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The rights of a parent under the Indian Child Welfare Act

In the event that your child is a member of an Indian tribe or is eligible to become a member of an Indian tribe then your family has rights under a federal law known as the Indian Child Welfare Act (ICWA). This is a law that allows your child to have rights that he or she would not ordinarily have.

The specific tribe of which your child is a part must first determine if she or he is a valid member of that tribe (or is eligible to be) and then any of the protections and rights under ICWA are applicable to your child.

What sort of family law cases does ICWA have an impact on?

  1. If a report has been made to Child Protective Services (CPS) that your child has been abused or neglected a CPS initiates a child protection/parental rights termination case, then ICWA is applicable
  2. If a child is to be adopted after your parental rights have been terminated then ICWA is applicable
  3. If a grandparent, aunt, uncle or other third party has filed a Suit Affecting the Parent-Child Relationship in which he or she are seeking conservatorship rights to your child then ICAW is applicable

What rights do you as a parent have in regard to cases in which your parental rights may be terminated?

As the parent whose parental rights are potentially at risk, you are entitled to written notice of an upcoming hearing. You have the right to hire an attorney if you are able to afford one or you can request one be appointed to you by the judge in your child’s case.

In regard to a CPS case, if a judge is considering where your child should reside while you are working on improving whatever circumstances led to your child being removed from your home, you have the right to recommend a family member or friend who could be a suitable temporary home.

What rights do you as a parent have in regard to cases in which your child is covered by ICWA?

If your child is affected by ICWA then you have the right to have the particular tribe affiliated with your child notified of any hearings in their case. The tribe has a right to have a representative present for every hearing and can ask for a transfer of the case to an Indian tribal court as long as your child’s other parent does not oppose the transfer.

In the event that your child is removed from your home on a temporary basis while the case is pending your child has the right under ICWA to be placed with a member of the extended family of your child, a foster home that is approved by the Indian tribe or into a foster home that is operated by the Indian tribe itself.

ICWA also provides that you can have up to an additional twenty days in preparation for a hearing. In Texas, you typically are entitled to a minimum of three days notice for a hearing. When the hearing actually occurs and if a guardian ad litem is appointed in order to represent the interests of your child you can request for the guardian to be an Indian.

What rights do the Indian relatives of your child have in regard to a family law case that involves ICWA?

The relatives of your child that are themselves Indians have “first dibs” when it comes to either temporary or permanent placement of your child as a result of a family law case. In many CPS cases, an evaluation of the potential home of a child will be done with an eye towards viewing the home compared to the norms of that community.

If an Indian family’s home is being considered for your child then the home will be evaluated based on the standards apparent in the Native American community. The relatives of your child would have the same rights as a parent would in regard to when your child is living with them even on a temporary basis.

What rights does your child have in a case that involves ICWA?

If your child is over the age of twelve then he or she has the right to be told in advance of any court hearings and can come to all of them if he or she chooses to do so.

Your child is entitled to their own lawyer in order so that their interests can be represented. At this point, you may be wondering how you as the parent do not represent your child’s rights.

The answer to that question is that sometimes in cases that involve the possible termination of your parental rights your interests may not align perfectly with those of your child. As a result, he or she may need their own attorney to advocate for their best interests independent of your own.

As we mentioned early, their heritage as a member of an Indian tribe is important to the courts and as such your child will have an opportunity to have a guardian ad litem appointed to their case that is an Indian and knows the cultural impact of this case on the life of your child.

A guardian ad litem acts as the eyes and ears of the court outside of the courtroom. The guardian will visit with your child on a regular basis to learn how he or she is doing during the case. The Guardian interviews other people involved with the case and will make recommendations to the judge in regard to what is in your child’s best interests

How does ICWA affect CPS caseworkers?

CPS is impacted by ICWA as well. CPS will need to consider whether or not your child can reside safely with an Indian family member rather than an out of home placement first and foremost.

CPS has the ability to ask if your child is an Indian or part of a tribe so that they know special laws and protections apply to your child and your family as a result. If your child is at risk of being removed from your home a CPS caseworker must contact your tribe in order to notify them of this fact.

To make sure that ICWA guidelines are being followed CPS must keep a detailed log of just how they are following the law. A simple search for Indian relatives at the beginning of a case will not suffice in an ICWA case.

Rather, CPS must continue to look for Indian relatives to possibly place your child with throughout your case. In most cases CPS’ judgment on the suitable of a home for your child takes precedence, but not in an ICWA case. In these situations, your child’s tribe will be able to make a judgment as to whether or not a home is suitable for your child or not. CPS is bound by ICWA to respect the tribe’s opinions and to defer to them in this regard.

Questions on ICWA, parental rights termination or any other family law issue? Contact the Law Office of Bryan Fagan, PLLC today

ICWA cases are unique in many aspects, as you learned today. If this law affects your child you will need to have a family law attorney by your side to ensure that its protections are being followed by the court and CPS so that your child is able to take advantage of the benefits that it provides.

The attorneys with the Law Office of Bryan Fagan, PLLC work tirelessly on behalf of our clients and their families. To learn more about our office and the services that we can provide you with as a client please do not hesitate to contact us today. We offer free of charge consultations six days a week with a licensed family law attorney. We can answer your questions and address any issues or concerns that you may have.


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