HLS 18RS-679 ORIGINAL
2018 Regular Session
HOUSE BILL NO. 182
BY REPRESENTATIVE JOHNSON
(On Recommendation of the Louisiana State Law Institute)
CHILDRENS CODE: Provides relative to the Indian Child Welfare Act
1 AN ACT
2To amend and reenact Children's Code Articles 612(A)(2), 624(D), (E), (F), and (G),
3 634(A), 749(A) and (B), 1019(A) and (B), and 1122(A)(3), to enact Children's Code
4 Articles 103.1, 116(6.1) and (6.2), 624(H), 624.1, 661.1, 767.1, 767.2, 1034.1,
5 1034.2, 1515(A)(8) and (C) and 1518(C), and to provide Comments to Children's
6 Code Article 680, relative to the Indian Child Welfare Act; to provide for the
7 applicability of the Indian Child Welfare Act; to provide definitions; to provide for
8 an inquiry; to provide for the standard for determining whether a child is an Indian
9 child; to provide for procedures and effects; and to provide for related matters.
10Be it enacted by the Legislature of Louisiana:
11 Section 1. Children's Code Articles 612(A)(2), 624(D), (E), (F), and (G), 634(A),
12749(A) and (B), 1019(A) and (B), and 1122(A)(3) are hereby amended and reenacted and
13Children's Code Articles 103.1, 116(6.1) and (6.2), 624(H), 624.1, 661.1, 767.1, 767.2,
141034.1, 1034.2, 1515(A)(8) and (C) and 1518(C) are hereby enacted to read as follows:
15 Art. 103.1. Applicability of Indian Child Welfare Act
16 A. The provisions of the federal Indian Child Welfare Act and the
17 regulations promulgated thereunder supersede the Children's Code whenever the
18 outcome of an involuntary or voluntary proceeding may result in the removal of an
19 Indian child from a parent under circumstances in which the parent cannot have the
20 child returned upon demand.
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1 B. Child custody proceedings to which the federal Indian Child Welfare Act
2 and the regulations promulgated thereunder apply include the following:
3 (a) A child in need of care proceeding.
4 (b) A certification for adoption proceeding.
5 (c) A family in need of services proceeding.
6 (d) A transfer of custody, a surrender for adoption, and any other voluntary
7 proceeding.
8 Comments - 2018
9 The purpose of the federal Indian Child Welfare Act (ICWA), 25 U.S.C.
10 1901-1963 and 25 C.F.R. 23, is to express a preference for keeping Indian children
11 with their families, deferring to tribal judgment on matters concerning the custody
12 of tribal children and placing Indian children who must be removed from their homes
13 within their own families or with their own or other Indian tribes. Among other
14 added responsibilities is a mandate that the court shall ensure and document in the
15 record a timely inquiry about Indian heritage. See Articles 612, 612.1, 624, 634,
16 661.1, 746, 1004, 1034.1, and 1122. If the court knows or has reason to know the
17 child is an Indian child, then the court must ensure and document in the record
18 adherence to the provisions of ICWA, including a thirty-day limit on emergency
19 removals, a determination of jurisdiction, proper notice to the appropriate tribe(s),
20 placement preferences, use of "qualified expert witnesses," and the burden of proof
21 required for the particular proceeding. ICWA also imposes significant procedural
22 requirements aimed at ensuring that the interests of a child's tribe and any tribal
23 heritage are recognized as important and distinguishable from the interests and rights
24 of the child's parents. Under ICWA, proper notice must be given in "child custody
25 proceedings" which include: "foster care placement; termination of parental rights;
26 pre-adoptive placement; adoptive placements; and some dispositions in families in
27 need of services cases." 25 C.F.R. 23.103. The terminology encompassing "child
28 custody proceedings" as defined in federal law has been adapted to Louisiana law in
29 Paragraph B of this Article. ICWA applies to private placements and adoptions as
30 well as those initiated by the state. 25 U.S.C. 1903(1). See also B.J. Jones, Mark
31 Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook (2008) (2d
32 ed.).
33 * * *
34 Art. 116. Definitions
35 Except where the context clearly indicates otherwise, these definitions apply
36 for the following terms used throughout this Code.
37 * * *
38 (6.1) "Indian child" means any unmarried child under eighteen years of age
39 who is a member of an Indian tribe or who is eligible for membership in an Indian
40 tribe and is the biological child of a member of an Indian tribe.
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1 (6.2) "Indian tribe" means any Indian tribe, band, nation, or other organized
2 group or community of Indians recognized as eligible for the services provided to
3 Indians by the Secretary of the Interior in accordance with their status as Indians.
4 * * *
5 Comments - 2018
6 (a) The source of these definitions is the federal Indian Child Welfare Act
7 (ICWA), 25 U.S.C. 1903. Recognition of an Indian tribe is signaled by a listing
8 published annually by the Bureau of Indian Affairs in the Federal Register of tribes
9 that are eligible for federal services and programs by the Secretary of the Interior.
