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. 

This policy guide was updated from the 07/01/14 version to incorporate new Indian Child Welfare Act (ICWA) changes including Welfare and Institutions Code (WIC), Section 224.2 which establishes an affirmative and continuous duty to inquire whether a child who is placed into the temporary custody of DCFS is or may be American Indian, and instructions from All County Letters (ACL) 22-95 and 23-46 for documenting ICWA Inquiry results in CWS/CMS,

 

 

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 and California ICWA statutes are broader and apply more expansively to all cases and investigations, not just to removals and Indian child custody legal proceedings.

ICWA governs the proceedings for determining the placement of an Indian child when that child has been removed from the custody of their 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:

• An Indian child is at risk of placement in foster care as a result of being removed from their parent/Indian custodian, and the parent/Indian custodian cannot have the child returned upon demand.
• Indian child adoption whether or not parental rights will be terminated.
• Parental rights have been terminated
• Appointment of a legal guardian for the child by order of the court
• Pre-adoptive placement
• Adoptive placement
• Involuntary child custody proceedings
• Voluntary child custody proceedings

Additionally, per WIC 224(a)(1) “the state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) and other applicable state and federal law, designed to prevent the child’s involuntary out-of-home placement and, whenever that placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child’s tribe and tribal community.”

Active Efforts

The ICWA requires CSWs to provide an Indian family with active efforts in casework from the first point of contact with the family. Active efforts include providing remedial services and rehabilitative programs designed to prevent the need for removal when there is reason to know the child is or may be an Indian child 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.  Per WIC 224.1 (f) Active efforts” means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family. If an agency is involved in an Indian child custody proceeding, active efforts shall involve assisting the parent, parents, or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. . . ."


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. 

The following are some guidelines for providing active efforts (this is not an exhaustive list):

• Requesting the Indian child’s tribe to convene traditional and customary support and resolution actions or services.
• Identification and participation of tribally designated representatives at the earliest point.
• Consultation with extended family members to identify family structure and family support that may be provided by extended family members.
• Frequent visitation in the Indian child’s home and the homes of the child’s extended family members.
• Exhaustion of all tribally appropriate family preservation alternatives.
• Identification and provision of information to the child’s family concerning community resources that may be able to offer housing, financial, and transportation assistance and actively assisting the family in accessing the community resources.

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. Per WIC 306(f)(4) "If it is known or there is reason to know the child is an Indian child, the county social worker shall make active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family prior to removal from the custody of a parent or parents or Indian custodian unless emergency removal is necessary to prevent imminent physical damage or harm to the Indian child."

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.

Indian Child

An “Indian child” is an unmarried person who is under age eighteen (18) and who is:

• A member of a federally recognized Indian tribe, or  eligible for membership in a federally recognized Indian tribe;
• The biological child of a member of a federally recognized Indian tribe; and
• Or someone between the ages of 18-21 under the jurisdiction of the dependency court, unless that person or their attorney elects not to be considered an Indian child for purposes of the Indian child custody proceedings.

Nonminor Dependents

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, they can elect to no longer be considered an Indian Child. For more information, refer to the Extended Foster Care (EFC) Program.

Tribal Participation in Court

Federally Recognized Tribes

During court proceedings for a foster care placement, or for the termination of parental rights Federally Recognized Tribes may:  

• Ask for up to twenty (20) more days to get ready for a hearing
• Deny a parent or Indian custodian’s request for the case to be moved to tribal court
• Petition the court to transfer the proceedings to the tribal court. The court must transfer the proceedings unless there is good cause not to do so.
• Look at the case documents that the court has on file
• See records kept by the State on the placement of tribal children
• Apply certain tribal laws or customs to the Indian child custody proceeding (i.e. definition of “extended family”)
• Disagree with the ICWA placement preferences and tell the court where the tribe thinks it would be best for the Indian child to live
• Select Tribal Customary Adoption (TCA) as a permanency option

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

• Express placement or adoptive preferences
• Assist in identifying a qualified expert witness
• Facilitate identification of placement options
• Assist in tribally approving a home
• Identify available Indian services and programs
• Intervene at any time during the case

Multiple Tribe Membership

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.

Non-Federally Recognized Tribes

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.

However, per ACL 23-46 under the Spirit of the Law and best practice, Active Efforts and placement preferences need to be applied to all Native American families even if they are not ICWA eligible and Non-Federally Recognized Tribes are to be informed of the opportunity to participate in juvenile dependency proceedings.  

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:

• Be present at the hearing
• Address the court
• Request and receive notice of hearings
• Request to examine court documents relating to the proceeding
• Present information to the court that is relevant to the proceeding
• Submit written reports and recommendations to the court
• Perform other duties and responsibilities as requested or approved by 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:

• A list of non-federally recognized tribes
• A list of addresses or phone numbers of non-federally recognized tribes can be obtained through individual State Indian Affairs offices.

Spirit of ICWA

It is not uncommon for a family or child to have a significant connection to one or more Indian tribes and not meet the definition of an “Indian child” under ICWA. When a CSW has reason to believe that a child or family has a connection to a non-federally-recognized tribe, or has a connection to a federally recognized tribe, but is not eligible for membership, then the “Spirit of ICWA” applies. The Spirit of ICWA means that CSWs are to apply the best practices reflected in ICWA to all Native American families and children even when ICWA does not technically apply. Following the Spirit of ICWA helps ensure better outcomes for Native American children and families.

Under the Spirit of the Law, Active Efforts and placement preferences need to be applied to all Native American families even if they are not ICWA eligible. 

For questions regarding the Spirit of ICWA the American Indian Unit can be contacted at auiu@dcfs.lacounty.gov.

Court Proceedings

Qualified Expert Witness

Qualified expert witnesses testify as to whether or not recommending foster care placement (Jurisdiction/Disposition Hearing) or termination of parental rights (Selection and Implementation 366.26 Hearing) or whether the continued custody of the child by the parent or Indian custodian is likely to result in serious physical or emotional damage to the child and must be qualified to testify to the prevailing social and cultural standards of the Indian child’s tribe.  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:

• American Indian (AI) Units at aiui@dcfs.lacounty.gov
• Judicial Council of California -California Expert Witness List - tribal projects

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.

Additionally, it is best practice for the CSW to always contact the tribe or tribal representative first to find out who the tribe recommends to be their expert witness.

Notice of a Child Custody Proceeding

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. Notice must be sent to the tribe’s designated mailing address listed on the Federal Registry, and sent by certified mail return receipt requested. 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 them that the court has ordered them 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.

Termination of Parental Rights

The court may find that the termination of parental rights is not in the best interest of an Indian child when:

• Termination of parental rights would substantially interfere with the child’s connection to their tribal community or their tribal membership rights
• The child’s tribe has identified guardianship or long-term foster care with a fit an able and willing relative or another planned permanent living arrangement for the child, or tribal customary adoption

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.

Voluntary Termination of Parental Rights

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/Indian 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.

Determining American Indian Heritage

Inquiry about American Indian heritage must be done for every family served by DCFS during the initial contact and continuously throughout the duration of a case.  CSWs have an ongoing duty to inquire about the possibility of American Indian heritage at every point of contact with a family.  Inquiring about a child’s possible American Indian Heritage may lead to one of the following; Reason to Know, Reason to Believe, or No Reason to Believe.  

