Title 8. Family/Children’s Code
Chapter 5. Adoption
Title 8. Family/Children’s Code, Chapter 5. Adoption
SECTION 101. POLICY
It is the policy of the Tribe that its children should be adopted only as a matter of last resort, and alternative long-term placements such as guardianship and long-term foster placement should first be considered which maintain the connection between the child and the parent and family. A decree of adoption shall not terminate the legal relationship between the child and the child’s natural family members, except by order of the Court.
SECTION 102. PURPOSE OF ADOPTIONS
The purpose of an adoption is to establish a formal and legal family relationship between two or more persons which after adoption, shall exist as if the parties were born into the adoptive relationship by blood. Adoptions pursuant to this Act shall be so recognized by every agency and level of the Government except in eligibility for enrollment determinations which shall continue to be based upon biological parentage.
SECTION 103. JURISDICTION OVER ADOPTIONS
(A) The Children’s Court shall have exclusive jurisdiction regarding the adoption of any person who resides or is domiciled within the jurisdiction of the court, is unmarried, less than eighteen years of age, and either:
(1) A member of an Indian Tribe, or
(2) Is eligible for membership in an Indian Tribe, and is the biological child of a member of an Indian Tribe, or
(3) Whose case has been transferred to the Children’s Court from the courts of a state, or Tribe which has assumed jurisdiction over said child,
(4) The adoption of any adult Indian who resides or is domiciled within the jurisdiction of the Court.
(B) The Children’s Court shall have concurrent jurisdiction with the courts of any other sovereign having lawful authority regarding the adoption by or of any other child or adult who is:
(1) A bona fide resident of or domiciled within the jurisdiction of the Court, or
(2) Between two adults who submit to the jurisdiction of the Court regardless of residence or domicile, or
(3) A member of the Tribe.
SECTION 201. WHO MAY FILE ADOPTION PETITION
(A) Any adult may file a petition to adopt an Indian minor residing within the Reservation or a minor tribal member not residing on the Reservation. The Court may also hear petitions transferred from state courts pursuant to 25 U.S.C. Subsection 1911(b) and this Law and Order Code.
(B) In the case of married persons maintaining a home together, the petition shall be the joint petition of husband and wife except that if one of the spouses is the natural parent of the child to be adopted, the natural parent shall not be required to join in the petition. In any case where all persons petitioning to adopt a child are not Indians, the petition shall not be granted unless:
(1) No Indian is available who is willing to adopt the child;
(2) The petitioners agree in writing that the Pit River Tribal Council shall retain exclusive jurisdiction over custody of the child, wherever domiciled or resident.
SECTION 202. IN CAMERA DETERMINATION OF ENROLLMENT ELIGIBILITY
(A) Whenever a parent, whether biological or adoptive, has expressed a desire that the name of the parent or the original or adoptive name of the child and the child’s relationship to themselves or others remain confidential, and a question arises as to the eligibility of the child for enrollment as a citizen and member of the Tribe, and Court is authorized to receive from any source such information as may be necessary for a determination of the eligibility of such child for enrollment, to review such information in camera, and to enter its order declaring whether or not the child is eligible for enrollment and the child’s blood quantum or other necessary non-identifying enrollment eligibility criteria. In doing so, the Court shall be provided with a complete Tribal roll for the necessary period(s), and shall seal all records received to maintain their confidentiality of the parties.
(B) If the Court determines that such child is eligible for enrollment officers shall accept such order as conclusive proof of the eligibility of the child for enrollment and enroll the child accordingly. If the Court determines that such child is not eligible for enrollment, it shall enter its order accordingly, and the Tribal enrollment officers shall accept such order as proof of the ineligibility of said child and refuse to enroll the child unless other or further qualifications for enrollment are shown.
SECTION 203. CONDITIONS TO ADOPTION
(A) The welfare of the child shall be primary;
(B) The proposed adoption must be in the best interests of the child;
(C) A person adopting shall be at least 10 years older than the minor.
