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Adopting and Serving Children Under the Indian Child Welfare Act (ICWA)
1200-500.05 | Revision Date: 07/01/14
Overview
This policy guide provides staff with guidelines on how to provide appropriate services (including adoption services) in compliance with federal and state laws to children who may be determined to be Indian children under the Indian Child Welfare Act and their families.
TABLE OF CONTENTS
Indian Child Welfare Act (ICWA)
Non-Federally Recognized Tribes
Notice of a Child Custody Proceeding
Termination of Parental Rights
Voluntary Termination of Parental Rights
Determining American Indian Heritage
Relinquishment with the California Department of Social Services (CDSS)
Procedure for a Case Sixty (60) Days after Recipients Receive Notice
Tribal Customary Adoption (TCA)
Tribal Customary Adoption Order (TCAO)
Updates to a Conventional Adoption Applicant Assessment
Postadoption Contact Agreements
Inquiring About and Determining American Indian Heritage
ER/DI/FM/R CSW Responsibilities
Providing Notice to Federally Recognized Tribes – Completing the Detention Report
Providing Notice to Federally Recognized Tribes
APRD/DI/FM/R CSW Responsibilities
Court Orders Non-Federally Recognized Tribe to Receive Notice
ER/DI/FM/R/APRD CSW Responsibilities
Placing an Indian Child in Foster Care
Recommending an Indian Child Remain in Out-of-Home Care at the Jurisdiction/Disposition Hearing
Responding to Parental Rights being Voluntarily Terminated
Filing a Relinquishment with CDSS
Birth Parent Revokes or Rescinds Relinquishment or Withdraws Consent
Recommending Termination of Parental Rights
American Indian Family Agrees to Voluntary Family Reunification Services (VFR)
Recommending Tribal Customary Adoption (TCA)
Responding to a TCA Applicant Assessment Conducted by a Tribal Designee
Responding to a TCA Applicant Assessment Conducted by DCFS or Another Agency
Updating a Conventional Adoption Applicant Assessment to a TCA Adoption Applicant Assessment
APRD SCSW/Family Assessment Worker’s SCSW Responsibilities
Completing the Addendum to a Continued WIC 366.26 Report
Completing an Adoptive Placement for a TCA
Recommending Adoption for an Indian Child
Placing an Indian Child in Adoptive Placement
Requests for Tribal Information from Adult American Indian Adoptees
Discussing EFC with an Indian Youth Prior to Turning Eighteen (18)
Transitioning an Indian Youth to Independence and Terminating Jurisdiction
Version Summary
This policy guide was updated from the 06/01/14 version, as part of the Policy Redesign, in accordance with the DCFS Strategic Plan. This policy guide incorporates content from Procedural Guide 0200-515.05, Adoption of Children Under the Indian Child Welfare Act (ICWA), thereby cancelling that policy guide. The title has been changed from The Indian Child Welfare Act (ICWA).
The Indian Child Welfare Act (ICWA) is a federal law passed in 1978 to address issues of disproportionality, lack of appropriate placements, problems related to disconnection from tribal communities and cultures, and lack of sensitivity by State and County officials to tribal community customs. The goals of ICWA include protecting the best interests of children by ensuring that removal and placement of children reflects values of Indian culture. Various provisions of ICWA were codified into California state law in 2006.
ICWA governs the proceedings for determining the placement of an Indian child when that child has been removed from the custody of his/her parent or legal guardian. CSWs must consult with a tribal designee, if available, regarding the placement or adoption of Indian children. CSWs must defer to Indian social and cultural standards regarding the removal, placement and treatment assessments, and adoption placement of Indian children. CSWs should also use the Indian child’s tribal services to secure placement in the order of placement preference and for the supervision of the placement with the goals of achieving the least restrictive setting, resembling a family setting, meeting the child’s special needs, and ensuring reasonable proximity to the child’s home.
The Interstate Compact on the Placement of Children (ICPC) does not apply to any placing, sending, or bringing of an Indian child into another state, pursuant to a transfer of jurisdiction to a tribal court.
The ICWA and State Indian child laws apply to Indian child custody proceedings in the following circumstances:
The ICWA requires CSWs to provide an Indian family with active efforts in casework. Active efforts include providing remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and should be assessed on a case-by-case basis. Active efforts should also utilize the available resources of the Indian child’s extended family, tribe, tribal and other Indian social service agencies and individual Indian caregiver service providers. Active efforts should be delivered in a manner that takes in to account the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe. Active efforts must be delivered in order to:
The following are some guidelines for providing active efforts (this is not an exhaustive list):
Active efforts must be unsuccessful before taking an Indian child into temporary custody (except when the child is in imminent danger), and prior to the termination of parental rights.