1. Reason to Know = It is stated that the child is an Indian Child or that the parents are tribal members. Pursuant to WIC section 224.2(d), a social worker has “reason to know” a child is an Indian child if:

• • A person having an interest in the child informs the court that the child is an Indian child.
    
    
  • The child, their parents, or Indian custodian resides or is domiciled on a reservation or in an Alaska Native village.
    
    
  • A participant in the proceeding or other interested person informs the court that they have information indicating that the child is an Indian child.
    
    
  • The child gives the court reason to know they are an Indian child.
    
    
  • The court is informed that the child is or has been a ward of a tribal court.
    
    
  • The court is informed that either parent or the child possesses an identification card indicating membership or citizenship in an Indian tribe.
    
    
  • Concrete information is obtained from the family. For example, tribal enrollment cards, certificates of degree of Indian blood, family resided on a reservation/Rancheria/tribal land, family is receiving benefits through tribe or Tribal TANF, family is receiving Indian Health Services, tribal court documents, etc.

Reason to Know a child is an Indian child exists if you have concrete information that the child is a member of a tribe or is eligible (examples):

• • Child or parent has an identification card indicating membership in a tribe.
  • Child or parent live on a reservation, Rancheria or Alaska Native village
  • Child is or was a ward of a tribal court
  • Someone informs the court that the child is an Indian child
  • Must treat the child as an Indian Child
  • ICWA-030 Notice is required.

2. Reason to Believe (RTB) = It is stated that the child might be an Indian Child or that the parents might be tribal members. A person may have a reason to believe that the child is or may be an Indian child when there is any information which provides the basis for establishing “reason to know” the child is or may be an Indian child. This information may include, but is not limited to:

• • Any person provides information that tends to indicate the child is an Indian child;
    
    
  • Information that suggests, but does not establish, that the child, parents, legal guardian or Indian custodian reside or are domiciled on a reservation or Alaska Native village.
    
    
  • Information that suggests, but does not establish, child, parents, legal guardian or Indian custodian receives Indian health and/or education services.
    
    
  • Information that suggests, but does not establish, that the child is currently or has been in the past subject to the jurisdiction of a tribal court;
    
    
  • Information that suggests, but does not establish, that the child has an Indian custodian

Reason to Believe examples:

• • Mother says her family told her they have Cherokee ancestry.
  • Father can’t recall the tribe but is sure he has Indian ancestry.

If there is a Reason to Believe that a child may be an Indian child, CSWs are to further inquire to determine if there is Reason to Know.  Further Inquiry must include contacting the parent(s), guardian(s), Indian custodian, extended family members, the BIA, the Tribe(s), and any other person who might reasonably have more information regarding the child’s tribal membership status or eligibility. If any additional information arises at any point during further inquiry, a “RTB” can turn into a “Reason to Know” a child is an Indian child. 

3. No Reason to Believe = It is stated that the child is not an Indian Child and that no one in the family is a tribal member. The court has determined ICWA does not apply.

Reason to Believe that a child may be an Indian child does not require notices. When there is a Reason to Know that a child may be an Indian child is when noticing is triggered.

If at any point in the case, new information is obtained regarding a child’s American Indian heritage, the tribe, and Bureau of Indian Affairs (BIA) must be re-noticed with the new information. This must be done even if the court already found that the ICWA does not apply.

CSWs may refer to the ICWA Flowchart: Is the Child an Indian Child for guidance on ICWA inquiry.

Continuous Indian Child Welfare Act (ICWA) Inquiry

Welfare and Institutions Code (WIC), Section 224.2 establishes an affirmative and continuous duty to inquire whether a child who is placed into the temporary custody of DCFS is or may be American Indian.  CSWs, SCSWs, and other staff that assist with locating families have a duty to inquire about ICWA heritage on all cases regardless of whether a child is in placement or not.

This duty to inquire extends to parents and guardians, in addition to maternal and paternal family members as well as extended family members, friends, etc. who are familiar with the child. Additionally per WIC 224.2 (a) “the court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 may be or has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child."

Further, Appellate Courts are directing that this duty to inquire applies even if the parents deny any American Indian connection or ancestry.

American Indian (AI) Units

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.

Relinquishment with the California Department of Social Services (CDSS)

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:

• All recipients have responded that the child is not a member of a tribe or is eligible for membership and is a biological child of a member of the tribe.
• Sixty (60) days have lapsed and the court has determined that the ICWA does not apply.
• Sixty (60) days have lapsed, not all recipients have responded, and the court has not made a determination that the ICWA does not apply.
• All parties have responded and that child has been identified as a member of a tribe or is eligible for membership.

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.

Tribal Customary Adoption (TCA)

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 their parent(s).

• If termination of parental rights (TPR) has occurred but the adoption has not been finalized, upon the tribe’s recommendation that a permanent plan be changed to TCA, the juvenile court can reinstate parental rights and order a new WIC 366.26 hearing to determine if TCA is the appropriate plan for the child.

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:

• Verbal and written communications (phone, email, fax)
• In person meetings
• Child and Family Team Meeting
• Family Group Decision Making (FGTD) meetings

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.

Furthermore, anytime TCA is being considered it should be documented in the Special Projects page of CWS/CMS to indicate a child is being considered for tribal customary adoption.

Timelines

At the initial WIC 366.26 hearing for a TCA permanent plan, the hearing may 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 for TCA

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

Tribal Designees are responsible for the following:

• Working with the Indian child’s tribe
• Completing the TCA applicant assessment using the prevailing social and cultural standard of the child’s tribe. This includes, but is not limited to:
  • Accepting the adoption application
  • Providing all required information to the applicant
• Recommending the approval or denial of the adoptive applicant to the tribe
• Conducting Department of Justice (DOJ) and FBI criminal background checks
• Conducting Child Abuse Central Index (CACI) and out-of-state child abuse and neglect registry checks

In addition, Tribal Designees may be responsible for:

• Supervision of the adoptive placement
• Termination of the adoptive placement
• Completing the final court report
• The immediate filing of the final court report

Applicant Assessment

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 their 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.

Tribal Customary Adoption Order (TCAO)

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:

• Contact between the birth parents or Indian custodians of the child;
• Postadoption contact agreement is not required when the permanent plan is TCA, since the TCAO addresses contact between birth parents or Indian custodians;
• Responsibilities of the birth parents or Indian custodians;
• The child’s legal relationship with the tribe; and
• The child’s rights of inheritance.

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).

Updates to a Conventional Adoption Applicant Assessment

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, they may be eligible to receive an abbreviated TCA applicant assessment.

Postadoption Contact Agreements

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:

• Visitation between child and birth parents, birth relatives, and the child’s tribe.
• Future contact between birth parents, birth relatives, and the child, and/or the child’s adoptive parent, and the tribe.
• Future sharing of information about the child.

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.

Inquiring about and Determining American Indian Heritage

ER/ERCP/APRD CSW Responsibilities

1. Everyone interviewed must be asked whether there is information indicating the child is or may be an Indian child.  Even if the case is a non-detained case, even if the family is from another country, even if it appears ICWA does not apply DCFS is to ask everyone interviewed about ICWA.  (For example, if there’s contact with the child’s school the school should be asked about ICWA, if a neighbor is interviewed they should be asked about ICWA.)  Social Workers must ask everyone interviewed during the investigation the following question: 
   
   
   • Do you have any information that the child or family is, or may be American Indian or Alaskan Native?
     

