An Agreed Order of Dependency Does Not Constitute a Voluntary Placement Under the Indian Child Welfare Act

A new case from the court of appeals, division II, In Re the Welfare of MG, # 36975-3, held that the initial involuntary foster-care placement of an Indian child per the Indian Child Welfare Act cannot be considered voluntary at a later date, even if the mother later agrees.

The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.

In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.

In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.

In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.

However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.