When does the federal Indian Child Welfare Act apply in Virginia child welfare cases, and what protections does it require for Native American children?

Subject

The Indian Child Welfare Act (ICWA) applies to Virginia cases involving, or that could culminate in, foster care placement, termination of parental rights, or preadoptive or adoptive placements for children who meet the ICWA's definition of "Indian child." During applicable proceedings, state and federal law require that Virginia courts protect the interests of Indian children and promote the security and stability of federally recognized tribes.

Plain-English summary

Delegate Delores McQuinn asked the Attorney General when the Indian Child Welfare Act (ICWA) applies in Virginia child welfare cases. ICWA, passed by Congress in 1978, was a response to alarming rates of removal of Native American children from their families by state and private agencies. The federal law establishes minimum standards designed to keep Indian children connected to their families and tribes.

Two conditions trigger ICWA. The child must be an "Indian child" (under 18, unmarried, and either a member of an Indian tribe or eligible for membership and the biological child of a tribal member). And the proceeding must be one of four types: foster care placement, termination of parental rights, preadoptive placement, or adoptive placement (including any action that may culminate in one of those outcomes).

Seven federally recognized tribes are in Virginia: Chickahominy Indian Tribe, Chickahominy Indian Tribe-Eastern Division, Monacan Indian Nation, Nansemond Indian Nation, Pamunkey Indian Tribe, Rappahannock Tribe, and Upper Mattaponi Indian Tribe.

When ICWA applies, three substantive requirements kick in:

1. Active efforts: Before any termination of parental rights or removal of an Indian child, the state must prove "active efforts" to provide remedial services to prevent the breakup of the Indian family.

2. Qualified expert witness: At foster care placement and termination of parental rights, the state must produce testimony from a qualified expert witness (not the assigned social worker) showing that continued custody by the parent or Indian custodian would likely result in serious emotional or physical damage to the child.

3. Placement preferences: If the child is removed, placement preferences apply (extended family first, then other tribal members, then other Indian families). Courts can deviate only for "good cause," narrowly defined.

What this means for you

For Virginia child welfare workers and social services agencies

The opinion holds that ICWA applies when the case involves an "Indian child" and a proceeding that is, or could culminate in, foster care placement, termination of parental rights, or preadoptive or adoptive placement. It holds that before removal or termination the state must show "active efforts" to provide remedial and rehabilitative services designed to prevent the breakup of the Indian family, a standard the opinion describes as aimed at preventing unwarranted removals. It notes that BIA guidelines apply in Virginia as a reference and resource for parties in these proceedings.

For juvenile court judges

The opinion holds that, before foster care placement or removal of an Indian child, a court must find clear and convincing evidence, including testimony of a qualified expert witness, that continued custody is likely to result in serious emotional or physical damage to the child, and must find that active efforts to prevent the family's breakup were made and proved unsuccessful. It holds the qualified expert witness may not be the regularly assigned social worker and should be qualified as to the prevailing social and cultural standards of the child's tribe. It holds that placement must follow the Act's order of preference absent "good cause," which the regulations limit to five enumerated factors stated on the record or in writing.

For Native American families involved in Virginia child welfare cases

The opinion holds that federally recognized tribes have the right to intervene in state foster care and termination proceedings, tribal jurisdiction over certain Indian child custody proceedings, and the right to set placement preferences different from the Act's defaults. It holds that the active-efforts requirement obligates the state to provide remedial and rehabilitative services aimed at keeping the Indian family together.

For adoption attorneys representing prospective adoptive parents

The opinion holds that where ICWA applies, adoptive placement must follow the Act's order of preference (extended family, then other tribal members, then other Indian families), and that a court may depart only for "good cause" as narrowly limited by the five regulatory factors. It holds that tribes may intervene and may set different placement preferences.

For tribal representatives in Virginia

The opinion holds that tribes have the right to intervene, jurisdiction over certain Indian child custody proceedings, and authority to issue resolutions setting placement preferences different from the Act's default order.

Common questions

Who is an "Indian child" under ICWA?
A person under 18, unmarried, who is either (a) a member of a federally recognized Indian tribe or (b) eligible for membership and the biological child of a tribal member.

What proceedings trigger ICWA?
Foster care placement, termination of parental rights, preadoptive placement, and adoptive placement (and any state action that may culminate in those). Includes involuntary, voluntary (that could end inability to regain custody), and emergency proceedings.

