ICPC and ICWA

The Interstate Compct on the Placement of Children (ICPC) and the Indian Child Welfare Act (ICWA) are sometimes at issue in adoption proceedings. Below is more information on both acts.

Interstate Compact on the Placement of Children (ICPC)

The Interstate Compact on the Placement of Children (ICPC) was enacted to monitor children being moved from state to state by courts. This most often occurred in foster care situations where it was necessary to cross state lines for placement of a child. However, the cross of state lines can also occur in an adoption procedure. ICPC sets forth a process that both states (the sending state and receiving state) have to follow when placing a child in another state for adoption. Children are not allowed to travel from the sending state to the receiving state until the requirements of ICPC have been complied with.

Completion all of the requirements of ICPC can take several weeks, and sometimes more than a month. Adoptive parents will often have to stay in the sending state waiting for the ICPC process to be complete prior to being able to go home with the adoptive child.

Indian Child Welfare Act (ICWA)

The Indian Child Welfare Act (ICWA) was enacted in 1978 to respond to Native children being separated from their parents and communities by state child welfare agencies and private adoption agencies. It was found that many Native children were being place outside their families and communities even when there were fit and willing relatives available to care for the children. ICWA sets forth various requirements for court proceedings involving an Indian child who is a member or is eligible for enrollment in a federally recognized Tribe. Nebraska also has its own version of ICWA called NICWA, the Nebraska Indian Child Welfare Act.

While ICWA and NICWA are primarily geared towards child welfare cases (juvenile court cases) where a child is removed from a home by the state, it also applies to adoption procedures. The applicability of the federal Indian Child Welfare Act of 1978 (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) to an adoption proceeding turns not on the Indian status of the person who invoked the acts but on whether an ‘‘Indian child’’ is involved. Indian Child Welfare Act of 1978 § 2, 25 U.S.C.A. § 1901; Neb. Rev. Stat. §§ 43-1504, 43-1505. In re adoption of Micah H. 887 N.W.2d 859 (2016). Two areas that are often at issue in adoptions incolving an Indian child are Active Efforts and Serious Emotional or Physical Damage.

Active Efforts

One of the requirements of ICWA and NICWA is that active efforts be provided to preserve the family prior to a court ordering termination of parental rights. The court is required to make a determination that the party seeking placement (adoption) or termination has demonstrated that attempts were made to provide active efforts to the extent possible under the circumstances. In re adoption of Micah H. 887 N.W.2d 859 (2016) citing Neb. Rev. Stat. § 43-1505(4). Active efforts must be made prior to termination of parental rights under the Nebraska Indian Child Welfare Act (NICWA) to unite the Indian child with both biological parents, regardless of whether they are Indian. Neb. Rev. Stat. § 43-1505(4). Id.

The requirement that active efforts be made to unite parent with Indian child, as set forth in the Nebraska Indian Child Welfare Act (NICWA), apply to the termination of a non-Indian father with regards to his Indian child. NICWA requires that active efforts be made to unite parent with both biological parents regardless of whether they were Indian. Neb. Rev. Stat. § 43-1505(4). In re adoption of Micah H. 887 N.W.2d 859 (2016).

Serious Emotional or Physical Damage

ICWA and NICWA also require that a court find that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child prior to an order terminating parental rights. The finding must be supported by evidence beyond a reasonable doubt and include testimony of qualified expert witnesses. Neb. Rev. Stat. § 43-1505(6). The United States Supreme Court has held that the serious emotional or physical damage element does not apply to parents who never had custody of the Indian child. The Court reasoned that the words ‘‘continued custody”, within the statute, refer to custody that the parent already has (or at least had at some point in the past). In re adoption of Micah H. 887 N.W.2d 859 (2016) citing Adoptive Couple v. Baby Girl25 U.S.C. § 1912(d). The serious emotional or physical damage element set forth in federal Indian Child Welfare Act of 1978 (ICWA) and Nebraska Indian Child Welfare Act (NICWA) do not apply to a non-Indian father who has never had custody of his Indian child. In re adoption of Micah H. 887 N.W.2d 859 (2016).

Cases involving ICPC and/or ICWA can become very complicated. If you have questions on ICPC or ICWA and how it may affect an adoption you would like to pursue, contact adoption lawyers at Stephanie Flynn Law or call (402) 325-8469 to further discuss the adoption process.