23.0481.03000
Sixty-eighth
Legislative Assembly HOUSE BILL NO. 1536
of North Dakota
Introduced by
Representatives Davis, Conmy, Finley-DeVille, Hager, Henderson, Klemin, Pyle, Rohr, Weisz
Senator Luick
1 A BILL for an Act to create and enact sections 27-20.3-19.1, 27-20.3-19.2, 27-20.3-19.3,
2 27-20.3-19.4, and 27-20.3-19.5 of the North Dakota Century Code, relating to adopting a state
3 Indian child welfare act; and to amend and reenact section 27-20.3-19 of the North Dakota
4 Century Code, relating to Indian child welfare.
5 BE IT ENACTED BY THE LEGISLATIVE ASSEMBLY OF NORTH DAKOTA:
6 SECTION 1. AMENDMENT. Section 27-20.3-19 of the North Dakota Century Code is
7 amended and reenacted as follows:
8 27-20.3-19. Indian child welfare - Active efforts and procedures.
9 1. As used in this section and sections 27-20.3-19.1 through 27-20.3-19.5:
10 a. "Act" means this section and sections 27-20.3-19.2 through 27-20.3-19.5.
11 b. "Active efforts" means affirmative, active, thorough, and timely efforts intended
12 primarily to maintain or reunite an Indian child with the Indian child's family. Active
13 efforts required of the federal Indian Child Welfare Act of 1978 [25 U.S.C. 1901
14 through 1963] apply or may apply, including during the verification process. If an
15 agency is involved in the child-custody proceeding, active efforts must involve
16 assisting the parent or parentsa parent or Indian custodian throughwith the steps
17 of a case plan and withincluding accessing or developing the resources
18 necessary to satisfy the case plan. To the maximum extent possible, active efforts
19 should be provided in a manner consistent with the prevailing social and cultural
20 conditions and way of life of the Indian child's tribe and should be conducted in
21 partnership with the Indian child and the Indian child's parents, extended family
22 members, Indian custodians, and tribe. Active efforts are to be tailored to the
23 facts and circumstances of the case. The term includes:
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1 (1) Conducting a comprehensive assessment of the circumstances of the
2 Indian child's family, with a focus on safe reunification as the most desirable
3 goal, with ongoing timely assessment to determine when the threat is
4 resolved and placement of the Indian child can be returned to the custodian.
5 (2) Identifying appropriate services and helping the parentsa parent or Indian
6 custodian to overcome barriers, including actively assisting the parentsa
7 parent or Indian custodian in obtaining such services.
8 (3) Identifying, notifying, and inviting representatives of the Indian child's tribe to
9 participate in providing support and services to the Indian child's family and
10 in family team meetings, permanency planning, and resolution of placement
11 issues.
12 (4) Conducting or causing to be conducted a diligent search for the Indian
13 child's extended family members, and contacting and consulting with
14 extended family members to provide family structure and support for the
15 Indian child and the Indian child's parentsparent or Indian custodian.
16 (5) Offering and employing available and culturally appropriate family
17 preservation strategies and facilitating the use of remedial and rehabilitative
18 services provided by the Indian child's tribe.
19 (6) Taking steps to keep siblings together, if possible.
20 (7) Supporting regular visits with parentsa parent or Indian custodianscustodian
21 in the most natural setting possible as well as trial home visits of the Indian
22 child during any period of removal, consistent with the need to ensure the
23 health, safety, and welfare of the Indian child.
24 (8) Identifying community resources, including housing, financial,
25 transportation, mental health, substance abuse, and peer support services
26 and actively assisting the Indian child's parentsparent or Indian custodian or,
27 as appropriate, the Indian child's family, in utilizing and accessing those
28 resources.
29 (9) Monitoring progress and participation in services.
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1 (10) Considering alternative ways to address the needs of the Indian child's
2 parentsparent or Indian custodian and where appropriate, the family, if the
3 optimum services do not exist or are not available.
4 (11) Providing post-reunification services and monitoring.
5 b.c. "Adoptive placement" means the permanent placement of an Indian child for
6 adoption.
7 d. "Extended family member" means a relationship defined by the law or custom of
8 the Indian child's tribe or, in the absence of such law or custom, means an
9 individual who has reached the age of eighteen and who is the Indian child's
10 grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece
11 or nephew, first or second cousin, or stepparent.
