12 Colo. Code Regs. § 2509-4-7.309

Current through Register Vol. 47, No. 11, June 10, 2024

Section 12 CCR 2509-4-7.309 - INDIAN CHILD WELFARE ACT (ICWA) OF 1978

The Indian Child Welfare Act (ICWA) of 1978 is federal legislation that establishes standards for the placement of Indian children in foster care or adoptive homes. Regulations effective on December 12, 2016 were created for the substantive legal requirements of ICWA and updated federal guidelines were also adopted at that time to clarify best practices in implementing ICWA and its regulations. All rights and privileges afforded to parents and children in any other section of this manual are applicable to rights and privileges for Indian parent(s), Indian custodian(s), and children under jurisdiction of county departments. Indian Tribes are not subject to rules related to ICWA as they have Tribal sovereignty.

7.309.1DEFINITIONS

A. Active Efforts - Affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family. Active efforts shall involve assisting the parent(s) or Indian custodian(s) through the steps of a case plan and accessing or developing the resources necessary to satisfy the case plan to the maximum extent possible. Active efforts should be provided in a manner consistent with the prevailing social and cultural conditions of the Indian child's Tribe and should be conducted in partnership with the Indian child and the Indian child's parent(s), extended family members, Indian custodian and Tribe. Active efforts may include:

1. Conducting a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal;

2. Identifying appropriate cultural services and helping the parent(s) to overcome barriers, including actively assisting the parent(s) in obtaining such services;

3. Identifying, notifying, and inviting representatives of the Indian child's Tribe to participate in providing support and services to the Indian child's family and in family meetings, permanency planning and resolution of placement issues;

4. Conducting a diligent search or intensive family finding for the Indian child's extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child's parent(s);

5. Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child's Tribe;

6. Taking steps to keep siblings together whenever possible;

7. Supporting regular visits with parent(s) or Indian custodian(s) in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child;

8. Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child's parent(s) or, when appropriate, the child's family in utilizing and accessing those resources;

9. Monitoring progress and participation in services;

10. Considering alternative ways to address the needs of the Indian child's parent(s) and, where appropriate, the family, if the optimum services do not exist or are not available; and,

11. Providing post-reunification services and monitoring.

B. Child Custody Proceedings - Any action other than an emergency proceeding that may culminate into one of the following outcomes: foster care placement, termination of parental rights, pre-adoptive placement, or adoptive placement.

C. Continued Custody - Physical or legal custody that the parent(s) or Indian custodian(s) has or had at any point in the past and may be applicable by Tribal law or custom.

D. Domicile - For a parent(s) or Indian custodian(s), the place at which a person has been physically present and that the person regards as home; a person's fixed principal and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.

E. Emergency Placement - Child(ren) must be in imminent danger of moderate to severe physical damage or harm with clear and convincing evidence available to be presented before the court . Emergency placement may not last longer than thirty (30) days.

F. Emergency Proceeding- Includes any court action that involves an emergency removal or emergency placement of an Indian child.

G. Existing Indian Exception - repealed.

H. Indian Custodian(s) - Any Indian who has legal custody of an Indian child under Tribal law, custom, or by state law, including those situations when the parent(s) has transferred temporary physical care, custody, and control to another individual.

I. Indian Foster Home - A foster home in which one or more of the foster parent(s) is a member/citizen of a federally recognized Indian Tribe, or who is an Alaska native and a member of a regional corporation.

J. Involuntary Proceeding - A child custody proceeding in which the parent does not consent of his or her free will to the foster care, pre-adoptive, or adoptive placement or termination of parental rights. This includes parental consent under threat of removal by a court or county department.

K. Indian Tribe - Any Indian Tribe, band, nation, or other organized group federally recognized as eligible for the services provided to Indians including Alaskan native villages.

L. Qualified Expert Witness - An individual who is qualified to testify regarding whether the child's continued custody by the parent(s) or Indian custodian(s) is likely to result in serious emotional or physical harm to the child and is qualified to testify as to prevailing social and cultural standards of the Indian child's Tribe. A person may be designated by the Indian child's Tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child's Tribe. The court or any party may request the assistance of the Indian child's Tribe or the Bureau of Indian Affairs (BIA) in locating persons qualified to serve as expert witnesses. The case worker regularly assigned to the Indian child may not serve as a qualified expert witness in child-custody proceedings concerning the child.

M. Tribal Court - A court with jurisdiction over child custody proceedings and which is either a court of Indian offenses, a court established and operated under the code or custom of an Indian Tribe, or any other administrative body of a Tribe which is vested with authority over child custody proceedings.

