In child custody cases involving the Indian Child Welfare Act (ICWA), understanding what constitutes ‘sufficient notice’ is crucial. This article explores the specific requirements and timelines mandated by ICWA to ensure all parties, particularly the relevant Indian tribes, receive adequate and timely information about custody hearings.
Sufficient Notice in Child Custody Cases Involving ICWA: Understanding the Essentials
In Texas child custody hearings, typically only the parties involved and the Attorney General for child support purposes receive hearing notices. However, this changes when the case involves an Indian child due to the Indian Child Welfare Act (ICWA), which mandates greater protections for the parties and their families. If your child belongs to or is eligible for membership in an Indian tribe, this blog post is crucial for you and your family.
Firstly, you must also notify the tribe to which your child belongs. The tribe will verify your child’s membership or eligibility. In cases such as foster care placement hearings, termination of parental rights hearings, and any Suit Affecting the Parent-Child Relationship (SAPCR) filed by Child Protective Services (CPS), the tribe must receive notice.
When CPS files a lawsuit against you for alleged abuse or neglect of your child, you must give ten days’ notice for a foster care placement or termination of parental rights hearing. Additionally, you or the tribe may need an extra twenty days to prepare for the hearing, if requested.
How Is It Determined if Your Child Is a Member of an Indian Tribe?
The tribe that your child purports to belong to will ultimately determine whether or not they are an active member or is eligible for membership. Remember that your membership in a federally recognized Indian tribe will also trigger ICWA’s applicability to your child’s case.
In many cases, your child will have documentation from a tribe showing that they are members. However, if this is not the case and the tribe does not respond to notifications from the court about an active case that involves one of their members, it will become more difficult for your child to prove their membership. As a result, you will need strong evidence outside of confirmation from the tribe that your child is a member. If none can be provided then, ICWA may not be applicable.
Rather than leave your child’s possible membership in an Indian tribe as an issue upon appeal of the case, your attorney should request that the judge make a ruling on the record early on in the matter about whether or not your child is a part of an Indian tribe. This is if there is unclear evidence that your child is part of a tribe and the tribe has failed to respond to notices regarding the pendency of the case.
How Does ICWA Play a Role in a Case Where an Emergency Removal of Your Child Is Necessary?
Emergency removal of your child from your home or the home of their other parent may be necessary to prevent imminent physical danger or harm to your child. The attorney files petition for CPS has to contain specific information related to your child or your family’s membership in an Indian tribe.
You must also note any apparent physical or emotional danger to your child.
In yesterday’s blog post, we stated that the court should grant any request to transfer the case to a trial court. If no recommendation for transfer occurs and the issue stays in the family law civil court, you must follow all ICWA safeguards and protections.
Your Rights as a Parent Under Icwa and the Rights of the Indian Tribe
You and a representative of the Indian tribe have the right to participate in any hearing involving your child, even if that can only be done by phone.
Either you or the tribe may petition the court to request a transfer from the civil court to a tribal court. This can be done through the submission of a written order to the judge or a request made on the record regarding your desire to transfer the case. If your child’s other parent objects to your motion or if the tribe declines to take the case, then the case will remain in the civil court.
What Preferences Are in Place Under Icwa for Your Child if and When He Is Removed From Your Home?
During your CPS case, any temporary placement for your child must meet their special needs and be near your family and any siblings your child has. Under ICWA, it’s crucial to place your child as close as possible to a relative’s home. This proximity allows your child to continue building a relationship with that relative.
What Happens in a Case Affected by Icwa Where Your Parental Rights Are at Stake?
The Texas Family Code mandates specific requirements for cases involving potential termination of parental rights or placement of a child into foster care. Additionally, the Indian Child Welfare Act (ICWA) imposes further requirements, ensuring that the child’s extended tribal family members have frequent opportunities for visitation.
In foster placement cases under ICWA, the proceedings must include testimony from an expert witness. This testimony should assert that parental custody continuation likely leads to serious emotional or physical harm to the child. Since foster care placement contravenes ICWA’s objectives, finding a suitable home with Indian family members becomes a paramount effort.
Terminating parental rights under ICWA is challenging. It requires presenting incontrovertible evidence to a court, akin to the standard in U.S. criminal cases, demonstrating that the child’s continued custody with the parent would likely cause severe emotional or physical harm.
What Is Severe Emotional or Physical Damage?
There must be a direct and causal relationship between the conditions in your home and the harm that your child has suffered or the risk of specific damage to your child.
Whatever evidence is found, CPS must take steps to help you remedy these issues so that your child can be returned to you in the future.
Questions about ICWA or a case that involves ICWA? Contact the Law Office of Bryan Fagan
If you are in a situation where ICWA is relevant to your life, please contact the Law Office of Bryan Fagan, PLLC, with any questions. We offer free of charge consultations with a licensed family law attorney six days a week. We can answer your questions and address any concerns about this subject.
Thank you for taking an interest in this topic and learning with us this week. It would be an honor to speak to you about serving you, your child, and your family in representing you in the family law-related matter.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
