65C-28.013. Indian Child Welfare Act

The Indian Child Welfare Act of 1978 (the Act) is federal legislation found in 25 U.S.C. 1901 et seq., that governs child custody proceedings involving children who are members of an Indian tribe or Alaskan Native children as defined by the Act.

(1) The child welfare professional shall determine at the onset of each child protective investigation if the child is a member of an Indian tribe or Alaskan Native child as defined by the Act. To determine eligibility, the child welfare professional shall complete the Verification of Indian Child Welfare Act Eligibility form, CF-FSP 5323, January 2008, incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-11417, and submit it to the Children’s Legal Services (CLS) attorney. A Spanish version of the Verification of Indian Child Welfare Act Eligibility form, CF-FSP 5323S, January 2008, is incorporated by reference and available at http://www.flrules.org/Gateway/reference.asp?No=Ref-11418. If a child involved in a child protective investigation is suspected of being eligible for the protections of the Indian Child Welfare Act, CLS shall notify the Tribe immediately, but in no case later than one business day, and all legal proceedings and case planning activities shall be in compliance with the provisions of the Act and with any existing written Tribal Agreements between the Department and the child’s tribe, unless or until it is determined that the Child is not eligible for the protections of the Act. All child protective investigations, ongoing safety and case management, and legal proceedings activities shall be documented in the Florida Safe Families Network (FSFN).

(2) The Indian child’s parent or Indian custodian and his or her tribe shall be noticed of all legal and case planning activities. Any correspondence to or from the tribe shall be documented in FSFN and made a part of the court record and the Department or contracted service provider shall request to the court that the child’s eligibility for the protections of the Indian Child Welfare Act be included in all findings and orders of the court.

(3) The criteria for enrollment in a tribe is established by the individual tribe and its decision is conclusive.

(4) If the tribe does not respond to written notification by the Department that an Indian child is the subject of an investigation, the Department or contracted service provider shall continue with ongoing efforts to communicate with the tribe. If the Indian tribe does not respond after continued efforts to communicate with the tribe have been made, the Department or contracted service provider shall write or call the Bureau of Indian Affairs area office located in the geographic region of the United States in which the child’s tribe is located. Cases in which Indian ancestry has been reported to the Department or contracted service provider shall be handled as ICWA cases until proven to be otherwise.

(5) If the tribe does not assume legal jurisdiction, the tribe shall continue to receive notice of all judicial hearings and case planning reviews and be kept informed of changes in the status of the case. The tribe has a right to examine all reports or other documents filed with the court.

(6) If the tribe assumes legal jurisdiction, all case file documents (except the name of the reporter of the abuse, abandonment or neglect) and the child shall be released to the tribe.

(7) Placement of an Indian child shall be made in accordance with the placement preferences outlined in the Act. Attempts to place a child in accordance with the placement preferences outlined in the Act, and any failure to do so, shall be documented in FSFN. The placement preferences apply upon each move of the child while in out-of-home care.

(8) The Department or contracted service provider shall consult with Children’s Legal Services regarding issues related to compliance with the provisions of the Indian Child Welfare Act. Consultation and the results of the consultation shall be documented in FSFN.

Rulemaking Authority 39.012, 39.0121(12), (13) FS. Law Implemented 39.0137 FS. History–New 5-4-06, Amended 5-8-16, 1-12-20.