SECTION 204. ORDER OF PREFERENCE FOR ADOPTION
Preference in adoption shall be given in the following order:
(A) A member of the child’s immediate family;
(B) A member of the child’s extended family;
(C) A member of the child’s Tribe;
(D) A person designated by the child’s parent or approved by Indian Child Welfare Office;
(E) A member of an Indian Tribe to which the child has hereditary connections;
(F) A member of any Indian tribe; or,
(G) An appropriate non-Indian person.
SECTION 301. WHEN CONSENT IS REQUIRED
(A) Written consent to adoption is required of:
(1) Each biological, adoptive and acknowledged parent whose parental rights have not been in-voluntarily terminated, who has not voluntarily terminated his or her parental rights or has not been declared incompetent. A minor parent may consent to an adoption provided the parents of the minor parent concur. The Court may waive consent by the minor’s parents if it finds that their withholding of such consent is unreasonable;
(2) The guardian or custodian, if empowered to consent;
(3) The Court, if the guardian or custodian is not empowered to consent; and
(4) The child, if twelve years of age or older, provided that the Court may waive this requirement, if it deems it necessary for the best interests of the child.
(5) If both parents be deceased, or if their parental rights have been terminated by judicial decree, then the traditional custodian having physical custody of said child for the preceding six (6) month period, or a person or the executive head of an agency having custody of the child by judicial decree with the specific authority, granted by the Court, to consent to the adoption of the child.
(B) Consents to adoption shall be acknowledged before an officer duly authorized to take acknowledgments and witnessed by a representative of the Court.
(C) Where any parent or Indian custodian voluntarily consents to an adoption, or termination of parental rights, such consent shall not be valid unless executed before a judge of a court of competent jurisdiction and accompanied by the judge’s certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent of Indian custodian. The court shall certify that the parent or Indian custodian either fully understood the explanation in English, or that it was interpreted into a language that the parent or Indian custodian understood.
(D) Any consent given prior to or within ten days after the birth of a child shall not be valid.
SECTION 302. WITHDRAWAL OF CONSENT
(A) Any consent given for the adoption of, or termination of parental rights to a child may be withdrawn at any time prior to the entry of a final decree of adoption or termination as the case may be and the child shall be returned to the parent.
(B) Written consent cannot be withdrawn after the entry of a final order of adoption. Consent may be withdrawn prior to the final order of adoption upon showing a preponderance of evidence at a hearing before the Court that consent was obtained by fraud, duress or coercion, or the best interests of the child require the consent to adoption be voided.
(C) The Court shall not grant permission to withdraw consent unless it finds that the best interests of the child will be served by such withdrawal. The entry of an order of adoption renders any consent irrevocable.
SECTION 303. WHEN CONSENT IS NOT REQUIRED
(A) Written consent to an adoption is not required if:
(1) The parent’s rights have been involuntarily terminated;
(2) The parent has voluntarily terminated his or her parental rights; or
(3) The parent has been declared incompetent.
(4) The parent has abandoned his or her child; or
(5) The parent has relinquished his or her parental rights.
(B) Adoption of a child may be decreed without the consent required by Section 301 of this Chapter only if the parents, or the traditional custodians having custody if the parents be deceased, have:
(1) Had their parental or custodial rights terminated by a decree of a Court of competent jurisdiction, or
(2) Been adjudicated incompetent by reason of mental disease, defect, or injury, or by abuse of alcohol or drugs, and it appears by a preponderance of the evidence that such person will be unable to provide the necessary care and control of said child for a significant period of time prior to the child reaching majority, or
(3) For a period of twelve months immediately preceding the filing of the petition for adoption, willfully failed, refused, or neglected to provide and contribute to the support of their child either:
a. In substantial compliance with any decree of a Court of competent jurisdiction ordering certain support to be contributed, or
b. If no court order has been ordering certain support, then within their available means through contribution of financial support, physical necessities such as food, clothing, and shelter contributions, or by performing labor or other services for and at the request of the person or agency having custody.
(4) Been finally adjudicated guilty of a felony and sentenced to death or to a term of imprisonment which is likely to prevent release of the parent for a period such that the parent will be unable to provide the necessary care and control of said child for a significant period of time prior to the child reaching majority.
