Brackeen et al v. Zinke et al

Filing 1

COMPLAINT against All Defendants filed by Chad Everet Brackeen, Jennifer Kay Brackeen, State of Texas. (Filing fee $400; Receipt number 0539-8762985) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Cover Sheet) (Ricketts, Rebekah)

EXHIBIT 1

TX 0001

1200 Legal Base for Child Protective Services; 1210 State Laws; 1220 Federal Laws; 1... Page 14 of 24

• providing for legal representation of children (attorneys or guardian
ad litems) in judicial proceedings
Recipients of CAPTA funds, including DFPS, are required to submit a state
assurance plan every five years specifying their use, or intended use, of
funds. Recipients must also submit notification to the federal government
when there are substantive changes in state law and when there are
significant changes to how CAPTA funds are being used.
For more information, see:
Child Abuse Prevention and Treatment Act
The Children’s Bureau analysis CAPTA2003

1225 Indian Child Welfare Act
CPS February 2013

The Indian Child Welfare Act (ICWA) is a federal law aimed at keeping
Native American children who are involved in child welfare cases with
Native American families. The stated intent of the legislation is to protect
the best interests of Native American children and to promote stability
amongst Native American families.
ICWA sets federal requirements that apply to state child custody
proceedings involving Native American children who are members of, or
eligible for membership in, a federally recognized tribe. ICWA establishes
standards for removing Native American children from their families and
for placing them in foster and adoptive homes. It also allows for a child’s
tribe to intervene in the legal proceedings.
A child must meet the criteria of an “Indian child” as defined by federal
law in order for ICWA to apply. However, CPS policy requires workers in
every abuse or neglect case to determine whether a child or the child’s
family has Native American ancestry or heritage. If Native American
ancestry is claimed, CPS workers are required to follow specific procedure
to ensure compliance with ICWA.
See:
Indian Child Welfare Act
Federally Recognized Tribes
For information on CPS policy related to ICWA, see:
Form 1706
Act

Checklist for Compliance with the Indian Child Welfare

For information about the ICWA and DFPS’s responsibilities under it, see:
Appendix 1226-A: Child-Placing Requirements of the Indian Child
Welfare Act and Related Guidelines and Regulations

TX 0002
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Appendix 1226-B: Checklist for Compliance with the Indian Child
Welfare Act

1240 General Eligibility Criteria for Child Protective
Services
CPS 96-8
Law
DFPS provides protective services to children as required by
the Texas Family Code, Chapters 261 and 262, and the Human
Resources Code. DFPS provides services to the families of
children receiving protective services under Titles IV-A, IV-B,
IV-E, and XX of the Social Security Act, the Intended Use
Report, and Chapter 47 of the Human Resources Code.
Texas Family Code Chapters 261

, 262

Texas Human Resources Code Ch. 47
Management Policy

To receive child protective services, the child or the child's family must be
eligible at the time service is rendered.
The state plans contain the services offered by DFPS. Clients must meet
the eligibility criteria for the specific service as detailed in the state plans.
Law
DFPS must not discriminate on the basis of race, color, national origin,
sex, religion, or handicap in providing child protective services.

1241 Child Protective Services Priorities
CPS 96-8
Management Policy

DFPS is committed to providing at least minimally adequate protective
services to all children who need them. Because of limited resources,
however, DFPS must establish priorities for provision of services.
DFPS priorities for child protective services are based on the purposes and
objectives of the program. (See Item 1110, Purpose and Objectives.) By
establishing priorities, DFPS has provided statewide criteria for the types
of situations and responsibilities DFPS staff respond to before others. The
priorities also indicate which children DFPS is not required to serve and
which responsibilities DFPS is not required to perform statewide.
Priorities are subject to change.

