DFCS Online Policies & Procedures

  DFCS Online Policies & Procedures

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Handbook 9: Court Related Issues
9-3.1 ICWA: Notice for Hearing
Court Related Issues
9-3.1  ICWA: Notice for Hearing
Reference Points
Overview
ICWA Noticing Requirements for Specified Hearings
Dependent Intake Social Worker Responsibilities
Service Bureau Social Worker Responsibilities
How to Generate the JV-135 in CWS/CMS
Clerical Procedures for ICWA Noticing
ICWA Noticing for Sibling Groups
Other References


Reference Points
Effective Date: 4/1/06
Last Updated: 1/17/08
 Legal Basis:
Popup Window Indian Child Welfare Act (Public Law 95-60 8 , November 8, 1978
 Non CWS/CMS Forms:
MS Word Declaration of Parent Regarding Indian Ancestry
MS Word Notice of Child Custody Proceeding for Indian Child (ICWA-030)
MS Word Attachment to Notice of Child Custody Proceeding for Indian Child (ICWA-030A)
 CWS/CMS Forms:
bullet Notice of Involuntary Child Custody Proceeding Involving an Indian Child (JV-135)


Overview  

The Indian Child Welfare Act provides legal policies and procedures that must be followed when a child in the juvenile dependency system is found to be of American Indian or Eskimo heritage.

An Indian child's parents or Indian custodian and the child's tribe must be properly notified of pending custody proceedings. If there is any indication that the child may be of American Indian/Eskimo ancestry, noticing for the hearings listed below must continue, until a Court makes a finding that ICWA does not apply. Further, a copy of the Notice (JV-135) must be attached to court reports and forwarded to the Court as proof of Indian notice, unless or until the Court makes a finding that ICWA does not apply.

If the identity or location of an Indian child's tribe cannot be determined, then notice shall be given to the BIA in like manner. The social worker continues diligent efforts to obtain additional information regarding the child's tribal affiliation. If new information is obtained, appropriate notice is to be provided to that tribe.

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ICWA Noticing Requirements for Specified Hearings  
  • Initial Hearing:
    • Provide the Notice of Involuntary Child Custody Proceeding Involving an Indian Child (JV-135) by registered or certified mail with return receipt requested.
      • If both parents have stated at the Initial Hearing that they have no American Indian/Eskimo heritage and the Court makes the finding that "No notice is required pursuant to the Indian child Welfare Act," no further action to determine American Indian/Eskimo heritage is required, unless contrary information surfaces.

  • Jurisdictional Hearing:
    • If the tribe's address is known, notice with JV-135 by registered or certified mail with return receipt requested.
    • Child custody proceedings cannot proceed to hearing until 10 calendar after receipt of the notice by the parents or Indian custodian and the tribe.

  • Dispositional:
    • If the recommendation is for out-of-home care, notice by registered or certified mail with return receipt requested.
    • If the recommendation is for court supervised Family Maintenance, notice by registered or certified mail with return receipt requested.

  • All regularly scheduled hearings (unless continued from an initially noticed hearing):
    • Send the Notice of Involuntary Child Custody Proceeding Involving and Indian child (JV-135) by certified mail to the tribe, unless a response is received from the tribe denying Indian heritage or until the Court has declared that ICWA does not apply.

  • Contested hearings:
    • Provide notice if this is not a Status Review Hearing and the tribe would otherwise have no way of knowing about the hearing.

  • Special hearings:
    • Whoever requests the special hearing is responsible for noticing the tribe.
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Dependent Intake Social Worker Responsibilities  

The DI social worker is responsible for generating the Notice of Hearing for the Jurisdictional/Dispositional Hearing.

If there is an indication that there may be American Indian/Eskimo heritage in the child's background, and the DI social worker is filing a WIC § 300 Petition, the DI social worker:

  • Prints out a copy of the Notice of Child Custody Proceeding for Inidan Child (ICWA-030).
     
  • Completes the form.
  • Submits the ICWA-030 with attachments to clerical for verification of tribe address(es) and mailing.
    • ICWA Noticing must be mailed out 13 calendar days prior to the date of the hearing. 
    • Social workers must submit the JV-135 to clerical staff at least 15 calendar days prior to the hearing in order to allow time for processing by clerical in order to meet the 10 calendar day requirement.
    Note: For all ICWA noticing for which a full 10-day notice will not be received by all parties, the social worker must request a continuance of the hearing so that the parties can be properly noticed.

    • If a continuance of the Jurisdictional/Dispositional hearing is expected due to ICWA timelines, the social worker may wait to submit the ICWA-030 to clerical until the date for the rescheduled hearing is received.  The icwa-030 must be submitted 15 calendar days prior to the rescheduled hearing date.
     
  • Reviews the form after any clerical revisions and then returns it to clerical.
  • Files in the case file the copy of the ICWA-030 received back from clerical.
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Service Bureau Social Worker Responsibilities  

Upon being assigned a case, the Service Bureau social worker reviews the case file for information regarding ICWA status.

If.. Then..

Previous inquiries by ER, EI or DI social workers found that:

  • The parents and birth family stated they had no American Indian or Alaskan Eskimo heritage

or

  • The tribe(s) and/or the BIA was notified of possible American Indian/Alaskan Eskimo heritage and the Court subsequently made a legal finding that ICWA does not apply.

 

No further action is required, unless the social worker learns through new information that indicates the act may apply.

