Uniform State ICWA: Adjudication
In the Uniform State ICWA, the biggest change we made in the drafting was to assign the requirements of ICWA to specific state hearings. This means the act provides some clarity to courts as to when they are expected to make certain findings, as well as provides almost benchbook level instruction to judges as to what to do at each hearing.
I'm skipping a bit ahead here--the Uniform State ICWA is divided into 13 Articles, and those Articles divide into Sections. The dependency article does not start with the adjudicatory section, but rather with the emergency/preliminary hearing section. However, the last post I made on emergency jurisdiction touched on this aspect of the act, so I'm moving ahead to the potentially most important hearing in a dependency--the adjudication trial or hearing. In California, this is called the jurisdiction hearing or trial, and other states may call it the fact-finding trial. It is the hearing where a petitioner must prove their case to establish the court's jurisdiction over a parent. Or bring the child under the jurisdiction of the court. Or establish the child as a dependent. All depending on which state you're in. harhar
State Law
And since I am in Michigan, I'm going to use Michigan as an example. In Michigan this hearing is a "fact-finding adjudication" of the petition to determine if the "minor comes with in the jurisdiction of the court." MI Benchbook. This phase of an abuse-neglect/dependency exists to protect the parent's right to the care, custody, and control of their child, balanced with the state's requirement to keep children safe (what is required for this and what safe looks like is the subject of debate, discussion, and litigation, but for the purposes of this post, we'll assume it). Strangely, this phase is so important to the parent's constitutional rights, yet may be conducted in an "informal" manner.
The trial/adjudication must happen within 63 days if the child is in an out-of-home placement, unless it is postponed due to specific reasons. The burden of proof at this hearing is a preponderance of evidence. MCR 3.972. The court must find that one of the statutory grounds are met to that standard in order to take jurisdiction, which are described in MCL 712A.2(b). However, no where in either the MCR or MCL regarding this trial include the requirements of 25 USC 1912(e). In addition, just last week the Michigan court rules changed to require the court to "state on the record or in written opinion its findings of fact and conclusions of law." MCR 3.972. In other words, this has been generally an informal process in all states for decades.
Now in Michigan, we have some good court rules that create a "removal hearing," MCR 3.967, for Indian children and include the requirements of 1912(e). There are some time frames to it (14 days, plus 20 if requested, plus the ability to continue under MCR 3.923, and the hearing may be held in combination with any other hearing). However, it would be possible to have the trial before the removal hearing, or vice versa, meaning the important ICWA/MIFPA protections wouldn't be made at the same hearing where the court is supposed to be weighing a parent's constitutional rights.
ICWA
My question has always been (not just mine, lots of practitioners) if a state has already removed a child under its state law requirements, but those don't reach the heightened standard of an ICWA removal, will the court overturn the adjudication? In practice, that's virtually never the case. Instead, most courts make those findings at the following disposition hearing (which almost, but not always, immediately follows the adjudication). See In re C.J.J.I., (Wn. 2025).
As most of us know, ICWA requires clear and convincing evidence that the continued custody of the child by the parent (or Indian custodian) is likely to result in serious physical or emotional damage to the child. The evidence must include the testimony of a qualified expert witness, and a court must be satisfied that active efforts were made to prevent the breakup of the family, but failed. 25 U.S.C. 1912(d), (e). This is a higher burden of proof than state law requires--clear and convincing evidence, not preponderance; active efforts not reasonable; and the testimony of a qualified expert witness. If a state petitioner meets state law grounds but not ICWA grounds, the court ought to return the child to the parent. I personally have never seen this happen, and it is far less likely to happen if the court has already adjudicated the family.
Uniform State ICWA
The Uniform State ICWA (UStICWA) requires ICWA (plus) at the adjudication hearing. In Section 506 of the Act, the court must do an inquiry and ensure notice has been properly sent. The court must also note in the court record as to whether the Indian child's tribe is present. The court must also advise the parent of their right to counsel, and determine if the child should have counsel (beyond a GAL or CASA). The court then must inquire if any party wants to transfer the case to tribal court, and also determine if everyone has had access to the records in the case. The court has the power to order discovery if any party hasn't had access to the documents.
In order to adjudicate the child as a ward, or establish a dependency, or whatever phrasing your state uses, the court must make the following findings:
(b) The court may not find the Indian child is [dependent] unless the court also finds:
(1) the petitioner sent notice under [Article] 3;
(2) the court has jurisdiction under [Article] 4;
(3) by clear and convincing evidence, that active efforts under Section 1104 were made, but were unsuccessful, to prevent court intervention or supervision of the family; and
(4) without court supervision of the family, the Indian child is at risk of serious emotional or physical damage.
If the court also wants to remove the child from the parent or Indian custodian, or keep the child removed it must:
(c) The court may order removal of a dependent Indian child only if the court applies the rules of evidence and finds by clear and convincing evidence:
(1) that active efforts under Section 1104 were made but were unsuccessful; and
(2) including the testimony of a qualified expert witness who satisfies Section 1105, that:
(A) custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian child; and
(B) a causal relationship exists between:
(i) the particular conditions in the home; and
(ii) the likelihood of serious emotional or physical damage to the Indian child.
In other words, the ICWA protections apply whether the child has been removed or not, and this must all happen at the hearing where the state court adjudicates the family. If the UStICWA does nothing else, it does assign these specific findings to the appropriate modern court hearings, which has been a subject of debate and litigation even 50 years after ICWA's passage. When people ask me what states with existing state ICWA laws can use or learn from the UStICWA, this is a big one.