10 Not all tribes are recognized. There are over five hundred federally recognized tribes
11 in the United States. Of the more than a dozen tribes in Louisiana, currently only
12 four are federally recognized: the Chitimacha Tribe, the Coushatta Tribe, the
13 Tunica-Biloxi Tribe, and the Jena Band of Choctaw Indians.
14 (b) Note that "Indian child" is a limited term. Only a child who is already
15 a member of an Indian tribe or who is eligible for membership because his mother
16 or father is a member of an Indian tribe may be an Indian child. It is not enough that
17 a child is alleged to have "Indian blood" or that he has a grandparent or other relative
18 who is a member of a tribe. As the Guidelines for Implementing the Indian Child
19 Welfare Act note: "[The definition of "Indian child"] is based on the child's political
20 ties to a federally recognized Indian Tribe, either by virtue of the child's own
21 citizenship in the Tribe, or through a biological parent's citizenship and the child's
22 eligibility for citizenship. ICWA does not apply simply based on a child or parent's
23 Indian ancestry. Instead, there must be a political relationship to the Tribe."
24 Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian Affairs,
25 Dec. 2016), at p. 10.
26 (c) ICWA expressly excludes from its definition of "parent" an alleged
27 unwed father whose paternity has not been acknowledged or established. 25 U.S.C.
28 1903(9). Thus, a child born outside of marriage, though alleged to be the child of a
29 Native American father, is not necessarily protected by ICWA. The regulations
30 provide that paternity may be established by trial law. See 25 C.F.R. 23. In Adoptive
31 Couple v. Baby Girl, 570 U.S. 637 (2013), the Supreme Court carefully noted that
32 it assumed, without deciding, that an illegitimate child was qualified as an Indian
33 child. In that decision, the alleged biological Indian father acknowledged paternity
34 when giving his consent to the termination of his rights, and later, his paternity was
35 verified by DNA testing.
36 * * *
37 Art. 612. Assignment of reports for investigation and assessment
38 A.
39 * * *
40 (2) Reports of high and intermediate levels of risk shall be investigated
41 promptly. This investigation shall include a preliminary investigation as to the
42 nature, extent, and cause of the abuse or neglect and the identity of the person
43 actually responsible for the child's condition. This preliminary investigation shall
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1 include an inquiry as to whether there is reason to know that the child is an Indian
2 child. This preliminary investigation shall also include an interview with the child
3 and his parent or parents or other caretaker and shall include consideration of all
4 available medical information provided to the department pertaining to the child's
5 condition. Such This preliminary investigation shall also include an immediate
6 assessment of any existing visitation or custody order or agreement involving the
7 alleged perpetrator and the child. The department shall request a temporary
8 restraining order pursuant to Article 617, a protective order pursuant to Article 618,
9 or an instanter safety plan order pursuant to Article 619 or Article 620 if the
10 department determines that any such previously ordered visitation or custody would
11 put the child's health and safety at risk. Admission of the investigator on school
12 premises or access to the child in school shall not be denied by school personnel.
13 However, the request for a temporary restraining order or a protective order in
14 accordance with this Article shall not independently confer exclusive jurisdiction on
15 the juvenile court in accordance with Article 303.
16 * * *
17 Comments - 2018
18 If, during the investigation of an allegation of abuse or neglect, the
19 department uncovers information that the child is or may be an Indian child as
20 defined by Article 116, the department must pursue that investigation. If there is
21 reason to know that the child is an Indian child, the federal Indian Child Welfare Act
22 applies in all subsequent proceedings. Specifically, 25 U.S.C. 1922 governs the
23 emergency removal of an Indian child.
24 * * *
25 Art. 624. Continued custody hearing; continued safety plan hearing; federal Indian
26 Child Welfare Act
27 * * *
28 D. At the commencement of the hearing, on the record, the court shall ask
29 each person before the court whether he knows or has reason to know that the child
30 is an Indian child. Each person before the court shall be instructed to inform the
31 court if he subsequently discovers information indicating that the child is an Indian
32 child.
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1 E. At this hearing, the state has the burden to prove of proving the existence
2 of a ground for continued custody or the continued implementation of a safety plan
3 pursuant to Article 626.
4 E.F. The child and his parents may introduce evidence, call witnesses, be
5 heard on their own behalf, and cross-examine witnesses called by the state.
6 F.G. Hearsay evidence shall be admissible at this hearing.
7 G.H. A suitable relative or other suitable individual who seeks to become the
8 custodian of the child must provide evidence of a willingness and ability to provide
9 a wholesome and stable environment for the child and to protect the health and safety
10 of the child pending an adjudication hearing. He shall affirm a continued acceptance
11 of the terms of the safety plan.