N. Tribal Sovereignty - Refers to Tribe's rights to govern themselves, define their own membership, manage Tribal property, and regulate Tribal business and domestic relations; it further recognizes the existence of a government-to-government relationship between such Tribes and the federal government.

O. Status Offense - An offense that would not be considered criminal if committed by an adult, and are prohibited only because of a person's status as a minor, such as truancy. If an Indian child is being removed because he or she committed a status offense, then ICWA applies.

7.309.2DETERMINATION OF ELIGIBILITY - INDIAN CHILD WELFARE ACT

Indian children served under the ICWA shall meet the following criteria for eligibility:

A. The Indian child must be:

1. unmarried;

2. under eighteen (18) years of age; and either,

3. a member or citizen of an Indian Tribe; or,

4. eligible for membership or citizenship in an Indian Tribe and the biological child of a member/citizen of an Indian Tribe.

B. If the child-custody proceeding extends beyond an Indian child's eighteenth (18th) birthday, ICWA continues to apply.

7.309.3NOTIFICATION PROCEDURES - INDIAN CHILD WELFARE ACT

7.309.31 Notification Requirements - Indian Child Welfare Act

A. The county department shall notify the parent(s), Indian custodian(s) and any potential Tribe or Tribal court of jurisdiction that an Indian child is in need of placement or if a petition for termination of the parent-child legal relationship has been filed with the court, when the parties have reason to know that an Indian child is involved, except in an emergency placement. The county department shall ask each participant in the case if they know or have reason to know that a child is an Indian child in any of the following:

1. Any involuntary placement of a Indian child; or

2. Any voluntary placement of any Indian child for foster care or petition for relinquishment as provided in the Tribal-State agreement under ICWA.

B. Notice is necessary to ensure that parent(s), Indian custodian(s), and Tribes have the opportunity to participate in the proceeding. Notice shall be sent by registered or certified mail with return receipt requested, of the pending child-custody proceeding and their right to intervene. The following information shall be provided as part of this notice:

1. Identifying information for the child, including name, birthdate and birthplace;

2. Parent(s)' names, including any known maiden or former names or aliases, birthplaces and birthdates and Tribal enrollment numbers or as much information as known;

3. If known, the names, birthdates, birthplaces and Tribal enrollment information of other direct lineal ancestors of the child, such as grandparent(s);

4. The name of each Indian Tribe in which the child is a member/citizen or may be eligible for membership/citizenship if a biological parent is a member/citizen;

5. A copy of the petition initiating the child-custody proceeding and a description of the potential legal consequences of the proceeding and if a hearing has been scheduled, information on the date, time and location of the hearing;

6. The name of the petitioner and the names and addresses of the petitioner's attorney;

7. Rights of any parent or Indian custodian(s) of the child to intervene in the proceedings;

8. The Indian Tribe's right to intervene at any time in a state-court proceeding for the foster care placement of or termination of parental rights to an Indian child;

9. The rights that if the child's parent(s) or Indian custodian(s) is unable to afford counsel based on determination of indigency by the court, the parent(s) or Indian custodian(s) has the right to court-appointed counsel;

10. The right to be granted, upon request, up to twenty (20) additional days to prepare for the child-custody proceedings;

11. The right of the parent(s) or Indian custodian(s) and the Indian child's Tribe to petition the court for transfer of the foster care placement or termination of the parental rights proceeding to the Tribal court;

12. The mailing addresses and telephone numbers of the court and information related to all parties; and

13. The potential legal consequences of the child custody proceedings on the future parental and custodial right.

C. Copies of these notices shall be sent to each of the following:

1. The Tribe where the child may be a member/citizen, or eligible for membership/citizenship; and

2. The child's parent(s) and if applicable the child's Indian custodian(s).

D. If the identity or location of the child's parent(s), the child's Indian custodian(s), or the Tribes in which the Indian child is a member/citizen or eligible for membership/citizenship cannot be ascertained, but there is reason to know the child is an Indian child, notices of the child custody proceeding shall be sent to the Bureau of Indian Affairs (BIA) regional director to establish Tribal identity.

E. Notice for the Colorado regional director shall be sent to the following address:

Albuquerque Regional Director

Bureau of Indian Affairs

1001 Indian School Road, NW

Albuquerque, NM 87104

F. The BIA will not make a determination of Tribal membership/citizenship but may, in some instances, be able to identify Tribes to contact.

G. Notice may also be sent via personal service or electronically, but such alternative methods do not replace the requirement for notice to be sent by registered or certified mail with return receipt requested.

