Chapter 6 : Section 9

Adoption Consent of an Indian Child

Policy

A consent to place an Indian child for adoption may be accepted from a mentally competent parent of a child who is in the care, custody and control of the Department.

The Department shall consult with the Assistant Attorney General in making the necessary arrangements to have the parent sign a consent to adoption or voluntary termination of parental rights to be certified by a judge of competent jurisdiction. If the child’s tribe has intervened or is involved, the appropriate tribal representative shall be notified of the parent’s decision and of any court hearing.

The consent must be in writing and recorded before a judge and accompanied by the judge’s certificate that the terms and consequences of the consent were fully explained in detail and understood by the parent or Indian custodian, including that the terms were translated into a language the parent or Indian custodian understands, if they are not fluent in English.

A consent to place an Indian child for adoption may be withdrawn, for any reason and at any time, before entry of the final order of termination or decree of adoption.

A consent to place an Indian child for adoption may be withdrawn up to two years after entry of the final order of adoption upon a finding by the court that the consent was obtained through fraud or duress.

Parents of an Indian child who wish to consent to the adoption of a newborn should be encouraged to contact an appropriate tribal social services agency provided that a dependency petition has not been filed and there is no valid issue of abuse or neglect. If the parent releases the child to the Department in lieu of contacting a tribal social services agency, the Department will file a dependency petition.

Obtaining a consent to place a child for adoption is preferable to initiating an involuntary termination of parental rights proceeding.

The parent of an Indian child may give consent for a specific person to adopt their child. However, if the specified individual(s) do not adopt the child, the consent likely will be deemed void and a new consent (or in the alternative, a proceeding to terminate parental rights) may be necessary to allow for adoption of the child. Use of such a "direct consent" must be approved by a Program Supervisor, in consultation with the Assistant Attorney General.

Unless the Indian child’s tribe has established a different caregiver preference order, the Department shall give preference, in descending order as listed below, to placing an Indian child with:

a member of the Indian child’s extended family;
other members of the Indian child’s tribe; or
other Indian families.

If the parent or Indian child age 12 and over has requested a living arrangement outside these preferences, the request shall be considered and reviewed with the supervisor, the Assistant Attorney General and the child’s tribe.

For Indian children, a consent to place a child for adoption is invalid if taken prior to, or within ten days after the birth of the Indian child. [25USC §1913(a)]

Procedures

Accepting a Consent for Adoption

To determine whether voluntary termination is appropriate for the parent of an Indian child, follow the procedures listed in Adoption Consent. In addition,

inform the parent of the caregiver preferences;
inform the parent that in order to find an appropriate adoptive home, the Department will notify the Indian child’s tribe and that unless the consenting parent has requested anonymity, the Department also will notify extended family members; and
consult with the tribal social services and/or ICWA representative and the parent’s attorney if any, and inform the tribe of the parent’s desire to place their child for adoption, and of the parent’s request for anonymity, if applicable.

Provide services to assist the parent in understanding the meaning of consent, its implications for the child and parents, and information regarding access to non-identifying information in adoption records. Ensure that the information is provided to the parent in a language that the parent understands.

If the child is or may be Indian, consult with the Program Supervisor and with an Assistant Attorney General regarding the requirements of the Indian Child Welfare Act before accepting a consent.

For an Indian child, inform the consenting parent(s) that the consent must be recorded before a judge. (25 U.S.C.§1913 et seq.) The judge must sign a certificate stating the terms and consequences of the consent were fully explained in detail and understood by the parent or Indian custodian.

For a parent wishing to consent to the adoption of a child who is subject to the Indian Child Welfare Act (ICWA):

request the Attorney General's Office file a motion for hearing on ICWA consent and order. Inform the Assistant Attorney General if an interpreter is needed;
arrange for the parent to be at the hearing (in some cases, telephonic appearance may be permitted); and
obtain the original and a certified copy of the ICWA consent and certification order from the Attorney General's office.

Ensure a copy of the final adoption decree is forwarded to the child’s tribe and the:

Secretary of the Department of the Interior
Bureau of Indian Affairs
Division of Human Services
1849 C Street, NW
Mail Stop - 4513- MIB
Washington, D.C. 20240

Provide a copy of the final adoption decree and the child’s original birth certificate to the adoptive parents and the child.

Documentation

Ensure the child’s tribe has been added to the case.

Using Notes, document all contacts with the Indian child’s and/or Indian parent’s tribe including the name, address, title, telephone number of the person contacted and the results of these contacts.

File copies of all correspondences with tribal staff in the hard copy case record.

File the original and certified copies of the Adoption Consent and Judge’s certification in the hard copy case record.

Document, in detail, under the Notes tab the active efforts that were made to prevent the breakup of the Indian family and efforts to locate an adoptive home that meets ICWA’s adoptive caregiver preferences (or good cause to deviate from them).