12 Comments - 2018
13 The regulations promulgated under the federal Indian Child Welfare Act
14 (ICWA), 25 C.F.R. 23, require the court to make an inquiry at the commencement
15 of every child custody proceeding as to whether there is reason to know that the child
16 is an Indian child. Although usually notice must be given to the child's tribe if there
17 is reason to know that the child is an Indian child, no federal law requires notice in
18 this instance due to the short time frame in which emergency proceedings are
19 conducted to secure the safety of the child. In contrast, in a subsequent adjudication
20 hearing when information provided to the court indicates that there is reason to know
21 that the child is an Indian child, the court must proceed in accordance with ICWA,
22 including determining jurisdiction, meeting the higher standard for removal, and
23 following the notice requirements.
24 Art. 624.1. Reason to know a child is an Indian child; federal Indian Child Welfare
25 Act
26 A. Upon conducting the inquiry required by Article 624(D), a court has
27 reason to know that a child in a continued custody hearing or other child custody
28 proceeding is an Indian child if any of the following occurs:
29 (1) A person before the court, an officer of the court involved in the
30 proceeding, an Indian Tribe, an Indian organization, or an agency informs the court
31 that the child is an Indian child.
32 (2) A person before the court, an officer of the court involved in the
33 proceeding, an Indian Tribe, an Indian organization, or an agency informs the court
34 that it has discovered information indicating that the child is an Indian child.
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1 (3) The child who is the subject of the proceeding gives the court reason to
2 know that he is an Indian child.
3 (4) The court is informed that the domicile or residence of the child, the
4 child's parent, or the child's Indian custodian is on a reservation or in an Alaska
5 Native village.
6 (5) The court is informed that the child is or has been a ward of a Tribal
7 court.
8 (6) The court is informed that either parent or the child possesses an
9 identification card indicating membership in an Indian Tribe.
10 B. If the court makes a finding that there is reason to know that the child is
11 an Indian child, the court may enter any order for placement in accordance with
12 Article 627, but the court shall thereafter proceed as if the child is an Indian child.
13 Comments - 2018
14 (a) Paragraph A is in all substantive aspects a verbatim copy of 25 C.F.R.
15 23.107(c). The identification of a child as an "Indian child" means that the informant
16 has knowledge that the child is already a member of a particular tribe or tribes or that
17 the child is eligible for membership because his parent is a member. See the 2018
18 Comment to Article 116. The identity of a particular tribe or tribes is important to
19 fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice
20 of the pendency of a child custody proceeding be given to all tribes of which there
21 is a reason to know that the child or parent is a member. However, ICWA
22 recognizes that the particular tribe or tribes may not be known although the
23 informant produces credible evidence of a parent's tribal membership; in that case,
24 notice is given to the Bureau of Indian Affairs.
25 (b) Paragraph B reflects the emergency removal provisions of ICWA. 25
26 U.S.C. 1922 permits emergency removal to prevent "imminent physical damage or
27 harm" to the child. According to 25 C.F.R. 23.113, emergency placement is intended
28 to be short term pending initiation of child in need of care proceedings. The
29 Guidelines for Implementing the Indian Child Welfare Act explain that emergency
30 proceedings - which generally do not include the full suite of due process or ICWA
31 protections for parents and children - must not extend for longer than necessary to
32 prevent harm to the child. If there is sufficient evidence of abuse or neglect, the state
33 should proceed with a child in need of care proceeding, which provides full due
34 process and ICWA protections. Guidelines for Implementing the Indian Child
35 Welfare Act (Bureau of Indian Affairs, Dec. 2016), Section 23.113(e), at p. 27.
36 (c) According to 25 C.F.R. 23.107(b), if there is reason to know that the
37 child is an Indian child, but the court does not have sufficient evidence to determine
38 that the child is or is not an Indian child, the court must confirm (by a report,
39 declaration, or testimony in the record) that the agency used due diligence to identify
40 and work with the tribe to verify membership. The court must also treat the child as
41 an Indian child until it is determined on the record that the child does not meet the
42 definition of Indian child.
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1 (d) Neither ICWA nor the regulations promulgated thereunder require notice
2 prior to an emergency removal because of the short time frame in which emergency
3 proceedings are conducted to secure the safety of the child. Guidelines for
4 Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016),
5 Section 23.113(c), at p. 29. However, if the child is found to be an Indian child,
6 notice of the proceedings must be immediately given to any identified tribe or, if the
7 tribe cannot be identified, to the Bureau of Indian Affairs of the Department of the
8 Interior, in accordance with ICWA. All other ICWA requirements will apply to the
9 court's proceedings after entry of a continued custody order, unless thereafter the
10 court finds that the child is not an Indian child in accordance with Article 661.1.
11 * * *
12 Art. 634. Contents of petition
13 A. The petition shall set forth with specificity:
14 (1) The name, date and place of birth, sex, race, and address of the child. If
15 the child is in a foster home, the identification of the parish in which he resides shall
16 suffice for his address.
17 (2) The name and current address of each parent.
18 (3) A statement as to whether the petitioner knows or has reason to know
19 that the child is an Indian child and facts that support that statement.
