III. A. Indian Child Welfare Policy

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Philosophy:

 

There is a history in this county of not valuing, supporting or recognizing the culture of Native people.  This was demonstrated by child welfare practice of ‘rescuing’ Native children from their culture and their families and forcibly removing children, denying children their own culture, family and language.  In the 1970’s, prior to the passage of the Indian Child Welfare Act, Maine Wabanaki (the confederacy of tribes in Maine and Eastern Canada) children were removed at a much higher per capita rate than that of non-Native children.

 

In 1978 the US Congress passed the Indian Child Welfare Act (ICWA), which codified higher standards for the protection of the rights of Native children, their family and their tribal community.  In the words of the Indian Child Welfare Act, the US Congress said that “no resource is more vital to the continued existence and integrity of Indian tribes than their children……and that child welfare agencies had failed to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families’ (25 U.S.C. §1901).”

 

The Department of Health and Human Services, Office of Child & Family Services (OCFS) believes that Native children should remain with their family, relatives and their Tribe or Band when they cannot remain with their parents.  Federal ICWA law states that tribes will be notified of child welfare involvement at the time the Petition is filed, however, the Department believes, commits to and expects involvement to begin at time of Intake and/or first contact because OCFS places high value on partnering with tribes and in joint decision making. Therefore, the most important philosophy to remember throughout a case involving the ICWA law is inclusion. It is imperative to include the appropriate Tribe or Band throughout the life of the case.

 

The Department not only recognizes the ICWA as federal law which it must follow, it understands the spirit and intent of the law. The Department is committed to tribes having maximum participation in an ICWA case, collaborating as co-case managers.

 

This policy supports the OCFS Practice Model in that OCFS believes that families are knowledgeable about their own families, that families have the right to raise their children and that we respect the family’s culture.

 

Legal Base:

 

Title 25 U.S.C. § 1901 – 1923, the Indian Child Welfare Act (ICWA) is the federal law Congress passed in 1978 “to protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”  Specific standards must be met before an Indian child may be removed from his or her family or placed in an adoptive or foster care placement; provide for placement preferences; require active remedial efforts towards reunification (a standard higher than reasonable efforts); and dictate higher evidentiary standards for the removal of custody from a parent and the termination of parental rights.

 

Title 22, M.R.S. § 7805, provides that the Maine licensing of facilities standards do not apply to any Indian foster family home, adoptive home or other facility licensed by a federally recognized Indian tribe in this State pursuant to the ICWA.

 

ICWA Definitions, 25 U.S.C. § 1903:

 

“Indian Child:

For the purposes of this Act, an “Indian child” is defined as any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for        membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

“Parent:

 “Parent” means any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom.  It does not include the unwed father where paternity has not been acknowledged        or established (putative fathers).”

“Indian Custodian:

 “Indian custodian” means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child.”

“Indian Tribe:

“Indian tribe” means any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians, including any Alaska Native village as defined in section 1602(c) of title 43”

“Indian Child Custody Proceeding:

 “Indian child custody proceeding” means a “child custody proceeding” within the meaning of Section 1903 of the Indian Child Welfare Act, including a voluntary or        involuntary proceeding that may result in an Indian child’s temporary or long-term foster care or guardianship placement if the parent of Indian custodian cannot have the child returned upon demand, termination of parental rights or adoptive placement.”

 

 

Purpose:

 

The purpose of this policy is to ensure that staff are aware of the Indian Child Welfare Act and the spirit of the law to ensure that OCFS Caseworkers partner with Tribal Child Welfare Staff from the first call to Intake through permanency.  It is important to remember that, as stated in the Practice Model, “We recognize that family members know the most about their own families.  It is our responsibility to understand children and families within the context of their own family rules, traditions, history and culture.”

 

This policy will provide a guideline to staff when working with all federally recognized tribes rather than reiterating all sections of other policy.  Federally recognized tribes and contact information can be found through the US Department of the Interior, Indian Affairs website http://www.bia.gov/

 

There are four federally recognized tribes in Maine with five locations.  They are:

The Passamaquoddy Tribe at Motahkmikuk (Indian Township)

The Passamaquoddy Tribe at Sipayik (Pleasant Point)

The Penobscot Nation

The Houlton Band of Maliseets

The Aroostook Band of Micmacs

 

The Department has two tribal agreements, the 1987 Penobscot agreement and the 2002 Houlton Band of Maliseet Indians agreement, please see Appendix 3.

 

Intake:

 

The Intake Unit is the Unit within OCFS that receives the initial referral regarding allegations of child abuse and/or neglect.  When the Intake caseworker receives the call they must determine as soon as possible if it is an ICWA case.  They will ask the referent if it is known if the child who is the subject of the referral is of Native American heritage.  If it is determined that the child is of Native heritage the Intake caseworker will ask:

if tribal affiliation is known

if the family lives on a reservation or within other tribal territory

 

If the determination is made that the family or child is either a member of a tribe or eligible for membership this information will be documented in the MACWIS Intake report.  Each individual, federally recognized tribe establishes its own membership eligibility criteria.  A child may be eligible for membership in more than one tribe.  In that case, all applicable tribes should be notified and it left to their determination as to which tribe will intervene.

 

Two of the four federally recognized tribes, the Passamaquoddy Tribe and the Penobscot Nation have a tribal court system and therefore have exclusive jurisdiction over child welfare cases if the child(ren) reside on one of their reservations or on tribal lands or within other tribal territories.  Therefore the Intake worker will contact the appropriate tribe with the referral information. (See Appendix 1 for contact list.)  It is then the responsibility of the tribe to make the decision regarding the allegations and if the report is appropriate for assignment, referral to the Alternative Response Program or should be screened out.

 

When an emergency removal needs to occur for a child who is domiciled on the reservation but is temporarily off and present elsewhere in the state the standard for removal is different.  You must have imminent physical damage or harm to the child.  If this is present the petition must initially be filed in state court and the petition immediately transferred to the appropriate tribal court.

 

When the referral involves a family living on tribal land of either the Houlton Band of Maliseets or the Aroostook Band of Micmacs the tribe will be contacted and made aware of the referral.  It is policy that the assessment caseworker will partner with the tribal caseworker on the assessment.

 

If the family resides off the reservation the Intake caseworker will contact the tribal child welfare staff to determine the status of tribal membership or eligibility for membership.  If there is no Native heritage or if it is unknown this will also be noted in the Intake report.  If the Intake caseworker has not yet determined if there is Native heritage the question regarding Native heritage will also be asked of any collateral contacts made by the Intake caseworker and documented in MACWIS.

 

Child Protective Assessment:

 

Assignment Activities:

Prior to initiating the assessment, both the supervisor and caseworker are involved in the assignment process.  During this process ICWA status must be identified.  As soon as a case is determined to be an ICWA case the Tribal child welfare agency will be notified and asked to participate in the assessment process.

 

From this point forward the tribal child welfare caseworker will be considered a partner in the case.  The initial assessment with the family will be coordinated with the tribal child welfare caseworkers, who are considered to be equal decision makers.  Assignment activities will be coordinated between the OCFS and the tribal child welfare caseworker.  The tribal child welfare caseworker may have knowledge of the family that OCFS does not have and this should be considered before initial contact is made.  If the Tribal child welfare caseworker is not able to attend the initial visit, the family will be given the name and contact information so they may contact the tribal child welfare caseworker. It is recognized that OCFS has specific timeframes that must be adhered to and the tribal child welfare caseworker may not be available to accompany the OCFS caseworker within these timeframes.

 

Assessment Activities:

1.Review agency history for parent(s)/caregiver(s).  Ask the tribal child welfare caseworker to review their agency history for parent(s)/caregiver(s).

2.Request criminal background check for parent(s)/caregiver(s) as needed and contact local law enforcement to obtain additional information concerning law enforcement involvement and possible caseworker safety issues.  Ask the tribal caseworker to request criminal background checks for parent(s)/caregiver(s) as needed and to contact tribal law enforcement.