(5) In such cases, it shall not be necessary to obtain the consent of such parent, or to terminate the parental rights of such parent prior to adoption of the child.
SECTION 304. VOLUNTARY RELINQUISHMENT
Any parent, legal custodian, traditional custodian, or other guardian of a child may relinquish, subject to the terms of Section 301, any rights they may have to the care, custody, and control of a child. A relinquishment shall be made by filing a petition in the Children’s Court with notice to the Tribal Department, District Attorney, traditional custodians, and the Parent(s) not a petitioner. The traditional custodians may intervene in said action. The petition may relinquish generally in which case the Court shall assume jurisdiction over the child, or specially to a particular person for adoption. A relinquishment shall be valid only upon approval and decree of the Court
SECTION 305. PROCEDURE FOR SIGNING THE CONSENT TO ADOPT
(A) Written consents, where required by this Code, shall be attached to the petition for adoption. Written consent to an adoption shall be signed and acknowledged before a Notary Public. Consent shall not be accepted or acknowledged by the Court unless signed and acknowledged more than ten (10) days after birth of the child, except by order of the Court. An interpreter shall be provided if required by the Court. The Court shall have authority to inquire as to the circumstances behind the signing of a consent under this section.
(B) Consent shall not be accepted or acknowledged by the Court prior to ten (10) days after birth of a child.
SECTION 306. CONSENT OF CHILD
Whenever a child be a sufficient maturity and understanding the Court may, and in every case of a child over ten years of age the Court shall, require the consent of the child, expressed in such form as the Court shall direct, prior to the entry of a decree of adoption. Whenever possible, the Court should interview such child in private concerning the adoption prior to approving the child’s consent.
SECTION 401. PETITION FOR ADOPTION
(A) To initiate an adoption in Tribal Court, a petition for adoption shall be filed with the Tribal Court. In circumstances in which parental rights have been involuntarily terminated and the child placed is placed within the care and custody of the Indian Child Welfare Office, the Center may file the adoption petition.
(B) In all other circumstances, a petition for adoption may be filed by the proposed adoption parent(s). It shall be verified under oath by the adoptive parent(s) or Indian Child Welfare Office caseworker and shall contain:
(1) The full name, residence, place of birth, date and sex of the child, with attached documentary proof of the date and place of the birth of the child to be adopted.
(2) Documentary proof of the child’s membership status in the Tribe, if such proof exists;
(3) The full name, residence, date and place of birth, occupation of the adoptive parent (s), statement of relationship to the child, documentary proof of marital status, provided this not be interpreted to prohibit single parent adoptions, and tribal membership or Indian status;
(4) Proof of parental consent to the adoption where the petitioners are relatives of the child by blood or marriage; except
a. Where the natural parents have abandoned the child and cannot be located; or
b. There a court order terminating parental rights of the parents to said child.
(C) An agreement by the adopting parent of the desire that a relationship of parent and child be established between them and the child;
(D) A full description and statement of value of all property owned, possessed or held in trust by and for the child.
(E) A citation to the specific section of this Ordinance giving the Court jurisdiction of the proceedings; and
(F) A brief and concise statement of the facts which may aid the Court in its determination.
SECTION 402. INVESTIGATIVE REPORT
(A) Role of Indian Child Welfare Office Caseworker. The caseworker shall prepare and present to the Court a report within 30 days of the filing of a petition for adoption or a supplemental report as ordered by the Court as to the suitability of the child for adoption, as well as to the financial, moral, physical fitness, general background of the adoptive home, and adoptive parent or parents. A home study shall be conducted as part of this procedure and shall be filed with the court as part of the adoption petition when the Indian Child Welfare Office files the petition for adoption. The tribal caseworker shall contact appropriate agencies and individuals who have relevant knowledge and such contacts and relevant information shall be included in the report. The tribal caseworker shall make written recommendations on the proposed adoption.
(B) Other Agencies; Individuals. The Court may order other agencies or individuals to prepare and file written reports with the Court to aid in the Court’s determination on the suitability of the proposed adoption.