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If a child leaves the court’s geographic jurisdiction, the caseworker must
notify the court.
Notification is not required if there is no motivating reason, such as a
judge expressing an interest in a particular case.
DFPS Rules, 40 TAC §700.1107

5332.4 Notifying the Court When Subsequent Removal
CPS December 2013

If DFPS finds it necessary to remove a child who has been returned to the
parents and place the child in foster or substitute care, the caseworker
must notify the court.
DFPS Rules, 40 TAC §700.1107

5332.5 Notifying the Court About a Designated Medical
Consenter
CPS December 2013

If DFPS is authorized by the court to consent to the medical care of a child
in DFPS conservatorship, the caseworker must provide the court with the
name of the person designated by DFPS to consent to the child’s medical
care.
See 11118 Notifying the Court of the Designated Medical Consenter.
Texas Family Code §266.004(c)

5340 Indian Child Welfare Act (ICWA)
CPS December 2013

If a DFPS lawsuit involves a Native American child, the Indian Child
Welfare Act (ICWA) applies and the legal requirements change
dramatically.
The legal requirements related to ICWA are discussed primarily in 5840
The Indian Child Welfare Act (ICWA); however, while ICWA requirements
do not apply in every case, it is critically important that the caseworker
inquire about Native American history in every case.
The only way to determine whether a child may be a Native American
child is to ask available parents, relatives, and children who are old
enough to be interviewed whether there is any family history connected to
a Native American tribe. The caseworker documents the responses by
individual family members, whether a Native American history is reported
or denied.

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If there is any indication that a child may have a family member or
ancestor affiliated with a tribe, the caseworker follows ICWA policies at
5840 The Indian Child Welfare Act (ICWA).

5350 Seeking Child Support for Children in Substitute
Care
CPS December 2013

Even when DFPS has been appointed as temporary or permanent
managing conservator of a child, the parents still have support obligations
to their child. DFPS, therefore, has the legal authority and obligation to
seek child support and medical support from the parents.

5351 Requesting Child Support From the Parents of Children
in DFPS Conservatorship
5351.1 Requirements for Requesting a Court to Order Parents to
Provide Support
CPS December 2013

In CPS cases involving a suit affecting but not terminating parental rights,
DFPS must ask the court to order the parents to provide child support and
health insurance.
If the court terminates parental rights, DFPS may request that the
parents be ordered to provide support.
Texas Family Code, §154.001
Although it may appear that the parent is financially unable to provide
support, the court is the entity that evaluates the parent’s ability to pay.
Even a small amount of support allows the parent to share the
responsibility of providing for the child’s care and ensures some level of
parental involvement. The court may or may not order support as
requested, but it is duty of DFPS to make the request.
The caseworker must inform the parents that DFPS will request that the
parents pay child support and health insurance.
DFPS Rules, 40 TAC §700.1108

5351.2 DFPS’s Right to Review Child Support Payments
CPS December 2013

DFPS is entitled to receive all child support paid for a child, as of the date
that the child is placed in substitute care.

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For more information about working with consular staff, see the When a
Child or Youth in CPS Conservatorship Travels Resource Guide .

5840 The Indian Child Welfare Act (ICWA)
5841 Purpose of ICWA
CPS December 2013

The Indian Child Welfare Act (ICWA) is a federal law that applies to any
DFPS case involving an Indian child, as the term is defined by ICWA. See
25 U.S.C. §1901
et seq.
Although the law refers to and applies only to an Indian child, as defined
by the ICWA, this policy uses the term Native American where the context
allows, because it is accurate and is generally preferred for its recognition
of Native American origins.
The purpose of the ICWA is to preserve Native American tribal cultures
(including Native Alaska tribal cultures), by giving legal rights to the
children, parents, and tribes protected by this law.
Failure to comply with the ICWA can result in a final order being reversed
on appeal.
To avoid having a final order reversed and a child’s chance for a
permanent home affected, the caseworker:
• routinely asks families whether they are Native American;
• documents the families’ responses; and
• consults with the attorney representing DFPS and the regional
attorney, if the caseworker believes that a case may involve a Native
American child.

