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Indian Child Welfare Manual - Chapter 1
- The Department of Social and Health Services
(DSHS) offers child welfare services to Indian Children through the Children's
Administration (CA). This CA Indian Child Welfare Manual provides
policy and procedural guidelines for staff of CA, CA-licensed or certified
public and private child care and placing agencies, and CA-contracted agencies
and providers that work with American Indian children and families. CA
has consolidated Indian Child Welfare (ICW) procedures in this manual.
- CA staff, CA-licensed or certified public
and private child care and placing agencies, and CA-contracted providers
must follow procedures in this manual when serving Indian children and families.
In addition, these agencies and their employees must comply with the requirements
for serving all children and families contained in the CA Case Services
Policy Manual and the CA Practices and Procedures Guide.
If a requirement in one of those manuals conflicts with a requirement contained
in this manual, staff and providers must comply with the provisions of
this manual, unless required by law to do otherwise.
state courts and child welfare agencies have made a disproportionate number
of removals of Indian children from their families and Tribes, with placement
of those children outside of their families, Tribes, and Indian culture.
Significant social problems developed from these violations of laws and rights
and the cultural disorientation associated with the unwarranted relocation
of Indian children.
- CA has designed the procedures in
this manual to prevent the arbitrary removal of Indian children from their
families and to promote the child remaining in the native community if
such removal is necessary. The procedures include, but are not limited to:
notice of commencement of Child Protective Services (CPS), Child
in Need of Services (CHINS), At-Risk Youth (ARY), or other pre-judicial
investigation or intervention to the child’s identified Tribe(s);
- Notice of state court child custody
proceedings to a child's Tribe as well as to the Indian child's parents
or Indian custodians;
of child custody cases from state court to Tribal Court;
right of a child's Tribe to intervene in state court child custody
planning and consultation with a child's Tribe;
of Indian children in Indian homes;
standards of evidence than those usually applicable in child custody
cases regarding dependency and termination of parental rights;
for court approval of consent to place, voluntary relinquishment,
and adoption of Indian children; and
rights for Indian adoptive children.
- The Children's Administration,
public and private licensed or certified child care or placing agencies,
and other contractors must make every effort to provide and enhance culturally
relevant and sensitive child welfare services to Indian children and their
- The Children’s Administration
is committed to:
the cultural heritage of Indian children by ensuring that staff
identify tribal children immediately and connect the children to their
Tribes through early tribal notification by DCFS staff, licensed or certified
public and private child care and placing agencies, and CA contractors.
tribal rights and cooperating with Tribes’ efforts toward
enhanced self-determination relative to child welfare matters.
policies and procedures that protect Indian children from unnecessary
removal from their families and tribal communities.
01.10 01.10 SCOPE
The rules and procedures set forth in this manual apply to all child welfare
actions, taken by CA or licensed, certified, or contracted agencies, involving
children and families of North American Indian descent.
Children’s Administration has based the procedures contained in this
manual on applicable state law contained in the Revised Code of Washington
(RCW), federal law contained in the United States Code (USC), treaties, agreements
with the Tribes, and the Washington Administrative Code (WAC). These
- The United States Constitution
- 25 USC 1901, et seq.
- Indian Child Welfare Act
- 42 USC 675 – the
Social Security Act
- 42 USC 671a – Inter-Ethnic
- RCW 13.32a - Family Reconciliation
- RCW 13.34 - Juvenile
Court Act - Dependency
- RCW 26.33 – Adoption
- RCW 26.34 - Interstate
Compact on the Placement of Children
- RCW 26.44 - Abuse of
- RCW 74.13 - Child Welfare
- RCW 74.14a – Children
and Family Services
- RCW 74.14b – Children’s
- RCW 74.14c – Family
- RCW 74.14d – Alternative
- RCW 74.15 – Care
of Children, Expectant Mothers, and Developmentally Disabled
- The State-Tribal Centennial
- Tribal-State Indian Child
Welfare Agreement of 1987
- Chapter 388 WAC
- Treaties between Indian
Tribes and the U. S. government
- Treaties between Indian
Tribes and the state of Washington
- Other applicable federal
and state laws
- Federal and state court
The Indian Child Welfare Act (ICWA) was enacted in 1978 after an 11-year
effort spearheaded by the Association on American Indian Affairs and after
relentless political advocacy by national Indian and non-Indian organizations,
Tribes, members of Congress, and journalists. President Carter approved
ICWA over the objection of the Departments of the Interior, Health, Education
and Welfare, Justice, and the Office of Management and Budget. A number
of states, however, supported enactment, including Arizona, Arkansas, California,
Georgia, Massachusetts, New Mexico, North Dakota, Oklahoma, Oregon and Washington.
