Record Keeping and Reporting

23.141 - What records must the State maintain?

1. The State must maintain a record of every voluntary or involuntary foster-care, preadoptive, and adoptive placement of an Indian child and make the record available within 14 days of a request by an Indian child’s Tribe or the Secretary.
2. The record must contain, at a minimum, the petition or complaint, all substantive orders entered in the child-custody proceeding, the complete record of the placement determination (including, but not limited to, the findings in the court record and the social worker’s statement), and, if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preferences.
3. A State agency or agencies may be designated to be the repository for this information. The State court or agency should notify the BIA whether these records are maintained within the court system or by a State agency.

J.1 Guidelines

The statute and the rule require that the State maintain a record of each placement, under State law, of an Indian child. The files may be originals or may be true copies of the originals.

The rule ensures States have the flexibility to determine the best way to maintain their records to ensure that they can comply with the 14-day timeframe.

Paragraph (b) of 23.141 directly addresses only court records because the court records must include all evidence justifying the placement determination. States may require that additional records be maintained.

It is recommended that the record include any documentation of preferred placements contacted and, if any were found ineligible as a placement, an explanation as to the ineligibility.

It is recommended that State agencies coordinate with State courts and private agencies to identify who is best positioned to fulfill this duty.

23.140 - What information must States furnish to the Bureau of Indian Affairs?

1. Any State court entering a final adoption decree or order in any voluntary or involuntary Indian-child adoptive placement must furnish a copy of the decree or order within 30 days to the Bureau of Indian Affairs, Chief, Division of Human Services, 1849 C Street NW., Mail Stop 4513 MIB, Washington, DC 20240, along with the following information, in an envelope marked “Confidential”: (1) Birth name and birthdate of the Indian child, and Tribal affiliation and name of the Indian child after adoption;(2) Names and addresses of the biological parents;(3) Names and addresses of the adoptive parents;(4) Name and contact information for any agency having files or information relating to the adoption;(5) Any affidavit signed by the biological parent or parents asking that their identity remain confidential; and(6) Any information relating to Tribal membership or eligibility for Tribal membership of the adopted child.
2. If a State agency has been designated as the repository for all State-court adoption information and is fulfilling the duties described in paragraph (a) of this section, the State courts in that State need not fulfill those same duties.

J.2 Guidelines

Providing the information to BIA for each final adoption decree and order allows BIA to serve as a resource for Indian children who, when they become adults, seek information on their adoption.

It is recommended that State agencies coordinate with State courts and private agencies to identify who is best positioned to fulfill this duty.

23.139 - Must notice be given of a change in an adopted Indian child’s status?

(a) If an Indian child has been adopted, the court must notify, by registered or certified mail with return receipt requested, the child’s biological parent or prior Indian custodian and the Indian child’s Tribe whenever:

(1) A final decree of adoption of the Indian child has been vacated or set aside; or

(2) The adoptive parent has voluntarily consented to the termination of his or her parental rights to the child.

(b) The notice must state the current name, and any former name, of the Indian child, inform the recipient of the right to petition for return of custody of the child, and provide sufficient information to allow the recipient to participate in any scheduled hearings.

(c) A parent or Indian custodian may waive his or her right to such notice by executing a written waiver of notice and filing the waiver with the court.

(1) Prior to accepting the waiver, the court must explain the consequences of the waiver and explain how the waiver may be revoked.

(2) The court must certify that the terms and consequences of the waiver and how the waiver may be revoked were explained in detail in English (or the language of the parent or Indian custodian, if English is not the primary language), and were fully understood by the parent or Indian custodian.

(3) Where confidentiality is requested or indicated, execution of the waiver need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with this section.

(4) The biological parent or Indian custodian may revoke the waiver at any time by filing with the court a written notice of revocation.

(5) A revocation of the right to receive notice does not affect any child custody proceeding that was completed before the filing of the notice of revocation.

J.3 Guidelines

If an adoption is vacated or set aside, or the adoptive parent voluntarily consents to TPR, then the State agency should work with the State court to ensure that the notice requirements of 23.139 are fulfilled.

This notice is required because, in the particular circumstances where an adoption is vacated or set aside, or the adoptive parent voluntarily consents to TPR, the statute provides certain rights to the biological parent or prior Indian custodian.⁵⁷ The notice enables the biological parent or prior Indian custodian to avail himself or herself of those rights. This section of the rule addresses waiver of notice for two particular situations:

• Where an adoption of an Indian child is subsequently vacated or set aside; or
• Where the adoptive parents decide to voluntarily terminate their parental rights.

In those cases, the biological parent or prior Indian custodian may waive notice of these actions.

57 See 25 U.S.C. 1916(a).

23.138 - What are the rights to information about adoptees’ Tribal affiliations?

Upon application by an Indian who has reached age 18 who was the subject of an adoptive placement, the court that entered the final decree of adoption must inform such individual of the Tribal affiliations, if any, of the individual’s biological parents and provide such other information necessary to protect any rights, which may include Tribal membership, resulting from the individual’s Tribal relationship.Guidelines:

ICWA provides Indian adult adoptees with specific rights to information on Tribal, as reflected in the above rule provision. States may provide additional rights to adoptees.

Some States have registries that allow individuals to obtain information on siblings for purposes of reunification.

It is recommended that the State agency work with the State court to ensure that, with each adoptive placement, there is sufficient information in the record regarding the individual’s Tribal relationship to allow the court to meet its requirements under 23.138 for the protection of any rights that may result from the individual’s Tribal membership.

BIA is also adding information to its website (www.bia.gov) to assist adult adoptees who are looking to reconnect with their Tribes.

23.134 - Who has access to reports and records during a proceeding?

Each party to an emergency proceeding or a foster-care-placement or termination-of-parental-rights proceeding under State law involving an Indian child has a right to timely examine all reports and other documents filed or lodged with the court upon which any decision with respect to such action may be based.

J.5 Guidelines

Parties to emergency, foster-care-placement, or TPR proceedings are entitled to receipt of documents upon which a decision may be based.

States cannot refuse to provide a party to an ICWA proceeding, including a Tribe that is a party, access to information about the proceedings.