5842 Identifying a Native American Child
CPS December 2013

The law defines a Native American child as an unmarried person under
age 18 who is either:
• a member of a Native American tribe; or
• eligible for membership in a Native American tribe and the biological
child of a tribal member. See 25 U.S.C. §1903(4) .
To find out whether a child has Native American family history, the
caseworker routinely asks:
• any child old enough to be interviewed;
• any parent of the child who is available to be interviewed; and

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• any relatives who are available to be interviewed.
Because key facts about a child’s family history may not be available
when a case is first investigated, the caseworker routinely asks,
throughout the case, about whether a child has Native American family
history, especially when new family members are identified.
Whether family members deny or report tribal family history, the
caseworker documents the information on:
• the removal affidavit; and
• any reports filed with the court.
For example:
Information about the Child’s Native American Status: Mother denies
tribal family history; father reports that his great-grandfather may be
Sioux. Paternal grandmother says that her husband’s family was from
the Cherokee tribe in Oklahoma.
If the caseworker obtains information indicating that there is a possible
tribal heritage, the caseworker:
• completes Form 1705

Indian Child and Family Questionnaire;

• confers with the regional attorney and attorney representing DFPS as
soon as possible; and
• refers to the following CPS policies:
1225 Indian Child Welfare Act
Appendix 1226-A: Child-Placing Requirements of the Indian Child
Welfare Act and Related Guidelines and Regulations
Appendix 1226-B: Checklist for Compliance With the Indian Child
Welfare Act
As much information must be provided on Form 1705
as possible to
determine whether a child is a member of a tribe or is eligible for
membership in the tribe.

5843 Decision Regarding Native American Status
CPS December 2013

There are more than 500 federally recognized Native American tribes in
the U.S., and children from any one of these tribes may be living in
Texas. Three federally recognized tribes have reservations in Texas: the
Kickapoo, near Eagle Pass, the Alabama-Coushatta Tribe, near Livingston,
and the Ysleta del Sur, also known as Tigua, near El Paso.

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Each tribe has its own membership requirements and only the tribe can
decide whether a child is a Native American child, as defined by the
Indian Child Welfare Act (ICWA).
A child may be a Native American child, even if:
• the child’s Native American relative is a distant one;
• the child’s parent or grandparent was never enrolled as a tribal
member;
• one or both parents are opposed to the tribe being involved;
• the child and family do not observe tribal traditions and practices; or
• the child is not enrolled in the tribe
If there is any indication that a child’s family may have a tribal
connection, the caseworker gives the relevant information to the tribe and
ask that membership or eligibility be confirmed or denied.

5844 Legal Requirements If the ICWA Applies
CPS December 2013

If a Native American child, as defined by the Indian Child Welfare Act
(ICWA), is taken into DFPS custody, almost every aspect of the social
work and legal case is affected, including as follows:
• The legal burden of proof for removal is higher, as is the legal burden
of proof for obtaining any final order terminating parental rights or
restricting a parent’s custody rights.
• DFPS must serve the child’s parents, tribe, Native American
caretakers, and the Bureau of Indian Affairs with a specific notice
regarding ICWA rights.
• ICWA requires that the caseworker must make active efforts to
reunify the child and family.
• The child must be placed according to ICWA statutory preferences.
• Expert testimony on tribal child and family practices may be
necessary.
• A valid relinquishment of parental rights requires a parent to appear
in court and a specific statutory procedure.
All of these requirements apply to both a Native American parent and a
parent who is not Native American.
For a quick reference, see:
Form 1700

Indian Child Welfare Act Resource Guide

Form 1705

Indian Child and Family Questionnaire

Form 1706

Indian Child Welfare Act Checklist

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establish rules and procedures for carrying out its responsibilities
under the ICWA.
The Guidelines for State Courts do not have the force of law. They are
intended to help state and tribal courts guarantee rights protected
under the ICWA. Courts have the authority to disregard the guidelines
when they consider them unnecessary to implementation of the ICWA.
3.

Federal Regulations (25 CFR, Part 23)
These regulations govern the Bureau of Indian Affair's responsibilities
under the ICWA.
The ICWA and the guidelines and regulations specified above apply to
DFPS, other state agencies, and private child-placing agencies
whenever they place eligible Indian children in protective placements
covered under the ICWA.

