Modifying The Burdens Of Proof For Indian Children Dependency Matters
The Spencer Report — January 15, 2010
Washington State’s Indian child welfare advocates, parents, and administrators should pay particular attention to a bill introduced in the Washington State Senate today by Senators Kauffman, Hargrove, Prentice, Gordon, Regala, Keiser, and McAuliffe. The bill was read once and referred to the Committee on Human Services and Corrections for further consideration in this session of the Washington State Legislature. The substance of the bill would modify the burdens of proof which are applicable in dependence matters involving Indian children. In one section of the bill, a court would be prohibited from ordering the removal of an Indian child from his or her home unless there was clear and convincing evidence demonstrating that the child would be subject to serious emotional or physical damage by remaining in the home. The bill also establishes guidelines that a court is required to follow when determining where optimal placement is for the child.
The termination of parental rights is the most drastic step a court can take with regard to rendering a decision on the future of a parental-child relationship and matters of custody. The bill as introduced would subject termination of parental rights hearings to state laws and procedures when the state has jurisdiction over such matters. In the event that a hearing is concluded, a court could order termination of parental rights to an Indian child as defined in the Indian Child Welfare Act only if allegations were found to be valid beyond a reasonable doubt. Continued custody of the Indian child by the parent would only be granted if there was not a likelihood of serious emotional or physical harm to the child. The next stage in the process of this bill will likely be a hearing at the Committee on Human Services and Corrections. Advocates and interested parties should begin to analyze and formulate a response to the bill as introduced.