LRB-4244/1
GMM:lxk:jf
2007 - 2008 LEGISLATURE
March 13, 2008 - Introduced by Senator Jauch, cosponsored by Representatives
Musser and Sherman. Referred to Committee on Tax Fairness and Family
Prosperity.
SB572,4,10
1An Act to repeal 48.01 (2), 48.21 (5) (d) 2., 48.21 (5) (d) 3., 48.32 (1) (c) 2., 48.32
2(1) (c) 3., 48.355 (2d) (c) 2., 48.355 (2d) (c) 3., 48.357 (2v) (c) 2., 48.357 (2v) (c) 3.,
348.365 (2m) (ad) 2., 48.415 (2) (a) 2., 48.685 (1) (br), 48.685 (1) (e), 48.983 (1) (d),
448.983 (1) (e), 48.983 (1) (h), 938.02 (18g), 938.21 (5) (d) 2., 938.21 (5) (d) 3.,
5938.32 (1) (d) 2., 938.32 (1) (d) 3., 938.355 (2d) (c) 2., 938.355 (2d) (c) 3., 938.357
6(2v) (c) 2., 938.357 (2v) (c) 3., 938.365 (2m) (ad) 2. and 938.538 (6m) (a) 1.;
to
7renumber 48.01 (1), 48.01 (1) (h) and 938.02 (9m);
to renumber and amend
848.20 (8), 48.21 (5) (d) 1., 48.273 (1), 48.32 (1) (c) 1., 48.355 (2d) (c) 1., 48.357 (1)
9(am) 2., 48.357 (2m) (c), 48.357 (2v) (c) 1., 48.365 (2m) (ad) 1., 48.424 (1), 48.981
10(1) (cs), 938.21 (5) (d) 1., 938.273 (1) (c), 938.32 (1) (d) 1., 938.355 (2d) (c) 1.,
11938.357 (2m) (c), 938.357 (2v) (c) 1. and 938.365 (2m) (ad) 1.;
to amend 48.02
12(2), 48.02 (13), 48.02 (15), 48.13 (intro.), 48.14 (intro.), 48.15, 48.19 (2), 48.195
13(2) (d) 7., 48.20 (2) (ag), 48.20 (2) (b), 48.20 (3), 48.20 (7) (c) (intro.), 48.20 (7) (c)
141., 48.20 (7) (d), 48.21 (3) (am), 48.21 (3) (b), 48.21 (3) (d), 48.21 (3) (e), 48.23 (2),
148.23 (4), 48.235 (4) (a) 7., 48.235 (4m) (a) 7., 48.255 (1) (cm), 48.255 (1m) (d),
248.255 (2), 48.255 (4), 48.27 (3) (a) 1., 48.27 (3) (d), 48.27 (4) (a) 2., 48.299 (6) (d),
348.30 (1), 48.30 (2), 48.30 (6) (a), 48.30 (7), 48.305, 48.31 (1), 48.31 (7) (a), 48.315
4(1m), 48.315 (2), 48.345 (3) (intro.), 48.355 (2) (d), 48.357 (1) (am) 1., 48.357 (1)
5(am) 3., 48.357 (1) (c) 2., 48.357 (1) (c) 3., 48.357 (2m) (a), 48.357 (2m) (b), 48.363
6(1) (a), 48.363 (1) (b), 48.365 (1m), 48.365 (2), 48.365 (2m) (a) 1., 48.365 (2m) (a)
73., 48.365 (2m) (ag), 48.38 (5) (b), 48.38 (5) (d), 48.38 (5) (e), 48.38 (5m) (b), 48.38
8(5m) (d), 48.38 (5m) (e), 48.415 (intro.), 48.42 (1) (d), 48.42 (2) (c), 48.42 (4) (a),
948.422 (1), 48.422 (2), 48.422 (6) (a), 48.422 (8), 48.423 (1), 48.424 (2) (intro.),
1048.424 (2) (a), 48.424 (3), 48.424 (4) (intro.), 48.424 (4) (a), 48.424 (4) (b), 48.424
11(5), 48.425 (1) (intro.), 48.428 (2) (a), 48.428 (2) (b), 48.43 (5) (c), 48.43 (5m),
1248.43 (6) (a), 48.43 (6) (c), 48.46 (2), 48.48 (3m) (intro.), 48.48 (8m), 48.485,
1348.487 (2), 48.487 (3) (b), 48.487 (4m) (b) (intro.), 48.487 (4m) (c), 48.487 (4m)