3.Follow the rest of the assessment activities for a Child Protection Assessment as stated in the Child Protection Assessment (CPS) Policy. CPS Assessment interviews may be conducted either jointly with the tribal child welfare caseworker or the interviews may be divided between the two caseworkers, (OCFS and Tribal Child Welfare) when appropriate.

4.The Preliminary Safety Decision will include the tribal child welfare caseworker if they were able to participate in the initial contacts.  If they were not able to participate then the tribal child welfare supervisor will be consulted before a decision is made.  If the tribal child welfare staff is unavailable OCFS will proceed with decision making but will document the attempts to consult with the tribal child welfare caseworker and will inform tribal child welfare of the decisions as soon as possible.

5.Engage in Safety Planning whenever signs of danger are present.  The tribal child welfare caseworker will be an equal planner/decision maker in the Safety Planning process.  The services that the Tribal child welfare agency may be able to provide will be considered as part of the safety planning.  If the OCFS caseworker and tribal child welfare caseworker do not agree their supervisors should be contacted to work out a safe plan for the family.

 

Continued Activities:

All CPA Assessment and service case policy will be followed in ICWA cases but the tribal child welfare caseworker and/or supervisor will be included as this is a joint decision process.  DHHS, OCFS may have legal obligations to adhere if a joint decision cannot be reached and the AAG should be consulted.

 

Filing a Petition:

When case circumstances rise to the level of immediate risk of serious harm or jeopardy and a PPO or a straight petition must be filed the tribe or band must, by law, receive written notification.  The legal standard for ICWA cases is different than those standards used in non-ICWA cases.  The standard for removal from home in an ICWA case is clear and convincing evidence that the child is likely to suffer serious emotional or physical damage if returned to either parents’ custody or the child’s Indian custodian.  The tribal child welfare representatives and those other supports they may want to include to support the family will be invited to the Facilitated Family Team Meeting.  Collaborating with the tribe or band during the assessment phase of the case does not negate the official written notification that must be sent.

 

When an emergency removal occurs when a child is domiciled on the reservation but is temporarily off and present elsewhere in the state the standard for removal is different.  You must have imminent physical damage or harm to the child.  If this is present the petition must initially be filed in state court and the petition immediately transferred to the appropriate tribal court.

 

Notification:

For Maine Tribes:  Maine Tribes and OCFS have agreed that notification of a petition being served will occur through the tribes’ child welfare department and should be sent to the Tribal Child Welfare Director by certified mail, except in regard to the Houlton Band of Maliseets who want the tribal child welfare caseworker served in-hand.  We will invite the tribes to participate in all assessments.  When the tribe has stated they do not have the staff available to participate in the assessment and we assess the child needs to be removed, we must contact the tribe to see if they want to file in Tribal court.  Although the partnership on the case activities will have been occurring on the case, the official notification must include service of the Petition.  For tribal contacts for Maine tribes please see Appendix 1.  Cover letters are located in Appendix 2.

 

For Tribes located outside the state of Maine:  Cover letters along with the Notice and Petition must be sent to the tribe if the specific tribe the child is either a member or eligible for membership in is known.  If the specific tribe is not known and verified the Notice and Petition along with the cover letter of inquiry should be send to the tribe and the Notice and Petition and the cover letter to the Eastern Area Director should be sent.  Cover letters are located in Appendix 2.

 

A tribe may request transfer of jurisdiction to an applicable tribal court at any point through the life of the case.  The filing of the petition is the first opportunity for a tribe to request that the case be transferred to tribal court.  The Passamaquoddy Tribe and the Penobscot Nation have a tribal court.  Cases for the Houlton Band of Maliseets and the Aroostook Band of Micmacs are presently held in District Court.  As per the 2002 Agreement with the Houlton Band of Maliseet Indians, they may request a transfer of a case to an applicable tribal court.

 

No child protection hearing may be heard until at least 10 days after receipt of notice by parent, Indian custodian, and tribe. The parent, Indian custodian or Tribes may request, and will be granted, an additional 20 days to prepare for hearing.  The child protection hearing (jeopardy) must be heard within 90 days of the temporary emergency custody order.

 

DHHS must demonstrate to the court that prior to the commencement of the proceeding active efforts have been made to alleviate the need to remove the Indian child from his or her parents or Indian custodians.  These efforts shall take into account the prevailing social and cultural conditions and way of life of the Indian child’s tribe.  They shall also involve and use the available resources of the extended family, the tribe, Indian social services agencies, and the individual Indian caregivers.

 

For tribes outside Maine: ICWA must be followed for children of all federally recognized tribes.  Native heritage must be determined in all cases and when the possibility of Native heritage is determined for a non-Maine tribe that tribe must be notified at the time a Petition is filed.

 

Family Team Meetings/Facilitated Family Team Meetings:

 

The Family Team Meeting (FTM) Policy outlines the decision points where FTM must occur, and the elements of the FTM process, which include preparation, implementation, planning and documentation.  These elements do not change for an ICWA case.  The difference in an ICWA case is that the steps of the FTM must be done in conjunction with the tribal child welfare caseworker from the planning phase, invitations, preparation and determining who will facilitate the meeting.  It is important to remember that the family still needs to be at the core of developing the team members who are invited to the FTM, but just as OCFS has team members who are considered to be essential to planning for the family and must be invited, the tribe may also have team members that are considered essential and must be invited to the FTM.  The two caseworkers will decide together how best to invite and prepare the attendees for the FTM and will communicate before the meeting occurs to ensure the preparation plan was followed.  The two caseworkers will also decide together who will facilitate and scribe the meeting.  It is important that the two caseworkers present a cohesive working relationship to best meet the family’s needs and assist them in planning for their child(ren)’s needs regarding safety, permanency and well-being.  It is important to remember that cultural differences may lead to creative solutions that may be better accepted by the family as well as being more successful.

 

Placement:

 

The OCFS caseworker will make every effort to ensure that the placement of a child in an ICWA case, in both an emergency and non-emergency situation, be done in conjunction with and has the approval of the tribal child welfare agency.  When this is not possible the tribal child welfare agency will be notified as soon after the placement as possible.

 

Placement of a child in an ICWA case should be made in consultation with the tribe.  The standards to be applied in Indian child placements will be the prevailing social and cultural standards of the Indian tribe in which the parent or extended family member maintains social and cultural ties.  It is important to remember these standards are defined by each tribe and not by the OCFS caseworker.

 

Unless the Court has made a judicial finding that there is good cause to deviate from ICWA placement preferences or the child’s tribe has established a different order of preference, the order of placement preference will be as follows:

1.A member of the Indian child’s extended family (either Native or non-Native).  It is important to remember that a ‘relative placement’ may be defined by the Tribe.

2.A foster home licensed, approved, or specified by the Indian child’s tribe.

3.An Indian foster home licensed/approved by an authorized non-Indian licensing authority.

4.An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.

5.When no preferred placement is available as specified above, active efforts will be made to place the child with a family committed to enabling the child to have extended family visitation and participation in the cultural, spiritual, religious and ceremonial activities of the child’s tribe.  This placement decision will be made in conjunction with the tribal child welfare caseworker.  It will be important in these situations that the tribal child welfare caseworker has an opportunity to meet with the foster family prior to placement to explain what these expectations will entail.

 

Family Reunification:

 

Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.  25 U.S.C. § 1912(d). Maine Law Court has interpreted this provision to mean that all reasonable efforts to provide parents with rehabilitative services have been exhausted.

 

Family reunification is the primary goal when a child has been removed from their family. The family reunification plan that is developed, in conjunction with the parents, should also be developed in partnership with the tribal child welfare caseworker.  It is important to consider and utilize the resources the tribe can bring to support the family.  The tribe may have an already established relationship with extended family members who may also support the family during and after the reunification process.  The services offered should be culturally supportive and the tribe, if they chose to, should arrange for the counseling services if needed.

