Current through all regulations passed and filed through September 16, 2024
(A) For each referral the agency screens in, the
public
children services agency (PCSA) or private child placing agency (PCPA)
shall
ask case participants whether
the participant
knows or has reason to know pursuant to rule
5101:2-53-02 of the
Administrative Code that the child
is an Indian child as defined in rule
5101:2-53-01 of the
Administrative Code. The agency shall make this inquiry upon the initial
face to face contact with the child or the
child's parent, guardian or custodian.
(B) If the child's
parents, guardian or custodian are unavailable or unable to provide information
regarding whether the child may be an Indian child, the agency
shall consider the following and document in the case record:
(1) A consultation with relatives or
collaterals providing information which suggests the parent
may or may not be a member of an Indian tribe or
the child may or may not be a member of or eligible for
membership in an Indian tribe.
(2) An examination of any other information
bearing on the determination of the child's status of membership or eligibility
for membership in an Indian tribe, such as a review of all documentation
in the file, including contact with previous caseworkers and communication from
other sources, (e.g., Indian tribes and Indian organizations).
(C)
If
there is reason to know that the child is an Indian child, but the agency does
not have sufficient evidence to determine that the child is or is not an Indian
child, the agency shall:
(1)
Use due diligence to identify and work with all of the
tribes of which there is reason to know that the child may be a member or
eligible for membership and to verify that the child is a member or a
biological parent is a member and the child is eligible for membership;
and
(2)
Treat the child as an Indian child, unless and until it
is determined that the child does not meet the definition of an Indian
child.
(D) If the
agency is initiating court action for removal or custody of the child and
information is obtained that suggests a child may be
an
Indian childbut the tribe cannot be identified, the agency shall
seek assistance in identifying and locating the tribe
by
sending the notice described in rule
5101:2-53-04 of the
Administrative Code to the bureau of Indian affairs (BIA)as described in paragraph (E) of rule
5101:2-53-04 of the
Administrative Code.
(E) If the
agency is initiating court action for removal or custody of the child and
information is obtained that suggests a child is
an Indian child and a tribe or possible tribes
have been identified, the agency shall do all of the following:
(1) Contact the tribe or possible tribes
within fourteen calendar days of the date the
information was obtained; and
(2)
Submit a request to each possible tribe
for written verification from the tribe regarding the
child's tribal membership or eligibility for
tribal membership. The agency's inquiry to the tribe shall be sent
by registered or certified mail with "return
receipt requested" . A list of federally
recognized tribes which includes a contact person and address for each tribe is
available on the BIA website at www.bia.gov. If the tribe does not
respond to written inquiries, the caseworker
shall seek
assistance in contacting the Indian tribe from the BIA regional office in
Minnesota or the BIA's central office in Washington D.C.
(3) Bring to the juvenile court's attention,
if applicable, any documentation submitted by the tribe and the agency's
efforts to verify whether the child is or is not an Indian
child.
(4) Include the
following information with the petition filed in such proceeding:
(a) The name, age, tribal affiliation(s) and
last known address of the Indian child.
(b) The name and address of the child's
parent(s) and/or Indian custodian(s), if any, and tribe. The agency shall
provide a detailed explanation of active efforts made to locate the parents,
Indian custodian and/or the Indian child's tribe.
(c) A detailed account of the circumstances
which led the agency to conclude that the child would suffer imminent physical
damage or harm.
(d) A specific plan
of action the agency is following, including services provided, to restore the
child to his or her parent(s) or Indian custodian, or to transfer the child to
the jurisdiction of the appropriate Indian tribe.
(F) If the juvenile court takes
action to verify whether the child is or is not an
Indian child, the agency shall provide the court with assistance if so
requested.
(G) The agency shall
assist the family in filing required documents if the family wishes to submit
an application for the child to become a member of his or her tribe.
(H)
If the Indian
child is a member or eligible for membership in only one tribe, that tribe
shall be designated as the Indian child's tribe.
(I)
If the child
meets the definition of "Indian child" through more than one tribe, deference
should be given to the tribe in which the Indian child is already a member,
unless otherwise agreed to by the tribes.
(J)
If a child meets
the definition of "Indian child" through more than one tribe because the child
is a member in more than one tribe or the child is not a member of but is
eligible for membership in more than one tribe, the court must provide the
opportunity in any involuntary child custody proceeding for the tribes to
determine which should be designated as the Indian child's tribe.
(1)
If the tribes are
able to reach an agreement, the agreed-upon tribe shall be designated as the
Indian child's tribe.
(2)
If the tribes are unable to reach an agreement, the
court will designate, for the purposes of the Indian Child Welfare Act (ICWA),
the Indian tribe with which the Indian child has the more significant contacts
as the Indian child's tribe, taking into consideration the following:
(a)
Preference of the
parents for membership of the child;
(b)
Length of past
domicile or residence on or near the reservation of each tribe;
(c)
Tribal membership
of the child's custodial parent or Indian custodian;
(d)
Interest asserted
by each tribe in the child custody proceeding;
(e)
Whether there has
been a previous adjudication with respect to the child by a court of one of the
tribes; and
(f)
Self-identification by the child, if the child is of
sufficient age and capacity to meaningfully self-identify.
(3)
A
determination of the Indian child's tribe for the purposes of ICWA does not
constitute a determination for any other purpose.
(K) A
child who is determined by the tribe not to be a member nor eligible for
membership is not subject to the requirements of the ICWA. Once tribal
ineligibility has been determined, tribal status
shall be
clearly documented in the case record, along with the date and source of
documentation. In such cases, agency staff shall:
(1) Document in the case record steps taken
to determine
if the child is or is not an Indian
child and the tribe's written statement declaring the child ineligible
for membership.
(2) Incorporate in
any court hearing the tribe's written statement declaring the child ineligible
for membership.
Effective: 2/1/2018
Five Year Review
(FYR) Dates: 10/12/2017 and
02/01/2023
Promulgated
Under: 119.03
Statutory Authority: 5103.03, 5153.166
Rule
Amplifies: 5103.03, 5153.16
Prior Effective Dates: 04/01/1987,
02/01/2003, 04/20/2008, 02/01/2014