By the time ICWA was enacted, Indian Tribes had been subjected to several
hundred years of non-Indian efforts to terminate tribal existence, and as a
part of this effort, separated Indian children from their Tribes in order to “civilize” or
assimilate them. In the 30 years immediately preceding ICWA’s enactment,
these efforts included the removal of thousands of Indian children from their
families and Tribes through state court child abuse and neglect proceedings
that often targeted Indians, applied state laws in discriminatory ways and
failed to adhere to due process norms. In addition, other thousands of
Indian children were “voluntarily relinquished” for adoption by
their Indian parents under circumstances that appeared lawful but where coercion
or duress were the underlying factors. In some extreme cases, Indian
children were even kidnapped from their Indian families. In almost every
one of these situations, the Indian children were placed in white foster or
adoptive homes. Rarely were these children returned to their families
or tribal communities. By the 1970's, many Tribes experienced a
25 percent to 35 percent out-placement of their children. We know of
at least one Tribe that had 100 percent of its children in foster or adoptive
Realizing that the destruction of so many of their families threatened the
continued viability of the tribal community, Tribes and their supporters mobilized
a national campaign to secure legislation that would protect the integrity
of Indian families and Tribes, understanding that this protection also promoted
the best interests of Indian children.
It was apparent that state courts had systematically applied state laws in
ways that unnecessarily authorized Indian children to be placed away from their
families and Tribes. ICWA's foremost goal, therefore, was to shift
the decision-making authority from state to tribal government. Henceforth,
tribal social service agencies and courts, applying tribal laws and customs,
would be the primary (if not the only) decision-makers in determining the best
interests of Indian children.
ICWA, however, did not entirely disable state courts from approving Indian
child placements. After the enactment of ICWA, state courts continued
to exercise at least initial jurisdiction over Indian children neither domiciled
nor resident within a tribal community. But ICWA changed the ground rules
of these state court proceedings. It mandated that Tribes be able to
participate in the proceedings, including voluntary termination of parental
rights and foster care placement proceedings, and by allowing, under certain
conditions, for Tribes to permanently transfer the proceedings to tribal court.
When transfer to tribal court does not occur, ICWA imposes on state courts
certain due process requirements that are often lacking under state law. For
example, in involuntary proceedings, an Indian child cannot be removed from
its parents’ custody unless there is substantial proof that the parents’ activities
seriously injured the child. Before this requirement was enacted, Indian
parents often lost custody of their children because the non-Indian authorities
did not approve of the parents' lifestyle or the parents' culturally
rooted, child-rearing practices. In addition, ICWA required that before a child
is removed, services be provided to the family in an effort to avoid removal. This
was a novel idea before ICWA. And uniquely significant, ICWA requires
state courts and agencies to apply tribal law or custom in carrying out certain
Similarly, in voluntary proceedings, ICWA requires the court to assure that
the consent to placement was truly voluntary, and to make sure that the parents
understand their rights, including the right to revoke consent. Prior
to ICWA, many states did not even require voluntarily consenting parents to
appear in court and explanations of rights were left to caseworkers or others
whose interests were not the same as the parents. This commonly led to
misunderstandings about the nature of legal documents signed and the unexpected
and undesired permanent loss of custody.
While ICWA’s overriding aim is to prevent the placement of Indian children,
there are obvious situations where placement is unavoidable, even after all
efforts have been made to keep a child with his or her family. In these
situations, ICWA generally mandates that the child be placed in an Indian home,
with extended family having first preference. This requirement applies whether
the child is placed as the result of a voluntary or involuntary proceeding.
In sum, ICWA prescribes that it is in the best interests of Indian children
to remain in the custody of their Indian parents or, if necessary, with other
members of their extended family or Tribe and connected to their tribal communities. Any
discretion exercised by state judges in conflict with this definitional component
of “best interests” violates ICWA.
ICWA fundamentally changed established federal and state policies and practices,
and shifted a substantial element of power from states to Tribes. Therefore,
it is not surprising that ICWA has been attacked. Early on, ICWA withstood
several challenges to its constitutionality and has been continually whittled
at on a case-by-case basis. Perhaps the most pernicious challenges come
from courts that have deliberately misconstrued ICWA to find it inapplicable
to Indian children who have not been sufficiently connected to an Indian family,
or courts that have elevated to a rule the “good cause” exceptions
in ICWA's jurisdiction transfer and placement preference provisions.