20 (4) Facts which that show that the child is a child in need of care, including
21 the acts or omissions of either parent which caused or contributed to the child's
22 condition.
23 * * *
24 Comments - 2018
25 25 C.F.R. 23.1 et seq. requires that the court make an inquiry at the
26 commencement of every child custody proceeding about whether there is reason to
27 know that the child is an Indian child. A child in need of care proceeding is a child
28 custody proceeding subject to the provisions of the federal Indian Child Welfare Act,
29 25 U.S.C. 1901-1963.
30 * * *
31 Art. 661.1. Federal Indian Child Welfare Act inquiry
32 A. At the commencement of the adjudication hearing, the court shall inquire
33 as to whether the petitioner or any person before the court knows or has reason to
34 know that the child is an Indian child. If no person before the court responds
35 affirmatively, the court may proceed, although it shall instruct each person before the
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1 court to inform the court if he subsequently discovers information indicating that the
2 child is an Indian child.
3 B. In accordance with Article 624.1, if the court finds that there is reason to
4 know that the child is an Indian child, the court shall immediately proceed pursuant
5 to the federal Indian Child Welfare Act and the regulations promulgated thereunder.
6 C. If a tribe fails to respond to multiple requests for verification that the child
7 is an Indian child and the court or department has sought the assistance of the Bureau
8 of Indian Affairs in contacting the tribe, the court may make the determination that
9 the child is not an Indian child based on the information it has available and proceed
10 to adjudication in accordance with this Title.
11 Comments - 2018
12 (a) The threshold issue under the federal Indian Child Welfare Act (ICWA)
13 is whether there is reason to know that the child is an Indian child in a child custody
14 proceeding. See Articles 103.1 and 624.1. Paragraph A reflects the requirement that
15 an inquiry as to whether there is reason to know that the child is an Indian child must
16 be made at the commencement of every proceeding.
17 (b) Paragraph B requires the court to comply with ICWA, which is replete
18 with requirements that must be met before an Indian child is placed outside of his
19 parent's or Indian caretaker's home. Notice of the pending proceedings must be
20 given to the child's alleged tribe or tribes as well as to the Bureau of Indian Affairs.
21 25 U.S.C. 1912(a). The Department of Children and Family Services must submit
22 a detailed predisposition report and an affidavit attesting to its "active efforts" to
23 avoid disruption of the Indian family. 25 U.S.C. 1912(d). Evidence from "qualified
24 expert witnesses," who, among other attributes, must be familiar with Indian customs
25 and traditions, must be received about potential placements. 25 U.S.C. 1912(c) and
26 (f). ICWA mandates the use of specific "placement preferences" unless the court
27 finds by clear and convincing evidence that there is good cause to depart from those
28 preferences. 25 U.S.C. 1915(a) and 1916(b).
29 (c) Paragraph C governs the court's duty in the face of tribal inaction. After
30 a CINC proceeding is commenced, if no response or motion to intervene has been
31 received from the tribe or the Department of the Interior, the court may determine
32 based on the information it has available that the child does not qualify as an Indian
33 child. Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian
34 Affairs, Dec. 2016), Section 23.108, at p. 22. Thus, additional notice of changes in
35 placement or permanency hearings is not required. However, the Guidelines
36 recommend that state courts give notice of any change of placement as well as any
37 change to the child's permanency plan or concurrent plan. Guidelines for
38 Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016),
39 Section 23.111, at p. 30. In contrast, if the Department of Children and Family
40 Services seeks to terminate parental rights, notice must again be attempted. See
41 Article 1034.1.
42 * * *
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1 Art. 749. Contents of petition
2 A. The petition shall set forth with specificity:
3 (1) The name, date, and place of birth, sex, race, address, and present
4 location of the child.
5 (2) The name, age, sex, race, and current address of the child's parents and
6 caretakers.
7 (3) The name, age, sex, and race of any other family members living within
8 the child's home.
9 (4) The name of any public institution or agency having the responsibility
10 or ability to supply services alleged to be needed by the family.
11 (5) Whether A statement as to whether the child is currently under the
12 supervision of any state or local entity, including but not limited to, the Department
13 of Children and Family Services or the Department of Public Safety and Corrections,
14 youth services, or the office of juvenile justice.
15 (6) A statement as to whether the petitioner knows or has reason to know
16 that the child is an Indian child and facts that support that statement.
17 B. If any of the information required by Paragraph A of this Article is
18 unknown, the petition shall so allege. Any defects in the allegations required by
19 Paragraph A of this Article shall be considered defects of form. The petitioner shall
20 inform the court if he subsequently discovers information indicating that the child
21 is an Indian child.
22 * * *
23 Comments - 2018
24 The federal Indian Child Welfare Act (ICWA) applies to any involuntary
25 proceeding in a state court involving an Indian child when foster care placement is
26 under consideration as an option. 25 U.S.C. 1901-1963. The procedures, known as
27 informal FINS, Articles 731-732 are voluntary attempts to resolve the dispute by
28 mediation; hence, ICWA does not apply even if the child is an Indian child.