(C) Copies. Copies of reports shall be served on petitioner at the same time they are presented to the Court.
(D) Pre-Petition Report on Prospective Adoptive Parent. Within sixty (60) days of an application for adoption, the Indian Child Welfare Worker shall investigate the prospective parents and file a written report with the Court with recommendations for or against placement with the applicant.
(E) Pre-Petition Report on Minor. Within thirty (30) days of a Court ordered investigation of a minor to be adopted, the Indian Child Welfare Worker shall file a written report with the Court.
SECTION 403. HEARING ON PETITION FOR ADOPTION
(A) Purpose, Time Limit. A hearing shall be held within 60 days of receipt of an adoption petition to determine if it is in the minor’s best interest to be placed with petitioners.
(B) Procedure at Hearing. Adoptive parent or parents shall appear personally at the hearing. At or before the hearing, any biological, adoptive or acknowledged parent consenting to the adoption must appear personally before the judge, in open court so the Court can determine the voluntariness and understanding with which consent was given, if the court determines the validity of the consent is an issue. All other persons whose consent is necessary shall be duly notified and shall personally appear, if the Court determines the validity of the consent is as issue.
(C) The judge shall examine all persons appearing as to the suitability of the child for adoption, the validity of consent to adoption, the financial, moral and physical fitness, responsibility of the adoptive parents, and whether the best interests of the child will be promoted by the adoption.
(D) The Court shall also hear natural extended family members to decide whether the child’s legal relationship to the extended family should be terminated. The adoptive parent or parents and adoptive child shall appear personally at the hearing. All other persons whose consent is necessary to the adoption and who have not filed their written consents shall be duly notified and may appear or be represented by a member of the Bar of the Court, or by an unpaid personal representative at their request with the approval of the Court.
(E) The Judge shall examine all persons appearing separately, and if satisfied as to the suitability of the child for adoption, the financial ability and moral and physical fitness and responsibility of the adoptive parents, and that the best interest of the child will be promoted by the adoption, may enter a final decree of adoption, or may place the child in the legal custody of the petitioners for a period of not more than six months prior to entering a final decree of adoption, or if the Court is satisfied that the adoption will not be in the best interests of the child, the petition shall be denied and the child’s guardian instructed to arrange suitable care for the child, and the Court may request the Tribal agencies, Federal agencies, or other agencies to provide services to assist in the placement and the care of the child, or, in case of need, refer the matter to the tribal department and Attorney General for the purpose of determining whether a involuntary juvenile petition should be filed.
(F) In determining the best interest of the minor, the Court shall examine:
(1) Validity of written consent;
(2) Termination of parental rights order;
(3) Length of time of the minors wardship by the court;
(4) Special conditions of the minor;
(5) Parent communication with the minor;
(6) Minors consent to adoption, if the minor is over twelve (12) years of age;
(7) Pre-petition reports.
SECTION 404. ORDER ON PETITION FOR ADOPTION
(A) Granting the Petition. If the Court is satisfied it is in the best interest of the child to grant the petition, the Court may enter a final decree of adoption as follows:
(1) In the case of a child who has lived with the adoptive parent for more than six months before the adoption petition has been filed, the final decree of adoption shall be entered immediately; and
(2) In all other cases, the Court shall order the child be placed in the legal custody of the adoptive parent for at least six months; at that time, the court shall request a supplemental report and, if the Court determines that the best interest of the child are served, shall enter the final decree of adoption immediately.
(B) Contents of Adoption Order. The final order of adoption shall include such facts necessary to establish that the child is eligible and suitable for adoption, and that the adoptive home and parents are adequate and capable of providing the proper care of the child, as shown by the investigation reports and the findings of the Court upon the evidence produced at the hearings.
(C) Denying the Petition. If satisfied the adoption petition is not in the best interests of the child, the petition shall be denied. The Court may request the Indian Child Welfare Office or other agencies authorized to provide such services to assist in the placement and care of the child. Where the Court finds the best interest of the child will not be served by the adoption, a guardian shall be appointed and suitable arrangements made for the care of the child, in accordance with the applicable provisions of this Ordinance.
