sECTION 4:

DCYF has to legally recognize that “tribes are sovereign entities, similar to but different from Washington State.” DCYF Policy 2.1 – History.  Because tribes are sovereign entities, they have the authority to govern their people and land, define tribal membership, and create their own legal and child welfare systems. DCYF is required by law to recognize this legal status of American Indian tribes and is committed to honoring a government to government relationship with the tribes. This includes compliance with the Indian Child Welfare Act (ICWA), the Washington State Indian Child Welfare Act (WICWA), and various Triable/State Memoranda of Agreement (MOAs-definition). Individual Tribal/State Memoranda of Agreement. The law requires DCYF to protect the best interests of Native American children, their families, and tribes. As part of this legal obligation, all DCYF employees must identify if their is “reason to know” a child is or may be a Native American child and verify the child’s status with the tribe as soon as possible.  This verification process STARTS from the intake process and CONTINUES throughout the case. 

REASON TO KNOW:  Policy 2.40.1 references the definition for “reason to know,” however, this definition is somewhat incomplete.  This policy identifies what to do if a DCYF/CPS worker has “reason to know.” But what triggers reason to know? The answer is simple. . . . YOU! It is absolutely vital to inform DCYF of any Native American heritage during all interactions, even if you or your child are not enrolled in a tribe. The recognition of Native American ancestry can be based solely on family stories or oral traditions passed down through generations. This acknowledgment is crucial, as it activates the protections and provisions of the Indian Child Welfare Act (ICWA) and the Washington State Indian Child Welfare Act (WICWA). These acts are designed to preserve the best interests of Native American children, their families, and their tribes. Once you communicate your belief of having Native American heritage, DCYF is legally obligated to comply with these laws until the relevant tribe determines its level of involvement. By making your heritage known, you ensure that your rights and those of your child are upheld according to the specific legal frameworks established for Native American families. Once you bring this to CPS/DCYF’s attention they will request for you to fill out an Indian Identity Request form and a Family Ancestry Chart. Familiarize yourself with these forms so you can fill them out if they are presented to you. If you have informed the social worker of your suspected or confirmed Native American ancestry and no action is taken, continue to notify everyone involved in the process. Make it clear that the social worker has yet to provide you with the necessary forms to determine if the tribe wishes to intervene. Regardless, DCYF is obligated to adhere to the Indian Child Welfare Act (ICWA) and the Washington State Indian Child Welfare Act (WICWA) until it is confirmed that the tribe does not wish to participate.

INTAKE: According to Policy 2.30.1, the intake worker MUST determine if a child is potentially Indian and contact the corresponding tribe(s) BEFORE making screening decisions. 

CPS INVESTIGATION & FAMILY ASSESSMENT RESPONSE:  For more detailed information on both these topics please see Section 7 and 8. However, for purposes of understanding the duties of DCYF for Native Americans in these two topics we will discuss this here.  If you are being investigated by CPS they must have you complete the Indian Identity Form at the intial contact with the parents. If you are on reservation land prior to DCYF interviewing the children they need to request permission to come there.  If you are on reservation land, the tribe can assume responsibility for the CPS investigation or Family Assessment Response (this is a sort of services package they offer families in lieu of a removal but there is still an investigation going on). 

It is crucial for the tribes to become involved as soon as possible because they have the right to participate in the CPS investigation and offer services as well within the Family Assessment Response (FAR). The services the tribe offers will be culturally appropriate services.  Next the tribe has placement resources if an out-of-home placement is requested for your child. Under the Indian Child Welfare Act (ICWA), there is a placement preference policy that must be followed. 

Ultimately, if no one has inquired about your Native American status or if you have informed them and no action has been taken to investigate, such as having you fill out the necessary forms, then they are in violation of the law. 

The requirements for handling Native American dependency cases (court involved-cases), will be thoroughly discussed under the “Dependency” tab, detailing how these requirements integrate into your court proceedings.

VOLUNTARY PLACEMENT AGREEMENTS

A voluntary placement agreement is an agreement between the parent and CPS/DCYF to temporarily place children with a relative or foster home, who cannot stay at home due to safety concerns. Sometimes, a parent needs to address certain issues to create a safe environment for the child(ren), necessitating that the children live elsewhere temporarily. There are two things that are different for Native Americans with these sort of agreements: 

1.  It must be executed before the court and filed with the court. 

2. That Placement preferences of 25 U.S.C. Sec. 1915 (b) or (c) must be followed. 

An important aspect to consider is that if a Native American family signs a voluntary placement agreement, CPS is still required to continue attempts to contact the tribes. According to RCW 13.34.245, voluntary placement agreements must be executed in writing before the court and filed with the court (this is the main difference between non-Native American and Native American Voluntary Placement Agreements). The consent must be accompanied by a written certification from the court stating that the terms and consequences of the consent were fully explained in detail to the Native American parent during the court proceeding and fully understood. Additionally, any consent given prior to or within 10 days after the birth of a Native American child is not valid.

Placement preferences (DCYF Policy 2.40.70, 25 U.S.C. Sec. 1915 (b) or (c) and RCW 13.38.190 (3) (a-e) are as follows: 

1.  Extended family members

2. Indian family of the same tribe

3. Indian family that is of a similar culture to the child’s tribe 

4. Another Indian family or

5. Any other family which can provide a suitable home for an Indian child that the tribe has been consulted on. 

Keep in mind we are briefly touching upon placement preferences here and only for the purposes of a voluntary placement agreement. It’s crucial to understand that even in voluntary removals of an Indian child, placement preferences outlined by the Indian Child Welfare Act (ICWA) must be observed.

ACTIVE EFFORTS

If you are Native American, you will frequently encounter the term “active efforts” in relation to your case. For non-Native American families, the term used is “reasonable efforts.”  

Active efforts refer to timely and diligent actions by DCYF/CPS to provide or procure culturally appropriate services for Indian parents.  This involves engaging the family in preventative, remedial, or rehabilitative service beyond just providing referrals, including those offered by tribes and Indian organizations. DCYF Policy 2.40.50. “Active efforts are further defined by being efforts that must be affirmative, active, thorough, timely, diligent, and concerted and made in good faith. Making active efforts at only limited points in the case (as opposed to doing them during each stage of the case and during each review period) would not meet Active Efforts requirements. For example, doing them at the beginning stage of a case or doing them once every 9 months would not meet required burden.” Comprehensive Guide to Active efforts.  

Documenting the social worker’s actions is essential to ensuring that they are meeting the stringent requirements of “active efforts.” This documentation serves as a critical tool in holding them accountable, ensuring that your family receives the full support and culturally appropriate services required by law. By meticulously recording what the social worker does at each stage of your case, you can help safeguard your rights and ensure that the standard of care owed to your family is consistently met.

If your child is removed or if DCYF/CPS files a petition for removal, there alot more protections that the statute affords that we don’t discuss in this Section. For detailed information on how Native American status affects court proceedings after a petition or case is filed, please refer to the “Dependency” tab. This will provide comprehensive insights into how ICWA influences court requirements and protections at shelter care and beyond, ensuring the rights and best interests of Native American children and their families are upheld throughout the process.