14(d), 48.563 (3), 48.565 (intro.), 48.57 (3p) (h) 2., 48.57 (3p) (h) 3. (intro.), 48.57
15(3p) (h) 4., 48.57 (3t), 48.63 (1), 48.63 (4), 48.63 (5) (b), 48.63 (5) (c), 48.63 (5) (d)
163., 48.63 (5) (d) 4., 48.63 (5) (d) 5., 48.63 (5) (d) 6., 48.645 (1) (a), 48.645 (2) (a)
171., 48.645 (2) (a) 3., 48.645 (2) (a) 4., 48.645 (2) (b), 48.685 (5) (a), 48.685 (5d) (a)
18(intro.), 48.685 (5d) (a) 2., 48.685 (5d) (a) 3., 48.685 (5d) (a) 3m., 48.685 (5d) (a)
194., 48.685 (5d) (b), 48.825 (1) (b), 48.83 (1), 48.831 (2), 48.833, 48.837 (4) (c),
2048.837 (4) (d), 48.837 (6) (c), 48.85 (1), 48.88 (2) (a) (intro.), 48.88 (2) (b), 48.89
21(1), 48.91 (3), 48.93 (1d), 48.977 (4) (a) 1., 48.977 (4) (b) 6., 48.977 (4) (c) 2., 48.978
22(2) (b) 11., 48.981 (1) (ct), 48.981 (1) (i), 48.981 (3) (bm) (intro.), 48.981 (3) (bm)
231., 48.981 (3) (bm) 2., 48.981 (3) (bm) 3., 48.981 (7) (a) 2., 48.981 (7) (a) 10m.,
2448.981 (7) (a) 10r., 48.981 (7) (a) 11m., 48.981 (7) (am), 48.981 (8) (a), 48.983 (1)
25(b) 1. b., 822.015, 938.02 (10m), 938.02 (12m), 938.02 (13), 938.02 (15), 938.13
1(intro.), 938.15, 938.185 (4) (title), 938.185 (4) (intro.), 938.185 (4) (a), 938.185
2(4) (b), 938.19 (2), 938.20 (2) (ag), 938.20 (2) (b), 938.20 (3), 938.20 (7) (c) 1.,
3938.20 (7) (d), 938.20 (8) (a), 938.21 (2) (title), 938.21 (2) (ag), 938.21 (3) (ag),
4938.21 (3) (am), 938.21 (3) (b), 938.21 (3) (d), 938.21 (3) (e), 938.23 (4), 938.235
5(4) (a) 7., 938.24 (2r) (title), 938.24 (2r) (a) (intro.), 938.24 (2r) (a) 1., 938.24 (2r)
6(a) 2., 938.24 (2r) (b), 938.243 (1) (e), 938.25 (2g) (title), 938.255 (1) (cm), 938.255
7(1) (cr) 1. a., 938.255 (1) (cr) 1. b., 938.255 (1) (cr) 1. c., 938.255 (1) (cr) 2., 938.255
8(2), 938.255 (4), 938.27 (3) (a) 1., 938.27 (4) (b), 938.273 (1) (a), 938.273 (1) (b),
9938.299 (6) (d), 938.299 (9) (title), 938.299 (9) (a), 938.30 (1), 938.30 (2), 938.30
10(6) (a), 938.30 (7), 938.305, 938.31 (7) (a), 938.315 (2), 938.355 (2) (d), 938.355
11(6) (an) 1., 938.355 (6) (b), 938.355 (6m) (am) 1., 938.355 (6m) (c), 938.357 (1)
12(am) 1., 938.357 (1) (am) 2., 938.357 (1) (am) 3., 938.357 (1) (c) 2., 938.357 (1)
13(c) 3., 938.357 (2m) (a), 938.357 (2m) (b), 938.363 (1) (a), 938.363 (1) (b), 938.365
14(1m), 938.365 (2), 938.365 (2m) (a) 1., 938.365 (2m) (a) 3., 938.365 (2m) (ag),
15938.38 (3) (intro.), 938.38 (5) (b), 938.38 (5) (d), 938.38 (5) (e), 938.38 (5m) (b),
16938.38 (5m) (d), 938.38 (5m) (e) and 938.538 (6m) (a) 4.;
to repeal and recreate
1748.028, 938.02 (15c) and 938.028; and
to create 48.02 (8d), 48.02 (8m), 48.02
18(8p), 48.02 (8r), 48.02 (15c), 48.02 (18j), 48.14 (12), 48.23 (2g), 48.255 (1) (g),
