Current through Register Vol. 35, No. 11, June 11, 2024
Section 8.10.7.28 - INDIAN CHILD WELFARE ACT (ICWA)The Indian Child Welfare Act of 1978 ( 25 U.S.C. 1901 et seq.), hereinafter referred to as "ICWA", was enacted to protect the best interests of Indian children and preserve tribal integrity by reducing the destruction of Indian culture caused by the removal of children from Indian homes and environments. The ICWA provides that the states and Indian tribes are authorized to enter into agreements with each other respecting care and custody of Indian children.
A. A tribe has exclusive jurisdiction over any child custody proceedings, as defined in 25 U.S.C. 1903, involving a child who resides or is domiciled within the tribe's reservation.B. If a child is a ward of the tribal court, the tribe retains exclusive jurisdiction even if the child's residence changes to a location off-reservation. PSD acts in an emergency to protect the child, when the child is temporarily off-reservation. PSD shall notify the tribe as soon as possible and facilitates a transfer of the case to the tribe.C. When a child is domiciled or resides off the reservation, the state and the tribe both have jurisdiction.D. When an Indian child is the subject of an abuse or neglect, family in need of court ordered services, or adoption action under the New Mexico Children's Code, the tribe may intervene.E. PSD supports requests to transfer to tribal court absent good cause to the contrary, objection by either parent or declination by the tribal court. Good cause not to transfer the proceeding may exist in any of the following circumstances: (1) The proceeding was at an advanced stage when the request to transfer was received and the entity making the request did not file the request promptly after receiving notice of the hearing.(2) The Indian child is over twelve years of age and objects to the transfer.(3) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.(4) The parents of a child over five years of age are not available and the child has had little or no contact with the child's tribe or members of the child's tribe.F. PSD shall receive and investigate reports of child abuse or neglect in conformance with ICWA and as outlined in PSD policy on intake and investigations.G. If a child taken into custody is an Indian child and is alleged to be neglected or abused, PSD shall notify the child's tribe in accordance with ICWA.H. PSD shall conform to the placement preferences set forth in ICWA and in the Children's Code, Section 32A-4-9 NMSA 1978.I. PSD shall honor the request of a parent of an Indian child to remain anonymous insofar as it relates to the parent's extended family, as specified by the parent. However, PSD shall tell the parent about the requirement to notify the tribe, and explains to the parent that PSD cannot guarantee anonymity on the part of the tribe.8.10.7.28 NMAC - Rp, 8.10.7.27 NMAC, 3/31/10