Voluntary Proceedings

23.124 - What actions must a State court undertake in voluntary proceedings?

1. The State court must require the participants in a voluntary proceeding to state on the record whether the child is an Indian child, or whether there is reason to believe the child is an Indian child, as provided in 23.107.
2. If there is reason to believe the child is an Indian child, the State court must ensure that the party seeking placement has taken all reasonable steps to verify the child’s status. This may include contacting the Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) to verify the child’s status. As described in 23.107, where a consenting parent requests anonymity, a Tribe receiving such information must keep relevant documents and information confidential.

I.1 Guidelines

The rule provides minimum requirements for State courts to determine whether a child in a voluntary proceeding is an “Indian child” as defined by statute. That determination is essential in order to assess the State court’s jurisdiction and what law applies in voluntary proceedings. The determination of whether the child is an “Indian child” is a threshold inquiry; it affects the jurisdiction of the State court and what law applies to the matter before it.

In some cases, it may be undisputed that the child is an Indian child, such as where the parents attest to this fact. If, however, there is reason to believe (i.e., reason to know) that the child is an “Indian child,” but this cannot be confirmed based on the evidence before the State court, it must ensure that the party seeking placement has taken all reasonable steps to confirm the child’s status. This includes seeking verification of the Indian child’s status with the Tribes of which the child might be a citizen. Tribes, like other governments, are equipped to keep such inquiries confidential, and the rule requires this of Tribes.

The regulation’s use of the language “reason to believe” echoes, and is intended to be substantively the same as, the statutory language “reason to know.”

23.124 - What actions must a State court undertake in voluntary proceedings?

…c. State courts must ensure that the placement for the Indian child complies with 23.129 - 23.132.

I.2 Guidelines

This provision explains that the regulatory provisions addressing the application of the placement preferences apply with equal force to voluntary proceedings. The Act and rule require application of the placement preferences in both voluntary and involuntary placements.

As discussed in section H.4 of these guidelines, above, the judge may consider as a basis for good cause to depart from the placement preferences the request of one or both of the parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference. This good cause provision allows birth parents to express their preference for an adoptive family that does not fall within ICWA’s placement preferences. It is important, however, for birth parents to be made aware of ICWA’s preferences and whether there are available placements within the extended family or Tribal community. This balances the interest of the parent with the other interests protected by ICWA.

Situations in which a step-parent seeks to adopt the child would fall within the first placement preference because step-parents are included in the definition of “extended family member.”

The Department recommends that the Indian child’s Tribe be provided notice of voluntary proceedings involving that child to allow the Tribe’s participation in identifying preferred placements and to promote the child’s continued connections to the Tribe. As discussed above, communication with the Tribe may be required in order to verify the child’s status as an Indian child. States may choose to require notice to Tribes and other parties in voluntary proceedings.

I.4 23.107 - How should a State court determine if there is reason to know the child is an Indian child?

…d. In seeking verification of the child’s status in a voluntary proceeding where a consenting parent evidences, by written request or statement in the record, a desire for anonymity, the court must keep relevant documents pertaining to the inquiry required under this section confidential and under seal. A request for anonymity does not relieve the court, agency, or other party from any duty of compliance with ICWA, including the obligation to verify whether the child is an “Indian child.” A Tribe receiving information related to this inquiry must keep documents and information confidential.

I.4 Guidelines

In voluntary proceedings where the consenting parent requests, in writing, to remain anonymous, it is recommended that the party seeking placement notify the Tribe of the request for anonymity; the Tribe is required to keep information related to the verification inquiry confidential.

23.129 When do the placement preferences apply?

…(b) Where a consenting parent requests anonymity in a voluntary proceeding, the court must give weight to the request in applying the preferences.

I.5 Guidelines

If the consenting parent requests anonymity, it is recommended that the agency work with the Tribe to identify placement preferences that protect the parent’s anonymity. The rule does not mandate contacting extended family members to identify potential placements.

23.125 - How is consent obtained?

(a) A parent’s or Indian custodian’s consent to a voluntary termination of parental rights or to a foster-care, preadoptive, or adoptive placement must be executed in writing and recorded before a court of competent jurisdiction.