II. Definitions
The following definitions are derived from Section 4 of the ICWA, the
Guidelines for State Courts, and the federal regulations specified above.
The definitions have been rephrased to match state laws and other
requirements governing DFPS services.
A.

Indian — Any member of an Indian tribe.
Note: The ICWA and related guidelines and regulations do not include
criteria for determining membership in specific Indian tribes. Each
tribe is responsible for establishing membership criteria and
determining who meets them. Information about tribal membership is
available from the tribes themselves and from the Bureau of Indian
Affairs. (For information about contacting the Bureau of Indian Affairs,
see item K below.)

B.

Indian tribe — Any Indian tribe, band, nation, or other organized
group or community of Indians that is eligible for services provided to
Indians by the Secretary of the Interior.
Note: The ICWA applies to the following tribes in Texas:
1.

the Traditional Kickapoo Indians of Texas, who live on land near
Eagle Pass in Region 09 (The tribe is part of the Kickapoo Tribe of
Oklahoma.);

2.

the Alabama-Coushatta Indian tribe and reservation near
Livingston in Region 10; and

3.

the Tigua Indian tribe and reservation near El Paso in Region 12.

The ICWA also applies to children who are members of federally
recognized tribes when the children are in Texas, even though the tribe
and reservation are not in Texas. The ICWA does not apply to children
who are not members of federally recognized tribes.

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C.

Indian child — Any person who fits the definition of a child under
Chapter 11 of the Texas Family Code (TFC) and who
1.

is a member of an Indian tribe; or

2.

is both
a. eligible for membership in an Indian tribe, and
b. the biological child of a member of an Indian tribe.

Note: Part B.1. of the Guidelines for State Courts addresses the
determination of eligibility as an Indian child.
D.

Indian child's tribe — Either
1.

the tribe in which the child is
a.
b.

2.

a member, or
eligible for membership; or

the tribe with which the child has the most significant contacts, if
the child is a member of more than one tribe or is eligible for
membership in more than one tribe.
Note: Part B.2. of the Guidelines for State Courts addresses the
determination of an Indian child's tribe.

E.

F.

Indian parent — Any Indian who fits the definition of a parent under
TFC, Chapter 11, including a parent who has adopted a child under
tribal law or custom.
Extended family member — Either
1.
2.

G.

a member of an Indian child's extended family as defined by tribal
law or custom; or
in the absence of a tribal definition, an adult who is an Indian
child's grandparent, aunt, uncle, brother, sister, brother-in-law,
sister-in-law, niece, nephew, first or second cousin, or stepparent.

Indian custodian — Any Indian
1.
2.

H.

who has legal custody of an Indian child under tribal law or
custom or under state law; or
to whom an Indian child's parent has temporarily transferred the
child's physical care, custody, or control.

Child-custody proceeding — Any of the following:
1.

A suit affecting the parent-child relationship under TFC, Title II, or
a judicial proceeding for an Indian status-offender under TFC, Title
III, when the suit or proceeding involves a foster care placement,
the termination of parental rights, a pre-adoptive placement, or an
adoptive placement.
This definition includes proceedings that involve any action in
which

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an Indian child is removed from his parent or Indian custodian
for any length of time, and
the parent or custodian does not have the right to return of the
child upon demand.
2.
3.

An affidavit of relinquishment of parental rights executed under
TFC, §15.03, with respect to an Indian child.
The voluntary placement of an Indian child by the child's parents.
Note: The term "child-custody proceeding" does not apply to
a divorce proceeding, parental separation, or similar action in
which the child is placed in the managing conservatorship of
one of the parents; or
a delinquency proceeding under TFC, Title III, caused by an
action which would be a crime if committed by an adult.
Note: Part B.3. of the Guidelines for State Courts provides
criteria for determining whether a child-custody proceeding is
covered by the ICWA.

I.

Tribal court — A court that
1.

has jurisdiction over child-custody proceedings; and

2.

is
a court of Indian offenses,
a court established and operated under the code or custom of
an Indian tribe, or
any other administrative body of a tribe that has authority over
child-custody proceedings.

