ENROLLED
ACT No. 296
2018 Regular Session
HOUSE BILL NO. 182
BY REPRESENTATIVE JOHNSON
(On Recommendation of the Louisiana State Law Institute)
1 AN ACT
2 To 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), 1122(A)(3), and 1515(B), to enact
4 Children's Code Articles 103.1, 116(6.1) and (6.2), 624(H), 624.1, 661.1, 767.1,
5 767.2, 1034.1, 1034.2, 1515(A)(8) and (C) and 1518(C), and to provide Comments
6 to Children's Code Article 680, relative to the Indian Child Welfare Act; to provide
7 for the applicability of the Indian Child Welfare Act; to provide definitions; to
8 provide for an inquiry; to provide for the standard for determining whether a child
9 is an Indian child; to provide for procedures and effects; and to provide for related
10 matters.
11 Be it enacted by the Legislature of Louisiana:
12 Section 1. Children's Code Articles 612(A)(2), 624(D), (E), (F), and (G), 634(A),
13 749(A) and (B), 1019(A) and (B), 1122(A)(3), and 1515(B) are hereby amended and
14 reenacted and Children's Code Articles 103.1, 116(6.1) and (6.2), 624(H), 624.1, 661.1,
15 767.1, 767.2, 1034.1, 1034.2, 1515(A)(8) and (C) and 1518(C) are hereby enacted to read
16 as follows:
17 Art. 103.1. Applicability of Indian Child Welfare Act
18 A. The provisions of the federal Indian Child Welfare Act and the
19 regulations promulgated thereunder supersede the Children's Code whenever the
20 outcome of an involuntary or voluntary proceeding may result in the removal of an
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1 Indian child from a parent under circumstances in which the parent cannot have the
2 child returned upon demand.
3 B. Child custody proceedings to which the federal Indian Child Welfare Act
4 and the regulations promulgated thereunder apply include the following:
5 (a) A child in need of care proceeding.
6 (b) A certification for adoption proceeding.
7 (c) A family in need of services proceeding.
8 (d) A transfer of custody, a surrender for adoption, and any other voluntary
9 proceeding.
10 Comments - 2018
11 The purpose of the federal Indian Child Welfare Act (ICWA), 25 U.S.C.
12 1901-1963 and 25 C.F.R. 23, is to express a preference for keeping Indian children
13 with their families, deferring to tribal judgment on matters concerning the custody
14 of tribal children and placing Indian children who must be removed from their homes
15 within their own families or with their own or other Indian tribes. Among other
16 added responsibilities is a mandate that the court shall ensure and document in the
17 record a timely inquiry about Indian heritage. See Articles 612, 612.1, 624, 634,
18 661.1, 746, 1004, 1034.1, and 1122. If the court knows or has reason to know the
19 child is an Indian child, then the court must ensure and document in the record
20 adherence to the provisions of ICWA, including a thirty-day limit on emergency
21 removals, a determination of jurisdiction, proper notice to the appropriate tribe(s),
22 placement preferences, use of "qualified expert witnesses," and the burden of proof
23 required for the particular proceeding. ICWA also imposes significant procedural
24 requirements aimed at ensuring that the interests of a child's tribe and any tribal
25 heritage are recognized as important and distinguishable from the interests and rights
26 of the child's parents. Under ICWA, proper notice must be given in "child custody
27 proceedings" which include: "foster care placement; termination of parental rights;
28 pre-adoptive placement; adoptive placements; and some dispositions in families in
29 need of services cases." 25 C.F.R. 23.103. The terminology encompassing "child
30 custody proceedings" as defined in federal law has been adapted to Louisiana law in
31 Paragraph B of this Article. ICWA applies to private placements and adoptions as
32 well as those initiated by the state. 25 U.S.C. 1903(1). See also B.J. Jones, Mark
33 Tilden & Kelly Gaines-Stoner, The Indian Child Welfare Act Handbook (2008) (2d
34 ed.).
35 * * *
36 Art. 116. Definitions
37 Except where the context clearly indicates otherwise, these definitions apply
38 for the following terms used throughout this Code.
39 * * *
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1 (6.1) "Indian child" means any unmarried child under eighteen years of age
2 who is a member of an Indian tribe or who is eligible for membership in an Indian
3 tribe and is the biological child of a member of an Indian tribe.
