ICWA COMPLIANCE CHECKLIST FOR STATE COURTS

Case Information

Case Number: [________________________________]

Case Name: [________________________________]

Court: [________________________________]

Judge: [________________________________]

Case Type:
☐ Foster Care Placement
☐ Termination of Parental Rights
☐ Preadoptive Placement
☐ Adoptive Placement
☐ Voluntary Placement

Date Checklist Completed: [__/__/____]

Completed By: [________________________________]

SECTION 1: INITIAL INQUIRY AND DETERMINATION

1.1 Reason to Know Inquiry (25 C.F.R. § 23.107)

The court must ask at the commencement of the proceeding whether there is reason to know the child is an Indian child.

☐ Court asked all parties whether they have reason to know the child is an Indian child
☐ Court asked about child's tribal membership or eligibility
☐ Court asked about parents' tribal membership or eligibility
☐ Court inquired about Indian ancestry through extended family members
☐ Court asked about child's domicile or residence on a reservation
☐ Court inquired whether the child is under tribal court jurisdiction

Date of Inquiry: [__/__/____]

Inquiry Documented in Court Record: ☐ Yes ☐ No

1.2 Reason to Know Factors (25 C.F.R. § 23.107(c))

Check all that apply - presence of ANY factor creates "reason to know":

☐ Any participant in the proceeding informs the court the child is an Indian child
☐ Any participant informs the court of information indicating the child is an Indian child
☐ The child gives the court reason to know he/she is an Indian child
☐ The court is informed the child's domicile or residence is on a reservation
☐ The court is informed the child is or has been a ward of a tribal court
☐ Either parent or the child possesses an identification card indicating tribal membership
☐ Documents in the court file (birth certificate, prior custody orders, etc.) indicate the child is an Indian child
☐ The state agency has discovered information suggesting the child is an Indian child

1.3 Determination of Indian Child Status

☐ Court determined child IS an Indian child
☐ Court determined child is NOT an Indian child
☐ Determination pending tribal response
☐ Child being treated as Indian child pending determination

Date of Determination: [__/__/____]

Basis for Determination: [________________________________]

SECTION 2: NOTICE REQUIREMENTS (25 U.S.C. § 1912(a))

2.1 Notice Recipients

Notice must be sent to ALL of the following:

☐ Parent(s) of the child
☐ Indian custodian(s) (if applicable)
☐ Child's tribe(s) - sent to ICWA Designated Agent
☐ Secretary of the Interior/BIA (if tribe or parent location unknown)

2.2 Notice Content Requirements (25 C.F.R. § 23.111)

☐ Child's name, date of birth, and place of birth included
☐ Name of each Indian tribe where child may be a member or eligible
☐ All names known of biological parents with current/former addresses
☐ All names known of biological grandparents with current/former addresses
☐ All names known of biological great-grandparents, if available
☐ Birthdates and birthplaces of all above relatives, if known
☐ Tribal enrollment numbers of child or family members, if known
☐ Copy of petition attached to notice
☐ Statement of rights under ICWA included
☐ Hearing date, time, and location included

2.3 Notice Service Requirements

☐ Notice sent by Registered Mail, Return Receipt Requested
☐ Return receipts filed with the court
☐ Proof of service documented in court file

Date Notice Sent: [__/__/____]

Date Return Receipt Received: [__/__/____]

2.4 Timing Compliance

☐ Hearing held no earlier than 10 days after receipt of notice
☐ Additional 20 days granted upon request (if applicable)

SECTION 3: RIGHT TO INTERVENE (25 U.S.C. § 1911(c))

3.1 Intervention Rights Preserved

☐ Tribe notified of right to intervene at any point in proceeding
☐ Indian custodian notified of right to intervene
☐ No intervention denied or unreasonably restricted

3.2 Intervention Status

☐ Tribe has intervened - Date: [__/__/____]
☐ Indian custodian has intervened - Date: [__/__/____]
☐ No intervention requested
☐ Intervention pending

SECTION 4: TRANSFER TO TRIBAL COURT (25 U.S.C. § 1911(b))

4.1 Transfer Request

☐ No transfer requested
☐ Transfer requested by: ☐ Parent ☐ Indian Custodian ☐ Tribe

Date of Transfer Request: [__/__/____]

4.2 Transfer Determination

☐ Case transferred to tribal court
☐ Transfer denied - reason documented below
☐ Transfer decision pending

If Transfer Denied, Basis:
☐ Objection by either parent
☐ Tribal court declined jurisdiction
☐ Good cause found to deny transfer

Good Cause Findings (if applicable):
[________________________________]

SECTION 5: PLACEMENT PREFERENCES (25 U.S.C. § 1915)

5.1 Foster Care/Preadoptive Placement Preferences

Order of preference (25 U.S.C. § 1915(b)):

1. ☐ Member of the child's extended family
2. ☐ Foster home licensed/approved by the child's tribe
3. ☐ Indian foster home licensed/approved by an authorized non-Indian licensing authority
4. ☐ Institution for children approved by an Indian tribe or operated by an Indian organization with appropriate Indian programs

5.2 Adoptive Placement Preferences

Order of preference (25 U.S.C. § 1915(a)):

1. ☐ Member of the child's extended family
2. ☐ Other members of the child's tribe
3. ☐ Other Indian families

5.3 Tribal Placement Preferences

☐ Tribe has established different order of preference
☐ Tribal preferences documented and followed
☐ Tribal preference order: [________________________________]

5.4 Deviation from Placement Preferences

☐ Placement follows preferences - no deviation
☐ Deviation from preferences - good cause finding required

If Deviation, Good Cause Finding:
☐ Request by parent/child (child of sufficient age)
☐ Extraordinary physical, mental, or emotional needs of child documented by qualified expert
☐ Unavailability of suitable families meeting preference criteria despite diligent search

Documentation of Diligent Search:
[________________________________]

SECTION 6: ACTIVE EFFORTS (25 U.S.C. § 1912(d))

6.1 Active Efforts Requirement

Active efforts must be made to provide remedial services and rehabilitative programs designed to prevent breakup of the Indian family.

