active Efforts.
• Active Efforts are required by any case
  involving DHS, and where a non-voluntary case not
  involving DHS occurs, (guardianship, contested
  stepparent adoption etc.,) the party seeking to
  effect the out of home placement must make and
  pay for the Active Efforts.

7
Examples of Active Efforts

• Notification of SCIT as early as possible.
• Have SCIT expert assist in evaluating the family
  and determining a case plan.
• Provide family with both SCIT and non-SCIT
  resources, including financial assistance, food,
  housing, health care and transportation when
  needed.
• Visitation is to take place outside an
  institutional setting whenever possible, and DHS
  will work with SCIT to ensure supervised
  visitation in a natural setting. Arrange regular
  visitation with extended family, siblings
  regardless of age and parents.
• Provide transportation assistance such as bus
  passes

8
Active Efforts Examples Continued...

• Consulting with SCIT regarding available family
  support services, prevention and reunification
  services, and possible referral to other tribes
  for available services
• Consulting with extended family for help,
  guidance and resources. If family is difficult
  to work with, consult with ACFS on working with
  Indian families.

9
Active Efforts Examples Continued

• Using all available appropriate resources from
  state, SCIT or other Indian agency to aid the
  family.
• Providing services to help extended family
  members qualify as a placement for the child.
• If the Michigan Court rules conflict with this
  agreement in the future, this agreement prevails.

10
Important Definitions Continued...

• Agreement Compliance Contact person designated
  by SCIT or DHS to represent each entity as a
  liasion to implement this agreement.
• Best Interests Best interests of Indian Child
  are interwoven with the childs tribe. They
  support childs sense of belonging to family,
  extended family, clan and tribe. State best
  interests standards do not control either this
  agreement or child custody proceedings.

11
Definitions

• Child Custody Proceeding Foster Care Placement
  where the child is removed from his home,
  including a guardianship or conservatorship where
  the parent/custodian cannot have the child
  returned upon demand.
• Termination of parental rights action resulting
  in termination of the parent-child relationship.

12
Important Definitions Continued...

• Pre-adoptive Placement placement of an Indian
  Child into foster care or an institution after
  termination of parental rights before adoption or
  in lieu of adoption.
• Adoptive Placement permanent placement for
  adoption, including an action resulting in
  adoption decree.
• Descendant Child child with Indian ancestry who
  is not eligble for enrollment, or whose
  eligibility for enrollment cannot be determined.

13
Definitions Continued

• Emergency condition caused by action or inaction
  of a parent or custodian that puts the child at
  risk of imminent physical damage or harm.
  Emergency ends after the immediate risk has
  passed. Removal must terminate when the
  emergency ends. The parties agree to follow BIA
  Guidelines on emergency removals.
• Extended family is defined as law or custom of
  the tribe, or adult grandparent, aunt, uncle,
  brother, sister (in-laws) niece, nephew, first or
  second cousins.

14
Good Cause Not to Follow Placement Preferences
Examples of Acceptable and Unacceptable Reasons

• A competent biological parent or child age 13 or
  older requests the placements not be followed,
  unless the request is an attempt to defeat the
  application of the Act.
• Expert testimony establishes the childs
  extraordinary physical or emotional needs require
  highly specialized treatments.
• A diligent search in conjunction with Active
  Efforts, discloses no placement appropriate
  family. In such a case, SCIT will assist DHS to
  locate a family.
• Bonding or attachment to a foster family alone is
  NOT good cause to keep an Indian Child in a lower
  preference or non- preference placement.

15
Existing Indian Family Doctrine is Expressly
Rejected

• The Indian Child is afforded ICWA protections
  regardless of which parent they live with, or
  what level of contact, including none, they have
  had with their tribe to date.
• A non-Indian parent of an Indian Child receives
  the same protections in an ICWA proceeding that
  an Indian parent or Indian Custodian receives.
• A Tribes determination that a child is eligible
  for membership or a member is conclusive, and not
  subject to state appeal.

16
Adoption Placement Preferences

• If an Indian child cannot return home, where
  should the child be placed for adoption?
• 1. With a member of the childs extended family
• 2. With other members of the Indian childs
  tribe
• 3. Other Indian families
• Good Cause must be shown to deviate from this,
  and bonding alone is not good cause. To prevent
  additional disruption and heartache, foster care
  placements should conform to ICWA as soon as
  possible, to prepare for the possibility the
  child will not be able to return home.

17
Foster Care Placement Preferences
Appropriate Placements and Criteria

• Child should be placed in a setting approximating
  a family, where any special needs, if any, can be
  met, within reasonable proximity to the childs
  home.
• 1. Placement with a member of the extended
  family.
• 2. A foster home licensed, approved or specified
  by the Indian Childs tribe.
• 3. An Indian Foster home licensed by a state or
  other non- Indian agency.
• 4. An institution approved by an Indian tribe or
  operated by an Indian organization that has a
  program suitable to meet the childs needs.