Which tribes are federally recognized in Virginia?
Seven: Chickahominy Indian Tribe; Chickahominy Indian Tribe-Eastern Division; Monacan Indian Nation; Nansemond Indian Nation; Pamunkey Indian Tribe; Rappahannock Tribe; Upper Mattaponi Indian Tribe.

What's an "active efforts" requirement?
Before terminating parental rights or making certain other decisions, the state has to prove it took meaningful, culturally appropriate steps to keep the Indian family together. This is more demanding than the "reasonable efforts" standard that applies in ordinary cases.

Who is a "qualified expert witness"?
Someone with expertise beyond normal social worker qualifications who can testify about prevailing social and cultural standards of the child's tribe and whether continued custody would result in serious harm. Cannot be the regularly assigned social worker.

What are the ICWA placement preferences?
For adoption: (1) extended family, (2) other tribal members, (3) other Indian families.
For foster care/preadoptive: (1) extended family, (2) foster home licensed or specified by the tribe, (3) Indian foster home licensed by non-Indian authority, (4) institution approved by an Indian tribe or operated by an Indian organization with a suitable program.

Can a Virginia court depart from ICWA placement preferences?
Only for "good cause," narrowly construed. The court must base the determination on one or more of five factors: parent request, child request (if old enough), sibling attachment, extraordinary needs of the child, or unavailability of suitable preferred placement after a diligent search.

Does ICWA apply to private adoptions?
Yes. Whether the case is in juvenile court, family court, or another forum, if it involves an Indian child and could end in adoption, ICWA's standards apply.

Background and statutory framework

ICWA (25 U.S.C. § 1901 et seq.) was passed by Congress in 1978. The findings in § 1901 describe the policy concern: "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies." The policy declaration in § 1902 is to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families."

The Supreme Court emphasized in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989), that ICWA's substantive provisions protect "not only the interests of individual Indian children and families, but also of the tribes themselves."

The implementing regulations at 25 C.F.R. Part 23 give detailed instructions for state courts. The BIA's Guidelines for Implementing the Indian Child Welfare Act (2016) supplement the regulations with best practices.

ICWA's substantive standards are layered. For removal: clear and convincing evidence, including qualified expert witness testimony, that continued custody would result in serious emotional or physical damage (§ 1912(e)). For termination of parental rights: a higher beyond-reasonable-doubt standard applies. Active efforts must be documented (§ 1912(d)). Placement preferences kick in if removal happens (§ 1915), with "good cause" the only basis for departure (§ 1915(a), 25 C.F.R. § 23.132).

Tribes have rights to intervene (§ 1911(c)), exercise tribal jurisdiction over certain proceedings (§ 1911(a), (b)), and set their own placement preferences different from the default (§ 1915(c)).

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• 25 U.S.C. § 1901 et seq. (Indian Child Welfare Act)
• 25 U.S.C. § 1901 (Congressional findings)
• 25 U.S.C. § 1902 (Policy declaration)
• 25 U.S.C. § 1903 (Definitions, including "Indian child")
• 25 U.S.C. § 1911 (Tribal jurisdiction and intervention)
• 25 U.S.C. § 1912 (Active efforts; qualified expert witness)
• 25 U.S.C. § 1915 (Placement preferences; good cause)
• 25 C.F.R. § 23.2 (Definitions)
• 25 C.F.R. § 23.103 (Application of ICWA)
• 25 C.F.R. § 23.122 (Qualified expert witness)
• 25 C.F.R. § 23.132 (Good cause to depart from preferences)
• BIA Guidelines for Implementing the Indian Child Welfare Act (2016)
• Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)
• Thompson v. Fairfax County Dep't of Family Servs., 62 Va. App. 350 (2013)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2022/21-101-McQuinn-Issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120

January 11, 2022

The Honorable Delores L. McQuinn
Member, Virginia House of Delegates
Post Office Box 406
Richmond, Virginia 23218

Dear Delegate McQuinn:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

In your request, you ask in what kinds of cases does the Indian Child Welfare Act of 1978 apply in the Commonwealth of Virginia.

