Adoption and Foster Care Analysis and Reporting System, 20283-20301 [2016-07920]
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Federal Register / Vol. 81, No. 67 / Thursday, April 7, 2016 / Proposed Rules
List of Subjects in 40 CFR Part 300
Environmental protection, Air
pollution control, Chemicals, Hazardous
substances, Hazardous waste,
Intergovernmental relations, Natural
resources, Oil pollution, Penalties,
Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Authority: 33 U.S.C. 1321(d); 42 U.S.C.
9601–9657; E.O. 13626, 77 FR 56749, 3CFR,
2013 Comp., p. 306; E.O. 12777, 56 FR 54757,
3 CFR, 1991 Comp., p.351; E.O. 12580, 52 FR
2923, 3 CFR, 1987 Comp., p.193.
Dated: March 28, 2016.
Mathy Stanislaus,
Assistant Administrator, Office of Land and
Emergency Management.
[FR Doc. 2016–07671 Filed 4–6–16; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Part 1355
RIN 0970–AC47
Adoption and Foster Care Analysis
and Reporting System
Administration on Children,
Youth and Families (ACYF),
Administration for Children and
Families (ACF), Department of Health
and Human Services (HHS).
ACTION: Supplemental notice of
proposed rulemaking.
AGENCY:
On February 9, 2015, the
Administration for Children and
Families (ACF) published a Notice of
Proposed Rulemaking (NPRM) to amend
the Adoption and Foster Care Analysis
and Reporting System (AFCARS)
regulations to modify the requirements
for title IV–E agencies to collect and
report data to ACF on children in outof-home care and who were adopted or
in a legal guardianship with a title IV–
E subsidized adoption or guardianship
agreement. In this supplemental notice
of proposed rulemaking (SNPRM), ACF
proposes to require that state title IV–E
agencies collect and report additional
data elements related to the Indian
Child Welfare Act of 1978 (ICWA) in the
AFCARS. ACF will consider the public
comments on this SNPRM as well as
comments already received on the
February 9, 2015 NPRM and issue one
final AFCARS rule.
DATES: Submit written or electronic
comments on this Supplemental Notice
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SUMMARY:
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of Proposed Rulemaking on or before
May 9, 2016.
ADDRESSES: We encourage the public to
submit comments electronically to
ensure they are received in a timely
manner. Please be sure to include
identifying information on any
correspondence. To download an
electronic version of the proposed rule,
please go to https://www.regulations.
gov/. You may submit comments,
identified by docket number, by any of
the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Written comments may be
submitted to Kathleen McHugh, United
States Department of Health and Human
Services, Administration for Children
and Families, Director, Policy Division,
330 C Street SW., Washington, DC
20024.
• Please be aware that mail sent in
response to this SNPRM may take an
additional 3 to 4 days to process due to
security screening of mail.
• Hand Delivery/Courier: If you
choose to use an express, overnight, or
other special delivery method, please
ensure that the carrier will deliver to the
above address Monday through Friday
during the hours of 9 a.m. to 5 p.m.,
excluding holidays.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
rulemaking. All comments received will
be posted without change to
www.regulations.gov, including any
personal information provided. For
detailed instructions on submitting
comments, see the ‘‘Public
Participation’’ heading of the
SUPPLEMENTARY INFORMATION section of
this document.
Comments that concern information
collection requirements must be sent to
the Office of Management and Budget
(OMB) at the address listed in the
Paperwork Reduction Act (PRA) section
of this preamble. A copy of these
comments also may be sent to the
Department representative listed above.
FOR FURTHER INFORMATION CONTACT:
Kathleen McHugh, United States
Department of Health and Human
Services, Administration for Children
and Families, Director, Policy Division.
To contact Kathleen McHugh, please
use the following email address:
cbcomments@acf.hhs.gov. Deaf and
hearing impaired individuals may call
the Federal Dual Party Relay Service at
1–800–877–8339 between 8 a.m. and 7
p.m. Eastern Time.
SUPPLEMENTARY INFORMATION:
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Contents
I. Background
II. Statutory Authority
III. Public Participation
IV. Consultation and Regulation
Development
V. Section-by-Section Discussion of the
SNPRM
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement
I. Background
Adoption and Foster Care Automated
Reporting System (AFCARS)
Section 479 of the Social Security Act
(the Act) requires that ACF regulate a
national data collection system that
provides comprehensive demographic
and case-specific information on all
children who are in foster care or
adopted with title IV–E agency
involvement (42 U.S.C. 679).
Historically, the broad underlying
legislative directive has always been the
establishment and administration of a
system for ‘‘the collection of data with
respect to adoption and foster care in
the United States.’’ Such data collection
system is the Adoption and Foster Care
Automated Reporting System
(AFCARS).
The AFCARS statute with regard to
data collection systems requires the
following: (1) The data collection
system developed and implemented
shall avoid unnecessary diversion of
resources from adoption and foster care
agencies; (2) the data collection system
shall assure that any data that is
collected is reliable and consistent over
time and among jurisdictions through
the use of uniform definitions and
methodologies; (3) the data collection
system shall provide: Comprehensive
national information with respect to the
demographic characteristics of adoptive
and foster children and their biological
and adoptive foster parents; the status of
the foster care population, the number
and characteristics of children place in
and removed from foster care; children
adopted or for whom adoptions have
been terminated; children placed in
foster care outside the state which has
placement and care responsibility; the
extent and nature of assistance provided
by federal, state, and local adoption and
foster care programs; the characteristics
of the children with respect to whom
such assistance is provided; and the
annual number of children in foster care
who are identified as sex trafficking
victims including those who were
victims before entering foster care; and
those who were victims while in foster
care; and (4) the data collection system
will utilize appropriate requirements
and incentives to ensure that the system
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functions reliably throughout the United
States.
ACF issued the AFCARS NPRM (80
FR 7132, hereafter referred to as the
February 2015 AFCARS NPRM) to
amend the AFCARS regulations at 45
CFR 1355.40 and the appendices to part
1355. In it, ACF proposed to modify the
requirements for title IV–E agencies to
collect and report data to ACF on
children in out-of-home care and who
were adopted or in a legal guardianship
with a title IV–E subsidized adoption or
guardianship agreement. At the time the
February 2015 AFCARS NPRM was
issued, ACF concluded that it did not
have enforcement authority regarding
ICWA and, therefore, was not able to
make the requested changes or additions
to the AFCARS data elements regarding
ICWA.
However, in the time since
publication of the February 2015
AFCARS NPRM, ACF legal counsel reexamined the issue and determined it is
within ACF’s existing authority to
collect state-level ICWA-related data on
American Indian and Alaska Native (AI/
AN) children in child welfare systems
pursuant to section 479 of the Social
Security Act. Such determination was
informed by comments received on the
February 2015 AFCARS NPRM as well
as an extensive re-evaluation of the
scope of ACF’s statutory and regulatory
authority.
Indian Child Welfare Act
In 1970, President Nixon declared
that termination, the then-current
federal policy to terminate Indian tribal
governments, sell tribal land, and move
AI/AN peoples from ancestral lands to
assimilate them into ‘American’ society,
was wrong and should be replaced by
Indian self-determination which
recognized the inherent retained right of
Indian nations to govern themselves.
From that time, the federal government
began implementing new policies of
Indian self-determination under which
tribal sovereignty and self-governance
were fostered, allowing tribes to operate
programs once solely administered by
the federal government. It also increased
federal support and benefits available to
tribes to strengthen capacity and selfsufficiency.
Against this backdrop, the Indian
Child Welfare Act (ICWA) was enacted
in 1978 to address concerns over the
consequences to Indian children, Indian
families, and Indian tribes of child
welfare practices that resulted in the
separation of large numbers of Indian
children from their families and tribes.
See 25 U.S.C. 1901 et seq. ICWA has
been characterized as embodying the
‘‘gold standard’’ for child welfare policy
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and practice in the United States and
establishes minimum federal
jurisdictional, procedural, and
substantive standards intended to
achieve the purposes of protecting the
rights of Indian children to live with
their families, to stabilize and foster
continued tribal existence, and to
facilitate permanency for children,
families, and tribes.
However, ACF has never collected
ICWA-related data. Using the data
elements proposed in the SNPRM, ACF
proposes to collect ICWA-related data
on AI/AN children in child welfare
systems for several uses in the public
interest including: To assess the current
state of foster care and adoption of
Indian children under the Act, to
develop future national policies
concerning ACF programs that affect
Indian children under the Act, and to
meet federal trust obligations under
established federal policies.
ICWA was enacted by Congress in
response to alarming numbers of AI/AN
children being removed from their
families by public and private child
welfare agencies, most often being
placed in non-Indian homes far from
their tribal communities. Congress
found that, ‘‘there is no resource that is
more vital to the continued existence
and integrity of Indian tribes than their
children.’’ (25 U.S.C. 1901 (3))
Accordingly, through ICWA, Congress
declared the policy of the United States
is to protect the best interests of Indian
children, to promote the stability and
security of Indian tribes and families by
establishing minimum Federal
standards for the removal of Indian
children from their families, and to
place such children in foster or adoptive
homes that reflect the unique values of
Indian cultures. Finally, Congress calls
for providing assistance to Indian tribes
in the operation of child and family
service programs. (25 U.S.C. 1902)
ICWA was enacted to protect American
Indian families and to give tribes a role
in making child welfare decisions for
AI/AN children. AI/AN children are
subject to ICWA when they are
unmarried persons under the age of 18
and are either (a) a member of an Indian
tribe or (b) are eligible for membership
in an Indian tribe and are the biological
child of a member of an Indian tribe.
ICWA expressly requires, among other
things, that: (1) A tribe is notified when
the state places an ‘‘Indian child’’ in
foster care or seeks to terminate parental
rights on behalf of such a child, (2) a
tribe is given an opportunity to
intervene in any state proceeding for
foster care placement and termination of
parental rights to a child subject to
ICWA, and (3) that a preference be given
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to placing the Indian child with
extended family or tribal families.
Use of AFCARS Data
AFCARS is designed to collect
uniform, reliable information from title
IV–B and title IV–E agencies on children
who are under the agencies’
responsibility for placement, care, or
supervision. AFCARS was established
to provide data that would assist in
policy development and program
management. Although ICWA was
passed more than 30 years ago, it is
unclear how well state agencies and
courts have implemented ICWA’s
requirements into practice. Even in
states with large AI/AN populations,
there may be confusion regarding how
and when to apply the law, including
providing notice to tribes and making
active efforts to prevent removal and
reunite children with their Indian
families as required under ICWA. This
is further complicated by the fact that
there is no comprehensive national data
on the status of AI/AN children for
whom ICWA applies at any stage in the
adoption or foster care system. AFCARS
data can bridge this gap.
Additional AFCARS data elements are
proposed to enhance the type and
quality of information title IV–E
agencies report to ACF. ACF’s
proposals, embodied in this SNPRM, are
motivated by the Administration’s
vision of healthy, resilient, and thriving
Indian children and families as well as
the continued vitality and integrity of
Indian tribes. More specifically, the
proposals reflected in this SNPRM
manifest Department-wide priorities to
affirmatively protect the best interests of
Indian children and to promote the
stability and security of Indian tribes,
families, and children.
ACF proposes to collect data elements
in AFCARS related to ICWA’s statutory
standards for removal, foster care
placement, and adoption proceedings.
More specifically, through this SNPRM,
ACF will improve the AFCARS data
collection system to provide more
comprehensive demographic and casespecific information on all children,
including children subject to ICWA,
who are in foster care or adopted with
title IV–E agency involvement.
Additionally, ACF intends to use the
data to:
1. Address the unique needs of AI/AN
children in foster care or adoption, and
their families.
In 2005, the Government
Accountability Office (GAO) issued a
report titled ‘‘Indian Child Welfare Act:
Existing Information on Implementation
Issues Could Be Used to Target
Guidance and Assistance to States’’
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(GAO–05–290). In addition to noting
that no national data on children subject
to ICWA was available, GAO asserts that
the extent to which states and tribes
work together to implement ICWA and
title IV–E/IV–B requirements affects
outcomes for Indian children in state
foster care systems. The report also
discusses how the Adoption and Safe
Families Act (Pub. L. 105–89) influences
placement decisions and outcomes for
Indian children, noting the following:
‘‘Decisions regarding the placement of
children subject to ICWA as they enter
and leave foster care can be influenced
by how long it takes to determine
whether a child is subject to the law, the
availability of American Indian foster
and adoptive homes, and the level of
cooperation between states and tribes.
According to several child welfare
officials, these factors, which are unique
to American Indian children, can play
an important role in placement
decisions, including the characteristics
of the foster home in which the child
will be placed, the number of
placements a child will have, and the
duration of the stay.’’ (GAO–05–290,
p.3). The proposed ICWA data will help
address the unique needs of Indian
children in foster care or adoption and
their families by clarifying how the
ICWA requirements and how title IV–E/
IV–B requirements affect placement of
Indian children.
2. Assess the current state of adoption
and foster care programs and relevant
trends that affect AI/AN families.
American Indian and Alaska Native
children are over-represented in child
welfare systems at higher rates than any
other racial or ethnic group. In 2013,
American Indian children were overrepresented among children in foster
care by a factor of 2.4, compared to their
proportion of the population. From 2000
to 2013, the degree of overrepresentation of AI/AN children
substantially increased from 1.5 to 2.4,
and the degree of disproportionality
varies widely by state (National Council
of Juvenile and Family Court Judges,
2015). At this time, there is very limited
data available to help understand the
reasons for the varying degrees of
disproportionality. Proposed ICWArelated AFCARS data elements will
shed light on the relationship between
implementing ICWA requirements and
outcomes for AI/AN children. In
addition, the proposed data elements
will provide additional information to
help identify the real or perceived
barriers encountered by states in
identifying AI/AN children in their
child welfare systems. Finally, proposed
ICWA-related AFCARS data elements
will provide currently unavailable
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information that will help to assess the
extent to which the fidelity of ICWA
implementation influences permanent
placements for Indian children and the
length of stay in out-of-home care. The
proposed ICWA data will also help to
inform efforts to compare program
practices, processes, or outcomes
between states and over the course of
time, which would allow the Children’s
Bureau to identify trends and highlight
and build upon strengths and best
practices.
3. Improve training and technical
assistance to help states comply with
title IV–E, and title IV–B of the Social
Security Act.
Through the Children’s Bureau, ACF
provides state title IV–E agencies with
technical assistance to help agencies
implement federal requirements and
improve their child welfare programs
(as authorized by section 435 and 476 of
the Social Security Act). Between
federal fiscal year (FFY) 2010 and FFY
2014, ACF received 31 requests for
tailored consultation from state agencies
and title IV–B tribes (separately or in
collaboration) for assistance with
examining or supporting ICWA
implementation. In response to these
requests, ACF-supported technical
assistance providers delivered more
than 3,700 hours of direct, tailored
consultation to state agencies and tribes
related to ICWA.
In FFY 2015, 24 state title IV–E
agencies participated in discussions
with ACF and its technical assistance
providers about their potential areas of
need for capacity building and
improvement. One third of these
agencies identified themselves as having
ICWA implementation related needs for
technical assistance. Data related to
ICWA will assist ACF to improve
training content, target subject areas,
and identify geographies in which
training will be helpful.
4. Develop future national policies
concerning its programs.
Additional proposed ICWA-related
data will allow ACF and the Children’s
Bureau to more effectively plan,
coordinate, and lead AI/AN
programming across ACF operations,
with other Departments such as the
Bureau of Indian Affairs (BIA) in the
Department of the Interior, the
Department of Justice (DOJ), and
throughout the federal government. By
collecting additional data, the federal
government will also have a more
complete understanding of how state
agencies interact with Indian children
and families as well as how many
children subject to ICWA come to the
attention of state child welfare agencies
nationwide. This additional data will
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help align performance measures, build
an evidence base that informs policy
and practice, and better ensure that
federal funds are being directed in a
way that delivers significantly better
results for AI/AN families. This critical
role aligns with the research, evaluation,
and technical assistance responsibilities
of the Children’s Bureau.
5. Inform and expand partnerships
across federal agencies that invest in
Indian families and that promote
resilient, thriving tribal communities
through several initiatives.
AFCARS data on the wellbeing of AI/
AN children will help multiple federal
agencies identify needs and gaps,
expand best practices, and shape new
policy and technical assistance. Several
of the current interagency initiatives
that will benefit include:
• Generation Indigenous. On
December 3, 2014, President Obama
launched Generation Indigenous (GenI), ‘‘an initiative that takes a
comprehensive, culturally appropriate
approach to help improve the lives of,
and opportunities for, Native youth.’’
On July 9, 2015, the Executive Office of
the President, Office of Management
and Budget, issued Executive Memo M–
15–17 identifying Native youth budget
priorities including ‘‘services that keep
families together. These could be family
assistance services, home improvement
programs, alternatives to incarceration,
and employment support services.
Agencies should focus on programs that
support the capacity building and
programmatic support necessary to
implement ICWA.’’
• The Department of Justice
Defending Childhood Initiative and the
Task Force on American Indian and
Alaska Native Children Exposed to
Violence. The Task Force report
recommended that ACF, BIA, DOJ, and
tribes develop a modernized unified
data-collection system designed to
collect ICWA-related AFCARS data on
all AI/AN children who are placed into
foster care by their agency.
• HHS Secretary’s Tribal Advisory
Committee (STAC). In 2014, the STAC
specifically identified improved federal
data collection on ICWA as a priority
need. In early 2015, the STAC identified
AFCARS as a vehicle for ICWA data
elements. The STAC expressed their
view that ACF has a critical role in
collecting important data, promoting
effective tribal/state collaborations,
increasing state capacity to comply with
ICWA, and reversing the inequities and
disproportionate representation and
poor outcomes for children that can
occur when ICWA is not followed. In
order to assist the Administration in
implementing ICWA and protecting AI/
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AN children and families, the STAC
requested enhanced ‘‘collection of data
elements related to key ICWA
requirements in individual ICWA cases
and greater oversight of the title IV–B
requirement for states to consult with
tribes on measures to comply with
ICWA (STAC follow-up letter to the
Secretary, June, 30, 2015, pp 9–10).’’
https://www.hhs.gov/about/agencies/iea/
tribal-affairs/about-stac/#.
• Interagency ICWA Working Group
Projects, including the Bureau of Indian
Affairs initiative to update state
guidance on ICWA and promulgate
ICWA regulations. The BIA Bureau of
Indian Affairs updated the Guidelines
for State Courts and Agencies in Indian
Child Custody Proceedings (80 FR
10146, issued February 25, 2015,
hereafter referred to as the Guidelines)
and has issued proposed regulations for
State Courts and Agencies in Indian
Child Custody Proceedings (proposed at
80 FR 14880, issued March 20, 2015) to
help ensure Indian children are not
removed from their communities,
cultures, and extended families in
conflict with ICWA’s express mandates.
Consistent with the Administration’s
focus on Indian children, the
Department of the Interior, DOJ, and
HHS engaged in extensive interagency
collaboration to promote compliance
with ICWA and agreed to continue to
collaborate. This work involved
collaborating on ICWA-related
regulations, including the BIA
regulations and this SNPRM.
6. Implement Tribal sovereignty
principles and Federal trust
responsibilities.
Improving AFCARS to inform ACF
and other federal agencies is consistent
with ACF’s implementation of
government-to-government principles of
engagement with AI/AN tribes and
respect for our trust responsibilities.
ACF’s understanding of fundamental
principles of tribal sovereignty is
reflected in both the Department’s and
ACF’s Tribal Consultation Policies
which state:
‘‘The special government-to-government
relationship between the Federal
Government and Indian Tribes, established
in 1787, is based on the Constitution, and has
been given form and substance by numerous
treaties, laws, Supreme Court decisions, and
Executive Orders, and reaffirms the right of
Indian Tribes to self-government and selfdetermination. Indian Tribes exercise
inherent sovereign powers over their citizens
and territory. The U.S. shall continue to work
with Indian Tribes on a government-togovernment basis to address issues
concerning Tribal self-government, Tribal
trust resources, Tribal treaties and other
rights.’’
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‘‘Tribal self-government has been
demonstrated to improve and perpetuate the
government-to-government relationship and
strengthen Tribal control over Federal
funding that it receives, and its internal
program management. Indian Tribes
participation in the development of public
health and human services policy ensures
locally relevant and culturally appropriate
approaches to public issues.’’ (Section 3,
Department of Health and Human Services
Tribal Consultation Policy).
‘‘Our Nation, under the law of the U.S. and
in accordance with treaties, statutes,
Executive Orders, and judicial decisions, has
recognized the right of Indian tribes to selfgovernment and self-determination. Indian
tribes exercise inherent sovereign powers
over their members and territory. The U.S.
continues to work with Indian tribes on a
government-to-government basis to address
issues concerning tribal self-government,
tribal trust resources, tribal treaties, and other
rights.’’ (Section 4, ACF Tribal Consultation
Policy).
These principles are also reflected in
ICWA through Congressional
recognition of ‘‘the special relationship
between the United States and the
Indian tribes and their members and the
Federal responsibility to Indian
people.’’ (25 U.S.C. 1901)
ACF announced its intent to publish
a SNPRM in a Federal Register
document issued on April 2, 2015 (80
FR 17713). Section 479 of the Social
Security Act contains some express
limits on the authority of ACF to collect
data including: Data collected under
AFCARS must avoid an unnecessary
diversion of resources from agencies
responsible for adoption and foster care
(section 479(c)(1) of the Act) and must
assure that any data that is collected is
reliable and consistent over time and
among jurisdictions through the use of
uniform definitions and methodologies
(section 479(c)(2) of the Act). With
respect to the requirement in section
479(c)(1) of the Act, ACF tailored the
proposed data elements to collect only
the most essential information regarding
Indian children in foster care and
children who have been adopted with
state title IV–E agency involvement.
Most data elements will only be
required for children who are
determined to be Indian children as
defined in ICWA. Furthermore, the
statutory authority under section 479 of
the Act is limited to data with respect
to adoption and foster care. ACF is not
proposing to require tribal title IV–E
agencies to collect and report ICWArelated data elements in proposed
paragraph (i) because ICWA does not
apply to placements by Indian tribes.
The data elements in § 1355.43(i) are
subject to the same compliance and
penalty requirements in §§ 1355.45 and
1355.46, respectively, proposed in the
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February 2015 AFCARS NPRM (80 FR
7187–7192 and 7220–7221).
II. Statutory Authority
Sections 479 and 474(f) of the Act
provide HHS the authority to require
that title IV–E agencies maintain a data
collection system which provides
comprehensive national information
related to adopted and foster children
and requires that the Secretary of Health
and Human Services regulate a national
data collection system to provide
comprehensive case level information
and impose penalties for failure to
submit AFCARS data under certain
circumstances. Section 1102 of the Act
instructs the Secretary to promulgate
regulations necessary for the effective
administration of the functions for
which she is responsible under the Act.
III. Public Participation
ACF invites the public to comment on
all aspects of the ICWA-related data
elements proposed in this SNPRM. In
addition, ACF specifically invites
comment on which, if any, of the
proposed data elements the state title
IV–E agencies currently collect. ACF
will review and consider all comments
that are germane and received during
the comment period on this SNPRM as
well as those previously submitted in
response to the February 2015 AFCARS
NPRM, and issue one final rule on
AFCARS.
IV. Consultation and Regulation
Development
To inform the development of the
ICWA-related data elements proposed in
this SNPRM, ACF reviewed public
comments received in response to the
February 2015 AFCARS NPRM, held
tribal and state consultation and
listening sessions, and consulted with
federal agency experts, as outlined
below.
1. Consideration of comments on the
February 2015 AFCARS NPRM that
addresses ICWA-related data elements.
ACF received approximately 45
comments that proposed/recommended
including new data elements in
AFCARS related to ICWA. Twenty-five
of the commenters were tribes or tribal
organizations, four were state child
welfare departments, and the remaining
were public interest organizations,
academics/universities, and individuals.
Of the 45 comments, 18 commenters
submitted the same or similar form
letter that recommended additional data
elements providing information about
the applicability of ICWA for children
in out-of-home care and proposed
revisions to the data elements proposed
in the February 2015 AFCARS NPRM to
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capture ICWA-related data. The
commenters recommended
approximately 62 new or revised data
elements that addressed the following:
Identification of Indian children and
their family structure; tribal notification
and intervention in state court
proceedings; the relationship of the
foster parents and other providers to the
Indian child; decisions to place an
Indian child in out-of-home care
(including data on active efforts and
continued custody); whether a
placement was licensed by an Indian
tribe; whether the placement
preferences in ICWA were followed and
both the voluntary and involuntary
termination of parental rights. ACF did
not receive specific suggestions from the
four state child welfare agencies on
which ICWA-related data elements to
include in AFCARS.
2. Tribal consultation session.
The Children’s Bureau held a tribal
consultation via conference call on May
1, 2015, that was co-facilitated by the
Children’s Bureau’s (CB) Associate
Commissioner and the Chairperson of
the ACF Tribal Advisory Committee,
who also serves as the Vice Chair of the
Jamestown S’Klallam Tribal Council.