 

The reunification plan as outlined in policy and law applies to ICWA cases as well, with the distinction being that the plan development and monitoring must be done jointly with the tribal child welfare caseworker.  Both caseworkers should be in agreement on the jeopardy that needs to be ameliorated before the child can be returned home.  If there is disagreement then the supervisors should be consulted. If a resolution cannot be reached the AAG should be consulted.

 

Concurrent Planning:

 

In all cases concurrent planning is a vital component in moving a child toward permanency.  Steps toward permanency should be a topic of all FTMs and decisions must be made jointly between the two caseworkers and the family.  In ICWA the discussions regarding permanency time frames and options for families are extremely important to have with both the tribe and the family.  In some tribal cultures adoption is not the preferred permanency option.  When working with a tribe who is opposed to adoption if a child cannot be reunified with a parent, Permanency Guardianship should be considered and discussed with tribal child welfare, regardless of the child’s age.  Steps toward permanency should be a topic of all FTMs and decisions must be made jointly between the two caseworkers and the family.

 

Permanency:

 

Permanency for children in ICWA cases is as urgent as it is in all cases; however Native American heritage provides compelling reasons not to file a petition to terminate parental rights when the child has been in foster care 15 out of the most recent 22 months.  A concurrent plan will be developed with the tribal child welfare caseworker and the family.  The inclusion of the tribal child welfare caseworker is expected through the life of the case, but is critical in the development of the alternative permanency plan as different tribes and bands have different cultural norms regarding permanency guardianship and adoption.  The termination of parental rights is not an acceptable outcome in all tribes or bands and the views of the child’s tribe or band should be explored before an alternate goal of adoption is selected.  Some tribes or bands have other alternate permanency options reflective of their tribal customs.

 

Permanency Guardianship and Adoption:

 

The Permanency Guardianship Policy and the Adoption Policy, when the tribe agrees to the termination of parental rights and adoption, is the same for Native and non-Native children so there are no differences in this policy for ICWA cases.  However, if families would like the adoption legalization hearing to occur in tribal court rather than in Probate Court, this can be arranged.

 

Transitional Living:

 

The Transitional Living Policy is the same for Native children as it is for non-Native children as well as an additional tuition waiver program.  Indian children, as foster children in custody, qualify for the tuition waiver slots.  However there is a separate waiver program that also applies to Native children.  To qualify the youth must be:

A member of a Federal, State or Provincially recognized tribe

 or,

Must be a direct descendent of one of those tribes (either a child or grandchild).  To access information the caseworker or youth should contact the university directly to complete the paperwork and/or talk to the tribe’s child welfare caseworker.

 

Resource Homes:

 

The approval of Native American resource homes either on the reservation or within other tribal lands is conducted by the tribe or band.  The approval process of Native American resource homes not on the reservation or other tribal lands can be conducted by either the tribe or band, if they choose, or they can request that OCFS conduct the licensing of the home.

 

If a foster home is approved by the tribe or band it will be accepted as an approved resource home and entered into MACWIS as a tribally approved home when the following has occurred:

1.The tribe or band has completed a home study and the family has met the approval standards developed by the tribe.

2.The tribe or band has forwarded a copy of the home study to the OCFS Resource Unit Supervisor.

3.The background checks have been completed and forwarded to the OCFS Resource Unit Supervisor.  The background check includes:

a.A criminal background check through the State Bureau of Investigation

b.A criminal background check through the tribal legal system

c.A fingerprint check

d.BMV records

e.A child protective background check both through the state of Maine OCFS and tribal child welfare

4.The tribe or band may opt to have OCFS complete the background checks.  If this is done they must still provide OCFS with the tribal criminal background check and tribal child protective check.

 

 

 

 

APPENDIX 1

 

Contact Information for Federally Recognized Tribes in Maine

 

Aroostook Band of Micmac Indians

Tania Paul, ICWA Coordinator

7 Northern Road

Presque Isle, ME  04769

Telephone:  (207) 764-1972

 

Houlton Band of Maliseet Indians

Tiffany Randall, ICWA Director

13-2 Clover Court, Houlton, ME  04730

Telephone:  (207) 532-7260

 

Passamaquoddy Tribe of Maine

Indian Township Reservation

Dolly Barnes, Child Welfare Director

P.O. Box 97

Princeton, ME  04668

Telephone:  (207) 796-5079

 

Passamaquoddy Tribe of Maine

Pleasant Point Reservation

Molly Newell, Child Welfare Director

P.O. Box 343

Perry, ME  04667

Telephone:  (207) 853-2600

 

Penobscot Indian Nation of Maine

Sonya LaCoute-Dana, Human Services Director

9 Sarah’s Spring Road

Indian Island, ME  04468

Telephone:  (207) 817-7492

 

 

 

 

 

 

APPENDIX 2

 

Cover Letters

 

 

Example of cover letter sent to Child’s Tribe

Letter would be sent on DHHS/OCFS letterhead, and text in

Italic font would be individualized to the case/situation.

This is be sent ‘Certified Mail, Return Receipt Requested’,

with a complete copy of the Notice and Petition.

Consult with your Assistant Attorney General as needed.

 

 

(Date)

 

(Name of Tribe)

(Address of Tribe)

 

RE:  DHHS IN RE: (JANE DOE, d.o.b.: _____)

 

To Whom It May Concern (for Maine Tribes use the name on the contact list in Appendix 2):

 

 Enclosed please fine a Notice of State Court Involuntary Proceeding: Petition for Child Protection Order.  A (type of hearing) is scheduled for (date) at the (name of) District Court.

 

 If you have any questions, please feel free to contact me directly at (207-phone #).

 

Sincerely,

 

 

DHHS Caseworker

State of Maine Department of Health & Human Services

Office of Child & Family Services

(Address)

(Phone #)

 

 

cc: (name of AAG), AAG

 

Cert. No.: (add # here)

Example of letter of inquiry sent to Tribe

Letter would be sent on DHHS/OCFS letterhead, and text in

Italic font would be individualized to the case/situation.

This is be sent ‘Certified Mail, Return Receipt Requested’,

with a complete copy of the Notice and Petition.

Consult with your Assistant Attorney General as needed.

 

(Date)

 

(Name of Tribe)

(Address of Tribe)

 

RE:  DHHS IN RE: (JANE DOE, d.o.b.: _____)

 

Dear (Name of Tribal Child Welfare director), OR: To Whom It May Concern:

 

 I am a (Title) Caseworker with the Department of Human Services in (Name of city), Maine who has been assigned to assess a family that has reported they have (Name of Tribe/Band) heritage.

 

 (Provide details of the family lineage from the father and his relatives, and from the mother and her relatives.  Information includes names (including maiden names), dates and places of birth, dates of death – if any and any reported Tribal affiliation.)

 

 Is this family recognized by the (Name of Tribe/Band)?  If so, would (Name(s) of Parent(s)) and/or their children (Name of Child, d.o.b. :_______) be eligible for enrollment with the (Name of Tribe/Band)?

 

 Should you have any other questions or need more information, please contact me at (207-phone #).

 

Sincerely,

 

DHHS Caseworker

State of Maine Department of Health & Human Services

Office of Child & Family Services

(Address)

(Phone #)

cc: (name of AAG), AAG

Cert. No.: (add # here)

 

Example of cover letter sent to Eastern Area Director,

Bureau of Indian Affairs

Letter would be sent on DHHS/OCFS letterhead, and text in

Italic font would be individualized to the case/situation.

This is be sent ‘Certified Mail, Return Receipt Requested’,

with a complete copy of the Notice and Petition.

Consult with your Assistant Attorney General as needed.