4 (6.2) "Indian tribe" means any Indian tribe, band, nation, or other organized
5 group or community of Indians recognized as eligible for the services provided to
6 Indians by the Secretary of the Interior in accordance with their status as Indians.
7 * * *
8 Comments - 2018
9 (a) The source of these definitions is the federal Indian Child Welfare Act
10 (ICWA), 25 U.S.C. 1903. Recognition of an Indian tribe is signaled by a listing
11 published annually by the Bureau of Indian Affairs in the Federal Register of tribes
12 that are eligible for federal services and programs by the Secretary of the Interior.
13 Not all tribes are recognized. There are over five hundred federally recognized tribes
14 in the United States. Of the more than a dozen tribes in Louisiana, currently only
15 four are federally recognized: the Chitimacha Tribe, the Coushatta Tribe, the
16 Tunica-Biloxi Tribe, and the Jena Band of Choctaw Indians.
17 (b) Note that "Indian child" is a limited term. Only a child who is already
18 a member of an Indian tribe or who is eligible for membership because his mother
19 or father is a member of an Indian tribe may be an Indian child. It is not enough that
20 a child is alleged to have "Indian blood" or that he has a grandparent or other relative
21 who is a member of a tribe. As the Guidelines for Implementing the Indian Child
22 Welfare Act note: "[The definition of "Indian child"] is based on the child's political
23 ties to a federally recognized Indian Tribe, either by virtue of the child's own
24 citizenship in the Tribe, or through a biological parent's citizenship and the child's
25 eligibility for citizenship. ICWA does not apply simply based on a child or parent's
26 Indian ancestry. Instead, there must be a political relationship to the Tribe."
27 Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian Affairs,
28 Dec. 2016), at p. 10.
29 (c) ICWA expressly excludes from its definition of "parent" an alleged
30 unwed father whose paternity has not been acknowledged or established. 25 U.S.C.
31 1903(9). Thus, a child born outside of marriage, though alleged to be the child of a
32 Native American father, is not necessarily protected by ICWA. The regulations
33 provide that paternity may be established by trial law. See 25 C.F.R. 23. In Adoptive
34 Couple v. Baby Girl, 570 U.S. 637 (2013), the Supreme Court carefully noted that
35 it assumed, without deciding, that an illegitimate child was qualified as an Indian
36 child. In that decision, the alleged biological Indian father acknowledged paternity
37 when giving his consent to the termination of his rights, and later, his paternity was
38 verified by DNA testing.
39 * * *
40 Art. 612. Assignment of reports for investigation and assessment
41 A.
42 * * *
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1 (2) Reports of high and intermediate levels of risk shall be investigated
2 promptly. This investigation shall include a preliminary investigation as to the
3 nature, extent, and cause of the abuse or neglect and the identity of the person
4 actually responsible for the child's condition. This preliminary investigation shall
5 include an inquiry as to whether there is reason to know that the child is an Indian
6 child. This preliminary investigation shall also include an interview with the child
7 and his parent or parents or other caretaker and shall include consideration of all
8 available medical information provided to the department pertaining to the child's
9 condition. Such This preliminary investigation shall also include an immediate
10 assessment of any existing visitation or custody order or agreement involving the
11 alleged perpetrator and the child. The department shall request a temporary
12 restraining order pursuant to Article 617, a protective order pursuant to Article 618,
13 or an instanter safety plan order pursuant to Article 619 or Article 620 if the
14 department determines that any such previously ordered visitation or custody would
15 put the child's health and safety at risk. Admission of the investigator on school
16 premises or access to the child in school shall not be denied by school personnel.
17 However, the request for a temporary restraining order or a protective order in
18 accordance with this Article shall not independently confer exclusive jurisdiction on
19 the juvenile court in accordance with Article 303.
20 * * *
21 Comments - 2018
22 If, during the investigation of an allegation of abuse or neglect, the
23 department uncovers information that the child is or may be an Indian child as
24 defined by Article 116, the department must pursue that investigation. If there is
25 reason to know that the child is an Indian child, the federal Indian Child Welfare Act
26 applies in all subsequent proceedings. Specifically, 25 U.S.C. 1922 governs the
27 emergency removal of an Indian child.
28 * * *
29 Art. 624. Continued custody hearing; continued safety plan hearing; federal Indian
30 Child Welfare Act
31 * * *
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1 D. At the commencement of the hearing, on the record, the court shall ask
2 each person before the court whether he knows or has reason to know that the child
3 is an Indian child. Each person before the court shall be instructed to inform the
4 court if he subsequently discovers information indicating that the child is an Indian
5 child.