29 However, if a formal FINS petition is initiated, ICWA applies because Article 780
30 authorizes the removal of the child from the caretaker's home, and a court order is
31 needed for the child's return.
32 * * *
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1 Art. 767.1. Federal Indian Child Welfare Act inquiry
2 A. At the commencement of the adjudication hearing, the court shall inquire
3 as to whether the petitioner or any person before the court knows or has reason to
4 know that the child is an Indian child. If no person before the court responds
5 affirmatively, the court may proceed, although it shall instruct each person before the
6 court to inform the court if he subsequently discovers information indicating that the
7 child is an Indian child.
8 B. In accordance with Article 767.2, if the court finds that there is reason to
9 know that the child is an Indian child, the court shall immediately proceed pursuant
10 to the federal Indian Child Welfare Act and the regulations promulgated thereunder.
11 C. If a tribe fails to respond to multiple requests for verification that the child
12 is an Indian child and the court or Department of Children and Family Services has
13 sought the assistance of the Bureau of Indian Affairs in contacting the tribe, the court
14 may make the determination that the child is not an Indian child based on the
15 information it has available and proceed to adjudication in accordance with this Title.
16 Comments - 2018
17 (a) The threshold issue under the federal Indian Child Welfare Act (ICWA)
18 is whether there is reason to know that the child is an Indian child in a child custody
19 proceeding. See Articles 103.1 and 767.2. Paragraph A reflects the requirement that
20 an inquiry as to whether there is reason to know that the child is an Indian child must
21 be made at the commencement of every proceeding.
22 (b) Paragraph B requires the court to comply with ICWA, which is replete
23 with requirements that must be met before an Indian child is placed outside of his
24 parent's or Indian caretaker's home. Notice of the pending proceedings must be
25 given to the child's alleged tribe or tribes as well as to the Bureau of Indian Affairs.
26 25 U.S.C. 1912(a). The Department of Children and Family Services must submit
27 a detailed predisposition report and an affidavit attesting to its "active efforts" to
28 avoid disruption of the Indian family. 25 U.S.C. 1912(d). Evidence from "qualified
29 expert witnesses," who, among other attributes, must be familiar with Indian customs
30 and traditions, must be received about potential placements. 25 U.S.C. 1912(c) and
31 (f). ICWA mandates the use of specific "placement preferences" unless the court
32 finds by clear and convincing evidence that there is good cause to depart from those
33 preferences. 25 U.S.C. 1915(a) and 1916(b).
34 (c) Paragraph C governs the court's duty in the face of tribal inaction. After
35 a FINS proceeding is commenced, if no response or motion to intervene has been
36 received from the tribe or the Department of the Interior, the court may determine
37 based on the information it has available that the child does not qualify as an Indian
38 child. Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian
39 Affairs, Dec. 2016), Section 23.108, at p. 22. Thus, additional notice of changes in
40 placement or permanency hearings is not required. However, the Guidelines
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1 recommend that state courts give notice of any change of placement as well as any
2 change to the child's permanency plan or concurrent plan. Guidelines for
3 Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016),
4 Section 23.111, at p. 30.
5 Art. 767.2. Reason to know a child is an Indian child; federal Indian Child Welfare
6 Act
7 Upon conducting the inquiry required by Article 767.1, a court has reason to
8 know that a child is an Indian child if any of the following occurs:
9 (1) A person before the court, an officer of the court involved in the
10 proceeding, an Indian Tribe, an Indian organization, or an agency informs the court
11 that the child is an Indian child.
12 (2) A person before the court, an officer of the court involved in the
13 proceeding, an Indian Tribe, an Indian organization, or an agency informs the court
14 that it has discovered information indicating that the child is an Indian child.
15 (3) The child who is the subject of the proceeding gives the court reason to
16 know that he is an Indian child.
17 (4) The court is informed that the domicile or residence of the child, the
18 child's parent, or the child's Indian custodian is on a reservation or in an Alaska
19 Native village.
20 (5) The court is informed that the child is or has been a ward of a Tribal
21 court.
22 (6) The court is informed that either parent or the child possesses an
23 identification card indicating membership in an Indian Tribe.
24 Comments - 2018
25 This Article is in all substantive aspects a verbatim copy of 25 C.F.R.
26 23.107(c). The identification of a child as an "Indian child" means that the informant
27 has knowledge that the child is already a member of a particular tribe or tribes or that
28 the child is eligible for membership because his parent is a member. See the 2018
29 Comment to Article 116. The identity of a particular tribe or tribes is important to
30 fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice
31 of the pendency of a child custody proceeding be given to all tribes of which there
32 is a reason to know that the child or parent is a member. However, ICWA
33 recognizes that the particular tribe or tribes may not be known although the
34 informant produces credible evidence of a parent's tribal membership; in that case,
35 notice is given to the Bureau of Indian Affairs.