J.

State court — Either
1.
2.

K.

a district court that has jurisdiction over suits affecting the parentchild relationship, as defined in TFC, §11.01; or
a juvenile court that has jurisdiction over children in need of
supervision (CHINS), as defined in TFC, §51.03.

Bureau of Indian Affairs — The Bureau of Indian Affairs (BIA) is
part of the Department of the Interior. There are 12 BIA offices in the
United States. The office to contact for court proceedings involving
Indians in Texas is located in Anadarko, Oklahoma.
Every BIA office offers the following services:
1.

assistance in locating a child's tribe and his biological parents or
Indian custodian to prevent involuntary removal when
the child is involved in involuntary state-court action, or
the child's adoption is terminated (see 25 CFR 23.11(f) and
23.93);

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2.

arrangements for paying court-appointed attorney fees for
indigent parents or Indian custodians when applicable
requirements are met in involuntary state-court action (see 25 CFR
23.13);

3.

assistance to the court, the child-placing agency, or any other
party in identifying qualified expert witnesses for involuntary statecourt action (see 25 CFR 23.91); and

4.

assistance to the court, the child-placing agency, or any other
party in identifying interpreters for an Indian child-custody
proceeding (see 25 CFR 23.92).

The BIA's Division of Social Services in Washington, D.C., maintains a
central file of all Indian adoptions.
L.

Qualified expert witness — An expert who
can give competent testimony, and
is qualified to specifically address the question whether continued
custody by the parents or Indian custodian is likely to result in
serious physical or emotional damage to the child. (See Part D.4.
of the Guidelines for State Courts.)

III. Services to the Indian Child and Family to Prevent Involuntary Removal
Under ICWA, §102(d), before seeking involuntary removal of a child, the
child-placing agency must try to provide remedial services and
rehabilitation programs designed to prevent the breakup of the child's
family.
Under Part D.2 of the Guidelines for State Courts, the child-placing
agency must demonstrate to the court that
A.
B.

it has tried to provide remedial services and rehabilitation programs
to prevent removal as specified above; and
its efforts to do so
took into account the prevailing social and cultural conditions and
way of life of the Indian child's tribe; and
involved and used the available resources of the extended family,
the tribe, Indian social-service agencies, and Indian care givers.

IV. Removal of the Indian Child
Under ICWA, §101(a), a child-placing agency may only seek state-court
jurisdiction when the Indian child is not the ward of a tribal court.
A.

Involuntary Removal of an Indian Child by a Court
If the suit is not transferred to an Indian court, ICWA, §102(e) and
(f), prohibits the court from ordering involuntary foster-care

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placement or termination of parental rights of an Indian child unless
the proceedings include both
1.
2.

B.

the testimony of a qualified expert witness; and
a determination that the parents' or Indian custodian's continued
custody of the child is likely to result in serious emotional or
physical damage to the child.

Emergency Removal
Under ICWA, §112, Indian children may be protected by an
emergency removal under TFC, Chapter 17.
Under Part B.7. of the Guidelines for State Courts, the petition for the
emergency hearing under TFC, §§17.02 or 17.03, must be
accompanied by an affidavit containing
1.

the name, age, and last known address of the Indian child;

2.

the names and addresses of the child's parents and Indian
custodian, if any (If these persons are unknown, a detailed
explanation must be given of the efforts made to locate them.);

3.

the facts necessary to determine the residence and domicile of the
Indian child (If the residence and domicile is on an Indian
reservation, the name of the reservation must be stated.);

4.

the tribal affiliation of the child and the child's parents or Indian
custodian;

5.

a specific and detailed account of the circumstances that led to
emergency removal of the child;

6.

if the child is believed to live on a reservation over which the tribe
exercises exclusive jurisdiction in matters of child-custody, a
statement of the efforts made to transfer the matter to the tribe's
jurisdiction; and

7.

a statement of the actions taken to provide services to the parents
or to the Indian custodian to permit the child to be safely returned
to the parents' or the custodian's custody.