CSWs must provide active efforts to families that may be of American Indian descent until eligibility/membership is determined in writing by the Tribal representative. If eligibility/membership is determined, active efforts must continue. If eligibility/ membership is denied, active efforts are discontinued.
An “Indian child” is an unmarried person who is under age eighteen (18) and who is:
Nonminor dependents (NMDs) whose dependency cases are governed under the ICWA can decide whether or not they want the provisions of the ICWA to apply after turning eighteen (18). This includes tribal involvement in case planning or tribal notification of court hearings. If the NMD no longer wishes to have the provisions of the ICWA apply, he/she can elect to no longer be considered an Indian Child. For more information, refer to the Extended Foster Care (EFC) Program.
During court proceedings for a foster care placement, or for the termination of parental rights of an Indian child, the Indian custodian or the child’s Indian tribe has the right to participate and the right to intervene during the proceedings. These include rights to:
Even if the Indian tribe and/or the child’s Indian custodian do not formally participate or intervene in the child custody proceedings, they can
The Indian tribe decides who can be a member. Depending on the tribe’s membership laws, enrollment may or may not be necessary for the child to be considered a member. Connections to the tribal community should be encouraged regardless of the state of parental rights, prior living situations, or prior custody arrangements.
When there is more than one (1) tribe associated with the child, the tribes will decide amongst themselves who has the strongest bond with the child and which one (1) will serve as the primary tribe to intervene in the child’s case. If the tribes cannot decide for themselves, the presiding judge has the discretion to determine who serve as the primary on the child’s case.
The ICWA does not apply to a child custody proceeding when a child is a member of, or is eligible for membership in, a non-federally recognized tribe. Active efforts, placement preference, and the testimony of a qualified expert witness are not required for these cases. These cases are treated as Heritage cases.
Non-federally recognized tribes are not entitled to notice of proceedings in an Indian child’s custody case. However, upon request of the tribe, the court may permit the child’s non-federally recognized tribe to participate in the child custody proceeding. This is limited to the one (1) tribe that the child has the most significant contact.
If the court permits a non-federally recognized tribe to participate in the child custody proceeding, the tribe may do the following with the permission of the court:
The phone number and address of the non-federally recognized tribe should be obtained from the parents. Some additional resources for information on non-federally recognized tribes include:
Qualified expert witnesses testify as to whether or not recommending foster care placement or termination of parental rights in an Indian child custody proceeding is likely to result in serious physical or emotional damage to the child. The court may accept a declaration or affidavit from a qualified expert witness in lieu of testimony only if the parties involved are in agreement and the court is satisfied that the agreement was made knowingly, intelligently, and voluntarily.
A qualified expert witness cannot be a LA County DCFS employee. For a list of qualified expert witnesses, DCFS staff can contact the following:
The California Department of Social Services (CDSS) recommends that the qualified expert witness contact the child’s family and tribe prior to the court hearing to determine the emotional and physical effect of continued custody.
The ICWA-030, Notice of Child Custody Proceeding for Indian Child, notifies a child’s tribe of child protection involvement. It also requests the tribe’s determination of membership by the tribal representative. Each child must have a completed ICWA-030. The Notice must be sent to all federally recognized tribes of which the child may be a member or may be eligible for membership. If all tribes served were not listed on the ICWA-030, the ICWA-030(A), Attachment to Notice of Child Custody Proceedings for Indian Child, will be used.
At the first court appearance, the court will order the parent to complete the ICWA-020, Parental Notification of Indian Status. If the parent is not present at the first court appearance, the court will order DCFS to use reasonable diligence to locate the parent and to inform him/her that the court has ordered him/her to complete the ICWA-020. Once the parent is located, the CSW responsible for writing the court report must have the parent complete the ICWA-020 and submit it as an attachment with the court report for the next hearing.
The court may find that the termination of parental rights is not in the best interest of an Indian child when:
When recommending the termination of parental rights in an Indian child custody hearing (WIC 366.26), the ICWA requires the testimony of a qualified expert witness.
A relinquishment, adoptive placement agreement, waiver of the right to further notice of adoption planning, and/or consent cannot be signed until all the tribes that have received noticed have responded to it, or until sixty (60) days have passed and the court determines that the ICWA does not apply.
If a presumed father of an Indian child chooses to sign the AD590B, Waiver of Right to Further Notice of Adoption Planning Form, he must sign this form in front of a judge. Once a waiver is signed, no further noticing is required.
Consent for the termination of rights is only valid when executed in writing and recorded before a judge of a court in a competent jurisdiction. The consent must be give at least ten (10) days after the birth of the child. The judge must certify that the terms and consequences of the consent were fully explained in detail and fully understood by the parent(s) or Indian custodian.