6 E. At this hearing, the state has the burden to prove of proving the existence
7 of a ground for continued custody or the continued implementation of a safety plan
8 pursuant to Article 626.
9 E.F. The child and his parents may introduce evidence, call witnesses, be
10 heard on their own behalf, and cross-examine witnesses called by the state.
11 F.G. Hearsay evidence shall be admissible at this hearing.
12 G.H. A suitable relative or other suitable individual who seeks to become the
13 custodian of the child must shall provide evidence of a willingness and ability to
14 provide a wholesome and stable environment for the child and to protect the health
15 and safety of the child pending an adjudication hearing. He shall affirm a continued
16 acceptance of the terms of the safety plan.
17 Comments - 2018
18 The regulations promulgated under the federal Indian Child Welfare Act
19 (ICWA), 25 C.F.R. 23, require the court to make an inquiry at the commencement
20 of every child custody proceeding as to whether there is reason to know that the child
21 is an Indian child. Although usually notice must be given to the child's tribe if there
22 is reason to know that the child is an Indian child, no federal law requires notice in
23 this instance due to the short time frame in which emergency proceedings are
24 conducted to secure the safety of the child. In contrast, in a subsequent adjudication
25 hearing when information provided to the court indicates that there is reason to know
26 that the child is an Indian child, the court must proceed in accordance with ICWA,
27 including determining jurisdiction, meeting the higher standard for removal, and
28 following the notice requirements.
29 Art. 624.1. Reason to know a child is an Indian child; federal Indian Child Welfare
30 Act
31 A. Upon conducting the inquiry required by Article 624(D), a court has
32 reason to know that a child in a continued custody hearing or other child custody
33 proceeding is an Indian child if any of the following occurs:
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1 (1) A person before the court, an officer of the court involved in the
2 proceeding, an Indian tribe, an Indian organization, or an agency informs the court
3 that the child is an Indian child.
4 (2) A person before the court, an officer of the court involved in the
5 proceeding, an Indian tribe, an Indian organization, or an agency informs the court
6 that it has discovered information indicating that the child is an Indian child.
7 (3) The child who is the subject of the proceeding gives the court reason to
8 know that he is an Indian child.
9 (4) The court is informed that the domicile or residence of the child, the
10 child's parent, or the child's Indian custodian is on a reservation or in an Alaska
11 Native village.
12 (5) The court is informed that the child is or has been a ward of a Tribal
13 court.
14 (6) The court is informed that either parent or the child possesses an
15 identification card indicating membership in an Indian tribe.
16 B. If the court makes a finding that there is reason to know that the child is
17 an Indian child, the court may enter any order for placement in accordance with
18 Article 627, but the court shall thereafter proceed as if the child is an Indian child.
19 Comments - 2018
20 (a) Paragraph A is in all substantive aspects a verbatim copy of 25 C.F.R.
21 23.107(c). The identification of a child as an "Indian child" means that the informant
22 has knowledge that the child is already a member of a particular tribe or tribes or that
23 the child is eligible for membership because his parent is a member. See the 2018
24 Comment to Article 116. The identity of a particular tribe or tribes is important to
25 fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice
26 of the pendency of a child custody proceeding be given to all tribes of which there
27 is a reason to know that the child or parent is a member. However, ICWA
28 recognizes that the particular tribe or tribes may not be known although the
29 informant produces credible evidence of a parent's tribal membership; in that case,
30 notice is given to the Bureau of Indian Affairs.
31 (b) Paragraph B reflects the emergency removal provisions of ICWA. 25
32 U.S.C. 1922 permits emergency removal to prevent "imminent physical damage or
33 harm" to the child. According to 25 C.F.R. 23.113, emergency placement is intended
34 to be short term pending initiation of child in need of care proceedings. The
35 Guidelines for Implementing the Indian Child Welfare Act explain that emergency
36 proceedings - which generally do not include the full suite of due process or ICWA
37 protections for parents and children - must not extend for longer than necessary to
38 prevent harm to the child. If there is sufficient evidence of abuse or neglect, the state
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1 should proceed with a child in need of care proceeding, which provides full due
2 process and ICWA protections. Guidelines for Implementing the Indian Child
3 Welfare Act (Bureau of Indian Affairs, Dec. 2016), Section 23.113(e), at p. 27.
4 (c) According to 25 C.F.R. 23.107(b), if there is reason to know that the
5 child is an Indian child, but the court does not have sufficient evidence to determine
6 that the child is or is not an Indian child, the court must confirm (by a report,
7 declaration, or testimony in the record) that the agency used due diligence to identify
8 and work with the tribe to verify membership. The court must also treat the child as
9 an Indian child until it is determined on the record that the child does not meet the
10 definition of Indian child.