18
What makes a home an Indian home?
The presence of siblings or half-siblings is NOT
enough

• Placement with extended family does NOT mean
  placing an Indian child with his or her siblings
  or half siblings. Kinship relationships are
  calculated by reference to the parents or Indian
  custodians. The extended family placement refers
  only to the responsible adults in the home. Those
  adults must be extended family to the child or
  the childs parents, or Indian custodian.

19
Examples of Placements that Fail to Qualify
Placement with Siblings is not enough to
disregard ICWA

• An Indian child placed with his half-siblings in
  a home with his half-siblings paternal
  grandmother, where they dont share a common
  father is NOT an extended family placement.
• Two Indian children placed together in a
  non-Indian state licensed home does NOT satisfy
  the ICWA placement criteria, whether or not the
  children are related to each other.
• The Parents in the home must be extended family
  of the Indian child, not fictive kin via a
  half-sibling of the child.

20
DHS and the Lack of Indian Foster Homes

• For SCIT children, their half-siblings and
  descendants, ACFS can suggest DHS use a borrowed
  bed agreement to use one of our Tribal licensed
  foster homes. Borrowed bed agreements are
  specifically endorsed in the settlement
  agreement.
• ACFS can also suggest DHS contact other Tribes in
  Michigan and inquire about borrowing a bed from
  one of them.
• Expect to need creative solutions to keep Indian
  children and their non-Indian half-siblings
  together in an ICWA qualified placement.

21
Cooperation, Placement and Protocol

• The parties will work together to provide
  services to prevent child removal.
• DHS must work with its county subdivisions to
  ensure they take advantage of all the resources
  SCIT has to offer SCIT and SCIT descendant
  children.
• County DHS must immediately notify SCIT about an
  investigation involving a SCIT child, or child
  with indications of SCIT heritage. SCIT will
  have full access to all files permitted by law.
• Collaborative approach will allow DHS and SCIT to
  provide more services to SCIT descendant children
  and their families even if ICWA does not apply.

22
SCIT Descendants and DHS
Working together even when ICWA does not apply

• For SCIT descendant children, DHS must consult
  with SCIT and carefully consider SCIT comments
  for issues including appropriate potential
  placements, sibling visits, and extended family
  visits.
• Where allowed by law, coordinate with SCIT
  authorities to investigate and assess allegations
  of maltreatment and neglect of SCIT descendants
  domiciled on the Reservation.
• DHS must consider joint investigations for SCIT
  descendant children domiciled outside the
  reservation.

23
DHS Central Registry and ACFS History Mutual
Information Sharing
Procedure for sharing information for
investigations

• DHS will continue to share information contained
  in its Central Registry of Child Abuse and
  Neglect upon request of ACFS.
• SCIT establishes the following two part system
  for information sharing with the State
• 1. If DHS personnel have reason to believe that
  a person they contact as part of an active
  investigation may have been involved with an ACFS
  protection investigation they may verbally ask
  ACFS to confirm that information. ACFS will
  review their files and respond yes or no.
• 2. IF ACFS responds yes, DHS may submit a
  written request for the case/contact history
  involving the person. ACFS will use its best
  efforts to locate and promptly produce a copy of
  the case/contact history for DHS.

24
Notices of Child Custody Proceedings and
Emergency Placements

• DHS must send SCIT a notice of proceeding if one
  is generated, and if not, a writting with enough
  information to determine the status of the case
  and the status of the SCIT child, so SCIT may
  participate in planning and hearings, or assert
  jurisdiction puruant to ICWA.
• DHS must send notices to the Department of
  Interior when it lacks sufficient information to
  determine tribal status.
• If DHS effects an emergency removal of a SCIT
  child, it shall notify SCIT via telephone or
  facsimile of the date, time and place of the
  emergency protective hearing.
• All other notice provisions in the Court rules
  also apply.

25
Obligation to respond to eligibility notices

• SCIT will respond to eligibility determination
  requests as soon as possible. When a childs
  eligibility status is not immediately clear, but
  the child is at least a descendant of the SCIT,
  SCIT shall so notify DHS so they can prepare ICWA
  case planning from the earliest stage of the
  proceedings, as well as collaborate with ACFS on
  services and possible placement options.

26
Transfer to Tribal Court is Required in Some
Cases
Examples of when cases must be transferred to
tribal court

• Any proceeding involving an Indian child who is
  already a Tribal Court ward.
• All proceedings involving a SCIT child residing
  or domiciled on the reservation, including a
  newborn who may never have been to the
  reservation.