     Then ask about tribal affiliation by asking the following question:

   • Has the child or family ever lived on Indian land or received benefits from an Indian tribe?
     
     
   • In an independent adoption, inquiry must be made by the Adoption Service Provider (ASP), unless the petitioner(s) are relatives and an ASP is not needed. In that case, DCFS is responsible for inquiry.
2. While interviewing the parent/legal guardian/Indian custodian complete the DCFS 5649 , Indian Ancestry Questionnaire.
   
   
3. If the child may be, or is American Indian, document all active efforts provided to the Indian family to prevent the breakup of the family.
   
   
   1. Explain whether or not these efforts were successful in the Contact Notebook, Case Plan, and court report.
      
      
4. Document the child’s ICWA eligibility in the Client Services Notebook under the ID Tab.
5. Document the child’s ICWA eligibility in the Detention Report under the INDIAN CHILD WELFARE ACT STATUS section.

All Emergency Response (ER) workers and APRD CSWs are to conduct these inquiries on all cases.  The results of these inquiries must be properly documented in CWS/CMS, in a contact and in the Client ID Page, and reported at the earliest possible point in the detention process.  Ideally, as part of the detention packet filed with the court.

DOCUMENTING ICWA INQUIRY RESULTS IN CWS/CMS

To properly document ICWA inquiry results in CWS/CMS the following must be done:

1. Select the proper response in the ICWA Eligible response box, under the Other Client Information section of the CWS/CMS Client Notebook-ID Page.

      

2. Complete a Contact with narrative in the CWS/CMS Contact Notebook.

ER/DI/FM/R CSW Responsibilities

1. If the child may be or is American Indian, check the Client Notebook for information on the child’s Indian status.
   
   
2. If not previously done or if new information has been obtained regarding the child’s American Indian status:
   
   
   1. While interviewing parent/legal guardian/Indian custodian complete the DCFS 5649, Indian Ancestry Questionnaire.
   2. Contact extended family members and the Indian custodian, if applicable, to gather the information needed to complete the DCFS 5649.
   3. Document the name and relationship of the person providing the information and their response in the Contact Notebook and Client Notebook under the ICWA page, and complete the Ancestor information.
   4. If needed, contact the Bureau of Indian Affairs (BIA) and California Department of Social Services (CDSS) for assistance in identifying the names and contact information of the tribes in which the child may be a member or may be eligible for member ship in.
      • BIA Tribe Listing
      • CDSS Tribe Listing
   5. To add new tribal information for a child of Indian ancestry, complete the ICWA page in a parent’s Notebook. After completing the parental information, the children’s Tribal Membership fields will display the parent’s information except for Membership Status, Status Date, and Enrollment Number fields. Complete these fields in the child’s Client Notebook.
3. Code the child as “Claims Membership” or “Pending Verification” on the ID page of the Client Notebook.
4. Document all active efforts provided to the Indian family to prevent the breakup of the family and explain whether efforts were successful in the Contact Notebook, Case Plan, and court report.
5. Contact the American Indian (AI) Units at auiu@dcfs.lacounty.gov to discuss resources and whether the referral or case should be transferred to them for services.

All Emergency Response (ER) DI/FM/R CSWs are to conduct these inquiries on all cases.  The results of these inquiries must be properly documented in CWS/CMS, in a contact and in the Client ID Page, and reported at the earliest possible point in the detention process.  Ideally, as part of the detention packet filed with the court.  Refer to DOCUMENTING INQUIRY RESULTS IN CWS/CMS for instructions.

APRD CSW Responsibilities

1. Check the Client Notebook for information on the child’s Indian status.
2. If not previously done or if new information has been obtained regarding the child’s American Indian status:
   1. Complete and attach the ICWA-010(A), Indian Child Inquiry Attachment for each child.
      • The Adoption Service Provider (ASP) is responsible for sending a copy of the ICWA-010(A) to the petitioners, the petitioner's attorney, and DCFS.
   2. Inform the parent/legal guardian/Indian custodian of the requirement that they fill out  the ICWA-020, Parental Notification of Indian Status.
      • In a relinquishment (non-Dependent case), this form is completed prior to accepting the relinquishment or a waiver of rights to further notice.
      • In an independent adoption, this form is completed prior to accepting the adoptive placement agreement, waiver of rights to further notice, and/or any consent.
   3. Follow instructions for Providing Notice to Federally Recognized Tribes beginning with completing the ICWA-030, Notice of Child Custody Proceeding for Indian Child.

Providing Notice to Federally Recognized Tribes – Completing the Detention Report

CSW Responsibilities

The following responsibilities apply to the CSW completing the detention report.

1. In the detention report, under ICWA Status, indicate if the child may be or is American Indian. Include whether or not the tribe is federally recognized or non-federally recognized and all the information that the parents have provided.
2. If the tribe is known, notify the tribe by mail and phone regarding the detention hearing, and document the contact in CWS/CMS and under ICWA Status in the detention report.
3. Complete and attach the ICWA-010(A), Indian Child Inquiry Attachment to the Detention Report, and fax it to Intake and Detention Control (IDC).
4. Ensure that proof of the Detention Hearing Notice is filed with the court within ten (10) days of the petition being filed.

IDC CSW Responsibilities

1. In the detention report under Recommendations, request that DCFS have permission to share case information with the qualified expert witness, if the ICWA applies.

Providing Notice to Federally Recognized Tribes

APRD/DI/FM/R CSW Responsibilities

1. Complete the ICWA-030, Notice of Child Custody Proceeding for Indian Child.
   1. Contact a child’s extended family members and the Indian custodian, if applicable, to gather information needed to complete the ICWA-030.
   2. Interview the parents, extended family members, Indian custodian, and any other person expected to have information regarding the child’s membership status or eligibility.
   3. Document the name and relationship of the person providing the information and their response in the Contact Notebook and Client Notebook under the ICWA page, and complete the Ancestor Information.
      • Do not leave any spaces blank and do not put “N/A” if the information is unknown.
      • If the information is unknown, write in “Information unknown. See additional information below.” In the Additional Information box, put who was interviewed.
2. Mail the ICWA-030, the ICWA-010(A), the petition, and the child’s birth certificate (if available) to the following parties by certified mail, return receipt requested, or by registered mail, return receipt requested at last thirty (30) days prior to the hearing, when possible. Additional notice by first class mail is recommended but not required.
3. If assistance is needed in locating updated tribal information, contact the AI Units at auiu@dcfs.lacounty.gov:

Party	Timeline	Additional Information
Parent/Legal Guardian	Must receive regular notice as required for the hearing, written, or oral.
Indian Custodian (if applicable)	Must receive at least ten (10) days prior to the hearing and fifteen (15) days prior to the BIA. Should receive notice to the tribal chairperson unless the tribe has designated another agency for service in the BIA list of designated agents. If the tribe has not designated another agency for service in the BIA Tribe Listing, the notice to the tribe should be addressed as follows: “Tribal Chairperson, Name of Tribe.”	Each tribal notice must be addressed to the designated tribal agent. The agent’s identity is listed with the tribe in the federal registry. BIA Tribe Listing ICWA Designated Agents Listing CDSS Tribe Listing To confirm the address of the tribe(s), contact the County Counsel’s ICWA Notice Program. In the event that The Federal Registry list is out of date, additional help identifying and locating contact information for a child’s tribe must be sought by emailing the CDSS at ICWAinquiry@dss.ca.gov. Please be advised that sending an email to the CDSS ICWA Inquiry mailbox does not satisfy all of the mandatory “further inquiry” requirements. The CDSS mailbox is only able to assist with providing names and contact information for the tribe(s) in which the child is or may be a member. The Office of Tribal Affairs should be contacted at TribalAffairs@dss.ca.gov if you are unable to ascertain tribal contact information from the BIA and the CDSS ICWA Inquiry mailbox.
Federally Recognized Tribe(s)
Bureau of Indian Affairs (BIA)	Must receive notice fifteen (15) days prior to the hearing.	Sacramento Area Director Bureau of Indian Affairs Federal Office Building 2800 Cottage Way Sacramento, CA 95825
Secretary of Interior (SOI)	Must receive notice fifteen (15) days prior to the hearing.	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

4. If no response is received within ten (10) calendar days from the date of delivery marked on the Certified Mail Return Receipt from the BIA, Secretary of Interior and/or the tribe(s) that was noticed,

1. 1. Call and/or email the BIA and/or the tribe and request that the information regarding the child’s Indian status be faxed.
   2. Document these active efforts in the Contact Notebook.

5. Update any new information received from the tribe(s) or the BIA and Secretary of Interior in the Client Notebook.
   
   
6. Once the Letter(s) of Confirmation is received from the tribe(s), code the child as “eligible,” “Member,” “not eligible,” or “No response after 60 days” on the ID page of the Client Notebook.
   
   
7. Obtain a Certificate of Degree of Indian Blood form from the BIA or from the child’s tribe.
   
   
8. If available, consult with the Tribal Designee regarding the placement of the Indian child.

1. 1. In the Placement Notebook on the ID Page, document that a Tribal Designee was consulted, regarding the placement and the fate of the agreement for the placement.

9. If the child is declared ICWA eligible by the tribe, consult with the tribe regarding permanency options for the child, including Tribal Customary Adoption (TCA).
   
   
10. Document all pertinent information on the child’s Indian status in the court report. Attach the following documents to the court report. These documents must be filed in the court prior to the hearing:

• • All notices, with proof of service mailed to the tribe(s), BIA, SIO, legal guardian, & parent
    
    
  • All returned mailing receipts
    
    
  • Response letters received from BIA, SOI, and the tribe(s), such as a Letter of Confirmation.

11. Continue to use the ICWA-030 to provide notice to Federally recognized tribes on Indian child custody proceedings until:

• • The court finds notice proper;
    
    
  • The tribe acknowledges in writing that the child is not a member and is not eligible for membership and the court determines the ICWA does not apply, or the tribe intervenes; and
    
    
  • The tribe acknowledges in writing that the child is, or is eligible to be, a member of the tribe.
    
    
    • When a federally recognized tribe confirms that a child is American Indian, it must be noticed for all hearings regarding the child. The Indian tribe must receive the Regular Notice form.
      
      
    • The ICWA-030 is no longer used and no further notice is required for BIA or SOI.

DI/FM/R CSW ONLY:

1. Review each minute order for one (1) or more of the following findings, which are required for Indian cases:
   
   
   • Notice has been provided to all required parties.
     
     
   • The child’s Indian status and the child’s tribal
     membership, either “ICWA applies” or “ICWA does not apply”
     
     
   • For cases where it is determined that the child is an Indian child:
     
     
     • Active efforts and rehabilitative programs that have been provided to the family.
     • Clear and convincing evidence that continued custody by the parent/Indian custodian is likely to result in serious emotional or physical damage to the child.
     • Testimony by a qualified expert witness or a declaration/affidavit from a qualified expert witness in lieu of testimony.
     • The statutory preference order for placement was followed or “good cause” exists to modify the placement order.
       
       
2. If the minute order indicates that the court heard the case without verification of the child’s Indian status, if the findings are not present, or if there are questions, call the County Counsel regarding the minute order to determine a course of action.
   
   
   • If the ICWA notice is not proper, any Indian child, parent, Indian custodian, or the tribe may petition the court to invalidate the proceedings.

APRD CSW ONLY – In an agency adoption:

1. If the child’s tribe is not federally recognized, review the case file for the following:
   
   
   • ICWA-010(A), ICWA-020, and ICWA-030
   • Notices to the tribe or to the parent or Indian Custodian sent registered mail with return receipt
   • Minute orders for ICWA findings
   • Written authorization from the tribe stating that it is in agreement with the case plan
   • The Indian child being in a placement, which complied with the placement preference
   • Certificate of Degree of Indian Blood
     
     
2. Verify that TCA has been considered as a permanency option.
   
   
3. Verify that the choice “Tribal Customary Adoption” has been identified as a selection for both the Case Plan Goal and the Permanency Alternative/Concurrent Planning Goal, if applicable, in the Case Plan Notebook.
   
   
4. Obtain any of the missing documents or information, as needed.

APRD CSW ONLY – In an independent adoption:

1. Review the case for the following items:
   
   
   • ICWA-010(A), ICWA-020, and ICWA-030
     
     
   • Certificate of Degree of Indian Blood
     
     
   • AD 925, , Independent Adoption Placement Agreement – Indian Child
     
     
   • AD 927, Statement of Understanding – Independent Adoptions Program – Indian Child, signed by a judge of the Superior Court
     
     
   • The Indian child being placed, which complied with the placement preference
     
     
2. Obtain any of the missing documents or information, as needed.
   
   

APRD CSW ONLY - In a stepparent adoption:

1. Review the case file for the following items:
   
   
   • ICWA-010(A), ICWA-020, and ICWA-030
     
     
   • ADOPT 220
     
     
   • ADOPT 225, signed by a judge of the Superior Court
     
     
2. Obtain any of the missing documents or information, as needed.
   
   

APRD/DI/FM/R CSWs

1. Document all active efforts provided to the Indian family to prevent the breakup of the family. Explain whether such efforts were or were not successful in the Contact Notebook, Case Plan, and/or court report.

Providing Notice to Non-Federally Recognized Tribes

ER/DI/FM/R/APRD CSW Responsibilities

1. Mail the following notice forms by first class mail:
   
   
   • JV-100, Juvenile Dependency Petition (Version One) – Mail for petition hearings as soon as possible or at least thirty (30) days prior to the hearing.
     
     
   • JV-280, Notice of Review Hearing – Mail for the WIC 364, 366.21, 366.22, and 366.3 hearings at least thirty (30) days prior to the hearing.
     
     
   • JV-300, Notice of Hearing on Selection of a Permanent Plan - Juvenile – Mail for the WIC 366.26 hearing at least fifty-five (55) days prior to the hearing.

Informing the Court When the Child has, or is Eligible for, Membership in More than One (1) Federally Recognized Tribe

APRD CSW Responsibilities

1. Send notice, using the ICWA-030, Notice of Child Custody Proceeding for Indian Child, to each tribe.
   
   
   • The notice must specify the other tribe(s) that are being considered as the child’s tribe, and invite each tribe’s views on which tribe will be designated.
     