In Agency Adoptions Finalization Hearings, DCFS must provide notice to the tribes, the child’s parent/legal guardian/custodian. Notice must be given at least ten (10) days prior to the hearing unless an additional twenty (20) days has been requested by the tribe or the child’s parents/legal guardian/ custodian.
In Independent Adoptions Finalization Hearings, the petitioners or their attorney are responsible for noticing the tribes, child’s parents/legal guardian/ custodian. Notice must be given at least ten (10) days prior to the hearing unless an additional twenty (20) days has been requested by the tribe, the child’s parents/legal guardian/ custodian. Notice must be sent by registered or certified mail and copies must be provided to DCFS. The final court report filed by DCFS should notify the court of ICWA compliance in the proposed adoption. The report to the court should include any missing ICWA forms, notices, or any facts disclosed during the court of the investigation that may be relevant to the court’s determination of the child’s best interest.
Inquiry about American Indian heritage must be done for every family served by DCFS during the initial contact. CSWs also have an ongoing duty to inquire about the possibility of American Indian heritage.
There may be reason to believe that a child is an Indian child if circumstances, which include but is not limited to the following, apply to him/her:
If at any point in the case, new information is obtained regarding a child’s American Indian heritage, the tribe, Bureau of Indian Affairs (BIA), and Secretary of Interior must be re-noticed with the new information. This must be done even if the court already found that the ICWA does not apply.
The American Indian (AI) Units provide culturally responsive services to American Indian families. To transfer a referral or case to the AI Units, there must be written confirmation of the compelling information that the parent(s) or child is a member or is eligible for membership to a federally recognized tribe. Approval by the program is required prior to transferring a referral or a case.
AI Units are assigned referrals by the Child Protection Hotline (CPH) after it has been established that the ICWA applies.
The California Department of Social Services (CDSS) does not accept a relinquishment for filing until an initial inquiry has been made. All relinquishment documents must be accompanied by the ICWA-010(A), Attachment to Notice of Child Custody Proceeding for Indian Child, and the ICWA-020, Parental Notification of Indian Status, to document that the initial inquiry was made. If the initial inquiry shows that a child may have Indian ancestry or may be eligible for membership in a tribe, CDSS will not accept a relinquishment until the following occurs:
DCFS must submit a copy of the ICWA-010(A), the ICWA-020, and the ICWA-030 (if applicable), and a copy of all letters of confirmation received from any of the Indian tribes listed on the ICWA-030.
When proper notice has been provided pursuant to WIC 224.2, and neither the tribe nor the Bureau of Indian Affairs (BIA) provides a determinative response on the child, the court can determine that the ICWA no longer applies to the case. A motion to the court triggers this determination.
Until the court determines that the ICWA no longer applies:
Once the court determines that the ICWA no longer applied to the proceedings:
The court must receive copies of all notices, responses from the tribes or BIA, certified mail receipts, and return cards.
No hearing can be held until at least ten (10) days after receipt of notice by the parent, Indian Custodian, or the tribe. The parents, Indian Custodian (if applicable), and tribe are entitled to an additional twenty (20) days to prepare for the hearing on request.
Tribal Customary Adoption (TCA) is an additional permanency option for a California dependent Indian child. TCA is an adoption that occurs under the customs, laws, or traditions of an Indian child’s tribe, but where the termination of parental rights is not required. TCA only applies to juvenile court dependent Indian children who are eligible under the ICWA and in cases involving federally recolonized tribes when parental rights have not been terminated. TCA can be recommended by the child’s tribe at any point in the dependency process as long as the case remains open and the court has not ordered termination of parental rights. TCA does not apply in independent or inter-county adoption to an Indian child who is a probation ward or an Indian child who has been voluntarily relinquished to an agency by his/her parent(s).
Once the tribe intervenes in the case of an ICWA eligible child, the tribe can verbally inform DCFS of its interest in pursuing TCA. The tribe must provide DCFS with a written statement of its selection of TCA. CSWs are responsible for documenting this and all consultations regarding TCA in court reports and on CWS/CMS.
Whenever an assessment is ordered pursuant to WIC Sections 361.5, 366.21, 366.22, 366.25, or 366.26 for an Indian child, the assessment must address the option of TCA. When reunification services are offered and the tribe recommends TCA, it will serve as the child’s concurrent permanent plan until reunification services are no longer offered. Once TCA becomes the concurrent plan, the CSW must consult with the child’s tribe to facilitate TCA. Consultations may include, but are not limited to:
Consultations, information received, etc., must be documented in the foster care and adoption case file and in CWS/CMS.
The TCA statutes do not alter ICPC obligations that apply if a California dependent child is placed with prospective adoptive parents residing out-of-state. The sending agency will have to consider and comply with ICPC protocols and work with the receiving state and the tribe to complete the ICPC requirements. Because most out-of-state courts do not provide a process for finalizing an adoption without termination of parental rights, agencies have to work to finalize the adoption in California or in the other state, depending on the circumstances of the particular case.