The CB conducted the session to obtain
input from tribal leaders on proposed
AFCARS data elements related to ICWA.
Comments were solicited during the call
to determine essential data elements
that title IV–E agencies should report to
AFCARS including, but not limited to:
Whether the requirements of ICWA
were applied to a child; notice for child
welfare proceedings; active efforts to
prevent removal or to reunify the Indian
child with the child’s biological or
adoptive parents or Indian custodian;
placement preferences under ICWA; and
terminations of parental rights for an
Indian child. Tribal representatives did
not provide specific suggestions on the
call but noted during the call that they
would provide formal comments on the
SNPRM when it was issued.
3. Solicited input from members of
the National Association of Public Child
Welfare Administrators (NAPCWA).
The NAPCWA, an affiliate of the
American Public Human Services
Association (APHSA) hosted a
conference call with state members of
NAPCWA (i.e., representatives of state
child welfare agencies) and the
Children’s Bureau on April 27, 2015.
The purpose of the call was to obtain
input from state members on what data
state title IV–E agencies currently
collect regarding ICWA and what they
believed were the most important
information title IV–E agencies should
report in AFCARS related to ICWA.
Representatives from 13 states
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participated in the conference call and
stated that some of their states currently
collect information in their information
system related to Indian children, such
as tribal membership, tribal notification,
and tribal enrollment status. They noted
that some of the information with regard
to ICWA, such as placement preferences
and active efforts, are contained in case
files, case notes, or other narratives, and
not currently captured within their
information systems, and noted issues
with extraction of such data for
AFCARS reporting. They also indicated
that their information systems would
need to be changed and upgraded to
report ICWA-related data in AFCARS
and that new processes would need to
be developed to collect and extract the
requested information. They noted that
they would need to train workers to
accurately collect the data. They
indicated that additional funding is
necessary for costs associated with data
collection. Participating state
representatives also expressed concern
about adding data elements that would
require information from state courts,
unlike other AFCARS data elements
which are available within the title IV–
E agency’s information system. Given
that state title IV–E agencies and courts
do not typically exchange data, workers
may need to gather and enter state court
information manually.
4. Input from federal agency experts
regarding ICWA.
In December 2014, at the White House
Tribal Nations conference, Attorney
General Holder announced an initiative
to promote compliance with ICWA. This
initiative included partnering with the
Departments of Health and Human
Services and the Interior to ensure all
tools available to the federal government
are used to promote compliance with
ICWA. Federal Departments have a
strong interest in collecting data
elements related to ICWA. To further
interagency collaboration in this area,
DOI, DOJ, and HHS have engaged in
extensive discussions focused on ICWA,
including the sharing of agencies’
expertise for the development of ICWArelated regulations, including AFCARS.
As part of on-going intra- and interagency collaboration, ACF consulted
with federal experts on what data exists,
or not, and its utility in understanding
the well-being of Indian children, youth,
and families. ACF also consulted with
federal partners on the ICWA statutory
requirements in 25 U.S.C. 1901 et seq.,
DOI’s Guidelines, and Notice of
Proposed Rulemaking to implement
ICWA Regulations for State Courts and
Agencies in Indian Child Custody
Proceedings (80 FR 14880, issued March
20, 2015).
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After considering all of the
aforementioned input, ACF proposes
the addition of paragraph (i) to
§ 1355.43 (as proposed in the February
2015 AFCARS NPRM). Section 479 of
the Act permits broader data collection
in order to establish a true national data
collection system that provides
comprehensive demographic and casespecific information on all children who
are in foster care and adopted with title
IV–E agency involvement, to assess the
current state of adoption and foster care
programs in general, as well as to
develop future national policies
concerning these programs. Collecting
data on Indian children, including
ICWA-related data, is within the
authority of section 479 because it is in
line with the statutory goal of assessing
the status of children in foster care. ACF
is exercising its authority to propose a
limited new set of ICWA-related data
because section 479(a) authorizes ‘‘the
collection of data with respect to
adoption and foster care in the United
States’’ and Indian children are children
living within the United States and are
those intended to benefit from both
ICWA and titles IV–B and IV–E. The
supplemental proposed rule includes
data relevant to AI/AN children that
supports ACF in assessing the current
state of the well-being of Indian
children as well as state implementation
of title IV–E and IV–B. ACF proposes to
use the collected data to make datainformed assessments; and to develop
future policies concerning tribal-state
consultation, ICWA implementation,
and training and technical assistance to
support states in the implementation of
title IV–B and title IV–E programs.
ACF will analyze all pertinent
comments to this SNPRM along with
prior comments received on the
February 2015 AFCARS NPRM and
issue one final rule on AFCARS in
which the ICWA-related data elements
will be included. ACF understands from
consultation and the regulatory
development process that some of the
information sought in this SNPRM for
inclusion in AFCARS might be
contained in agency case files. However,
a number of the proposed data elements
seek information related to court
findings and this represents a shift
toward increased reporting on the
activity of the court in AFCARS. In this
SNPRM, ACF proposes that state title
IV–E agencies report information
believed to be contained in court orders
that the state title IV–E agency would
have ready access to or would typically
be contained within the state title IV–E
agency case files. ACF is seeking input
from state title IV–E agencies on
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whether they would be readily able to
report the information in AFCARS for
the data elements that relate to court
activities and if there would be
difficulties in doing so. We encourage
agencies to describe the nature of the
issues they would face, and possible
approaches to addressing these concerns
in light of the importance of having this
information.
V. Section-by-Section Discussion of
SNPRM
Section 1355.43(i) Data Elements
Related to the Indian Child Welfare Act
(ICWA)
In paragraph (i), ACF proposes to
require that state title IV–E agencies
collect and report certain ICWA-related
information on children in the AFCARS
out-of-home care reporting population.
ACF does not require state title IV–E
agencies to report the data elements
proposed in paragraph (i) for an Indian
child who remains under the tribe’s
responsibility, placement, and care but
for which the state provides IV–E foster
care maintenance payments pursuant to
a state–tribal agreement as described in
section 472(a)(2)(B)(ii) of the Act. This
is because the state’s agreement with the
tribe is to provide title IV–E foster care
maintenance payments to a child under
the tribe’s placement and care
responsibility. Additionally, tribal title
IV–E agencies are not required to collect
and report the data elements proposed
in paragraph (i). The data elements in
§ 1355.43(i) are subject to the same
compliance and penalty requirements in
§§ 1355.45 and 1355.46, respectively,
proposed in the February 2015 AFCARS
NPRM (80 FR 7187–7192 and 7220–
7221).
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Definitions
In paragraph (i)(1), ACF proposes to
require that unless otherwise specified,
the following terms have the same
meaning as in ICWA, at 25 U.S.C. 1903:
Child custody proceeding, extended
family member, Indian, Indian child,
Indian child’s tribe, Indian custodian,
Indian organization, Indian tribe,
parent, reservation, and tribal court. It is
important to note that the term ‘‘Indian
child’’ in this section does not refer to
a racial classification, but rather is
defined by ICWA as a child who is
either a member of an Indian tribe, or
is eligible for membership in an Indian
tribe and is the biological child of a
member of an Indian tribe. Each term is
listed in the regulatory language below
with the corresponding ICWA statutory
citation.
In paragraph (i)(2), ACF proposes to
require that for all children in the out-
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of-home care reporting population per
§ 1355.41(a), the state title IV–E agency
must complete the data elements in
paragraphs (i)(3) through (5).
Identifying an ‘‘Indian Child’’ Under the
Indian Child Welfare Act
In paragraph (i)(3), ACF proposes to
require that the state title IV–E agency
report whether the state title IV–E
agency inquired about pertinent
information on a child’s status as an
‘‘Indian child’’ under ICWA. This
includes: Reporting whether the child is
a member of or eligible for membership
in an Indian tribe; the child’s biological
or adoptive parents are members of an
Indian tribe; inquiring about the child’s
status as an ‘‘Indian child’’ with the
child, his/her biological or adoptive
parents (if not deceased), and the child’s
Indian custodian (if the child has one);
ascertaining whether the domicile or
residence of the child, parent, or the
Indian custodian is known by the
agency, or is shown to be, on an Indian
reservation.
This data will provide information on
whether state title IV–E agencies and
state courts are evaluating whether the
child meets the definition of ‘‘Indian
child’’ under ICWA. These are threshold
questions indicating whether the state
title IV–E agency knows or has ‘‘reason
to know’’ that a child is an Indian child
and thus is subject to the protections
under ICWA. Without inquiry, many
Indian children are not identified,
thereby denying children, parents, and
Indian tribes procedural and substantive
protections under ICWA. These data
elements represent the minimum that a
state title IV–E agency should be
collecting to determine whether the
child is an Indian child under ICWA.
Such elements will help establish
demographics necessary in identifying
ICWA cases that involve parents who
are tribal members or that involve an
Indian custodian. Proactively
identifying Indian children will
improve the AFCARS data on AI/AN
child foster care cases, adoption through
the title IV–E agencies, as well as
provide a base for understanding the
percentage of AI/AN cases to which
ICWA applies. More accurate data will
help ACF better understand the scope of
ICWA’s impact in AI/AN child foster
care cases and state systems, help
identify where the application of ICWA
may need reinforcement, and help
inform ACF technical assistance to state
title IV–E agencies.
Application of ICWA
In paragraph (i)(4), ACF proposes to
require that the state title IV–E agency
indicate whether it knows or has reason
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to know that the child is an Indian child
under ICWA. If so, the state title IV–E
agency must indicate the date that the
state title IV–E agency discovered
information that indicates that the child
is or may be an Indian child and
identify all federally recognized Indian
tribes identified that may potentially be
the Indian child’s tribe(s).
In paragraph (i)(5), ACF proposes that
the state title IV–E agency must indicate
whether a court order indicates that a
court found that ICWA applies, the date
of the finding, and the name of the
Indian tribe if listed on the court order.
If the state title IV–E agency responds
with ‘‘yes’’ to the data elements in
paragraphs (i)(4) or (5), then the agency
must complete the remaining applicable
paragraphs (i)(6) through (29) of this
section, which includes information on:
Transfers to tribal court; notification of
child custody proceedings; active efforts
to prevent removal and to reunify with
the Indian family; foster care and
adoptive placement preferences; and
termination of parental rights.
Because not all AI/AN children meet
the definition of ‘‘Indian child’’ under
ICWA, these data elements are critical to
identify the national number of AI/AN
child foster care cases to which ICWA
applies. Data elements related to
whether ICWA applies are essential
because application of ICWA triggers
procedural and substantive protections.
The date the agency received
information as to whether the child is
an Indian child under ICWA is essential
to understanding the time-lapse
between knowing that a child is an
Indian child and tribal notification. A
long time-lapse can indicate a delay in
the application of the ICWA protections.
Additionally, identifying Indian tribes
that may potentially be the Indian
child’s tribe will help tribes, states, and
the federal government direct resources
into developing relationships that will
streamline the process of identifying
Indian children.
Transfer to Tribal Court
In paragraphs (i)(6) and (7), ACF
proposes to require that the state title
IV–E agency report certain information
on whether a case was transferred from
state court to tribal court, in accordance
with 25 U.S.C. 1911(b). In paragraphs
(i)(6), ACF proposes to require that the
state title IV–E agency report whether a
court order indicates that the Indian
child’s parent, Indian custodian, or
Indian child’s tribe requested, orally on
the record or in writing, that the state
court transfer the case to the tribal court
of the Indian child’s tribe, in accordance
with 25 U.S.C. 1911(b), at any point
during the report period. In paragraph
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(i)(7), if the state court denied the
request to transfer the case to tribal
court, ACF proposes to require that the
state title IV–E agency report whether
there is a court order that indicates the
reason(s) why the case was not
transferred to the tribal court. If a court
order exists, justification for denying a
transfer must be indicated from among
a list of three options, as outlined in
ICWA statute: (1) Either of the parents
objected to transferring the case to the
tribal court; or (2) the tribal court
declined the transfer to the tribal court;
or (3) the state court found good cause
not to transfer the case to the tribal
court.
The data in this section will provide
an understanding of how many children
in foster care with ICWA protections are
or are not transferred to the Indian
child’s tribe and an understanding of
the reasons why a state court did not
transfer the case. Additionally, ACYF–
CB–PI–14–03 (issued March 5, 2014)
requires, among other things, that states
develop, in consultation with tribes,
measures to determine whether tribes
are able to effectively intervene and,
where appropriate, transfer proceedings
to tribal jurisdiction. One focus of the
Child and Family Services Reviews
conducted by the Children’s Bureau is
the importance of preserving a child’s
cultural connections. This data will aid
in understanding how a state may
preserve a child’s connection to his/her
tribe. In addition, transfer data will aid
in identifying capacity needs and issues
in tribal child welfare systems that may
prevent tribes from taking jurisdiction.
Transfer data will help identify
opportunities to build relationships
between states and tribes. The data will
also indicate whether additional tribal
court resources are needed to improve
transfer rates, or additional training for
state courts is required regarding
appropriate ‘‘good cause’’ exceptions to
transfer.
Notification
In paragraphs (i)(8) through (10), ACF
proposes to require that the state title
IV–E agency report certain information
about legal notice to the Indian child’s
parent, Indian custodian, and Indian
child’s tribe regarding the child custody
proceeding as defined in ICWA. ACF
proposes to require that the state title
IV–E agency report: Whether the Indian
child’s biological or adoptive parent or
Indian custodian were given proper
legal notice of the child custody
proceeding more than 10 days prior to
the first child custody proceeding in
accordance with 25 U.S.C. 1912(a);
whether the Indian child’s tribe (if
known) was given proper legal notice of
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the child custody proceedings more
than 10 days prior to the first child
custody proceeding; which Indian
tribe(s) were sent notice of the child
custody proceeding; and whether the
state title IV–E agency replied with
additional information that the Indian
child’s tribe(s) requested, if such a
request was made.
State child welfare agencies may have
this information in their case files,
regardless whether the notice was sent
by the agency or the court. Notice to the
Indian child’s parents, Indian custodian,
and tribe about child custody
proceedings, as defined in ICWA, and
the timing of the notice is an essential
procedural protection provided by
ICWA. ICWA requires that the party
seeking foster care placement of, or
termination of parental rights to, an
Indian child shall notify the parent or
Indian custodian and the Indian child’s
tribe of the pending proceedings,
including notice of their right of
intervention and that no foster care
placement or termination of parental
rights proceeding shall be held until at
least ten days after notice is received (25
U.S.C. 1912(a)). Notifying individuals
and tribes of their rights and
requirements in every child custody
proceeding is critical to meaningful
access to and participation in
adjudications. Further, improper notice
is a common basis for an appeal under
ICWA, resulting in failure of process
and unnecessary costs and delay. The
data reported in this section will
provide an understanding of how legal
notice and adherence to the timeframes
in ICWA may impact an Indian child’s
case. The data will also help identify
technology, capacity, and training needs
for meeting legal notice requirements, as
well as opportunities for technical
assistance and relationship-building
between states and tribes.
Active Efforts To Prevent Removal and
Reunify the Indian Family
In paragraphs (i)(11) through (13),
ACF proposes to require that the state
title IV–E agency report whether and
when the state title IV–E agency began
to make active efforts to prevent the
breakup of the Indian family prior to the
child’s most recent out-of-home care
episode, whether the court found in a
court order that the state title IV–E
agency made active efforts to prevent
the breakup of the Indian family, and
that these efforts were unsuccessful, and
what active efforts the state title IV–E
agency made to prevent the breakup of
the Indian family (see 25 U.S.C.
1912(d)).
Providing active efforts to prevent the
breakup of Indian families is a key
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component of the ICWA protections (25
U.S.C. 1912(d)). Under ICWA, any party
seeking to effect a foster care placement
of, or termination of parental rights to,
an Indian child must demonstrate to the
court that active efforts have been made
to provide remedial services and
rehabilitative programs designed to
avoid the need to remove the Indian
child, or terminate parental rights. Thus,
state title IV–E agencies are required to
identify and offer programs and services
to prevent the breakup of Indian
families which includes services to
maintain and reunite an Indian child
with his or her family and to promote
the stability and security of the Indian
family. Where such efforts are
meaningful and effective, exits from
child welfare systems increase and a
reduction in disproportionality in state
child welfare systems logically follows.
Proposed ICWA-related AFCARS data
regarding active efforts will provide a
better understanding of the status of
Indian children in foster care, how these
efforts may impact an Indian child’s
case, and the role of the courts in
making findings. The data will also help
identify service needs and efficacy;
capacity needs; the need for training
and technical assistance; and
opportunities to build relationships
between states and tribes.
Removals
In paragraph (i)(14), ACF proposes to
require that the state title IV–E agency
report whether the state court found by
clear and convincing evidence, in a
court order, that continued custody of
the Indian child by the parent or Indian
custodian was likely to result in serious
emotional or physical damage to the
Indian child in accordance with 25
U.S.C. 1912(e); and whether the court
finding indicates that the state court’s
finding was supported by the testimony
of a qualified expert witness in
accordance with 25 U.S.C. 1912(e).
This is an important protection under
ICWA for Indian children given that the
standard for removal of an Indian child
is established by ICWA and may be
different than in non-ICWA foster care
cases. In ICWA, Congress created
minimum federal standards for removal
to prevent the continued breakup of
Indian families. ICWA’s legislative
history reflects clear Congressional
intent: ‘‘It is clear then that the Indian
child welfare crisis is of massive
proportions and that Indian families
face vastly greater risks of involuntary
separation than are typical of our
society as a whole.’’ (H. Rep. 95–1386
(July 24, 1978)). The proposed ICWArelated AFCARS data element will
provide data on the extent to which
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Indian children are removed in a
manner that conforms to ICWA’s
statutory standard, informs ACF about
the frequency of and evidentiary
standards applied to removals of Indian
children, helps identify needs for
training and technical assistance related
to ICWA statutory standards, and
highlights substantive opportunities for
building and improving relationships
between states and tribes.
Foster Care and Pre-Adoptive Placement
Preferences
In paragraphs (i)(15) through (18),
ACF proposes to require that state title
IV–E agencies report certain information
on the foster care and pre-adoptive
placement of Indian children,
specifically, the placement of such
children in the least restrictive setting
that most approximates a family within
reasonable proximity to his or her home
in accordance with preferences
established in ICWA at 25 U.S.C.
1915(b), or preferences established by
tribal resolution 25. U.S.C. 1915(c).
In paragraph (i)(15), the state title IV–
E agency must indicate which foster
care and pre-adoptive placements from
a list of five are available to accept
placement of the Indian child. The five
placements options are: A member of
the Indian child’s extended family; a
foster home licensed, approved, or
specified by the Indian child’s tribe; an
Indian foster home licensed or approved
by an authorized non-Indian licensing
authority; 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; and a placement that
complies with the order of preference
for foster care or pre-adoptive
placements established by an Indian
child’s tribe, in accordance with 25
U.S.C. 1915(c).
In paragraph (i)(16), the state title IV–
E agency must indicate whether the
Indian child’s current placement as of
the end of the report period meets the
placement preferences of ICWA at 25
U.S.C. 1915(b) by indicating with whom
the Indian child is placed from a list of
six response options. The placements
are: A member of the Indian child’s
extended family; a foster home licensed,
approved, or specified by the Indian
child’s tribe; an Indian foster home
licensed or approved by an authorized
non-Indian licensing authority; 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; a placement that complies with
the order of preference for foster care or
pre-adoptive placements established by
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an Indian child’s tribe, in accordance
with 25 U.S.C. 1915(c); or none.
In paragraph (i)(17), the state title IV–
E agency must indicate whether the
state court made a finding of good
cause, on a court order, to place the
Indian child with someone who is not
listed in the placement preferences of
ICWA in 25 U.S.C. 1915(b) or the
placement preferences of the Indian
child’s tribe, if the placement
preferences for foster care and preadoptive placements were not followed.
In paragraph (i)(18), the state title IV–E
agency must indicate the state court’s
basis for the finding of good cause, as
indicated on the court order, from a list
of five response options: Request of the
biological parents; request of the Indian
child; the unavailability of a suitable
placement that meets the placement
preferences in ICWA at 25 U.S.C. 1915;
the extraordinary physical or emotional
needs of the Indian child; or other.
The requirements around placement
preferences in ICWA are a key piece of
the protections mandated by ICWA.
Placement preferences serve to protect
the best interests of Indian children and
promote the stability and security of
families and Indian tribes by keeping
Indian children with their extended
families or in Indian foster homes and
communities. The placement
preferences in ICWA are congruent with
the title IV–E plan requirement in
section 471(a)(19) of the Act regarding
preference to an adult relative over a
non-related caregiver when determining
the placement for a child. Data from the
National Survey of Child and
Adolescent Well-Being indicates that
opportunities for kinship placements
vary widely by age for AI/AN children
when compared to other children of the
same age. New AFCARS data will help
to adequately assess the current status of
kinship placements as well as to help
identify a national plan for meeting
permanency goals through kinship
placements.
Factors unique to Indian children,
including the availability of American
Indian foster homes, influence decisions
about the placement of Indian children.
These factors include the characteristics
of the foster home, the number of
placements a child will have, and the
duration of the stay (GAO–05–290, p.3).
The information from these data
elements will allow ACF to distinguish
between ICWA cases in which there was
no available ICWA-preferred placement
and those cases where an available
ICWA-preferred placement was not used
despite its availability. The data will
help to identify trends or problems that
may require enhanced recruitment of
potential Indian foster homes or relative
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placements. This information will help
to identify the training and technical
assistance needs of states to support
recruitment and support foster families
to meet the unique cultural, social,
extracurricular, and linguistic needs of
Indian children. Reporting information
on good cause will help agencies better
understand why the ICWA placement
preferences are not followed. In
addition, such information will aid in
targeting training and resources needed
to assist states in improving Indian
child outcomes.
Termination of Parental Rights
In paragraphs (i)(19) through (24),
ACF proposes to require that the state
title IV–E agency report information
regarding voluntary and involuntary
terminations of parental rights (TPR),
which include tribal customary
adoptions. The information includes:
Whether the rights of the Indian child’s
parents or Indian custodian were
involuntarily or voluntarily terminated;
whether, prior to ordering an
involuntary termination of parental
rights, the state court found beyond a
reasonable doubt, in a court order, that
continued custody of the Indian child
by the parent or Indian custodian is
likely to result in serious emotional or
physical damage to the Indian child in
accordance with 25 U.S.C. 1912(f);
whether the state court indicates that its
finding was supported by the testimony
of a qualified expert witness in
accordance with 25 U.S.C. 1912(f); and
if the TPR was voluntary, whether there
is a court order that indicates that the
voluntary consent to termination for the
biological or adoptive mother and
biological or adoptive father or Indian
custodian was made in writing and
recorded in the presence of a judge of
a court of competent jurisdiction and
accompanied by the presiding judge’s
certificate that the terms and
consequences of the consent were fully
explained in detail and were fully
understood by the parent or Indian
custodian in accordance with 25 U.S.C.
1913.
Distinguishing between involuntary
and voluntary terminations of parental
rights is important in ICWA given
specific protections that must be
provided in each context (25 U.S.C.
1912(e), (f) and 25 U.S.C. 1913). In
addition, termination standards are
important protections for Indian
children under ICWA given that
Congress specifically created minimum
federal standards for removal of an
Indian child to prevent the breakup of
Indian families and to promote the
stability and security of families and
Indian tribes by preserving the child’s
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links to their parents and to the tribe
through the child’s parent(s). Further, a
TPR may affect a child’s ability to be a
full member of his/her tribe, preventing
the child from accessing services and
benefits available to tribal members.
Whether the Indian child’s parents’
rights were terminated in a manner that
conforms to the statutory standard
informs ACF as to when an Indian
child’s parental rights are terminated,
helps identify the need for training and
technical assistance to meet statutory
standards, and highlights substantive
opportunities for building relationships
between states and tribes.
Adoption Proceedings
In paragraphs (i)(25) through (29),
ACF proposes to require that the state
title IV–E agency report certain
information on adoptive placement
preferences, which are requirements in
ICWA at 25 U.S.C. 1915(a), if the Indian
child exited foster care to adoption per
§ 1355.43(g).
In paragraph (i)(25), the state title IV–
E agency must indicate whether the
child exited foster care to adoption per
§ 1355.43(g). This is a driver question
for this section; if the state title IV–E
agency indicates ‘‘yes,’’ then the agency
must complete the elements in this
section; if the state title IV–E agency
indicates ‘‘no,’’ then the agency must
skip the elements in this section.
In paragraph (i)(26), the state title IV–
E agency must indicate which adoptive
placements from a list of four were
willing to accept placement of the
Indian child. Adoption placements
preferences are found in ICWA at 25
U.S.C. 1915(a) as follows: A member of
the Indian child’s extended family;
other members of the Indian child’s
tribe; other Indian families; or a
placement that complies with the order
of preference for adoptive placements
established by an Indian child’s tribe, in
accordance with 25 U.S.C. 1915(c).