     
2. Include the following in the court report:
   
   
   • Length of residence on or near the reservation of each tribe and frequency of contact with each tribe
     
     
   • Child’s participation in activities of each tribe
     
     
   • Child’s fluency in the language of each tribe
     
     
   • Whether there has been a previous adjudication with respect to the child by a court of one of the tribes
     
     
   • Residence on or near one of the tribes’ reservation by the child’s relatives
     
     
   • Tribal membership of custodial parent or Indian custodian
     
     
   • Interest asserted by each tribe in response to the notice sent
     
     
   • The child’s self-identification

Placing an Indian Child in Foster Care

ER/FM/R CSW Responsibilities

1. Consult with the Tribal Designee, if available, regarding the placement of the Indian child.
   
   
   1. In the Placement Notebook on the ID Page, document that a Tribal Designee was consulted regarding the placement and the date of agreement for the placement.
      
      
2. When placing a child in a voluntary placement case or a dependency case, use the following placement preference order:
   
   
   1. Placement with a member of the child’s extended family
      
      
      • According to the ICWA, “Extended Family Member” is defined by the law or custom of the Indian child’s tribe, or, in absence of such law or custom, is one of the following people who have reached age eighteen (18): Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first or second cousin, or stepparent.
        
        
   2. Placement in a foster home that is licensed or approved by the child’s tribe
      
      
   3. Placement in an Indian foster home that is licensed or approved by an authorized non-Indian licensing authority.
      
      
   4. Placement in an institution for children that is approved by an Indian tribe or is operated by an Indian organization that has a program suitable to meet the Indian child’s needs.

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.

3. Contact the child’s tribe and/or AI Units regarding foster homes licensed or approved by the child’s tribe or for placement resources when a child needs to be placed in an Indian home.
   
   
   • AI Units Contact Info: auiu@dcfs.lacounty.gov.
     
     
4. Complete the DCFS 280, Technical Assistance Action Request.
   
   
   1. In Priority #1: Placement section, check the box “Indian Home.”
      
      
   2. In the section designated for assessing a potential placement and a child-caregiver match, check the box “Indian Child.”
      
      
   3. If the child meets the ICWA provisions in the Part II: Child-Caregiver Match section, check the box “Tribe Approved Home.”

5. Document all active efforts made to comply with the order of placement preference for Indian children in the Contact Notebook and in the court report under the “Out-of-Home Placement” section.
   
   
6. If the home or a relative or nonrelative extended family member (NREFM) has not been approved, follow the procedures in policy 0100-520.05, Placement Prior to Resource Family Approval.
   
   • If the Indian tribe is involved in the child’s placement and it requests an exemption based on the criminal history records of any one (1) of the adults in the home or any of the individuals associated with the prospective caregiver, the tribe can have the county with jurisdiction over the child or the State Department of Social Services evaluate the exemption request.

1.  

SCSW Responsibilities

1. Review the DCFS 280.
   
   
   1. If it is in compliance with the placement preference for Indian children, sign the form.
      
      
   2. If not, return it to the CSW for corrective action.

Recommending an Indian Child Remain in Out-of-Home Care at the Jurisdiction/Disposition Hearing

CSW Responsibilities

The following procedures apply to the CSW preparing the jurisdiction/disposition report:

1. As soon as the jurisdictional/dispositional hearing is set, contact the tribe to inquire as to whether they will be providing their own Qualified Expert Witness (QEW).  If the tribe is unable to provide a QEW, obtain permission from the tribe to utilize another QEW.  Contact the American Indian (AI) Units at auiu@dcfs.lacounty.gov to request a list of identified and qualified expert witnesses, and discuss whether the case should be transferred to them for services.
   
   
2. Document how active efforts have been unsuccessful to keep the Indian family together in the jurisdiction/disposition court report under “Reasonable Efforts.”
   
   
3. Contact the qualified expert witness to request their services.
   
   
   1. Request that the qualified expert witness contact the child, the child’s family and the tribe prior to the court hearing.
      
      
   2. If the court has given DCFS permission to release information to the qualified expert witness, provide the qualified expert witness with case documents to make a recommendation regarding the Indian child custody proceeding.
      
      
   3. If the court has not given DCFS permission to release documents to the qualified expert witness:
      
      
      1. Contact the County Counsel to file a WIC 827 petition.
      2. Once the court grants the request, release the documents to the qualified expert witness.
         
         
4. Once the qualified expert witness provides a final recommendation report, summarize the recommendation from the court report in the “Disposition” section of the jurisdictional/disposition court report under the following sections: “Relevant Social, Cultural and Physical Factors,” and “Statements, Others.”
   
   
   1. Include information concerning the prevailing social and cultural standards of the Indian child’s tribe, including the tribe’s family organization and child-rearing practices.
      
      
5. Submit the qualified expert witness’ report as an attachment to the court report.
   
   
6. Inform the qualified expert witness of the court date for the jurisdictional/dispositional hearing. Inform them that they will receive a subpoena from the County Counsel to request their testimony in court. This testimony may be made by phone.
   
   
7. Document the placement preferences were followed and/or the reasons if there is good cause to deviate from them. 
   
   
8. If the child is confirmed to be an ICWA eligible child, consult with the tribe regarding permanency options, including Tribal Customary Adoption (TCA), as appropriate.
   
   
   1. Document this consultation in CWS/CMS and in the court report under ICWA Status.
      
      
   2. If the tribe informs the CSW of its interest to pursue TCA prior to the dispositional hearing, the CSW must discuss the case with the tribe and obtain any information needed to report to the court the appropriateness of TCA as a plan for the child, if reunification is unsuccessful.

SCSW Responsibilities

1. Review the court report to ensure compliance with DCFS policy.
   
   
   1. If in compliance, sign the report.
      
      
   2. If not, return to it the CSW for corrective action.

Responding to Parental Rights being Voluntarily Terminated

APRD CSW Responsibilities

In relinquishment adoptions:

1. Follow the instructions in the Relinquishment Procedures and the Statement of Understanding.
   
   
   1. If the parent chooses to proceed with the relinquishment, complete the steps in the Accepting the Statement of Understanding and Relinquishment Documents policy guide.
      
      
   2. Schedule a hearing for the signing of the Statement of Understanding and Relinquishment of Indian Child.
      
      
      1. If the Indian child is not a court dependent, contact the Court Officer in Department 421.
         
         
      2. If the Indian child is a court dependent, contact the Court Officer in the current courtroom to schedule the appearance hearing in Department 421.
         
         
         • Consent for an Indian child must be taken before a judge.
         • The birth mother and/or any presumed father is required to sign the consent in the presence of a Superior Court Judge.
         • In cases where an Indian child has an alleged father, the alleged father does not need to sign the consent in the presence of a Superior Court Judge, even if the Indian ancestry is inherited from the alleged father, unless the alleged father establishes his paternity.
           