1948.255 (1m) (g), 48.273 (1) (ag), 48.273 (1) (c) 2., 48.299 (9), 48.315 (1) (j), 48.33
20(4) (d), 48.335 (3j), 48.345 (3m), 48.355 (2) (b) 6v., 48.355 (2d) (d), 48.357 (1) (am)
211g., 48.357 (1) (am) 1m., 48.357 (1) (c) 1m., 48.357 (1) (c) 2m., 48.357 (2m) (am),
2248.357 (2m) (bm), 48.357 (2v) (a) 4., 48.365 (2g) (b) 4., 48.38 (4) (i), 48.38 (4m),
2348.38 (5) (bm), 48.38 (5) (c) 8., 48.38 (5m) (bm), 48.41 (2) (e), 48.417 (2) (cm),
2448.42 (1) (e), 48.42 (1) (f), 48.42 (2g) (ag), 48.424 (1) (b), 48.424 (1) (c), 48.425 (1)
25(cm), 48.427 (5), 48.427 (6) (b) 4., 48.43 (5) (bm), 48.831 (1r), 48.831 (4) (cm),
148.837 (2) (e), 48.88 (2) (ag), 48.93 (1v), 48.977 (4) (c) 1. j., 48.977 (4) (c) 2m.,
248.977 (4) (g) 4., 806.245 (1m), 938.02 (8d), 938.02 (8g), 938.02 (8m), 938.02 (8p),
3938.02 (8r), 938.02 (18j), 938.23 (2g), 938.255 (1) (g), 938.27 (3) (d), 938.273 (1)
4(ag), 938.273 (1) (c) 2., 938.299 (10), 938.315 (1) (a) 11., 938.33 (4) (d), 938.335
5(3j), 938.345 (1m), 938.355 (2) (b) 6v., 938.355 (2d) (d), 938.355 (6) (bm), 938.355
6(6) (cr), 938.355 (6m) (bm), 938.355 (6m) (cr), 938.357 (1) (am) 1g., 938.357 (1)
7(am) 1m., 938.357 (1) (c) 1m., 938.357 (1) (c) 2m., 938.357 (2m) (am), 938.357
8(2m) (bm), 938.357 (2v) (a) 4., 938.365 (2g) (b) 4., 938.38 (4) (i), 938.38 (4m),
9938.38 (5) (bm), 938.38 (5) (c) 8. and 938.38 (5m) (bm) of the statutes;
relating
10to: Indian child welfare.
Analysis by the Legislative Reference Bureau
Introduction
Under current law, the federal Indian Child Welfare Act (ICWA), which governs
jurisdiction over child custody proceedings involving an Indian child and provides
certain minimum standards for those proceedings, supercedes the provisions of the
Children's Code and the Juvenile Justice Code in any child custody proceeding
governed by ICWA. For purposes of ICWA, "child custody proceeding" means any of
the following:
1. Any action removing an Indian child from his or her parent or Indian
custodian, that is, an Indian person who has legal custody of an Indian child under
tribal law or custom or state law or to whom temporary physical custody of an Indian
child has been transferred by the Indian child's parent, for temporary placement in
a foster home or institution, in which the parent or Indian custodian cannot have the
Indian child removed on demand, but not including a placement that is based on an
act that would be a crime if committed by an adult (out-of-home care placement).
2. A termination of parental rights (TPR) proceeding.
3. A temporary placement of an Indian child in a foster home or institution after
a TPR, but prior to or in lieu of an adoptive placement (preadoptive placement).
