- This chapter contains very specific procedural
requirements that Children’s Administration (CA) staff must follow
when the child involved in a child welfare case is an Indian child as defined
in chapter 03, section 03.05(A). CA staff must follow all necessary procedures
in chapter 03 to ensure compliance with federal and state law. See chapter
03 for information about verification of Indian status.
- If CA or child placing agency (CPA) social
workers fail to comply with the procedural requirements in this chapter,
the court may set aside court orders as invalid. Parties to invalid adoptions
may challenge the adoptions, and the court may vacate the adoption after
entry of the adoption decree.
- In addition to the requirements of this
Chapter, the CA social worker must follow the requirements of the CA Practices
and Procedures Guide, chapters 2000, 3000 and 4000. If conflict
exists between the provisions of this manual and the Practices and Procedures
Guide, the social worker must follow the requirements of this chapter,
when consistent with statutory requirements.
- Except as specifically provided, this chapter
does not apply to Canadian First Nations Indian children or to Recognized
Indian Children. See Chapter 11 for information about Canadian and Recognized
Indian Children.
Upon acceptance of a case for service, the social worker must immediately
seek to verify if the involved child is an Indian child as defined in chapter
03, section 03.05(A). Chapter 03 contains procedures for making that
verification. The social worker must carefully follow the procedures
in Chapter 03 so that all subsequent legal actions conform to federal and state
law.
- Jurisdiction is an important concept in
working with Indian Tribes and is generally defined as the authority of a sovereign
power to govern those within its territorial or reservation boundaries. Indian
Tribes are sovereign powers and have the ability to govern Indian people who
are resident or domiciled within the boundaries of their reservations, even
if such persons are located off the reservation.
- Jurisdiction over Indian child custody proceedings
can be exclusive to a Tribe or concurrent with the state. See the definition
of "child custody proceedings," in chapter 14 of this manual. Dependency,
voluntary foster care placement, Child In Need of Services (CHINS), guardianship,
termination, voluntary relinquishment, and adoption proceedings are child
custody proceedings.
- If the Tribe has exclusive jurisdiction,
the Tribe has sole authority over the disposition of child custody proceedings
involving Indian children who reside or are domiciled within the boundaries
of its reservation. If the Tribe has concurrent jurisdiction with
the state, the Tribe and the state both have authority over child custody
proceedings involving Indian children who reside or are domiciled within
the boundaries of the tribal reservation. See Chapter 14 for the definition
of "domicile" and "residence."
- The
Tribe not only has jurisdiction over its own child members who are
resident/domiciled on the reservation, the Tribe also has jurisdiction
over Indian children from other Tribes who are resident/domiciled on
the reservation.
- A
child's residence or domicile is generally deemed to be that of the
parent(s) or legal custodian, but the Tribe makes the determination.
- The state has jurisdiction over child custody
proceedings involving Indian children who are not resident of or domiciled
within the boundaries of an Indian reservation.
- Even if the state exercises jurisdiction
in a case, an Indian child's Tribe has the right to request that the state
transfer the case to tribal court jurisdiction. See section 06.35 for
information about transfer of jurisdiction to the tribal court.
- Regardless of whether a Tribe has
exclusive or concurrent jurisdiction over child custody proceedings, the
Tribe always has exclusive jurisdiction over Indian children who are wards
of the tribal court.
- A Tribe with exclusive jurisdiction may
request that the state take jurisdiction in a specific case. CA, in consultation
with assigned legal representation, determines if it will then assume jurisdiction.
- For purposes of applying the requirements
of this manual, the following Washington State Tribes have exclusive
jurisdiction over child custody proceedings involving Indian children
who are resident or domiciled within the reservation boundaries.
- Colville
- Jamestown
S'Klallam
- Lower
Elwha Klallam
- Muckleshoot
- Nisqually
(exclusive jurisdiction only applies on reservation holdings
acquired after 1968)
- Nooksack
- Port
Gamble S’Klallam
- Quileute
- Samish
- Sauk-Suiattle
- Spokane
- Upper
Skagit
- Yakama
- For purposes of applying the requirements
of this manual, the following Washington State Tribes have concurrent
jurisdiction with the state over child custody proceedings
involving Indian children who reside or are domiciled within
the boundaries of the reservation.
Tribes
set forth in this list may disagree with the "concurrent jurisdiction" designation
and may, in some cases, claim exclusive jurisdiction status. If
this happens, the social worker must contact the Office of the
Attorney General office or other appropriate legal representative
for assistance in resolving jurisdictional issues.
- Chehalis
- Hoh
- Kalispel
- Lummi
- Makah
- Nisqually
(concurrent jurisdiction only applies on reservation holdings acquired
before 1968)
- Puyallup
- Quinault
- Shoalwater
Bay
- Snoqualmie
- Squaxin
Island
- Stillaguamish
- Suquamish
- Swinomish
- Tulalip
- LIST OF SELF GOVERNANCE
TRIBES AS OF DECEMBER 1997
Jamestown S’Klallam |
Superintendent (360) 533-9100 |
Lower Elwha |
Superintendent (360) 533-9100 |
Lummi Indian Nation |
Superintendent (425) 258-2651 |
Makah |
Self-Govt. Specialist (360) 645-2201 |
Muckleshoot |
Superintendent (425) 258-2651 |
Nisqually |
Superintendent (425) 258-2651 |
Nooksack |
Superintendent (425) 258-2651 |
Port Gamble |
Superintendent (425) 258-2651 |
Quinault Indian Nation |
Superintendent (360) 533-9100 |
Shoalwater Bay |
Superintendent (360) 533-9100 |
Skokomish |
Superintendent (360) 533-9100 |
Squaxin Island |
Superintendent (360) 533-9100 |
Suquamish |
Superintendent (425) 258-2651 |
Swinomish |
Superintendent (425) 258-2651 |
Except for emergency cases as provided for in section 06.60, the social worker
complies with the following procedures before seeking to initiate in state
court any child custody proceeding that involves an Indian child.