12 e. "Foster care or non-foster care placement" means the removal of an Indian child
13 from the home of his or her parent or Indian custodian for temporary placement in
14 a foster home, qualified residential treatment program, residential care center for
15 Indian children and youth, or shelter care facility, in the home of a relative other
16 than a parent or Indian custodian, or in the home of a guardian, from which
17 placement the parent or Indian custodian cannot have the Indian child returned
18 upon demand. The term does not include an adoptive placement, a preadoptive
19 placement, and emergency change in placement under section 27-20.3-06 or
20 holding an Indian child in custody.
21 c.f. "Indian" means an individual who is a member of an Indian tribe, or who is a
22 native and a member of a regional corporation as defined under 43 U.S.C. 1606.
23 d.g. "Indian child" means any unmarried individual who is under the age of eighteen
24 and is either a member of an Indian tribe or is eligible for membership in an
25 Indian tribe and is the biological child of a member of an Indian tribe.
26 e.h. "Indian child custody proceeding" means a proceeding brought by the state
27 involving:
28 (1) Foster care or non-foster care placement;
29 (2) A preadoptive placement;
30 (3) An adoptive placement; or
31 (4) A termination of parental rights under section 27-20.3-20 for an Indian child.
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1 i. "Indian child's tribe" means the Indian tribe in which an Indian child is a member
2 or eligible for membership or, in the case of an Indian child who is a member of or
3 eligible for membership in more than one tribe, the Indian tribe with which the
4 Indian child has the more significant contacts.
5 f.j. "Indian custodian" means any Indian individual who has legal custody of an
6 Indian child under tribal law or custom or under state law or to whom temporary
7 physical care, custody, and control has been transferred by the parent of the
8 Indian child.
9 g.k. "Indian tribe" means an Indian tribe, band, nation, or other organized Indian
10 group or community of Indians recognized as eligible for services provided to
11 Indians by the United States secretary of the interior because of their status as
12 Indians, including any Alaska native village as defined in 43 U.S.C. 1602(c).
13 h.l. "Parent" means anya biological parent or parents of an Indian child or anyan
14 Indian individual who has lawfully adopted an Indian child, including adoptions
15 under tribal law or custom. The term does not include the unwed father if
16 paternity has not been acknowledged or established.
17 i.m. "Preadoptive placement" means the temporary placement of an Indian child in a
18 foster home, qualified residential treatment program, residential care center for
19 children and youth, home of a relative other than a parent or Indian custodian, or
20 home of a guardian after a termination of parental rights but before or in lieu of an
21 adoptive placement, but does not include an emergency change in placement
22 under section 27-20.3-06.
23 n. "Termination of parental rights" means any action resulting in the termination of
24 the parent-child relationship. It does not include a placement based upon an act
25 by an Indian child which, if committed by an adult, would be deemed a crime or a
26 placement upon award of custody to one of the Indian child's parents in a divorce
27 proceeding.
28 2. Before removal of an Indian child from the custody of a parent or Indian custodian for
29 purposes of involuntary foster care placement or the termination of parental rights over
30 an Indian child, the court shall find that active efforts have been made to provide
31 remedial services and rehabilitative services designed to prevent the breakup of the
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1 Indian family and that these efforts have proved unsuccessful. The court may not
2 order the removal unless evidence of active efforts shows there has been a vigorous
3 and concerted level of casework beyond the level that would constitute reasonable
4 efforts under section 27-20.3-26. Reasonable efforts may not be construed to be
5 active efforts. Active efforts must be made in a manner that takes into account the
6 prevailing social and cultural values, conditions, and way of life of the Indian child's
7 tribe. Active efforts must utilize the available resources of the Indian child's extended
8 family, tribe, tribal and other relevant social service agencies, and individual Indian
9 caregivers.
10 3. The court may order the removal of the Indian child for involuntary foster care
11 placement only if the court determines, by clear and convincing evidence, that
12 continued custody of the Indian child by the parent or Indian custodian is likely to
13 result in serious emotional or physical damage to the Indian child. Evidence must
14 show a causal relationship between the particular conditions in the home and the
15 likelihood that continued custody of the Indian child will result in serious emotional or
16 physical damage to the particular Indian child who is the subject of the proceeding.