 

(Date)

 

Eastern Area Director

ATTN: (________)

Bureau of Indian Affairs

545 Mariot Drive, Suite 700

Nashville, TN  37214

 

RE:        DHHS IN RE: (JANE DOE, d.o.b.: _____)

 Docket No.: (00000)

 

To Whom It May Concern:

 

 Enclosed please fine a Notice of State Court Involuntary Proceeding: Petition for Child Protection Order.  A copy of this Notice is being provided pursuant to 25 CFR 23.11.  Please be advised that notification of this proceeding has been provided to the following tribe(s):

 

(List Tribe(s), Address to whom Notice has been sent)

 

 If you have any questions, please feel free to contact me directly at (207-phone #).

 

Sincerely,

 

DHHS Caseworker

State of Maine Department of Health & Human Services

Office of Child & Family Services

(Address)

(Phone #)

 

cc: (name of AAG), AAG

Cert. No.: (add # here)

Example of cover letter sent to Secretary of the Interior

Letter would be sent on DHHS/OCFS letterhead, and text in

Italic font would be individualized to the case/situation.

This is be sent ‘Certified Mail, Return Receipt Requested’,

with a complete copy of the Notice and Petition.

Consult with your Assistant Attorney General as needed.

 

(Date)

 

(Name), Secretary of the Interior

U.S. Department of the Interior

1849 C Street NW

Washington, DC  20240

 

RE:  DHHS IN RE: (JANE DOE, d.o.b.: _____)

 

Dear Secretary (Last Name):

 

 Enclosed please fine a Notice of State Court Involuntary Proceeding: Petition for Child Protection Order.  A copy of this Notice is being provided pursuant to 25 CFR 23.11.  Please be advised that notification of this proceeding has been provided to the following tribe(s):

 

(List Tribe(s), Address to whom Notice has been sent)

 

 If you have any questions, please feel free to contact me directly at (207-phone #).

 

 

Sincerely,

 

DHHS Caseworker

State of Maine Department of Health & Human Services

Office of Child & Family Services

(Address)

(Phone #)

 

 

cc: (name of AAG), AAG

 

Cert. No.: (add # here)

 

 

APPENDIX 3

 

Tribal Agreements

 

INTERGOVERNMENTAL AGREEMENT:

HOULTON BAND OF MALISEET INDIANS AND STATE OF MAINE
 

WHEREAS, the Houlton Band of Maliseet Indians (“Tribe”) is a Federally Recognized Tribe; and

WHEREAS, the State of Maine (“State”) currently provides child welfare services to the Tribe; and

WHEREAS, The United States Congress did in 1978 enact the Federal Indian Child Welfare Act, Public Law 95-608 (Codified at 25 §§ 190), et. seq. (“ICWA”); and

WHEREAS, the goal of ICWA is to place Indian children in Indian homes so that the Tribe’s culture can subsist in the future; and

WHEREAS, Both the State and the Tribe agree that Indian children and families deserve to receive the same level of services and protection form harm as non-Indian children and families, whether they live on or off the reservation, and also deserve the protections afforded them by ICWA;

WHEREAS, The Tribe has not had a Tribal Court available to assume jurisdiction of child welfare cases until now;

WHEREAS, The Tribe has entered into an agreement to use the services of the Tribal Court of the Penobscot Nation or the Passamaquoddy Nation as its own Tribal Court, until the Tribe has established its own Tribal Court;

WHEREAS, Both the State and the Tribe agree the appropriate care and placement of the Tribe’s children is essential to the cultural integrity of the Tribe; and

WHEREAS, Both parties want to improve the care and placement of the Tribe’s children, protect the children and ensure the preservation of the Tribe’s culture.

 

NOW THEREFORE BE IT RESOLVED, that the State and the Tribe shall enter into an Intergovernmental Agreement that meets the requirements of ICWA, as authorized by 25 USCS § 1919;

 

BE IT FURTHER RESOLVED, that the Tribe shall enter into a separate agreement with the Penobscot Nation to use the Penobscot Tribal Court or the Passamaquoddy Tribe to use the Passamaquoddy Tribal Court as the Tribe’s Tribal Court, until such time as the Tribe shall establish its own Tribal Court, and the Tribe will adopt a Chill Welfare Code and Policy, as well as foster home licensing rules;

 

BE IT FURTHER RESOLVED, that the Tribe will put in place a social services team, including social workers. To manage the care of any children of the Tribe who are in need of child protection services;

 

BE IT FURTHER RESOLVED, that for purposes of this agreement and for purposes of the application of ICWA and without prejudice to any party in any other discussion, disputed or contested matters, the Trust Lands held by the Tribe are defined as reservations(s).

 

BE IT FURTHER RESOLVED, that at the request of the Tribe, the State will request that the District Court transfer all pending child welfare and adoption cases to the Tribal Court in accord with ICWA, and request that any new actions filed in District Court be transferred to the Tribal Court in accordance with ICWA;

 

BE IT FURTHER RESOLVED, that the State will assist the Tribe in its efforts to reclaim its most valuable resource – its children, by providing funding and services when necessary to effectuate the goals of ICWA, as specified herein.

 

I. History.  In 1978, the United States congress passed Public Law 95-608, the federal Indian Child Welfare Act (codified at 25 USC §§ 1901 et. seq.) (ICWA).  Prior to the passage of ICWA, Indian children were being adopted and placed in foster care at a much higher rate than other children.  As a result, Indian children were losing all contact with their families, tribes, and cultural traditions.  Indian Tribes were becoming non-existent as their populations dwindled.  ICWA attempted to remedy this by stating that “there is no resource…more vital to the continued existence and integrity of Indian tribes than their children” and that child welfare agencies had failed “to recognize the essential tribal relations of Indian people and the culture and social standards prevailing in Indian communities and families.’ (25 USC § 1901).

 

As a result of ICWA, Indian children are entitled to all rights given to other children with a higher standard of protections for the rights of Indian families to ensure that whenever possible, Indian families stay together.  If it is not possible for children to remain with their parents, ICWA specifies and order of preference for placement of Indian children that favors placement with the extended family, the Tribe, or other Indian custodians.

 

In 1976, the Federal Indian Policy Review Commission found that in the early 1970’s Indian children in Aroostook County were placed in foster homes at a rate of 62.4 times (6,240 percent) greater than the Statewide rate for non-Indians. (Final Report of the Federal Indian Policy Review Commission: Task Force Four: Federal, State and Tribal Jurisdiction, p. 205).  This situation was brought to the attention of the Congress during consideration of the Indian Child Welfare Act.  (Senate Select Committee on Indian Affairs 95th Cong. 1st Session on S. 1214, the Indian Child Welfare Act of 1977, pp. 343-349.)  The Tribe now intends to assume more responsibility under ICWA and reach an agreement with the State on child welfare matters to ensure the appropriate placement of the Tribe’s children in the future.

 

Because the Tribe has not had a Tribal Court, the Tribe has not been able to have its child protection cases heard by a Tribal Judge.  All Maliseet child protection cases have been heard solely in the State court, which is not satisfactory to the Tribe.  The Tribe has not had a tribal child welfare system until this time, and therefore has relied on the State for casework and foster care licensing. While the State and the Tribe have made efforts to recruit foster parents, there are a limited number of Indian foster homes available for placement.

 

II.Summary of ICWA.  ICWA protects the integrity and longevity of Indian tribes by preventing the removal of Indian children from their families absent certain safeguards.  ICWA accomplishes this through the following (The following statements are only provided as a summary and are not intended to amend or replace the actual ICWA provisions).

 

A.Requiring that active efforts be made to identify a child’s membership or eligibility for membership in and Indian Tribe.

B.Recognition of the jurisdiction of Indian Tribes and Tribal Courts.

C.Providing for exclusive jurisdiction of Indian Tribes over child custody proceedings involving an Indian child who resides or is domiciled on the reservation.