In paragraph (i)(27), the state title IV–
E agency must indicate whether the
placement reported in § 1355.43(h)
meets the placement preferences of
ICWA in 25 U.S.C. 1915(a) by indicating
with whom the Indian child is placed
from a list of five response options. The
placements preferences are: A member
of the Indian child’s extended family;
other members of the Indian child’s
tribe; other Indian families; or a
placement that complies with the order
of preference for adoptive placements
established by an Indian child’s tribe, in
accordance with 25 U.S.C. 1915(c); or
none.
In paragraph (i)(28), the state title IV–
E agency must indicate whether the
state court made a finding of good
cause, in a court order, to place the
Indian child with someone who is not
listed in the placement preferences of
ICWA in 25 U.S.C. 1915(a) or the
placement preferences of the Indian
child’s tribe, if the placement
preferences for adoptive placements
were not followed. In paragraph (i)(29),
the state title IV–E agency must indicate
the state court’s basis for the finding of
good cause, as indicated in the court
order, from a list of five response
options: Request of the biological
parents; request of the Indian child; the
unavailability of a suitable placement
that meets the placement preferences in
ICWA at 25 U.S.C. 1915; the
extraordinary physical or emotional
needs of the Indian child; or other.
The requirements for adoption
placement preferences in ICWA are a
key piece of the protections provided
under ICWA. Placement preferences
serve the policies of protecting the best
interests of Indian children and
promoting the stability and security of
families and Indian tribes by keeping
adopted Indian children with their
extended families, tribes or
communities. These data elements will
help provide greater understanding on
how best to support Indian children in
cases where adoption is the outcome.
The data are important to assist in
identifying trends or problems that may
require enhanced recruitment of
potential Indian adoptive homes or
relative placements. The information
from these data elements will allow
ACF to distinguish between ICWA cases
in which there was no available ICWAplacement and those cases where an
available ICWA-placement was not
used. The data will help assess the
current status of kinship guardianship
placements as well as to help identify a
national plan for meeting permanency
goals through kinship guardianship.
This information will help to identify
the scope of resources for training and
technical assistance needed for states to
recruit and support adoptive families to
meet the unique cultural, social, and
enrichment activity needs of Indian
children. Reporting information on good
cause to not follow ICWA adoption
placement preferences will help to
understand why the ICWA placement
preferences are not followed, and will
aid in identifying targeted training and
resource needs to assist states in
improving Indian child outcomes.
ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA
Category & applicability
Element
Response options
Identifying an ‘‘Indian Child’’
under the Indian Child Welfare
Act.
These data elements will be reported for all children.
Indicate whether the state title IV–E agency researched whether there is a reason to know that
the child is an ‘‘Indian child’’ under ICWA:
• Indicate whether the state agency inquired
with the child’s biological or adoptive mother.
...................................................
• Indicate whether the biological or adoptive
mother is a member of an Indian tribe.
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• Indicate whether the state agency inquired
with the child’s biological or adoptive father.
• Indicate whether the biological or adoptive father is a member of an Indian tribe.
• Indicate whether the state agency inquired
with the child’s Indian custodian, if the child
has one.
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Yes.
No.
The biological or adoptive
mother is deceased.
Yes.
No.
Unknown.
Yes.
No.
The biological or adoptive father is deceased.
Yes.
No.
Unknown.
Yes.
No.
Child does not have an Indian
custodian.
E:\FR\FM\07APP1.SGM
07APP1
Section citation
1355.43(i)(3).
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ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
Category & applicability
Element
Response options
• Indicate whether the state agency inquired
with the child who is the subject of the proceeding.
• Indicate whether the child is a member of or
eligible for membership in an Indian tribe.
Application of ICWA ....................
These data elements will be reported for all children.
These data elements will be reported for all children.
Transfer to tribal court ................
These data elements and all of
those below only apply to Indian children.
Notification ..................................
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Active efforts to prevent removal
and reunify with Indian family.
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• Indicate whether the domicile or residence of
the child, parent, or the Indian custodian is
known by the agency to be, or is shown to
be, on an Indian reservation.
• Indicate whether the state title IV–E agency
knows or has reason to know that the child is
an Indian child as defined by ICWA.
• Indicate the date that the state title IV–E
agency discovered the information that indicates that the child is or may be an Indian
child.
• Indicate the name(s) of all federally recognized Indian tribe(s) identified that may potentially be the Indian child’s tribe(s).
Indicate whether a court order indicates that the
court found that ICWA applies.
• Indicate the date of the court finding ...............
• Indicate the name of the Indian tribe(s) that
the court found is the Indian child’s tribe, if
listed on the court order.
Indicate whether there is a court order that indicates
that the Indian child’s parent, Indian custodian, or
Indian child’s tribe requested, orally on the record
or in writing, that the state court transfer the case
to the tribal court of the Indian child’s tribe, in accordance with 25 U.S.C. 1911(b), at any point during the report period.
If the state court denied the request to transfer the
case to tribal court, indicate whether there is a
court order that indicates the reason(s) why the
case was not transferred to the tribal court.
• Either of the parents objected to transferring
the case to the tribal court.
• The tribal court declined the transfer to the
tribal court.
• The state court found good cause not to
transfer the case to the tribal court.
Indicate whether the Indian child’s parent or Indian
custodian was given proper legal notice more than
10 days prior to the first child custody proceeding
in accordance with 25 U.S.C. 1912(a).
Indicate whether the Indian child’s tribe(s) was given
proper legal notice more than 10 days prior to the
first child custody proceeding in accordance with
25 U.S.C. 1912(a).
Indicate the name(s) of the Indian tribe(s) that were
sent notice for a child custody proceeding as required in ICWA at 25 U.S.C. 1912(a).
If the tribe(s) requested additional information, indicate whether the state title IV–E agency replied
with the additional information that the Indian
tribe(s) requested.
Indicate the date that the state title IV–E agency
began making active efforts to prevent the breakup of the Indian family for the most recent removal
reported in § 1355.43(d) of the Indian child in accordance with 25 U.S.C. 1912(d).
Indicate whether the court found, in a court order,
that the state title IV–E agency made active efforts
to prevent the breakup of the Indian family for the
most recent removal reported in § 1355.43(d) and
that these efforts were unsuccessful in accordance
with 25 U.S.C. 1912(d).
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Section citation
Yes.
No.
Yes.
No.
Unknown.
Yes.
No.
Yes ............................................
No.
1355.43(i)(4).
Date..
Name(s)..
Yes, ICWA applies ...................
No, ICWA does not apply.
No court finding.
Date.
Name(s).
No name listed.
1355.43(i)(5).
Yes ............................................
No.
1355.43(i)(6).
Yes ............................................
No.
1355.43(i)(7).
Yes.
No.
Yes.
No.
Yes.
No.
Yes ............................................
No.
Yes
No.
The child’s Indian tribe is unknown.
Name(s) ....................................
1355.43(i)(8).
1355.43(i)(9).
Yes ............................................
No.
Does not apply.
1355.43(i)(10).
Date ..........................................
1355.43(i)(11).
Yes ............................................
No.
1355.43(i)(12).
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ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
Category & applicability
Element
Response options
Indicate the active efforts that the state title IV–E
agency made to prevent the breakup of the Indian
family in accordance with 25 U.S.C. 1912(d).
• Identify appropriate services to help the parent.
• Actively assist the parent in obtaining services
...................................................
• Invite representatives of the Indian child’s
tribe to participate in the proceedings.
• Complete a comprehensive assessment of
the family.
• Focus on safe reunification as the goal for the
Indian child.
• Consult with extended family members to provide support for the Indian child.
• Arrange for family interaction in most natural
setting safely possible.
• Monitor progress and participation in services
to reunite the Indian family.
• Consider alternative ways of addressing the
needs of the Indian child’s parent and extended family if services do not exist or are
not available.
• Support regular visits and trial home visits
consistent with ensuring the Indian child’s
safety.
• Conduct or cause to be conducted a diligent
search for the Indian child’s extended family
members for assistance and possible placement.
• Keep siblings together .....................................
• Other ................................................................
Removals ....................................
Lhorne on DSK5TPTVN1PROD with PROPOSALS
Foster care and pre-adoptive
placement preferences.
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Indicate whether the court found by clear and convincing evidence, in a court order, that continued
custody of the Indian child by the parent or Indian
custodian was likely to result in serious emotional
or physical damage to the Indian child in accordance with 25 U.S.C. 1912(e).
Indicate whether the court finding indicates that the
state court’s finding was supported by the testimony of a qualified expert witness in accordance
with 25 U.S.C. 1912(e).
Indicate which foster care or pre-adoptive placements that meet the placement preferences of
ICWA in 25 U.S.C. 1915(b) were available to accept placement.
• A member of the Indian child’s extended family.
• A foster home licensed, approved, or specified by the Indian child’s tribe.
• An Indian foster home licensed or approved
by an authorized non-Indian licensing authority.
• 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.
• A placement that complies with the order of
preference for foster care or pre-adoptive
placements established by an Indian child’s
tribe, in accordance with 25 U.S.C. 1915(c).
For the Indian child’s current foster care or preadoptive placement as of the end of the report period per § 1355.43(e), indicate whether the placement meets the placement preferences of ICWA in
25 U.S.C. 1915(b) by indicating with whom the Indian child is placed.
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Section citation
1355.43(i)(13).
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
N/A.
Yes.
No.
Yes ............................................
No.
1355.43(i)(14).
Yes.
No.
...................................................
1355.43(i)(15).
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
A member of the Indian child’s
extended family.
A foster home licensed, approved, or specified by the
Indian child’s tribe.
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1355.43(i)(16).
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ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
Category & applicability
Element
Response options
If the placement preferences for foster care or preadoptive placements were not followed, indicate
whether the court made a finding of good cause,
on a court order, to place the Indian child with
someone who is not listed in the placement preferences of ICWA in 25 U.S.C. 1915(b) or the
placement preferences of the Indian child’s tribe.
Indicate the state court’s basis for the finding of
good cause, as indicated on the court order.
• Request of biological parents ..........................
• Request of Indian child ....................................
• The unavailability of a suitable placement that
meets the placement preferences in ICWA at
25 U.S.C. 1915.
• The extraordinary physical or emotional needs
of the Indian child.
• Other ................................................................
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Termination of parental rights .....
Adoption proceedings .................
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Indicate whether the termination of parental (or Indian custodian rights was voluntary or involuntary.
Indicate whether, prior to ordering a termination of
parental rights, the state court found beyond a
reasonable doubt, in a court order, that continued
custody of the Indian child by the parent or Indian
custodian is likely to result in serious emotional or
physical damage to the Indian child in accordance
with 25 U.S.C. 1912(f).
Indicate whether the court finding, reported for paragraph (i)(20), indicates that the state court’s finding was supported by the testimony of a qualified
expert witness in accordance with 25 U.S.C.
1912(f).
If voluntary, indicate whether there is a court order
that indicates that the voluntary consent to termination for the biological or adoptive mother was
made in writing and recorded in the presence of a
judge in accordance with 25 U.S.C. 1913.
If voluntary, indicate whether there is a court order
that indicates that the voluntary consent to termination for the biological or adoptive father was
made in writing and recorded in the presence of a
judge in accordance with 25 U.S.C. 1913.
If voluntary, indicate whether there is a court order
that indicates that the voluntary consent to termination for the Indian custodian was made in writing and recorded in the presence of a judge in accordance with 25 U.S.C. 1913.
Indicate whether the Indian child exited foster care
to adoption per § 1355.43(g).
Indicate which adoptive placements that meet the
placement preferences in ICWA at 25 U.S.C.
1915(a) were willing to accept placement.
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An Indian foster home licensed
or approved by an authorized
non-Indian licensing authority.
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. A placement
that complies with the order
of preference for foster care
or pre-adoptive placements
established by an Indian
child’s tribe, in accordance
with 25 U.S.C. 1915(c).
None.
Yes ............................................
No.
...................................................
Section citation
1355.43(i)(17).
1355.43(i)(18).
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Voluntary ...................................
Involuntary.
Yes ............................................
No.
1355.43(i)(19).
1355.43(i)(20).
Yes ............................................
No.
1344.43(i)(21).
Yes ............................................
No.
Does not apply.
1355.43(i)(22).
Yes ............................................
No.
Does not apply.
1355.43(i)(23).
Yes ............................................
No.
Does not apply.
1355.43(i)(24).
Yes ............................................
No.
...................................................
1355.43(i)(25).
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1355.43(i)(26).
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ATTACHMENT A—PROPOSED OUT-OF-HOME CARE DATA FILE ELEMENTS RELATED TO ICWA—Continued
Category & applicability
Element
Response options
• A member of the Indian child’s extended family.
• Other members of the Indian child’s tribe .......
• Other Indian families ........................................
• A placement that complies with the order of
preference for foster care or pre-adoptive
placements established by an Indian child’s
tribe, in accordance with 25 U.S.C. 1915(c).
Indicate whether the placement reported in
§ 1355.43(h) meets the placement preferences of
ICWA in 25 U.S.C. 1915(a) by indicating with
whom the Indian child is placed.
Other Indian families.
A placement that complies with the order of preference for foster care or pre-adoptive placements
established by an Indian child’s tribe, in accordance with 25 U.S.C. 1915(c).
None.
If the placement preferences for adoption were not
followed, indicate whether the court made a finding of good cause, on a court order, to place the
Indian child with someone who is not listed in the
placement preferences of ICWA in 25 U.S.C.
1915(a) or the placement preferences of the Indian child’s tribe.
Indicate whether there is a court order that indicates
the court’s basis for the finding of good cause.
• Request of the biological parents ....................
• Request of the Indian child ..............................
• The unavailability of a suitable placement that
meets the placement preferences in ICWA at
25 U.S.C. 1915.
• The extraordinary physical or emotional needs
of the Indian child.
• Other ................................................................
VI. Regulatory Impact Analysis
Lhorne on DSK5TPTVN1PROD with PROPOSALS
Executive Order 12866
Executive Order (E.O.) 12866 requires
that regulations be drafted to ensure that
they are consistent with the priorities
and principles set forth in the E.O. The
Department has determined that this
proposed rule is consistent with these
priorities and principles. In particular,
ACF has determined that a regulation is
the best and most cost effective way to
implement the statutory mandate for a
data collection system regarding
children in foster care and those that are
adopted and support other statutory
obligations to provide oversight of child
welfare programs. ACF consulted with
the Office of Management and Budget
(OMB) and determined that this
proposed rule does meet the criteria for
a significant regulatory action under
E.O. 12866. Thus, it was subject to OMB
review.
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Jkt 238001
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
A member of the Indian child’s
extended family.
Other members of the Indian
child’s tribe.
1355.43(i)(27).
Yes ............................................
No.
1355.43(i)(28).
...................................................
1355.43(i)(29).
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
ACF determined that the costs to title
IV–E agencies as a result of this rule will
not be significant. Federal
reimbursement under title IV–E will be
available for a portion of the costs that
title IV–E agencies will incur as a result
of the revisions proposed in this rule,
depending on each agency’s cost
allocation plan, information system, and
other factors.
Alternatives Considered:
1. ACF considered not collecting
certain ICWA-related data in AFCARS.
Not including ICWA-related data
elements in AFCARS, or including too
few data elements, may exclude Indian
children and families from the
additional benefit of improving
AFCARS data.
2. ACF considered whether other
existing data sets could yield similar
information. ACF determined that
AFCARS is the only comprehensive
case-level data set on the incidence and
experiences of children who are in
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Section citation
foster care and/or adoption or
guardianship with the involvement of
the state or tribal title IV–E agency.
3. Previously, ACF considered
whether to permit title IV–E agencies to
sample and report information on a
representative population of children.
Such an alternative is unacceptable
given the significant limitations
associated with using a sampling
approach for collecting data, including
data on AI/AN children who are in
foster care, adoption, and guardianship
programs. Under a sampling approach,
ACF would be unable to report reliable
data responsive to the Annual Outcomes
Report to Congress, the Report to
Congress on the Social and Economic
Conditions of Native Americans, and
Adoption Incentives. Second, when
using a sample, small population
subgroups (e.g., children who spend
very long periods in foster care or
children who are adopted or run away)
might occur so rarely in the data such
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that analysis on these subgroups would
not be meaningful. Sampling error with
respect to AI/AN populations is already
a well-established issue affecting the
validity and meaningfulness of large
national surveys like the American
Community Survey. It is a wellestablished that, historically,
quantitative and qualitative data on AI/
AN populations, including children, has
been incomplete and unreliable
resulting in such populations being
among the most under-counted
populations groups in the United States.
4. In each of 18 states, there were
fewer than 10 Indian children in foster
care according to FY 2013 AFCARS
data. For states that have few Indian
children in foster care, ACF considered
alternatives to collecting ICWA-related
data through AFCARS, such as
providing an exemption from reporting,
or an alternative submission process or
that would be less burdensome. While
ACF recognizes collecting the proposed
ICWA-related data may be burdensome
for states with few Indian children in
foster care, the alternative approaches
are not feasible due to:
• The statutory requirement that
AFCARS data be comprehensive.
Section 479(c)(3) requires that AFCARS
provide ‘‘comprehensive national
information.’’ Exempting some states
from reporting the proposed ICWArelated data elements is not consistent
with this statutory mandate, and would
render it difficult to use this data for
development of national policies for
Indian children.
• The statutory requirement for
assessing penalties on AFCARS data.
Section 474(f) of the Act penalizes the
title IV–E agency for non-compliance
based on the total amount expended by
the state for administration of foster care
activities. The statute provides for
mandatory penalties, therefore, we are
not authorized to permit some states to
be subject to a penalty and not others.
In addition, allowing states an alternate
submission process would complicate
and/or prevent the assessment of
penalties as proposed in the February 9,
2015 NPRM in proposed § 1355.46,
including penalties for failure to submit
data files free of cross-file errors,
missing, invalid, or internally
inconsistent data, or tardy transactions
for each data element of applicable
records.
• State agencies that elect to have a
SACWIS provide some of the proposed
ICWA-related data elements as part of
the system requirements will already
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Jkt 238001
have systems designed to capture some
ICWA-related data.
Regulatory Flexibility Analysis
The Secretary certifies, under 5 U.S.C.
605(b), as enacted by the Regulatory
Flexibility Act (Pub. L. 96–354), that
this rule will not result in a significant
impact on a substantial number of small
entities. This proposed rule does not
affect small entities because it is
applicable only to state title IV–E
agencies.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
(Pub. L. 104–4) requires agencies to
prepare an assessment of anticipated
costs and benefits before proposing any
rule that may result in an annual
expenditure by state, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation). That
threshold level is currently
approximately $146 million. This
proposed rule does not impose any
mandates on state, local, or tribal
governments, or the private sector that
will result in an annual expenditure of
$100 million or more.
Congressional Review
This regulation is not a major rule as
defined in 5 U.S.C. 8.
Assessment of Federal Regulations and
Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act of 2000 (Pub. L. 106–58) requires
federal agencies to determine whether a
proposed policy or regulation may affect
family well-being. If the agency’s
determination is affirmative, then the
agency must prepare an impact
assessment addressing seven criteria
specified in the law. These proposed
regulations will not have an impact on
family well-being as defined in the law.
Executive Order 13132
Executive Order (E.O.) 13132 requires
that federal agencies consult with state
and local government officials in the
development of regulatory policies with
Federalism implications. Consistent
with E.O. 13132, the Department
specifically solicits comments from state
and local government officials on this
proposed rule.
Paperwork Reduction Act
Under the Paperwork Reduction Act
(44 U.S.C. 35, as amended) (PRA), all
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Departments are required to submit to
OMB for review and approval any
reporting or recordkeeping requirements
inherent in a proposed or final rule.
Information collection for AFCARS is
currently authorized under OMB
number 0970–0422. This supplemental
notice of proposed rulemaking contains
new information collection
requirements in proposed § 1355.43, the
out-of-home care data file that the
Department has submitted to OMB for
its review. This SNPRM proposes to
require state title IV–E agencies to
collect and report ICWA-related data
elements in the AFCARS out-of-home
care data file. PRA rules require that
ACF estimate the total burden created
by this SNPRM regardless of what
information is already available.
Comments to the February 2015
AFCARS NPRM: ACF understands from
comments on the February 2015
AFCARS NPRM that National
Association of Public Child Welfare
Administrators (NAPCWA) and the
states felt that our burden estimates
were low for determining the costs to
implement the proposed data elements
in AFCARS NPRM. However, very few
states provided estimates on the burden
hours or actual costs to implement the
AFCARS NPRM. The comments were
primarily about technical or
programmer costs to modify the
information system to extract the
proposed data elements. This did not
include the work associated with child
welfare agency workers gathering
information or being trained in data
entry. The estimates received to modify
a state information system to extract the
proposed AFCARS NPRM data elements
(approximately 100) ranged from 2,000
hours to 20,000 hours. Although ACF
appreciates that these states provided
this information on hourly and cost
burden estimates, ACF received too few
estimates to assist in calculating the
state costs for information systems and
other burden associated with this
SNPRM. Therefore, ACF provides
estimates using the best available
information.
Burden Estimate
ACF estimates the annual reporting
and record keeping burden hours of this
SNPRM to be 192,285 hours. ACF
estimates a one-time burden associated
with this SNPRM to be 85,072 hours.
The 52 respondents comprise 52 state
title IV–E agencies. The following are
estimates.
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Number of
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Collection
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Annual Record Keeping and Reporting Burden ............................................
One-Time Burden ..........................................................................................
In estimating the burden, ACF
included both one-time burden
estimates and annual burden estimates:
Annual burden: The annual burden to
the state title IV–E agency includes
activities such as: Searching data
sources and gathering information,
entering the information, extracting the
information for AFCARS reporting, and
transmitting the information to ACF.
One time burden: The one-time
burden for this SNPRM, includes
activities to: Develop or modify
procedures and systems to collect,
validate, and verify the information,
adjust existing ways to comply with
AFCARS requirements, and train
personnel on the new AFCARS
requirements of this SNPRM.
In developing the burden estimate,
ACF made several assumptions about
the data in state child welfare
information systems. First, ACF
assumed that state title IV–E agencies
may have access to most of the
information for proposed data elements.
ACF anticipated the information for
these data elements are contained in the
state title IV–E agency’s paper or
electronic case files. ACF estimated that
some of the data elements would only
be in paper case files or narrative fields,
thus not readily able to be extracted for
AFCARS reporting, and would require
revisions to the electronic case file so
that the information can be extracted for
AFCARS reporting. Some of these data
elements concern collecting information
on court findings and other activities
taking place during court processes.
ACF proposes for state title IV–E
agencies to report information in court
orders that the state title IV–E agency
would have ready access to or would
typically be in the state title IV–E
agency’s case files. ACF is seeking state
feedback as to whether the state agency
has these readily available in their
agency paper files or electronic files.
These are:
• A court order indicating that the
child’s parent or Indian custodian or the
Indian child’s tribe requested orally on
the record or in writing that the state
court transfer the case to the tribal court
of the Indian child’s tribe, in accordance
with 25 U.S.C. 1911(b), and, where
applicable, the reason(s) why the case
was not transferred.
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• A court order indicating the court
found by clear and convincing evidence,
in a court order, that continued custody
of the Indian child by the parent or
Indian custodian was likely to result in
serious emotional or physical damage to
the Indian child in accordance with 25
U.S.C. 1912(e).
• A court order indicating that the
court made a finding of good cause, and
the basis, if the placement preferences
for foster care were not followed, to
place the Indian child with someone
who is not listed in the placement
preferences of ICWA in 25 U.S.C.
1915(b) or the placement preferences of
the Indian child’s tribe in accordance
with 25 U.S.C. 1915(c); and
• If the placement preferences for
adoption were not followed, a court
finding of good cause, and the basis, on
a court order, to place the Indian child
with someone who is not listed in the
placement preferences of ICWA in 25
U.S.C. 1915(a) or the placement
preferences of the Indian child’s tribe.
Second, in order to determine the
number of cases for which state title IV–
E agencies will have to report the ICWArelated data elements, ACF estimated
the out-of-home care reporting
population using the most recent FY
2014 AFCARS data available submitted
by state title IV–E agencies: 415,129
children were in foster care on
September 30, 2014 and 264,746
children entered foster care during FY
2014. The state title IV–E agency will be
required to report approximately 3 data
elements for all children who are in the
out-of-home care reporting population
and approximately 24 data elements on
children to whom the ICWA-related
data elements apply.
To estimate the number of children to
whom the ICWA-related data elements
apply, ACF used as a proxy those
children whose race was reported as
‘‘American Indian or Alaska Native’’ in
the most recent FY 2014 AFCARS data
available. While not every child of this
reported race category will be covered
under ICWA, it is likely that the state
title IV–E agency will have to explore
whether these children may be Indian
children as defined in ICWA. Thus,
5,960 children who entered foster care
during FY 2014 were reported as
American Indian or Alaska Native.