An adoptive placement agreement will be prepared and executed during the TCA process after full faith and credit have been afforded to the TCAO, and the applicant assessment has been completed and approved by the tribe. The date the court afforded full faith and credit to the TCAO is the date used as the TPR date in CWS/CMS.
TCA parents are afforded the same opportunity as any adoptive parent(s) to maintain the Indian child’s original birth certificate or have it amended.
At the initial WIC 366.26 hearing for a TCA permanent plan, the hearing will be continued for one hundred and twenty (120) days for the tribe to complete the TCAO. The tribe has approximately hundred (100) days to complete this process because the TCAO must be filed within twenty (20) days of the continued court date. The court has the discretion to grant an additional continuance to the tribe for filing the TCAO up to, but not more than, sixty (60) days. At the continued WIC 366.26 hearing, the CSW must submit an addendum and implementation hearing court report seven (7) days prior to the continued WIC 366.26 hearing.
If the tribe does not file the TCAO within the time allotted, the court has the discretion to make new orders to determine the best permanent plan for the child.
Consent from an Indian parent or Indian custodian whose relationship to the child will be modified by the TCA is not required to implement the permanent plan of TCA.
Consent is also not required for Indian children age twelve (12) and older for a TCA, however, the wishes of the child should be a factor in considering whether TCA is the appropriate permanent plan for the Indian child.
Tribal Designees are responsible for the following:
In addition, Tribal Designees may be responsible for:
TCA requires an applicant assessment to evaluate the background, safety, and health information of the adoptive applicant’s home. The tribe may choose to complete the TCA applicant assessment. If it does, DCFS is responsible for completing the criminal and child abuse registry background checks. If the tribe opts to complete or to designate a private agency to complete the applicant assessment, the APRD CSW must obtain an update on the applicant assessment or a copy of the applicant assessment (if completed) from the tribe or their designee.
DCFS needs a copy of the approved or denied TCA applicant assessment from the tribe, whether it was completed by the tribe or the tribal designee. In order for another entity to view the completed TCA applicant assessment, an applicant needs to sign a release of information form allowing it.
If there are serious concerns regarding the applicant’s suitability as an adoptive parent and his/her ability to provide a safe and stable home for the child, CSWs must discuss these concerns with the tribe, the ARA, and the County Counsel.
When DCFS makes a recommendation to the tribe regarding approval or denial of a TCA applicant assessment, the tribe has the discretion to issue a final approval or denial, except in cases where the applicant’s criminal record has not been cleared pursuant to WIC 366.24(c) – the Adam Walsh Act. If DCFS’ recommendation does not correspond with the tribe’s decision regarding the applicant, DCFS, the tribe, and any other pertinent individuals should discuss the recommendation and issues of the applicant’s case. If DCFS recommends approval of an applicant assessment and the tribe disagrees, TCA can no longer be the permanent plan for the child. However, if DCFS recommends denial and the tribe approves the applicant, the tribe may continue to prepare the TCAO.
When a designated agency recommends a denial of a TCA applicant assessment, regardless of the tribe’s final decision, the adoptive applicant retains the right to request a grievance review hearing.
When a tribe denies a TCA applicant assessment that was completed by a designated agency, the tribe may, in its discretion, provide a grievance procedure. This is not required.
After TCA is ordered as the permanent plan at the WIC 366.26 hearing, the child’s tribe completes the Tribal Customary Adoption Order (TCAO). The TCAO does not terminate parental rights but does modify them and establishes the legal relationship and responsibilities between the child and the birth parents after TCA is finalized. This includes:
The tribe can specify anything else it deems appropriate according to its laws and customs, except in relation to orders pertaining to the child support obligation of the birth parents or an Indian Custodian. Any parental rights or obligations not specified in the TCAO are vested with the tribal customary adoptive parents, per WIC 366.24(10).
When a tribe has selected TCA for a child, and an applicant has completed a conventional adoption applicant assessment but is interested in pursuing the adoption of a dependent Indian child who is eligible for TCA, the designated agency must update the assessment to incorporate all requisite elements of the TCA applicant assessment.
If the adoptive applicant has completed a tribal customary, conventional agency, independent, or inter-county adoption within the last five (5) years, he/she may be eligible to receive an abbreviated TCA applicant assessment.
Prior to the issuance of an adoption decree, the court may require mediation to reach a postadoption contact agreement when the child is an Indian child and the adoptive parent agrees to negotiate a postadoption contract. If the court finds a lack of good faith, it can modify existing orders or issue new orders to ensure the best interest of the Indian child. This includes ordering further mediation initiating guardianship in lieu of adoption or authorizing a change of the adoptive placement. Failure to reach an agreement does not constitute evidence of lack of good faith.