11 (d) Neither ICWA nor the regulations promulgated thereunder require notice
12 prior to an emergency removal because of the short time frame in which emergency
13 proceedings are conducted to secure the safety of the child. Guidelines for
14 Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016),
15 Section 23.113(c), at p. 29. However, if the child is found to be an Indian child,
16 notice of the proceedings must be immediately given to any identified tribe or, if the
17 tribe cannot be identified, to the Bureau of Indian Affairs of the Department of the
18 Interior, in accordance with ICWA. All other ICWA requirements will apply to the
19 court's proceedings after entry of a continued custody order, unless thereafter the
20 court finds that the child is not an Indian child in accordance with Article 661.1.
21 * * *
22 Art. 634. Contents of petition
23 A. The petition shall set forth with specificity:
24 (1) The name, date and place of birth, sex, race, and address of the child. If
25 the child is in a foster home, the identification of the parish in which he resides shall
26 suffice for his address.
27 (2) The name and current address of each parent.
28 (3) A statement as to whether the petitioner knows or has reason to know
29 that the child is an Indian child and facts that support that statement.
30 (4) Facts which that show that the child is a child in need of care, including
31 the acts or omissions of either parent which caused or contributed to the child's
32 condition.
33 * * *
34 Comments - 2018
35 25 C.F.R. 23.1 et seq. requires that the court make an inquiry at the
36 commencement of every child custody proceeding about whether there is reason to
37 know that the child is an Indian child. A child in need of care proceeding is a child
38 custody proceeding subject to the provisions of the federal Indian Child Welfare Act,
39 25 U.S.C. 1901-1963.
40 * * *
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1 Art. 661.1. 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 624.1, 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 has sought the assistance of the Bureau
13 of Indian Affairs in contacting the tribe, the court may make the determination that
14 the child is not an Indian child based on the information it has available and proceed
15 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 624.1. 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 CINC 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
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1 Affairs, Dec. 2016), Section 23.108, at p. 22. Thus, additional notice of changes in
2 placement or permanency hearings is not required. However, the Guidelines
3 recommend that state courts give notice of any change of placement as well as any
4 change to the child's permanency plan or concurrent plan. Guidelines for
5 Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016),
6 Section 23.111, at p. 30. In contrast, if the Department of Children and Family
7 Services seeks to terminate parental rights, notice must again be attempted. See
8 Article 1034.1.
9 * * *
10 Art. 749. Contents of petition
11 A. The petition shall set forth with specificity:
12 (1) The name, date, and place of birth, sex, race, address, and present
13 location of the child.
14 (2) The name, age, sex, race, and current address of the child's parents and
15 caretakers.
16 (3) The name, age, sex, and race of any other family members living within
17 the child's home.
18 (4) The name of any public institution or agency having the responsibility
19 or ability to supply services alleged to be needed by the family.
20 (5) Whether A statement as to whether the child is currently under the
21 supervision of any state or local entity, including but not limited to, the Department
22 of Children and Family Services or the Department of Public Safety and Corrections,
23 youth services, or the office of juvenile justice.
24 (6) A statement as to whether the petitioner knows or has reason to know
25 that the child is an Indian child and facts that support that statement.
26 B. If any of the information required by Paragraph A of this Article is
27 unknown, the petition shall so allege. Any defects in the allegations required by
28 Paragraph A of this Article shall be considered defects of form. The petitioner shall
29 inform the court if he subsequently discovers information indicating that the child
30 is an Indian child.
31 * * *
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1 Comments - 2018
2 The federal Indian Child Welfare Act (ICWA) applies to any involuntary
3 proceeding in a state court involving an Indian child when foster care placement is
4 under consideration as an option. 25 U.S.C. 1901-1963. The procedures, known as
5 informal FINS, Articles 731-732 are voluntary attempts to resolve the dispute by
6 mediation; hence, ICWA does not apply even if the child is an Indian child.
7 However, if a formal FINS petition is initiated, ICWA applies because Article 780
8 authorizes the removal of the child from the caretaker's home, and a court order is
9 needed for the child's return.
