Education for Justice                  FACT SHEET F-7                          Fall 2009

 

YOUR RIGHTS

UNDER THE INDIAN CHILD WELFARE ACT

 

If your child is a member of a tribe or is eligible for membership in a tribe, your family has rights under the Indian Child Welfare Act (ICWA), the Minnesota Indian Family Preservation Act, and other laws.  These laws and ICWA also give rights to the Indian child’s family and tribe. The tribe figures out if a child is a member or eligible for membership in the tribe. You have these rights in any case that has to do with:

•         child protection

•         termination of parental rights

•         adoption

•         runaways, if the child might be taken from the home

•         truancy, if the child might be taken from the home, and

•         any matter where someone who is not the parent wants custody of your child or to put your child in foster care. 

 

These laws apply in juvenile court and in family court proceedings where someone who is not the parent wants custody of your child.

 

THE PARENT OF ANY CHILD HAS THE RIGHT TO:

·                    Get notice of the court case 10 days before the hearing, by registered mail.

·                    Read all papers filed with the court.

·                    Have a lawyer.  If you have a low income, the court will give you a free lawyer for the Juvenile Court proceeding.

·                    Ask that the children be placed with family or a close friend.

·                    Be told any time your children are moved to new foster care.

·                    Have a lawyer or advocate help you make a case plan to get or keep your family together.

·                    Get court papers translated into your own language and have an interpreter at hearings if you need it.

·                    Have a judge tell you the results of a decision to give up custody.

·                    Have your children returned within 24 hours if you change your mind about voluntary placement out of your home.

·                    Change your mind about terminating your parental rights for purpose of adoption within 10 days after you consented to the termination. 

·                    Ask that your children be placed with someone with the same religious beliefs.

·                    Ask for services to help your family.

·                    Get your children back if they were taken on a police hold and a hearing is not held within 72 hours (not counting weekends and holidays).

 

THE PARENT OF AN INDIAN CHILD HAS EXTRA RIGHTS. 

THEY HAVE THE RIGHT TO:

·                    Have the tribe notified of the case.

·                    Have a tribal representative at every court hearing.

·                    Ask for transfer of the case to tribal court, if the other parent does not oppose the transfer.

·                    Have their child placed with:      (1) a member of the Indian child’s extended family

(2) a foster home licensed, approved or specified by the tribe or

(3) an Indian foster home.

·                    Have 20 extra days to get ready for court.

·                    Ask the court to set aside any orders that violate ICWA.

·                     Have an Indian Guardian Ad Litem (person to speak for the child in court), if any are available.  See our fact sheet, What is a Guardian Ad Litem?

 

THE CHILD’S TRIBE HAS THE RIGHT TO:

·                    Get notice of the case.  It must be by registered mail with return receipt requested.

·                    Have 20 more days to prepare for court.

·                    Come to all court hearings or become a party in the case.

·                    Get information from child protection.

·                    Be told whenever child protection works with a family and it could lead to placing a child out of the parent’s home.

·                    Has the final say about whether a child is a member or eligible for tribal membership.

·                    Find out what was tried to place the child with relatives.

·                    Ask to transfer the case to Tribal Court.

·                    Give advice and reports to the court about the case.

 

INDIAN RELATIVES HAVE THE RIGHT TO:

·                    Get first chance to have the children live with them.

·                    Have their home and family evaluated by Indian community standards.

·                    Apply for foster care payments, which are more than MFIP, if the child is placed with them.

·                    Have the same rights as a parent, if they were raising the children when child protection got involved.

·                    Grandparents have the right to take part in all hearings if the children lived with them any time in the 2 years before a court case was filed.

 

INDIAN CHILDREN HAVE THE RIGHT TO:

·                    Be told about court hearings and come to all court hearings if they are age 12 or older.

·                    Have their own lawyer.

·                    Give evidence to the court.

·                    Have a guardian ad litem who is Indian or who knows and appreciates their culture.

·                    Stay with a relative or close family friend if they cannot be at home.

·                    Be told of all their rights, including ICWA rights.

·                    Phone their parents, lawyer, and guardian ad litem.

·                    Ask for permission to live on their own in some cases, if they are over 16.

·                    Take part in making their case plan.

·                    If they are adopted, when they turn 18 they have the right to get family information needed for tribe enrollment.

 

CHILD PROTECTION WORKERS HAVE TO:

·                    Try to avoid out of home placement and reunite Indian families.

·                    Ask questions to know if the children are Indian so that their rights can be protected.

·                    Notify each parent’s tribe if there is any chance the children will be taken from the home.

·                    Try to find relatives and Indian foster homes.

·                    Fully cooperate with the tribe.

·                    Return children from voluntary placement within 24 hours if a parent asks them to.

·                    Use the tribe and Indian social services.

·                    Keep records of what they did to follow ICWA.

·                    Provide culturally appropriate services.

·                    Keep looking for relatives and Indian foster homes, if they are not found at first.

·                    Tell Indian parents and children of their ICWA rights.

·                    Defer to the tribe’s judgment as to the suitability of a particular home where the child may be placed.

 

THE COURT MUST:

·                    At the first hearing, ask if any of the children are Indian.

·                    Send the case to tribal court if the children live on, or consider the reservation their home.  The case also goes to tribal court if the child is a ward of the tribal court.

·                    Give your children back to you if there are no experts testifying who know Indian child-raising practices.  They must return your children unless the expert finds that the children will face serious emotional and physical damage in your care.

·                    Deny adoption if the parent’s consent for adoption was given within 10 days of birth.

 

For more information call:

·                    Your Tribe’s ICWA worker

·                    The Minneapolis American Indian Center, (612) 871-4555

·                    The Indian Child Welfare Law Center, (612) 879-9165

·                    Southern MN Regional Legal Services, (651) 222-4731

·                    Legal Aid Society of Minneapolis – Youth Project, (612) 332-1441 or your legal aid office.

Minneapolis Legal Aid – CLE

MN Legal Services Coalition

2324 University Avenue W. – Suite 101B

St. Paul, MN 55114

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