(b) Prior to accepting the consent, the court must explain to the parent or Indian custodian:

(1) The terms and consequences of the consent in detail; and

(2) The following limitations, applicable to the type of child-custody proceeding for which consent is given, on withdrawal of consent:

(i) For consent to foster-care placement, the parent or Indian custodian may withdraw consent for any reason, at any time, and have the child returned; or

(ii) For consent to termination of parental rights, the parent or Indian custodian may withdraw consent for any reason, at any time prior to the entry of the final decree of termination and have the child returned; or

(iii) For consent to an adoptive placement, the parent or Indian custodian may withdraw consent for any reason, at any time prior to the entry of the final decree of adoption, and have the child returned.

(c) The court must certify that the terms and consequences of the consent were explained on the record 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.

(d) Where confidentiality is requested or indicated, execution of consent 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.

(e) A consent given prior to, or within 10 days after, the birth of an Indian child is not valid.

I.6 Guidelines

An individual parent’s consent is valid only as to himself or herself. The rule provides that the consent must be “recorded” before a court; this must be accomplished by providing a written document to the court.

23.126 - What information must a consent document contain?

(a) If there are any conditions to the consent, the written consent must clearly set out the conditions.

(b) A written consent to foster-care placement should contain, in addition to the information specified in paragraph (a) of this section, the name and birthdate of the Indian child; the name of the Indian child’s Tribe; the Tribal enrollment number for the parent and for the Indian child, where known, or some other indication of the child’s membership in the Tribe; the name, address, and other identifying information of the consenting parent or Indian custodian; the name and address of the person or entity, if any, who arranged the placement; and the name and address of the prospective foster parents, if known at the time.

I.7 Guidelines

A State may choose to include or require the inclusion of additional information, beyond what is required in 23.126. The BIA has a sample form for consent posted at www.bia.gov as an example for States to consider.

23.127 - How is withdrawal of consent to a foster-care placement achieved?

(a) The parent or Indian custodian may withdraw consent to voluntary foster-care placement at any time.

(b) To withdraw consent, the parent or Indian custodian must file a written document with the court or otherwise testify before the court. Additional methods of withdrawing consent may be available under State law.

(c) When a parent or Indian custodian withdraws consent to a voluntary foster-care placement, the court must ensure that the Indian child is returned to that parent or Indian custodian as soon as practicable.

23.128 - How is withdrawal of consent to a termination of parental rights or adoption achieved?

(a) A parent may withdraw consent to voluntary termination of parental rights at any time prior to the entry of a final decree of termination.

(b) A parent or Indian custodian may withdraw consent to voluntary adoption at any time prior to the entry of a final decree of adoption.

(c) To withdraw consent prior to the entry of a final decree of adoption, the parent or Indian custodian must file a written document with the court or otherwise testify before the court. Additional methods of withdrawing consent may be available under State law.

(d) The court in which the withdrawal of consent is filed must promptly notify the person or entity who arranged any voluntary preadoptive or adoptive placement of such filing, and the Indian child must be returned to the parent or Indian custodian as soon as practicable.

I.8 Guidelines

A parent may withdraw consent to a TPR any time before the final decree for that TPR is entered, and a parent may withdraw consent to an adoption any time before the final decree of adoption is entered. However, note that if a parent’s or Indian custodian’s parental rights have already been terminated, then the parent or Indian custodian may no longer withdraw consent to the adoption, because they no longer legally qualify as a parent or Indian custodian.

The written withdrawal of consent filed with the court (or testimony before the court) is not intended to be an overly formalistic requirement. Parents involved in pending TPR or adoption proceedings can be reasonably expected to know that there are court proceedings concerning their child, and the rule balances the need for a clear indication that the parent wants to withdraw consent with the parent’s interest in easily withdrawing consent. States may have additional methods for withdrawing consent that are more protective of a parent’s rights that would then apply.

Under the rule, whenever consent has been withdrawn, court must contact the party by or through whom any preadoptive or adoptive placement has been arranged. In most cases this will be the agency, whether public or private. The agency is expected to have the contact information for the placement.

The BIA has a sample form for withdrawal of consent posted at www.bia.gov as an example for States to consider