10 * * *
11 Art. 767.1. Federal Indian Child Welfare Act inquiry
12 A. At the commencement of the adjudication hearing, the court shall inquire
13 as to whether the petitioner or any person before the court knows or has reason to
14 know that the child is an Indian child. If no person before the court responds
15 affirmatively, the court may proceed, although it shall instruct each person before the
16 court to inform the court if he subsequently discovers information indicating that the
17 child is an Indian child.
18 B. In accordance with Article 767.2, if the court finds that there is reason to
19 know that the child is an Indian child, the court shall immediately proceed pursuant
20 to the federal Indian Child Welfare Act and the regulations promulgated thereunder.
21 C. If a tribe fails to respond to multiple requests for verification that the child
22 is an Indian child and the court or Department of Children and Family Services has
23 sought the assistance of the Bureau of Indian Affairs in contacting the tribe, the court
24 may make the determination that the child is not an Indian child based on the
25 information it has available and proceed to adjudication in accordance with this Title.
26 Comments - 2018
27 (a) The threshold issue under the federal Indian Child Welfare Act (ICWA)
28 is whether there is reason to know that the child is an Indian child in a child custody
29 proceeding. See Articles 103.1 and 767.2. Paragraph A reflects the requirement that
30 an inquiry as to whether there is reason to know that the child is an Indian child must
31 be made at the commencement of every proceeding.
32 (b) Paragraph B requires the court to comply with ICWA, which is replete
33 with requirements that must be met before an Indian child is placed outside of his
34 parent's or Indian caretaker's home. Notice of the pending proceedings must be
35 given to the child's alleged tribe or tribes as well as to the Bureau of Indian Affairs.
36 25 U.S.C. 1912(a). The Department of Children and Family Services must submit
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1 a detailed predisposition report and an affidavit attesting to its "active efforts" to
2 avoid disruption of the Indian family. 25 U.S.C. 1912(d). Evidence from "qualified
3 expert witnesses," who, among other attributes, must be familiar with Indian customs
4 and traditions, must be received about potential placements. 25 U.S.C. 1912(c) and
5 (f). ICWA mandates the use of specific "placement preferences" unless the court
6 finds by clear and convincing evidence that there is good cause to depart from those
7 preferences. 25 U.S.C. 1915(a) and 1916(b).
8 (c) Paragraph C governs the court's duty in the face of tribal inaction. After
9 a FINS proceeding is commenced, if no response or motion to intervene has been
10 received from the tribe or the Department of the Interior, the court may determine
11 based on the information it has available that the child does not qualify as an Indian
12 child. Guidelines for Implementing the Indian Child Welfare Act (Bureau of Indian
13 Affairs, Dec. 2016), Section 23.108, at p. 22. Thus, additional notice of changes in
14 placement or permanency hearings is not required. However, the Guidelines
15 recommend that state courts give notice of any change of placement as well as any
16 change to the child's permanency plan or concurrent plan. Guidelines for
17 Implementing the Indian Child Welfare Act (Bureau of Indian Affairs, Dec. 2016),
18 Section 23.111, at p. 30.
19 Art. 767.2. Reason to know a child is an Indian child; federal Indian Child Welfare
20 Act
21 Upon conducting the inquiry required by Article 767.1, a court has reason to
22 know that a child is an Indian child if any of the following occurs:
23 (1) A person before the court, an officer of the court involved in the
24 proceeding, an Indian tribe, an Indian organization, or an agency informs the court
25 that the child is an Indian child.
26 (2) A person before the court, an officer of the court involved in the
27 proceeding, an Indian tribe, an Indian organization, or an agency informs the court
28 that it has discovered information indicating that the child is an Indian child.
29 (3) The child who is the subject of the proceeding gives the court reason to
30 know that he is an Indian child.
31 (4) The court is informed that the domicile or residence of the child, the
32 child's parent, or the child's Indian custodian is on a reservation or in an Alaska
33 Native village.
34 (5) The court is informed that the child is or has been a ward of a Tribal
35 court.
36 (6) The court is informed that either parent or the child possesses an
37 identification card indicating membership in an Indian tribe.
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1 Comments - 2018
2 This Article is in all substantive aspects a verbatim copy of 25 C.F.R.
3 23.107(c). The identification of a child as an "Indian child" means that the informant
4 has knowledge that the child is already a member of a particular tribe or tribes or that
5 the child is eligible for membership because his parent is a member. See the 2018
6 Comment to Article 116. The identity of a particular tribe or tribes is important to
7 fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice
8 of the pendency of a child custody proceeding be given to all tribes of which there
9 is a reason to know that the child or parent is a member. However, ICWA
10 recognizes that the particular tribe or tribes may not be known although the
11 informant produces credible evidence of a parent's tribal membership; in that case,
12 notice is given to the Bureau of Indian Affairs.