Applicable Law and Discussion

I. Purpose of the Act

Per 25 U.S.C. § 1901, the Act was passed to address a congressional finding that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." Through the Act, Congress sought to reverse past policies by recognizing the importance of keeping Indian children with their families and tribes, and declared it to be the policy of the United States to:

[p]rotect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.

The United States Supreme Court has recognized that "[t]he numerous prerogatives accorded the tribes through the [Act]'s substantive provisions . . . must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves."

When evidence of abuse or neglect necessitates removal of an Indian child from his or her home, the Act helps ensure the child remains connected to his or her extended family and culture. To further these protections, federally recognized tribes have specific rights under the Act, such as the right to intervene in state court foster care and termination of parental rights proceedings, tribal jurisdiction over certain Indian child custody proceedings, and the right to issue tribal resolutions to set child placement preferences different from those set out in the Act. In Virginia, the Act applies to seven federally recognized Tribal Nations which include the Chickahominy Indian Tribe, Chickahominy Indian Tribe-Eastern Division, Monacan Indian Nation, Nansemond Indian Nation, Pamunkey Indian Tribe, Rappahannock Tribe, and Upper Mattaponi Indian Tribe.

II. Application of the Act

The Act applies when two requirements are met. First, the child must be an Indian child, defined as: "any unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." Second, the proceeding must be an action for (or an action that may culminate in) foster care placement, termination of parental rights, preadoptive placement, or adoptive placement. Additionally, the Act applies in involuntary proceedings, voluntary proceedings that could result in the inability to regain custody of the child upon demand, and emergency proceedings. The key to determining whether a proceeding is involuntary is whether the placement (1) is done under threat of removal by the state and (2) prohibits the parent from regaining custody of the child upon demand (i.e., upon verbal request and without any formalities or contingencies).

To facilitate the effective implementation of the Act, the United States Department of the Interior, Bureau of Indian Affairs (BIA) has issued guidelines that are applicable in Virginia to "provide a reference and resource for all parties involved in child custody proceedings involving Indian children. These guidelines explain the statute and regulations. The guidelines also provide examples of best practices for the implementation of the statute, with the goal of encouraging greater uniformity in the application of [the Act]."

Application of the Act is a multi-step process. First, a court must find that there is clear and convincing evidence, "including testimony of a qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." The qualified expert witness "must be qualified to testify regarding whether the child's continued custody by the parent . . . is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child's Tribe." The qualified expert witness may not be the "social worker regularly assigned to the Indian child" but another social worker with "expertise beyond the normal social worker qualifications" may qualify.

Next, the court must make a finding that "active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful." The goal of the active efforts requirement is to keep Indian children with their parents by protecting against "unwarranted removals by ensuring that parents who are, or who may readily become, fit parents are provided with services necessary to retain or regain custody of their child."

Finally, if a child is removed on a temporary or permanent basis, the Act provides a list of placement preferences. Members of the child's extended family are the first choice under all types of placements. For adoptive placements, the preferences are (1) a member of the Indian child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families. For foster care or preadoptive placements, the preferences are (1) a member of the Indian child's extended family; (2) a foster home licensed, approved, or specified by the Indian child's tribe; (3) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or (4) 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. The "placement shall be . . . the least restrictive setting which most approximates a family and in which [the Indian child's] special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home."

Courts must follow the Act's placement preferences absent a finding of "good cause to the contrary." The Act's regulations set out five factors on which courts may base a determination of good cause to deviate from the Act's placement preferences. The court's determination "must be made on the record or in writing and should be based on one or more" of the below factors:

(1) The request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference;

(2) The request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;

(3) The presence of a sibling attachment that can be maintained only through a particular placement;

(4) The extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live;

(5) The unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.

"Congress intended 'good cause' to be a limited exception to the placement preferences, rather than a broad category that would swallow the rule." The placement preference and therefore any good cause analysis must align with the social and cultural standards of the Tribe. Further, the Act codifies the presumptive determination that the minimum federal standards under it are in the "best interests" of Indian children.

Conclusion

It is my opinion that the ICWA applies to Virginia cases involving, or that could culminate in, foster care placement, termination of parental rights, and pre-adoptive or adoptive placements for children who meet the ICWA's definition of "Indian child." It is further my opinion that during applicable proceedings, state and federal law require that Virginia courts protect the interests of Indian children and promote the security and stability of federally recognized tribes.

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General