17 Poverty, isolation, custodian age, crowded or inadequate housing, substance use, or
18 nonconforming social behavior does not by itself constitute clear and convincing
19 evidence of imminent serious emotional or physical damage to the Indian child. As
20 soon as the threat has been removed and the Indian child is no longer at risk, the state
21 should terminate the removal, by returning the Indian child to the parent or Indian
22 custodian while offering a solution to mitigate the situation that gave rise to the need
23 for emergency removal and placement.
24 4. The court may only order the termination of parental rights over the Indian child only if
25 the court determines, by evidence beyond a reasonable doubt that continued custody
26 of the Indian child by the parent or Indian custodian is likely to result in serious
27 emotional or physical damage to the Indian child.
28 5. In considering whether to involuntarily place an Indian child in foster care or to
29 terminate the parental rights of the parent of an Indian child, the court shall require that
30 a qualified expert witness must be qualified to testify regarding whether the Indian
31 child's continued custody by the parent or Indian custodian is likely to result in serious
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1 emotional or physical damage to the Indian child and should be qualified to testify as
2 to the prevailing social and cultural standards of the Indian child's tribe. An individual
3 may be designated by the Indian child's tribe as being qualified to testify to the
4 prevailing social and cultural standards of the Indian child's tribe. If the parties
5 stipulate in writing and the court is satisfied the stipulation is made knowingly,
6 intelligently, and voluntarily, the court may accept a declaration or affidavit from a
7 qualified expert witness in lieu of testimony. The court or any party may request the
8 assistance of the Indian child's tribe or the bureau of Indian affairs office serving the
9 Indian child's tribe in locating individuals qualified to serve as expert witnesses. The
10 social worker regularly assigned to the Indian child may not serve as a qualified expert
11 witness in child-custody proceedings concerning the Indian child. The qualified expert
12 witness should be someone familiar with the particular Indian child and have contact
13 with the parentsparent or Indian custodian to observe interaction between the
14 parentsparent or Indian custodian, Indian child, and extended family members. The
15 child welfare agency and courts should facilitate access to the family and records to
16 facilitate accurate testimony.
17 6. An emergency removal or placement of an Indian child under state law must terminate
18 immediately when the removal or placement is no longer necessary to prevent
19 imminent physical damage or harm to the Indian child.
20 7. To facilitate the intent of the act, the agency, in cooperation with the Indian child's tribe
21 of affiliation, unless a parent objects, shall take steps to enroll the Indian child in the
22 tribe with the goal of finalizing enrollment before termination.
23 SECTION 2. Section 27-20.3-19.1 of the North Dakota Century Code is created and
24 enacted as follows:
25 27-20.3-19.1. Indian child welfare - Jurisdiction over custody proceedings.
26 1. The act includes requirements that apply if an Indian child is the subject of:
27 a. A child-custody proceeding, including:
28 (1) An involuntary proceeding;
29 (2) A voluntary proceeding that could prohibit the parent or Indian custodian
30 from regaining custody of the Indian child upon demand; and
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1 (3) A proceeding involving status offenses if any part of the proceeding results
2 in the need for out-of-home placement of the Indian child, including a foster
3 care, preadoptive, or adoptive placement, or termination of parental rights.
4 b. An emergency proceeding other than:
5 (1) A tribal court proceeding; or
6 (2) A proceeding regarding a criminal act that is not a status offense.
7 c. An award of custody of the Indian child to one of the parents, including an award
8 in a divorce proceeding; or
9 d. A voluntary placement that either parent, both parents, or the Indian custodian
10 has, of his or her or their free will, without a threat of removal by a state agency,
11 chosen for the Indian child and that does not operate to prohibit the Indian child's
12 parent or Indian custodian from regaining custody of the Indian child upon
13 demand.
14 2. If a proceeding under subsection 1 concerns an Indian child, the act applies to that
15 proceeding. In determining whether the act applies to a proceeding, the state court
16 may not consider factors such as the participation of a parent or the Indian child in
17 tribal cultural, social, religious, or political activities; the relationship between the Indian
18 child and the Indian child's parent; whether the parent ever had custody of the Indian
19 child; or the Indian child's blood quantum.
20 3. If the act applies a