D.Providing for transfer of child custody proceedings to the jurisdiction of the Indian child’s tribe, absent objection by either parent, upon the petition of either parent of the Indian custodian or the Indian child’s tribe, provided that such transfer shall be subject to declination by the tribal court of such tribe.

E.Requiring that the State give full faith and credit to the public acts, records and judicial proceedings of any federally recognized Indian Tribe regarding child welfare proceedings.

F.Requiring state courts, in the placement of Indian children, to observe a high standard in order to promote the continuity of Indian families.

G.Requiring compliance with the order of preference for placement of Indian children as set forth by ICWA, or by the Tribe if the Tribe has selected and offer of preference compatible with its own history, culture and traditions.

H.Requiring notice to tribe(s), Indian parents and custodians of state court child custody proceeding involving Indian Children.

I.Providing for the right of parents, custodians, and Tribes to intervene as parties to any State court proceeding.

J.Providing for court-appointed lawyers to represent indigent parents and court-appointed guardians ad litem to represent Indian Children.

K.Providing protections for the parents who voluntarily place their child in foster care of terminate their parental rights.

L.Recognition of Tribal licensing and/or approval of standards for foster homes, group homes, and adoptive families, and social services.

M.Funding of Tribal social services to Indian families for use in connection with child welfare goals.

N.Providing for a process to invalidate the State court actions when ICWA has been violated.

O.Assisting adults who were adopted out of their Tribes to research Tribal affiliation.

 

III.Purpose.  This Agreement was developed to ensure that the Houlton Band of Maliseet Indians (“Tribe”) have maximum participation in determining the disposition of cases involving the Tribe’s children.  Both parties agree that the history of child welfare and adoption services within the Tribe have ceded authority to the State and resulted in placement outside of Maliseet homes.  Additionally, both parties agree that it is in the Tribe’s best interest to certify more foster and pre-adoptive homes, have a larger social-services network that allows the Tribe and State to work cooperatively to protect Indian Children and families.

 

The Agreement outlines the rights and responsibilities of both the State and the Tribe under ICWA and governs all proceedings having to do with the placement of the Tribe’s children.

 

The Agreement provides for the confidential exchange of information regarding Indian families so that Tribe and the State can work cooperatively to give Indian families the best possible resources available.

 

III. Legal Authority.  25 USC § 1919 authorizes States and Indian Tribes to enter into Intergovernmental Agreements involving the care and custody of Indian children.  Because the State is responsible for all children in its jurisdiction, 42 USC §670, et.seq. (Social Security Act) authorizes Tribes to enter into agreements with States for child welfare assistance monies and adoption assistance.

 

IV.   Jurisdiction.  The parties acknowledge and agree that the Tribe has jurisdiction over child custody proceedings as described by ICWA.  This jurisdiction extends to all of the Tribe’s children who are members or eligible for membership under the Tribe’s definition, regardless of whether domiciled on the Reservation or not.

 
The parties agree that in order for the Tribe to meaningfully participate in the placement of its children, notice must be made to the Tribe every time the custody or care of a Tribal child is at issue.
 
The Parties agree that it is in the best interest of the Indian Children and families and the Tribe for the Tribe to take jurisdiction of existing cases and all future cases as contemplated by ICWA.

 

V.Full Faith and Credit.  The parties agree to provide full faith and credit for the public acts, records, and judicial proceedings of the other in matters governed by the Agreement.

 

VI.Interpretation of Agreement.  This Agreement shall be construed liberally so as to achieve results consistent with ICWA and this Agreement.  The following guidelines shall be followed:

 

A. Indian Families should be preserved;

B.Cases involving the Tribe’s children should be heard in a Tribal Court whenever possible.

C.Indian children who must be removed from their homes should have placements within their own families or Tribe.

D.The State and the Tribe will collaborate on child welfare and custody decisions for children who remain in the custody of the State.  The State will defer to Tribal determinations on child welfare and custody, unless the State believes that such Tribal determinations pose a risk to the child. Where the State disagrees with the Tribal determination and makes a different determination, the Tribe retains the right to raise the issue in the appropriate forum.

 

VII.  Definitions

 
       The following definitions shall apply to this Agreement, unless otherwise indicated:

 

A.“Adoption” means the permanent placement of an Indian child for adoption that results in a final decree of adoption.

B.“Active Efforts” means active and thorough efforts by the State and Tribe social services agencies to fulfill its obligations of ICWA and this Agreement and to keep the child in the home as a first priority.

C.“Best Interests of the Indian Child” means the standard of review required under ICWA.  Meeting the Best Interests of the Indian Child recognizes the importance of maintaining connections with the family and with the Tribe.

D.“Case Plan” means a written plan prepared by the Tribe’s social services department that documents the reasons the child is under the jurisdiction of the Court and the steps that must be taken in order for the child to receive a permanent placement.

E.“Custodian” means a person over 18 years of age who has custody of a child but does not have parental rights.

F.“Department of Human Services (DHS)” means the Maine State Department of Human Services.

G.“Dispositional Review Hearing” means any scheduled court hearing to review the status of the child and family.

H.“Domicile” means a person’s true, permanent home, or the place that the person intends to return even though the person is actually residing elsewhere; a child’s domicile is determined by the domicile of his/her custodial parent(s) and/or guardian or custodian.

I.“Guardian” means a person over 18 years of age who has legal custody of an Indian Child as so ordered by a court but who does not have parental rights.

J.“Extended Family” shall be defined by the Tribe.  Should the Tribe fail to identify a child’s Extended Family.  Extended Family shall mean a person who is at least eighteen (18) and who is the child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first cousin, second cousin, or step-parent.

K.“Foster Placement” means any and all initial and subsequent actions involving the removal of an Indian child from its parents or Indian guardian or custodian for temporary placement in a foster home or institution or the home of a guardian or custodian, where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated.

L.“ICWA” means the Indian Child Welfare Act, 25 USC §§ 1901, et.seq.

M.“Imminent physical danger” means a threat of immediate physical injury to an Indian Child.

N.“Indian” means any person who is a member of any Indian Tribe, or who is an Alaska Native as defined in the Alaska Native Claims Settlement Act (43 USC § 1602(g)).

O.“Indian Child” means any unmarried person who is under the age of eighteen (18) and is either (a) a member of an Indian Tribe or (b) is eligible for membership in an Indian Tribe and is the biological child of a member of an Indian Tribe.

P.“Indian Tribe” means any Indian tribe, band, nation, or other organized group or community of Indians that is federally recognized.

Q.“Legal Custody” means the legally enforceable duty, responsibility, and authority to provide care and control of a child as interpreted by the State court or the Tribal Court when transferring legal responsibility for care form a parent, custodian, or guardian to the Tribe, DHS, the Tribal Court, or individual pursuant to a court order.

R.“Notice” shall mean the notification of the Tribe that an Indian Child is the subject of a foster placement or adoption hearing according to ICWA and the Agreement.

S.“Order of Placement” shall mean the following order of preference in placing Indian Children, unless the Tribe determines a different order of preference:

1.Member of a Child’s Extended Family;

2.Other member of the Child’s Tribe;

3.Other Indian family; or, if the above cannot be met,

4.Non-Indian family.

T.“Qualified Expert Witness” is a person who is a member of the Indian Child’s Tribe who is recognized by the Tribe as familiar with the Tribe’s custom and organization as the child-rearing or a lay expert witness who has substantial experience in his or her field or a certified professional who has substantial education and experience with Indian Children.  “Qualified Expert Witness” as used here has the same meaning as the term is used in the Indian Child Welfare Act.

U.“Termination of Parental Rights” (TPR) means any actions by the State or the Tribe resulting in the permanent severing of the parent-child relationship.

V.“Tribal Court” shall mean any Court authorized by the Tribe to uphold the Tribe’s laws, regulation and customs.

W.“Tribal Social Services Agency” means the Tribal departments with responsibility for implementing ICWA and/or the provision of social services to Indian families.