- In order to determine if the social worker
should file a child custody action in state court or assist a parent to
obtain state court validation of a voluntary consent to placement, termination,
or adoption, the social worker seeks to verify if:
- The
Indian child is a ward of tribal court; or
- The
child is domiciled or residing on an Indian reservation.
- The social worker contacts the child's Tribe
about tribal court wardship. If the social worker has reason to believe
that the child is a ward of a tribal court other than that of the child's
Tribe, the social worker also contacts the other tribal court. If the child
is a ward of tribal court, that Tribe has exclusive jurisdiction.
- In
non-emergency cases involving an Indian child who is a ward of tribal
court, the social worker does not file a state court action but refers
the case to the appropriate tribal authorities.
- In
non-emergency cases involving Tribes with concurrent jurisdiction,
the social worker follows the procedures in section 06.25. If the Tribe
does not wish to assert jurisdiction, the social worker files an action
in state court according to Washington State law.
- The
social worker may file an action in tribal court only at the Tribe’s
request.
- In
emergency cases, the social worker follows the procedures in section
6.60, below.
- The
social worker documents contacts with the Tribe(s) in the ICW section
of the family’s service record.
- The social worker immediately contacts the
child's Tribe about domicile or residence. If the social worker has reason
to believe that the child's domicile or residence is on the reservation
of a Tribe other than the child's Tribe, the social worker also contacts
the other Tribe. The social worker documents contacts with the Tribe(s) and
the Tribe's position regarding the child's domicile/residence in the service
record and reports to court.
- Prior to filing a court action in state
court, the social worker:
- Asks the parent to identify the parent’s
and the child’s residence and domicile; and
- Asks the Tribe to identify the parent’s
and the child’s legal residence and domicile.
- If the social worker identifies a conflict
between the parent’s assertion and the Tribe’s determination concerning
domicile, the Tribe’s determination resolves the issue.
- If the social worker verifies that
the parent and/or child are domiciled on the reservation, the social worker
does not file a court action in state court, unless the Tribe does not
have a tribal court.
- If the Tribe determines that the parent/child
are not residing nor domiciled on the reservation, the social worker may
file a court action in state court according to Washington state law.
- The social worker follows all notice requirements
and other procedures set forth in this chapter whenever the worker commences
a state court proceeding involving an Indian child.
- In cases where the Tribe has
exclusive jurisdiction or exercises concurrent jurisdiction over a child
custody matter involving an Indian child, the social worker provides available
information and documentation that may be necessary to help the Tribe commence
or pursue a child custody proceeding in tribal court.
- If, due to the circumstances of a
particular case, the social worker cannot contact the child's Tribe or
verify the child's wardship status, residence, or domicile prior to filing
a child custody action in state court, the social worker must make immediate
and continuing efforts notify the Tribe after filing.
- Except for emergency cases, the social worker
must follow the special requirements in this section in all cases involving
Indian children who reside or are domiciled within a reservation of a Washington
State Indian Tribe with concurrent jurisdiction over child custody proceedings.
See section 06.15(B) for a list of concurrent jurisdiction Tribes in Washington.
- A social worker refers matters regarding
Indian children who reside or are domiciled within a concurrent jurisdiction
Indian reservation to appropriate tribal authorities, so that the child
custody proceedings may be commenced in tribal court.
- If a child resides or is domiciled within
a concurrent jurisdiction reservation, the social worker notifies the child's
Tribe by registered mail return receipt requested of the social worker's
intent to file a state court action and of the date that the action will
be filed. A social worker:
- Does
not file a state court action if a child custody proceeding has already
been filed in tribal court:
- Sends
notice to the child's Tribe at least five business days prior to filing
any state court action; and
- Includes
along with the notice a copy of all documents and records supporting
the necessity of initiating a child custody proceeding.
- If a social worker receives notification
or has knowledge that a tribal court has commenced a child custody proceeding,
the social worker does not file a child custody proceeding in state court
and, upon timely request by the Tribe, assists the tribal court in adjudicating
the case. See section 6.40 regarding the assistance social workers will
provide in tribal court proceedings.
- A CA social worker does not file an action
in tribal court unless requested to do so by the Tribe.
- A social worker keeps a record in the ICW
section of the service file on a case-by-case basis of the inquiries the worker
made to verify whether a child is a ward of the tribal court. The worker
also keeps a record of the facts considered in reaching a decision that a child
is or is not a resident of or domiciled on the reservation of a federally recognized
Indian Tribe.
- A social worker provides a copy of the child’s
record, upon request, to the Indian child's Tribe, parent or Indian custodian.
and any guardian ad litem appointed to represent the child.
- A social worker also provides a copy of
the record to any Indian Tribe that claims the Indian child as a ward of
its tribal court and to any Indian Tribe that claims the Indian child to
be resident/domiciled on the Tribe's reservation.
- Following the commencement in state court
of a child custody proceeding involving an Indian child, the child's Tribe,
parent(s), or the child’s Indian custodian may petition or request
transfer of the proceeding to tribal court. The CA social worker sends Motion
and Order to Transfer Jurisdiction to Tribal Court, DSHS 09-547, or Tribal
Court Motion and Order to Accept Jurisdiction, DSHS 09-548, to the Tribe
for its use for these purposes.
