|
|
||
|
|
||
|
|
|
|
|
||
Indian Child Welfare Amendments |
|||||
| The Senate Indian
Affairs Committee has approved legislation which represents a compromise with respect to
the adoption provisions in the Indian Child Welfare Act. Earlier action around the
MultiEthnic Placement legislation had resulted in provisions which were unacceptable to
the Native American community. Consensus was reached at a June convention of the National
Congress of American Indians. New provisions include: Exclusive Jurisdiction: Clarifies that an Indian tribe retains exclusive jurisdiction over any child otherwise made a ward of the tribal court when the child subsequently changes residence or domicile for treatment or other purposes. Voluntary Termination of Parental Rights: Clarifies that the Indian Child Welfare Act applies to voluntary consents in adoptive, preadoptive and foster care placements. A requirement is added that the presiding judge certify that any attorney or public or private agency facilitating the voluntary termination of parental rights or adoptive placement has informed the birth parents of the placement options available and of the applicable provisions of the Indian Child Welfare Act, and has certified that the birth parents will be notified within 10 days of any change in the adoptive placement . An Indian custodian vested with legal authority to consent to an adoptive placement is to be treated as a parent for purposes of these amendments, including the requirement governing notice provided or received and consent given or revoked. Withdrawal of Consent: This provision would set limits on when an Indian birth parent may withdraw his or her consent to an adoption. Revocation of parental consent would be permitted in only two instances before a final decree of adoption is entered. First, a birth parent could revoke his or her consent if the original placement specified by the birth parent terminates before a final decree of adoption has been entered. Second, a birth parent could revoke his or her consent if the revocation is made before the end of a 30 day period that begins on the day that parent received notice of the commencement of the adoption proceeding or before the end of a 180 day period that begins on the day the Indian tribe has received notice of the adoptive placement, whichever period ends first. Upon the effective revocation of consent by a birth parent, the child shall be returned to that birth parent. If a birth parent has not revoked his or her consent within the time frames, thereafter he or she may revoke consent only pursuant to applicable state law or upon a finding by a court of competent jurisdiction that the consent was obtained through fraud or duress. No adoption that has been in effect for a period of longer than or equal to two years can be invalidated. Notice to Indian Tribes: Notice must be provided to the Indian tribe by any person seeking to secure the voluntary placement of an Indian child or the voluntary termination of the parental rights of a parent of an Indian child. The notice must be provided no later than 100 days after a foster care placement occurs, no later than five days after a preadoptive or adoptive placement occurs, no later than 10 days after the commencement of a proceeding for the termination of parental rights, and no later than 10 days after the commencement of an adoption proceeding. Notice may be given prior to the birth of an Indian child if a particular placement is contemplated. If an Indian birth parent is discovered after the applicable notice periods have otherwise expired, despite a reasonable inquiry having been made on or before the commencement of the placement about whether the child may be an Indian child, the time limitations upon the rights of an Indian tribe to intervene apply only if the party discovering the Indian birth parent provides notice to the Indian tribe not later than 10 days after making the discovery. Content of Notice: The notice must include the name of the Indian child involved and the actual or anticipated date and place of birth of the child, along with an identification, if known after reasonable inquiry, of the Indian parent, grandparent, and extended family members of the Indian child. The notice must also provide information on the parties and court proceedings pending in state court. The notice must inform the identified Indian tribe that it may have the right to intervene in the court proceeding, and must inquire whether the Indian tribe intends to intervene or waive its right to intervene. Finally, the notice must state that if the Indian tribe fails to respond by the statutory deadline, the right of that Indian tribe to intervene will be considered to have been waived. Intervention by Indian Tribe: New provisions limit the right of an Indian tribe to intervene in a court proceeding involving foster care placement or termination of parental rights and which would authorize voluntary agreements for enforceable rights of visitation An Indian tribe could intervene in a voluntary proceeding to terminate parental rights only if it has filed a notice of intent to intervene or a written objection not later than 30 days after receiving notice of the adoption proceeding. (If the notice requirements are not complied with, the Indian tribe could intervene at any time.) However, an Indian tribe may no longer intervene in a proceeding after it has provided written notice to a state court of its intention not to intervene or of its determination that neither the child nor any birth parent is a member of that Indian tribe. An Indian tribe motion for intervention must be accompanied with a certification that documents the tribal membership or eligibility for membership of the Indian child under applicable tribal law. This does not preclude an Indian tribe from intervening in a case in which a proposed adoptive placement is changed. Courts are authorized to approve, as part of the adoption decree of an Indian child, a voluntary agreement made by an adoptive family that a birth parent, a member of the extended family, or the Indian tribe will have an enforceable right of visitation or continued contact after entry of the adoption decree. However, failure to comply with the terms of such agreement may not be considered grounds for setting aside the adoption decree. Fraudulent Representation: Criminal sanctions would apply to any person other than a birth parent who knowingly and willfully falsifies, conceals, or covers up a material fact concerning whether a child is an Indian child or a parent is an Indian; or makes any false or fraudulent statement, omission, or representation, or falsifies a written document related to a material fact.
|