           
2. During the consent hearing, complete the steps in the Accepting the Statement of Understanding and Relinquishment Documents. Use the following forms, as appropriate:

Situation	Forms
Indian child is detained, is court dependent in out-of-home care, or is a ward of a legal guardian	AD 899A, for the mother a presumed father AD 899D, for the alleged birth father
Indian child is not detained, a juvenile court dependent in out-of-home care, or a ward of a legal guardian	AD 899, for the mother and presumed father AD 899C, for the alleged birth fatherExplain to the relinquishing parent(s) that they are permitted to revoke or rescind the relinquishment at any time prior to the entry of the final decree of adoption. After the final decree is entered in a state court, consent can only be withdrawn if there is evidence that the consent was obtained through fraud or duress, and if the Indian child’s parent petitions the court to vacate the decree. In that case, the court will vacate the decree and return the child to the parent, provided no adoption has been effective for at least two (2) years. Such an adoption may be invalidated unless otherwise permitted under state law. Use the following forms, as appropriate:

3. Explain to the relinquishing parent(s) that they are permitted to revoke or rescind the relinquishment at any time prior to the entry of the final decree of adoption.

• • After the final decree is entered in a state court, consent can only be withdrawn if there is evidence that the consent was obtained through fraud or duress, and if the Indian child’s parent petitions the court to vacate the decree.
    
    
    • In that case, the court will vacate the decree and return the child to the parent, provided no adoption has been effective for at least two (2) years. Such an adoption may be invalidated unless otherwise permitted under state law.

4. Use the following forms, as appropriate:

Situation	Forms
A mother or presumed father is not denying paternity	AD 864, if they reside in California and is signing in the presence of the CSW. AD 863, if they do not reside in California.
A presumed father is denying paternity	AD 866, if they reside in California and is signing in the presence of the CSW. AD 867, if they do not reside in California.
An alleged father is not denying paternity	AD 868, if they reside in California AD 862, if they do not reside in California.

1. Follow instructions in the Filing the Relinquishment policy guide.
   1. Attach all copies of correspondence sent to or received from the tribe or the BIA to the AD 90.

In independent adoptions:

1. Follow instructions in the Assessment of Petitioner(s), Birth Parent(s) and Child for an Independent Adoption policy guide. During the investigation of the petition, inform petitioners that:
   • The provisions of the ICWA applied to both the Indian and non-Indian parent.
   • The birth parent may withdraw their consent and have the right to have the child return to them at any time prior to the issuance of the final decree of adoption. After the final decree is entered in a state court, the consent can only be withdrawn is there is evidence it was obtained through fraud or duress, and if the Indian child’s parent petitions the court to vacate the decree.
     • In that case, the court will vacate the decree and return the child to the parent, provided no adoption has been effective for at least two (2) years. Such an adoption may be invalidated unless otherwise permitted under state law.
2. Use the following forms, as appropriate:

Situation	Forms
Parents who are in California	AD 859
Presumed fathers	AD 860
Alleged birth fathers	AD 861

In stepparent adoptions:

1. Follow the instructions in the Stepparent and Domestic Partner Adoption policy guide.
   1. Ensure that the consent is signed before a judge and that it is certified.

Filing a Relinquishment with CDSS

APRD CSW Responsibilities

1. Once all recipients have responded that a child is not a member of a tribe, or eligible for membership, nor a biological child of a member of the tribe, attach all ICWA forms and the responses from the tribe.
2. Complete the following actions, if sixty (60) days have lapsed and the court has not determined that ICWA applies or does not apply, or if all parties have not responded and the child has been identified as a member or a tribe or eligible for membership:

Situation	Required Actions
Sixty (60) days have lapsed and the court has determined that the ICWA does not apply.	Attach: All ICWA forms A copy of mailing certification The court determination to the relinquishment
Sixty (60) days have lapsed, not all recipients have responded, and the court has not made a determination that the ICWA does not apply.	Continue to obtain all clearances; or Sign all necessary relinquishment documents in front of a Judge and continue sending notices; or File a motion requesting the court made a determination that the ICWA does not apply.
All parties have responded and the child has been identified as a member of a tribe or as eligible for membership.	Attach: All ICWA forms The response from the tribe to the relinquishment.

1. 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 to court.

Birth Parent Revokes or Rescinds Relinquishment or Withdraws Consent

APRD CSW Responsibilities

In a relinquishment:

1. If the parent’s request precedes the adoptive placement, revoke the relinquishment and return the child to the parent.
2. If the parent’s request follows an adoptive placement, notify the adoptive parents and return the child.

In an independent or stepparent adoption:

1. If consent has not been signed, the parent can request the petitioner(s) to return the child. If the petitioners refuse, file a report with the court and recommend the child’s return.
2. If consent has been signed, file a report with the court advising of the parent’s request and recommend that the child be returned.
   • The child is to return returned to the parent within an agreed upon time frame that usually does not exceed three (3) working days.
   • In no case can the return of the child occur more than seven (7) calendar days after the parent’s request.
3. Notify any parent whose consent has been taken or whose relinquishment has been filed.

Recommending Termination of Parental Rights

CSW Responsibilities

The following procedures apply to the CSW preparing the WIC 366.26 report in agency adoptions:

1. Contact the qualified expert witness to discuss the case.
   1. Provide the expert witness with case documents to help them make a recommendation regarding a permanent plan for the Indian child.
   2. Inform the expert witness:
      • Of the court date for the WIC 366.26 hearing.
   3. That they will receive a subpoena from County Counsel to request their testimony in court. Testimony can also be given by phone.
   4. Upon receipt of the expert witness’ final recommendation report, summarize the recommendation in the court report under “Analysis of the Likelihood of Adoption and Proposed Permanent Plan.”
2. Submit the qualified expert witness report as an attachment to the court report.
3. If the prospective adoptive home is a non-Indian home, document in the court report how the prospective adoptive parent is committed to enabling the child to participate in the cultural and ceremonial events of the child’s tribe.
   • If the Indian child is already in the prospective adoptive home, document in the court report how the caretaker has demonstrated a commitment to discussing family visits and participation in cultural and ceremonial events of the child’s tribe.
4. Complete the WIC 366.26 Report.

SCSW Responsibilities

1. Review the court report to ensure compliance with DCFS policy.
   1. If in compliance, sign the report.
   2. If not, return to it the CSW for corrective action.

American Indian Family Agrees to Voluntary Family Reunification Services (VFR)

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 their consent for any reason at any time and the child will be returned to the parent.

• If the child is at least ten (10) days old, the DCFS 5640, Consent to Voluntary Placement of an Indian Child and Certification, and SOC 155C are required (the parent must be a member of the tribe with an enrollment number).

CSW Responsibilities

The following procedures apply to the CSW preparing the Case Plan:

1. Explain the terms and consequences of the DCFS 5640 and SOC 155C to the parent/Indian custodian.
2. Inform the parent/Indian custodian that they must attend court, so a judicial officer can witness the DCFS 5640.
3. Contact the County Counsel assigned to Department 413 at (323)526-6813 to have the matter set on for a valid consent hearing.
4. Complete the DCFS 5640 and the SOC 155C along with a cover letter, indicating the reason for the VFR and the parent’s desires to participate in this option.
   1. Send the DCFS 5640 and the SOC 155C to the County Counsel.
5. If consent has been withdrawn but the Indian’s child’s safety is in danger, refer to Taking Children into Temporary Custody.