- A CA social worker must not encourage the
child's parent or Indian custodian to object to transfer of jurisdiction.
- Upon
petition/request, state court must transfer the proceeding to tribal court
unless the state court finds good cause to the contrary or unless a child's
parent or Indian custodian objects to the transfer of jurisdiction.
- A
CA social worker must not oppose a petition/request for transfer to tribal
court without first consulting with worker’s immediate supervisor
and the assigned Assistant Attorney General or contracted prosecuting attorney.
The worker must base any objection on fact.
If a child custody proceeding involving an Indian child is filed in a tribal
court, the social worker assists the tribal court in adjudicating the case
upon timely request by the Tribe. The Tribe must request assistance in
a tribal court proceeding sufficiently in advance to allow the social worker
the time and opportunity for adequate preparation. Such assistance from
the social worker may include:
- Provision of available information and documentation
that the Tribe may need to pursue a child custody proceeding in tribal
court. See chapter 04 regarding confidentiality.
- Testimony
in a tribal court proceeding. The tribal court should give the CA social
worker an opportunity to address the feasibility of the proposed case plan/court
order in writing or through testimony.
- Preparation
of service/placement case plans.
- Assistance
in implementing tribal court orders regarding services and placements.
If the CA social worker cannot implement a tribal court order, the social
worker notifies the tribal court in writing as soon as possible.
- Agency
assumption of the care, custody, and supervision of an Indian child under
a tribal court order. If the social worker cannot implement an order for
agency care, custody, and supervision of a child, the social worker notifies
the tribal court in writing as soon as possible.
- A federally recognized Indian Tribe at any
time has the right to intervene as a party in state court child custody proceedings
involving children who are members or eligible for membership in a Tribe.
- A
child's Indian custodian has the right to intervene in such proceedings.
See Chapter 14 for definition of "Indian custodian."
- A Canadian First Nations or Recognized Indian
child's Tribe or band may seek intervention pursuant to Superior Court
Civil Rule 24 (CR 24). See Chapter 11 regarding tribal intervention in child
custody proceedings involving Recognized Indian Children.
- A social worker supports a request for intervention
filed by a child's Tribe or Indian custodian.
- A CA social worker does not make a voluntary
placement of an Indian child in foster care until the worker has:
- Followed the procedures in sections
06.10 through 06.40 regarding verification of tribal jurisdiction and
special requirements applying to federally recognized Washington State
Indian Tribes; and
- Notified the Tribe; and
- Followed the consent to place procedures
described in this section.
- Voluntary consents to foster care placement
are not valid unless the parent signs the consent before a tribal or state
court judge more than 10 calendar days after the child's birth and the
judge approves the consent.
- If a parent or Indian custodian seeks to
voluntarily place an Indian child in foster care, the CA social worker
asks the parent and Tribe if the child is a ward of tribal court or is a
resident or domiciled within the boundaries of an exclusive jurisdiction
Indian reservation. Follow procedures outlined in sections 06.10 through
06.40.
- If the child is a ward of tribal court or
resident or domiciled on an exclusive jurisdiction Indian reservation,
the social worker:
- Informs
the parent or Indian custodian that the Tribe has exclusive jurisdiction
to approve such placements.
- Assists
the parent or Indian custodian, at the request of and in cooperation
with the Tribe's social services program, to place the child in foster
care or make such other arrangements as may be appropriate under the
circumstances.
- When a parent or Indian custodian seeks
to voluntarily place an Indian child in foster care, and the child is not
a ward of tribal court and is not resident/domiciled on an exclusive jurisdiction
Indian reservation, the CA social worker informs the parent or Indian custodian
of:
- Placement
preference requirements;
- Requirements
for notification of the child's Tribe and extended family members;
and
- The
requirement for state or tribal court validation of the consent prior
to placement. If the social worker has actual or constructive knowledge
that the child may be an Indian or Alaska Native, or if the social worker
has not verified whether or not the child is such a child, the social
worker must obtain court validation of the voluntary consent.
- The social worker assists the parent or
Indian custodian to contact an Indian interpreter or a representative of
the social services program of the child's Tribe to ensure that the consent
is voluntary and that the parent or Indian custodian understands what the
parent or custodian is doing. See Chapter 14 for definition of "Indian
interpreter."
- The
social worker documents such assistance in the ICW section of the service
record. If the social worker refers the parent or Indian custodian to
an identified individual, the social worker includes in the service record
documentation the date of the referral and the name of the individual
to whom the worker made the referral.
- Upon
request, the social worker provides the documentation to the child's
Tribe.
- The social worker:
- Encourages
the parent or Indian custodian to execute any consent to foster care
placement before a tribal court judge if consistent with the practice
and procedures of the tribal court for the child's Tribe.
- Cooperates
with the tribal social services program and assists with placement
if the tribal court processes the consent to place. See Chapter 6.40
regarding tribal court proceedings.
Prior to accepting a voluntary consent to foster care placement, the social
worker:
- Encourages the parent or Indian custodian
to contact the child's Tribe regarding available services to assist the parent
or Indian custodian to retain custody of the child or to maintain the parent-child
relationship during placement.
- Documents in the ICW section of the service
record the worker’s efforts to have the parent or Indian custodian
contact the child's Tribe regarding available services.
- If
the social worker refers the parent or Indian custodian to an identified
individual within the child's Tribe, the social worker includes in the
ICW section of the service record documentation the date of the referral
and the name of the individual to whom the worker made the referral.
- The
social worker provides the documentation to the child's Tribe, upon
request.