27
Continuity of State Services

• DHS recognizes the need to make all services
  available to any family available to any Indian
  family, regardless of what programs the Tribe may
  have to offer.
• DHS cannot eliminate the provision of services
  after SCIT has transferred a child from State
  custody.
• The State must give full faith and credit to all
  placement and other orders of the Tribal Court,
  for example termination of parental rights or
  foster care placements.

28
Transfer to Tribal Court

• Any parent, Indian Custodian, or SCIT can
  petition to have any child custody proceeding
  involving a SCIT child not residing or domiciled
  on the reservation transferred to Tribal Court.
• This transfer must be granted absent good cause.
  Good cause can never be the perceived inadequacy
  of the ACFS or Tribal Court, or reference to
  social conditions of the reservation.
• The party who opposes tranfer bears the burden of
  proof.
• If DHS opposes transfer, they must provide SCIT a
  copy of materials filed with the Court in support
  of any opposition to transfer.

29
DHS Manual, Compliance Contact and Sub-
Contractors

• This Agreement prevails if the DHS manual and
  this agreement are in conflict.
• Each party agrees to update the agreement
  compliance contact information as needed.
• This Agreement covers the work of DHS
  subcontractors providing services and placements
  for court wards.
• DHS agrees to provide training on ICWA and this
  agreement to its staff and private agency sub-
  contractors.

30
Minimum Training for DHS

• Tribal values, belief, religion, customs, ways of
  being, and family recognition system of the
  childs tribe.
• Behaviors and responses stemming from traditional
  ways of life through assimilated ways of life.
• Socioeconomic context of the care and condition
  of the family home and children.
• Importance of sharing with extended family.
• Reality of negative historical experience of
  Indian people with non-Indian governmental
  systems
• Different cultural requirements for social
  interaction, such as lack of eye contact or
  reticence in speaking.

31
Concepts Continued...
Who should be trained, and how to pay for
training?

• Recognizing traditional disciplinary methods and
  clan support.
• Parenting skills affected by historic isolation
  and abuse.
• Judges, GALs, lawyers, probation officers, and
  law enforcement who work with Indian children
  should be offered trainings.
• DHS will seek reimbursements for training under
  Title I-V E, and other federal programs.

32
Recruiting Indian Foster Care Families and the
Master List

• DHS and SCIT will develop a recruitment plan
  together, using media, social media, door to
  door, and mailing to Indian organizations. DHS
  and SCIT will work to train new recruits to
  license them.
• The Master List is a list of SCIT foster homes
  available for accepting placement of SCIT
  children, descendants, siblings or minor parents
  of the above.
• Shall include any preconditions to acceptance, or
  state no preconditions.
• SCIT retains right to deny state placement in
  SCIT licensed homes.

33
Master List Continued...

• DHS agrees to make a copy of the Master List
  available to all county level DHS offices as a
  guide for acceptable placements for SCIT
  connected children.
• A borrowed bed agreement must be signed before
  any state ward can be placed in a SCIT home.
• DHS will generate a protocol to identify and list
  which of its foster homes have a tribal
  affiliation, and what that affiliation is.

34
Tracking SCIT Children

• DHS must create a report on all SCIT or SCIT
  descendant children in state custody, or placed
  out of Michigan or into Michigan through the
  interstate compact, and remedy any placements
  which do not conform to the placement
  preferences.

35
Other Federal Child Protection Laws and their
Implications

• Interstate Compact DHS must follow ICWA
  placement preferences if the paperwork shows an
  Indian child. If the placement doesnt comport
  with ICWA, DHS should deny the transfer absent a
  letter from the childs Tribe approving the
  placment for good cause.
• If the child is a SCIT child or descendant DHS
  must consider SCITs opinion before making a
  final decision.

36
Other laws continued...

• The Adoption and Safe Families Act does not
  preempt ICWA.
• The Interethnic Adoption Act does not affect the
  placement preferences in ICWA.
• The Parties reserve the right to enter into a
  Title IV-E agreement in the future.

37
Points to Remember

• Nothing replaces good working relationships with
  our counterparts.
• Ongoing education will be paramount, given the
  DHS hiring of over 500 new social workers and
  chronic turnover.
• Tribe needs to create a Master List of foster
  care homes and get it to DHS. DHS needs to do a
  summary report on SCIT children in its custody.
• Borrowed beds are approved, no state litigation
  withstanding.
• The Master List may grow to include other Tribes
  licensed foster homes with their permission.

38
Saginaw Chippewa Indian TribeTribal Contacts

• Jodie Garner Office 989.775.4901
  jodiegarnerc_at_sagchip.org
• Tracey Defeyter
• tdefeyeter_at_sagchip.org
• Fax [phone]

39
DHSNative American Affairs (NAA)

• Stacey M. Tadgerson, Director
• TadgersonS_at_michigan.gov
• Phone [phone]