The terms of a postadoption agreement may include the following:
The hearing to grant an adoption petition and issue an order of adoption may be continued as needed to reach a final agreement. Enforcement of the postadoption contact agreement falls under the continuing jurisdiction of the court granting the petition of adoption.
, Indian Ancestry Questionnaire.
ER/DI/FM/R CSW Responsibilities
The following responsibilities apply to the CSW completing the detention report.
APRD/DI/FM/R CSW Responsibilities
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Party |
Timeline |
Additional Information |
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Parent/Legal Guardian |
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Indian Custodian (if applicable) |
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Federally Recognized Tribe(s) |
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Bureau of Indian Affairs (BIA) |
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Sacramento Area Director Bureau of Indian Affairs Federal Office Building 2800 Cottage Way Sacramento, CA 95825 |
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Secretary of Interior (SOI) |
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Secretary of Interior (SOI) Secretary of the Interior U.S. Department of the Interior Bureau of Indian Affairs 1849 C Street, N.W. Washington, DC 20240
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DI/FM/R CSW ONLY:
APRD CSW ONLY – In an agency adoption:
APRD CSW ONLY – In an independent adoption:
APRD CSW ONLY - In a stepparent adoption:
APRD/DI/FM/R CSWs
ER/DI/FM/R/APRD CSW Responsibilities
This placement preference also applies any time an Indian child is replaced in foster care, unless there is “good cause to modify the order of preference.
The following procedures apply to the CSW preparing the jurisdiction/disposition report:
In relinquishment adoptions:
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Situation |
Forms |
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Indian child is detained, is court dependent in out-of-home care, or is a ward of a legal guardian |
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Indian child is not detained, a juvenile court dependent in out-of-home care, or a ward of a legal guardian |
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Situation |
Forms |
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A mother or presumed father is not denying paternity |
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A presumed father is denying paternity |
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An alleged father is not denying paternity |
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In independent adoptions:
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Situation |
Forms |
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Parents who are in California |
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Presumed fathers |
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Alleged birth fathers |
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In stepparent adoptions:
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Situation |
Required Actions |
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Sixty (60) days have lapsed and the court has determined that the ICWA does not apply. |
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Sixty (60) days have lapsed, not all recipients have responded, and the court has not made a determination that the ICWA does not apply. |
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All parties have responded and the child has been identified as a member of a tribe or as eligible for membership. |
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In a relinquishment:
In an independent or stepparent adoption:
The following procedures apply to the CSW preparing the WIC 366.26 report in agency adoptions:
Notice to the tribe and the testimony of a qualified expert witness are not required for VFR cases.
To voluntarily place an Indian child in foster care, a parent or Indian custodian must sign the SOC 155C, Voluntary Placement Agreement Parent/Agency (Indian Child). A parent may withdraw his/her consent for any reason at any time and the child will be returned to the parent.
The following procedures apply to the CSW preparing the Case Plan:
The following procedures apply to the CSW preparing the WIC 366.26 report in TCAs:
When a tribe chooses a tribal designee other than DCFS to conduct the applicant assessment, the designee will perform the state and federal criminal background check and a check of the Child Abuse Central Index (CACI) on the prospective adoptive parent(s) and any other person(s) over eighteen (18) years old residing in the home. The tribal designee must be authorized to request a search for state and federal level criminal offender records information through the Department of Justice (DOJ), CACI information, and, if needed, any check on other’s state child abuse and neglect registries.
APRD SCSW/Family Assessment Worker’s SCSW Responsibilities
The addendum provides the agency an opportunity to express its opinion about the prospective TCA including providing a recommendation of the court on whether it is or is not in support of the adoption. The tribe submits a TCAO to the court.
The following procedures apply to the CSW preparing the WIC 366.26 report:
County Counsel’s ICWA Notice Program
AD 90, Supporting Information for Issuance of California Department of Social Services Acknowledgement and Confirmation of Receipt of Relinquishment Documents/AD 551A Notification of Procedure in Lieu of Signing Relinquishment, Waiver or Denial
ADOPT 220
ADOPT 225
DCFS 280, Technical Assistance Action Request
ICWA-010(A), Indian Child Inquiry Attachment
ICWA-020, Parental Notification of Indian Status
ICWA-030, Notice of Child Custody Proceeding for Indian Child
ICWA-030(A), Attachment to Notice of Child Custody Proceeding for Indian Child
JV-280, Notice of Review Hearing
JV-300, Notice of Hearing on Selection of a Permanent Plan, Juvenile
DCFS 280, Technical Assistance Action Request
DCFS 5640, Consent to Voluntary Placement for an Indian Child and Certification
DCFS 5649 , Indian Ancestry Questionnaire
ICWA-010(A), Indian Child Inquiry Attachment
ICWA-020, Parental Notification of Indian Status
ICWA-030, Notice of Child Custody Proceeding for Indian Child
ICWA-030(A), Attachment to Notice of Child Custody Proceeding for Indian Child
ICWA-040, Notice of Designation of Tribal Representative and Notice of Intervention in a Court Proceeding Involving an Indian Child
JV-100, Juvenile Dependency Petition (Version One)
SOC 155C, Voluntary Placement Agreement Parent/Agency (Indian Child)
AD Forms can be accessed through the State CDSS Forms Index.