Despite the decisions by a minority of state and federal courts that are
contrary to ICWA's express premises, ICWA has achieved its fundamental
objectives. Tribes are able to make decisions involving their children
in multitudes of tribal and state cases. This could not have happened
before ICWA. As a consequence, many Indian children who before ICWA would
have been raised in white families, have remained with their own families and
Tribes. Tribes have also developed sophisticated social services systems spawned
by ICWA. ICWA has caused a number of state and non-Indian local jurisdictions
to develop positive and effective working relationships with tribal agencies
and courts. The U.S. Supreme Court has recognized ICWA's beneficial
ICWA appears to be the only national Indian rights legislation brought about
by grassroots Indian advocacy. ICWA’s survival and thriving depends
on constant vigilance by Tribes and their members. It also depends on
appropriate action to defeat the venomous attacks still occasionally made against
this beneficial law by persons who are committed to the termination of Indian
Tribes by facilitating the placement of Indian children in white homes.
* This article, written by Bert Hersch, appeared in the July/August 1998 Pathways,
a publication of the National Indian Child Welfare Association. It is reprinted
by permission of the National Indian Child Welfare Association.
federal Indian Child Welfare Act (ICWA) of 1978 (25 U.S.C. 1901 et seq.)
was the first federal legislation enacted to protect Indian children and
families. This landmark law defines the rights of Tribes to assume jurisdiction
over children who are members or eligible to be members in a Tribe. ICWA
also requires that:
and federal governments give full faith and credit to the public acts,
records, and judicial proceedings of Indian Tribes;
give preventive services to Indian families prior to placing children
in out-of-home care;
facilitate family rehabilitation using active efforts;
return Indian children to their families whenever possible; and
- States give preference to placing
an Indian child with a member of the child's extended family, a foster
home specified by the child's Tribe, or an Indian foster home or institution
for children approved by the Tribe or operated by an Indian organization.
- States may enter into agreements with
Indian Tribes respecting care and custody of Indian children and jurisdiction
over child custody proceedings, including agreements that may provide
for orderly transfer of jurisdiction on a case-by-case basis and agreements
that provide for concurrent jurisdiction between states and Tribes.
- States provide a higher standard of
protection and preservation of Indian families and Tribes through the
establishment of standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive homes
that will reflect the unique values of Indian culture.
law, enacted in 1987 and codified in Chapters 13.34, 26.33, 74.13, and
74.15 RCW, brings state procedures regarding voluntary foster care placements,
relinquishments, and adoptions into compliance with ICWA. State law also
recognizes that Indian Tribes have the authority to license child care and
placing agencies or facilities within their boundaries. State law also specifies
must develop a plan for recruiting an adequate numbers of Indian foster
has authority to pay foster care and other services for Indian children
in tribal custody or care (if funds are available); and
and its licensed or certified child placing agencies may place Indian
children in tribally licensed child care facilities.
addition to federal and state laws, the state of Washington entered into
a Tribal-State Indian Child Welfare Agreement (referred to as the Tribal-State
Agreement) with Washington Tribes that sets standards for notification,
social work practice, equal access to services, and cooperative case planning
in cases involving all Indian children.
WAC contains provisions recognizing the unique status of Indian Tribes
and their children. The original provisions predate the federal and state
acts. A unique coalition of Washington state Tribes, off-reservation
Indian groups, individuals concerned with the welfare of Indian children,
representatives from the Office of the Attorney General, and staff of Children’s
Administration came together to revise the WAC to reflect current law and
the Tribal-State agreement.
Indian Child Welfare Advisory Committees (LICWAC) have been active in this
state since 1971. LICWAC serves in an advisory capacity to CA in determining
case planning for Indian children when CA has not identified the children’s
Tribes or the children’s Tribes have requested LICWAC participation
in behalf of the Tribe. The LICWAC also serves as the Child Protection Team
(CPT) for Indian children. LICWAC volunteers are active in every region in
the state and provide a valuable service to CA and Indian families.
created an Office of Indian Affairs office in 1972, which became the Office
of Indian Policy and Support Services (IPSS) in 1990. Personnel of Indian
ancestry who are familiar with Indian communities staff the IPSS. This
office is advisory to all Administrations of DSHS. It provides an ear
for the various tribal and off-reservation Indian communities and a voice
for input into policy development.
- In 1987, the department adopted DSHS Administrative
Policy 7.01 to demonstrate the department’s commitment to planning
and service delivery to Indian governments and communities. Through this
policy, DSHS follows a government to government approach to establishing
policies and procedures for working with Indian Tribes.