- The social worker fully explains the consent
to place form, Consent to Foster Care Placement and Court Certification,
DSHS 09-763, to the parent or Indian custodian of an Indian child. The
worker uses an Indian interpreter, when possible, to explain the form to
the parent/Indian custodian.
- The social worker requires the parent
or Indian custodian to read the consent form prior to obtaining the
parent or Indian custodian's signature on the form.
- If
the social worker has any doubt about the parent or Indian custodian's
ability to read and understand the consent form, the worker will read
and explain the form to the parent or custodian.
- If
the social worker or the parent/custodian has any doubt about the parent
or Indian custodian's ability to understand English, the worker makes
arrangements to have the form read and explained to the parent or Indian
custodian in the parent or custodian's primary language.
- The social worker obtains the parent or
Indian custodian's signature on the consent form acknowledging that the
parent or custodian has read the consent form, understands the consent form,
and wishes to consent to the child's placement in foster care.
- The
social worker gives a copy of the signed consent form to the parent
or Indian custodian.
- The
social worker explains to the parent or Indian custodian that the consent
is not valid until the parent or Indian custodian also signs the form
in court and a judge approves the consent.
- The social worker does not place the child
in foster care until the parent or Indian custodian has signed the consent
form in court, and the judge has approved the consent.
The CA social worker must comply with the following consent to place procedures:
- When
the social worker obtains the signature of an Indian child’s parent
or Indian custodian on a consent to place form, DSHS 09-763, the social
worker immediately sends copies of the signed form, by registered mail,
return receipt requested to:
- The child’s Tribe:
- The non-consenting parent (including
any alleged father); and
- The child’s Indian custodian,
if any.
- The
social worker does not file the petition for validation of the voluntary
consent until at least five business days after sending copies of the signed
form to the child’s Tribe and to the non-consenting parent or Indian
custodian.
- If circumstances require a shorter
time period, the social worker provides the Tribe and non-consenting
parent or Indian custodian with telephone notice of the consent.
- The social worker gives telephone
notice far enough in advance to allow the tribal representative time
to communicate with the parents or Indian custodian and for the tribal
representative and the non-consenting parent to appear for the court
validation hearing.
- The social worker completes and files a Petition
for Court Validation, DSHS 09-762, in juvenile court. Upon filing
the petition, the social worker:
- Notifies the child’s parents
(including any alleged father), the child’s Indian custodian, if any,
and the non-consenting parent if the parent’s whereabouts are known,
as soon as possible of the time, date, and place of any scheduled validation
hearing.
- If the social worker does not provide
the initial notification in writing, the social worker also sends
written notice to the parents (including any alleged father) and
the Indian custodian, if any, using Notice to Parent/Indian Custodian,
DSHS 09-543.
- The social worker completes Declaration
of Notification, DSHS 09-767, and files the declaration
with the court.
- Provides the parents (including any
alleged father) and the Indian custodian with a copy of the consenting
parent’s
signed consent, a copy of the notice sent to the Tribe, and a copy
of the petition or other court documents filed in the proceeding.
- Provides the non-consenting parent,
if whereabouts are known, a copy of the petition.
- Notifies the child’s Tribe as
soon as possible by telephone of the date, time, and place of any scheduled
validation hearing.
- The social worker also sends written
notice of the validation hearing to the child’s Tribe, using Notice
to Indian Tribe, Band or Nation, DSHS 09-541.
- If the child is a member or eligible
for membership in more than one Tribe, the social worker provides
notice to all such Tribes.
- The social worker completes Declaration
of Notification, DSHS 09-767, and files the declaration with
the court.
- Provides the child’s Tribe with
a copy of any petitions or other court documents filed in the proceeding.
- If the child’s Tribe or Indian custodian
requests to intervene in the proceeding, the social worker provides the Tribe
or Indian custodian with the information necessary to accomplish the intervention. If
the child’s Tribe or parent(s)/Indian custodian requests transfer of
the proceeding to tribal court, the social worker supports the transfer.
- The court clerk schedules a validation hearing
to be held within 48 hours after the petition is filed. However, a hearing
cannot be held until more than 10 days after the birth of the Indian child.
- The consenting parent(s) must appear
personally at the validation hearing to enter on the record the parent’s
consent to foster care placement.
- At the validation hearing, the parent(s)
signs the consent before the judge. The social worker or the social worker’s
legal representative presents the Consent to Foster Care Placement and
Court Certification, DSHS 09-763, to the court for approval and court
certification.
- The social worker follows:
- The
placement preferences found in Chapter 07 unless the child's Tribe
has changed or waived the preference.
- The
requirements of Chapter 07, section 07.20, regarding notice to the
child's extended family.
- The social worker returns the
child to the parent(s) upon withdrawal of the consent unless one of the
following applies:
- Under RCW 13.34.050, the court has
ordered the child taken into custody on a finding of reasonable grounds
to believe that:
- The child is dependent; and
- The child’s health, safety,
and welfare will be seriously endangered if the child is not taken
into custody; and
- At least one of the grounds for ordering
continuing custody demonstrates a risk of imminent harm to the
child.
- Under RCW 13.34.130, the court orders
removal of the child from the home because:
- The child’s health, safety,
and welfare cannot be adequately protected in the home; and
- The court finds, by clear, cogent,
and convincing evidence, a manifest danger exists that the child
will suffer serious abuse or neglect if the child is not removed
from the home and an order under RCW 26.44.063 would not protect
the child.
- The social worker notifies the court
of the child's return home and obtains an order of dismissal, using the Motion,
Declaration and Order of Dismissal, DSHS 09-759.