13 * * *
14 Art. 1019. Contents of the petition
15 A. The petition shall set forth with specificity:
16 (1) The name, date, and place of birth, sex, race, and address of the child.
17 If the child is in a foster home, the identification of the parish in which he resides
18 shall suffice for his address.
19 (2) The name and current address of the child's parents.
20 (3) The name, age, and sex of any other biological relatives of the child who
21 are currently living with the child in his home.
22 (4) The name of any public institution or agency having the responsibility
23 or ability to supply services alleged to be needed by the family.
24 (5) A statement as to whether the petitioner knows or has reason to know
25 that the child is an Indian child and facts that support that statement.
26 B. If any of the information required by Paragraph A of this Article is
27 unknown, the petition shall so allege. Any defects in the information required by
28 Paragraph A of this Article shall be considered defects of form. The petitioner shall
29 inform the court if he subsequently discovers information indicating that the child
30 is an Indian child.
31 * * *
32 Comments - 2018
33 Subparagraph (A)(5) is new. A termination of parental rights proceeding is
34 a child custody proceeding subject to the federal Indian Child Welfare Act. See
35 Article 103.1. Because certification proceedings can result in the permanent
36 severance of all parental ties, the Act's restrictions on these cases are even more
37 stringent than those governing CINC or FINS proceedings. For example, even if the
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1 court found at a prior CINC proceeding that there was no reason to believe that the
2 child was an Indian child, the issue of potential tribal affiliation must be readdressed
3 in the termination hearing, and even if notice was given to a tribe and the tribe failed
4 to answer, any tribe to which the child may be affiliated must be given new notice
5 of the termination proceeding. 25 C.F.R. 23.107. Courts must take special caution
6 in any certification action involving an Indian child so as not to destabilize any
7 adoption.
8 * * *
9 Art. 1034.1. Federal Indian Child Welfare Act inquiry
10 A. At the commencement of the hearing, the court shall inquire as to whether
11 the petitioner or any person before the court knows or has reason to know that the
12 child is an Indian child. If no person before the court responds affirmatively, the
13 court may proceed, although it shall instruct each person before the court to inform
14 the court if he subsequently discovers information indicating that the child is an
15 Indian child.
16 B. In accordance with Article 1034.2, if the court finds that there is reason
17 to know that the child is an Indian child, the court shall immediately proceed
18 pursuant to the federal Indian Child Welfare Act and the regulations promulgated
19 thereunder.
20 C. If a tribe fails to respond to multiple requests for verification that the child
21 is an Indian child and the court or department has sought the assistance of the Bureau
22 of Indian Affairs in contacting the tribe, the court may make the determination that
23 the child is not an Indian child based on the information it has available and proceed
24 to termination in accordance with this Title.
25 Comments - 2018
26 (a) The threshold issue under the federal Indian Child Welfare Act (ICWA)
27 is whether there is reason to know that the child is an Indian child in a child custody
28 proceeding. See Articles 103.1 and 1034.2. Paragraph A reflects the requirement
29 that an inquiry as to whether there is reason to know that the child is an Indian child
30 must be made at the commencement of every proceeding.
31 (b) Paragraph B requires the court to comply with ICWA, which is replete
32 with requirements that must be met before an Indian child is placed outside of his
33 parent's or Indian caretaker's home. Notice of the pending proceedings must be
34 given to the child's alleged tribe or tribes as well as to the Bureau of Indian Affairs.
35 25 U.S.C. 1912(a). The Department of Children and Family Services must submit
36 a detailed predisposition report and an affidavit attesting to its "active efforts" to
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1 avoid disruption of the Indian family. 25 U.S.C. 1912(d). Evidence from "qualified
2 expert witnesses," who, among other attributes, must be familiar with Indian customs
3 and traditions, must be received about potential placements. 25 U.S.C. 1912(c) and
4 (f). ICWA mandates the use of specific "placement preferences" unless the court
5 finds by clear and convincing evidence that there is good cause to depart from those
6 preferences. 25 U.S.C. 1915(a) and 1916(b).