PO 00000
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Number of
responses
per
respondent
Average
burden per year
per
respondent
2
1
3,697.79
1,636
20297
Total burden
hours
192,285
85,072
Third, ACF assumed that there will be
one-time costs to implement the
requirements of this SNPRM and annual
costs to collect, input, and report the
information. The annual costs involve
searching data, gathering the
information that meet the requirements
of this SNPRM, entering the
information, and extracting and
submitting the information for AFCARS
reporting. The one-time costs mostly
involve modifying procedures and
systems to collect, validate and verify
information, adjusting existing ways to
comply with AFCARS; and training
personnel on the new AFCARS
requirements of this SNPRM.
Fourth, ACF assumed that the onetime burden is similar to how long it
would take to make revisions to a
SACWIS to be able to meet the
requirements of the SNPRM. Currently,
36 states have an operational SACWIS.
ACF understands that 24 states opted to
collect at least a minimal amount of
ICWA-related information per the
SACWIS Assessment Review Guide, but
also recognize that most state title IV–
E agencies will require some revisions
to meet the requirements of this
SNPRM. As more states build SACWIS,
ACF anticipates it will lead to more
efficiency in reporting and less cost and
burden to the state agencies.
Finally, after reviewing the 2014
Bureau of Labor Statistics data to help
determine the costs of the SNPRM, ACF
assumed that there will be a mix of staff
working to meet both the one-time and
annual requirements of this SNPRM
with the job role of Management
Analyst (13–1111) with a mean hourly
wage estimate of $43.68 and those with
the job role of Social and Community
Service Managers (11–9151) with a
mean hourly wage estimate of $32.56.
Thus, ACF averaged the two wages to
come to an average labor rate of $38.12.
In order to ensure we took into account
overhead costs associated with these
labor costs, ACF doubled this rate.
Annual Recordkeeping and Reporting
Burden Estimate: ACF estimated the
annual recordkeeping and reporting
burden by multiplying the time spent on
the recordkeeping and reporting
activities described below by the
number of children in foster care to
arrive at the total recordkeeping hours.
These estimates represent the work
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associated with the state title IV–E
agency searching data sources and
gathering information, entering the
information, extracting the information
for AFCARS reporting, and transmitting
the information to ACF. These estimates
are based on our assumptions, described
above, on how much of the information
proposed in this SNPRM state title IV–
E agencies currently have in their
electronic or paper case files or
information system or have ready access
to, while taking into account that some
of the elements may require more effort
to gather the information if it is not
readily accessible.
• Gathering the information for and
entering the ICWA-related data elements
that apply to all children who enter
foster care on average will take
approximately 132,373 annual burden
hours. (0.5 hours × 264,746 children
who entered foster care = 132,373
annual burden hours for all children in
the out-of-home care reporting
population)
• Gathering the information for and
entering the ICWA-related data elements
that apply to children in foster care who
are covered by ICWA, on average will
take 59,600 annual burden hours. (10
hours × 5,960 children who enter foster
care with a race reported as American
Indian or Alaska Native = 59,600 annual
burden hours for children in the out-ofhome care reporting population who are
covered by ICWA). ACF estimated that
it would take a state title IV–E agency
on average 10 hours annually to gather
and input the ICWA-related data
elements that apply to children in foster
care who are covered by ICWA. ACF
estimated this by assuming that a state
title IV–E agency would be gathering
and inputting information for
approximately 14 of the proposed data
elements for an average foster care
episode, if the child is not transferred
and there is no TPR or adoption. In
cases where the child is transferred,
ACF estimated that the burden would
decrease because the agency would have
fewer data elements to complete and the
burden would increase in cases where
there is a TPR and the child is adopted
because there would be more data
elements that the agency would have to
complete.
• Extracting and submitting the
information to ACF for AFCARS
reporting on average will take 6 annual
burden hours per state title IV–E agency.
Nationally, the hour burden for all 52
state title IV–E agencies would be 312
(6 hours × 52 states = 312). ACF took
into account the number of data
elements proposed in this SNPRM when
estimating the reporting burden.
ACF added the bullets above and
estimate the number of annual
recordkeeping and reporting burden
hours that workers will spend on ICWArelated AFCARS requirements in the
out-of-home care reporting population
annually will be 192,285 hours (132,373
+ 59,600 + 312 = 192,285). Dividing this
annual figure by the 52 state title IV–E
agencies, ACF arrived at approximately
3,698 average burden hours per
respondent per year for the ICWArelated information in the AFCARS outof-home care data file. (192,285 ÷ 52
title IV–E agencies = 3,697.79 average
burden hours per respondent per year.)
One-Time Burden Estimate: ACF
estimated the one-time burden by
adding up the time spent on the
activities described below and
multiplying it by the 52 state title IV–
E agencies to arrive at the one-time
burden hours. The one-time burden
estimates represent the work associated
with the activities described below. As
stated above, ACF came to these
estimates by using average estimates for
revising a SACWIS, which is the best
information available. It is also
important to note that states will have
the option of updating their systems in
a streamlined manner since ACF plans
to issue the final rules for new AFCARS
regulations and for child welfare
information systems.
• Modifying procedures and systems
(including developing or acquiring
technology) to collect, validate, verify,
process, and report the information to
ACF on average will take approximately
130 burden hours.
• Adjustments to the existing ways to
comply with AFCARS, developing
technology and systems to collect and
process data on average will take
approximately 200 burden hours.
• The administrative tasks associated
with training personnel on the new
AFCARS requirements of this SNPRM
which include reviewing instructions,
including training development and
Average
hourly labor
rate + overhead
Hours
Total One-Time Burden .......................................................................
Total Annual recordkeeping and reporting burden ..............................
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85,072
192,285
Fmt 4702
Sfmt 4702
$76.24
76.24
manuals on average will take
approximately 30 burden hours.
• Training personnel on the new
AFCARS requirements of this SNPRM
on average will take approximately
1,276 burden hours. ACF arrived at this
estimate by dividing the number of
children in foster care on September 30,
2014 (415,129) by an estimated average
caseload of 25 cases per worker to arrive
at an estimate of 16,605 workers to be
trained. ACF divided this number
(16,605) by 52 to account for average
workers per state title IV–E agency, and
arrived at 319 workers. ACF multiplied
the workers (319) by the number of
estimated hours to complete training (4
hours) to arrive at 1,276 burden hours
to train personnel per state title IV–E
agency on the new AFCARS
requirements. ACF added the burden
hours above (1,636 hours) and
multiplied by 52 state title IV–E
agencies, which results in a one-time
burden of 85,072 hours (1,636 × 52 =
85,072 one-time burden hours).
Total Burden Cost
ACF used a total cost and burden
hour estimates to provide additional
detail on projected average cost for each
state title IV–E agency implementing the
changes described in this SNPRM. Once
the burden hours were determined, ACF
developed an estimate of the associated
cost for state title IV–E agencies to
conduct these activities, as applicable.
Based on our assumptions above, ACF
used an average labor rate of $38.12 and
doubled this rate to account for
overhead costs ($76.24). Based on these
rates, ACF estimated the cost for onetime burden to be $6,485,889.28 (85,072
one-time hours × $76.24 hourly cost/
overhead = $6,485,889.28) and ACF
estimated the cost for annual burden to
be $14,659,808.40 (192,285 annual
hours × $76.24 hourly cost =
$14,659,808.40). Dividing these costs by
52 state title IV–E agencies, ACF
estimated the average cost per state title
IV–E agency to be $124,728.64 one-time
and $281,919.39 annually. Federal
reimbursement under title IV–E will be
available for a portion of the costs that
title IV–E agencies will incur as a result
of the revisions proposed in this rule,
depending on each agency’s cost
allocation plan, information system, and
other factors.
Total cost
nationwide
Number of
respondents
$6,485,889.28
14,659,808.40
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Net average
cost per
respondent
$124,728.64 One-Time.
281,919.39 Annually.
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In the above estimates, ACF
acknowledges: (1) ACF has used average
figures for state title IV–E agencies of
very different sizes and of which, some
states may have larger populations of
tribal children served than other states,
(2) these are rough estimates of the
burden because state title IV–E agencies
have not been required previously to
report ICWA-related information in
AFCARS, and (3) as described, ACF has
limited information to use in making
these estimates. ACF welcomes
comments on these factors and all
others in this section.
ACF will consider comments by the
public on this proposed collection of
information in the following areas:
1. Evaluating whether the proposed
collection is necessary for the proper
performance of the functions of ACF,
including whether the information will
have practical utility;
2. Evaluating whether the proposed
collection is sufficient to assess and
serve the unique needs of AI/AN
children under the placement and care
of title IV–E agencies;
3. Evaluating the accuracy of ACF’s
estimate of the burden of the proposed
collection of information, including the
validity of the methodology and
assumptions used;
4. Enhancing the quality, usefulness,
and clarity of the information to be
collected; and
5. Minimizing the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technology, e.g., permitting electronic
submission of responses.
OMB is required to make a decision
concerning the collection of information
contained in these proposed regulations
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
is best assured of having its full effect
if OMB receives it within 30 days of
publication. This does not affect the
deadline for the public to comment to
the Department on the proposed
regulations. Written comments to OMB
for the proposed information collection
should be sent directly to the following:
Office of Management and Budget,
either by fax to 202–395–6974 or by
email to OIRA_submission@
omb.eop.gov. Please mark faxes and
emails to the attention of the desk
officer for ACF.
VII. Tribal Consultation Statement
As we stated in section IV of this
SNPRM, we held one Tribal
consultation session via a
teleconference call on May 1, 2015 and
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we did not receive suggestions from
tribal representatives during the call. A
few tribal representatives indicated that
they would comment on the data
elements through the SNPRM when it is
issued.
We also stated in section IV of this
SNPRM that we analyzed comments to
the Feb. 2015 AFCARS NPRM that
spoke to ICWA-related data elements to
help inform this SNPRM. We received
45 comments that spoke to including
new data elements in AFCARS related
to ICWA; a majority of which were from
tribes/tribal organizations. The
commenters recommended data
elements that provide basic information
about the applicability of ICWA for
children in out-of-home care, including:
Identification of American Indian and
Alaskan Native children and their
family structure, tribal notification and
intervention in state court proceedings,
the relationship of the foster parents and
other providers to the child, decisions to
place a child in out-of-home care
(including data on active efforts and
continued custody), whether a
placement was licensed by an Indian
tribe, whether the placement
preferences in ICWA were followed, and
termination of parental rights (both
voluntary and involuntary).
List of Subjects in 45 CFR Part 1355
Adoption and foster care, Child
welfare, Grant programs—social
programs.
(Catalog of Federal Domestic Assistance
Program Number 93.658, Foster Care
Maintenance; 93.659, Adoption Assistance;
93.645, Child Welfare Services—State
Grants).
Mark H. Greenberg,
Acting Assistant Secretary for Children and
Families.
Approved: February 17, 2016.
Sylvia M. Burwell,
Secretary.
For the reasons set forth in the
preamble, 45 CFR part 1355 as proposed
to be amended on February 9, 2015 (80
FR 7132), is proposed to be further
amended as follows:
PART 1355—GENERAL
1. The authority citation for part 1355
continues to read as follows:
■
Authority: 42 U.S.C. 620 et seq., 42 U.S.C.
670 et seq.; 42 U.S.C. 1302.
2. Amend § 1355.43 by adding
paragraph (i) to read as follows:
■
§ 1355.43 Out-of-home care data file
elements.
*
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20299
(i) Data elements related to the Indian
Child Welfare Act (ICWA)—(1)
Definitions. Unless otherwise specified,
the following terms as they appear in
this paragraph (i) are defined as follows:
Child custody proceeding has the
same meaning as in 25 U.S.C. 1903(1).
Extended family member has the
same meaning as in 25 U.S.C. 1903(2).
Indian has the same meaning as in 25
U.S.C. 1903(3).
Indian child has the same meaning as
in 25 U.S.C. 1903(4).
Indian child’s tribe has the same
meaning as in 25 U.S.C. 1903(5).
Indian custodian has the same
meaning as in 25 U.S.C. 1903(6).
Indian organization has the same
meaning as in 25 U.S.C. 1903(7).
Indian tribe has the same meaning as
in 25 U.S.C. 1903(8).
Parent has the same meaning as in 25
U.S.C. 1903(9).
Reservation has the same meaning as
in 25 U.S.C. 1903(10).
Tribal court has the same meaning as
in 25 U.S.C. 1903(12).
(2) For all children in the out-of-home
care reporting population per
§ 1355.41(a), the state title IV–E agency
must complete the data elements in
paragraphs (i)(3) through (5) of this
section. If the state title IV–E agency
responds with ‘‘yes’’ to the data
elements in paragraph (i)(4) or (5) of this
section, then the agency must complete
the remaining applicable paragraphs
(i)(6) through (29) of this section.
(3) Identifying an ‘‘Indian Child’’
under the Indian Child Welfare Act.
Indicate whether the state title IV–E
agency researched whether there is a
reason to know that the child is an
Indian child under ICWA in each
paragraph (i)(3)(i) through (viii) of this
section.
(i) Indicate whether the state agency
inquired with the child’s biological or
adoptive mother. Indicate ‘‘yes,’’ ‘‘no’’
or ‘‘the biological or adoptive mother is
deceased.’’
(ii) Indicate whether the biological or
adoptive mother is a member of an
Indian tribe. Indicate ‘‘yes,’’ ‘‘no’’ or
‘‘unknown.’’
(iii) Indicate whether the state agency
inquired with the child’s biological or
adoptive father. Indicate ‘‘yes,’’ ‘‘no,’’ or
‘‘the biological or adoptive father is
deceased.’’
(iv) Indicate whether the biological or
adoptive father is a member of an Indian
tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or
‘‘unknown.’’
(v) Indicate whether the state agency
inquired with the child’s Indian
custodian, if the child has one. Indicate
‘‘yes,’’ or ‘‘no’’ or ‘‘child does not have
an Indian custodian.’’
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(vi) Indicate whether the state agency
inquired with the child who is the
subject of the proceeding. Indicate ‘‘yes’’
or ‘‘no.’’
(vii) Indicate whether the child is a
member of or eligible for membership in
an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or
‘‘unknown.’’
(viii) Indicate whether the domicile or
residence of the child, parent, or the
Indian custodian is known by the
agency to be, or is shown to be, on an
Indian reservation. Indicate ‘‘yes’’ or
‘‘no.’’
(4) Application of ICWA. Indicate
whether the state title IV–E agency
knows or has reason to know that the
child is an Indian child as defined by
ICWA. Indicate ‘‘yes’’ or ‘‘no.’’ If the
state title IV–E agency indicated ‘‘yes,’’
the state title IV–E agency must
complete the data elements in
paragraphs (i)(4)(i) and (ii) of this
section. If the state title IV–E agency
indicated ‘‘no,’’ the state title IV–E
agency must leave the data elements in
paragraphs (i)(4)(i) and (ii) of this
section blank.
(i) Indicate the date that the state title
IV–E agency discovered the information
that indicates that the child is or may be
an Indian child.
(ii) Indicate the name(s) of all
federally recognized Indian tribe(s) that
may potentially be the Indian child’s
tribe(s).
(5) Indicate whether a court order
indicates that the court found that
ICWA applies. Indicate ‘‘yes, ICWA
applies,’’ ‘‘no, ICWA does not apply,’’ or
‘‘no court finding.’’ If the state title IV–
E agency indicated ‘‘yes, ICWA
applies,’’ the state title IV–E agency
must complete paragraphs (i)(5)(i) and
(ii) of this section. If the state title IV–
E agency indicated ‘‘no, ICWA does not
apply,’’ the state title IV–E agency must
complete the data element in paragraph
(i)(5)(i) of this section and leave the data
element in paragraph (i)(5)(ii) of this
section blank. If the state title IV–E
agency indicated ‘‘no court finding,’’ the
state title IV–E agency must leave the
data elements in paragraphs (i)(5)(i) and
(ii) of this section blank.
(i) Indicate the date of the court
finding.
(ii) Indicate the name of the Indian
tribe(s) that the court found is the
Indian child’s tribe, if listed on the court
order. If a name is not listed on the
court order, the state title IV–E agency
must indicate ‘‘no name listed.’’
(6) Transfer to tribal court. Indicate
whether there is a court order that
indicates that the Indian child’s parent,
Indian custodian, or Indian child’s tribe
requested, orally on the record or in
writing, that the state court transfer the
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case to the tribal court of the Indian
child’s tribe, in accordance with 25
U.S.C. 1911(b), at any point during the
report period. Indicate ‘‘yes’’ or ‘‘no.’’ If
the state title IV–E agency indicated
‘‘yes,’’ then the state title IV–E agency
must complete the data element in
paragraph (i)(7) of this section. If the
state title IV–E agency indicated ‘‘no,’’
the state title IV–E agency must leave
the data element in paragraph (i)(7) of
this section blank.
(7) If the state court denied the
request to transfer the case to tribal
court, indicate whether there is a court
order that indicates the reason(s) why
the case was not transferred to the tribal
court. Indicate ‘‘yes’’ or ‘‘no.’’ If the title
IV–E agency indicated ‘‘yes,’’ then the
title IV–E agency must indicate whether
each reason in each paragraphs (i)(7)(i)
through (iii) of this section is in the
court order by indicating ‘‘yes’’ or ‘‘no.’’
If the state title IV–E agency indicates
‘‘no,’’ the title IV–E agency must leave
the data elements in paragraphs (i)(7)(i)
through (iii) of this section blank.
(i) Either of the parents objected to
transferring the case to the tribal court.
(ii) The tribal court declined the
transfer to the tribal court.
(iii) The state court found good cause
not to transfer the case to the tribal
court.
(8) Notification. (i) Indicate whether
the Indian child’s parent or Indian
custodian was given legal notice more
than 10 days prior to of the first child
custody proceeding in accordance with
25 U.S.C. 1912(a). Indicate ‘‘yes’’ or
‘‘no.’’
(ii) Indicate whether the Indian
child’s tribe(s) was given legal notice
more than 10 days prior to the first child
custody proceeding in accordance with
25 U.S.C. 1912(a). Indicate ‘‘yes’’, ‘‘no’’
or ‘‘the child’s Indian tribe is
unknown.’’
(9) Indicate the name(s) of the Indian
tribe(s) that were sent notice for a child
custody proceeding as required in ICWA
at 25 U.S.C. 1912(a).
(10) If the tribe(s) requested additional
information, indicate whether the state
title IV–E agency replied with the
additional information that the Indian
tribe(s) requested. If the tribe did not
request additional information, indicate
‘‘does not apply.’’ Otherwise, indicate
‘‘yes’’ or ‘‘no.’’
(11) Active efforts to prevent removal
and reunify with Indian family. Indicate
the date that the state title IV–E agency
began making active efforts to prevent
the breakup of the Indian family for the
most recent removal reported in
paragraph (d) of this section of the
Indian child in accordance with 25
U.S.C. 1912(d).
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(12) Indicate whether the court found,
in a court order, that the state title IV–
E agency made active efforts to prevent
the breakup of the Indian family for the
most recent removal reported in
paragraph (d) of this section and that
these efforts were unsuccessful in
accordance with 25 U.S.C. 1912(d).
Indicate ‘‘yes’’ or ‘‘no.’’
(13) Indicate the active efforts that the
state title IV–E agency made to prevent
the breakup of the Indian family in
accordance with 25 U.S.C. 1912(d).
Indicate ‘‘yes’’ or ‘‘no’’ for each
paragraph (i)(13)(i) through (xi) and
(xiii) of this section. Indicate ‘‘yes,’’
‘‘no’’ or ‘‘N/A’’ for paragraph (i)(13)(xii)
of this section.
(i) Identify appropriate services to
help the parent.
(ii) Actively assist the parent to obtain
services.
(iii) Invite representatives of the
Indian child’s tribe to participate in the
proceedings.
(iv) Complete a comprehensive
assessment of the family.
(v) Focus on safe reunification as the
goal for the Indian child.
(vi) Consult with extended family
members to provide support for the
Indian child.
(vii) Arrange for family interaction in
most natural setting safely possible.
(viii) Monitor progress and
participation in services to reunite the
Indian family.
(ix) Consider alternative ways of
addressing the needs of the Indian
child’s parent and extended family if
services do not exist or are not available.
(x) Support regular visits and trial
home visits consistent with ensuring the
Indian child’s safety.
(xi) Conduct or cause to be conducted
a diligent search for the Indian child’s
extended family members for assistance
and possible placement.
(xii) Keep siblings together.
(xiii) Other.
(14) Removals. Indicate ‘‘yes’’ or ‘‘no’’
for paragraphs (i)(14)(i) and (ii) of this
section: (i) Indicate whether the court
found by clear and convincing evidence,
in a court order, that continued custody
of the Indian child by the parent or
Indian custodian was likely to result in
serious emotional or physical damage to
the Indian child in accordance with 25
U.S.C. 1912(e). (ii) Indicate whether the
court finding reported for this paragraph
(i)(14), indicates that the state court’s
finding was supported by the testimony
of a qualified expert witness in
accordance with 25 U.S.C. 1912(e).
(15) Foster care and pre-adoptive
placement preferences. Indicate which
foster care or pre-adoptive placements
that meet the placement preferences of
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ICWA in 25 U.S.C. 1915(b) were
available to accept placement. Indicate
in each paragraph (i)(15)(i) through (v)
of this section ‘‘yes’’ or ‘‘no.’’
(i) A member of the Indian child’s
extended family.
(ii) A foster home licensed, approved,
or specified by the Indian child’s tribe.
(iii) An Indian foster home licensed or
approved by an authorized non-Indian
licensing authority.
(iv) 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.
(v) A placement that complies with
the order of preference for foster care or
pre-adoptive placements established by
an Indian child’s tribe, in accordance
with 25 U.S.C. 1915(c).
(16) For the Indian child’s current
foster care or pre-adoptive placement as
of the end of the report period per
paragraph (e) of this section, indicate
whether the placement meets the
placement preferences of ICWA in 25
U.S.C. 1915(b) by indicating with whom
the Indian child is placed. Indicate ‘‘a
member of the Indian child’s extended
family,’’ ‘‘a foster home licensed,
approved, or specified by the Indian
child’s tribe,’’ ‘‘an Indian foster home
licensed or approved by an authorized
non-Indian licensing authority,’’ ‘‘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,’’ ‘‘a placement that complies
with the order of preference for foster
care or pre-adoptive placements
established by an Indian child’s tribe, in
accordance with 25 U.S.C. 1915(c)’’ or
‘‘none.’’
(17) If the placement preferences for
foster care or pre-adoptive placements
were not followed, indicate whether the
court made a finding of good cause, on
a court order, to place the Indian child
with someone who is not listed in the
placement preferences of ICWA in 25
U.S.C. 1915(b) or the placement
preferences of the Indian child’s tribe.
Indicate ‘‘yes’’ or ‘‘no.’’ If the state title
IV–E agency indicated ‘‘yes,’’ then the
state title IV–E agency must complete
the data element in paragraph (i)(18) of
this section. If the state title IV–E agency
indicated ‘‘no,’’ then the state title IV–
E agency must leave the data element in
paragraph (i)(18) of this section blank.
(18) Indicate the state court’s basis for
the finding of good cause, as indicated
on the court order, by indicating ‘‘yes’’
or ‘‘no’’ in each paragraph (i)(18)(i)
through (v) of this section.
(i) Request of the biological parents.
(ii) Request of the Indian child.
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(iii) The unavailability of a suitable
placement that meets the placement
preferences in ICWA at 25 U.S.C. 1915.
(iv) The extraordinary physical or
emotional needs of the Indian child.
(v) Other.
(19) Termination of parental rights.
Indicate whether the termination of
parental or Indian custodian rights was
voluntary or involuntary. Indicate
‘‘voluntary’’ or ‘‘involuntary.’’ If the
state title IV–E agency indicated
‘‘voluntary’’, the state title IV–E agency
must leave the data elements in
paragraphs (i)(20) and (21) of this
section blank. If the state title IV–E
agency indicated ‘‘involuntary’’, the
state title IV–E agency must leave the
data elements in paragraphs (i)(22)
through (24) of this section blank.
(20) Indicate whether, prior to
ordering an involuntary termination of
parental rights, the state court found
beyond a reasonable doubt, in a court
order, that continued custody of the
Indian child by the parent or Indian
custodian is likely to result in serious
emotional or physical damage to the
Indian child in accordance with 25
U.S.C. 1912(f). Indicate ‘‘yes’’ or ‘‘no.’’
(21) Indicate whether the court
finding reported for paragraph (i)(20) of
this section, indicates that the state
court’s finding was supported by the
testimony of a qualified expert witness
in accordance with 25 U.S.C. 1912(f).
Indicate ‘‘yes’’ or ‘‘no.’’
(22) If voluntary, indicate whether
there is a court order that indicates that
the voluntary consent to termination for
the biological or adoptive mother was
made in writing and recorded in the
presence of a judge in accordance with
25 U.S.C. 1913. Indicate ‘‘yes,’’ ‘‘no,’’ or
‘‘does not apply’’ if the mother is
deceased.
(23) If voluntary, indicate whether
there is a court order that indicates that
the voluntary consent to termination for
the biological or adoptive father was
made in writing and recorded in the
presence of a judge in accordance with
25 U.S.C. 1913. Indicate ‘‘yes,’’ ‘‘no’’ or
‘‘does not apply’’ if the father is
deceased.
