The two human services policy bills, SF 1356 (authored by Senators Sheran and Lourey) and its companion bill HF 1535 (authored by Rep. Mack), modify the Minnesota Indian Family Preservation Act (MIFPA), out-of-home placement provisions, and reporting requirements of maltreatment. Most of the child welfare changes found in this bill specifically impact Indian child welfare in Minnesota.

In early March the Bureau of Indian Affairs announced the new Indian Child Welfare Guidelines. These two bills cover many of these new guidelines. Below I have compared the two bills with some of the guidelines to show areas of agreement. SF 1356 and HF 1535 are identical with the exception of a clause in SF 1356 regarding qualified expert witnesses that does not exist in HF 1535. The full list of guidelines can be found here.

Agency Confirmation of ICWA Eligibility

BIA Guideline: Require that state courts and agencies ask whether ICWA applies in every child custody proceeding.

SF 1356 and HF 1535:

  • Strengthens language around inquiring about tribal lineage by requiring social services agencies to ask multiple parties whether or not the child may have lineage to a tribe as soon as the child comes to the agency’s attention. Also explains notice requirements and steps necessary to provide proper notice to tribes.
  • Requires notification to the child’s tribe when a case that may involve an Indian child has been assigned to family assessment or investigation; current statute requires this to occur when a case may lead to out-of-home placement and require continued involvement beyond 30 days. Requires notification to be made within 7 days of opening the case, the agency to request the participation of the tribe or tribal representative to look into the family, and the use of community resources to develop a case plan for the family.
  • For children in emergency protective care, requires the court administrator to notify the tribe—prior to the hearing taking place—regarding the date, time, and location of the hearing and allow tribal representatives, family members, and Indian custodians to appear in person or speak over phone during the hearing.

Definition of and Adherence to “Active Efforts”

BIA Guideline: Provide clear examples of “active efforts” state courts and agencies must employ to provide services and rehabilitative programs designed to prevent removal and encourage reunification.

SF 1356 and HF 1535:

  • Not currently defined in MIFPA, “active efforts” would be defined as continual involvement between local social services and the Indian child’s tribe that uses the cultural values, norms, and practices of the tribe to preserve the family. It also describes active efforts as distinct from reasonable efforts.
  • The bills go further to include the acknowledgement and utilization of “helping and healing systems of an Indian child’s tribe” to help families.
  • Lastly, social services agencies must work with the Indian child’s family to develop plans other than out-of-home placement.

BIA Guideline: Require that “active efforts” must begin the moment a case has the potential to lead to removal and should be provided during the investigation of a child’s ICWA eligibility.

SF 1356 and HF 1535:

  • Requires social services agencies to continue to request information from tribes if the information needed is not available within the 7 day period; if the child’s connection to a tribe cannot be determined, notice would need to be made to the U.S. secretary of the interior.
  • Requires the social services agency to ask multiple parties whether or not the child may have lineage to a tribe; this would be required to happen immediately when the potential Indian child’s case is received.
  • Tribes must be included as early in the process as possible.
  • Requires social services agencies to seek the opinion and guidance of the tribe before placing a child in out-of-home care. Information sought includes the Indian child’s family structure, strengths, and resources of the tribe; what might help the family best; and barriers to healing as it is seen by the tribe.
  • Requires courts to find that the agency made active efforts before an out-of-home placement or permanency placement order is made. The court would also be required to determine if active efforts were made by evidence that the social services agency:
    • notified the family at the earliest time possible,
    • requested participation of the tribe,
    • provided the necessary and appropriate services (tribal and non-tribal) to the family,
    • contacted and included extended family members,
    • provided resources and services to relatives considered a primary placement option, and
    • whether or not the local social services agency arranged for visitation at any time possible in the home where the child resides for the purpose of maintaining contact between the child and parents, siblings, and relatives (must be unsupervised unless the safety of the child is in question).
  • Modifies Reporting of Maltreatment of Minors Act to require immediate notice (defined in this modification as “within 24 hours”) to the Indian child’s tribe when the local welfare agency has reason to believe that a Family Assessment or Family Investigation may involve an Indian child.

Tribal Determination of Membership

BIA Guideline: Clarify that only the tribe has the power to determine a child’s membership status (no longer allows the Bureau of Indian Affairs to make a decision in lieu of the tribe).

SF 1356 and HF 1535:

  • Redefines “Indian child” to allow tribes to provide determinations that a child is a member of the Indian tribe or is eligible for membership. The new definition is also in line with extended foster care practices by including unmarried persons under age 21 who are in foster care.

Expert Witness Clauses

BIA Guideline: Prefer qualified expert witnesses that have deep connections with culture and customs.

SF 1356 (NOT included in HF 1353):

  • Requires courts to include testimony of a qualified expert witness (QEW) in placement proceedings. In both involuntary foster care placement proceedings and termination of parental rights proceedings, the court would be required to determine by clear and convincing evidence, including testimony of a qualified expert witness, that continued custody of the child by his or her parent or Indian custodian may result in serious emotional or physical harm to the child.
  • Requires agencies to make diligent efforts to find and bring forth a qualified expert witness. The QEW is designated by the child’s Tribe. The clause details what is to be done if no QEW is brought forth and what the order of preference for a QEW must be (e.g. member of the child’s tribe, person from the community, etc.).

“Good Cause” and Placement Preferences

BIA Guideline: Limit “good cause” definition with regard to transfer of cases from state to tribal court and exceptions to placement preferences.

SF 1356 AND HF 1535:

  • Regarding good cause to deny transfer: Done on a case-by-case basis and cannot include financial resource conditions of the tribal or Bureau of Indian Affairs social services or judicial systems. Denial must be written and served to all parties and must detail the evidence found to deter transfer proceedings.
  • Regarding good cause to not follow the order of placement preferences: Requires courts to follow placement preferences in the order set out in ICWA. Should all ICWA requirements regarding placement preferences be fulfilled, the court may place outside of the order of placement preferences if there is good cause. Good cause includes:
    • the request of the Indian parents or child if they are able to understand and comprehend the decision,
    • testimony by qualified expert witness that leads to the support of placement outside placement preferences because of the extreme physical or emotional needs of the child requiring specialized treatment services,
    • diligent search efforts to locate family for the child are shown by the local social services agency.

Some Considerations

It is apparent that the BIA guidelines on Indian child welfare proceedings overlap with current legislation in Minnesota, showing that efforts by the BIA and other advocates have likely been considered. The modifications to MIFPA and changes to out-of-home placement provisions are sensitive to tribal involvement, and the importance of heritage and culture in the lives of Indian children and families is clearly defined in the proposed purpose of MIFPA and other aspects of the new legislation. The bills fill gaps previously left unclear or undefined.

While the bills show much progress for Indian child welfare in Minnesota, there is one thing to consider. In terms of court placement of an Indian child outside of the placement preferences, both bills allow social services agencies to provide testimony that they have performed diligent efforts to follow the ICWA placement preferences. What is unclear is how the courts plan to measure the level of diligence and whether or not DHS would provide guidance over this.