- The social worker notifies the child's Tribe,
the non-consenting parent (including any alleged father), the child's Indian
custodian, and any other party to the validation proceeding when the parent
or the department has terminated the consent to place, and the department
has returned the child home. CA considers a copy of a signed Motion,
Declaration and Order of Dismissal, DSHS 09-759, adequate notice of
the child's return home.
Following the placement of an Indian child in foster care under a valid voluntary
consent, the social worker provides placement services in accordance with the
requirements of chapter 07, section 07.70.
- Except in emergency circumstances, the social
worker notifies the child's Tribe, the parents (including any alleged father),
and the Indian custodian, if any, of a decision to change a voluntary foster
care placement into an involuntary foster care placement. Except when
contrary to the best interests of the child, the social worker gives notice
at least 15 calendar days before filing a dependency petition. The worker
uses Notice of Change of Voluntary Placement to Involuntary Placement,
DSHS 09-774, to provide notice. In emergency situations, the social worker
follows the procedures in section 06.60.
- The social worker does not petition any
court for an involuntary foster care placement when basing the petition
solely on the prior voluntary child placement.
- Except in emergency situations, the social
worker follows the requirements set forth in paragraph B, below, before
filing a dependency, guardianship, or involuntary termination petition in
juvenile court. In emergency cases the social worker follows the requirements
outlined in section 06.60 regarding shelter care placement.
- Before filing a dependency, dependency guardianship,
or involuntary termination petition in juvenile court, the social worker
must:
- Make active
efforts to comply with the requirements of Chapter 05 of
this manual to prevent the breakup of the Indian family.
- Comply
with the requirements of sections 06.10 through 06.40 regarding verification
of tribal court jurisdiction and special requirements applying to federally
recognized Indian Tribes.
- Consult
with the child's Tribe and provide the Tribe with any records and documents
supporting the decision to file a petition in juvenile court. See Chapter
04 regarding confidentiality.
- Seek
to formulate with the Tribe a mutually acceptable course of action
in the best interests of the child.
- Make active
efforts to agree to family service plans, voluntary service
agreements, and legal arrangements, such as restraining orders or
protection order, designed to protect the child and eliminate the
need for filing a petition in juvenile court.
- The social worker does not file
a dependency, dependency guardianship, or involuntary termination petition
in juvenile court when the only grounds for such a petition
are evidence of:
- Community
or family poverty; or
- Crowded
or inadequate housing; or
- Alleged
alcohol abuse or other nonconforming social behaviors on the part of
the parent(s) or Indian custodian.
- When filing a petition, the social worker
only considers the above factors when the worker can demonstrate such factors
are directly connected to evidence that the child’s health, safety,
and welfare is endangered.
If it is necessary to place an Indian child in shelter care, the social worker
verifies if the child is a ward of a tribal court or is a resident of or domiciled
within the boundaries of an exclusive jurisdiction Indian reservation. See
sections 06.10 through 06.40 for information about jurisdiction. The
social worker:
- Contacts the child's Tribe, which determines
jurisdiction, for necessary information to make this verification.
- If possible, contacts the child's Tribe
for verification prior to placing the child.
- If, due to the circumstances of the case,
it is not possible to contact the child's Tribe or verify jurisdiction
prior to placement, makes efforts to contact the Tribe within one working
day following placement.
- Documents contacts with the child's Tribe
in the ICW section of service record.
- If an Indian child is a ward of the tribal
court or resident of or domiciled within the boundaries of an exclusive
jurisdiction Indian reservation, neither the social worker nor juvenile court
may exercise authority to place the child in foster care, unless authorized
by the tribal court. See section 06.15(A).
- If an Indian child, who is a ward of the
tribal court or is resident or domiciled on an exclusive jurisdiction Indian
reservation, is located off the reservation, the social worker may, after
attempting to contact the Tribe, in emergency situations:
- Arrange
emergency pick up by law enforcement; or
- Obtain
a court order authorizing emergency placement in shelter care in order
to prevent imminent physical damage or harm to the child or sexual abuse
of the child.
- Give
the child's parent(s) or Indian custodian a copy of the Parent's Guide
to CPS, DSHS 22-484(X), and a copy of the Temporary Custody Notification form,
DSHS 09-731, if one of the following places a child in DSHS custody:
- An emergency pickup by law enforcement;
or
- A hospital/medical hold; or
- A court order authorizing emergency
shelter care placement.
- When
obtaining a court order for emergency placement, the social worker follows
the legal procedures in section 06.605.
- A
shelter care placement does not extend for a period longer than 72 hours
(excluding Saturdays, Sundays and holidays) without an order of the court
of competent jurisdiction approving such placement. If the tribal court is
unable to issue an order within the 72 hour period, the social worker arranges
for a juvenile court shelter care hearing during that period.
- If
the juvenile court has issued a shelter care order, the social worker immediately
seeks dismissal of the juvenile court proceeding as soon as the tribal
court exercises jurisdiction over the child.
- Following placement, the social worker:
- Makes active
efforts to return the child home;
- Takes
necessary steps to ensure that a child's shelter care placement ends
immediately when the placement is no longer necessary to prevent harm
to the child’s
health, safety, or welfare; and
- Immediately
returns the child to the child's parent(s) or Indian custodian when
the placement ends.
- The social worker may take steps to arrange
for emergency pick-up of an Indian child by law enforcement or to obtain a
juvenile court order authorizing shelter care placement ifthe
child is:
- Not a ward of tribal court; or
- Not resident or domiciled within an
exclusive jurisdiction Indian reservation; and
- The social worker does not seek shelter
care order unless the order is necessary to prevent harm to the child’s
health, safety, or welfare. The social worker follows the legal procedures
of section 06.605.