36 * * *
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1 Art. 1019. Contents of the petition
2 A. The petition shall set forth with specificity:
3 (1) The name, date, and place of birth, sex, race, and address of the child.
4 If the child is in a foster home, the identification of the parish in which he resides
5 shall suffice for his address.
6 (2) The name and current address of the child's parents.
7 (3) The name, age, and sex of any other biological relatives of the child who
8 are currently living with the child in his home.
9 (4) The name of any public institution or agency having the responsibility
10 or ability to supply services alleged to be needed by the family.
11 (5) A statement as to whether the petitioner knows or has reason to know
12 that the child is an Indian child and facts that support that statement.
13 B. If any of the information required by Paragraph A of this Article is
14 unknown, the petition shall so allege. Any defects in the information required by
15 Paragraph A of this Article shall be considered defects of form. The petitioner shall
16 inform the court if he subsequently discovers information indicating that the child
17 is an Indian child.
18 * * *
19 Comments - 2018
20 Subparagraph (A)(5) is new. A termination of parental rights proceeding is
21 a child custody proceeding subject to the federal Indian Child Welfare Act. See
22 Article 103.1. Because certification proceedings can result in the permanent
23 severance of all parental ties, the Act's restrictions on these cases are even more
24 stringent than those governing CINC or FINS proceedings. For example, even if the
25 court found at a prior CINC proceeding that there was no reason to believe that the
26 child was an Indian child, the issue of potential tribal affiliation must be readdressed
27 in the termination hearing, and even if notice was given to a tribe and the tribe failed
28 to answer, any tribe to which the child may be affiliated must be given new notice
29 of the termination proceeding. 25 C.F.R. 23.107. Courts must take special caution
30 in any certification action involving an Indian child so as not to destabilize any
31 adoption.
32 * * *
33 Art. 1034.1. Federal Indian Child Welfare Act inquiry
34 A. At the commencement of the hearing, the court shall inquire as to whether
35 the petitioner or any person before the court knows or has reason to know that the
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1 child is an Indian child. If no person before the court responds affirmatively, the
2 court may proceed, although it shall instruct each person before the court to inform
3 the court if he subsequently discovers information indicating that the child is an
4 Indian child.
5 B. In accordance with Article 1034.2, if the court finds that there is reason
6 to know that the child is an Indian child, the court shall immediately proceed
7 pursuant to the federal Indian Child Welfare Act and the regulations promulgated
8 thereunder.
9 C. If a tribe fails to respond to multiple requests for verification that the child
10 is an Indian child and the court or department has sought the assistance of the Bureau
11 of Indian Affairs in contacting the tribe, the court may make the determination that
12 the child is not an Indian child based on the information it has available and proceed
13 to termination in accordance with this Title.
14 Comments - 2018
15 (a) The threshold issue under the federal Indian Child Welfare Act (ICWA)
16 is whether there is reason to know that the child is an Indian child in a child custody
17 proceeding. See Articles 103.1 and 1034.2. Paragraph A reflects the requirement
18 that an inquiry as to whether there is reason to know that the child is an Indian child
19 must be made at the commencement of every proceeding.
20 (b) Paragraph B requires the court to comply with ICWA, which is replete
21 with requirements that must be met before an Indian child is placed outside of his
22 parent's or Indian caretaker's home. Notice of the pending proceedings must be
23 given to the child's alleged tribe or tribes as well as to the Bureau of Indian Affairs.
24 25 U.S.C. 1912(a). The Department of Children and Family Services must submit
25 a detailed predisposition report and an affidavit attesting to its "active efforts" to
26 avoid disruption of the Indian family. 25 U.S.C. 1912(d). Evidence from "qualified
27 expert witnesses," who, among other attributes, must be familiar with Indian customs
28 and traditions, must be received about potential placements. 25 U.S.C. 1912(c) and
29 (f). ICWA mandates the use of specific "placement preferences" unless the court
30 finds by clear and convincing evidence that there is good cause to depart from those
31 preferences. 25 U.S.C. 1915(a) and 1916(b).
32 (c) Paragraph C governs the court's duty in the face of tribal inaction. After
33 a certification for adoption proceeding is commenced, if no response or motion to
34 intervene has been received from the tribe or the Department of the Interior, the court
35 may determine based on the information it has available that the child does not
36 qualify as an Indian child. Guidelines for Implementing the Indian Child Welfare Act
37 (Bureau of Indian Affairs, Dec. 2016), Section 23.108, at p. 22. Even though neither
38 a tribe nor the Bureau of Indian Affairs responded to notice in an earlier proceeding,
39 notice must again be attempted if the Department of Children and Family Services
40 seeks to terminate parental rights.
