California Indian Legal Services Sample Memorandum of Understanding Between a Tribe and County for Tribes to Conduct Criminal Background Checks
MEMORANDUM OF UNDERSTANDING
BETWEEN THE [TRIBE] AND [COUNTY DSS]
This Memorandum of Understanding (“MOU”) is by and between the [NAME] Tribe (the “Tribe”) and the [NAME] County Department of Health and Human Services, Child Welfare Services Division (the “CWS”) (referred to collectively as “the Parties”.) It is the mutual goal and objective of the Parties to ensure that the Tribe’s children are placed in safe, healthy and secure tribally approved homes. In furtherance of this goal and objective the Parties agree to cooperate and work corroboratively on ensuring, to the extent possible, that tribal children remain within the tribal community and placed with the family members or in another tribal home.
I. DEFINITIONS
1. “CACI” means the Child Abuse Central Index.
2. “Contact” means by telephone, including cell phone, email, and text or in person.
3. “CWS” means the County Department of Health and Human Services, Child Welfare Services Division.
4. “DOJ” means the California Department of Justice.
5. “ICWA” means Indian Child Welfare Act, 25 U.S.C. § 1901 et. seq.
6. “Indian Child” mean a child defined under the ICWA § 1903(4)(an unmarried minor who is an enrolled member of the Tribe or a minor that is eligible for membership in the Tribe and has one biological parent that is an enrolled tribal member.)
7. “TAH” means Tribally Approved Home.
8. “TDSS” means Tribal Department of Social Services.
II. RECITALS
1. On [DATE], the DOJ approved the Tribe, pursuant to Health and Safety Code § 1522 et. seq., to conduct criminal background and CACI checks. This DOJ approval allows the Tribe to certify a home as a TAH for placements of tribal children who have been removed from their home by the CWS under Welfare & Institution Code § 300 et. seq. and the ICWA.
2. In carrying out the Tribe’s background check duties and responsibilities, the Parties agree to work together on areas proscribed under § 1522 and set forth under this MOU.
III. CRIMINAL BACKGROUND AND CACI ASSISTANCE
3. Upon request, CWS will intervene and assist the Tribe in obtaining information and/or documentation from other County CWS divisions regarding allegations of severe and substantiated child abuse or neglect needed by the Tribe in conducting its investigation of a CACI “Possible Pending Match” on a person in or involved in a home under consideration for TAH approval.
4. Upon request, CWS will intervene and assist the Tribe in obtaining information and/or documentation such as police reports and/or state court records concerning a conviction for an exemptible crime.
IV. CERTIFICATION OF AND PLACEMENT IN TAHS
5. The Tribe will provide CWS with written certification on each and every family that has been designated as a TAH. The certification shall include that all adults in and associated with the home have been cleared through a criminal background and CACI search pursuant to and consistent with California Health & Safety Code sections 1522 and 1522.1.
6. The certification shall identify all adult members of the household and/or associated with the home, including the person’s date of birth, residence, relationship to the home, and date cleared or granted an exemption.
7. In order to fully utilize TAH placements, CWS shall contact the TDSS or other tribally designated person or agency in emergency and non-emergency cases involving an Indian child of the Tribe prior to removing the Indian child in order to obtain the Tribe’s approval of placement in an available TAH.
8. If CWS is unaware prior to removing a child from his/her home that they are an Indian child of the Tribe, CWS will immediately contact the TDSS to obtain approval of an available TAH.
V. SUBSEQUENT ARRESTS AND CONVICTIONS
9. TDSS will contact CWS within 24 hours upon receiving notice from the DOJ that a person residing in the TAH, a person associated with the TAH, or person who was granted an exemption has been arrested and/or has been convicted since the TAH was approved or the exemption was granted. The Parties will “meet and confer” in person or via conference call on all DOJ notices of subsequent arrests and convictions.
10. ARREST: If the DOJ notice is for a new arrest, the TDSS will notify the person arrested and conduct an investigation into the circumstances of the incident, the nature of charge, and other pertinent information. This information will be shared with CWS and a joint determination will be made on whether the person arrested should be allowed to remain in the home or associate with home pending the final outcome of the arrest. Guiding the Parties in their determination on how to proceed shall be:
a. Is the arrest for a non-exemptible crime (state, federal and federal 5-year ban crime)?
b. Is the arrest for a violent misdemeanor or felony?
c. Does the underlying crime the person was arrested for pose a risk to the health and safety of the dependent child?
11. CONVICTION:
a. If the DOJ notice identifies that the new conviction was committed by a person residing in the TAH and was for a:
i. non-exemptible crime (state, federal and federal 5-year ban crime);
ii. violent misdemeanor or felony; or
iii. another crime that constitutes a threat to the health and safety of the child or children.
TDSS will immediately contact CWS and the Applicant caregiver to notify them that the approval of the home as a TAH has been revoked and that the child or children will be removed. The TDSS will assist CWS with removing the child or children from the home and placing them in another TAH if available.
b. If the new conviction was committed by a person associated with the home and for a crime list in a. above, TDSS will immediately contact CWS for a “meet and confer” to determine if the person can effectively be banned from having any association with the home and contact with the child or children or whether the home’s TAH designation must be revoked.
c. If the conviction is for an exemptible crime, TDSS and CWS will meet and confer on whether the person should be allowed to remain in or associate with home and children, pending a request and outcome of an exemption.
VI. MISCELLANOUS PROVISIONS
The Tribe may consider other provisions of cooperation and collaboration with its County CWS. The provisions of this MOU were identified during the training as areas that the Tribe may need assistance with in carrying out the criminal background check and CACI search. The provisions addressing 24 hour notice of subsequent arrests and convictions and joint decision making on how to address the arrest or conviction are required by state law and should be included in any MOU the Tribe choses to have with the County CWS.
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