Recommending Tribal Customary Adoption (TCA)

CSW Responsibilities

The following procedures apply to the CSW preparing the WIC 366.26 report in TCAs:

1. Obtain written confirmation from the child’s tribe that TCA is the identified permanent plan for the child and whether the tribe will complete the applicant assessment or get a tribal designee to do so.
2. Complete the WIC 366.26 report and attach the written confirmation of the TCA plan for the child and the adoption assessment to the court report.
3. Maintain contact with the child’s tribe and request updates regarding the completion of the Tribal Customary Adoption Order (TCAO).
4. Complete and submit the addendum and the implementation hearing court report to the court seven (7) days prior to the continued WIC 366.36 hearing. Address the following in the addendum report:
   • Continued suitability of TCA being the appropriate plan for the child.
   • Recommendation for the approval or denial of the prospective tribal customary adoptive applicant(s).
     • This is contingent on the completion of the applicant assessment. If the applicant assessment is not complete, this information must be included in the report.
     • DCFS is not expected to recommend an approval of an applicant when the applicant assessment is not complete or when DCFS has not reviewed the applicant assessment if completed by the Indian child’s tribe.
   • Outcome of the full state and federal level adoption specific background clearances.
   • Any pertinent information gathered during the TCA process, including the TCAO.
   • Any updates regarding the TCA that DCFS deems necessary to report to the court.
   • Any concerns that DCFS may have with TCAO.
5. Once it has been finalized, request a copy of the TCAO from the tribe.
   1. Document any public information required in the TCAO addressing the legal relationships of the child that is pertinent to the case in the case file and the case notes on CWS/CMS.
6. Once the court affords full faith and credit to the tribe’s TCAO, follow procedures for Adopting a Child under the ICWA.

Responding to a TCA Applicant Assessment Conducted by a Tribal Designee

APRD CSW Responsibilities

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.

1. When a Tribal Designee has been chosen by the tribe to conduct the TCA applicant assessment:
   1. Go to the Open Existing Placement Notebook on CWS/CMS.
   2. On the ID Tab, go to the “Rationale” field and check the box next to “Tribal Designee Consulted.”
   3. Enter the date the designee agreed to be the tribal designee.
   4. In the narrative information “Rationale Description” field, specify that this is a TCA case and identify the designee.
2. Have the prospective adoptive parent(s) sign a release of information in order to receive a copy of the TCA applicant assessment.
3. Request a copy of the approved or denied applicant assessment from the tribe.
   1. When a tribe has formally intervened, the request should be sent to the tribal representative identified in the ICWA-040, Notice of Designation of Tribal Representative and Notice of Intervention.
   2. When the tribe has not formally intervened, and a formal representative with the authority to respond on behalf of the tribe has not already been identified by the tribe, the request must be sent to the tribal chair.
4. If the TCA applicant assessment is not received by the allotted time provided for the CSW to submit the addendum to the Continued WIC 366.26 Report to the court (7 days), include that information in this addendum report, and inform the court that it cannot recommend approval of the applicant until it reviews the TCA applicant assessment.
5. Follow instructions in Completing the Addendum to a Continued WIC 366.36 Report.

Responding to a TCA Applicant Assessment Conducted by DCFS or Another Agency

APRD CSW Responsibilities

1. Complete the adoptive applicant assessment.
2. Include the information currently required from the adoptive applicant and information use to determine adoptive applicant be approved or denied for TCA, including:
   1. Designation by the child’s tribe before accepting an application to adopt and begin the TCA applicant assessment.
   2. Indication that the applicant assessment is for the purposes of a TCA on the adoption application.
   3. Identifying information about the applicant’s tribal membership or affiliation, if applicable.
   4. Determination of the applicant’s commitment and capability to meet the needs of an Indian child, including the willingness to learn and incorporate the prevailing social and culture standards of the Indian child’s tribe into family life.
   5. Applicant’s understanding of:
      • The TCA process, including, but not limited to, the explanation of the agency as a designee, consultation with the Indian child’s tribe, and the written approval process.
      • The concept of the TCAO, including, but not limited to, the modification of the child’s relationship to the adoptive parents and the birth parents and Indian Custodian.
   6. Applicant’s cultural competence of the child’s tribe, especially customs, traditions, and laws relevant to the child’s development.
3. Complete a criminal records check according to instructions in the Applicant Assessment for the Adoption of Children policy guide. Prior to the final approval of a TCA adoption, the following checks must be conducted on the prospective adoptive parent(s) and any other person(s) over eighteen (18) years old residing in the home:
   • A state and federal criminal background check
   • A child abuse and neglect history check
   • A check of any other state’s child abuse and neglect registry
   • If the tribe does its own applicant assessment, DCFS is responsible for performing the criminal records check.
4. Inform the child’s tribe, in writing, of the approval or denial of the applicant’s criminal background clearance.
   1. If DCFS has denied a criminal background clearance based on this information, the CSW can provide an individual who is the subject of a background check with a copy of their state or federal level criminal offender record information search response, The request must be made in writing by the individual and must include an address to which a copy can be sent.
      • DCFS retains a copy of the individual’s written request, the response, and the date it was provided.
5. Forward the written preformatted applicant assessment, AD 10(s), AD 521, AD 524, DCFS 5600, DCFS/A 6, DCFS/A 33, DCFS/A 46, DCFS/A 117, DCFS/A 118, DCFS/A 312, DCFS 720, SAFE Questionnaire I & II, and any other necessary documentation to the SCSW for approval or denial.

Updating a Conventional Adoption Applicant Assessment to a TCA Adoption Applicant Assessment

APRD SCSW/Family Assessment Worker’s SCSW Responsibilities

1. Review the AD 10(s), AD 521, AD 524, DCFS 5600, DCFS/A 6, DCFS/A 33, DCFS/A 46, DCFS/A 117, DCFS/A 118, DCFS/A 312, DCFS 720, SAFE Questionnaire I & II, the DCFS/A 15 (if applicable), the SAFE Psychological Inventory, and the SAFE preformatted applicant assessment and discuss any concerns with the CSW.
   1. If approving the assessment, sign the approval page and forward the case to the CSW.
   2. If not approved, return the assessment to the CSW for corrective action.

APRD CSW Responsibilities

1. Inform the tribe, in writing of DCFS’ recommendation to approve or deny the TCA applicant assessment.

Completing the Addendum to a Continued WIC 366.26 Report

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.

APRD CSW Responsibilities

1. Request the TCAO from the tribe.
   1. When the tribe has formally intervened, send the request to the tribal representative identified in the ICWA-040, Notice of Designation of Tribal Representative and Notice of Intervention.
   2. When the tribe has not formally intervened, and if a formal representative with authority to respond on behalf of the tribe has not already been identified by the tribe, the request should be sent to the Tribal Chair.
2. Request a copy of the final applicant assessment, if applicable.
3. Review the TCAO and the final applicant assessment, if applicable.
   1. Discuss any concerns with the tribe.
   2. Consult if the SCSW as needed.
4. Submit the addendum seven (7) days prior to the continued WIC 366.36 hearing. The addendum must address the following:
   • Continued suitability of TCA being the appropriate plan for the child.
   • The recommendation for the approval or denial of the prospective TCA adoptive applicant(s). This is contingent on the completion of the applicant assessment. If it is not completed, include that information in the report.
   • The outcome of the full state and federal level adoption specific background checks.
   • Any pertinent information gathered during the 366.24 process, including the TCAO.
   • Any updated regarding the TCA that are necessary to report to the court, including reporting that the TCA applicant assessment has not been received or informing the court that DCFS cannot recommend approval of the applicant.
   • Any concerns with the TCAO.
5. When the court orders full faith and credit for the TCAO:
   1. Go to the Open Existing Family Information Notebook in CWS/CMS.
   2. In the Parental Rights Tab, go to the “Tribal Customary Adoption” field.
   3. Check the box for “Tribal Customary Adoption Afforded Full Faith and Credit.”
   4. Enter the date of the court’s order giving full faith and credit to the tribe’s TCA order.