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1 Art. 1034.2. Reason to know a child is an Indian child; federal Indian Child Welfare
2 Act
3 Upon conducting the inquiry required by Article 1034.1, a court has reason
4 to know that a child is an Indian child if any of the following occurs:
5 (1) A person before the court, an officer of the court involved in the
6 proceeding, an Indian Tribe, an Indian organization, or an agency informs the court
7 that the child is an Indian child.
8 (2) A person before the court, an officer of the court involved in the
9 proceeding, an Indian Tribe, an Indian organization, or an agency informs the court
10 that it has discovered information indicating that the child is an Indian child.
11 (3) The child who is the subject of the proceeding gives the court reason to
12 know that he is an Indian child.
13 (4) The court is informed that the domicile or residence of the child, the
14 child's parent, or the child's Indian custodian is on a reservation or in an Alaska
15 Native village.
16 (5) The court is informed that the child is or has been a ward of a Tribal
17 court.
18 (6) The court is informed that either parent or the child possesses an
19 identification card indicating membership in an Indian Tribe.
20 Comments - 2018
21 This Article is in all substantive aspects a verbatim copy of 25 C.F.R.
22 23.107(c). The identification of a child as an "Indian child" means that the informant
23 has knowledge that the child is already a member of a particular tribe or tribes or that
24 the child is eligible for membership because his parent is a member. See the 2018
25 Comment to Article 116. The identity of a particular tribe or tribes is important to
26 fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice
27 of the pendency of a child custody proceeding be given to all tribes of which there
28 is a reason to know that the child or parent is a member. However, ICWA
29 recognizes that the particular tribe or tribes may not be known although the
30 informant produces credible evidence of a parent's tribal membership; in that case,
31 notice is given to the Bureau of Indian Affairs.
32 * * *
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1 Art. 1122. Contents of surrender; form
2 A. Every Act of Surrender shall contain the following information:
3 * * *
4 (3) The birth name, place, and date of birth of the child, and a statement as
5 to whether the child is an Indian child.
6 * * *
7 Comments - 2018
8 If the child to be surrendered is an Indian child, the provisions of the federal
9 Indian Child Welfare Act are triggered and preempt inconsistent state law. 25 U.S.C.
10 1901-1963. The federal statute differs substantially from the provisions of this Title.
11 For example, in accordance with 25 C.F.R. 23.125, an Indian child cannot be
12 surrendered for adoption until the tenth day following his birth, in contrast to the
13 time delays in Articles 1122 and 1130. More importantly, federal law grants the
14 parent or Indian custodian the right to withdraw his consent to the child's
15 pre-adoptive or adoptive placement at any time prior to the entry of a final decree of
16 adoption, in contrast to Articles 1123 and 1263. Courts must proceed with special
17 caution in any surrender of an Indian child to avoid destabilizing any adoption.
18 Helpful guidance about the federal Indian Child Welfare Act's requirements can be
19 found in the Guidelines for Implementing the Indian Child Welfare Act (Bureau of
20 Indian Affairs, Dec. 2016). See also B.J. Jones, Mark Tilden & Kelly Gaines-Stoner,
21 The Indian Child Welfare Act Handbook (2008) (2d ed.).
22 * * *
23 Art. 1515. Petition; contents; form
24 A. A petition for voluntary transfer of custody shall set forth specifically:
25 * * *
26 (8) Whether the child is an Indian child.
27 * * *
28 C. The petitioner shall inform the court if he subsequently discovers
29 information indicating that the child is an Indian child.
30 * * *
31 Art. 1518. Pretrial orders; contribution to costs; appointment of counsel; Indian
32 parent or custodian
33 * * *
34 C. If the court finds that the parent or custodian of an Indian child is
35 indigent, it shall appoint counsel for the parent or custodian.
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1 Comments - 2018
2 The Children's Code clearly calls for the appointment of counsel for indigent
3 parents in child in need of care cases and termination of parental rights cases and
4 also requires legal consultation for parents who desire to surrender their parental
5 rights. However, according to Paragraph B of this Article, the appointment of
6 counsel is required only when the department has been involved in the parental
7 decision-making. Paragraph C was added to make it clear that if the parent or
8 custodian of an Indian child contemplates the child's transfer, the federal Indian
9 Child Welfare Act, 25 U.S.C. 1912, requires that the court appoint counsel if the
10 parent is indigent.
11 Section 2. A Comment to Children's Code Article 680 is hereby provided as follows:
12 Art. 680. Disposition hearing; evidence
13 * * *
14 Comments-2018
15 If the child is an Indian child as defined by Article 116, the federal Indian
16 Child Welfare Act (ICWA) applies in all subsequent proceedings. For example, the
17 court will be required to ensure that proper notice is given, that active efforts to
18 prevent removal are made, that qualified expert witnesses on the culture and customs
19 of Indian tribes are appointed, and that the ICWA standards of evidence are followed
20 in accordance with the strict provisions of the Act.
DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 182 Original 2018 Regular Session Johnson
Abstract: Provides for the applicability of the Indian Child Welfare Act in certain
Children's Code proceedings.