0070-548.01, Child and Family Teams
0070-548.20, Taking Children into Temporary CustodyThe removal of a child from the home of a parent or legal guardian and placement or facilitation of placement of the child in the home of a non-offending parent, relative, foster caregiver; group home or institutional setting.Temporary custody also includes: placing hospital holds on children; situations in which the CSW interrupts an established Family Law Court custody or visitation orders when the CSW believes that if the order is carried out, the child would be placed in immediate risk of abuse, neglect or exploitation and the child is allowed to remain in the home of the non-offending parent; situations in which DCFS requests that law enforcement remove a child from the home of his or her parent/legal guardian and the CSW places the child with a relative or unrelated caregiver; and situations in which the child is living with a relative or an unrelated caregiver and all of the following conditions exist: child’s parent is asking for the child to be returned home, CSW believes that the return of the child to his or her parent would place the child at risk of abuse, neglect or exploitation, CSW does not allow the child to be returned to his or her parent; and, the child remains in the home of the relative or is placed in out-of-home care.
0070-559.10, Clearances
0080-507.20, Concurrent Planning And The Concurrent Planning AssessmentAn assessment document as prescribed in Welfare and Institutions Code Sections 366.21(I), 366.22(b) and 361.5(g). The CPA is initiated by the case carrying Children's Social Worker and completed by the APRD CSW when adoption home study for attached children or matching/recruitment activities for unattached children are initiated. (CPA)
0100-510.21, Voluntary Placement
0100-520.10, Evaluating a Prospective Caregiver
0100-520.70, Exemptions for Criminal History Records
0100-535.25, Extended Foster Care (EFC)The Extended Foster Care program allows a foster youth to remain in foster care and continue to receive foster care payment benefits (AFDC-FC payments) and services beyond age 18, as long as the foster youth is meeting participation requirements, living in an approved or licensed facility, and meeting other eligibility requirements. Program
0100-535.60, Youth Development: The 90-Day Transition Planning Conference, Transition Plan, and Transitioning to Independence
0200-506.10, Applicant Assessment for Adoption of Children
0200-506.20, Grievance ProceduresFor the purpose of the adoption home study, procedures initiated on behalf of the applicant, at the applicant's request, to appeal the Department's decision when the adoption home study has been denied by DCFS. The Grievance Review Process pamphlet outlines the specific action taken by the Department when the applicant requests a grievance review hearing. In addition, grievance procedures are in place for foster parents who want to challenge the Department's decision in regards to their care and supervision of a child(ren). Foster parents who want to challenge decisions regarding their license must follow grievance procedures from the State Department of Social Services. for Denial of Adoption Requests or Withdrawal of Approved Applicant Assessments
0200-507.15, Assessing a Petitioner(s) for an Independent Adoption
0200-507.35, Stepparent and Domestic PartnerFamily Code Section 297 defines domestic partners as two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring. Adoptions
0200-508.10, Relinquishment Procedures and the Statement of Understanding
0200-508.25, Filing, Revoking, and Rescinding a Relinquishment
0200-509.40, Terminating an Adoptive Placement
0200-513.05, Postadoption Contact Agreements
0200-518.10, Releasing Information/Property after an Adoption is Finalized
0300-306.05, Noticing Process for Juvenile Court Proceedings
0300-503.20, Writing the WIC 366.26 Hearing Report
All County Letter (ACL) No. 08-02, Senate Bill (SB) 678, Chapter 838, Statutes of 2006 – Provides information and resources on SB 678 and on the Indian Child Welfare changes in state law.
ACL 10-17, Assembly Bill (AB) 1325, Chapter 287, Statutes of 2009 Tribal Customary Adoption – Provides introductory information regarding Assembly Bill (AB) 1325, Chapter 287, Statutes of 2009 and adds “tribal customary adoption” as a permanency option for a child who is a dependent of the juvenile court and eligible under the ICWA.
California Department of Social Services (CDSS) Manual of Policies and Procedures (MPP) Division 31- 515-520 – States the provisions of the ICWA.
CDSS, MPP Title 22, Div 2, Section 35177 - 35183 – Sets forth the regulations as to under what conditions an abbreviated assessment may be conducted and the requirements needed to complete that abbreviated assessment.