7 (c) Paragraph C governs the court's duty in the face of tribal inaction. After
8 a certification for adoption proceeding is commenced, if no response or motion to
9 intervene has been received from the tribe or the Department of the Interior, the court
10 may determine based on the information it has available that the child does not
11 qualify as an Indian child. Guidelines for Implementing the Indian Child Welfare Act
12 (Bureau of Indian Affairs, Dec. 2016), Section 23.108, at p. 22. Even though neither
13 a tribe nor the Bureau of Indian Affairs responded to notice in an earlier proceeding,
14 notice must again be attempted if the Department of Children and Family Services
15 seeks to terminate parental rights.
16 Art. 1034.2. Reason to know a child is an Indian child; federal Indian Child Welfare
17 Act
18 Upon conducting the inquiry required by Article 1034.1, a court has reason
19 to know that a child is an Indian child if any of the following occurs:
20 (1) A person before the court, an officer of the court involved in the
21 proceeding, an Indian tribe, an Indian organization, or an agency informs the court
22 that the child is an Indian child.
23 (2) A person before the court, an officer of the court involved in the
24 proceeding, an Indian tribe, an Indian organization, or an agency informs the court
25 that it has discovered information indicating that the child is an Indian child.
26 (3) The child who is the subject of the proceeding gives the court reason to
27 know that he is an Indian child.
28 (4) The court is informed that the domicile or residence of the child, the
29 child's parent, or the child's Indian custodian is on a reservation or in an Alaska
30 Native village.
31 (5) The court is informed that the child is or has been a ward of a Tribal
32 court.
33 (6) The court is informed that either parent or the child possesses an
34 identification card indicating membership in an Indian tribe.
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1 Comments - 2018
2 This Article is in all substantive aspects a verbatim copy of 25 C.F.R.
3 23.107(c). The identification of a child as an "Indian child" means that the informant
4 has knowledge that the child is already a member of a particular tribe or tribes or that
5 the child is eligible for membership because his parent is a member. See the 2018
6 Comment to Article 116. The identity of a particular tribe or tribes is important to
7 fulfill the requirements of the federal Indian Child Welfare Act (ICWA) that notice
8 of the pendency of a child custody proceeding be given to all tribes of which there
9 is a reason to know that the child or parent is a member. However, ICWA
10 recognizes that the particular tribe or tribes may not be known although the
11 informant produces credible evidence of a parent's tribal membership; in that case,
12 notice is given to the Bureau of Indian Affairs.
13 * * *
14 Art. 1122. Contents of surrender; form
15 A. Every Act of Surrender shall contain the following information:
16 * * *
17 (3) The birth name, place, and date of birth of the child, and a statement as
18 to whether the child is an Indian child.
19 * * *
20 Comments - 2018
21 If the child to be surrendered is an Indian child, the provisions of the federal
22 Indian Child Welfare Act are triggered and preempt inconsistent state law. 25 U.S.C.
23 1901-1963. The federal statute differs substantially from the provisions of this Title.
24 For example, in accordance with 25 C.F.R. 23.125, an Indian child cannot be
25 surrendered for adoption until the tenth day following his birth, in contrast to the
26 time delays in Articles 1122 and 1130. More importantly, federal law grants the
27 parent or Indian custodian the right to withdraw his consent to the child's
28 pre-adoptive or adoptive placement at any time prior to the entry of a final decree of
29 adoption, in contrast to Articles 1123 and 1263. Courts must proceed with special
30 caution in any surrender of an Indian child to avoid destabilizing any adoption.
31 Helpful guidance about the federal Indian Child Welfare Act's requirements can be
32 found in the Guidelines for Implementing the Indian Child Welfare Act (Bureau of
33 Indian Affairs, Dec. 2016). See also B.J. Jones, Mark Tilden & Kelly Gaines-Stoner,
34 The Indian Child Welfare Act Handbook (2008) (2d ed.).
35 * * *
36 Art. 1515. Petition; contents; form
37 A. A petition for voluntary transfer of custody shall set forth specifically:
38 * * *
39 (8) Whether the child is an Indian child.
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1 B. The form for the petition shall be as follows:
2 "PETITION FOR VOLUNTARY TRANSFER OF CUSTODY
3 The petition of_______ (all legal custodians of the child unless otherwise indicated
4 in Paragraph III of the petition), domiciled in the parish of _______, respectfully
5 represent(s):
6 I.
7 That petitioner(s) reside at the following address(es):
8 ________________________________________________________________________
9 ________________________________________________________________________
10 II.
11 That petitioner(s) is/are the parent(s) and legal custodian(s) of the minor child(ren),
12 namely _______________________________, whose date of birth is ______________ (add
13 same information for all children subject to the petition), as more fully appears from the
14 attached certificate(s) of birth.