4. An adoptive placement.
This bill incorporates the jurisdictional provisions of ICWA and the minimum
standards for Indian child custody proceedings established by ICWA into the
provisions of the Children's Code relating to child in need of protection or services
(CHIPS), TPR, and adoption proceedings and the provisions of the Juvenile Justice
Code relating to juvenile in need of protection or services (JIPS) proceedings, other
than proceedings that are based on the commission of an act that would be a crime
if committed by an adult.
Jurisdiction
Under ICWA, an Indian tribe has exclusive jurisdiction over an Indian child
custody proceeding involving an Indian child who resides or is domiciled within the
reservation of the tribe and over an Indian child who is a ward of a tribal court,
regardless of the residence or domicile of the Indian child, except when jurisdiction
is otherwise vested in the state by federal law. This grant of jurisdiction, however,
does not prevent the emergency removal of an Indian child who resides or is
domiciled on a reservation, but who is temporarily located off the reservation, from
his or her parent or Indian custodian in order to prevent imminent physical damage
or harm to the Indian child.
Also, under ICWA, a state court is required to transfer a proceeding involving
an out-of-home care placement of, or TPR to, an Indian child who is not residing or
domiciled within the reservation of the Indian child's tribe to the jurisdiction of the
Indian child's tribe upon the petition of the Indian child's parent, Indian custodian,
or tribe, unless a parent of the Indian child objects, the tribal court declines
jurisdiction, or the state court finds good cause not to transfer the proceeding. In
addition, ICWA permits an Indian child's parent, Indian custodian, or tribe to
intervene at any point in an Indian child custody proceeding in state court involving
the out-of-home care placement of, or TPR to, the Indian child.
Finally, with respect to jurisdiction over an Indian child custody proceeding,
ICWA requires a state court to decline jurisdiction and to forthwith return an Indian
child to his or her parent or Indian custodian, unless returning the Indian child
would subject the Indian child to a substantial and immediate danger or threat of
danger, when a petitioner in an Indian child custody proceeding has improperly
removed the Indian child from the custody of his or her parent or Indian custodian
or has improperly retained custody after a visit or other temporary relinquishment
of custody.
This bill incorporates those jurisdictional provisions of ICWA into the
Children's Code and the Juvenile Justice Code. The bill also does all of the following:
1. Specifies that the provisions of ICWA and of the Children's Code and
Juvenile Justice Code relating to Indian child custody proceedings apply to any
Indian child custody proceeding regardless of whether the Indian child is in the
custody of an Indian parent, Indian custodian, extended family member, or other
person at the commencement of the proceeding and whether the Indian child resides
or is domiciled on or off a reservation.
2. Prohibits a court assigned to exercise jurisdiction under the Children's Code
and the Juvenile Justice Code (juvenile court) from determining whether those
provisions apply to an Indian child custody proceeding based on whether the Indian
child is part of an existing Indian family.
3. Permits a juvenile court to find good cause to deny transfer of a proceeding
to an Indian child's tribe only if it is shown that the Indian child is 12 years of age
or over and objects to the transfer or that the evidence or testimony necessary to
decide the case cannot be presented in tribal court without undue hardship to the
parties or the witnesses and that the tribal court is unable to mitigate the hardship
by making arrangements to receive the evidence or testimony by use of telephone or
live audiovisual means, by hearing the evidence or testimony at a location that is
convenient to the parties and witnesses, or by use of other means permissible under
the tribal court's rules of evidence.
Out-of-home care placements and TPR proceedings
ICWA requires a party seeking an out-of-home care placement of, or TPR to,
an Indian child in an involuntary proceeding in state court to notify the Indian child's
parent, Indian custodian, and tribe, by registered mail with return receipt requested,
of the proceeding and of their right to intervene in the proceeding. Under ICWA, if
the identity or location of the parent, Indian custodian, or tribe cannot be
determined, notice of the proceeding must be provided to the U.S. secretary of the
interior, who then has 15 days after receipt of the notice to provide the notice to the
parent, Indian custodian, and tribe. ICWA prohibits an out-of-home care placement
or TPR proceeding from being heard until at least ten days after receipt of notice by
the parent, Indian custodian, or tribe or by the U.S. secretary of the interior and
permits a parent, Indian custodian, or tribe to request up to 20 additional days to
prepare for the proceeding.
