Higher Standard Under ICWA

Subd. 1. Greater Protection under State Law. The Indian Child Welfare Act (ICWA), 25 U.S.C. section 1921, provides that if state or federal law establishes a higher standard of protection Published by the Revisor of Statutes under Minnesota Statutes, section 3C.08, subdivision 1. JUVENILE COURT 232 MINNESOTA COURT RULES to the rights of the parent or Indian custodian of an Indian child than the Indian Child Welfare Act, the court shall apply the state or federal standard. The Minnesota Indian Family Preservation Act (MIFPA), Minnesota Statutes, sections 260.751 to 260.835, may provide a higher level of protection than ICWA in ICWA proceedings. Subd. 2. Active Efforts. Both ICWA and MIFPA require the court to make findings regarding active efforts, as defined in Rule 2.01(1), throughout the proceedings. The active efforts standard provides a higher level of protection than reasonable efforts. Active efforts include reasonable efforts, but reasonable efforts may be found without meeting the threshold for active efforts. Subd. 3. Standard of Proof. Pursuant to ICWA, 25 U.S.C. section 1912(f), in a termination of parental rights matter involving an Indian child, the standard of proof is beyond a reasonable doubt. In all other juvenile protection matters concerning an Indian child, the standard of proof is clear and convincing evidence. Subd. 4. Notice Standards. ICWA, 25 U.S.C. section 1912(a), and Rule 30.01 require the petitioner to provide an additional notice of the proceedings to the parent, Indian custodian, and the Indian child's tribe. Subd. 5. Placement Preferences. The court shall follow the order of placement preferences required by ICWA, 25 U.S.C. section 1915, when placing an Indian child. The court may only place an Indian child outside of the order of placement preferences on a written finding of good cause pursuant to MIFPA, Minnesota Statutes, section 260.771, subdivision 7. Subd. 6. Appointment of Counsel. Appointment of counsel for an Indian child, or for a parent or Indian custodian of an Indian child, who is the subject of a juvenile protection matter, shall be pursuant to ICWA, 25 U.S.C. section 1912(b).