- Historically, the roots of the “unique” treatment
of Indian people go back to before the United States was formed. When
Europeans arrived on the shores of North America, they entered into wars,
alliances, and treaties with the Indian nations that were already on the
continent. The United States accepted some of those treaties, and the United
States negotiated numerous other treaties subsequently.
- The United States and Indian Tribes entered
into treaties to cede land and make peace between the parties to the treaties,
to prevent Tribes from entering into alliances with other European nations,
and to regulate commerce between the United States and Indian Tribes. A
treaty with an Indian Tribe is similar to a treaty between the United States
and any other nation.
- Indian treaty law is very confusing
and is not evenly interpreted.
- Treaties frequently cede certain lands
and rights to the United States while reserving (hence "reservations")
other lands and rights to the Tribes. In return, the U.S. government
promised to give monetary compensation, goods, education, health care,
and protection from its other citizens to Indian Tribes.
- Although it is frequently argued that Indian
treaty rights are historical and accusations are made about living in the
past, treaties are legal contracts and the passage of time does not erode
their validity. It is out of this unique relationship with the U.S. government
that the Indian Child Welfare Act derives its authority to assert the rights
of Indian Tribes to jurisdiction over their citizens.
- Indian children have been the subjects of
special interest by non-Indian groups since the mid-1800s when missionary
groups were represented in force on Indian reservations. The original justification
for interference with Indian families and removal of their children was
to save their souls, educate their minds to white culture, and break the
bonds to their Tribes and families.
- Although adoptions of Indian children into
non-Indian homes seldom occurred during the 1800s, the U. S. government
removed the majority of Indian children to educational institutions such
as boarding schools. The government made these residential programs mandatory
for children of a certain height and age.
- Abusive practices were rampant. Soon
after arrival, school authorities shaved the Indian children's heads
and clothed the children in European fashion. The schools imposed harsh
discipline and rigorously prohibited Indian language and customs.
- The government and the missionary
societies located very few of the mission schools near Indian Tribes
and children rarely returned home during vacations.
- Disease was epidemic, and the school
cemeteries were filled with the small graves of children who would
never go home.
- The boarding school system weakened
natural familial ties, separated the children by language from their traditional
teachers, who were the grandparents and elders of their Tribe, and prevented
generations of children from learning how to be parents in a normal fashion.
Many Indian people, after experiencing the punishments for practicing their
own culture and language, did not want their children to learn anything of
their tribal ways.
- The relocation policy also resulted in the
movement of Indian families and individuals away from the reservation.
The U.S. government designed the relocation policy to make Indian people
move into cities for vocational training. The training frequently did not
end in employment, but it did put children at risk by separating them from
community sanctions against deviant behavior and from extended family supports.
- The extreme poverty of many Indian people
served as a reason to remove Indian children from their families. To
this day, Indian people continue to be the poorest in the land. Many
Indian parents were and are labeled as hopeless cases because they lack
knowledge about state approved methods of child care. These parents received
little or no aid to correct problems that often result from poverty and lack
of knowledge about the system. Additionally, private, state, and federal
child welfare agencies rarely considered the child's extended family as a
- Indian parents who encountered
social service systems often did not understand their rights or what the
agencies expected of them. Many Indian people have a native tongue as their
primary language despite the enormous pressure against retaining the native
language. Even when the primary language is English, many Indian people have
had limited education and are unable to take advantage of services when offered.
- Indian cultures have high regard for their
children. Many traditional cultures believe that if a child is not cared
for by the child’s relatives and loved, the spirit will return to the
other side. Children are valued by Native American cultures, and most Tribes,
by custom, prohibited abusive practices which were part of European North American
culture. Writings from the 19 th and the early 20 th centuries criticized
Indian parents for "sparing the rod and spoiling the child."
- One aspect of Indian culture that has been
a continuous source of misunderstanding in child welfare practice is that
children were often not considered to be solely under parental care and authority.
Extended family, especially grandparents, had a formal say in decisions affecting
- Many Tribes expected that children
would be turned over to an aunt, an uncle, or the grandparents for
- These practices continued in traditional
families, although sometimes in modified forms. Such children, when
encountered by non-Indian systems, would be labeled as abandoned children
and removed from the caretakers.
- In 1960 one third of all Indian children
were in some type of out of home placement in Washington State. The majority
of those placements were in non-Indian homes or institutions. As the children
grew older or became adults, Indian Tribes and organizations experienced
the phenomenon of teenagers and young adults searching for their Indian identity
as they left failed adoptions and institutions. Many such young people
felt as if something was terribly wrong with their lives. Many of the children
were deeply disturbed, some extremely depressed and suicidal.