(24) If voluntary, indicate whether
there is a court order that indicates that
the voluntary consent to termination for
the Indian custodian was made in
writing and recorded in the presence of
a judge in accordance with 25 U.S.C.
1913. Indicate ‘‘yes,’’ ‘‘no’’ or ‘‘does not
apply’’ if there is no Indian custodian.
(25) Adoption proceedings. Indicate
whether the Indian child exited foster
care to adoption per paragraph (g) of
this section. Indicate ‘‘yes’’ or ‘‘no.’’ If
the state title IV–E agency indicated
‘‘yes,’’ the state title IV–E agency must
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20301
complete the data element in paragraphs
(i)(26) through (29) of this section. If the
state title IV–E agency indicated ‘‘no,’’
the state title IV–E agency must leave
the data element in paragraphs (i)(26)
through (29) of this section blank.
(26) Indicate which adoptive
placements that meet the placement
preferences in ICWA at 25 U.S.C.
1915(a) were willing to accept
placement. Indicate in each paragraphs
(i)(26)(i) through (iv) of this section
‘‘yes’’ or ‘‘no.’’
(i) A member of the Indian child’s
extended family.
(ii) Other members of the Indian
child’s tribe.
(iii) Other Indian families.
(iv) A placement that complies with
the order of preference for foster care or
pre-adoptive placements established by
an Indian child’s tribe, in accordance
with 25 U.S.C. 1915(c).
(27) Indicate whether the placement
reported in paragraph (h) of this section
meets the placement preferences of
ICWA in 25 U.S.C. 1915(a) by indicating
with whom the Indian child is placed.
Indicate ‘‘a member of the Indian child’s
extended family,’’ ‘‘other members of
the Indian child’s tribe,’’ ‘‘other Indian
families,’’ ‘‘a placement that complies
with the order of preference for foster
care or pre-adoptive placements
established by an Indian child’s tribe, in
accordance with 25 U.S.C. 1915(c),’’ or
‘‘none.’’
(28) If the placement preferences for
adoption were not followed, indicate
whether the court made a finding of
good cause, on a court order, to place
the Indian child with someone who is
not listed in the placement preferences
of ICWA in 25 U.S.C. 1915(a) or the
placement preferences of the Indian
child’s tribe. Indicate ‘‘yes’’ or ‘‘no.’’ If
the state title IV–E agency indicated
‘‘yes,’’ then the state title IV–E agency
must complete the data element in
paragraph (i)(29) of this section. If the
state title IV–E agency indicated ‘‘no,’’
then the state title IV–E agency must
leave the data element in paragraph
(i)(29) of this section blank.
(29) Indicate whether there is a court
order that indicates the court’s basis for
the finding of good cause, by indicating
‘‘yes’’ or ‘‘no’’ in each paragraph
(i)(29)(i) through (v) of this section.
(i) Request of the biological parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable
placement that meets the placement
preferences in ICWA at 25 U.S.C. 1915.
(iv) The extraordinary physical or
emotional needs of the Indian child.
(v) Other.
[FR Doc. 2016–07920 Filed 4–5–16; 8:45 am]
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]]>Agencies
[Federal Register Volume 81, Number 67 (Thursday, April 7, 2016)]
[Proposed Rules]
[Pages 20283-20301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-07920]
=======================================================================
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1355
RIN 0970-AC47
Adoption and Foster Care Analysis and Reporting System
AGENCY: Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), Department of Health
and Human Services (HHS).
ACTION: Supplemental notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: On February 9, 2015, the Administration for Children and
Families (ACF) published a Notice of Proposed Rulemaking (NPRM) to
amend the Adoption and Foster Care Analysis and Reporting System
(AFCARS) regulations to modify the requirements for title IV-E agencies
to collect and report data to ACF on children in out-of-home care and
who were adopted or in a legal guardianship with a title IV-E
subsidized adoption or guardianship agreement. In this supplemental
notice of proposed rulemaking (SNPRM), ACF proposes to require that
state title IV-E agencies collect and report additional data elements
related to the Indian Child Welfare Act of 1978 (ICWA) in the AFCARS.
ACF will consider the public comments on this SNPRM as well as comments
already received on the February 9, 2015 NPRM and issue one final
AFCARS rule.
DATES: Submit written or electronic comments on this Supplemental
Notice of Proposed Rulemaking on or before May 9, 2016.
ADDRESSES: We encourage the public to submit comments electronically to
ensure they are received in a timely manner. Please be sure to include
identifying information on any correspondence. To download an
electronic version of the proposed rule, please go to https://www.regulations.gov/ gov/. You may submit comments, identified by docket
number, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Written comments may be submitted to Kathleen McHugh, United
States Department of Health and Human Services, Administration for
Children and Families, Director, Policy Division, 330 C Street SW.,
Washington, DC 20024.
Please be aware that mail sent in response to this SNPRM
may take an additional 3 to 4 days to process due to security screening
of mail.
Hand Delivery/Courier: If you choose to use an express,
overnight, or other special delivery method, please ensure that the
carrier will deliver to the above address Monday through Friday during
the hours of 9 a.m. to 5 p.m., excluding holidays.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
www.regulations.gov, including any personal information provided. For
detailed instructions on submitting comments, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
Comments that concern information collection requirements must be
sent to the Office of Management and Budget (OMB) at the address listed
in the Paperwork Reduction Act (PRA) section of this preamble. A copy
of these comments also may be sent to the Department representative
listed above.
FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, United States
Department of Health and Human Services, Administration for Children
and Families, Director, Policy Division. To contact Kathleen McHugh,
please use the following email address: cbcomments@acf.hhs.gov. Deaf
and hearing impaired individuals may call the Federal Dual Party Relay
Service at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Time.
SUPPLEMENTARY INFORMATION:
Contents
I. Background
II. Statutory Authority
III. Public Participation
IV. Consultation and Regulation Development
V. Section-by-Section Discussion of the SNPRM
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement
I. Background
Adoption and Foster Care Automated Reporting System (AFCARS)
Section 479 of the Social Security Act (the Act) requires that ACF
regulate a national data collection system that provides comprehensive
demographic and case-specific information on all children who are in
foster care or adopted with title IV-E agency involvement (42 U.S.C.
679). Historically, the broad underlying legislative directive has
always been the establishment and administration of a system for ``the
collection of data with respect to adoption and foster care in the
United States.'' Such data collection system is the Adoption and Foster
Care Automated Reporting System (AFCARS).
The AFCARS statute with regard to data collection systems requires
the following: (1) The data collection system developed and implemented
shall avoid unnecessary diversion of resources from adoption and foster
care agencies; (2) the data collection system shall assure that any
data that is collected is reliable and consistent over time and among
jurisdictions through the use of uniform definitions and methodologies;
(3) the data collection system shall provide: Comprehensive national
information with respect to the demographic characteristics of adoptive
and foster children and their biological and adoptive foster parents;
the status of the foster care population, the number and
characteristics of children place in and removed from foster care;
children adopted or for whom adoptions have been terminated; children
placed in foster care outside the state which has placement and care
responsibility; the extent and nature of assistance provided by
federal, state, and local adoption and foster care programs; the
characteristics of the children with respect to whom such assistance is
provided; and the annual number of children in foster care who are
identified as sex trafficking victims including those who were victims
before entering foster care; and those who were victims while in foster
care; and (4) the data collection system will utilize appropriate
requirements and incentives to ensure that the system
[[Page 20284]]
functions reliably throughout the United States.
ACF issued the AFCARS NPRM (80 FR 7132, hereafter referred to as
the February 2015 AFCARS NPRM) to amend the AFCARS regulations at 45
CFR 1355.40 and the appendices to part 1355. In it, ACF proposed to
modify the requirements for title IV-E agencies to collect and report
data to ACF on children in out-of-home care and who were adopted or in
a legal guardianship with a title IV-E subsidized adoption or
guardianship agreement. At the time the February 2015 AFCARS NPRM was
issued, ACF concluded that it did not have enforcement authority
regarding ICWA and, therefore, was not able to make the requested
changes or additions to the AFCARS data elements regarding ICWA.
However, in the time since publication of the February 2015 AFCARS
NPRM, ACF legal counsel re-examined the issue and determined it is
within ACF's existing authority to collect state-level ICWA-related
data on American Indian and Alaska Native (AI/AN) children in child
welfare systems pursuant to section 479 of the Social Security Act.
Such determination was informed by comments received on the February
2015 AFCARS NPRM as well as an extensive re-evaluation of the scope of
ACF's statutory and regulatory authority.
Indian Child Welfare Act
In 1970, President Nixon declared that termination, the then-
current federal policy to terminate Indian tribal governments, sell
tribal land, and move AI/AN peoples from ancestral lands to assimilate
them into `American' society, was wrong and should be replaced by
Indian self-determination which recognized the inherent retained right
of Indian nations to govern themselves. From that time, the federal
government began implementing new policies of Indian self-determination
under which tribal sovereignty and self-governance were fostered,
allowing tribes to operate programs once solely administered by the
federal government. It also increased federal support and benefits
available to tribes to strengthen capacity and self-sufficiency.
Against this backdrop, the Indian Child Welfare Act (ICWA) was
enacted in 1978 to address concerns over the consequences to Indian
children, Indian families, and Indian tribes of child welfare practices
that resulted in the separation of large numbers of Indian children
from their families and tribes. See 25 U.S.C. 1901 et seq. ICWA has
been characterized as embodying the ``gold standard'' for child welfare
policy and practice in the United States and establishes minimum
federal jurisdictional, procedural, and substantive standards intended
to achieve the purposes of protecting the rights of Indian children to
live with their families, to stabilize and foster continued tribal
existence, and to facilitate permanency for children, families, and
tribes.
However, ACF has never collected ICWA-related data. Using the data
elements proposed in the SNPRM, ACF proposes to collect ICWA-related
data on AI/AN children in child welfare systems for several uses in the
public interest including: To assess the current state of foster care
and adoption of Indian children under the Act, to develop future
national policies concerning ACF programs that affect Indian children
under the Act, and to meet federal trust obligations under established
federal policies.
ICWA was enacted by Congress in response to alarming numbers of AI/
AN children being removed from their families by public and private
child welfare agencies, most often being placed in non-Indian homes far
from their tribal communities. Congress found that, ``there is no
resource that is more vital to the continued existence and integrity of
Indian tribes than their children.'' (25 U.S.C. 1901 (3)) Accordingly,
through ICWA, Congress declared the policy of the United States is to
protect the best interests of Indian children, to promote the stability
and security of Indian tribes and families by establishing minimum
Federal standards for the removal of Indian children from their
families, and to place such children in foster or adoptive homes that
reflect the unique values of Indian cultures. Finally, Congress calls
for providing assistance to Indian tribes in the operation of child and
family service programs. (25 U.S.C. 1902) ICWA was enacted to protect
American Indian families and to give tribes a role in making child
welfare decisions for AI/AN children. AI/AN children are subject to
ICWA when they are unmarried persons under the age of 18 and are either
(a) a member of an Indian tribe or (b) are eligible for membership in
an Indian tribe and are the biological child of a member of an Indian
tribe. ICWA expressly requires, among other things, that: (1) A tribe
is notified when the state places an ``Indian child'' in foster care or
seeks to terminate parental rights on behalf of such a child, (2) a
tribe is given an opportunity to intervene in any state proceeding for
foster care placement and termination of parental rights to a child
subject to ICWA, and (3) that a preference be given to placing the
Indian child with extended family or tribal families.
Use of AFCARS Data
AFCARS is designed to collect uniform, reliable information from
title IV-B and title IV-E agencies on children who are under the
agencies' responsibility for placement, care, or supervision. AFCARS
was established to provide data that would assist in policy development
and program management. Although ICWA was passed more than 30 years
ago, it is unclear how well state agencies and courts have implemented
ICWA's requirements into practice. Even in states with large AI/AN
populations, there may be confusion regarding how and when to apply the
law, including providing notice to tribes and making active efforts to
prevent removal and reunite children with their Indian families as
required under ICWA. This is further complicated by the fact that there
is no comprehensive national data on the status of AI/AN children for
whom ICWA applies at any stage in the adoption or foster care system.
AFCARS data can bridge this gap.
Additional AFCARS data elements are proposed to enhance the type
and quality of information title IV-E agencies report to ACF. ACF's
proposals, embodied in this SNPRM, are motivated by the
Administration's vision of healthy, resilient, and thriving Indian
children and families as well as the continued vitality and integrity
of Indian tribes. More specifically, the proposals reflected in this
SNPRM manifest Department-wide priorities to affirmatively protect the
best interests of Indian children and to promote the stability and
security of Indian tribes, families, and children.
ACF proposes to collect data elements in AFCARS related to ICWA's
statutory standards for removal, foster care placement, and adoption
proceedings. More specifically, through this SNPRM, ACF will improve
the AFCARS data collection system to provide more comprehensive
demographic and case-specific information on all children, including
children subject to ICWA, who are in foster care or adopted with title
IV-E agency involvement. Additionally, ACF intends to use the data to:
1. Address the unique needs of AI/AN children in foster care or
adoption, and their families.
In 2005, the Government Accountability Office (GAO) issued a report
titled ``Indian Child Welfare Act: Existing Information on
Implementation Issues Could Be Used to Target Guidance and Assistance
to States''
[[Page 20285]]
(GAO-05-290). In addition to noting that no national data on children
subject to ICWA was available, GAO asserts that the extent to which
states and tribes work together to implement ICWA and title IV-E/IV-B
requirements affects outcomes for Indian children in state foster care
systems. The report also discusses how the Adoption and Safe Families
Act (Pub. L. 105-89) influences placement decisions and outcomes for
Indian children, noting the following: ``Decisions regarding the
placement of children subject to ICWA as they enter and leave foster
care can be influenced by how long it takes to determine whether a
child is subject to the law, the availability of American Indian foster
and adoptive homes, and the level of cooperation between states and
tribes. According to several child welfare officials, these factors,
which are unique to American Indian children, can play an important
role in placement decisions, including the characteristics of the
foster home in which the child will be placed, the number of placements
a child will have, and the duration of the stay.'' (GAO-05-290, p.3).
The proposed ICWA data will help address the unique needs of Indian
children in foster care or adoption and their families by clarifying
how the ICWA requirements and how title IV-E/IV-B requirements affect
placement of Indian children.
2. Assess the current state of adoption and foster care programs
and relevant trends that affect AI/AN families.
American Indian and Alaska Native children are over-represented in
child welfare systems at higher rates than any other racial or ethnic
group. In 2013, American Indian children were over-represented among
children in foster care by a factor of 2.4, compared to their
proportion of the population. From 2000 to 2013, the degree of over-
representation of AI/AN children substantially increased from 1.5 to
2.4, and the degree of disproportionality varies widely by state
(National Council of Juvenile and Family Court Judges, 2015). At this
time, there is very limited data available to help understand the
reasons for the varying degrees of disproportionality. Proposed ICWA-
related AFCARS data elements will shed light on the relationship
between implementing ICWA requirements and outcomes for AI/AN children.
In addition, the proposed data elements will provide additional
information to help identify the real or perceived barriers encountered
by states in identifying AI/AN children in their child welfare systems.
Finally, proposed ICWA-related AFCARS data elements will provide
currently unavailable information that will help to assess the extent
to which the fidelity of ICWA implementation influences permanent
placements for Indian children and the length of stay in out-of-home
care. The proposed ICWA data will also help to inform efforts to
compare program practices, processes, or outcomes between states and
over the course of time, which would allow the Children's Bureau to
identify trends and highlight and build upon strengths and best
practices.
3. Improve training and technical assistance to help states comply
with title IV-E, and title IV-B of the Social Security Act.
Through the Children's Bureau, ACF provides state title IV-E
agencies with technical assistance to help agencies implement federal
requirements and improve their child welfare programs (as authorized by
section 435 and 476 of the Social Security Act). Between federal fiscal
year (FFY) 2010 and FFY 2014, ACF received 31 requests for tailored
consultation from state agencies and title IV-B tribes (separately or
in collaboration) for assistance with examining or supporting ICWA
implementation. In response to these requests, ACF-supported technical
assistance providers delivered more than 3,700 hours of direct,
tailored consultation to state agencies and tribes related to ICWA.
In FFY 2015, 24 state title IV-E agencies participated in
discussions with ACF and its technical assistance providers about their
potential areas of need for capacity building and improvement. One
third of these agencies identified themselves as having ICWA
implementation related needs for technical assistance. Data related to
ICWA will assist ACF to improve training content, target subject areas,
and identify geographies in which training will be helpful.
4. Develop future national policies concerning its programs.
Additional proposed ICWA-related data will allow ACF and the
Children's Bureau to more effectively plan, coordinate, and lead AI/AN
programming across ACF operations, with other Departments such as the
Bureau of Indian Affairs (BIA) in the Department of the Interior, the
Department of Justice (DOJ), and throughout the federal government. By
collecting additional data, the federal government will also have a
more complete understanding of how state agencies interact with Indian
children and families as well as how many children subject to ICWA come
to the attention of state child welfare agencies nationwide. This
additional data will help align performance measures, build an evidence
base that informs policy and practice, and better ensure that federal
funds are being directed in a way that delivers significantly better
results for AI/AN families. This critical role aligns with the
research, evaluation, and technical assistance responsibilities of the
Children's Bureau.
5. Inform and expand partnerships across federal agencies that
invest in Indian families and that promote resilient, thriving tribal
communities through several initiatives.
AFCARS data on the wellbeing of AI/AN children will help multiple
federal agencies identify needs and gaps, expand best practices, and
shape new policy and technical assistance. Several of the current
interagency initiatives that will benefit include:
Generation Indigenous. On December 3, 2014, President
Obama launched Generation Indigenous (Gen-I), ``an initiative that
takes a comprehensive, culturally appropriate approach to help improve
the lives of, and opportunities for, Native youth.'' On July 9, 2015,
the Executive Office of the President, Office of Management and Budget,
issued Executive Memo M-15-17 identifying Native youth budget
priorities including ``services that keep families together. These
could be family assistance services, home improvement programs,
alternatives to incarceration, and employment support services.
Agencies should focus on programs that support the capacity building
and programmatic support necessary to implement ICWA.''
The Department of Justice Defending Childhood Initiative
and the Task Force on American Indian and Alaska Native Children
Exposed to Violence. The Task Force report recommended that ACF, BIA,
DOJ, and tribes develop a modernized unified data-collection system
designed to collect ICWA-related AFCARS data on all AI/AN children who
are placed into foster care by their agency.
HHS Secretary's Tribal Advisory Committee (STAC). In 2014,
the STAC specifically identified improved federal data collection on
ICWA as a priority need. In early 2015, the STAC identified AFCARS as a
vehicle for ICWA data elements. The STAC expressed their view that ACF
has a critical role in collecting important data, promoting effective
tribal/state collaborations, increasing state capacity to comply with
ICWA, and reversing the inequities and disproportionate representation
and poor outcomes for children that can occur when ICWA is not
followed. In order to assist the Administration in implementing ICWA
and protecting AI/
[[Page 20286]]
AN children and families, the STAC requested enhanced ``collection of
data elements related to key ICWA requirements in individual ICWA cases
and greater oversight of the title IV-B requirement for states to
consult with tribes on measures to comply with ICWA (STAC follow-up
letter to the Secretary, June, 30, 2015, pp 9-10).'' https://www.hhs.gov/about/agencies/iea/tribal-affairs/about-stac/#.
Interagency ICWA Working Group Projects, including the
Bureau of Indian Affairs initiative to update state guidance on ICWA
and promulgate ICWA regulations. The BIA Bureau of Indian Affairs
updated the Guidelines for State Courts and Agencies in Indian Child
Custody Proceedings (80 FR 10146, issued February 25, 2015, hereafter
referred to as the Guidelines) and has issued proposed regulations for
State Courts and Agencies in Indian Child Custody Proceedings (proposed
at 80 FR 14880, issued March 20, 2015) to help ensure Indian children
are not removed from their communities, cultures, and extended families
in conflict with ICWA's express mandates.
Consistent with the Administration's focus on Indian children, the
Department of the Interior, DOJ, and HHS engaged in extensive
interagency collaboration to promote compliance with ICWA and agreed to
continue to collaborate. This work involved collaborating on ICWA-
related regulations, including the BIA regulations and this SNPRM.
6. Implement Tribal sovereignty principles and Federal trust
responsibilities.
Improving AFCARS to inform ACF and other federal agencies is
consistent with ACF's implementation of government-to-government
principles of engagement with AI/AN tribes and respect for our trust
responsibilities. ACF's understanding of fundamental principles of
tribal sovereignty is reflected in both the Department's and ACF's
Tribal Consultation Policies which state:
``The special government-to-government relationship between the
Federal Government and Indian Tribes, established in 1787, is based
on the Constitution, and has been given form and substance by
numerous treaties, laws, Supreme Court decisions, and Executive
Orders, and reaffirms the right of Indian Tribes to self-government
and self-determination. Indian Tribes exercise inherent sovereign
powers over their citizens and territory. The U.S. shall continue to
work with Indian Tribes on a government-to-government basis to
address issues concerning Tribal self-government, Tribal trust
resources, Tribal treaties and other rights.''
``Tribal self-government has been demonstrated to improve and
perpetuate the government-to-government relationship and strengthen
Tribal control over Federal funding that it receives, and its
internal program management. Indian Tribes participation in the
development of public health and human services policy ensures
locally relevant and culturally appropriate approaches to public
issues.'' (Section 3, Department of Health and Human Services Tribal
Consultation Policy).
``Our Nation, under the law of the U.S. and in accordance with
treaties, statutes, Executive Orders, and judicial decisions, has
recognized the right of Indian tribes to self-government and self-
determination. Indian tribes exercise inherent sovereign powers over
their members and territory. The U.S. continues to work with Indian
tribes on a government-to-government basis to address issues
concerning tribal self-government, tribal trust resources, tribal
treaties, and other rights.'' (Section 4, ACF Tribal Consultation
Policy).
These principles are also reflected in ICWA through Congressional
recognition of ``the special relationship between the United States and
the Indian tribes and their members and the Federal responsibility to
Indian people.'' (25 U.S.C. 1901)
ACF announced its intent to publish a SNPRM in a Federal Register
document issued on April 2, 2015 (80 FR 17713). Section 479 of the
Social Security Act contains some express limits on the authority of
ACF to collect data including: Data collected under AFCARS must avoid
an unnecessary diversion of resources from agencies responsible for
adoption and foster care (section 479(c)(1) of the Act) and must assure
that any data that is collected is reliable and consistent over time
and among jurisdictions through the use of uniform definitions and
methodologies (section 479(c)(2) of the Act). With respect to the
requirement in section 479(c)(1) of the Act, ACF tailored the proposed
data elements to collect only the most essential information regarding
Indian children in foster care and children who have been adopted with
state title IV-E agency involvement. Most data elements will only be
required for children who are determined to be Indian children as
defined in ICWA. Furthermore, the statutory authority under section 479
of the Act is limited to data with respect to adoption and foster care.
ACF is not proposing to require tribal title IV-E agencies to collect
and report ICWA-related data elements in proposed paragraph (i) because
ICWA does not apply to placements by Indian tribes. The data elements
in Sec. 1355.43(i) are subject to the same compliance and penalty
requirements in Sec. Sec. 1355.45 and 1355.46, respectively, proposed
in the February 2015 AFCARS NPRM (80 FR 7187-7192 and 7220-7221).
II. Statutory Authority
Sections 479 and 474(f) of the Act provide HHS the authority to
require that title IV-E agencies maintain a data collection system
which provides comprehensive national information related to adopted
and foster children and requires that the Secretary of Health and Human
Services regulate a national data collection system to provide
comprehensive case level information and impose penalties for failure
to submit AFCARS data under certain circumstances. Section 1102 of the
Act instructs the Secretary to promulgate regulations necessary for the
effective administration of the functions for which she is responsible
under the Act.
III. Public Participation
ACF invites the public to comment on all aspects of the ICWA-
related data elements proposed in this SNPRM. In addition, ACF
specifically invites comment on which, if any, of the proposed data
elements the state title IV-E agencies currently collect. ACF will
review and consider all comments that are germane and received during
the comment period on this SNPRM as well as those previously submitted
in response to the February 2015 AFCARS NPRM, and issue one final rule
on AFCARS.
IV. Consultation and Regulation Development
To inform the development of the ICWA-related data elements
proposed in this SNPRM, ACF reviewed public comments received in
response to the February 2015 AFCARS NPRM, held tribal and state
consultation and listening sessions, and consulted with federal agency
experts, as outlined below.
1. Consideration of comments on the February 2015 AFCARS NPRM that
addresses ICWA-related data elements.
