Colo. Code Regs. 2509-4

CODE OF COLORADO REGULATIONS
2500. DEPARTMENT OF HUMAN SERVICES / SOCIAL SERVICES
2509. SOCIAL SERVICES RULES


2509-4. Overview of Child Welfare Services


7.309 Indian Child Welfare Act (ICWA) of 1978


Rev. eff. The Indian Child Welfare Act of 11/1/98 1978 is federal legislation that establishes standards for the placement of Native American children in foster care or adoptive homes. All rights and privileges afforded to parents and children in any other section of this manual are applicable to rights and privileges for Native American parent(s), Indian Custodian(s), and children under jurisdiction of county departments.



7.309.1 Definitions


Add eff. A. Active Efforts - efforts 12/1/00 which 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.


Rev. eff. B. Emergency Placement - 11/1/98 child(ren) must be in imminent physical damage or harm with clear and convincing evidence available to be presented before the court.


C. Indian Custodian - any Native American who has legal custody of a Native American child under tribal law, custom, or by state law, including those situations when the parent has transferred temporary physical care, custody, and control to another individual.


D. Native American Tribe - any Native American tribe, band, nation, or other organized group federally recognized as eligible for the services provided to Native Americans including Native Alaskans.


Add eff. E. Qualified Indian Expert 12/1/00 Witness - an individual who is experienced and knowledgeable about Indian culture, childrearing practices, and traditions.


Rev. eff. F. Tribal Court - a court 11/1/98 established and operated under the code or custom of a Native American tribe to have jurisdiction over child custody matters.


7.309.2 Determination of Eligibility - Indian Child Welfare Act


7.309.21 Specific Eligibility Criteria Native American children served under the Indian Child Welfare Act shall meet the following criteria for eligibility in addition to generic eligibility requirements for services in foster care or adoption.


A. The child must be:


1. unmarried; and,


2. under 18 years of age; and,


3. a member of a Native American tribe; or,


4. eligible for membership in a Native American tribe and the biological child of an eligible member of a Native American tribe.


B. In addition, the parent(s) or Indian Custodian(s) must be:


1. a member of a tribe; or,


2. eligible for membership of a tribe.



7.309.3 Notification Requirements - Indian Child Welfare Act


7.309.31 Notification Requirements - Indian Child Welfare Act


The county department must notify any potential tribal court of jurisdiction that a Native American child is in need of foster care or termination of the parent-child legal relationship, except in an emergency placement, as required by the Indian Child Welfare Act of 1978, including:


A. any involuntary placement of a child for foster care; or


B. any voluntary placement of any Native American child for foster care or petition for relinquishment as provided in the Tribal-State agreement under the Indian Child Welfare Act of 1978.


7.309.32 Initial Notification - Involuntary Placements - Indian Child Welfare Act

A. The county department shall give notice in involuntary placements by telephone within 48 hours, followed by a registered letter with return receipt requested, to the parent(s), Indian Custodian(s), if applicable, and the child's tribe.


B. The county department shall observe the following timelines (except for emergency placements) before a judicial request for placement can be made. The county department shall wait at least 10 working days after receiving the return receipt of notice before proceeding with a judicial request when the notice has been sent to: 1. The parent(s) or Indian Custodian(s), If the parent(s) or Indian Custodian(s) requests time to prepare for the proceeding, the county department shall petition the court to set the hearing 30 calendar days after receipt of notice. 2. The tribe. If the tribe requests time to prepare for the proceeding, the county department shall petition the court to set the hearing 30 calendar days after receipt of notice. 3. The Bureau of Indian Affairs.


7.309.33 Initial Notification - Voluntary Placements - Indian Child Welfare Act


A. The county department shall give notice to the tribe, when a placement is voluntary or a relinquishment is contemplated, in the same manner as noted immediately above, or according to the Tribal-State Agreement if the child is a Colorado Ute.


B. The county department shall file a Petition for the Review of Need of Placement by the 90th day of out-of-home care as outlined in Court Related Procedures, Section 7.304.53.


C. The county department shall follow step B. outlined in Section "initial Notification-Involuntary Placements" when the child is placed due to a voluntary relinquishment.


7.309.34 Continuous Notification for involuntary and Voluntary Placements - Indian Child Welfare Act


The county department shall be responsible for informing the tribal court of jurisdiction of placement moves for Native American child(ren).



7.309.4 Transfer of Jurisdiction from State Court to Tribal Court


A. Upon the tribe's petition for transfer of jurisdiction, the county department shall carry out the transfer to the tribe within 5 working days, unless either parent or the Indian Custodian(s) objects to a transfer or the court determines there is good cause not to transfer jurisdiction.