- As Tribes reasserted their intention to
survive as governing entities and cultural groups, one of the pressing
issues was to preserve what the Tribes called their greatest natural resource,
their children. This was fully supported by off reservation Indian groups.
These groups, which organized cultural and political activities, attracted
large numbers of Indian adolescents and young adults who had been separated
from their families and who were searching for their lost cultural identity.
- In the early 1970s, Indian Tribes and groups
began to address the issue of separation of Indian children from their
communities. To correct the problem, Indian child welfare coalitions asked
for changes in state policy, recognizing the harm caused by former state
- As a result of negotiations by tribal governments
and off-reservation Indian organizations with DSHS in the 1970's, each
CA region now has a local LICWAC composed of tribal and Indian organization
- The LICWACs review case plans of Indian
children, help search for relative, tribal, or other Indian resources,
and provide additional services to benefit the case plans and children.
- The LICWAC members give their time
at no cost to the state.
- With the passage of the ICWA and state laws
regarding Indian Child Welfare (ICW), state and private agencies were put
on notice that they would have to develop higher standards of service practice
for Indian families and children. Unfortunately, the lack of consistent
and adequate funding has hampered the efforts of Tribes and Indian organizations
to assume complete charge of Indian child welfare.
- The CA has a continuing commitment to principles
contained in ICWA. Off reservation and tribal groups expect to see Indian
representation throughout the ranks of state employees. LICWACs and parents
have campaigned to recruit volunteers and foster parents. Many regions
have hired Indian workers to handle Indian cases. Some regions have designated
trained groups of social workers ("Indian units") that specialize
in cases involving Indian children.
- The Indian community is trying to develop
tribal resources and off reservation Indian agencies that can provide culturally
appropriate services to Indian families and placements for children. Many
tribal centers and most urban areas have at least limited mental health
services, drug/alcohol rehabilitation programs, and other resources for individuals
of Indian descent. These agencies do not always have state contracts and
struggle frequently with limitations of available funding.
- CA, to the extent it has the resources,
must provide ICW training to state agency and licensed or certified private
child placing agencies’ social workers, supervisors, administrative,
and policy making staff. CA must train its staff and private agency staff
to screen their cases for early identification of Indian status and to
staff these cases immediately with the Tribes or LICWAC. CA and private
agencies must closely monitor cases involving Indian children to ensure
compliance with the ICW WAC and state and federal laws applicable to Indian
children, families, and Tribes.
- Tribal social workers and advocates need
training. The Tribal-State Agreement mandates that CA will make available
training for tribal agencies at their request and when funds are available.
- Special problems remain:
- Ensuring consistent departmental compliance
with the ICWA and state ICW-related laws and the Tribal-State Agreement.
- Appropriate identification of experts
who can provide culturally appropriate services or court testimony.
Such experts should be knowledgeable about the specific culture of the
tribal group of origin and about ICW practice. These experts should be
identified and approved by tribal groups or Indian organizations.
- In the chapters to come, this
manual will identify mandatory practice in Indian child welfare and will
provide guidelines for social workers to comply with federal and state laws,
the Tribal-State Agreement, and the WAC.
- CA is committed to a future where
tribal, off-reservation Indian, state, and private systems intermesh
to provide the higher standards of protection, services, and social work
outlined by the ICWA.
- CA looks forward to a time when disputed
cases will not separate children from their Indian culture and children
can count on receiving appropriate services and placement with smooth
interaction between the state, private agencies, and Indian resources.
- Indian Policy Statement
- The state of Washington recognizes
the unique cultural and legal status of American Indians granted in
Supremacy and Indian Commerce Clauses. Other applicable standards include
federal treaties, Executive Orders, the Indian Citizens' Act of 1924,
ICWA, other statutes, and state and federal Court decisions.
- Indian people retain the right to
tribal self-government and hold dual status as citizens of the state
and of tribal nations, as expressed in the Indian Self-Determination
Act of 1964.
- CA staff may consult with the IPSS
Regional Indian Specialist, when available, the LICWAC liaison, or
the ICW program manager when the CA staff need additional information
or clarification on Indian affairs or issues pertaining to the delivery
of services to Indian clients.