ACF received approximately 45 comments that proposed/recommended
including new data elements in AFCARS related to ICWA. Twenty-five of
the commenters were tribes or tribal organizations, four were state
child welfare departments, and the remaining were public interest
organizations, academics/universities, and individuals. Of the 45
comments, 18 commenters submitted the same or similar form letter that
recommended additional data elements providing information about the
applicability of ICWA for children in out-of-home care and proposed
revisions to the data elements proposed in the February 2015 AFCARS
NPRM to
[[Page 20287]]
capture ICWA-related data. The commenters recommended approximately 62
new or revised data elements that addressed the following:
Identification of Indian children and their family structure; tribal
notification and intervention in state court proceedings; the
relationship of the foster parents and other providers to the Indian
child; decisions to place an Indian child in out-of-home care
(including data on active efforts and continued custody); whether a
placement was licensed by an Indian tribe; whether the placement
preferences in ICWA were followed and both the voluntary and
involuntary termination of parental rights. ACF did not receive
specific suggestions from the four state child welfare agencies on
which ICWA-related data elements to include in AFCARS.
2. Tribal consultation session.
The Children's Bureau held a tribal consultation via conference
call on May 1, 2015, that was co-facilitated by the Children's Bureau's
(CB) Associate Commissioner and the Chairperson of the ACF Tribal
Advisory Committee, who also serves as the Vice Chair of the Jamestown
S'Klallam Tribal Council. The CB conducted the session to obtain input
from tribal leaders on proposed AFCARS data elements related to ICWA.
Comments were solicited during the call to determine essential data
elements that title IV-E agencies should report to AFCARS including,
but not limited to: Whether the requirements of ICWA were applied to a
child; notice for child welfare proceedings; active efforts to prevent
removal or to reunify the Indian child with the child's biological or
adoptive parents or Indian custodian; placement preferences under ICWA;
and terminations of parental rights for an Indian child. Tribal
representatives did not provide specific suggestions on the call but
noted during the call that they would provide formal comments on the
SNPRM when it was issued.
3. Solicited input from members of the National Association of
Public Child Welfare Administrators (NAPCWA).
The NAPCWA, an affiliate of the American Public Human Services
Association (APHSA) hosted a conference call with state members of
NAPCWA (i.e., representatives of state child welfare agencies) and the
Children's Bureau on April 27, 2015. The purpose of the call was to
obtain input from state members on what data state title IV-E agencies
currently collect regarding ICWA and what they believed were the most
important information title IV-E agencies should report in AFCARS
related to ICWA. Representatives from 13 states participated in the
conference call and stated that some of their states currently collect
information in their information system related to Indian children,
such as tribal membership, tribal notification, and tribal enrollment
status. They noted that some of the information with regard to ICWA,
such as placement preferences and active efforts, are contained in case
files, case notes, or other narratives, and not currently captured
within their information systems, and noted issues with extraction of
such data for AFCARS reporting. They also indicated that their
information systems would need to be changed and upgraded to report
ICWA-related data in AFCARS and that new processes would need to be
developed to collect and extract the requested information. They noted
that they would need to train workers to accurately collect the data.
They indicated that additional funding is necessary for costs
associated with data collection. Participating state representatives
also expressed concern about adding data elements that would require
information from state courts, unlike other AFCARS data elements which
are available within the title IV-E agency's information system. Given
that state title IV-E agencies and courts do not typically exchange
data, workers may need to gather and enter state court information
manually.
4. Input from federal agency experts regarding ICWA.
In December 2014, at the White House Tribal Nations conference,
Attorney General Holder announced an initiative to promote compliance
with ICWA. This initiative included partnering with the Departments of
Health and Human Services and the Interior to ensure all tools
available to the federal government are used to promote compliance with
ICWA. Federal Departments have a strong interest in collecting data
elements related to ICWA. To further interagency collaboration in this
area, DOI, DOJ, and HHS have engaged in extensive discussions focused
on ICWA, including the sharing of agencies' expertise for the
development of ICWA-related regulations, including AFCARS.
As part of on-going intra- and inter-agency collaboration, ACF
consulted with federal experts on what data exists, or not, and its
utility in understanding the well-being of Indian children, youth, and
families. ACF also consulted with federal partners on the ICWA
statutory requirements in 25 U.S.C. 1901 et seq., DOI's Guidelines, and
Notice of Proposed Rulemaking to implement ICWA Regulations for State
Courts and Agencies in Indian Child Custody Proceedings (80 FR 14880,
issued March 20, 2015).
After considering all of the aforementioned input, ACF proposes the
addition of paragraph (i) to Sec. 1355.43 (as proposed in the February
2015 AFCARS NPRM). Section 479 of the Act permits broader data
collection in order to establish a true national data collection system
that provides comprehensive demographic and case-specific information
on all children who are in foster care and adopted with title IV-E
agency involvement, to assess the current state of adoption and foster
care programs in general, as well as to develop future national
policies concerning these programs. Collecting data on Indian children,
including ICWA-related data, is within the authority of section 479
because it is in line with the statutory goal of assessing the status
of children in foster care. ACF is exercising its authority to propose
a limited new set of ICWA-related data because section 479(a)
authorizes ``the collection of data with respect to adoption and foster
care in the United States'' and Indian children are children living
within the United States and are those intended to benefit from both
ICWA and titles IV-B and IV-E. The supplemental proposed rule includes
data relevant to AI/AN children that supports ACF in assessing the
current state of the well-being of Indian children as well as state
implementation of title IV-E and IV-B. ACF proposes to use the
collected data to make data-informed assessments; and to develop future
policies concerning tribal-state consultation, ICWA implementation, and
training and technical assistance to support states in the
implementation of title IV-B and title IV-E programs.
ACF will analyze all pertinent comments to this SNPRM along with
prior comments received on the February 2015 AFCARS NPRM and issue one
final rule on AFCARS in which the ICWA-related data elements will be
included. ACF understands from consultation and the regulatory
development process that some of the information sought in this SNPRM
for inclusion in AFCARS might be contained in agency case files.
However, a number of the proposed data elements seek information
related to court findings and this represents a shift toward increased
reporting on the activity of the court in AFCARS. In this SNPRM, ACF
proposes that state title IV-E agencies report information believed to
be contained in court orders that the state title IV-E agency would
have ready access to or would typically be contained within the state
title IV-E agency case files. ACF is seeking input from state title IV-
E agencies on
[[Page 20288]]
whether they would be readily able to report the information in AFCARS
for the data elements that relate to court activities and if there
would be difficulties in doing so. We encourage agencies to describe
the nature of the issues they would face, and possible approaches to
addressing these concerns in light of the importance of having this
information.
V. Section-by-Section Discussion of SNPRM
Section 1355.43(i) Data Elements Related to the Indian Child Welfare
Act (ICWA)
In paragraph (i), ACF proposes to require that state title IV-E
agencies collect and report certain ICWA-related information on
children in the AFCARS out-of-home care reporting population. ACF does
not require state title IV-E agencies to report the data elements
proposed in paragraph (i) for an Indian child who remains under the
tribe's responsibility, placement, and care but for which the state
provides IV-E foster care maintenance payments pursuant to a state-
tribal agreement as described in section 472(a)(2)(B)(ii) of the Act.
This is because the state's agreement with the tribe is to provide
title IV-E foster care maintenance payments to a child under the
tribe's placement and care responsibility. Additionally, tribal title
IV-E agencies are not required to collect and report the data elements
proposed in paragraph (i). The data elements in Sec. 1355.43(i) are
subject to the same compliance and penalty requirements in Sec. Sec.
1355.45 and 1355.46, respectively, proposed in the February 2015 AFCARS
NPRM (80 FR 7187-7192 and 7220-7221).
Definitions
In paragraph (i)(1), ACF proposes to require that unless otherwise
specified, the following terms have the same meaning as in ICWA, at 25
U.S.C. 1903: Child custody proceeding, extended family member, Indian,
Indian child, Indian child's tribe, Indian custodian, Indian
organization, Indian tribe, parent, reservation, and tribal court. It
is important to note that the term ``Indian child'' in this section
does not refer to a racial classification, but rather is defined by
ICWA as a child who is either a member of an Indian tribe, or is
eligible for membership in an Indian tribe and is the biological child
of a member of an Indian tribe. Each term is listed in the regulatory
language below with the corresponding ICWA statutory citation.
In paragraph (i)(2), ACF proposes to require that for all children
in the out-of-home care reporting population per Sec. 1355.41(a), the
state title IV-E agency must complete the data elements in paragraphs
(i)(3) through (5).
Identifying an ``Indian Child'' Under the Indian Child Welfare Act
In paragraph (i)(3), ACF proposes to require that the state title
IV-E agency report whether the state title IV-E agency inquired about
pertinent information on a child's status as an ``Indian child'' under
ICWA. This includes: Reporting whether the child is a member of or
eligible for membership in an Indian tribe; the child's biological or
adoptive parents are members of an Indian tribe; inquiring about the
child's status as an ``Indian child'' with the child, his/her
biological or adoptive parents (if not deceased), and the child's
Indian custodian (if the child has one); ascertaining whether the
domicile or residence of the child, parent, or the Indian custodian is
known by the agency, or is shown to be, on an Indian reservation.
This data will provide information on whether state title IV-E
agencies and state courts are evaluating whether the child meets the
definition of ``Indian child'' under ICWA. These are threshold
questions indicating whether the state title IV-E agency knows or has
``reason to know'' that a child is an Indian child and thus is subject
to the protections under ICWA. Without inquiry, many Indian children
are not identified, thereby denying children, parents, and Indian
tribes procedural and substantive protections under ICWA. These data
elements represent the minimum that a state title IV-E agency should be
collecting to determine whether the child is an Indian child under
ICWA. Such elements will help establish demographics necessary in
identifying ICWA cases that involve parents who are tribal members or
that involve an Indian custodian. Proactively identifying Indian
children will improve the AFCARS data on AI/AN child foster care cases,
adoption through the title IV-E agencies, as well as provide a base for
understanding the percentage of AI/AN cases to which ICWA applies. More
accurate data will help ACF better understand the scope of ICWA's
impact in AI/AN child foster care cases and state systems, help
identify where the application of ICWA may need reinforcement, and help
inform ACF technical assistance to state title IV-E agencies.
Application of ICWA
In paragraph (i)(4), ACF proposes to require that the state title
IV-E agency indicate whether it knows or has reason to know that the
child is an Indian child under ICWA. If so, the state title IV-E agency
must indicate the date that the state title IV-E agency discovered
information that indicates that the child is or may be an Indian child
and identify all federally recognized Indian tribes identified that may
potentially be the Indian child's tribe(s).
In paragraph (i)(5), ACF proposes that the state title IV-E agency
must indicate whether a court order indicates that a court found that
ICWA applies, the date of the finding, and the name of the Indian tribe
if listed on the court order.
If the state title IV-E agency responds with ``yes'' to the data
elements in paragraphs (i)(4) or (5), then the agency must complete the
remaining applicable paragraphs (i)(6) through (29) of this section,
which includes information on: Transfers to tribal court; notification
of child custody proceedings; active efforts to prevent removal and to
reunify with the Indian family; foster care and adoptive placement
preferences; and termination of parental rights.
Because not all AI/AN children meet the definition of ``Indian
child'' under ICWA, these data elements are critical to identify the
national number of AI/AN child foster care cases to which ICWA applies.
Data elements related to whether ICWA applies are essential because
application of ICWA triggers procedural and substantive protections.
The date the agency received information as to whether the child is an
Indian child under ICWA is essential to understanding the time-lapse
between knowing that a child is an Indian child and tribal
notification. A long time-lapse can indicate a delay in the application
of the ICWA protections. Additionally, identifying Indian tribes that
may potentially be the Indian child's tribe will help tribes, states,
and the federal government direct resources into developing
relationships that will streamline the process of identifying Indian
children.
Transfer to Tribal Court
In paragraphs (i)(6) and (7), ACF proposes to require that the
state title IV-E agency report certain information on whether a case
was transferred from state court to tribal court, in accordance with 25
U.S.C. 1911(b). In paragraphs (i)(6), ACF proposes to require that the
state title IV-E agency report whether a court order indicates that the
Indian child's parent, Indian custodian, or Indian child's tribe
requested, orally on the record or in writing, that the state court
transfer the case to the tribal court of the Indian child's tribe, in
accordance with 25 U.S.C. 1911(b), at any point during the report
period. In paragraph
[[Page 20289]]
(i)(7), if the state court denied the request to transfer the case to
tribal court, ACF proposes to require that the state title IV-E agency
report whether there is a court order that indicates the reason(s) why
the case was not transferred to the tribal court. If a court order
exists, justification for denying a transfer must be indicated from
among a list of three options, as outlined in ICWA statute: (1) Either
of the parents objected to transferring the case to the tribal court;
or (2) the tribal court declined the transfer to the tribal court; or
(3) the state court found good cause not to transfer the case to the
tribal court.
The data in this section will provide an understanding of how many
children in foster care with ICWA protections are or are not
transferred to the Indian child's tribe and an understanding of the
reasons why a state court did not transfer the case. Additionally,
ACYF-CB-PI-14-03 (issued March 5, 2014) requires, among other things,
that states develop, in consultation with tribes, measures to determine
whether tribes are able to effectively intervene and, where
appropriate, transfer proceedings to tribal jurisdiction. One focus of
the Child and Family Services Reviews conducted by the Children's
Bureau is the importance of preserving a child's cultural connections.
This data will aid in understanding how a state may preserve a child's
connection to his/her tribe. In addition, transfer data will aid in
identifying capacity needs and issues in tribal child welfare systems
that may prevent tribes from taking jurisdiction. Transfer data will
help identify opportunities to build relationships between states and
tribes. The data will also indicate whether additional tribal court
resources are needed to improve transfer rates, or additional training
for state courts is required regarding appropriate ``good cause''
exceptions to transfer.
Notification
In paragraphs (i)(8) through (10), ACF proposes to require that the
state title IV-E agency report certain information about legal notice
to the Indian child's parent, Indian custodian, and Indian child's
tribe regarding the child custody proceeding as defined in ICWA. ACF
proposes to require that the state title IV-E agency report: Whether
the Indian child's biological or adoptive parent or Indian custodian
were given proper legal notice of the child custody proceeding more
than 10 days prior to the first child custody proceeding in accordance
with 25 U.S.C. 1912(a); whether the Indian child's tribe (if known) was
given proper legal notice of the child custody proceedings more than 10
days prior to the first child custody proceeding; which Indian tribe(s)
were sent notice of the child custody proceeding; and whether the state
title IV-E agency replied with additional information that the Indian
child's tribe(s) requested, if such a request was made.
State child welfare agencies may have this information in their
case files, regardless whether the notice was sent by the agency or the
court. Notice to the Indian child's parents, Indian custodian, and
tribe about child custody proceedings, as defined in ICWA, and the
timing of the notice is an essential procedural protection provided by
ICWA. ICWA requires that the party seeking foster care placement of, or
termination of parental rights to, an Indian child shall notify the
parent or Indian custodian and the Indian child's tribe of the pending
proceedings, including notice of their right of intervention and that
no foster care placement or termination of parental rights proceeding
shall be held until at least ten days after notice is received (25
U.S.C. 1912(a)). Notifying individuals and tribes of their rights and
requirements in every child custody proceeding is critical to
meaningful access to and participation in adjudications. Further,
improper notice is a common basis for an appeal under ICWA, resulting
in failure of process and unnecessary costs and delay. The data
reported in this section will provide an understanding of how legal
notice and adherence to the timeframes in ICWA may impact an Indian
child's case. The data will also help identify technology, capacity,
and training needs for meeting legal notice requirements, as well as
opportunities for technical assistance and relationship-building
between states and tribes.
Active Efforts To Prevent Removal and Reunify the Indian Family
In paragraphs (i)(11) through (13), ACF proposes to require that
the state title IV-E agency report whether and when the state title IV-
E agency began to make active efforts to prevent the breakup of the
Indian family prior to the child's most recent out-of-home care
episode, whether the court found in a court order that the state title
IV-E agency made active efforts to prevent the breakup of the Indian
family, and that these efforts were unsuccessful, and what active
efforts the state title IV-E agency made to prevent the breakup of the
Indian family (see 25 U.S.C. 1912(d)).
Providing active efforts to prevent the breakup of Indian families
is a key component of the ICWA protections (25 U.S.C. 1912(d)). Under
ICWA, any party seeking to effect a foster care placement of, or
termination of parental rights to, an Indian child must demonstrate to
the court that active efforts have been made to provide remedial
services and rehabilitative programs designed to avoid the need to
remove the Indian child, or terminate parental rights. Thus, state
title IV-E agencies are required to identify and offer programs and
services to prevent the breakup of Indian families which includes
services to maintain and reunite an Indian child with his or her family
and to promote the stability and security of the Indian family. Where
such efforts are meaningful and effective, exits from child welfare
systems increase and a reduction in disproportionality in state child
welfare systems logically follows.
Proposed ICWA-related AFCARS data regarding active efforts will
provide a better understanding of the status of Indian children in
foster care, how these efforts may impact an Indian child's case, and
the role of the courts in making findings. The data will also help
identify service needs and efficacy; capacity needs; the need for
training and technical assistance; and opportunities to build
relationships between states and tribes.
Removals
In paragraph (i)(14), ACF proposes to require that the state title
IV-E agency report whether the state court found by clear and
convincing evidence, in a court order, that continued custody of the
Indian child by the parent or Indian custodian was likely to result in
serious emotional or physical damage to the Indian child in accordance
with 25 U.S.C. 1912(e); and whether the court finding indicates that
the state court's finding was supported by the testimony of a qualified
expert witness in accordance with 25 U.S.C. 1912(e).
This is an important protection under ICWA for Indian children
given that the standard for removal of an Indian child is established
by ICWA and may be different than in non-ICWA foster care cases. In
ICWA, Congress created minimum federal standards for removal to prevent
the continued breakup of Indian families. ICWA's legislative history
reflects clear Congressional intent: ``It is clear then that the Indian
child welfare crisis is of massive proportions and that Indian families
face vastly greater risks of involuntary separation than are typical of
our society as a whole.'' (H. Rep. 95-1386 (July 24, 1978)). The
proposed ICWA-related AFCARS data element will provide data on the
extent to which
[[Page 20290]]
Indian children are removed in a manner that conforms to ICWA's
statutory standard, informs ACF about the frequency of and evidentiary
standards applied to removals of Indian children, helps identify needs
for training and technical assistance related to ICWA statutory
standards, and highlights substantive opportunities for building and
improving relationships between states and tribes.
Foster Care and Pre-Adoptive Placement Preferences
In paragraphs (i)(15) through (18), ACF proposes to require that
state title IV-E agencies report certain information on the foster care
and pre-adoptive placement of Indian children, specifically, the
placement of such children in the least restrictive setting that most
approximates a family within reasonable proximity to his or her home in
accordance with preferences established in ICWA at 25 U.S.C. 1915(b),
or preferences established by tribal resolution 25. U.S.C. 1915(c).
In paragraph (i)(15), the state title IV-E agency must indicate
which foster care and pre-adoptive placements from a list of five are
available to accept placement of the Indian child. The five placements
options are: A member of the Indian child's extended family; a foster
home licensed, approved, or specified by the Indian child's tribe; an
Indian foster home licensed or approved by an authorized non-Indian
licensing authority; 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; and a placement that
complies with the order of preference for foster care or pre-adoptive
placements established by an Indian child's tribe, in accordance with
25 U.S.C. 1915(c).
In paragraph (i)(16), the state title IV-E agency must indicate
whether the Indian child's current placement as of the end of the
report period meets the placement preferences of ICWA at 25 U.S.C.
1915(b) by indicating with whom the Indian child is placed from a list
of six response options. The placements are: A member of the Indian
child's extended family; a foster home licensed, approved, or specified
by the Indian child's tribe; an Indian foster home licensed or approved
by an authorized non-Indian licensing authority; 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; a placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
tribe, in accordance with 25 U.S.C. 1915(c); or none.
In paragraph (i)(17), the state title IV-E agency must indicate
whether the state court made a finding of good cause, on a court order,
to place the Indian child with someone who is not listed in the
placement preferences of ICWA in 25 U.S.C. 1915(b) or the placement
preferences of the Indian child's tribe, if the placement preferences
for foster care and pre-adoptive placements were not followed. In
paragraph (i)(18), the state title IV-E agency must indicate the state
court's basis for the finding of good cause, as indicated on the court
order, from a list of five response options: Request of the biological
parents; request of the Indian child; the unavailability of a suitable
placement that meets the placement preferences in ICWA at 25 U.S.C.
1915; the extraordinary physical or emotional needs of the Indian
child; or other.
The requirements around placement preferences in ICWA are a key
piece of the protections mandated by ICWA. Placement preferences serve
to protect the best interests of Indian children and promote the
stability and security of families and Indian tribes by keeping Indian
children with their extended families or in Indian foster homes and
communities. The placement preferences in ICWA are congruent with the
title IV-E plan requirement in section 471(a)(19) of the Act regarding
preference to an adult relative over a non-related caregiver when
determining the placement for a child. Data from the National Survey of
Child and Adolescent Well-Being indicates that opportunities for
kinship placements vary widely by age for AI/AN children when compared
to other children of the same age. New AFCARS data will help to
adequately assess the current status of kinship placements as well as
to help identify a national plan for meeting permanency goals through
kinship placements.
Factors unique to Indian children, including the availability of
American Indian foster homes, influence decisions about the placement
of Indian children. These factors include the characteristics of the
foster home, the number of placements a child will have, and the
duration of the stay (GAO-05-290, p.3). The information from these data
elements will allow ACF to distinguish between ICWA cases in which
there was no available ICWA-preferred placement and those cases where
an available ICWA-preferred placement was not used despite its
availability. The data will help to identify trends or problems that
may require enhanced recruitment of potential Indian foster homes or
relative placements. This information will help to identify the
training and technical assistance needs of states to support
recruitment and support foster families to meet the unique cultural,
social, extracurricular, and linguistic needs of Indian children.
Reporting information on good cause will help agencies better
understand why the ICWA placement preferences are not followed. In
addition, such information will aid in targeting training and resources
needed to assist states in improving Indian child outcomes.
Termination of Parental Rights
In paragraphs (i)(19) through (24), ACF proposes to require that
the state title IV-E agency report information regarding voluntary and
involuntary terminations of parental rights (TPR), which include tribal
customary adoptions. The information includes: Whether the rights of
the Indian child's parents or Indian custodian were involuntarily or
voluntarily terminated; whether, prior to ordering an involuntary
termination of parental rights, the state court found beyond a
reasonable doubt, in a court order, that continued custody of the
Indian child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the Indian child in accordance
with 25 U.S.C. 1912(f); whether the state court indicates that its
finding was supported by the testimony of a qualified expert witness in
accordance with 25 U.S.C. 1912(f); and if the TPR was voluntary,
whether there is a court order that indicates that the voluntary
consent to termination for the biological or adoptive mother and
biological or adoptive father or Indian custodian was made in writing
and recorded in the presence of a judge of a court of competent
jurisdiction and accompanied by the presiding judge's certificate that
the terms and consequences of the consent were fully explained in
detail and were fully understood by the parent or Indian custodian in
accordance with 25 U.S.C. 1913.
Distinguishing between involuntary and voluntary terminations of
parental rights is important in ICWA given specific protections that
must be provided in each context (25 U.S.C. 1912(e), (f) and 25 U.S.C.
1913). In addition, termination standards are important protections for
Indian children under ICWA given that Congress specifically created
minimum federal standards for removal of an Indian child to prevent the
breakup of Indian families and to promote the stability and security of
families and Indian tribes by preserving the child's
[[Page 20291]]
links to their parents and to the tribe through the child's parent(s).
Further, a TPR may affect a child's ability to be a full member of his/
her tribe, preventing the child from accessing services and benefits
available to tribal members. Whether the Indian child's parents' rights
were terminated in a manner that conforms to the statutory standard
informs ACF as to when an Indian child's parental rights are
terminated, helps identify the need for training and technical
assistance to meet statutory standards, and highlights substantive
opportunities for building relationships between states and tribes.
Adoption Proceedings
In paragraphs (i)(25) through (29), ACF proposes to require that
the state title IV-E agency report certain information on adoptive
placement preferences, which are requirements in ICWA at 25 U.S.C.
1915(a), if the Indian child exited foster care to adoption per Sec.
1355.43(g).
In paragraph (i)(25), the state title IV-E agency must indicate
whether the child exited foster care to adoption per Sec. 1355.43(g).
This is a driver question for this section; if the state title IV-E
agency indicates ``yes,'' then the agency must complete the elements in
this section; if the state title IV-E agency indicates ``no,'' then the
agency must skip the elements in this section.
In paragraph (i)(26), the state title IV-E agency must indicate
which adoptive placements from a list of four were willing to accept
placement of the Indian child. Adoption placements preferences are
found in ICWA at 25 U.S.C. 1915(a) as follows: A member of the Indian
child's extended family; other members of the Indian child's tribe;
other Indian families; or a placement that complies with the order of
preference for adoptive placements established by an Indian child's
tribe, in accordance with 25 U.S.C. 1915(c).