H. The county department shall exercise due diligence to:

1. Identify the Tribe;

2. Work with the Tribe to verify whether the child is a citizen/member or their biological parent is a citizen/member and the child is eligible for citizenship/membership; and,

3. Treat the child as an Indian child, unless and until the court determines that the child is not an Indian child.

7.309.32Initial Notification - Involuntary Placements - Indian Child Welfare Act

A. The county department shall give notice in involuntary placements by telephone or via email within 48 hours, followed by registered or certified mail with return receipt requested, to the parent(s), Indian Custodian(s), if applicable, and the child's Tribe.

B. The county department shall observe the following timelines (except for emergency placements) before a judicial request for placement can be made. The county department shall wait at least 10 working days after receiving the return receipt of notice before proceeding with a judicial request when the notice has been sent to:

1. The parent(s) or Indian Custodian(s). If the parent(s) or Indian Custodian(s) requests time to prepare for the proceeding, the county department shall petition the court to set the hearing no earlier than 30 calendar days after receipt of notice.

2. The Tribe. If the Tribe requests time to prepare for the proceeding, the county department shall petition the court to set the hearing no earlier than 30 calendar days after receipt of notice.

7.309.33Initial Notification - Voluntary Placements - Indian Child Welfare Act

A. The county department shall give notice to the Tribe, when a placement is voluntary or a relinquishment is contemplated, in the same manner as noted immediately above, or according to the Tribal-State Agreement if the child is a member/citizen of the Ute Mountain Ute or enrolled or eligible for enrollment in the Southern Ute Indian Tribe.

B. The county department shall file a Petition for the Review of Need of Placement by the 90th day of out of-home care as outlined in Court Related Procedures, Section 7.304.53.

C. The county department shall follow step B. outlined in Section "Initial Notification-Involuntary Placements" when the child is placed due to a voluntary relinquishment.

7.309.34EMERGENCY PROCEEDINGS - INDIAN CHILD WELFARE ACT

A. Emergency proceedings can only be used if it is necessary to prevent imminent danger of physical harm to the child. The county department shall petition the court to terminate the emergency proceeding immediately when the removal or placement is no longer necessary to prevent imminent danger of harm to the child. An emergency proceeding can be terminated by one or more of the following actions:

1. Returning the child to the parent(s) or Indian custodian(s);

2. Transfer of the child to the jurisdiction of the appropriate Indian Tribe; or,

3. Initiation of a child-custody proceeding subject to the provisions of ICWA.

B. Active efforts shall be applied in emergency placements when possible.

C. Emergency placements regarding an Indian child shall not be continued for more than 30 days unless the court makes one of the following determinations:

1. Returning the child to the parent(s) or Indian custodian(s) would subject the child to imminent physical harm;

2. The court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian Tribe; or,

3. It has not been possible to initiate a child custody proceeding.

7.309.4TRANSFER OF JURISDICTION FROM STATE COURT TO TRIBAL COURT

A. Upon the Tribe's petition for transfer of jurisdiction, the county department shall carry out the transfer to the Tribe within five (5) working days, unless either parent or the Indian Custodian(s) objects to a transfer; where the Tribal court declines the transfer; or the court determines there is good cause not to transfer jurisdiction. A county department shall not request a good cause determination based on the following:

1. The child custody proceeding is in the advanced stages, if the parent(s), Indian custodian(s), or Indian child's Tribe did not receive notice of the proceeding until an advance stage;

2. Prior proceedings involving the child for which no petition to transfer was filed;

3. Predictions of whether the transfer could result in a change in the placement of the child;

4. The Indian child's perceived cultural connections with the Tribe or reservation;

5. Consideration of any perceived inadequacy of judicial systems;

6. Consideration of the perceived socioeconomic conditions within a Tribe or reservation; or,

7. Consideration of bonding or attachment that resulted from time spent in a non-preferred placement that was made in violation of ICWA.

B. The county department shall prepare child(ren) for legal transfer to the Tribal court of jurisdiction as appropriate to their age. Such preparation shall include:

1. Information about reasons for the transfer and its timing.

2 Involvement of the child in the plans for transfer (see Pre-Placement Activities, Section 7.304.61).

C. The county department shall coordinate plans for the transfer of the child(ren) with the Tribal agency responsible for accepting custody of the child(ren) prior to the transfer.

D. The county department shall expeditiously provide a complete copy of its file(s) concerning the Indian child(ren) to the Indian child's Tribe.