☐ Active efforts provided prior to foster care placement
☐ Active efforts provided prior to termination of parental rights
☐ Active efforts documented in case file

6.2 Active Efforts Activities (25 C.F.R. § 23.2)

Check all active efforts made:

☐ Conducting a comprehensive assessment of family circumstances
☐ Identifying appropriate services and helping parents overcome barriers
☐ Identifying, notifying, and inviting family members to participate in family meetings
☐ Offering and employing available and culturally appropriate family preservation strategies
☐ Taking steps to keep siblings together
☐ Supporting visitation with parents and family members in most natural setting
☐ Identifying community resources including housing, financial, transportation assistance
☐ Monitoring progress and participation in services
☐ Considering alternative ways to address family needs
☐ Providing post-reunification services and monitoring

6.3 Court Finding on Active Efforts

☐ Court found active efforts were made
☐ Court found active efforts were unsuccessful despite genuine engagement

Date of Finding: [__/__/____]

SECTION 7: EVIDENTIARY STANDARDS

7.1 Foster Care Placement Standard (25 U.S.C. § 1912(e))

☐ Clear and convincing evidence presented
☐ Evidence supports finding that continued custody by parent/Indian custodian will result in serious emotional or physical damage to the child
☐ Qualified expert witness testified

7.2 Termination of Parental Rights Standard (25 U.S.C. § 1912(f))

☐ Evidence beyond a reasonable doubt presented
☐ Evidence supports finding that continued custody by parent/Indian custodian will result in serious emotional or physical damage to the child
☐ Qualified expert witness testified

7.3 Qualified Expert Witness Requirement (25 U.S.C. § 1912(e)-(f))

☐ Qualified expert witness identified
☐ Expert qualifications documented

Expert Name: [________________________________]

Expert Qualifications:
☐ Member of child's tribe recognized by tribe as knowledgeable in tribal customs
☐ Lay expert with substantial experience in delivery of child/family services to Indians and knowledge of prevailing social/cultural standards
☐ Professional with substantial education/experience in area and knowledge of prevailing tribal social/cultural standards
☐ Other (document): [________________________________]

Expert Testimony Date: [__/__/____]

SECTION 8: VOLUNTARY PROCEEDINGS (25 U.S.C. § 1913)

Complete only if proceeding involves voluntary consent

8.1 Voluntary Consent Requirements

☐ Consent in writing
☐ Consent recorded before a judge
☐ Judge certified that terms and consequences of consent were fully explained and understood
☐ Consent executed no earlier than 10 days after child's birth

8.2 Translation/Interpretation

☐ Not applicable - parent/custodian proficient in English
☐ Consent explained in language understood by parent/Indian custodian
☐ Interpreter provided: [________________________________]

8.3 Withdrawal of Consent

☐ No withdrawal of consent
☐ Consent withdrawn - placement returned to parent/Indian custodian

SECTION 9: RECORD PRESERVATION

9.1 Record Maintenance (25 U.S.C. § 1915(e))

☐ Court has maintained record of each placement
☐ Records include evidence of ICWA compliance
☐ Records available for review by Secretary or child's tribe

9.2 State Agency Records

☐ Agency maintained records evidencing active efforts to comply with placement preferences

SECTION 10: STATE ICWA COMPLIANCE

10.1 State ICWA Laws

☐ State has enacted state ICWA law with additional requirements
☐ State law requirements reviewed and followed
☐ Not applicable - no state ICWA law

State: [________________________________]

State ICWA Statute (if applicable): [________________________________]

SECTION 11: COMPLIANCE CERTIFICATION

11.1 Pre-Hearing Certification

I certify that the above ICWA compliance steps have been completed and documented as indicated:

Signature: [________________________________]

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

11.2 Court ICWA Findings

The Court finds:

☐ ICWA applies to this proceeding
☐ All required notices were properly sent and received
☐ Active efforts have been made and documented
☐ Qualified expert witness testimony has been provided
☐ Applicable evidentiary standards have been met
☐ Placement preferences have been followed or good cause for deviation exists

Judge's Signature: [________________________________]

Date: [__/__/____]

WARNING: CONSEQUENCES OF NON-COMPLIANCE

Under 25 U.S.C. § 1914, any Indian child who is the subject of any action for foster care placement or termination of parental rights, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated ICWA provisions.

SOURCES AND REFERENCES

• Bureau of Indian Affairs - ICWA
• 25 C.F.R. Part 23 - ICWA Regulations
• National Indian Child Welfare Association - ICWA Compliance Guide
• California Courts - ICWA Resources
• NCJFCJ - ICWA Judicial Benchbook

This checklist is designed to assist state courts in complying with the Indian Child Welfare Act. It should be used in conjunction with applicable state law and local court rules.