The State Has to Prove Beyond a Reasonable Doubt to Terminate Your Parental Rights in an ICWA Case
Video Transcribed: What is ICWA and how does it apply to you if you are in a deprived case? Hello, my name is Ryan Cannonie, I’m an CPS Defense Lawyer with the CPS Investigation Defense Law office, and I’m here to talk to you today about the Indian Child Welfare Act.
Well, first there are actually two Indian Child Welfare Acts that would apply to you if you find yourself in a situation where you are trying to get your children back in Oklahoma state courts.
Now the first Indian Child Welfare Act that would apply to you is going to be the State ICWA Act. ICWA is what we say… I-C-W-A, short for the Indian Child Welfare Act. Now the state act and the federal act are pretty well the same.
There are some small differences, but you really have to follow what both say. In addition, the Bureau of Indian Affairs puts out guidelines. The most recent, I think, are 2016, and they also state parts of the law that you have to follow.
So what does this mean to you? If your children are enrolled in a Native American tribe, or they’re eligible for enrollment in a Native American tribe… Also, I should clarify federally recognized tribe, then ICWA applies to your case.
What it means to have ICWA apply is that you will… If you’re in a certain tribe, for instance, Cherokee Nation, Choctaw Nation, I believe the Creek Nation as well… will send an additional child welfare worker to court for your case.
Now, sometimes they can help you and sometimes they can testify against you. It just depends on what’s going on in your case. In addition, it also puts more rules on what the state can and can’t do. And it gives you a few more rights than in a normal case.
For instance, the state has to prove beyond a reasonable doubt to terminate your parental rights in an ICWA case. The state, both adjudication and termination, has to have an expert. Now that could be someone provided by the tribe, or it could be a doctor or someone else with specialized knowledge to testify to the ‘magic words’, as it were, to keep your children in state custody.
These words are, “If the child were to be returned to the home, it would likely result in physical and/or emotional damage.” A case law has said these words. So now it’s something everyone says in an ICWA case to prove that your children either need to remain out of your home or your parental rights need to be terminated.
The other issues that come up in an ICWA case could be timing. For instance, within 30 days of the state taking your children, there has to be a fin
ding of those magic words I just mentioned. Their placement of your children.
Then, which if you find yourself in the unfortunate position of having your children taken from you by the courts, placement is going to be very important to you. You have very few controls over what happens with your children at that point.
But knowing they’re with a family member or a close friend, is something that could help you through the process. So placement for ICWA purposes as a tier system. Meaning there are first tier preferences, second tier, third tier, and so forth.
So the first tier preference, the one that the tribe really wants people to be in, is with family. And that’s usually where you want your children to be with.
With family members who can make sure they’re still connected to you and connected to your life. The second tier is someone from within the tribe. A foster home with a person of the same tribe as yourself.
Third tier is someone who is a member of any tribe. Unfortunately in Oklahoma, a lot of times we end up with a third tier preference just because they’re not enough foster homes and not enough ICWA-certified foster homes in the state. So you might be having your children in a tribal member’s household in Durant, even though you live in Tahlequah.
Having an attorney that understands not only Oklahoma Deprive Law, but also all of the ins and outs of ICWA is going to be very important to you as you go forward in your case. Knowing when the state has done what it was supposed to and when the state has failed to meet its burden so you can get your kids back is something that can impact every stage of your case going forward. So if you want an attorney like that, please give a Oklahoma DHS attorney a call and we can help you with your legal matters.