APRD SCSW Responsibilities

1. Review the report and any supporting documents including the TCA applicant assessment, if applicable, and the TCAO.
   1. If approved, sign the report and return the packet to the CSW.
   2. If not approved, return to the CSW for corrective action.

Completing an Adoptive Placement for a TCA

APRD CSW Responsibilities

1. Inform the adoptive parent(s) that once a Tribal Customary Adoption (TCA) is finalized, if the child shows evidence of a developmental disability or mental illness as a result of conditions existing before the TCA. The developmental disability or mental illness must lead the child to not being able to be relinquished to a licensed adoption agency (i.e. considered unadoptable). This condition must also not have been known by or relayed to the TCA adoptive parent(s) prior to the Tribal Customary Adoption Order (TCAO.
   • If these facts are satisfactory to the juvenile court, the court can make an order setting aside the TCAO. The set aside petition must be filed within five (5) years from the issuance of the TCAO.

Recommending Adoption for an Indian Child

CSW Responsibilities

The following procedures apply to the CSW preparing the WIC 366.26 report:

1. As soon as the WIC 366.26 hearing is set, contact the qualified expert witness to discuss the case.
   1. Provide the expert witness with case documents to help him/her make a recommendation regarding a permanent plan for the Indian child.
   2. Inform the expert witness of the court date for the WIC 366.26 hearing.
   3. Inform the expert witness that they will receive a subpoena from the County Counsel to request their testimony in court. Testimony can also be given by phone.
2. Upon receipt of the expert witness’ final recommendation report, summarize the recommendation in the court report under “Analysis of the Likelihood of Adoption and Proposed Permanent Plan.”
3. Complete the WIC 366.26 Report.
4. Submit the qualified expert witness report as an attachment to the court report.
5. If the prospective adoptive home is a non-Indian home, document in the court report how the prospective adoptive parent is committed to enabling the child to participate in the cultural and ceremonial events of the child’s tribe.
   • If the Indian child is already in the prospective adoptive home, document in the court report how the caretaker has demonstrated a commitment to discussing family visits and to participation in cultural and ceremonial events of the child’s tribe.
6. Discuss the Postadoption Contact Agreement with the prospective adoptive parent. If they agree to a Postadoption Contact Agreement, refer to Post-adoption Contact Agreements.
7. If Tribal Customary Adoption (TCA) has been granted by the court, refer to Completing an Adoptive Placement for TCA.

SCSW Responsibilities

1. Review the court report to ensure compliance with DCFS policy.
   1. If in compliance, sign the report.
   2. If not, return to it the CSW for corrective action.

Placing an Indian Child in Adoptive Placement

APRD CSW Responsibilities

1. When placing or replacing an Indian child in an adoptive placement, use the following placement preference order, unless there is good cause to modify the order of preference:
   1. A member of the child’s extended family
      • According  the ICWA, “Extended Family Member” is defined by the law or custom of the Indian child’s tribe, or in absence of such law or custom, is one (1) of the following people who have reached age eighteen (18): Indian child’s grandparent, aunt, uncle, brother, sister, brother-in-law, sister-in-law, niece, nephew, first or second cousin, or stepparent.
   2. Other members of the child’s tribe
   3. Another Indian family
2. Document all active efforts made to comply with the order of adoptive placement preference for Indian children in the Contact Notebook and in the court report under the “Out-of-Home Placement” section.
3. If the preferred adoptive placement is not available for an Indian child, ensure that active efforts are made to place the child with a family committed to enabling them to have extended family visitation and participation in the cultural and ceremonial events of their tribe.
4. Inform the prospective adoptive parents of the birthparent’s rights to:
   • Rescind the relinquishment at any time prior to the entry of the final decree of adoption by the court
   • Petition the court within two (2) years of the granting of the final decree of adoption to set aside the decree on the grounds that the consent was obtained through fraud or duress
   • Petition the court to invalidate any action terminating parental rights if the termination procedures did not comply with the ICWA.
5. Document whether the child’s adoptive placement is one specified by the child’s tribe, with extended family, or with an unrelated Indian family in the Case Notes.
6. Print the Case Notes and attach them to the AD 23 to send to the Finalization Clerk.
   • The Finalization Clerk will send the Case Notes with the AD 558 to the State.

Requests for Tribal Information from Adult American Indian Adoptees

APRD CSW Responsibilities

1. Follow instructions included in Post Adoption Services (PAS) Release of Information After the Adoption is Final.
   1. If the adoptee is a minor, inform them that tribal information cannot be released until they reache age eighteen (18).
2. If the adoptee was enrolled in the tribe prior to the adoption:
   1. Provide the tribal enrollment number.
   2. Contact the tribe to determine if any additional information is required from DCFS.
   3. Send the required documents to the tribe.
3. If the adoptee was not enrolled in the tribe and requests enrollment:
   1. Contact the tribe to determine what they require for enrollment.
   2. Send the required documents to the tribe.
4. Inform the adoptee that if they desire additional information, they may petition the Superior Court.

Discussing EFC with an Indian Youth Prior to Turning Eighteen (18)

CSW Responsibilities

1. Discuss the Extended Foster Care (EFC) program with the youth.
   1. Advise the youth of their right to continue to be considered an Indian Child for the ongoing application of the ICWA.
      • This includes provisions such as tribal involvement in case planning or tribal notification of court hearings.
   2. Advise the court of the youth’s decision in the Status Review hearing report submitted to the court prior to the youth’s eighteenth (18th) birthday.

Transitioning an Indian Youth to Independence and Terminating Jurisdiction

CSW Responsibilities

1. Provide the youth with written information concerning their dependency case, including any known information regarding their Indian heritage or tribal connections.
2. Provide the youth with all the documents necessary for transitioning to independence.

SCSW Approval

• Court report
• DCFS 280
• TCA Applicant Assessment
• Addendum WIC 366.26 Report
• WIC 366.26 Report

ARA Approval

• DCFS 280, as needed

RA Approval

• DCFS 280, as needed

Attachments

County Counsel’s ICWA Notice Program

Child and Family Teams- Tribal Engagement Guide

Forms

CWS/CMS

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

LA Kids

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

AD Forms can be accessed through the State CDSS Forms Index.

Referenced Policy Guides

0070-548.01, Child and Family Teams

0070-548.20, Taking Children into Temporary Custody

0070-559.10, Clearances

0080-507.20, Concurrent Planning And The Concurrent Planning Assessment (CPA)

0100-510.21, Voluntary Placement

0100-520.05, Placement Prior to Resource Family Approval

0100-520.70, Exemptions for Criminal History Records

0100-535.25, Extended Foster Care (EFC) 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 Procedures 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 Partner 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

Statutes

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 their 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 their 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 366.26 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 they have 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.