Under ICWA, §112, the child-placing agency must ensure that the
emergency placement ends as soon as it is no longer necessary to
prevent imminent physical harm or danger to the child. However, this
requirement does not apply if a court orders or the parents consent to
continued placement.
C.

Voluntary Placements (Temporary and Permanent)
Provisions for voluntary placements under the ICWA apply both to
temporary and permanent voluntary placements made by child-placing
agencies. Under ICWA, §103(a), the parents' or Indian custodian's
consent to foster care placement or to termination of parental rights is
not valid unless the following conditions are satisfied.

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1.

The child's parents or Indian custodian cannot consent to the
placement or to the termination of parental rights until at least 10
days after the child's birth. No child-placing agency, therefore, may
place an Indian child in foster care based on the parent's or
custodian's consent until 10 days after the child's birth.

2.

The parents' or Indian custodian's consent must be recorded
before a district judge of a court of competent jurisdiction. The
judge must certify in writing that
a.
b.

the terms and consequences of the consent were explained
fully and in detail to the parent or Indian custodian; and
the parent or Indian custodian either
fully understood the explanation in English, or
fully understood it after it was interpreted or translated into
a language the parent or custodian knows.

Affidavit of relinquishment. Under Part E.2 of the Guidelines for State
courts, in addition to containing all of the information required in TFC,
§15.03, an affidavit of relinquishment of parental rights must contain
1.
2.

the name of the Indian child's tribe; and
the identifying number or other indication of the child's membership
in the tribe, if any.

Withdrawal of consent. Under ICWA, §103(b), a child's parent or
Indian custodian has the right to withdraw consent to the child's fostercare placement at any time, except as noted below. If a parent or Indian
custodian withdraws consent, the child-placing agency must return the
child to the parent or Indian custodian immediately.
If a child-placing agency has managing conservatorship of a child or has
validly evoked the provisions of TFC, Chapter 17, as a basis for the child's
continued placement in foster care, the child's parent or Indian custodian
cannot withdraw consent to the child's foster care placement.
Note: This citation (TFC Ch. 17) is out of date since the 1995
reorganization of the Texas Family Code. We can tell where some of these
clauses went, but we couldn't find this one. Please request the correct
citation from Legal staff. --H&RS
Withdrawal of an affidavit of relinquishment. Under ICWA, §103(c),
an Indian parent may withdraw an affidavit of relinquishment of parental
rights that designates a child-placing agency as managing conservator of
the parent's child. The parent may withdraw the affidavit of
relinquishment for any reason and at any time before the court's decree
of termination. This provision may take precedence over Section 15.03
(d), Texas Family Code, which states that an affidavit of relinquishment
designating DFPS as the child's managing conservator is irrevocable.

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If an Indian parent withdraws an affidavit of relinquishment as specified
above, the child-placing agency must return the child to the parent unless
the child-placing agency obtains court-ordered managing conservatorship
or validly evokes the provisions of TFC, Chapter 17, as a basis for the
child's continued placement in foster care.
V. Choosing Placements for Indian Children
A.

Preferred Placement Settings
Foster care placements. Under ICWA, §105(b), the child-placing
agency must apply the following criteria when placing Indian children in
foster care.
1. The placement must meet all the special needs of the child that the
child-placing agency has identified.
2.

The placement setting must be
a.
b.

3.

reasonably close to the child's home, and
the least restrictive and most family-like setting available.

The following foster-care placement settings are preferred in the
order listed unless there is good cause to the contrary (For definition
of the term "good cause to the contrary," see item C below.):
a.

a member of the child's extended family;

b.

a foster home licensed, approved, or specified by the Indian child's
tribe;

c.

an Indian foster home licensed by DFPS or certified by a nonIndian, licensed, child-placing agency;

d.

a child-caring institution approved by an Indian tribe or operated
by an Indian organization which has a program to meet the Indian
child's need.

Adoptive placements. Under ICWA, §106(b), the following adoptive
placement settings are preferred for Indian children in the order listed
unless there is good cause to the contrary:
1.

a member of the child's extended family,

2.

another member of the Indian child's tribe,

3.

another Indian family.