7.309.5FOSTER CARE AND PRE-ADOPTIVE PLACEMENTS - INDIAN CHILD WELFARE ACT

The county department shall make every effort to make placements:

A. In the most appropriate, least restrictive setting, that most approximates a family and best meets the needs of the child, taking into consideration:

1. Sibling attachment;

2. The Indian child's special needs (if any); and,

B. Within a reasonable distance to the child's home, extended family, or siblings.

C. The parent or Indian custodian may withdraw consent to voluntary foster care placement at any time and have the Indian child returned to them as soon as practical.

7.309.6ORDER OF PREFERENCE - INDIAN CHILD WELFARE ACT (FOSTER CARE AND PREADOPTIVE PLACEMENT)

The county department shall place eligible Indian children for foster care or pre-adoptive placement according to the following order of preference. It shall do so, unless the child's Tribe has established another order, or unless it has good cause to the contrary, as documented in the child's record.

A. For Out-of-Home Care/Pre-Adoptive Placement:

The county department shall engage the Tribe at the earliest possible opportunity to not hinder the Tribes' ability and options regarding placement preference in foster care or pre-adoptive placements. Under ICWA the county department shall use the following order of preference unless the Indian child's Tribe has identified a different placement preference than the following

1. Member of child's extended family;

2. Foster home licensed/certified, approved or specified by the Indian child's Tribe;

3. Indian foster home licensed/certified, approved or specified by an authorized non-Indian authority; or

4. Institution for children approved by an Indian Tribe or operated by an Indian organization which has programs suitable to meet the needs of Indian children.

B. The county department shall not depart from placement preference based on the socioeconomic status of any placement relative to another placement or based on the ordinary bonding or attachment that results from time spent in a non-preferred placement that was made in violation of ICWA.

C. The following are the only actions considered good cause to deviate from placement preferences:

1. Request from the parent(s);

2. Request from the child;

3. Sibling attachment; or,

4. Extraordinary physical, mental or emotional needs of the child; or,

5. The unavailability of a suitable preferred placement.

D. The county department shall follow a different order of preference if one is established by the Tribe, so long as the placement is the most appropriate and least restrictive setting to meet the child's needs. Where appropriate, the preference of the Indian child or parent(s) shall be considered. If a consenting parent has a desire for anonymity, the county department shall give weight to such desire in applying the preferences.

7.309.7PLACEMENTS INVOLVING STATUS OFFENSES- INDIAN CHILD WELFARE ACT

A. ICWA includes requirements that apply whenever an Indian child is the subject of a proceeding involving status offenses if any part of that proceeding results in the need for out-of-home placement for the child, including a foster care, pre-adoptive, or adoptive placement or termination of parental rights.

B. The county department shall ensure that the consent signed by the parent(s)/Indian Custodian(s) shall contain all of the following:

1. Name and birth date of child.

2. Name of child's Tribe.

3. Child's enrollment number or other indication of membership/citizenship in the Tribe.

4. Name, address and Tribal enrollment number of consenting parent(s)/custodian(s).

5. Name and address of prospective parent(s), if known, for substitute care placements.

6. Name and address of person or agency through whom placement arranged, if any, or adoptive placements.

7.309.8Involuntary Termination of Parent-Child Relationship - Indian Child Welfare Act

When terminating the parent-child legal relationship of a child under ICWA, the county department shall provide the court of jurisdiction with evidence beyond a reasonable doubt, including testimony of qualified expert witness. (See section 7.309.1).

7.309.81Relinquishment of Child for Adoption

A. A voluntary relinquishment of an Indian child may be done in a state court when the parent(s) chooses to file a relinquishment petition under Colorado statutes.

B. The county department shall not petition the court for relinquishment before 10 days after the child's birth.

C. The county department shall follow the procedure outlined for court ordered placement in the "Initial Notification - Involuntary Placements" section. If the child is from either Ute Mountain Ute or Southern Ute Indian Tribe, the county department shall comply with the Tribal-State Agreement.

D. The county department shall not accept voluntary consent for foster or adoptive care unless all of these conditions are met:

1. The consent is voluntary and obtained free of fraud or duress;

2. The consent is in writing and recorded before a judge; and,

3. The consent is accompanied by the judge's certificate ensuring that terms and consequences of the consent were fully explained in:

a. Detail and fully understood by the parent(s) or Indian custodian(s).

b. English or interpreted into a language understood by the parent(s) or Indian custodian(s).

E. Withdrawal of consent may apply to relinquishment of parental rights. In these situations the parent(s) or Indian custodian(s) may withdraw consent for any reason at any time prior to the entry of the final decree of relinquishment and have the child returned.