- Local Indian Child Welfare Advisory
As one effort to improve the delivery of services to Indian citizens, CA
has established Local ICW Advisory Committees (LICWAC). The LICWAC:
- Promotes relevant social service planning
for Indian children when the children’s Tribes are not available or the
children’s Tribes have requested LICWAC involvement for consultation
and case plan development;
the preservation of Indian families and Tribes and the heritage of
each Indian child referred to CA and the private child care and placing
agencies that it licenses; and
provision of necessary assistance to department staff by tribal representatives
and off-reservation Indian organizations in the social service planning
for Indian children for whom CA has a responsibility.
- Tribal-State Agreement
- As a further effort
to provide services to Indian children and families, CA has adopted the Tribal-State
Agreement as policy. This Agreement provides a blueprint for the development
of local agreements, training, and other activities related to ICW issues.
The Agreement resulted from a partnership formed by Indian Tribes in the state
of Washington and CA. The Agreement is consistent with and expands on
ICWA, the ICW provisions of the WAC, and state law.
- This manual applies to CA staff, licensed
or certified public and private child care and placing agencies, and CA contractors.
- For the purpose of this manual the term "social
worker" means all staff in the referenced audience providing services
to Indian children and families. If a particular agency has responsibility
for a specific task, the manual specifically references that agency; i. e.,
the first part of Chapter 05 applies to CA CPS social workers only.
Purpose and Scope
This protocol establishes guidelines for CA staff to
obtain tribal involvement in the selection of CA staff who will serve or who
will impact services on Native American/Alaskan Native/Canadian Band, Tribe
or Metis children. The protocol also includes guidance for CA staff in responding
to concerns expressed by tribal or off-reservation Indian organization representatives
regarding CA staff performance in complying with ICW requirements.
- Selection of Staff Providing Services
to Indian Children
- In order to employ staff with sensitivity
to cultural and tribal issues in case decisions and service delivery, CA will
involve Tribes and off-reservation Indian organizations in the selection of
CA staff, including social workers, supervisors, Area Managers, Regional Administrators,
Regional Managers, headquarters and regional program managers that:
- CA will assign to an
- Will serve ICW cases
on fairly routine basis; or
- Will have an impact on
cases involving Indian children.
- When recruiting to hire such staff,
the CA supervisor or manager must invite participation of each Tribe
and off-reservation Indian child welfare organization in the service
- Asking for tribal and off-reservation
organization participation in review of applications and/or recommendations
on specific applicants.
- Inviting, with reasonable notice,
tribal and off-reservation organization representatives to participate
in the interviews if they choose. CA and affected Tribes and off-reservation
Indian organizations will define timeframes for notice and invitations
in local agreements between CA and the affected Tribes and organizations.
- The responsible CA appointing authority
retains final responsibility for selection of the successful candidate
for employment. However, the CA Manager must give careful consideration
to tribal comments and preferences in selecting the successful candidate.
- The CA supervisor must notify the
tribal and off-reservation Indian organization representatives of the
person selected to fill the position as soon as CA selects an applicant
from the candidates presented.
Communication on Performance Concerns
- CA encourages tribal and off-reservation
Indian organization representatives to identify concerns regarding
CA staff performance regarding ICW issues at the lowest appropriate level
in the organization, beginning with the employee with whom the Tribe
or Indian organization has concerns. CA encourages both CA staff and
the tribal and off-reservation Indian organization to utilize problem-solving
techniques as appropriate at all levels of the resolution process.
- Whenever a Tribe or off-reservation
Indian organization expresses concern about ICW-related performance
of a CA employee, the appropriate CA supervisor or manager will treat
the expression of concern with respect and assure the tribal or organization
representative that CA will review the issue with the involved employee.
- The CA supervisor or manager will
review the situation with the involved employee and implement appropriate
corrective steps, as necessary. The supervisor or manager will then inform
the tribal or organization representative that the supervisor or manager
has reviewed the situation with the CA employee and that the employee
and the supervisor or manager have undertaken corrective steps, where
- CA managers may take action appropriate
to the situation, consistent with personnel rules and the Union/Management
Agreement between the department and the Washington Federation of State
Employees, including, but not necessarily limited to, reassignment of
the employee. CA may not share information on the specific personnel
actions with the Tribe or off-reservation Indian organization.
- Tribes and off-reservation Indian
organizations may take issues up the DSHS chain of command if they
believe CA has not adequately addressed their concerns at the local or
- CA-licensed or certified public and
private child care and placing agencies and CA contractors must comply
with all federal and state laws and policies related to Indian child
welfare, including the CA’s Indian Child Welfare Manual.
