44 Children’s Legal Rights Journal [Vol. 37: 1 2017]
ICWA disregards this warning, however, and imposes heavier burdens of proof in cases
involving Indian children than apply to children of other races. In order to place an Indian child
in foster care, the state must prove by clear and convincing evidence—as opposed to reasonable
grounds or probable cause—that allowing the child to remain in the parent’s custody “is likely to
result in serious emotional or physical damage to the child,” and such a funding must be based
on expert testimony.246 And in cases involving termination of parental rights, ICWA imposes
the beyond a reasonable doubt standard that the Santosky Court rejected.247 These different
burdens mean that “caseworkers and attorneys are sometimes reluctant to accept surrenders of, or
terminate parental rights to, an Indian child,”248 even where that would be in the child’s best
interest. Obtaining expert testimony is costly for social services agencies operating on limited
budgets and staff.249 Requiring proof of serious physical damage is also likely to delay the
removal of children from dangerous situations.
One distressingly common fact pattern in cases involving termination (as well as “active
efforts”) occurs when the parents of an Indian child separate, and the mother remarries. When
her new husband seeks to adopt her child as his own, the ex-husband is then empowered to use
ICWA to block what would otherwise be the formation of a stable new family.250 This is often
not only contrary to the child’s best interests, but to the wishes of Indian parents themselves.251
246 25 U.S.C. § 1912(e).
247 Id. § 1915(f).
248 Debra Ratterman Baker, Indian Child Welfare Act, 15 CHILD. LEGAL RTS. J. 28, 28 (1995).
249 See Hollinger, supra note 10, at 500 (“Congressional funding for the remedial services authorized by the ICWA
has consistently been lower than the $12 million per annum recommended by the Senate Select Committee. State
welfare programs are often unavailable for reservation domiciliaries.”).
250 See, e.g., In re N.B., 199 P.3d 16 (Colo. App. 2007); State ex. rel. D.A.C., 933 P.2d 993 (Utah Ct. App. 1997);
Adoption of Lindsay C., 229 Cal. App. 3d 404 (1991); In re Crystal K. 226 Cal.App.3d 655 (1990).
251 One example of the kinds of delays imposed by ordinary application of ICWA is In re Adoption of Josiah P.,
2016 WL 245200 (Cal. Ct. App. Jan. 21, 2016). A young unmarried couple, Jessica and Tyler, ended their
relationship after about six months. Id. at 1–2. Tyler was a habitual drug abuser, unfaithful, and often verbally
abusive to Jessica. Id. at 1. He provided her no financial support for her, despite having plenty of expendable
income. Id. at 5. He admitted repeatedly that he was uninterested in parenting a child, and showed no interest in