X.“Ward of Tribal Court” shall mean a child who is deemed in need of services and has been placed in this custody of the Tribal Court.  A child may be a Ward of Tribal Court without being available for adoption within the State.

 

VIII. Agreement with State of Maine

 

A. The State desires to assist the Tribe in protecting its children and promoting the future of the Tribe.  Therefore, the State agrees to do the following:

1. Notify the Tribe whenever an Indian Child is at risk of placement, and offer an opportunity to intervene by the Tribe to avoid placement by DHS.  When a case has been assigned to a caseworker, the State will notify the parents of the parents’ option to notify the Tribe and to seek services from the Tribe.

2.Establish a system of regularly scheduled training for DHS staff that will emphasize the importance of identifying an Indian Child’s Tribal affiliations and extended family for placement purposes.

3.Make training programs for caseworkers and foster parents available to any potential foster parents or caseworkers for the Tribe;

4.Provide notice to the Tribe and for intervention by the Tribe in cases of child custody proceeding.

5.Provide appropriate notice to the Tribe for administrative hearings and reviewing of child custody proceedings that involve an Indian Child.

6.Provide the Tribe a copy of any court decrees regarding adoptions of Indian Children of the Tribe.

7.Provide any information to a Tribe, adoptive family or Indian Child that may be necessary to establish membership.

8.Maintain records on Indian Children in residential facilities including group homes and foster homes, including the extent of compliance with placement preferences in ICWA.

         

B.Funding Issues:  The State and or DHS will do the following to assist with funding:

1.To the extent possible, assist the Tribe in obtaining state and federal funding to facilitate the Tribe’s ability to provide services that address the conditions in a child’s home to support the goal of family preservation.  This means that the State will do the following:

 

a.Promote access by the Tribe to services available with providers who have contracted with the State by providing information and any necessary authorizations;

b.Advocate for direct funding to the Tribe by the federal government through Title IV-E of the Social Security Act, and/or work to develop an agreement to pass through IV-E funds to the tribe; and

c.Assist the Tribe to maximize funding available through Medicaid, including the provision of technical assistance.

 

IX.        Implementation of Agreement.

 

A.Timing.  The State agrees that all child welfare and pre-adoption cases currently open involving an Indian Child shall, upon request of the Tribe, be transferred to Tribal Court, absent an objection by either parent and subject to declination by the Tribal Court.  Tribal Court will hear the case at the next dispositional review hearing.

B.Notice.  The State shall review all cases currently active in DHS to ensure that proper notice was given to the Tribe under ICWA and this Agreement.  The State will take corrective action in cases where no notice or improper notice was given to notify the Tribe immediately of the error.

C.Confidentiality.  DHS shall disclose confidential information to the Tribe in any case where the Tribe has exercised its right to intervene in support of the purposes of ICWA.  DHS will comply with any State or Tribal Court order requiring disclosure of such information.  The parties will execute a confidentiality agreement to ensure that the confidentiality of cases that are exchanged between the Tribe and the State is protected.  The Tribe will share confidential child protection information with the State where the State has initiated a child protection investigation and the Tribe has relevant information about the family.  Both parties recognize the importance of confidentiality in child welfare proceedings and will train their staff on how to ensure such confidentiality.

D.Training and Preparation.  Whenever possible the State shall assist the Tribe in training and preparing staff for the ICWA caseload.  The State and the Tribe will work collaboratively to make training available at least two times per year.  DHS caseworkers, at the request of the Tribe, shall work directly with counselors from Tribal Social Services to ensure a smooth transition for the families.

E.Continuing DHS Responsibility for Services.  DHS shall continue to be responsible for cases until they are completely transferred to the Tribe’s jurisdiction and custody has been transferred to the Tribe, Tribal Court or other entity.  The parties agree that the transfer to Tribal Court includes a transfer of custody from DHS to the Tribe, the Tribal Court or other entity specified in the transfer order.

F.Procedures for cases in Tribal Court.  Within 120 days of the signing of this Agreement, the State and the Tribe shall work together to create procedures for identifying the Tribe’s children currently in the custody of DHS, effecting Tribal Court jurisdiction over new cases, and transferring continuing cases to Tribal Court.  The State and the Tribe shall also establish written policies for the implementation of the Agreement that each party will follow.  A copy of these procedures will be provided to all DHS employees, Tribal social services employees, State and Tribal Court judges and clerks and al others whose actions or activities may fall under this Agreement.

G.Compliance Agreement.  The Tribe and DHS agree to each appoint an individual to be designed for working with ICWA compliance.  This compliance “team” shall meet quarterly with Tribe and State specialists to review procedures created under this Agreement and propose any new procedures required to improve services in the future. The team will review any Indian Child cases in State or Tribal Court upon the request of a social worker from either the Tribe or the State, to examine ICWA compliance and make recommendations to the parties.

H.Sanctions for Non-Compliance.  The State and the Tribe shall work together to determine appropriate sanctions for violations of ICWA and this Agreement.  At a minimum sanctions will include further monitoring of the situation, and may include a corrective action plan.

I.Inter-Agency Coordination.  The Tribe and DHS agree to coordinate with the other agency to implement the terms of this Agreement.  Such coordination will include training, on-going consultation, developing and negotiating agreements with other agencies, and any appropriate measures to ensure that this Agreement is understood and effectively implemented.

 

X.Training.  DHS shall require its state child welfare professionals who handle cases dealing with Indian Children, and strongly encourage private agencies who work with child welfare and placing Indian Children, to require their staff members to receive training specific to the Indian Child Welfare Act and this Agreement. Additionally, the Tribe shall require that its social service workers and court personnel attend such training.

 

A.This training shall include (but not be limited to) the following areas:

1.Procedures to implement ICWA and this Agreement,

2.Notice Requirements,

3.Provision of protective services,

4.Provisions of emergency foster care placement services,

5.Legal requirements to complete involuntary foster care placement or termination of parental rights,

6.Voluntary foster care placement,

7.Applicability of placement preference standards,

8.Record maintenance,

9.Adoption of Indian Children; and

10.Cultural issues affecting the Tribe

 

B.The tribe will develop and deliver training in collaboration with the State to promote knowledge and understanding of the following:

1. Behavioral issues that come with the clashing of two sets of cultural norms;

2.Socio-economic factors effecting the Tribe;

3.Historical relationship with the State and child welfare personnel;

4.Parenting skill support;

5.Reality that parent “substitutes” may have raised children;

6.Extended family and non-family members who are family-like in their relationship to the Indian Child; and

7.Any other issues specific to the child’s Tribe or the area.

 

C. DHS agrees to assist with logistics and funding for these trainings.

 

XI.        Transfers to Tribal Social Services Agencies and to Tribal Courts.

 

A. Mandatory Transfers.  The parties agree that except for an emergency or an objection by a parent, in the absence of good cause to the contrary, all child protection proceedings in Indian Child cases, at the request of the Tribe, must be transferred to the Tribal Social Services agencies for appropriate action in Tribal Court or directly to Tribal Court.

B.Transfer Procedures.  The parties further agree that the procedures they develop will include procedures for identifying cases that trigger ICWA and this Agreement, preferably prior to any action being taken in State court. The State agrees that it will provide training to DHS workers to help them identify the Tribe’s children and notify the “Tribe when such a child has been reported to that agency.

C.Emergencies.  The parties shall establish written procedures for identifying emergencies and providing for placements that are temporary until a placement under ICWA and this Agreement can be secured.

D.Review of Indian Children currently in placement.  Within 120 days of the implementation of this Agreement DHS shall review all of its cases involving Indian Children.  If the State of Tribe learns of a placement that fails to meet the placement preferences or the good cause exception in ICWA, DHS will work with the Tribe to develop a plan that is satisfactory to all parties.