(D) If the Court does not enter a final decree of adoption at the time of the hearing for adoption, but places the child in the legal custody of the petitioners, within six months after the child has been in the custody of the petitioner, the Court shall request a supplementary written report as to the welfare of the child, the current situation and conditions of the adoptive home and the adoptive parents.
SECTION 405. CONDITIONAL, DEFEASIBLE, OR POSTPONED ADOPTION
An adoption may be ordered by the Children’s Court upon conditions that are reasonable and calculated to preserve the minors tribal relationship. Such orders may include visitation rights, retained supervision or postponing final adoption orders pending proof of good faith in compliance with conditions established by the Court. If it appears to be in the child’s best interest, the court may postpone confirmation of the adoption for a period up to two (2) years to determine whether reasonable and necessary conditions for the welfare of the minor are being met. If such conditions are met, the Court may then confirm the adoption without further hearing. If such conditions have not been met, the court may issue an order to show cause why the adoption should not be vacated, and may extend the period of supervision. Unless previously vacated by order of the Court, an adoption shall be confirmed by the death of either natural parent or adoptive parent, or by the death or attainment of eighteen years of age of the adopted child.
SECTION 406. EFFECT OF FINAL DECREE OF STATUTORY ADOPTION
(A) After a final decree of adoption pursuant to this Chapter is entered, the relationship of parent and child, and all the rights, duties and other legal consequences of the natural relation of a child and parent shall thereafter exist between such adopted child, the adopting parents, and the kindred of the adopting parents. The adopted child shall inherit real and personal property from the adopting family and the adopting family shall inherit from the child in accordance with law as if such child were the natural child of the adopting parents.
(B) After a final decree of adoption pursuant to this Chapter is entered, the natural parents of the adopted child, unless they are the adoptive parents or the spouse of an adoptive parent, shall be relieved and terminated from all parental rights and responsibilities for said child, including the right to inherit from the child, provided, that the child shall remain eligible to inherit from said natural parents, and retain all rights to membership in a Tribe by virtue of his birth to said natural parents.
(C) Unless the traditional custodians and grandparents of a child have given their consent to the adoption of the child, or have had their custodial rights terminated in the same manner that a parent consents or has their rights terminated, the Court, at any time within two years after the final decree of adoption or refusal of the adoptive parents to allow visitation, whichever is later, may, upon application of a natural traditional custodian or a natural grandparent, order reasonable visitation rights in favor of said person if the Court deems such visitation in the best interest of the child. The Court may enforce such visitation rights and make orders thereto at any time after timely filing of an application therefore. Notice of such application shall be served upon the adoptive parents as a summons is served.
SECTION 501. ADOPTIVE BIRTH CERTIFICATE; RELEASE OF ORIGINAL CERTIFICATE
Within five (5) days of the final decree of adoption entered by the Court, the Division of Vital Statistics of the State Board of Health of the State which issued the original certificate of birth shall be notified by the Clerk of Court that the adoption has taken place, giving the full name, sex, birthday and names of natural parents, in order that a new record of birth in the new name and with the name or names of the adopting parents to be recorded; said Division shall be provided with a certified copy of the final decree of adoption.
SECTION 502. NAME AND LEGAL STATUS OF ADOPTED CHILD
Minor children adopted by order of the Court shall assume the surname of the persons by whom they are adopted, unless the Court orders otherwise. They shall be entitled to the same rights as natural children of the persons adopting them. However, adoption does not confer tribal membership status on adopted children who would not be otherwise eligible. Adoption does not terminate the rights of natural extended family members of the child, as a group, except by Order of the Court.
SECTION 503. RECORDS AND HEARINGS CONFIDENTIAL
Unless the Court shall otherwise order:
(A) All hearings held in proceedings under this Subchapter shall be confidential and shall be held in closed court without admittance of any person other than the interested parties, including traditional custodians, representatives of the Tribal Department when deemed necessary by the Court, persons whose presence is requested by the parties in private before the Court after the exclusion of all other persons, and the counsel for the parties, traditional custodians, and the Tribal Department.