California Rules of Court (CROC) – Explains the protocol for ICWA court hearings.
CROC, Rule 5.481 – Mandates that juvenile court and DCFS inquire about whether a child is or may be an Indian child.
Family Code (FAM) Section 7907.3 – States that the Interstate Compact on the Placement of Children (ICPC) does not apply to any placement, sending, or brining of an Indian child into another state pursuant to a transfer of jurisdiction to a tribal court under Section 1911 if the ICWA.
FAM Section 8606.5 – States that notwithstanding any other section in this part, and in accordance with Section 1913 of the ICWA, consent to adoption given by an Indian child’s parent is not valid unless certain conditions are met.
FAM Section 8616.5 – States the terms for postadoption contact agreements.
FAM Section 8619.5 – States that when a final decree of adoption has been vacated or set aside, or the adoptive parent voluntarily consents to termination of his/her parental rights, a biological parent or prior Indian custodian may petition for return of custody and the court must grant that petition unless there is a showing that the return of custody is not in the child’s best interest.
FAM Section 8620(3)(b) – States that DCFS must adopt regulations to ensure that a child who is being voluntarily relinquished for adoption (pursuant to Section 8700) is an Indian child, the parent of the child must be advised of his/her right to withdraw consent and rescind the relinquishment for any reason at any time prior to entry of a final decree of termination of parental rights or adoption, pursuant to Section 1914 of Title 25 of US Code.
FAM Section 8710 – Summarizes the adoptive placement preference for an Indian child.
FAM Section 8712 – States, in part that the DCFS or the licensed adoption agency must fingerprint and secure criminal records from an appropriate Local Education Agency (LEA) for each person filing an application for adoption. Under no circumstance can DCFS or the licensed adoption agency give final approval for an adoptive placement in any home where the prospective adoptive parents or any adult living in the prospective adoptive home has certain felony convictions.
FAM Section 9208 – States that upon application by an Indian individual who has reached age eighteen (18), and who was the subject of an adoptive placement, the court that entered the final decree of adoption must inform that individual of their tribal affiliation (if applicable), of the individual’s biological parents, and provide any other information necessary to protect the rights come from the individual’s tribal relationship, including, but not limited to, tribal membership rights and eligibility for federal or tribal programs or services available to Indians.
Welfare and Institutions Code (WIC) Section 224 – States that California has an interest in protecting Indian children who are members of, or eligible for membership in an Indian tribe, including protecting essential tribal relations, promoting practices in accordance with the ICWA to prevent involuntary out-of-home placement, and if placement is needed, placing the child (as possible) in a placement that reflects the values of the child’s tribal culture and that helps the child establish, develop and maintain a political, cultural, and social relationship with their tribe.
WIC Section 224.1 – States the factors that need to be considered when determining which tribe a child has the most significant contact with when they may be eligible for membership in more than one tribe.
WIC Section 224.2 – Explains the notice requirement for Indian child custody proceedings.
WIC Section 224.3 – States that DCFS has a duty to inquire whether a child for whom a petition under Section 300 is to be, or has been filed, is, or may be an Indian child. This must happen in all dependency proceedings if the child is at risk of entering foster care or is in foster care. It also explains the circumstances that may provide reason to known that a child is an Indian child, and requires that a social worker make further inquiry regarding possible Indian status by interviewing parents, the Indian Custodian, and extended family members. Finally, it state that if new information is obtained regarding the child’s Indian heritage, the tribe, Bureau of Indian Affairs (BIA), and Secretary of Interior (SOI) must be re-noticed with the new information (even if the court already found that the ICWA does not apply).
WIC Section 224.4 – States that the Indian child’s tribe and Indian custodian have the right to intervene at any point in an Indian child custody proceeding.
WIC Section 224.5 – States that the court must give full faith and credit to the public acts, records, judicial proceedings, and judgments of any Indian tribe applicable to the proceeding to the same extent as any other entity.
WIC Section 224.6 – States that testimony of a “Qualified Expert Witness” in an Indian child custody proceeding is required when recommending foster care placement or termination of parental rights. It also states the required qualifications of an expert witness and what their testimony must cover.
WIC Section 290.1 – States the notice requirement for circumstances when a child is to be retained in custody, the initial petition hearing.
WIC Section 290.2 – States the notice requirement for the initial petition hearing, petition filed.
WIC Section 291 – States the notice requirement for jurisdictional, pretrial, adjudication, or disposition hearings.
WIC Section 292 – States the notice requirement for cases where the child is with the parent or guardian.
WIC Section 293 – States the notice requirement for the 366.21 or 366.22 hearings.
WIC Section 294 – States the notice requirement for 366.26 hearing.
WIC Section 295 – States the notice requirement for the 366.3 Review of Permanent Plan Hearing.