 

XII.        Funding Issues

 

A.Foster Care Maintenance Payments.  The parties agree that families providing family foster care for Indian Children in the custody of DHS shall be paid the customary maintenance amount that DHS would have provided the family had they been fostering a non-Indian Child.

B.Sections XII (C) and (D) of this agreement below, where a child is in Tribal custody and is adopted, will become effective upon the implementation of an agreement between the Department and the Tribe to pass through federal IV-E funds to the Tribe and then following a change in the Adoption rules to allow the Department to use state funds for adoption assistance in this situation.

C.Adoptive Placement Costs.  A child placement agency responsible for the pre-adoptive placement of Indian Children shall be reimbursed at the usual and customary rate for such costs form the State.  The State will work with the Tribe to develop a Tribal placement agency that will receive the usual and customary rate from the State.

D.Adoption Assistance Payment.  DHS, in coordination with the Tribe’s social services department, agrees to provide adoption assistance payments to approved adoptive parents who have obtained a child through a Tribal Court proceeding, provided that the child and the parent meet all of the eligibility requirements set out in 42 USC § 670, and state law (Maine Title 18-A, Article IX Part 4 and the Maine Rules for Adoption Assistance) or the Tribe’s adoption standards.

E.Future Funding.  DHS also agrees to provide assistance to the Tribe to identify, evaluate and obtain other social service funding.

 

XIII.        Recruitment and Registry of Foster Homes and Adoptive Homes.

 

A.Recruitment.  The parties agree to cooperate in a joint effort to develop a plan to recruit Indian foster and adoptive homes. The recruiting plan may include public advertising and other means likely to secure appropriate Indian homes.  DHS shall provide training to assist potential Indian foster care providers to comply with the State and Tribe licensing requirements for foster or adoptive care.

B.Registry.  The parties agree to establish and maintain a registry of all Indian Homes licensed by the State of Maine, licensed or approved by the Tribe and available to receive Indian Children for foster care or adoption.  The registry will identify the name, address, tribal affiliation of the home, whether the home is licensed or registered with the State or the Tribe, and whether the home is available for foster or adoptive placement or both.  The registry will be established by the State and maintained collaboratively by the Tribe, the State and any other tribe that wishes to participate.  The registry will be accessible by both the Tribe(s) and the State.

 

XIV.        Inter-State Issues.

 

A. If another state requests that the Department assume responsibility for a child that the other state wishes to place in Maine, the Department will ask the Tribe to determine whether or not the child is a member of or eligible for membership in the Tribe and will subsequently notify the Tribe.  The Department will refuse to accept responsibility for the child until a mutually developed plan for the child has been established between the Tribe and the Department.

B.When DHS makes a request to another state that an Indian Child be sent there for the purpose of foster care or pre-adoptive placement, a copy of the request shall be sent at the same time to the Child’s Tribe.

C.Retention of Jurisdiction. The sending state or Tribe shall retain jurisdiction over the Indian Child until the receiving state or the Tribe has accepted jurisdiction of the case.

 

XVI.Coordination of Agencies.  DHS will notify all other State agencies currently associated with the care or protection of Indian Children, about the existence and contents of this Agreement and will coordinate other state services that support the goals of this Agreement.  Nothing in this agreement obligates other state agencies that are not a party to this agreement to take or refrain from any specific action.

 

XVII. Dispute Resolution. The parties agree that, upon the request of either party, disputes arising under this Agreement shall be submitted for resolution to a dispute resolution “team” consisting of one DHS designee, one Tribe designee and a third member selected by both the DHS and the Tribe.  A dispute shall only be referred to the dispute resolution team after other informal efforts at resolving the dispute have been unsuccessful.  The parties agree to be bound by the decision of the dispute resolution team.  Each party will have an opportunity to be heard by the team as to the merits of its position.  The decision of the team will be in writing.  The parties to this agreement will develop rules and procedures as to how the team’s hearing will be conducted.

XVIII. Amendment of Agreement.  The parties agree that amendments to this Agreement shall be in writing and must be agreed to by both parties.

 

XV.   Termination of Agreement.  This Agreement shall remain in effect until revoked.  Either party may revoke giving sixty (60) days written notice to the other, provided that any services provided under this Agreement do not lapse until provisions have been otherwise made.

 

XVI.Severability Clause.  Should any clause in this Agreement be deemed invalid or unlawful, the rest of the Agreement shall still be binding and remain in full force and effect.

 

This agreement was signed on September 16, 2002 by Brenda Commander, Tribal Chief, Houlton Band of Maliseet Indians; Kevin Concannon, Commissioner, Department of Human Services, State of Maine; and G. Steven Rowe, Attorney General, State of Maine.

 

 

 

 

 

 

Child Welfare Agreement

Between the Maine Department of Human Services and

The Penobscot Indian Nation

 

I.Introductory Statement

 

Protection of children who are suspected to be or are victims of abuse or neglect is a goal of the Department of Human Services (DHS) and the Penobscot Indian Nation (PIN).  Both agree to work cooperatively toward this goal.  Furthermore, if jurisdiction is not clear, nothing in this agreement is to prevent either the State or the nation from taking what action it believes necessary to protect a child from immediate risk of serious harm, provided the other is notified and jurisdiction established as soon after as possible.  This agreement is intended to advance, and not to in any way impede or inhibit, cooperation between DHS and PIN toward the goal of protection of children.

 

II.Definitions

 

Child Protective Referral:

A written or oral report from a person who knows or has reasonable cause to suspect that a child has been or is likely to be abused or neglected.

 

Child Protective Services:

 

Receipt and investigation of referrals of suspected child abuse or neglect, case planning, referral to appropriate services and resources, and case management toward the elimination or alleviation of child abuse or neglect of a child in his own home, initiation of court action to protect child.

 

Indian Child:

 

An unmarried person who is under age eighteen and is either (a) a member of a federally recognized Indian tribe or Alaskan native group; or (b) is eligible for membership in such a tribe or group and is the biological child of a member of such a tribe or group (Reference 25.U.SC. 1903).

 

Intake Study:

 

The process of fact gathering and assessment by which a referral for child protective services is received and the decision is made whether there is risk of child abuse or neglect and what action is to be taken.

 

Interstate Compact on the Placement of Children:

 

Enacted by almost all states and jurisdiction within the United States, this uniform law establishes orderly procedures for the interstate placement of children and fixes responsibilities for those involved in the placement of the child (Title 22 M.R.S.A. 4191-4247).

 

Substitute Care Services:

 

Assessment, case planning, case management, provision or arrangement of needed services for a child placed outside his own home by a state or tribal agency which has custody of the child or a voluntary agreement for placement with the parent.

 

III.Specific Provisions

 

A. Child Protective Services for Children Residing in the Penobscot Indian Reservation

 

 The Maine Department of Human Services under Title 22 M.R.S.A. $4001 et.seq. Is required to receive and investigate allegations of suspected abuse and neglect of children.  Through this agreement the responsibility of the Penobscot Indian nation for the receipt and investigation of such referrals regarding Indian children as defined by the Indian Child Welfare Act who reside on the reservation is recognized.  The Maine Department of Human Services retains responsibility for referrals regarding children who are not Indian children as defined by the Indian Child Welfare Act.

 

DHS

PIN

1. When a child protective referral is received by a regional office or Children’s Emergency Services regarding a child residing on the reservation, the intake screening as assessment information will be gathered according to DHS procedures, and the referral source will be informed that:

 

(a)PIN Department of Human Services Child & Family Services Program (here after “PIN Child & Family Services Program”) will be contacted to determine the tribal status of the child.

(b)If PIN child & Family Services Program has jurisdiction, referral information will be given to PIN Child & Family Services Program.

(c)If DHS has jurisdiction, DHS and PIN child & Family Services Program will work as closely and cooperatively as possible, and PIN will be involved to the full extent that the situation affects the welfare of the Indian family.