Proposed law (Ch.C. Art. 103.1) provides that the Indian Child Welfare Act supersedes the
Children's Code when a child may be removed from a parent. Proposed law also lists the
child custody proceedings to which the Indian Child Welfare Act applies.
Present law (Ch.C. Art. 116) provides for definitions.
Proposed law retains present law and defines "Indian child" and "Indian tribe".
Present law (Ch.C. Art. 612) requires Department of Children and Family Services (DCFS)
to investigate reports of abuse.
Proposed law retains present law and requires DCFS to inquire whether a child is an Indian
child during their investigation.
Present law (Ch.C. Art. 624) provides for a continued custody hearing in a child in need of
care proceeding.
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Proposed law retains present law and in accordance with the Indian Child Welfare Act,
requires the court to ask whether there is reason to know that the child may be an Indian
child.
Proposed law (Ch.C. Art. 624.1) lists the factors from the federal regulations that give the
court reason to know that a child is an Indian child and, if so, requires the court to proceed
as such in accordance with the Indian Child Welfare Act.
Present law (Ch.C. Art. 634) provides for the contents of a child in need of care petition.
Proposed law retains present law and additionally requires the petitioner to state whether he
knows or has reason to know that the child is an Indian child.
Proposed law (Ch.C. Art. 661.1) provides that prior to adjudication of a child in need of care
proceeding, the court is required to inquire as to whether the child is an Indian child, and if
the child is not, the court may proceed with the adjudication. However, if there is reason to
know that the child is an Indian child, the court shall immediately proceed in accordance
with the Indian Child Welfare Act.
Proposed law further provides that if a tribe receiving notice of a proceeding fails to respond,
the court may determine that the child is not an Indian child and proceed to adjudication.
Proposed law adds a Comment to present law (Ch.C. Art. 680) to clarify that if the court
knows that the child is an Indian child, it must proceed in accordance with the Indian Child
Welfare Act which requires notice to the tribe, active efforts to prevent removal of the child,
the appointment of experts, and strict standards of evidence.
Present law (Ch.C. Art. 749) provides for the contents of a families in need of services
petition.
Proposed law retains present law and additionally requires the petition to state whether the
petitioner knows or has reason to know that the child is an Indian child.
Proposed law (Ch.C. Art. 767.1) provides that prior to adjudication of a families in need of
services proceeding, the court is required to inquire as to whether the child is an Indian child,
and if the child is not, the court may proceed with the adjudication. However, if there is
reason to know that the child is an Indian child, the court shall immediately proceed in
accordance with the Indian Child Welfare Act.
Proposed law further provides that if a tribe receiving notice of a proceeding fails to respond,
the court may determine that the child is not an Indian child and proceed to adjudication.
Proposed law (Ch.C. Art. 767.2) lists the factors from the federal regulations that give the
court reason to know that a child is an Indian child, and, if so, requires the court to proceed
as such in accordance with the Indian Child Welfare Act.
Present law (Ch.C. Art. 1019) provides for the contents of a petition for adoption.
Proposed law retains present law and additionally requires the petitioner to state whether he
knows or has reason to know that the child is an Indian child.
Proposed law (Ch.C. Art. 1034.1) provides that at the termination of parental rights hearing,
the court is required to inquire as to whether the child is an Indian child, and if the child is
not, the court may proceed with termination. However, if there is reason to know that the
child is an Indian child, the court shall immediately proceed in accordance with the Indian
Child Welfare Act.
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Proposed law further provides that if a tribe receiving notice of a proceeding fails to respond,
the court may determine that the child is not an Indian child and proceed to termination.
Proposed law (Ch.C. Art. 1034.2) lists the factors from the federal regulations that give the
court reason to know that a child is an Indian child, and, if so, requires the court to proceed
as such in accordance with the Indian Child Welfare Act.
Present law (Ch.C. Art. 1122) provides for the surrender of parental rights form.
Proposed law retains present law and requires the petitioner to state whether the child is an
Indian child.
Present law (Ch.C. Art. 1515) provides for a petition for voluntary transfer of custody.
Proposed law retains present law and requires the petitioner to state whether the child is an
Indian child.
Present law (Ch.C. Art. 1518) authorizes the court to render orders it deems necessary to
protect the best interests of a child in a voluntary transfer of custody proceeding.
Proposed law retains present law and, in accordance with the Indian Child Welfare Act,
requires the court to appoint counsel for an indigent parent or custodian of an Indian child.
(Amends Ch.C. Arts. 612(A)(2), 624(D), (E), (F), and (G), 634(A), 749(A) and (B), 1019(A)
and (B), and 1122(A)(3); Adds Ch.C. Arts. 103.1, 116(6.1) and (6.2), 624(H), 624.1, 661.1,
767.1, 767.2, 1034.1, 1034.2, 1515(A)(8) and (C) and 1518(C); Provides Comments to Ch.C.
Art. 680)
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