15 Is the child an Indian child?
16 ____ ____
17 Yes No
18 III.
19 That there are no other legal custodians of the child(ren) OR that a legal custodian,
20 namely _______________________, is unable to join in this petition for the following
21 reasons:
22 ________________________________________________________________________
23 ________________________________________________________________________
24 ________________________________________________________________________
25 _______________________________________________________________________.
26 IV.
27 That petitioner(s) desire(s) to knowingly and voluntarily transfer custody of the
28 above named children to ____________________________, which individual(s), institution
29 or agency reside(s) at the following address:
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1 ________________________________________________________ and who have the
2 following relationship with the children:
3 ________________________________________________________________________
4 ________________________________________________________________________.
5 V.
6 That petitioner(s) desire to transfer physical custody OR legal custody of the person
7 of the children (indicate one) for the period of time ______________(specify intended
8 duration) in accordance with the following terms and conditions
9 ________________________________________________________________________
10 ________________________________________________________________________
11 (may include provisions for support and/or visitation).
12 VI.
13 That petitioners desire this transfer of custody for the following reasons:
14 ________________________________________________________________________
15 ________________________________________________________________________
16 ________________________________________________________________________
17 _________________________________________________________________________
18 ________________________________________________________________________.
19 Has the Department of Children and Family Services recommended to you that this
20 petition be filed?
21 ________ _______
22 Yes No
23 If yes, state name of the Department of Children and Family Services worker
24 making the recommendation and the reasons for the recommendation with particularity.
25 If the department has recommended that this petition be filed, you have a right to
26 counsel. Have you consulted with an attorney?
27 ________ _______
28 Yes No
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1 VII.
2 That ________________________ has/have agreed to and does/do desire to accept
3 custody of the child(ren) to the extent and under the terms and conditions stated in this
4 petition, as more fully appears in the attached Affidavit of Acceptance.
5 WHEREFORE, petitioner(s) pray(s) that there be judgment herein transferring
6 custody of the child(ren), _______________, _____________, ________________,
7 ________________, to ________________________, to the extent and under the terms and
8 conditions set forth in this petition.
9 ________________________________
10 (Signature and address of Petitioner(s))
11 or counsel for Petitioner(s)
12 (If in proper person, petition should be signed in presence of a notary.)
13 SWORN TO AND SUBSCRIBED BEFORE ME ON THIS THE _____ DAY OF
14 ___________________, 20 ___.
15 ____________________________
16 NOTARY PUBLIC"
17 C. The petitioner shall inform the court if he subsequently discovers
18 information indicating that the child is an Indian child.
19 * * *
20 Art. 1518. Pretrial orders; contribution to costs; appointment of counsel; Indian
21 parent or custodian
22 * * *
23 C. If the court finds that the parent or custodian of an Indian child is
24 indigent, it shall appoint counsel for the parent or custodian.
25 Comments - 2018
26 The Children's Code clearly calls for the appointment of counsel for indigent
27 parents in child in need of care cases and termination of parental rights cases and
28 also requires legal consultation for parents who desire to surrender their parental
29 rights. However, according to Paragraph B of this Article, the appointment of
30 counsel is required only when the department has been involved in the parental
31 decision-making. Paragraph C was added to make it clear that if the parent or
32 custodian of an Indian child contemplates the child's transfer, the federal Indian
33 Child Welfare Act, 25 U.S.C. 1912, requires that the court appoint counsel if the
34 parent is indigent.
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1 Section 2. A Comment to Children's Code Article 680 is hereby provided as follows:
2 Art. 680. Disposition hearing; evidence
3 * * *
4 Comments-2018
5 If the child is an Indian child as defined by Article 116, the federal Indian
6 Child Welfare Act (ICWA) applies in all subsequent proceedings. For example, the
7 court will be required to ensure that proper notice is given, that active efforts to
8 prevent removal are made, that qualified expert witnesses on the culture and customs
9 of Indian tribes are appointed, and that the ICWA standards of evidence are followed
10 in accordance with the strict provisions of the Act.
SPEAKER OF THE HOUSE OF REPRESENTATIVES
PRESIDENT OF THE SENATE
GOVERNOR OF THE STATE OF LOUISIANA
APPROVED:
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