7.309.82ORDER OF PREFERENCE - INDIAN CHILD WELFARE ACT, ADOPTION

A. The county department shall make placements of eligible Indian children for adoption according to the following order of preference, unless there is good cause to the contrary as determined by the court, or where the Indian child's Tribe has not established a different order of preference. Preference shall be given in descending order, as listed below:

1. A member of the child's extended family;

2. Other members of the Indian child's Tribe; or

3. Other Indian families.

B. The county department shall also consider, when appropriate, the placement preference of the Indian child or Indian child's parent(s).

7.309.83DOCUMENTATION- INDIAN CHILD WELFARE ACT

A. The county department shall document all active efforts, notice provided, and departures from placement preferences in the state automated case management system.

B. The county department shall maintain records evidencing the efforts to comply with placement preference. These records shall be made available at any time upon the request of the BIA or the Indian child's Tribe. Efforts to comply shall include documentation by the county department to search diligently for placement which falls within the preference of the act.

C. The county department bears the burden of proving by clear and convincing evidence that there is good cause to depart from placement preference, and the court's determination of good cause shall be made on the record and in writing and maintained by the county department.

D. The county department shall maintain records of every voluntary or involuntary foster-care, pre-adoptive and adoptive placement of an Indian child and make the records available within fourteen (14) days upon request of the secretary of the BIA or the Indian child's Tribe. The record shall contain, at a minimum, the petition or complaint, all substantive orders entered in the child-custody proceeding, the complete record of the placement determination, and if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preference.

7.309.84Disrupted or Changed Placement - Foster Care or Adoption - Indian Child Welfare Act Notice to Parent(s) and the Tribe

A. When a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parent(s) has voluntarily consented to the termination of his or her parental rights to the child, the county department shall notify the child's parent(s), Indian Custodian(s), and Tribe of jurisdiction within 10 working days. These parties may petition for return of custody and the court shall grant such petition unless there is a showing that such return of custody is not in the best interests of the child. (See Order of Preference, Section 7.309.83.) This notice shall inform the recipient of her or his right to petition for return of custody of the child. The Tribe shall also be notified of changes or disruptions in adoptive placements.

B. Notice shall be sent by registered or certified mail with return receipt requested to the parent(s), Indian custodian(s) and the Tribe whenever a final decree of adoption has been vacated.

7.309.85ADOPTION DECREE

A. The county department shall provide notice of any voluntary or involuntary adoption of an Indian child to the BIA within 30 days of the final decree, to the following address:

Bureau of Indian Affairs, Chief

Division of Human Services

1849 C Street NW., Mail Stop 4513 MIB

Washington DC 20240

B. The following information shall be included, in an envelope marked "confidential":

1. Birth name and birthdate of the Indian child, and Tribal affiliation and name of the Indian child after adoption;

2. Names and addresses of the biological parent(s);

3. Names and addresses of the adoptive parent(s);

4. Names and contact information for any agency having files or information relating to the adoption;

5. Any affidavit signed by the biological parent or parents asking that their identity remain confidential; and

6. Any information relating to Tribal membership/citizenship or eligibility for Tribal membership/citizenship of the adopted child.

12 CCR 2509-4-7.309

38 CR 13, July 10, 2015, effective 8/1/2015

38 CR 19, October 10, 2015, effective 11/1/2015

38 CR 23, December 10, 2015, effective 1/1/2016

39 CR 03, February 10, 2016, effective 3/1/2016

39 CR 17, September 10, 2016, effective 10/1/2016

39 CR 23, December 10, 2016, effective 1/1/2017

40 CR 01, January 10, 2017, effective 2/1/2017

40 CR 11, June 10, 2017, effective 7/1/2017

40 CR 17, September 10, 2017, effective 10/1/2017

40 CR 21, November 10, 2017, effective 12/1/2017

41 CR 01, January 10, 2018, effective 2/1/2018

41 CR 21, November 10, 2018, effective 12/1/2018

42 CR 03, February 10, 2019, effective 3/15/2019

42 CR 05, March 10, 2019, effective 3/30/2019

42 CR 15, August 10, 2019, effective 9/1/2019

42 CR 23, December 10, 2019, effective 1/1/2020

43 CR 01, January 10, 2020, effective 1/30/2020

43 CR 09, May 10, 2020, effective 6/1/2020

43 CR 15, August 10, 2020, effective 9/1/2020

43 CR 17, September 10, 2020, effective 9/30/2020

43 CR 21, November 10, 2020, effective 12/1/2020

44 CR 03, February 10, 2021, effective 3/2/2021

44 CR 23, December 10, 2021, effective 12/30/2021

46 CR 03, February 10, 2022, effective 3/2/2023

46 CR 09, May 10, 2023, effective 6/1/2023