B. The county department shall prepare child(ren) for legal transfer to the tribal court of jurisdiction as appropriate to their age. Such preparation shall include:


1. Information about reasons for the transfer and its timing.


2. Involvement of the child in the plans for transfer (see Pre-Placement Activities, Section 7.304.61).



7.309.5 Foster Care and Pre-Adoptive Placement -Indian Child Welfare Act


The county department shall make every effort to make placements:


A. In the most appropriate least restrictive setting that most approximates a family and that best meets the needs of the child.


B. Within a reasonable distance to the child's home.



7.309.6 Order of Reference - Indian Child Welfare Act (Foster care and Pre-Adoptive Placement)


The county department shall place eligible Native American children for foster care or pre-adoptive placement according to the following order of preference. It shall do so, unless the child's tribe has established another order, or without good cause to the contrary, as documented in the child's record.


For Out-of-Home Care/Pre-Adoptive Placement


A. Under Indian Child Welfare Act regulations, the county department shall use the following order of preference. The county department shall contact the appropriate tribe to identify if it has a different placement preference than the following:


1. Member of child's extended family.


2. Foster home licensed, approved or specified by the Native American child's tribe.


3. Native American foster home licensed/approved by an authorized non-Indian authority.


4. Institution for children approved by a tribal or state authorized licensing authority that has programs suitable to meet the needs of Native American children.


B. The county department shall follow a different order of preference if one is established by the tribe, so long as the placement is the most appropriate and least restrictive setting to meet the child's needs. Where appropriate, the preference of the Native American child or parent(s) shall be considered, if a consenting parent has a desire for anonymity, the county department shall give weight to such desire in applying the preferences.



7.309.7 For Voluntary Placements - Indian Child Welfare Act (See Court Related Procedures, Section 7.304.53)


A. The county department shall not accept voluntary consent for foster or adoptive care unless all of these conditions are met:


1. The child is over 10 days old.


2. The consent is voluntary and obtained free of fraud or duress.


3. The consent is in writing and recorded before a judge.


4. The consent is accompanied by the judge's certificate ensuring that terms and consequences of the consent were fully explained in:


a. Detail and fully understood by the parent(s) or Indian Custodian(s).


b. English or interpreted into a language understood by the parent(s) or Indian Custodian(s).


B. The county department shall ensure that the Consent signed by the parent(s)/Indian Custodian(s) shall contain all of the following:


1. Name and birth date of child.


2. Name of child's tribe.


3. Child's enrollment number or other indication of membership in the tribe.


4. Name and address of consenting parent(s)/custodian(s).


5. Name and address of prospective parent(s), if known, for substitute care placements.


6. Name and address of person or agency through whom placement arranged, if any, or adoptive placements.



7.309.8 Adoptive Placements - Indian Child Welfare Act


7.309.81 Involuntary Termination of Parent-Child Relationship - Indian Child Welfare Act

When terminating the parent-child legal relationship of a child who is eligible under the Indian Child Welfare Act, the county department shall provide the court of jurisdiction with evidence beyond a reasonable doubt, including testimony of qualified expert witnesses (qualified in Native American cultural matters pertinent to the situation), that continued custody of the child by the parent(s) or Indian Custodian(s) is likely to result in serious emotional or physical damage to the child.


7.309.82 Relinquishment of Child for Adoption


A. A voluntary relinquishment of an Native American child may be done in a state court when the parent(s) chooses to file a relinquishment petition under Colorado statutes.


B. The county department shall not petition the court for relinquishment before 10 days after the child's birth.


C. The county department shall place the child into out-of-home care during the 10 day waiting period with a Request for Placement (Consents) that has been signed before the court by the mother (or father, if he holds custody). Consents given before the 10 days shall not be valid.


D. The county department shall follow the procedure outlined for court ordered placement in the "Initial Notification - Involuntary Placements" section. If the child is from either Ute tribe, the county department shall comply with the Tribal-State Agreement.


7.309.83 Order of Preference - Indian Child Welfare Act


The county department shall make placements of eligible Native American children for adoption according to the following order of preference, unless there is good cause to the contrary as determined by the court:


A. A member of the child's extended family.


B. Other members of the Native American child's tribe.


C. Other Native American families.



7.309.84 Disrupted or Changed Placement - Foster Care or Adoption - Indian Child Welfare Act


Notice to Parent(s) and the Tribe


A. When a foster care placement is changed before a termination or relinquishment of the parent-child legal relationship, the county department shall notify the parent(s), Indian Custodian(s), and the tribe within 10 days of the child's change of placement.


B. When a final decree of adoption of a Native American child has been vacated or set aside or the adoptive parent(s) has voluntarily consented to the termination of his or her parental rights to the child, the county department shall notify the child's parent(s), Indian Custodian(s), or tribe of jurisdiction within 10 working days. These parties may petition for return of custody and the court shall grant such petition unless there is a showing that such return of custody is not in the best interests of the child. (See Order of Preference, Section 7.309.83.) This notice shall inform the recipient of her or his right to petition for return of custody of the child. The tribe shall also be notified of changes or disruptions in adoptive placements.

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