- CA staff receiving complaints regarding
noncompliance by a particular agency need to refer the complainant
to the Division of Licensed Resources (DLR) licenser for the agency,
if a licensed or certified agency, the CA Division of Program and Policy
Development child care or placing agency program manager, and the ICW
- If CA determines, after investigation,
that the private child care or child placing agency or CA contractor
has not complied with applicable laws, policies or manual provisions,
CA must take the corrective actions outlined below.
- Licensed or Certified Agencies
it appears noncompliance is an isolated incident, the CA licenser must write
a deficiency report and require a plan of correction. The plan must describe
corrective action planned to correct identified deficiencies and to assure
no repetition of the non-compliant practice. The licenser must provide
a copy of the corrective action plan to the Tribe(s) of any Indian child(ren)
involved in a noncompliance incident.
as the result of a review of additional complaints, CA determines that
the agency is unable or unwilling to comply with the requirements of
ICWA, this manual, or with WAC 388-73-044, CA must take action against
the license and/or the contract of the child care or placing agency.
action may include, but is not necessarily limited to, the following:
suspension of a license
Either action would prohibit an
agency from operating during the period of suspension and would
interrupt CA’s payments to the
agency for child care and services. CA may lift the suspension when
the agency comes into compliance.
licensure of an agency
The agency may operate and receive payment during the period in
which CA has provisionally licensed the agency. However, CA may deny
application for full license if the agency fails to provide evidence
of compliant corrective action within 30 days of receipt of the provisional
CA may amend or modify a license to prohibit the agency from caring
for Indian children or impose other restrictions/requirements upon
CA must revoke a license where it is evident that lesser actions have not
been or will not be effective in gaining compliance with the requirements.
- CA Contractors
- 1 For those private or public child
welfare agencies having contracts with DSHS, CA may take contract actions
in addition to licensing actions. Regional or state office contracting
staff, not licensing staff, initiate contract actions, after determining
the agency is out of contract compliance. Child care or placing agency
contracts also require conformity to licensing standards, so contract
action may be based on the finding of noncompliance with the requirements
of this manual or with WAC 388-73-044, as well.
- Contract actions include, but are
not limited to, the following:
A stop placement notice, usually issued by a regional office,
informs the public or private agency, other regions, and the state
office that the department will not make placements with the agency.
The stop placement notice does not interrupt payment on behalf of children
already placed with the agency by the department. The stop placement
notice does not prohibit the agency from accepting children from sources
other than the department.
CA may amend the contract to stop payment for the care of
CA may terminate the contract with the agency. Such action will cause
the department to remove all children placed with the agency through the
department and to stop all payments under the contract.
- Additional Sanctions for Noncompliance
In all cases where the department or a responsible federal agency determines
that an agency licensed, certified, or contracted by the department violated
ICWA, CA must take the following actions, in addition to possible licensing
and contract actions.
DCFS Regional Administrator or DLR Regional Manager, as applicable,
must prepare and send to the Assistant Secretary, Children’s Administration,
a report of noncompliance. The Assistant Secretary must forward the report
to the Bureau of Indian Affairs (BIA). If the case involves children
who are members of or eligible for membership in any Tribe, the Assistant
Secretary must provide a copy of the noncompliance report to the Tribe.
Assistant Secretary, Children’s Administration, on tribal or
BIA recommendation, must request that the State Attorney General develop
an amicus brief
in support of tribal or BIA legal action taken against an agency for
support of any tribal or BIA legal action, department staff may serve
as expert witnesses in legal proceedings, upon request of the Tribe or
in consultation with the Attorney General's Office, must explore and
pursue other available legal remedies to secure compliance with federal
A DCFS Regional Administrator or the DLR Director may waive provisions of
this manual only in accordance with the provisions of the CA Operations
Manual, chapter 2000, section 2320. Before granting waivers of these
provisions, the Regional Administrator or Director must consult with the affected
Tribes and off-reservation Indian organizations.
- Purpose and Scope
- CA staff will use these procedures
strictly as guidelines to promote good communication and to expedite
timely resolution of issues related to cases involving CA social workers
and the CA-appointed Local Indian Child Welfare Advisory Committee (LICWAC)
or non-tribal Indian child welfare organizations. CA and the LICWAC or
Tribe may not use impasse procedures to circumvent a court order.
- While CA cannot impose these requirements
on Tribes, as Sovereign Nations, CA strongly encourages Tribes to use
these procedures as steps to resolve issues at the lowest level possible
within the CA organizational structure. These procedures do not supersede,
diminish, or infringe upon tribal sovereignty, the Centennial Accord,
or any other tribal/state agreements that address tribal impasse procedures.
