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§7.11 Tribal Customary Adoption

Without terminating parental rights, you may order the plan of tribal customary adoption as described in WIC §366.24. [WIC §366.26(b)(2); CRC 5.725(d)(1).] A “tribal customary adoption” means adoption by and through the tribal customs, traditions, or law of an Indian child’s tribe. [WIC §366.24(a); CRC 5.502(41).]

For purposes of a .26 hearing, a tribal customary adoption begins as follows [WIC §366.24(c)(1)–(9); CRC 5.725(e)(4)]:

  • Home study. The tribe or its designee must conduct a tribal customary adoptive home study, based on the prevailing social and cultural standard of the child’s tribe.
  • Registry and background checks. The tribe’s designee, or the agency with placement responsibility if the tribe conducts its own home study, must conduct an in-state check of the Child Abuse Central Index and, if necessary, a check of any other state’s child abuse and neglect registry. The designee or agency must also conduct a state and federal criminal background check of the prospective adoptive parents and any other adults residing in their household.
  • Felony conviction. Final approval is prohibited if a prospective adoptive parent or any adult living in the prospective home has been convicted of any specified felony, e.g., child abuse or neglect, crimes against a child, spousal abuse, physical assault, battery, or a drug-related offense.
  • Continuances and tribal order. You may continue the .26 hearing up to 120 days to permit the tribe to complete the process for tribal customary adoption and file a tribal customary adoption order, which must be filed at least 20 days before the hearing. The department must file an addendum report at least 7 days before the hearing. You have discretion to increase the tribal filing period. If the tribe does not file the tribal order in time, you must make new findings and orders to determine the best permanent plan.
  • Evidence. The child, birth parents, or Indian custodian and the tribal customary adoptive parents and their counsel may present evidence to the tribe regarding the adoption and the child’s best interest.
  • Full faith and credit; adoption petition. The child is eligible for tribal customary adoptive placement when you afford full faith and credit to the tribal customary adoption order and the tribe approves the home study. The agency with placement and care responsibility may make the tribal customary adoptive placement, sign the tribal customary adoptive placement agreement, and later sign the adoption assistance agreement. The prospective adoptive parent or parents may then file a petition for adoption. Subject to certain exceptions, the agency supervises the adoptive placement for six months.
  • Medical background.  An adoption agency may not place a child for tribal customary adoption unless the child’s medical background and, if available, the medical background of the child’s biological parents has been submitted to the prospective adoptive parents.

Once the petition for adoption is filed, the following steps apply [WIC §366.24(c)(10)–(15)]:

  • Legal relationship. The tribal customary adoption order must describe the modification of the legal relationship of the birth parents or Indian custodian and the child. But the order may not oblige the birth parents or Indian custodian to pay child support.
  • No consent of parent or custodian. The Indian parent’s or Indian custodian’s prior consent to a permanent plan of tribal customary adoption is not required.
  • Final report. After the adoption petition is filed, the agency with care, placement, and responsibility for the child must submit to the court a full and final report of the facts of the proposed tribal customary adoption.
  • Rights and privileges; jurisdiction terminated. After the adoption order is issued and afforded full faith and credit, the tribal customary adoptive parents have all the rights and privileges afforded to any other adoptive parents. After a final decree is issued, you must terminate jurisdiction over the child.
  • Transfer to tribal court. The proceedings may be transferred to a tribal court when otherwise permitted by law.
  • Set aside petition. If evidence of a preexisting developmental disability or mental illness concerning the child arises after entry of the tribal customary adoption order, a petition to set aside the order may be filed. [WIC §366.26(e)(3); see §2.12.]

Disclosure of tribal customary adoption records is governed by WIC §366.24(d).


   
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© 2006 by Judicial Council of California
updated as of January 1, 2012