WIC Section 305.5 – States that the parent, Indian custodian and Indian tribe have the right to petition for the Indian child custody proceeding to be transferred to tribal jurisdiction. This also explains when there is “good cause” to deny the petition.
WIC Section 306.6 – States that the court may permit non-federally recognized tribes to participate in the proceeding upon request of the tribe.
WIC Section 361.4 – States that the home of every prospective caregiver that is not a licensed or certified foster parent must be visited to assess for whether or not the child should be placed there. This may include the completion of criminal clearances.
WIC 361.5. – Except as provided in specified subdivisions, whenever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child welfare services to the child and the child’s mother and statutorily presumed father or guardians. Family reunification services shall be provided as specified and deemed to be appropriate by the court.
WIC Section 361.7 – States that “active efforts” must be unsuccessful before taking an Indian child into temporary custody (except when a child is in imminent danger) and prior to termination of parental rights.
WIC Section 361.31 – Lays out placement preference for Indian children, including adoptive placements.
WIC 366.21– Every hearing conducted by the juvenile court reviewing the status of a dependent child shall be placed on the appearance calendar. The court shall advise all persons present at the hearing of the date of the future hearing and of their right to be present and represented by counsel. This Section reviews court report submission timeframes, notice requirements and family reunification services, including a child’s return to the parent(s) physical custody and/or establishing detriment to the child if returned to the parent’s custody.
WIC 366.22 – Outlines the requirements for the “Permanency Review Hearing,” that shall occur within 18 months after the date the child was removed from the physical custody of his or her parent or legal guardian. The court shall order the return of the child to the parent or legal guardian unless the court finds by a preponderance of the evidence that return of the child would be detrimental to the child’s physical and emotional health and safety. If the child is not returned to a parent or legal guardian, the court will terminate family reunification services and order a hearing be held pursuant to WIC Section 366.26A hearing will be held no later than 120 days from the date of the Permanency Review Hearing. The purpose of a WIC Section 366.26 hearing is to identify and implement a permanent plan for a dependent child of the court. The court will then make findings and orders in the following order of preference: permanently terminate the rights of the parent or parents and order that the child be placed for adoption; or, without permanently terminating parental rights, identify adoption as the goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days; or, appoint a legal guardian and issue letters of guardianship; or, order that the child be placed in long-term foster care, subject to the periodic review of the court under WIC 366.3. to determine whether adoption, guardianship, or long-term foster care is the most appropriate plan for the child
WIC Section 366.24 – States the provisions of Tribal Customary Adoption (TCA).
WIC Section 366.24(b) – States that whenever an assessment is ordered pursuant to Section 361.5, 366.21, 366.22, 366.25, or 366.26 for Indian children, the assessment must address the option of Tribal Customary Adoption (TCA).
WIC Section 366.25 – States, in part that a hearing pursuant to Section 366.26 cannot be ordered if the child is a nonminor dependent (NMD), unless the NMD is an Indian child and Tribal Customary Adoption (TCA) is recommended as the permanent plan. It also sets forth the requirements/guidelines for the hearing for terminating parental rights or establishing guardianship of children adjudged dependent of the court. It also lists the exceptions to termination of parental rights for Indian children.
WIC Section 366.26(c) – States that after the establishment of a legal guardianship, if DCFS becomes aware of changed circumstances that indicate adoption or Tribal Customary Adoption (TCA) may be an appropriate plan for the child, DCFS must notify the court. In this case the court can vacate its previous order for dismissing dependency jurisdiction over the child and order that a hearing be help pursuant to Section 366.36 to determine whether adoption or continued legal guardianship is appropriate for the child.
WIC Section 366.26(e)(3) – States, in part that if a child who is the subject of a finalized Tribal Customary Adoption (TCA) shows evidence of a developmental disability or mental illness as a result of conditions existing before the TCA that leads to the child not being able to be relinquished to a licensed adoption agency on the grounds that the child is considered unadoptable, and this condition was not known by or relayed to the TCA adoptive parent(s) prior to the Tribal Customary Adoption Order (TCAO), a petition setting forth these facts may be filed by the TCA adoptive parent(s) with the juvenile court that granted the TCA petition. If these facts are proven to the satisfaction of the juvenile court, the court can make an order setting aside the TCAO. The set aside petition must be filed within five (5) years of the issuance of the TCAO.
WIC Section 391 – Provides a list of the necessary information/documentation that must be provided to a youth when he/she has reached the age of majority and jurisdiction has been terminated. This includes information concerning the child’s dependency case, and any known information regarding the child’s Indian heritage or tribal connections.
WIC Section 16507.4(b) – Explains voluntary family reunification (VFR) services and the procedures for Indian children for VFR, designed to prevent the breakup of Indian families.