In paragraph (i)(27), the state title IV-E agency must indicate
whether the placement reported in Sec. 1355.43(h) meets the placement
preferences of ICWA in 25 U.S.C. 1915(a) by indicating with whom the
Indian child is placed from a list of five response options. The
placements preferences are: A member of the Indian child's extended
family; other members of the Indian child's tribe; other Indian
families; or a placement that complies with the order of preference for
adoptive placements established by an Indian child's tribe, in
accordance with 25 U.S.C. 1915(c); or none.
In paragraph (i)(28), the state title IV-E agency must indicate
whether the state court made a finding of good cause, in a court order,
to place the Indian child with someone who is not listed in the
placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement
preferences of the Indian child's tribe, if the placement preferences
for adoptive placements were not followed. In paragraph (i)(29), the
state title IV-E agency must indicate the state court's basis for the
finding of good cause, as indicated in the court order, from a list of
five response options: Request of the biological parents; request of
the Indian child; the unavailability of a suitable placement that meets
the placement preferences in ICWA at 25 U.S.C. 1915; the extraordinary
physical or emotional needs of the Indian child; or other.
The requirements for adoption placement preferences in ICWA are a
key piece of the protections provided under ICWA. Placement preferences
serve the policies of protecting the best interests of Indian children
and promoting the stability and security of families and Indian tribes
by keeping adopted Indian children with their extended families, tribes
or communities. These data elements will help provide greater
understanding on how best to support Indian children in cases where
adoption is the outcome. The data are important to assist in
identifying trends or problems that may require enhanced recruitment of
potential Indian adoptive homes or relative placements. The information
from these data elements will allow ACF to distinguish between ICWA
cases in which there was no available ICWA-placement and those cases
where an available ICWA-placement was not used. The data will help
assess the current status of kinship guardianship placements as well as
to help identify a national plan for meeting permanency goals through
kinship guardianship. This information will help to identify the scope
of resources for training and technical assistance needed for states to
recruit and support adoptive families to meet the unique cultural,
social, and enrichment activity needs of Indian children. Reporting
information on good cause to not follow ICWA adoption placement
preferences will help to understand why the ICWA placement preferences
are not followed, and will aid in identifying targeted training and
resource needs to assist states in improving Indian child outcomes.
Attachment A--Proposed Out-of-Home Care Data File Elements Related to ICWA
----------------------------------------------------------------------------------------------------------------
Category & applicability Element Response options Section citation
----------------------------------------------------------------------------------------------------------------
Identifying an ``Indian Child'' Indicate whether the state .................. 1355.43(i)(3).
under the Indian Child Welfare title IV-E agency researched
Act. whether there is a reason to
know that the child is an
``Indian child'' under ICWA:
These data elements will be Indicate whether Yes.
reported for all children. the state agency inquired No................
with the child's The biological or
biological or adoptive adoptive mother
mother. is deceased..
Indicate whether Yes.
the biological or No................
adoptive mother is a Unknown...........
member of an Indian tribe.
Indicate whether Yes.
the state agency inquired No................
with the child's The biological or
biological or adoptive adoptive father
father. is deceased..
Indicate whether Yes.
the biological or No................
adoptive father is a Unknown...........
member of an Indian tribe.
Indicate whether Yes.
the state agency inquired No................
with the child's Indian Child does not
custodian, if the child have an Indian
has one. custodian..
[[Page 20292]]
Indicate whether Yes.
the state agency inquired No................
with the child who is the
subject of the proceeding.
Indicate whether Yes.
the child is a member of No................
or eligible for Unknown...........
membership in an Indian
tribe.
Indicate whether Yes.
the domicile or residence No................
of the child, parent, or
the Indian custodian is
known by the agency to
be, or is shown to be, on
an Indian reservation.
Application of ICWA............. Indicate whether Yes............... 1355.43(i)(4).
the state title IV-E No................
agency knows or has
reason to know that the
child is an Indian child
as defined by ICWA.
These data elements will be Indicate the date Date..............
reported for all children. that the state title IV-E
agency discovered the
information that
indicates that the child
is or may be an Indian
child.
Indicate the Name(s)...........
name(s) of all federally
recognized Indian
tribe(s) identified that
may potentially be the
Indian child's tribe(s).
These data elements will be Indicate whether a court Yes, ICWA applies. 1355.43(i)(5).
reported for all children. order indicates that the No, ICWA does not
court found that ICWA apply..
applies. No court finding..
Indicate the date Date.
of the court finding.
Indicate the name Name(s).
of the Indian tribe(s) No name listed....
that the court found is
the Indian child's tribe,
if listed on the court
order.
Transfer to tribal court........ Indicate whether there is a Yes............... 1355.43(i)(6).
These data elements and all of court order that indicates No................
those below only apply to that the Indian child's
Indian children.. parent, Indian custodian, or
Indian child's tribe
requested, orally on the
record or in writing, that
the state court transfer the
case to the tribal court of
the Indian child's tribe, in
accordance with 25 U.S.C.
1911(b), at any point during
the report period.
If the state court denied the Yes............... 1355.43(i)(7).
request to transfer the case No................
to tribal court, indicate
whether there is a court
order that indicates the
reason(s) why the case was
not transferred to the
tribal court.
Either of the Yes.
parents objected to No................
transferring the case to
the tribal court.
The tribal court Yes.
declined the transfer to No................
the tribal court.
The state court Yes.
found good cause not to No................
transfer the case to the
tribal court.
Notification.................... Indicate whether the Indian Yes............... 1355.43(i)(8).
child's parent or Indian No................
custodian was given proper
legal notice more than 10
days prior to the first
child custody proceeding in
accordance with 25 U.S.C.
1912(a).
Indicate whether the Indian Yes
child's tribe(s) was given No................
proper legal notice more The child's Indian
than 10 days prior to the tribe is unknown..
first child custody
proceeding in accordance
with 25 U.S.C. 1912(a).
Indicate the name(s) of the Name(s)........... 1355.43(i)(9).
Indian tribe(s) that were
sent notice for a child
custody proceeding as
required in ICWA at 25
U.S.C. 1912(a).
If the tribe(s) requested Yes............... 1355.43(i)(10).
additional information, No................
indicate whether the state Does not apply....
title IV-E agency replied
with the additional
information that the Indian
tribe(s) requested.
Active efforts to prevent Indicate the date that the Date.............. 1355.43(i)(11).
removal and reunify with Indian state title IV-E agency
family. began making active efforts
to prevent the breakup of
the Indian family for the
most recent removal reported
in Sec. 1355.43(d) of the
Indian child in accordance
with 25 U.S.C. 1912(d).
Indicate whether the court Yes............... 1355.43(i)(12).
found, in a court order, No................
that the state title IV-E
agency made active efforts
to prevent the breakup of
the Indian family for the
most recent removal reported
in Sec. 1355.43(d) and
that these efforts were
unsuccessful in accordance
with 25 U.S.C. 1912(d).
[[Page 20293]]
Indicate the active efforts .................. 1355.43(i)(13).
that the state title IV-E
agency made to prevent the
breakup of the Indian family
in accordance with 25 U.S.C.
1912(d).
Identify Yes.
appropriate services to No................
help the parent.
Actively assist Yes.
the parent in obtaining No................
services.
Invite Yes.
representatives of the No................
Indian child's tribe to
participate in the
proceedings.
Complete a Yes.
comprehensive assessment No................
of the family.
Focus on safe Yes.
reunification as the goal No................
for the Indian child.
Consult with Yes.
extended family members No................
to provide support for
the Indian child.
Arrange for Yes.
family interaction in No................
most natural setting
safely possible.
Monitor progress Yes.
and participation in No................
services to reunite the
Indian family.
Consider Yes.
alternative ways of No................
addressing the needs of
the Indian child's parent
and extended family if
services do not exist or
are not available.
Support regular Yes.
visits and trial home No................
visits consistent with
ensuring the Indian
child's safety.
Conduct or cause Yes.
to be conducted a No................
diligent search for the
Indian child's extended
family members for
assistance and possible
placement.
Keep siblings Yes.
together. No................
N/A...............
Other............ Yes.
No................
Removals........................ Indicate whether the court Yes............... 1355.43(i)(14).
found by clear and No................
convincing evidence, in a
court order, that continued
custody of the Indian child
by the parent or Indian
custodian was likely to
result in serious emotional
or physical damage to the
Indian child in accordance
with 25 U.S.C. 1912(e).
Indicate whether the court Yes.
finding indicates that the No................
state court's finding was
supported by the testimony
of a qualified expert
witness in accordance with
25 U.S.C. 1912(e).
Foster care and pre-adoptive Indicate which foster care or .................. 1355.43(i)(15).
placement preferences. pre-adoptive placements that
meet the placement
preferences of ICWA in 25
U.S.C. 1915(b) were
available to accept
placement.
A member of the Yes.
Indian child's extended No................
family.
A foster home Yes.
licensed, approved, or No................
specified by the Indian
child's tribe.
An Indian foster Yes.
home licensed or approved No................
by an authorized non-
Indian licensing
authority.
An institution Yes.
for children approved by No................
an Indian tribe or
operated by an Indian
organization which has a
program suitable to meet
the Indian child's needs.
A placement that Yes.
complies with the order No................
of preference for foster
care or pre-adoptive
placements established by
an Indian child's tribe,
in accordance with 25
U.S.C. 1915(c).
For the Indian child's A member of the 1355.43(i)(16).
current foster care or pre- Indian child's
adoptive placement as of the extended family.
end of the report period per A foster home
Sec. 1355.43(e), indicate licensed,
whether the placement meets approved, or
the placement preferences of specified by the
ICWA in 25 U.S.C. 1915(b) by Indian child's
indicating with whom the tribe..
Indian child is placed.
[[Page 20294]]
An Indian foster
home licensed or
approved by an
authorized non-
Indian licensing
authority.
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. A
placement that
complies with the
order of
preference for
foster care or
pre-adoptive
placements
established by an
Indian child's
tribe, in
accordance with
25 U.S.C.
1915(c).
None..............
If the placement preferences Yes............... 1355.43(i)(17).
for foster care or pre- No................
adoptive placements were not
followed, indicate whether
the court made a finding of
good cause, on a court
order, to place the Indian
child with someone who is
not listed in the placement
preferences of ICWA in 25
U.S.C. 1915(b) or the
placement preferences of the
Indian child's tribe.
Indicate the state court's .................. 1355.43(i)(18).
basis for the finding of
good cause, as indicated on
the court order.
Request of Yes.
biological parents. No................
Request of Indian Yes.
child. No................
The Yes.
unavailability of a No................
suitable placement that
meets the placement
preferences in ICWA at 25
U.S.C. 1915.
The extraordinary Yes.
physical or emotional No................
needs of the Indian child.
Other............ Yes.
No................
Termination of parental rights.. Indicate whether the Voluntary......... 1355.43(i)(19).
termination of parental (or Involuntary.......
Indian custodian rights was
voluntary or involuntary.
Indicate whether, prior to Yes............... 1355.43(i)(20).
ordering a termination of No................
parental rights, the state
court found beyond a
reasonable doubt, in a court
order, that continued
custody of the Indian child
by the parent or Indian
custodian is likely to
result in serious emotional
or physical damage to the
Indian child in accordance
with 25 U.S.C. 1912(f).
Indicate whether the court Yes............... 1344.43(i)(21).
finding, reported for No................
paragraph (i)(20), indicates
that the state court's
finding was supported by the
testimony of a qualified
expert witness in accordance
with 25 U.S.C. 1912(f).
If voluntary, indicate Yes............... 1355.43(i)(22).
whether there is a court No................
order that indicates that Does not apply....
the voluntary consent to
termination for the
biological or adoptive
mother was made in writing
and recorded in the presence
of a judge in accordance
with 25 U.S.C. 1913.
If voluntary, indicate Yes............... 1355.43(i)(23).
whether there is a court No................
order that indicates that Does not apply....
the voluntary consent to
termination for the
biological or adoptive
father was made in writing
and recorded in the presence
of a judge in accordance
with 25 U.S.C. 1913.
If voluntary, indicate Yes............... 1355.43(i)(24).
whether there is a court No................
order that indicates that Does not apply....
the voluntary consent to
termination for the Indian
custodian was made in
writing and recorded in the
presence of a judge in
accordance with 25 U.S.C.
1913.
Adoption proceedings............ Indicate whether the Indian Yes............... 1355.43(i)(25).
child exited foster care to No................
adoption per Sec.
1355.43(g).
Indicate which adoptive .................. 1355.43(i)(26).
placements that meet the
placement preferences in
ICWA at 25 U.S.C. 1915(a)
were willing to accept
placement.
[[Page 20295]]
A member of the Yes.
Indian child's extended No................
family.
Other members of Yes.
the Indian child's tribe. No................
Other Indian Yes.
families. No................
A placement that Yes.
complies with the order No................
of preference for foster
care or pre-adoptive
placements established by
an Indian child's tribe,
in accordance with 25
U.S.C. 1915(c).
Indicate whether the A member of the 1355.43(i)(27).
placement reported in Sec. Indian child's
1355.43(h) meets the extended family.
placement preferences of Other members of
ICWA in 25 U.S.C. 1915(a) by the Indian
indicating with whom the child's tribe..
Indian child is placed.
Other Indian families........
A placement that complies
with the order of preference
for foster care or pre-
adoptive placements
established by an Indian
child's tribe, in accordance
with 25 U.S.C. 1915(c).
None.........................
If the placement preferences Yes............... 1355.43(i)(28).
for adoption were not No................
followed, indicate whether
the court made a finding of
good cause, on a court
order, to place the Indian
child with someone who is
not listed in the placement
preferences of ICWA in 25
U.S.C. 1915(a) or the
placement preferences of the
Indian child's tribe.
Indicate whether there is a .................. 1355.43(i)(29).
court order that indicates
the court's basis for the
finding of good cause.
Request of the Yes.
biological parents. No................
Request of the Yes.
Indian child. No................
The Yes.
unavailability of a No................
suitable placement that
meets the placement
preferences in ICWA at 25
U.S.C. 1915.
The extraordinary Yes.
physical or emotional No................
needs of the Indian child.
Other............ Yes.
No................
----------------------------------------------------------------------------------------------------------------
VI. Regulatory Impact Analysis
Executive Order 12866
Executive Order (E.O.) 12866 requires that regulations be drafted
to ensure that they are consistent with the priorities and principles
set forth in the E.O. The Department has determined that this proposed
rule is consistent with these priorities and principles. In particular,
ACF has determined that a regulation is the best and most cost
effective way to implement the statutory mandate for a data collection
system regarding children in foster care and those that are adopted and
support other statutory obligations to provide oversight of child
welfare programs. ACF consulted with the Office of Management and
Budget (OMB) and determined that this proposed rule does meet the
criteria for a significant regulatory action under E.O. 12866. Thus, it
was subject to OMB review.
ACF determined that the costs to title IV-E agencies as a result of
this rule will not be significant. Federal reimbursement under title
IV-E will be available for a portion of the costs that title IV-E
agencies will incur as a result of the revisions proposed in this rule,
depending on each agency's cost allocation plan, information system,
and other factors.
Alternatives Considered:
1. ACF considered not collecting certain ICWA-related data in
AFCARS. Not including ICWA-related data elements in AFCARS, or
including too few data elements, may exclude Indian children and
families from the additional benefit of improving AFCARS data.
2. ACF considered whether other existing data sets could yield
similar information. ACF determined that AFCARS is the only
comprehensive case-level data set on the incidence and experiences of
children who are in foster care and/or adoption or guardianship with
the involvement of the state or tribal title IV-E agency.
3. Previously, ACF considered whether to permit title IV-E agencies
to sample and report information on a representative population of
children. Such an alternative is unacceptable given the significant
limitations associated with using a sampling approach for collecting
data, including data on AI/AN children who are in foster care,
adoption, and guardianship programs. Under a sampling approach, ACF
would be unable to report reliable data responsive to the Annual
Outcomes Report to Congress, the Report to Congress on the Social and
Economic Conditions of Native Americans, and Adoption Incentives.
Second, when using a sample, small population subgroups (e.g., children
who spend very long periods in foster care or children who are adopted
or run away) might occur so rarely in the data such
[[Page 20296]]
that analysis on these subgroups would not be meaningful. Sampling
error with respect to AI/AN populations is already a well-established
issue affecting the validity and meaningfulness of large national
surveys like the American Community Survey. It is a well-established
that, historically, quantitative and qualitative data on AI/AN
populations, including children, has been incomplete and unreliable
resulting in such populations being among the most under-counted
populations groups in the United States.
4. In each of 18 states, there were fewer than 10 Indian children
in foster care according to FY 2013 AFCARS data. For states that have
few Indian children in foster care, ACF considered alternatives to
collecting ICWA-related data through AFCARS, such as providing an
exemption from reporting, or an alternative submission process or that
would be less burdensome. While ACF recognizes collecting the proposed
ICWA-related data may be burdensome for states with few Indian children
in foster care, the alternative approaches are not feasible due to:
The statutory requirement that AFCARS data be
comprehensive. Section 479(c)(3) requires that AFCARS provide
``comprehensive national information.'' Exempting some states from
reporting the proposed ICWA-related data elements is not consistent
with this statutory mandate, and would render it difficult to use this
data for development of national policies for Indian children.
The statutory requirement for assessing penalties on
AFCARS data. Section 474(f) of the Act penalizes the title IV-E agency
for non-compliance based on the total amount expended by the state for
administration of foster care activities. The statute provides for
mandatory penalties, therefore, we are not authorized to permit some
states to be subject to a penalty and not others. In addition, allowing
states an alternate submission process would complicate and/or prevent
the assessment of penalties as proposed in the February 9, 2015 NPRM in
proposed Sec. 1355.46, including penalties for failure to submit data
files free of cross-file errors, missing, invalid, or internally
inconsistent data, or tardy transactions for each data element of
applicable records.
State agencies that elect to have a SACWIS provide some of
the proposed ICWA-related data elements as part of the system
requirements will already have systems designed to capture some ICWA-
related data.
Regulatory Flexibility Analysis
The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not
result in a significant impact on a substantial number of small
entities. This proposed rule does not affect small entities because it
is applicable only to state title IV-E agencies.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies
to prepare an assessment of anticipated costs and benefits before
proposing any rule that may result in an annual expenditure by state,
local, and tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted annually for inflation). That
threshold level is currently approximately $146 million. This proposed
rule does not impose any mandates on state, local, or tribal
governments, or the private sector that will result in an annual
expenditure of $100 million or more.
Congressional Review
This regulation is not a major rule as defined in 5 U.S.C. 8.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 2000 (Pub. L. 106-58) requires federal agencies to determine
whether a proposed policy or regulation may affect family well-being.
If the agency's determination is affirmative, then the agency must
prepare an impact assessment addressing seven criteria specified in the
law. These proposed regulations will not have an impact on family well-
being as defined in the law.
Executive Order 13132
Executive Order (E.O.) 13132 requires that federal agencies consult
with state and local government officials in the development of
regulatory policies with Federalism implications. Consistent with E.O.
13132, the Department specifically solicits comments from state and
local government officials on this proposed rule.
Paperwork Reduction Act
Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA),
all Departments are required to submit to OMB for review and approval
any reporting or recordkeeping requirements inherent in a proposed or
final rule. Information collection for AFCARS is currently authorized
under OMB number 0970-0422. This supplemental notice of proposed
rulemaking contains new information collection requirements in proposed
Sec. 1355.43, the out-of-home care data file that the Department has
submitted to OMB for its review. This SNPRM proposes to require state
title IV-E agencies to collect and report ICWA-related data elements in
the AFCARS out-of-home care data file. PRA rules require that ACF
estimate the total burden created by this SNPRM regardless of what
information is already available.
Comments to the February 2015 AFCARS NPRM: ACF understands from
comments on the February 2015 AFCARS NPRM that National Association of
Public Child Welfare Administrators (NAPCWA) and the states felt that
our burden estimates were low for determining the costs to implement
the proposed data elements in AFCARS NPRM. However, very few states
provided estimates on the burden hours or actual costs to implement the
AFCARS NPRM. The comments were primarily about technical or programmer
costs to modify the information system to extract the proposed data
elements. This did not include the work associated with child welfare
agency workers gathering information or being trained in data entry.
The estimates received to modify a state information system to extract
the proposed AFCARS NPRM data elements (approximately 100) ranged from
2,000 hours to 20,000 hours. Although ACF appreciates that these states
provided this information on hourly and cost burden estimates, ACF
received too few estimates to assist in calculating the state costs for
information systems and other burden associated with this SNPRM.
Therefore, ACF provides estimates using the best available information.
Burden Estimate
ACF estimates the annual reporting and record keeping burden hours
of this SNPRM to be 192,285 hours. ACF estimates a one-time burden
associated with this SNPRM to be 85,072 hours. The 52 respondents
comprise 52 state title IV-E agencies. The following are estimates.
[[Page 20297]]
----------------------------------------------------------------------------------------------------------------
Average
Number of Number of burden per Total burden
Collection respondents responses per year per hours
respondent respondent
----------------------------------------------------------------------------------------------------------------
Annual Record Keeping and Reporting Burden...... 52 2 3,697.79 192,285
One-Time Burden................................. 52 1 1,636 85,072
----------------------------------------------------------------------------------------------------------------
In estimating the burden, ACF included both one-time burden
estimates and annual burden estimates:
Annual burden: The annual burden to the state title IV-E agency
includes activities such as: Searching data sources and gathering
information, entering the information, extracting the information for
AFCARS reporting, and transmitting the information to ACF.
One time burden: The one-time burden for this SNPRM, includes
activities to: Develop or modify procedures and systems to collect,
validate, and verify the information, adjust existing ways to comply
with AFCARS requirements, and train personnel on the new AFCARS
requirements of this SNPRM.
In developing the burden estimate, ACF made several assumptions
about the data in state child welfare information systems. First, ACF
assumed that state title IV-E agencies may have access to most of the
information for proposed data elements. ACF anticipated the information
for these data elements are contained in the state title IV-E agency's
paper or electronic case files. ACF estimated that some of the data
elements would only be in paper case files or narrative fields, thus
not readily able to be extracted for AFCARS reporting, and would
require revisions to the electronic case file so that the information
can be extracted for AFCARS reporting. Some of these data elements
concern collecting information on court findings and other activities
taking place during court processes.
ACF proposes for state title IV-E agencies to report information in
court orders that the state title IV-E agency would have ready access
to or would typically be in the state title IV-E agency's case files.
ACF is seeking state feedback as to whether the state agency has these
readily available in their agency paper files or electronic files.
These are:
A court order indicating that the child's parent or Indian
custodian or the Indian child's tribe requested orally on the record or
in writing that the state court transfer the case to the tribal court
of the Indian child's tribe, in accordance with 25 U.S.C. 1911(b), and,
where applicable, the reason(s) why the case was not transferred.
A court order indicating the court found by clear and
convincing evidence, in a court order, that continued custody of the
Indian child by the parent or Indian custodian was likely to result in
serious emotional or physical damage to the Indian child in accordance
with 25 U.S.C. 1912(e).
A court order indicating that the court made a finding of
good cause, and the basis, if the placement preferences for foster care
were not followed, to place the Indian child with someone who is not
listed in the placement preferences of ICWA in 25 U.S.C. 1915(b) or the
placement preferences of the Indian child's tribe in accordance with 25
U.S.C. 1915(c); and
If the placement preferences for adoption were not
followed, a court finding of good cause, and the basis, on a court
order, to place the Indian child with someone who is not listed in the
placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement
preferences of the Indian child's tribe.
Second, in order to determine the number of cases for which state
title IV-E agencies will have to report the ICWA-related data elements,
ACF estimated the out-of-home care reporting population using the most
recent FY 2014 AFCARS data available submitted by state title IV-E
agencies: 415,129 children were in foster care on September 30, 2014
and 264,746 children entered foster care during FY 2014. The state
title IV-E agency will be required to report approximately 3 data
elements for all children who are in the out-of-home care reporting
population and approximately 24 data elements on children to whom the
ICWA-related data elements apply.
To estimate the number of children to whom the ICWA-related data
elements apply, ACF used as a proxy those children whose race was
reported as ``American Indian or Alaska Native'' in the most recent FY
2014 AFCARS data available. While not every child of this reported race
category will be covered under ICWA, it is likely that the state title
IV-E agency will have to explore whether these children may be Indian
children as defined in ICWA. Thus, 5,960 children who entered foster
care during FY 2014 were reported as American Indian or Alaska Native.
Third, ACF assumed that there will be one-time costs to implement
the requirements of this SNPRM and annual costs to collect, input, and
report the information. The annual costs involve searching data,
gathering the information that meet the requirements of this SNPRM,
entering the information, and extracting and submitting the information
for AFCARS reporting. The one-time costs mostly involve modifying
procedures and systems to collect, validate and verify information,
adjusting existing ways to comply with AFCARS; and training personnel
on the new AFCARS requirements of this SNPRM.
Fourth, ACF assumed that the one-time burden is similar to how long
it would take to make revisions to a SACWIS to be able to meet the
requirements of the SNPRM. Currently, 36 states have an operational
SACWIS. ACF understands that 24 states opted to collect at least a
minimal amount of ICWA-related information per the SACWIS Assessment
Review Guide, but also recognize that most state title IV-E agencies
will require some revisions to meet the requirements of this SNPRM. As
more states build SACWIS, ACF anticipates it will lead to more
efficiency in reporting and less cost and burden to the state agencies.