(B) All papers, records, and files pertaining to the adoption shall be kept as a permanent record of the Court and withheld from inspection. No person shall have access to such records except:
(1) Upon order of the Court for good cause shown.
(2) Upon the adopted person reaching the age of eighteen, the adopted person may review the records unless the natural parents have by affidavit requested anonymity in which case their names and identifying characteristics, not including tribal membership and degree of blood, shall be deleted prior to allowing the adopted person access to the records.
(3) The traditional custodians and natural grandparents shall have access to the records unless the natural parents have, by affidavit, requested anonymity, in which case, the names and identifying characteristics shall be deleted prior to allowing them access to the records as in the preceding paragraph. If the adopting parents request anonymity, by affidavit, the traditional custodians and natural grandparents may have access to the records only by order of the Court for good cause shown, and then only if the Court deems such request in the best interest of the child.
(4) For the purposes of obtaining the enrollment of the child with another Indian Tribe, the Court may upon request of an enrollment officer of that Tribe, certify to that officer pertinent facts to enable that officer to determine the eligibility of the child for membership in that Tribe subject to the written guarantee, with an undertaking if deemed necessary by the Court, that such facts will remain confidential and divulged only to those persons who must know the facts to obtain the enrollment of the child. In the alternative, and in cases where the natural or adoptive parents have, by affidavit, requested anonymity, the Court may certify a copy of the record of the case to a Judge of the Court of the other Tribe for an in camera, review only, or allow such Judge to review the record in the District Court, in camera, for the purpose of said Judge certifying to his Tribe that the child is eligible for membership in that Tribe.
SECTION 504. CERTIFICATES OF ADOPTION
(A) For each adoption or annulment of adoption, the Court shall prepare, within thirty days after the decree becomes final, a certificate of such decree on a form furnished by the registrar of vital statistics of the State or other jurisdiction having issued the birth certificate of said child, and shall attach thereto certified copies of the petition and decree of adoption, and any other information required by law by the registrar.
(B) Such form and certified copies, along with any other pertinent information requested by the jurisdiction having issued the birth certificate shall be forwarded forthwith to the registrar of vital statistics of the jurisdiction.
(C) One certified copy of the form certificate, petition, and decree of adoption shall be forwarded to the Secretary of the Interior. The material forwarded to the Secretary shall also contain a Judges certificate showing:
(1) The original and adoptive name and tribal affiliation of the child,
(2) The names, addresses, tribal affiliation and degree of blood when known of the biological parents,
(3) The names and addresses of the adoptive parents,
(4) The identity of any agency having files or information relating to the adoptive placement,
(5) Any affidavit of the biological parent requesting that their identity remain confidential.
SECTION 505. FOREIGN DECREE
When the relationship of parent and child has been created by a decree of adoption of any Court of competent jurisdiction of any other nation, or its political subdivisions having authority to enter such decrees, the rights and obligations of the parties as to consent and as to matters within the jurisdiction of the Tribe shall be determined by Article III and IV of this Chapter.
SECTION 506. ADOPTION OF ADULTS
(A) An adult person may be adopted by any other adult person with the consent of the person to be adopted, or his guardian, if the Court shall approve, and with the consent of the spouse of the adopting parent, if any, filed in writing with the Court. The consent of the adopted adult’s parents shall not be necessary unless said adult has been adjudicated incompetent, nor shall an investigation be made. Such adoption shall follow the procedure otherwise set forth herein. Such adoption shall create the relationship of parent and child between the parties, but shall not destroy the parent-child relationship with the biological parents, unless specifically requested by the adopted adult in writing in open Court. Unless so requested, the legal effect of such decree, for all purposes, including inheritance, but not including tribal enrollment eligibility, shall be that the adopted person is the child of both sets of parents equally.
(B) Proceedings and records relating to the adoption of an adult shall be open to the public as are the records of other civil cases.
SECTION 507. APPEALS
An appeal to the Supreme Court may be taken from any final order, judgment, or decree rendered hereunder by any person aggrieved thereby in the manner provided for civil appeals.