- The social worker gives the child's parent(s)
or Indian custodian a copy of the Parent's Guide to CPS, DSHS
22-484(X), and a copy of the Temporary Custody Notification form,
DSHS 09-731, if one of the following places a child in DSHS custody:
- An emergency pickup by law enforcement;
or
- A hospital/medical hold; or
- A court order authorizing emergency
shelter care placement.
- Unless
the social worker returns a child to the child's parent(s) or Indian
custodian within 72 hours, excluding weekends and holidays, following
shelter care placement of the child, the worker arranges for a juvenile
court shelter care hearing. The court must hold the hearing within
72 hours, excluding weekends and holidays, following the child's shelter
care placement.
- Following placement, the social worker:
- Makes active
efforts to return the child home;
- Takes
necessary steps to ensure that the shelter care placement ends immediately
when the placement is no longer necessary to prevent imminent harm
to the child’s
health, safety, or welfare; and
- Immediately
returns the child to the child's parent(s) or Indian custodian when
the placement ends.
- The initial shelter care placement must
not extend for a period longer than 72 hours (excluding Saturdays, Sundays
and holidays) unless:
- The
juvenile court transfers the case to tribal court, and the tribal court
orders a longer placement period; or
- The
social worker obtains a juvenile court order approving a longer period
of placement.
As soon as possible following knowledge of the need for an emergency shelter
care placement of an Indian child, the social worker actively involves the
social services program of the child's Tribe in all matters pertaining to the
shelter care placement.
- The social worker must:
- File
a Dependency Petition, DSHS 09-428, in Juvenile Court according
to Washington State law and an Addendum to Petition, DSHS 09-771.
- Notify
the child's parent(s) and/or Indian custodian, if any, and the child's
Tribe of the time, date, and place of an initial hearing by the quickest
means available. The social worker documents the notification in the
ICW section of the case file.
- When
providing written notification, the social worker uses the Temporary Custody
Notification, DSHS 09-731. The social worker also provides the
parent(s) or Indian custodian with a copy of the Parent's Guide to CPS,
DSHS 22-484.
- When
possible, the social worker must provide notification to the child's
Tribe prior to placing the child in shelter care.
- Provide
written notification of subsequent shelter care proceedings and the
dependency fact-finding hearing to the child's parent(s), including any
alleged father, and Indian custodian, if any, and the child's Tribe as
required in Section 06.651(C), below.
- If the child's Tribe or Indian custodian,
if any, requests to intervene in the proceeding, the social worker provides
documents and information to use in that intervention. If the child's
Tribe, parent(s), or Indian custodian, if any, requests transfer of the
proceeding to tribal court, the social worker supports the transfer except
as provided in section 06.35.
Federally Recognized Indian Tribes
- When
the social worker assesses the need for continuing placement beyond 72
hours (excluding Saturdays, Sundays and holidays), the worker immediately
contacts the social services program of the child’s Tribe to establish
whether the Tribe wishes to request a transfer of jurisdiction to the tribal
court. The social worker makes necessary forms available to the Tribe:
- Motion and Order to Transfer Jurisdiction
to Tribal Court , DSHS 09-547
- Tribal Court Motion
and Order to Accept Jurisdiction , DSHS 09-548
- If
the case has not been filed in tribal court prior to a state court issuing
an order, a juvenile court must hold a shelter care hearing within the
72 hour periodin accordance with RCW 13.34.060. The Tribe
does not waive the right to request transfer of jurisdiction at any time
by declining to request transfer within the 72 hour period.
- The
social worker takes immediate steps to involve the child's Tribe in
the case if the Tribe is not already involved.
- When possible, the social worker seeks
to present at the initial shelter care hearing the testimony of a qualified
expert regarding the need for continued foster care placement of the
child. See Chapter 14 for definition of "qualified expert."
- If expert testimony is not used in
the initial shelter care hearing, the social worker takes immediate steps
to involve a qualified expert in the case.
- Unless
the social worker or the court has previously returned the child to the
parent(s) or Indian custodian, the worker requests that the court hold a
subsequent shelter care hearing within 30 calendar days of the initial shelter
care hearing.
- If
the social worker recommends continued foster care placement at the
30-day shelter care hearing, the worker also presents the testimony of
a qualified expert regarding the need for continued foster care placement
of the child.
- If
the court orders continued foster care placement following the 30-day
shelter care hearing, the social worker requests that the court set a
fact-finding hearing as soon as possible, if the court has not already
set the case for fact-finding.
- The
social worker makes active efforts before the fact-finding
to return a child to the custody of the child's parent(s) or Indian
custodian, if any, if the worker determines foster care placement is
no longer necessary to prevent harm to the child’s health, safety,
or welfare.
- If
the court enters an order for shelter care placement of a child,
the social worker obtains a modification of the order prior to
returning the child to the custody of the child's parent(s) or
Indian custodian, if any.
- When
the social worker or the court returns a child to the custody of
the child’s
parent or Indian custodian, the social worker notifies any other
parent or Indian custodian, if any, the child's Tribe, and any
other party to the proceeding.
- The worker must provide the notification
in writing and specify the name and address of the person to whom
the child has been returned, unless the safety of the child or
care provider would be jeopardized by providing this information.
The social worker staffs the case with LICWAC only if the worker has been
unable to identify the child’s Indian Tribe or at the request of the
child’s Tribe. See Chapter 10 for LICWAC procedures.
- The social worker follows the foster care
placement preferences found in Chapter 07, unless the child’s Tribe
has changed or waived the preferences.
