ICWA 2016 Regulations

Here is a link to helpful ICWA resources – it also includes the ICWA 2016 final regulations.


Additionally, I have included questions and answers from last session that were either not addressed during the session or needed further research. 


Question 1:  So ... the outline says clear and convincing for ICWA removal ... but Brooke said beyond a reasonable doubt.

Answer:  The outline is correct, the standard for removal is clear and convincing evidence.  Beyond a reasonable doubt however, is the standard in TPR cases for ICWA.  If I said during the course that beyond a reasonable doubt applies to removal, it was just me mis-speaking.  To reiterate:

Removal = clear and convincing

TPR = beyond a reasonable doubt


Question 2: Would the Youngberg v. Romeo case include foster children in its definition of "institutionalized" children who are dependent on the state?

Answer:  Yes, it includes any person who is in the custody of the state (ie – foster care, detention, jail, mental health institution).  There have been a number of class action law suits on behalf of children in foster care alleging that the state was not adequately providing for their care. 


Question 3:  The Red Book was not clear about whether ICWA actually applies to delinquency cases (DL cases). You said ICWA is inapplicable in DL cases. Are there any recent cases or does this remain unsettled law?

Answer:  ICWA does not apply to juvenile delinquency proceedings in which the alleged crime committed by the child would also be a crime if committed by an adult – with the following caveat: ICWA may also apply in a juvenile delinquency proceeding where the basis for the proceeding is a criminal act by the child, but the proposed out-of-home placement is based upon the fitness of the parents rather than the criminal act by the child.

ICWA does apply to status offenses – those that would not be a crime if committed by an adult. 



Best Regards,

Brooke N. Silverthorn, JD, CWLS

Director of Legal and Policy Advocacy
National Association of Counsel for Children
13123 E. 16th Avenue, B390
Aurora, CO  80045
(303) 864-5323