This bill requires an Indian child's parent, Indian custodian, and tribe to be
notified of a CHIPS, JIPS, or TPR proceeding involving the Indian child, of a change
in placement in a CHIPS or JIPS proceeding involving the Indian child, or of a
hearing to determine or review the permanency plan for the Indian child by certified
mail for the first hearing at the plea, fact-finding, and dispositional stages of a
proceeding and by mail, personal delivery, or facsimile transmission, but not
electronic mail, for subsequent hearings in a stage of a proceeding. (A permanency
plan is a plan designed to ensure that a child is reunified with his or her family
whenever appropriate or that the child quickly attains a placement providing
long-term stability.) The bill prohibits a CHIPS, JIPS, or TPR hearing, a change in
placement hearing, or a permanency plan determination or review hearing from
being held until at least ten days after receipt of notice of the hearing by the parent,
Indian custodian, or tribe or until at least 25 days after receipt of notice of the hearing
by the U.S. secretary of the interior and permits a parent, Indian custodian, or tribe
to request up to 20 additional days to prepare for the hearing.
Under ICWA, a parent or Indian custodian who is indigent has the right to
court-appointed counsel in any proceeding involving the removal of an Indian child
from his or her home, placement of an Indian child in an out-of-home care
placement, or TPR to an Indian child. This bill incorporates that right into the
Children's Code and the Juvenile Justice Code with respect to a parent 18 years of
age or over or an Indian custodian. With respect to a parent under 18 years of age,
the bill retains current law, which provides for the appointment of counsel without
a determination of indigency.
ICWA requires a party seeking to effect an out-of-home care placement of, or
a TPR to, an Indian child to satisfy the state court that active efforts have been made
to provide remedial services and rehabilitation programs designed to prevent the
breakup of the Indian family and that those efforts have proved unsuccessful. ICWA
also prohibits a state court from ordering an out-of-home care placement of, or TPR
to, an Indian child in the absence of a determination, supported by clear and
convincing evidence in the case of out-of-home care placement and by evidence
beyond a reasonable doubt in the case of TPR, including the testimony of qualified
expert witnesses, that continued custody of the Indian child by his or her parent or
Indian custodian is likely to result in serious emotional or physical damage to the
Indian child.
This bill requires a CHIPS or JIPS order or a change in placement order
removing an Indian child from his or her home and placing the Indian child outside
the home to include a finding by the juvenile court or jury, supported by clear and
convincing evidence, including the testimony of one or more qualified expert
witnesses, that continued custody of the Indian child by his or her parent or Indian
custodian is likely to result in serious emotional or physical damage to the Indian
child and a finding, supported by clear and convincing evidence that the agency
primarily responsible for providing services to the Indian child has made active
efforts to prevent the breakup of the Indian family and that those efforts have proved
unsuccessful. The bill also requires the juvenile court or jury in a TPR proceeding
to determine if it is proved beyond a reasonable doubt, including the testimony of one
or more qualified expert witnesses, that continued custody of the Indian child by the
parent or Indian custodian is likely to result in serious emotional or physical damage
to the child and if it is proved beyond a reasonable doubt that active efforts have been
made to prevent the breakup of the Indian family and that those efforts have proved
unsuccessful. In addition, the bill requires an order extending a CHIPS or JIPS
dispositional order for an Indian child who is placed outside the home and a summary
of a permanency plan review for such a child to include a determination as to whether
active efforts were made to prevent the breakup of the Indian family and as to
whether those efforts have proved unsuccessful.
The bill also changes current law with respect to the grounds for involuntary
TPR. Specifically, current law provides various grounds for involuntary TPR,
including abandonment, continuing need of protection or services (continuing
CHIPS), continuing parental disability, continuing denial of physical placement or
visitation, child abuse, and failure to assume parental responsibility. Currently, one
of the elements that must be proved to establish continuing CHIPS is that the agency
responsible for the care of the child and the family has made a reasonable effort to
provide the services ordered by the juvenile court. Currently, "reasonable effort" is
defined as an earnest and conscientious effort to take good faith steps to provide the
services ordered by the juvenile court which takes into consideration the
characteristics of the parent or child, the level of cooperation of the parent, and other
relevant circumstances. This bill requires those efforts to be proved to establish any
involuntary TPR ground.