- The social worker may make an emergency
shelter care placement not within the placement preferences found in Chapter
07 only if the social worker, in cooperation with the child’s Tribe,
has made diligent and documented efforts to
place the child within the placement preferences.
- When
the social worker not does initially place a child in accordance with the
placement preferences, the worker continues efforts to place
the child in accordance with the preference requirements of Chapter 07 as
soon as possible.
Once the social worker has placed an Indian child in shelter care, the social
worker provides services following placement in accordance with the requirements
of Chapter 07.
- Except in emergency cases, the social worker
follows the requirements of section 06.55 before filing a dependency petition
in juvenile court.
- In emergency situations, the social worker
follows the requirements of Chapter 06.60 regarding shelter care placement.
- To commence a dependency proceeding, the
social worker, or CA’s legal representative, completes and files
a Dependency
Petition, DSHS 09-428, with juvenile court. The social worker also
completes and files with the court an Addendum to Petition, DSHS
09-771.
- The social worker follows the notification
procedures below.
- After filing the dependency petition,
the social worker immediately arranges for personal service to the child’s
parents, including any alleged father, and Indian custodian, if any,
with formal Notice and Summons, issued by the Court Clerk, and with Notice to Parent/Indian
Custodian, DSHS 09-543.
- If the social worker cannot give or
arrange for personal service, the worker arranges for notification
by registered mail, return receipt requested, to the person’s last known address. The
worker also arranges for mailing of a copy of the notice by regular mail to
the person’s last known address.
- The social worker arranges for notice
by publication if the worker cannot give or arrange for notice
by personal service or registered mail.
- The child’s parent(s) and Indian
custodian, if any, must receive written notification at least 15
business days prior to the dependency fact-finding hearing if the
parent(s) or custodian resides within the state of Washington. The
parent(s) and custodian, if any, must receive written notification
10 business days prior to the fact-finding if the parent(s) or custodian
lives outside of the state of Washington.
- After the social worker or the worker’s
legal representative files the dependency petition, the worker immediately
arranges for formal Notice and Summons, issued by the Court Clerk and Notice
to Federally Recognized Indian Tribe, Band, or Nation, DSHS 09-541,
to the Tribes of which the child may be eligible for membership.
- The social worker arranges for notification to the Tribe’s
address as listed in Chapter 12 in this manual. The social worker
obtains a specific name and address of a tribal representative
and sends a copy of the notification directly to that person, by
registered mail, return receipt requested, as well as by regular
mail.
- If the child is a member of or eligible
to be a member of more than one Tribe, the social worker arranges
for notification to all such Tribes, following the steps in paragraph “a,” above,
and follows up with telephone calls.
- The child’s Tribe(s) must receive
notification at least 15 business days prior to the dependency
fact-finding hearing.
- When the social worker sends written
notice to the child’s parent(s), the child’s Indian custodian,
if any, and the child’s Tribe, the worker also sends:
- Copies of the petition and scheduling
orders;
- Tribal Intervention/Request for
Continuance, DSHS 09-542, to the child’s Tribe; and
- Parent/Indian Custodian Request
for Continuance, DSHS 09-544, to the child’s parent(s)
and Indian custodian, if any.
- Notice to BIA
- If the social worker does not know
the location or identity of the child’s Tribe, parent(s),
and Indian custodian, if any, the worker arranges to send notification
to BIA by registered mail, return receipt requested, at least 35
calendar days prior to the fact-finding hearing, using Notice to BIA,
DSHS 09-545. See Chapter 12 for BIA contact information.
- The
social worker also sends to the BIA a copy of the notices to the
parent(s), the Indian custodian, if any, and the child's Tribe and
all other background information that may assist the BIA in locating
or identifying the child's parent(s), Indian custodian, and/or the
child's Tribe.
- Documentation of Notification
The social worker:
- Includes the client case name and
case number on the postal confirmation of delivery form to facilitate
matching the form with the proper case when the form returns from
the Postal Service; and
- Files
the original returned confirmation form in the ICW section of the
client case file; and
- Files copies of forms and letters
sent to the BIA, the child’s Tribe(s), parent(s), and Indian
custodian, if any, in the ICW section of the client case file.
- The
child's Tribe and/or parent(s) and Indian custodian, if any, may request
continuation of the case for at least 20 calendar days from the date
of the scheduled fact-finding hearing. To do this, the parties use the Tribal Intervention/Request
for Continuance, DSHS 09-542, or Parent/Indian Custodian Request for
Continuance, DSHS 09-544, as applicable.
- If
the child's Tribe or Indian custodian requests to intervene in the
proceeding, the social worker provides documents and information related
to the intervention. If the child's Tribe requests transfer of the proceeding
to tribal court, the social worker supports the transfer except as provided
in Chapter 06.35.
- The
social worker provides a copy of the dependency order to the child's
parent(s), Indian custodian, if any, the child's Tribe, and any other
party to the proceeding.
- When the court dismisses a dependency
proceeding at or before the fact-finding hearing, the social worker
provides a copy of the dismissal order to the child's parent(s), Indian
custodian, if any, the child's Tribe, and any other party to the proceeding.
The social worker uses Notice of Dependency Dismissal, DSHS
09-776, to provide notification.
- At the dependency disposition, the court
may order out-of-home placement of an Indian child only upon proof that:
- The social worker has made or provided active
efforts to eliminate the need for placement.
- Continued parental or Indian custodian
physical custody is likely to result in serious emotional or physical
damage to the child.
- The standard of proof for this finding
is "clear, cogent, and convincing evidence.”