Finally, after reviewing the 2014 Bureau of Labor Statistics data
to help determine the costs of the SNPRM, ACF assumed that there will
be a mix of staff working to meet both the one-time and annual
requirements of this SNPRM with the job role of Management Analyst (13-
1111) with a mean hourly wage estimate of $43.68 and those with the job
role of Social and Community Service Managers (11-9151) with a mean
hourly wage estimate of $32.56. Thus, ACF averaged the two wages to
come to an average labor rate of $38.12. In order to ensure we took
into account overhead costs associated with these labor costs, ACF
doubled this rate.
Annual Recordkeeping and Reporting Burden Estimate: ACF estimated
the annual recordkeeping and reporting burden by multiplying the time
spent on the recordkeeping and reporting activities described below by
the number of children in foster care to arrive at the total
recordkeeping hours. These estimates represent the work
[[Page 20298]]
associated with the state title IV-E agency searching data sources and
gathering information, entering the information, extracting the
information for AFCARS reporting, and transmitting the information to
ACF. These estimates are based on our assumptions, described above, on
how much of the information proposed in this SNPRM state title IV-E
agencies currently have in their electronic or paper case files or
information system or have ready access to, while taking into account
that some of the elements may require more effort to gather the
information if it is not readily accessible.
Gathering the information for and entering the ICWA-
related data elements that apply to all children who enter foster care
on average will take approximately 132,373 annual burden hours. (0.5
hours x 264,746 children who entered foster care = 132,373 annual
burden hours for all children in the out-of-home care reporting
population)
Gathering the information for and entering the ICWA-
related data elements that apply to children in foster care who are
covered by ICWA, on average will take 59,600 annual burden hours. (10
hours x 5,960 children who enter foster care with a race reported as
American Indian or Alaska Native = 59,600 annual burden hours for
children in the out-of-home care reporting population who are covered
by ICWA). ACF estimated that it would take a state title IV-E agency on
average 10 hours annually to gather and input the ICWA-related data
elements that apply to children in foster care who are covered by ICWA.
ACF estimated this by assuming that a state title IV-E agency would be
gathering and inputting information for approximately 14 of the
proposed data elements for an average foster care episode, if the child
is not transferred and there is no TPR or adoption. In cases where the
child is transferred, ACF estimated that the burden would decrease
because the agency would have fewer data elements to complete and the
burden would increase in cases where there is a TPR and the child is
adopted because there would be more data elements that the agency would
have to complete.
Extracting and submitting the information to ACF for
AFCARS reporting on average will take 6 annual burden hours per state
title IV-E agency. Nationally, the hour burden for all 52 state title
IV-E agencies would be 312 (6 hours x 52 states = 312). ACF took into
account the number of data elements proposed in this SNPRM when
estimating the reporting burden.
ACF added the bullets above and estimate the number of annual
recordkeeping and reporting burden hours that workers will spend on
ICWA-related AFCARS requirements in the out-of-home care reporting
population annually will be 192,285 hours (132,373 + 59,600 + 312 =
192,285). Dividing this annual figure by the 52 state title IV-E
agencies, ACF arrived at approximately 3,698 average burden hours per
respondent per year for the ICWA-related information in the AFCARS out-
of-home care data file. (192,285 / 52 title IV-E agencies = 3,697.79
average burden hours per respondent per year.)
One-Time Burden Estimate: ACF estimated the one-time burden by
adding up the time spent on the activities described below and
multiplying it by the 52 state title IV-E agencies to arrive at the
one-time burden hours. The one-time burden estimates represent the work
associated with the activities described below. As stated above, ACF
came to these estimates by using average estimates for revising a
SACWIS, which is the best information available. It is also important
to note that states will have the option of updating their systems in a
streamlined manner since ACF plans to issue the final rules for new
AFCARS regulations and for child welfare information systems.
Modifying procedures and systems (including developing or
acquiring technology) to collect, validate, verify, process, and report
the information to ACF on average will take approximately 130 burden
hours.
Adjustments to the existing ways to comply with AFCARS,
developing technology and systems to collect and process data on
average will take approximately 200 burden hours.
The administrative tasks associated with training
personnel on the new AFCARS requirements of this SNPRM which include
reviewing instructions, including training development and manuals on
average will take approximately 30 burden hours.
Training personnel on the new AFCARS requirements of this
SNPRM on average will take approximately 1,276 burden hours. ACF
arrived at this estimate by dividing the number of children in foster
care on September 30, 2014 (415,129) by an estimated average caseload
of 25 cases per worker to arrive at an estimate of 16,605 workers to be
trained. ACF divided this number (16,605) by 52 to account for average
workers per state title IV-E agency, and arrived at 319 workers. ACF
multiplied the workers (319) by the number of estimated hours to
complete training (4 hours) to arrive at 1,276 burden hours to train
personnel per state title IV-E agency on the new AFCARS requirements.
ACF added the burden hours above (1,636 hours) and multiplied by 52
state title IV-E agencies, which results in a one-time burden of 85,072
hours (1,636 x 52 = 85,072 one-time burden hours).
Total Burden Cost
ACF used a total cost and burden hour estimates to provide
additional detail on projected average cost for each state title IV-E
agency implementing the changes described in this SNPRM. Once the
burden hours were determined, ACF developed an estimate of the
associated cost for state title IV-E agencies to conduct these
activities, as applicable. Based on our assumptions above, ACF used an
average labor rate of $38.12 and doubled this rate to account for
overhead costs ($76.24). Based on these rates, ACF estimated the cost
for one-time burden to be $6,485,889.28 (85,072 one-time hours x $76.24
hourly cost/overhead = $6,485,889.28) and ACF estimated the cost for
annual burden to be $14,659,808.40 (192,285 annual hours x $76.24
hourly cost = $14,659,808.40). Dividing these costs by 52 state title
IV-E agencies, ACF estimated the average cost per state title IV-E
agency to be $124,728.64 one-time and $281,919.39 annually. Federal
reimbursement under title IV-E will be available for a portion of the
costs that title IV-E agencies will incur as a result of the revisions
proposed in this rule, depending on each agency's cost allocation plan,
information system, and other factors.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average
hourly labor Total cost Number of
Hours rate + nationwide respondents Net average cost per respondent
overhead
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total One-Time Burden....................... 85,072 $76.24 $6,485,889.28 52 $124,728.64 One-Time.
Total Annual recordkeeping and reporting 192,285 76.24 14,659,808.40 52 281,919.39 Annually.
burden.
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 20299]]
In the above estimates, ACF acknowledges: (1) ACF has used average
figures for state title IV-E agencies of very different sizes and of
which, some states may have larger populations of tribal children
served than other states, (2) these are rough estimates of the burden
because state title IV-E agencies have not been required previously to
report ICWA-related information in AFCARS, and (3) as described, ACF
has limited information to use in making these estimates. ACF welcomes
comments on these factors and all others in this section.
ACF will consider comments by the public on this proposed
collection of information in the following areas:
1. Evaluating whether the proposed collection is necessary for the
proper performance of the functions of ACF, including whether the
information will have practical utility;
2. Evaluating whether the proposed collection is sufficient to
assess and serve the unique needs of AI/AN children under the placement
and care of title IV-E agencies;
3. Evaluating the accuracy of ACF's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used;
4. Enhancing the quality, usefulness, and clarity of the
information to be collected; and
5. Minimizing the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technology, e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment to the Department on the proposed
regulations. Written comments to OMB for the proposed information
collection should be sent directly to the following: Office of
Management and Budget, either by fax to 202-395-6974 or by email to
OIRA_submission@omb.eop.gov. Please mark faxes and emails to the
attention of the desk officer for ACF.
VII. Tribal Consultation Statement
As we stated in section IV of this SNPRM, we held one Tribal
consultation session via a teleconference call on May 1, 2015 and we
did not receive suggestions from tribal representatives during the
call. A few tribal representatives indicated that they would comment on
the data elements through the SNPRM when it is issued.
We also stated in section IV of this SNPRM that we analyzed
comments to the Feb. 2015 AFCARS NPRM that spoke to ICWA-related data
elements to help inform this SNPRM. We received 45 comments that spoke
to including new data elements in AFCARS related to ICWA; a majority of
which were from tribes/tribal organizations. The commenters recommended
data elements that provide basic information about the applicability of
ICWA for children in out-of-home care, including: Identification of
American Indian and Alaskan Native children and their family structure,
tribal notification and intervention in state court proceedings, the
relationship of the foster parents and other providers to the child,
decisions to place a child in out-of-home care (including data on
active efforts and continued custody), whether a placement was licensed
by an Indian tribe, whether the placement preferences in ICWA were
followed, and termination of parental rights (both voluntary and
involuntary).
List of Subjects in 45 CFR Part 1355
Adoption and foster care, Child welfare, Grant programs--social
programs.
(Catalog of Federal Domestic Assistance Program Number 93.658,
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child
Welfare Services--State Grants).
Mark H. Greenberg,
Acting Assistant Secretary for Children and Families.
Approved: February 17, 2016.
Sylvia M. Burwell,
Secretary.
For the reasons set forth in the preamble, 45 CFR part 1355 as
proposed to be amended on February 9, 2015 (80 FR 7132), is proposed to
be further amended as follows:
PART 1355--GENERAL
0
1. The authority citation for part 1355 continues to read as follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42
U.S.C. 1302.
0
2. Amend Sec. 1355.43 by adding paragraph (i) to read as follows:
Sec. 1355.43 Out-of-home care data file elements.
* * * * *
(i) Data elements related to the Indian Child Welfare Act (ICWA)--
(1) Definitions. Unless otherwise specified, the following terms as
they appear in this paragraph (i) are defined as follows:
Child custody proceeding has the same meaning as in 25 U.S.C.
1903(1).
Extended family member has the same meaning as in 25 U.S.C.
1903(2).
Indian has the same meaning as in 25 U.S.C. 1903(3).
Indian child has the same meaning as in 25 U.S.C. 1903(4).
Indian child's tribe has the same meaning as in 25 U.S.C. 1903(5).
Indian custodian has the same meaning as in 25 U.S.C. 1903(6).
Indian organization has the same meaning as in 25 U.S.C. 1903(7).
Indian tribe has the same meaning as in 25 U.S.C. 1903(8).
Parent has the same meaning as in 25 U.S.C. 1903(9).
Reservation has the same meaning as in 25 U.S.C. 1903(10).
Tribal court has the same meaning as in 25 U.S.C. 1903(12).
(2) For all children in the out-of-home care reporting population
per Sec. 1355.41(a), the state title IV-E agency must complete the
data elements in paragraphs (i)(3) through (5) of this section. If the
state title IV-E agency responds with ``yes'' to the data elements in
paragraph (i)(4) or (5) of this section, then the agency must complete
the remaining applicable paragraphs (i)(6) through (29) of this
section.
(3) Identifying an ``Indian Child'' under the Indian Child Welfare
Act. Indicate whether the state title IV-E agency researched whether
there is a reason to know that the child is an Indian child under ICWA
in each paragraph (i)(3)(i) through (viii) of this section.
(i) Indicate whether the state agency inquired with the child's
biological or adoptive mother. Indicate ``yes,'' ``no'' or ``the
biological or adoptive mother is deceased.''
(ii) Indicate whether the biological or adoptive mother is a member
of an Indian tribe. Indicate ``yes,'' ``no'' or ``unknown.''
(iii) Indicate whether the state agency inquired with the child's
biological or adoptive father. Indicate ``yes,'' ``no,'' or ``the
biological or adoptive father is deceased.''
(iv) Indicate whether the biological or adoptive father is a member
of an Indian tribe. Indicate ``yes,'' ``no,'' or ``unknown.''
(v) Indicate whether the state agency inquired with the child's
Indian custodian, if the child has one. Indicate ``yes,'' or ``no'' or
``child does not have an Indian custodian.''
[[Page 20300]]
(vi) Indicate whether the state agency inquired with the child who
is the subject of the proceeding. Indicate ``yes'' or ``no.''
(vii) Indicate whether the child is a member of or eligible for
membership in an Indian tribe. Indicate ``yes,'' ``no,'' or
``unknown.''
(viii) Indicate whether the domicile or residence of the child,
parent, or the Indian custodian is known by the agency to be, or is
shown to be, on an Indian reservation. Indicate ``yes'' or ``no.''
(4) Application of ICWA. Indicate whether the state title IV-E
agency knows or has reason to know that the child is an Indian child as
defined by ICWA. Indicate ``yes'' or ``no.'' If the state title IV-E
agency indicated ``yes,'' the state title IV-E agency must complete the
data elements in paragraphs (i)(4)(i) and (ii) of this section. If the
state title IV-E agency indicated ``no,'' the state title IV-E agency
must leave the data elements in paragraphs (i)(4)(i) and (ii) of this
section blank.
(i) Indicate the date that the state title IV-E agency discovered
the information that indicates that the child is or may be an Indian
child.
(ii) Indicate the name(s) of all federally recognized Indian
tribe(s) that may potentially be the Indian child's tribe(s).
(5) Indicate whether a court order indicates that the court found
that ICWA applies. Indicate ``yes, ICWA applies,'' ``no, ICWA does not
apply,'' or ``no court finding.'' If the state title IV-E agency
indicated ``yes, ICWA applies,'' the state title IV-E agency must
complete paragraphs (i)(5)(i) and (ii) of this section. If the state
title IV-E agency indicated ``no, ICWA does not apply,'' the state
title IV-E agency must complete the data element in paragraph (i)(5)(i)
of this section and leave the data element in paragraph (i)(5)(ii) of
this section blank. If the state title IV-E agency indicated ``no court
finding,'' the state title IV-E agency must leave the data elements in
paragraphs (i)(5)(i) and (ii) of this section blank.
(i) Indicate the date of the court finding.
(ii) Indicate the name of the Indian tribe(s) that the court found
is the Indian child's tribe, if listed on the court order. If a name is
not listed on the court order, the state title IV-E agency must
indicate ``no name listed.''
(6) Transfer to tribal court. Indicate whether there is a court
order that indicates that the Indian child's parent, Indian custodian,
or Indian child's tribe requested, orally on the record or in writing,
that the state court transfer the case to the tribal court of the
Indian child's tribe, in accordance with 25 U.S.C. 1911(b), at any
point during the report period. Indicate ``yes'' or ``no.'' If the
state title IV-E agency indicated ``yes,'' then the state title IV-E
agency must complete the data element in paragraph (i)(7) of this
section. If the state title IV-E agency indicated ``no,'' the state
title IV-E agency must leave the data element in paragraph (i)(7) of
this section blank.
(7) If the state court denied the request to transfer the case to
tribal court, indicate whether there is a court order that indicates
the reason(s) why the case was not transferred to the tribal court.
Indicate ``yes'' or ``no.'' If the title IV-E agency indicated ``yes,''
then the title IV-E agency must indicate whether each reason in each
paragraphs (i)(7)(i) through (iii) of this section is in the court
order by indicating ``yes'' or ``no.'' If the state title IV-E agency
indicates ``no,'' the title IV-E agency must leave the data elements in
paragraphs (i)(7)(i) through (iii) of this section blank.
(i) Either of the parents objected to transferring the case to the
tribal court.
(ii) The tribal court declined the transfer to the tribal court.
(iii) The state court found good cause not to transfer the case to
the tribal court.
(8) Notification. (i) Indicate whether the Indian child's parent or
Indian custodian was given legal notice more than 10 days prior to of
the first child custody proceeding in accordance with 25 U.S.C.
1912(a). Indicate ``yes'' or ``no.''
(ii) Indicate whether the Indian child's tribe(s) was given legal
notice more than 10 days prior to the first child custody proceeding in
accordance with 25 U.S.C. 1912(a). Indicate ``yes'', ``no'' or ``the
child's Indian tribe is unknown.''
(9) Indicate the name(s) of the Indian tribe(s) that were sent
notice for a child custody proceeding as required in ICWA at 25 U.S.C.
1912(a).
(10) If the tribe(s) requested additional information, indicate
whether the state title IV-E agency replied with the additional
information that the Indian tribe(s) requested. If the tribe did not
request additional information, indicate ``does not apply.'' Otherwise,
indicate ``yes'' or ``no.''
(11) Active efforts to prevent removal and reunify with Indian
family. Indicate the date that the state title IV-E agency began making
active efforts to prevent the breakup of the Indian family for the most
recent removal reported in paragraph (d) of this section of the Indian
child in accordance with 25 U.S.C. 1912(d).
(12) Indicate whether the court found, in a court order, that the
state title IV-E agency made active efforts to prevent the breakup of
the Indian family for the most recent removal reported in paragraph (d)
of this section and that these efforts were unsuccessful in accordance
with 25 U.S.C. 1912(d). Indicate ``yes'' or ``no.''
(13) Indicate the active efforts that the state title IV-E agency
made to prevent the breakup of the Indian family in accordance with 25
U.S.C. 1912(d). Indicate ``yes'' or ``no'' for each paragraph
(i)(13)(i) through (xi) and (xiii) of this section. Indicate ``yes,''
``no'' or ``N/A'' for paragraph (i)(13)(xii) of this section.
(i) Identify appropriate services to help the parent.
(ii) Actively assist the parent to obtain services.
(iii) Invite representatives of the Indian child's tribe to
participate in the proceedings.
(iv) Complete a comprehensive assessment of the family.
(v) Focus on safe reunification as the goal for the Indian child.
(vi) Consult with extended family members to provide support for
the Indian child.
(vii) Arrange for family interaction in most natural setting safely
possible.
(viii) Monitor progress and participation in services to reunite
the Indian family.
(ix) Consider alternative ways of addressing the needs of the
Indian child's parent and extended family if services do not exist or
are not available.
(x) Support regular visits and trial home visits consistent with
ensuring the Indian child's safety.
(xi) Conduct or cause to be conducted a diligent search for the
Indian child's extended family members for assistance and possible
placement.
(xii) Keep siblings together.
(xiii) Other.
(14) Removals. Indicate ``yes'' or ``no'' for paragraphs (i)(14)(i)
and (ii) of this section: (i) Indicate whether the court found by clear
and convincing evidence, in a court order, that continued custody of
the Indian child by the parent or Indian custodian was likely to result
in serious emotional or physical damage to the Indian child in
accordance with 25 U.S.C. 1912(e). (ii) Indicate whether the court
finding reported for this paragraph (i)(14), indicates that the state
court's finding was supported by the testimony of a qualified expert
witness in accordance with 25 U.S.C. 1912(e).
(15) Foster care and pre-adoptive placement preferences. Indicate
which foster care or pre-adoptive placements that meet the placement
preferences of
[[Page 20301]]
ICWA in 25 U.S.C. 1915(b) were available to accept placement. Indicate
in each paragraph (i)(15)(i) through (v) of this section ``yes'' or
``no.''
(i) A member of the Indian child's extended family.
(ii) A foster home licensed, approved, or specified by the Indian
child's tribe.
(iii) An Indian foster home licensed or approved by an authorized
non-Indian licensing authority.
(iv) 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.
(v) A placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
tribe, in accordance with 25 U.S.C. 1915(c).
(16) For the Indian child's current foster care or pre-adoptive
placement as of the end of the report period per paragraph (e) of this
section, indicate whether the placement meets the placement preferences
of ICWA in 25 U.S.C. 1915(b) by indicating with whom the Indian child
is placed. Indicate ``a member of the Indian child's extended family,''
``a foster home licensed, approved, or specified by the Indian child's
tribe,'' ``an Indian foster home licensed or approved by an authorized
non-Indian licensing authority,'' ``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,'' ``a
placement that complies with the order of preference for foster care or
pre-adoptive placements established by an Indian child's tribe, in
accordance with 25 U.S.C. 1915(c)'' or ``none.''
(17) If the placement preferences for foster care or pre-adoptive
placements were not followed, indicate whether the court made a finding
of good cause, on a court order, to place the Indian child with someone
who is not listed in the placement preferences of ICWA in 25 U.S.C.
1915(b) or the placement preferences of the Indian child's tribe.
Indicate ``yes'' or ``no.'' If the state title IV-E agency indicated
``yes,'' then the state title IV-E agency must complete the data
element in paragraph (i)(18) of this section. If the state title IV-E
agency indicated ``no,'' then the state title IV-E agency must leave
the data element in paragraph (i)(18) of this section blank.
(18) Indicate the state court's basis for the finding of good
cause, as indicated on the court order, by indicating ``yes'' or ``no''
in each paragraph (i)(18)(i) through (v) of this section.
(i) Request of the biological parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement that meets the
placement preferences in ICWA at 25 U.S.C. 1915.
(iv) The extraordinary physical or emotional needs of the Indian
child.
(v) Other.
(19) Termination of parental rights. Indicate whether the
termination of parental or Indian custodian rights was voluntary or
involuntary. Indicate ``voluntary'' or ``involuntary.'' If the state
title IV-E agency indicated ``voluntary'', the state title IV-E agency
must leave the data elements in paragraphs (i)(20) and (21) of this
section blank. If the state title IV-E agency indicated
``involuntary'', the state title IV-E agency must leave the data
elements in paragraphs (i)(22) through (24) of this section blank.
(20) Indicate whether, prior to ordering an involuntary termination
of parental rights, the state court found beyond a reasonable doubt, in
a court order, that continued custody of the Indian child by the parent
or Indian custodian is likely to result in serious emotional or
physical damage to the Indian child in accordance with 25 U.S.C.
1912(f). Indicate ``yes'' or ``no.''
(21) Indicate whether the court finding reported for paragraph
(i)(20) of this section, indicates that the state court's finding was
supported by the testimony of a qualified expert witness in accordance
with 25 U.S.C. 1912(f). Indicate ``yes'' or ``no.''
(22) If voluntary, indicate whether there is a court order that
indicates that the voluntary consent to termination for the biological
or adoptive mother was made in writing and recorded in the presence of
a judge in accordance with 25 U.S.C. 1913. Indicate ``yes,'' ``no,'' or
``does not apply'' if the mother is deceased.
(23) If voluntary, indicate whether there is a court order that
indicates that the voluntary consent to termination for the biological
or adoptive father was made in writing and recorded in the presence of
a judge in accordance with 25 U.S.C. 1913. Indicate ``yes,'' ``no'' or
``does not apply'' if the father is deceased.
(24) If voluntary, indicate whether there is a court order that
indicates that the voluntary consent to termination for the Indian
custodian was made in writing and recorded in the presence of a judge
in accordance with 25 U.S.C. 1913. Indicate ``yes,'' ``no'' or ``does
not apply'' if there is no Indian custodian.
(25) Adoption proceedings. Indicate whether the Indian child exited
foster care to adoption per paragraph (g) of this section. Indicate
``yes'' or ``no.'' If the state title IV-E agency indicated ``yes,''
the state title IV-E agency must complete the data element in
paragraphs (i)(26) through (29) of this section. If the state title IV-
E agency indicated ``no,'' the state title IV-E agency must leave the
data element in paragraphs (i)(26) through (29) of this section blank.
(26) Indicate which adoptive placements that meet the placement
preferences in ICWA at 25 U.S.C. 1915(a) were willing to accept
placement. Indicate in each paragraphs (i)(26)(i) through (iv) of this
section ``yes'' or ``no.''
(i) A member of the Indian child's extended family.
(ii) Other members of the Indian child's tribe.
(iii) Other Indian families.
(iv) A placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
tribe, in accordance with 25 U.S.C. 1915(c).
(27) Indicate whether the placement reported in paragraph (h) of
this section meets the placement preferences of ICWA in 25 U.S.C.
1915(a) by indicating with whom the Indian child is placed. Indicate
``a member of the Indian child's extended family,'' ``other members of
the Indian child's tribe,'' ``other Indian families,'' ``a placement
that complies with the order of preference for foster care or pre-
adoptive placements established by an Indian child's tribe, in
accordance with 25 U.S.C. 1915(c),'' or ``none.''
(28) If the placement preferences for adoption were not followed,
indicate whether the court made a finding of good cause, on a court
order, to place the Indian child with someone who is not listed in the
placement preferences of ICWA in 25 U.S.C. 1915(a) or the placement
preferences of the Indian child's tribe. Indicate ``yes'' or ``no.'' If
the state title IV-E agency indicated ``yes,'' then the state title IV-
E agency must complete the data element in paragraph (i)(29) of this
section. If the state title IV-E agency indicated ``no,'' then the
state title IV-E agency must leave the data element in paragraph
(i)(29) of this section blank.
(29) Indicate whether there is a court order that indicates the
court's basis for the finding of good cause, by indicating ``yes'' or
``no'' in each paragraph (i)(29)(i) through (v) of this section.
(i) Request of the biological parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement that meets the
placement preferences in ICWA at 25 U.S.C. 1915.
(iv) The extraordinary physical or emotional needs of the Indian
child.
(v) Other.
[FR Doc. 2016-07920 Filed 4-5-16; 8:45 am]
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