The bill defines a "qualified expert witness" as a person who is a member of the
Indian child's tribe knowledgeable in the tribe's customs relating to family
organization or child-rearing practices, a member of another tribe who is
knowledgeable in those customs, a professional person having extensive knowledge
of those customs, or a layperson having substantial knowledge of those customs and
requires a qualified expert witness to be chosen in that order of preference. The bill
also specifies that the evidence of active efforts to prevent the breakup of the Indian
family must show that there has been a vigorous and concerted level of case work
beyond the level that typically constitutes reasonable efforts to prevent the removal
of the child from the home and requires the active efforts to be made in a manner that
takes into account the prevailing social and cultural values, conditions, and way of
life of the Indian child's tribe and to utilize the available resources of the Indian
child's tribe, tribal and other Indian child welfare agencies, extended family
members, and other individual Indian caregivers.
ICWA further requires an Indian child who is accepted for an out-of-home care
placement or a preadoptive placement to be placed in the least restrictive setting
which most approximates a family and in which the Indian child's special needs, if
any, may be met and requires an Indian child to be placed within reasonable
proximity to his or her home, taking into account any special needs of the Indian
child. ICWA also requires that a preference be given, in the absence of good cause to
the contrary, to a placement with a member of the Indian child's extended family, a
foster home licensed, approved, or specified by the Indian child's tribe, an Indian
foster home licensed or approved by an authorized non-Indian licensing authority,
or an institution for children approved by an Indian tribe or operated by an Indian
organization that has a program suitable to meet the Indian child's needs, unless the
Indian child's tribe has established a different order of preference. ICWA also
specifies that the standards to be applied in meeting the placement preference
requirements of ICWA are the prevailing social and cultural standards of the Indian
community in which the Indian child's parent or extended family resides or with
which the parent or extended family maintains social and cultural ties.
This bill requires the juvenile court, in placing or changing the placement of an
Indian child who is in need of protection or services or in placing an Indian child in
a preadoptive placement following a TPR, to designate one of the following as the
placement for the Indian child, in the order of preference listed, unless the Indian
child's tribe has established a different order of preference or good cause is shown for
departing from that order of preference:
1. The home of an extended family member of the Indian child.
2. A foster home or treatment foster home licensed, approved, or specified by
the Indian child's tribe.
3. An Indian foster home or treatment foster home licensed or approved by the
Department of Health and Family Services (DHFS), a county department of human
services or social services (county department), or a child welfare agency.
4. A group home or residential care center for children and youth approved by
an Indian tribe or operated by an Indian organization that has a program suitable
to meet the needs of the Indian child.
The bill requires the juvenile court to designate a placement that is the least
restrictive setting that most approximates a family, that meets the Indian child's
special needs, if any, and that is within reasonable proximity to the Indian child's
home, taking into account the Indian child's special needs. The bill also specifies that
the standards to be applied in meeting the placement preference requirements of the
bill are the prevailing social and cultural standards of the Indian community in
which the Indian child's parent or extended family members reside or with which the
parent or extended family members maintain social and cultural ties.
In addition, the bill requires a determination as to whether there is good cause
to depart from the order of placement preference requirements of the bill to be based
on: 1) the request of a parent or, if the Indian child is of sufficient age and
developmental level to make an informed decision, the Indian child, unless the
request is made for the purpose of avoiding the application of the bill and ICWA; 2)
any extraordinary physical, mental, or emotional health needs of the Indian child
requiring highly specialized treatment services as established by the testimony of an
expert witness, including a qualified expert witness; and 3) the unavailability of a
suitable placement after active efforts have been made to place the child in
accordance with those order of placement preference requirements.
Finally, with respect to involuntary out-of-home care placements and TPR
proceedings, ICWA permits the Indian child or the Indian child's parent, Indian
custodian, or tribe to petition any court of competent jurisdiction to invalidate an
out-of-home care placement or TPR upon a showing that the placement or TPR
violated any provision of ICWA relating to out-of-home care placements or TPR.