- The social worker utilizes a qualified
expert witness to meet this standard. See Chapter 14 for definition
of "qualified
expert witness."
- If the child is placed in out-of-home care,
the social worker must:
- Place the child in a specific placement
designated by the Tribe, or, if the Tribe designates no specific placement,
follow the Tribe’s official placement preference order.
- Follow the placement preferences found
in Chapter 07 if the child's Tribe has not designated a specific placement
or placement preferences.
- Follows the requirements of Chapter
07 regarding notice to the child's extended family.
- Notification of Dispositional Hearing
- If the dispositional hearing is at
a different time than the fact-finding hearing, the social worker notifies
the child's parent(s), including any alleged father, the child's Indian
custodian, if any, and the child's Tribe of the time, date, and place
of the dispositional hearing by the quickest means possible. The social
worker documents the notification in the ICW section of the case file.
- The social worker also provides written
notice of the dispositional hearing to the child's parent(s), Indian
custodian, if any, and to the child's Tribe. The worker uses the Notice to Parent/Indian
Custodian, DSHS 09-543, or Notice to Federally Recognized Indian Tribe, Band
or Nation, DSHS 09-541, as applicable.
- The social worker provides a copy of the
disposition order to the child's parent(s), Indian custodian, if any, the
child's Tribe, and any other party to the proceeding.
- Prior
to preparing a social study/report to court and/or an Individual Service and
Safety Plan (ISSP) for the dependency dispositional hearing, the social worker
staffs the case with the designee of the child's Tribe. See Chapter 04
regarding confidentiality. The social worker includes recommendations
of the child's Tribe in the report to the court or in the ISSP.
- If, after the social worker makes
diligent efforts to contact the Tribe, a tribal designee remains unavailable,
the worker staffs the case with LICWAC in accordance with the procedures
in Chapter 10. If the social worker wishes to staff the case with a tribal
LICWAC, the social worker seeks to obtain the Tribe’s approval
for use of the tribal LICWAC.
- The social worker includes recommendations
of the LICWAC in the report to the court or in the ISSP.
- If the child’s Tribe subsequently
becomes involved, LICWAC involvement will stop unless the child’s
Tribe requests continued LICWAC involvement.
- The child’s Tribe may choose
not to be involved and also require that the LICWAC not be involved.
- If the child’s Tribe declines
and does not want LICWAC involvement, then the social worker must
ask the Tribe to designate an alternative resource to provide consultation
to the social worker on the case.
- If the child’s Tribe does not
designate an alternative resource, the Regional Administrator,
in consultation with the Tribe, designates an Indian expert for consultation.
- When the social worker prepares a social
study/report to court and/or an ISSP for a dependency dispositional hearing
or dependency review hearing, the worker invites the child's Tribe and a
qualified expert to play an active role in the preparation of such study.
See Chapter 14 for definition of "qualified expert." The worker
will describe in detail the role of the child's Tribe and fully state the
Tribe's recommendations and such other information provided by the Tribe.
- If the Tribe declines or fails to participate
in the social study, the social worker involves a qualified expert to help
prepare the study. The social worker may also involve an Indian interpreter
in the preparation of the study. See Chapter 14 for definition of "Indian
interpreter."
- Upon filing the social study/report with
the court, the social worker provides a copy of the social study/report
to the child's parent(s), Indian custodian, if any, the child's Tribe, and
any other party to the proceeding. See Chapter 04 regarding confidentiality.
- Subject to the availability of funds and
resources and within the department’s legal authority to act, the
social worker cooperates with and follows all recommendations of the Tribe,
qualified expert, or Indian interpreter, as applicable, in the report to
court.
- The social worker notifies the child's parent(s),
including any alleged father, the child's Indian custodian, if any, and
the child's Tribe of dependency review hearings in juvenile court.
- The worker uses the following forms,
as applicable, for this purpose:
- Notice to Parent/Indian
Custodian , DSHS 09-543
- Notice to Federally
Recognized Indian Tribe, Band, or Nation , DSHS 09-541
- Tribal Intervention/Request
for Continuance , DSHS 09-542
- Parent/Indian Custodian
Request for Continuance , DSHS 09-544
- Notice of Dependency
Dismissal , DSHS 09-776
- The
social worker sends notice by registered mail, return receipt requested,
at least 20 calendar days prior to the scheduled review date.
- The social worker follows the requirements
of section 06.653 in preparing the report to court and/or the ISSP for
the dependency review hearing, involving the Tribe, parents, and caretakers
in report preparation.
- If the department will recommend removal
of a child from the custody of a parent or Indian custodian, the social
worker must follow procedures in section 6.652(A) and (B).
- The social worker provides a copy of the
dependency review order to the child's parent(s), Indian Custodian, if
any, the child's Tribe, and any other party to the proceeding.
If CA places an Indian child in foster care following a dependency finding,
the social worker provides services following the placement in accordance with
Chapter 07.70.
- When the court dismisses a dependency proceeding,
the social worker provides a copy of the dismissal order to the child's
parent(s), the Indian custodian, if any, the child's Tribe, and any other
party to the proceeding.
- When the social worker returns an Indian
child to the custody of a parent or the Indian custodian, if any, the social
worker notifies:
- Any other parent;
- Another Indian custodian, if any;
- The child's Tribe; and
- Any other party to the proceeding.
- The social worker provides written notice,
specifying the name and address of the person to whom the social worker
has returned the child, unless the safety of the child or the care provider
would be jeopardized by providing this information.
- The social worker uses the Notice of
Dependency Dismissal, DSHS 09-776, to provide the written notice.
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