A response from the tribe(s) and/or the BIA is pending

A JV-135 Notice must be sent for each Status Review Hearing to all tribes and/or the BIA until a determination is made by the tribe(s) or BIA and the Court makes a finding regarding ICWA.

  • ICWA Noticing must be received by the tribe 10 calendar days prior to the date of the hearing. 
  • Social workers must submit the JV 135 to clerical staff at least 20 calendar days prior to the hearing in order to allow time for processing by clerical in order to meet the 10 calendar day requirement.
  • If a continuance of the hearing is expected due to ICWA timelines, the social worker may wait to submit the JV-135 to clerical until the date for the rescheduled hearing is received.  The JV-135 must be submitted to clerical at least 20 calendar days prior to the rescheduled hearing date.
An absent parent is located or comes forward
  • Ask the parents about American Indian/Eskimo heritage.
  • Complete the Declaration of Parent Regarding Indian Ancestry.
  • Have the parents sign the Declaration form.
  • Document any statements regarding American Indian/Eskimo heritage in a Contact Note in CWS/CMS.
  • Provide proper noticing (at least 10 calendar days prior to the Hearing), if ICWA does or may apply. (See next box.)

The Continuing social worker learns through new information that  the child may be of Indian heritage

In order to provide proper noticing:

    • The JV-135 self-populates most fields.  However, the SW must review the forms for completion and correctness.
  • Print out the form and correct or completes all necessary information.
  • Attach:
    • A copy of each child's petition and
    • A copy of each child's birth certificate.
  • Submit the form to clerical for verification of tribe address(es) and mailing.
    • ICWA Noticing must be received by the tribe 10 calendar days prior to the date of the hearing. 
    • Social workers must submit the JV-135 to clerical staff at least 20 calendar days prior to the hearing in order to allow time for processing by clerical in order to meet the 10 calendar day requirement.
    • If a continuance of the hearing is expected due to ICWA timelines, the social worker may wait to submit the JV-135 to clerical until the date for the rescheduled hearing is received. 
  • Review the form after any clerical revisions and then returns it to clerical.
  • File in the case file the copy of the JV-135 received back from clerical.

The tribe has determined that a child is a member or is eligible for membership and the Court finds that ICWA applies

 

Provide the tribe with the standard Notice (SC1423) for each Hearing.

There is a 366.26 Hearing set to terminate parental rights and the Court has previously made a finding that ICWA applies

  • Contact County Counsel to arrange for expert testimony/
  • Provide written notice of the hearing to the child's parents or Indian custodian and the child's tribe by registered mail, return receipt requested, even if the child's tribe has not been a party to any prior proceedings related to the welfare of the child.

Any social worker has any questions about procedures for completing the JV-135

Contact the DFCS Coordinator.

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How to Generate the JV-135 in CWS/CMS  

The Notice of Involuntary Child Custody Proceedings for an Indian Child (JV-135) is the written notice that must be sent to parents or Indian custodians and the child's tribe to inform those parties of certain juvenile dependency hearings. The Notice of Involuntary Child Custody Proceedings for an Indian Child (JV-135) must be generated in CWS/CMS.  Because it is auto-populated from the Client Parent Notebook, the correct information about the parents must be entered in the Client Parent Notebook.  The information must be current to assure that the Notice is delivered to the proper parties at the correct address.  Furthermore, the client relationships in CWS/CMS must be correct in order for information regarding related clients to be selected to populate the JV-135, as necessary.

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Clerical Procedures for ICWA  

Clerical staff able to complete ICWA Noticing are as follows for the respective DFCS offices:

DI Clerical

  • Sophia Abundiz
  • Richard Vanderlei
  • Marlyn Lopez
  • Mayela Salcido

Continuing Service Bureau C Clerical /Julian:

  • Gina Casillas
  • Backup: Rose Bacani

Continuing Service Bureaus A & B Clerical/Julian:

  • Crystal Abril
  • Backup: Danny Estrada

Gilroy Clerical :

  • Mayela Salcido
  • Monica Lepik

Procedures

Upon receiving a ICWA-030 form from the social worker, the clerical staff:

  • Opens the form in CWS/CMS.
    • The form can be accessed in the Court Management Section by clicking the Existing Documents icon.
       
  • Signs the ICWA-030 on page 6.
    • Only one form needs to be signed for filing with the County Clerk . Copies may be made from the original for other mailings.
       
  • Checks that a copy of each child's petition and birth certificate (if available) are attached to the ICWA-030.
  • Mails to the parents, the BIA and the tribe(s), via certified mail with return receipt requested , a copy of the petition and birth certificate (if available) with a copy of the signed ICWA-030 attached.
    • A copy of the ICWA-030, petition and birth certificate (if available) must be sent to each tribal organization.
       
  • Files the ICWA-030 with the original signature with the County Clerk .
    • Attach a copy of the petition and birth certificate (if available) to the ICWA-030.
  • Returns to the social worker:
    • A copy of the ICWA-030.
    • The original green mailing receipts.
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ICWA Noticing for Sibling Groups  

If the siblings have the same parents, create the ICWA-030 for the oldest child in the sibling group, with all of the children's names typed on that form. A JV-135 should not be created for any full siblings, except for the oldest child in the sibling group. If, however, the siblings do not have the same parents, a separate form will need to be generated for each child with a different parent.  Each child's and parent's client notebook in CWS/CMS must be kept current.

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Other References  
bullet2 Indian Child Welfare Act
Popup Window2 CWS/CMS Documenting Indian Ancestry/Status/JV-135 (ICWA)
PDF List of Federally Recognized Tribes
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