The following definition applies to this section:
“Impasse” means a deadlock between CA and the
LICWAC or child’s Tribe following thorough discussion by the CA social
worker of the case plan and case decisions with the worker’s supervisor
and managers and the LICWAC or tribal designee, as applicable, does not concur
with the department’s plan and decisions.
See chapter 14 for definitions of the following terms:
- “Indian Child”
- “Washington State
- “Canadian First
- “Recognized Indian
- “Local Indian Child
Welfare Advisory Committee,” or LICWAC
If the LICWAC does not agree with the CA social worker’s case plan
for the Indian child, CA and the LICWAC implement the following procedures
to resolve the impasse. If the child’s Tribe does not agree with
the case plan for the Indian child, who is a member or eligible for membership
in the particular Tribe, the Tribe may utilize the procedures to resolve
the impasse. CA does not intend to apply the impasse procedures to disagreements
about a specific service or service provider.
- CA encourages the LICWAC or the child’s
Tribe to first seek resolution of issues with the social worker’s
supervisor prior to invoking these procedures.
- For cases where the LICWAC or the
child’s Tribe does not assess the child to be at imminent harm,
the timeframes contained in these procedures may be extended if CA
and the LICWAC or the Tribe mutually agree to the extension.
- Within one work day after the LICWAC
or the Tribe determines that an impasse exists, the LICWAC Chair
or tribal designee will notify the CA Area Manager or DLR Regional
Manager, as applicable, who will schedule an impasse staffing. The
LICWAC Chair or tribal designee may deliver the notice by fax, e-mail,
in writing, or telephone and should include all major points of disagreement
so that each issue can obtain resolution. Following any verbal notice,
the CA social worker needs to request a written statement from the
LICWAC Chair or Tribe.
- CA encourages the CA Area Manager
or DLR Regional Manager, as applicable, to mediate a resolution
to the dispute at any point in the proceeding. Provided mediation
is unsuccessful, the Area Manager or Regional Manager schedules
the impasse staffing with the LICWAC or tribal designee(s), the
CA social worker, the social worker’s
supervisor, the Regional Administrator or Regional Manager, the
CA headquarters ICW program manager, and, if necessary, an Assistant
Attorney General with expertise in ICW issues. Scheduling needs
to occur within five working days.
- If CA or the LICWAC or Tribe, as applicable,
believes the child(ren) is in imminent danger or at serious risk
of harm, CA must follow the Child Protection Team (CPT) guidelines.
See the CA Practices
and Procedures Guide, chapter 2000, section 2562. CA will
place the child out of potential danger until CA holds a staffing,
that includes the Regional Administrator or Regional Manager,
as applicable, within one work day of the placement.
- If a court hearing is imminent, the
CA social worker needs to request the Assistant Attorney General
to seek a continuance to provide additional time to reconcile any disagreement
between the CA social worker and the Tribe.
- If the court hearing is not continued,
the Area Manager will schedule the impasse staffing prior to the
hearing. CA recognizes that, due to the legal requirement to hold a
shelter care hearing within 72 hours, excluding weekends and holidays,
of the child’s
placement in shelter care, CA may not always be able to conduct the
impasse staffing before the hearing.
- If the LICWAC or the Tribe and CA
cannot mutually resolve the impasse at the regional level, the Regional
Administrator or the Regional Manager, as applicable, and the LICWAC
or tribal designee notify the Assistant Secretary for Children’s
Administration of the need to schedule an impasse staffing to occur
within three work days of the notification.
- The Area Manager and Regional Administrator
or Regional Manager, when applicable, will participate at impasse
meetings beyond the regional level. The social worker and/or supervisor
may participate at the request of the Regional Administrator or Regional
Manager, as applicable.
- The CA social worker submits and requests
the LICWAC or Tribe to submit by fax or e-mail the LICWAC or Tribe’s
concerns to the Assistant Secretary’s office. The social worker
must also submit any previous staffing minutes and other documents
pertinent to the decision to the Assistant Secretary prior to the impasse
staffing. The social worker or other CA representative, if the social
worker does not attend, must bring the complete case file to the impasse
- If CA and the Tribe cannot mutually
resolve the impasse at the Assistant Secretary’s level, the Assistant
Secretary notifies the DSHS Secretary that the Secretary’s Office needs
to schedule a final impasse staffing within three work days of the notification. The
Assistant Secretary will forward all case related documentation to the Secretary’s
- CA must make every effort to include all parties
to the original impasse at each level of review.
- The Secretary’s decision on the impasse