Additional considerations. Under ICWA, §105(d), the child-placing
agency determines what foster-care or adoptive placement is most
appropriate for a particular Indian child based on the prevailing social and
cultural standards of the Indian community in which the child's parents or
extended family reside or with which they maintain social and cultural
ties.

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Under ICWA, §106(b), subsequent foster care and adoptive placements
are made according to provisions of the ICWA unless the child is returned
to the person from whom he was removed.
B. Good Cause to Modify Preferences
Under ICWA, §105(c), the following conditions constitute good causes to
change the order or types of preference specified in item A above:
1.

The Indian child's tribe establishes a different order of preference by
resolution. The tribe's order of preference must be followed subject to
one condition: In a foster care placement, the tribe's preferred
placement setting must be the least restrictive setting available that
meets the child's particular needs.

2.

The Indian child or his parent has a different, but appropriate
preference. The child-placing agency must take the child's and the
parent's preferences into consideration.
Note: When a parent requests anonymity in a voluntary placement,
the child-placing agency must apply the preferences specified above in
a way that meets the parent's need for anonymity.

C. Good Cause to the Contrary
Under Part F.3(a) of the Guidelines for State Courts, good cause to the
contrary is based on
1.

the request of the biological parents or the older child (The guidelines
do not specify the meaning of "older."),

2.

the extraordinary physical or emotional needs of the child as
established by testimony of a qualified expert witness, or

3.

the unavailability of a suitable placement setting after the childplacing agency has searched for one that meets the preference
criteria.

Under Part F.3(b) of the Guidelines for State Courts, the burden of
establishing good cause to the contrary rests on the party that requests
an exception to the order or types of preferences specified above.
D. Documentation of Consideration Given to Placement Choice
Under ICWA, §105(e), the child-placing agency must document each
fostercare or adoptive placement of an Indian child, and the efforts made
to comply with the order and types of preference specified above. The
childplacing agency must provide a record of these efforts to the
Secretary of the Interior or to the Indian child's tribe on request.
VI. Agreements between Child-Placing Agencies and Indian Tribes

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Under ICWA, §109, a child-placing agency may enter into agreements
with an Indian tribe regarding the care and custody of Indian children and
regarding the agency's and the tribe's respective jurisdictions in childcustody proceedings. Agreements about jurisdiction may include
provisions for
A.

the orderly transfer of jurisdiction on a case-by-case basis; and

B.

concurrent jurisdiction of both the child-placing agency and the tribe.

Either party may revoke such an agreement upon 180 days written notice
to the other party. The revocation cannot affect any action or proceeding
over which a court has assumed jurisdiction, unless the agreement
provides otherwise.
VII. Observing the Rights of Adult Indian Adoptees
A. State Court
Under ICWA, §107, if a court with jurisdiction receives a request from an
Indian adoptee who is 18 or older, the court must inform the adoptee
about:
1.

the adoptee's tribal affiliation, if any;

2.

the identity of the adoptee's biological parents; and

3.

any other information necessary to protect the rights pertaining to the
adoptee's tribal relationship.

If the court does not reveal the identity of the adoptee's biological
parents, the adoptee may obtain help from the Bureau of Indian Affairs to
secure the necessary information for enrollment of the adoptee in a tribe.
When presented with a valid court order, [DFPS's] Special
Services Division provides information necessary for the
adoptee's enrollment in a tribe, subject to the requirements
regarding the charge and receipt of reasonable fees for
determining and sending information specified in TFC, §11.17
(c).

B. Bureau of Indian Affairs (BIA)
Under ICWA, §301(b), and 25 CFR 23.81(b), the BIA must give the foster
or adoptive parent or the tribe of an Indian adoptee who is 18 or older
and eligible under the ICWA all information needed to enroll the adoptee
in a tribe or to determine the adoptee's rights and benefits associated
with tribal membership. If the adoptee's biological parent has filed an
affidavit of confidentiality with the court and the affidavit has been
forwarded to the Bureau of Indian Affairs, the BIA will not reveal the
parent's name.

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