This bill permits any Indian child who is the subject of an out-of-home care
placement or of a TPR proceeding, any parent or Indian custodian of that Indian
child, or the Indian child's tribe to move the juvenile court to invalidate that
out-of-home care placement or TPR on the grounds that the out-of-home care
placement was made or the TPR was ordered in violation of any provision of the bill
or of ICWA relating to out-of-home care placements or TPR. If the juvenile court
finds that those grounds exist, the juvenile court must invalidate the out-of-home
care placement or TPR.
Voluntary out-of-home care placements or TPR; consent; withdrawal
Under ICWA, the consent of a parent to an out-of-home care placement of, or
a TPR to, an Indian child is not valid unless executed in writing, recorded before a
judge of a court of competent jurisdiction, and accompanied by the judge's
certification that the terms and consequences of the consent were fully explained in
detail and were fully understood by the parent. ICWA also requires the court to
certify that the parent fully understood the explanation in English or that the
explanation was interpreted into a language that the parent understood. Under
ICWA, any consent given prior to, or within ten days after, the birth of an Indian
child, is not valid. ICWA permits a parent to withdraw his or her consent to a TPR
for any reason prior to the entry of a final decree of TPR, or to withdraw his or her
consent to an out-of-home care placement at any time, and the Indian child must
be returned to the parent. After the entry of a final decree of adoption of an Indian
child, the Indian child's parent may withdraw consent to the adoption of the Indian
child on the grounds of fraud or duress and may petition the court to vacate the
decree. If the court finds that the consent was obtained through fraud or duress, the
court must vacate the decree and return the Indian child to his or her parent, except
that no adoption that has been effective for at least two years may be invalidated by
the withdrawal of consent on the grounds of fraud or duress.
This bill provides that a voluntary consent to an out-of-home care or placement
of, or TPR to, an Indian child is valid only if the consent is executed in writing,
recorded before a judge, and accompanied by a written certification by the judge that
the terms and consequences of the consent were fully explained in detail to and were
fully understood by the parent. The bill also requires the judge to certify that the
parent fully understood the explanation in English or that the explanation was
interpreted into a language that the parent understood. Under the bill, any consent
to an out-of-home care placement or TPR given prior to or within ten days after the
birth of an Indian child is not valid.
The bill permits a parent who has consented to TPR to an Indian child to
withdraw the consent for any reason at any time prior to the entry of a final order
terminating parental rights, or a parent who has consented to an out-of-home care
placement of an Indian child to withdraw that consent at any time, and the Indian
child must be returned to his or her parent. After the entry of a final order granting
adoption, a parent who has consented to TPR to an Indian child may withdraw that
consent and move the juvenile court for relief from the order on the grounds that the
consent was obtained through fraud or duress, if the motion is filed within two years
after the entry of an order granting adoption of the Indian child. If the juvenile court
finds that the consent was obtained through fraud or duress, the juvenile court must
vacate the TPR order and, if applicable, the order granting adoption.
Adoption
ICWA requires, when an Indian child is placed for adoption, that a preference
be given, in the absence of good cause to the contrary, to a placement with a member
of the Indian child's extended family, other members of the Indian child's tribe, or
other Indian families, unless the Indian child's tribe has established a different order
of preference. ICWA also specifies that the standards to be applied in meeting the
placement preference requirements of ICWA are the prevailing social and cultural
standards of the Indian community in which the Indian child's parent or extended
family resides or with which the parent or extended family maintains social and
cultural ties.
This bill requires DHFS, a county department, or a child welfare agency, in
placing an Indian child for adoption or in investigating or making a recommendation
regarding the adoptive placement of an Indian child, and a juvenile court, in
determining whether an adoptive placement is in the best interests of an Indian
child, to give preference to a placement with one of the following, in the order of
preference listed, unless the Indian child's tribe has established a different order of
preference or good cause is shown for departing from that order of preference:
1. An extended family member of the Indian child.
2. Another member of the Indian child's tribe.
3. Another Indian family.