1. When a child protective referral regarding a child residing on the reservation is received, intake information will be gathered according to established policy and procedures.  If there is doubt whether PIN has jurisdiction, the referral source will be informed that if it is determined that DHS has jurisdiction the information will be given to DHS.  Department of Human Services child & Family Services Program (hereafter “PIN Child & family Services Program”) will then obtain form the appropriate tribal entity the tribal status of the child.

This procedure will be employed whether the referral is received while such a child is present on the reservation or is off the reservation at the time of referral

 

1.The DHS intake worker will call the PIN child & Family Services Program Director to obtain the tribal status of the child(ren).

2.   Upon DHS request to determine the tribal status of a referral received by DHS, the PIN Program Director or designee will obtain from the appropriate tribal entity the status of the child and will notify the DHS intake worker or supervisor of the tribal status.

A.Child Protective Services for Indian Children as Defined by the Indian Child Welfare Act Who are Domiciled or Residing on the Penobscot Nation Reservation.

1.When DHS has received a child protective referral regarding a child and it has been determined that the child is an Indian child as defined by the  Act, the DHS intake worker or supervisor will give to the Program Director or designated caseworker, Child & Family Services, the information obtained from the referral source(s) and if DHS has had previous child welfare involvement with the family being referred, other information relevant to PIN’s assessment of the current situation and case planning.

1.PIN Child and Family Services staff will record the referral and determine what further action is to be taken.

 

1.DHS may provide consultation upon request.

1. May request consultation as needed.

1.Upon request by PIN and to the extent of available resources, DHS will provide information and assist PIN in locating off-reservation placement for children within PIN jurisdiction.  Jurisdiction over and responsibility for such placement will remain with PIN.

1.Will request information and assistance in locating off-reservation placement for children within its jurisdiction where PIN determines that such placement is in the best interests of the child.

1.Will make available to PIN open child protective cases those social services which are funded with the social Service Block Grant and are available to DHS child protective cases through contracts between DES and community agencies, in accordance with DHS policy and procedures for use of these services.

1.Will utilize these social services as appropriate and in accordance with DHS policy and procedures for use of payment to those services.

 

1.Will refer to DHS families who have been referred for or are receiving child protective services from PIN and who move outside of the Penobscot Indian Reservation and will provide relevant information.

 

 

 

 

 

 

 

 

 

 

 

 

A.Child Protective Services for Children who Reside or are Domiciled on the Reservation in an Indian Home but who are not Indian Children as Defined by the Indian Child Welfare Act:

1. When a referral is received and it is determined by contacting the Program director, Child & Family Services Program, that the child is not an Indian child, the intake worker will send the case to the DHS supe4rvisor for assignment.

1. When a referral is received involving a child who is not an Indian child as defined by the Act, the PIN caseworker will call the regional intake worker or CES.

1.The assigned DHS caseworker contacts the PIN caseworker to review the information available and to decide how to jointly conduct the intake study.

1. The PIN child & Family Services Program or caseworker reviews with the assigned DES caseworker the referral information, information PIN has regarding the referred child or family and DHS information and with the DES caseworker decide how to jointly conduct the intake study.

1.When a DHS representative comes to the reservation, he or she is to be met by a representative of the Penobscot Nation (Child & Family Services staff, tribal police, or if either are unavailable, others designated by the Governor for such a purpose).

1.A representative of the Penobscot Nation will meet the DHS caseworker.  This will be PIN Child & Family staff or in cases of emergency the police, or other so designated by the Governor for such a purpose.

1.The intake study will be conducted according to DHS policy and procedures and conducted jointly with PIN child & Family Services.

1.Will participate in the intake study of non-Indian children residing on the reservation in an Indian home.

1.At the completion of the intake study will meet with PIN caseworker to review the findings and develop a case plan which reflects the best interests of the Indian family

1.Will meet with DHS caseworker to review and study findings and to develop case plan.

1.At least every three months meet with PIN as a service provider to review the progress and if necessary, revise the case plan.

1.As a service provider will meet with DHS caseworker at least every three months to review the case progress and if necessary to revise the case plan

 

1.Will notify PIN of any plan to terminate services at least 30 days prior to such termination.

1.Upon request will provide to DHS and to families information about services available to children and families residing on the reservation.

 

1.Will supply PIN all information received in the course of the case with is in any way relevant to the welfare of the Indian Family.

 

 

A.Child Protective Services to Penobscot Children Domiciled or Residing Off the Reservation.

1.When DHS initiates a petition for a child protection order, it will:

a.verify tribal status as in A.1.and 2.

b.and if the Act applies to the child, will notify PIN, Director of Social Services, that a petition is being filed.

1. Will obtain verification of tribal status as in 1.A.

 

 

 

1.Will serve the Governor, Penobscot Indian nation, with a copy of the petition by certified mail, and on the same day shall mail a copy of the petition by first class mail to the Director of PIN child & Family Services Program.

1.Will decide and notify DHS of its determination as to intervention prior to hearing under $4035.Nothing in this agreement shall preclude PIN’s right to intervene, request jurisdiction, or take other action at a later date as established by statue or other authority.

1.Provide all necessary and relevant information to PIN in order to assess extended family or licensed Indian foster homes on the reservation as potential placements for a child in need of placement.

1.Will assist in the assessment of potential placement resources for children in need of placement.

1.Will provide all necessary and relevant information to PIN child & Family Services Program to assess intervener status.

1.Will appear as witnesses in State Court hearings, if requested by DHS.

1.Will provide all relevant information on the case when the Nation obtains intervener status in state court, or is granted tribal jurisdiction upon request of PIN Child & Family Services Program.

1.Will provide adequate notice of hearings to any DHS workers.

1.Will appear as witnesses in the subsequent hearing in tribal court, should transfer of jurisdiction take place, if requested by PIN child & Family Services Program.

1.May provide consultation as needed.

1.Will provide adequate notice of hearings to any PIN workers.

1.Where questions arise concerning provision of information, PIN staff will refer such questions to their attorneys.

1.Will refer to PIN families who have been referred for or who are receiving child protective services from DHS and who move to the Penobscot Indian Reservation, and will provide PIN with relevant information.

 

2.DHS may request consultation as needed.

 

3.Where questions arise concerning provision of information, DHS staff will refer such questions.

 

 

 

 

 

 

 

 

 

 

 

A.Substitute Care Services for Children in the Legal Custody of the Penobscot Indian Nation

Intra-State Placement

1.Will provide information on facilities in accordance with Title 22 M.R.S.A. 7703

1. May request information on licensed foster homes/child care facilities which may be placement resources for PIN children.

2.With the permission of the applicant, will notify and involve PIN Child & Family Services when an application for a family foster home license is received from a member of the Penobscot nation.

1.Will participate in the licensing study for families residing on the PIN reservation with the permission of the family.

 

 

 

 

 

2. May participate in licensing studies of Penobscot applicants residing off the PIN reservation with the permission of the family.

A.Training and Technical Assistance

1. Will make available to PIN Social Service staff the training available to DHS child welfare staff.

1. Will make available to DHS child welfare staff the training available to PIN child welfare staff.

A.Disclosure of Information

1. Disclosure of any information under the agreement shall be made in accordance with 22 M.R.S.A. $4008 and 22 M.R.S.A.$7703

1. Disclosure of any information regarding PIN cases will be made in accordance with the applicable provisions of the PIN code.

 

 

A. Amendment and Termination

 

1. This agreement does not terminate any other child specific agreement entered into by two parties

2.This agreement may be amended at any time upon the mutual agreement of the parties.

3.This agreement may be terminated by either party upon notification of the other party 180 days in advance.

 

B. Computer Matching

 

The parties agree to continue to explore computer matching of tribal census roles to DHS computers so as to facilitate identification of tribal members.

 

 

This agreement was signed in November 1987 by the Governor of the Penobscot Indian Nation, the Director of the Bureau of Social Services and the Commissioner of the Department of Human Services.