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TRIBAL CUSTOMARY ADOPTION
Tribal Customary Adoption (TCA) is an agency adoption by and through the tribal customs, traditions, or law of an Indian child’s tribe which transfers the custody of a child to the care and protection of adoptive parents without the termination of parental rights.
The essential provisions for TCA are found in the California Welfare and Institutions Code §366.24.
CDSS has developed an All County Letter (ACL) to provide technical assistance with TCA. ACL 10-47 is available through the CDSS website or can be found through this link: http://www.dss.cahwnet.gov/lettersnotices/entres/getinfo/acl/2010/10-47.pdf
NOTE: For the purposes of this section the term tribal worker will be used. However, this individual may also be the tribal social worker, tribal ICWA advocate, tribal ICWA representative, or any title the tribe designates for its workers.
The term county social worker is used for consistency, but may be the state adoptions worker or the private agency social worker.
EMERGENCY RESPONSE
While TCA is not addressed during the initial investigative portion of a case, it is extremely important that workers inquire about Native American ancestry.
• Inquiry regarding Indian ancestry for ICWA purposes is required by law - WIC, §224.3(a)
• Thorough investigation and inquiry will assist you in knowing which tribe(s) should be noticed regarding the case.
• Inquiry may provide information regarding a local tribe, which may be able to assist in locating family or other tribal members for out of home placement.
• Tools to assist with inquiry can be found of the Administrative Office of the Courts website: http://www.courts.ca.gov/8103.htm
COURT DEPENDENCY INVESTIGATION
(PRIOR TO Jurisdictional/Dispositional HEARING)
See ACL 10-47 Section 3.0 – Dependency Process, subsection 3.5 – How Does TCA Affect the Judicial Process?
• Inquiry regarding ICWA as required by law (WIC §224.3(a))
• When concurrent planning options are explored, TCA must be discussed as a permanency option for the child’s tribe should reunification fail.
• The worker must inform court that TCA has been discussed with the tribe as a permanency option. (WIC §366.24(b))
○ The Tribe does not have to make a decision at that time
○ A brief statement that it was discussed is sufficient. If the Tribe has stated that it wants TCA, may consider TCA, or that TCA is not an option, then that should be included in the report. By-pass or fast track cases:
• When there is a possibility that neither parent will be offered reunification services under WIC §361.5(b), then TCA must be addressed as a permanency option prior to the Jurisdictional/Dispositional hearing.
• Only the child’s tribe can select TCA
• The county social worker should be working closely/collaborating with the tribal worker throughout the dependency process. It is important that the tribe be able to determine the best placement for their child as quickly as possible to reduce the possibility of multiple moves/placements.
FAMILY REUNIFICATION
• The county social worker has an affirmative and continuing duty to inquire regarding whether the child may be or is an Indian child is required by law (WIC §224.3(a)) and should be done prior to each court hearing.
• Per the All County Letter (ACL) 10-47 Section 2.0 Consultation with the Indian Child’s Tribe.
○ Consultation means more than the agency making decisions and “checking in” with the Indian child’s tribe. It is an ongoing partnership/collaboration with the tribe that requires their inclusion and, on many occasions, approval on decisions made regarding the TCA process. The Indian child’s tribe is a necessary part of the TCA process for a dependent Indian child for two main reasons: A TCA cannot commence unless the child’s tribe selects TCA as the permanent plan.
○ There is additional information regarding consultation in this section of ACL 10-47.
• The worker must consult with the tribe regarding the best permanent plan for the child should reunification fail.
• The child’s tribe must be informed that TCA may be an option for the child should permanency fail.
• The worker must inform court that TCA has been discussed with the tribe as a permanency option in each court report under concurrent planning. (WIC §366.24(b))
○ The tribe does not have to make a decision at that time regarding TCA until the initial 366.26 hearing where the request for TCA as the permanent plan is made
○ A brief statement that it was discussed is sufficient. If the tribe has stated that it wants or may consider TCA, then that should be included in the report.
• If the tribe has previously stated that TCA is not an option, then for subsequent reports the county social worker should simply confirm the tribe’s position.
PERMANENCY
• When the case is at the point where terminating services to the parents will be the recommendation to the court, it is helpful to revisit the permanency options with the Tribe, including TCA. The child’s Tribe is the only entity that can select TCA as the best permanency option for that child.
• The Tribe may select any permanency option: (WIC 366.26(c)(1)(B)(vi)(II). NO tribe is required to select TCA as a permanency option.
○ Termination of parental rights and a plan of conventional adoption
○ Without terminating parental rights, a plan of TCA.
○ Guardianship o Long-term foster care
○ Another planned permanent living arrangement
TCA as the PERMANENT PLAN
ACL 10-47 Section 1.0 Subsection 1.6
• When TCA has been identified by the Indian child’s tribe as the preferred permanent plan option, the tribal worker and the county social worker should meet to discuss the plan. The state court will be notified by the county social worker of the decision to pursue TCA in the next court report. The court may be notified of this decision prior to the 366.26 Permanency Planning Hearing. However, this information must be included in the 366.26 report. The department may request a letter from the tribe indicating the tribe’s decision to select TCA as the permanent plan.
• The tribe may choose to inform the state court of their choice of TCA as the permanent plan for the child. This does not relieve the county social worker of their duty to inform the court in the court report.
• At the initial 366.26 permanency planning hearing the judge must order TCA as the permanent plan for the Indian child in order to proceed with the TCA. The hearing may then be continued up to 120 days for the tribe to complete the TCAO. (WIC 366.24(c)(6)
ACL 10-47 Section 8 - Subsection 8.2 - Is the agency responsible for the TCAO?
Each tribe will develop the TCA according to its own customs, traditions and processes, keeping the tribal council, tribal court, or tribal body responsible for permanency decisions regarding tribal child apprised of the status of the case.
The TCAO is NOT the responsibility of the county social worker.
The Tribal Customary Adoption Order (TCAO)
ACL 10-47 Section 8 – The TCAO
○ The following items MUST be included in the TCAO:
▪ Legal relationship between the child and the birth parents/Indian Custodian
▪ Legal relationship between the child and the adoptive parents
▪ Legal relationship between the child and the tribe
▪ Inheritance
▪ Visitation between the child and the birth parents/ Indian Custodian
○ The following MAY be included in the TCAO:
▪ Name changes
▪ Changes to the original birth certificate
▪ Ceremonies at which the child must be present o Cultural activities in which the child should participate
▪ Any other item the tribe believes is important for the child
NOTE: The above list in not inclusive of all items which may be included in a TCAO
Tribal Court:
• For those tribes with tribal courts, the tribal court may issue the TCAO.
BEST PRACTICE:
It is the tribe’s right and responsibility to develop the TCAO. As the tribe drafts the TCAO, the tribal worker may share sections of the draft with the involved parties. This will help keep the lines of communication open and concerns can be addressed early in the process. It is hoped that the county social worker, county counsel, parents’ attorneys and minor’s attorneys will all provide feedback to the tribe regarding the TCAO with regards to concerns, if there are any, and agreements. Providing feedback to the child’s tribe regarding the TCAO does not mean that those suggestions MUST be included in the TCAO. It simply means that those comments are provided to the tribe for its consideration during the drafting of the TCAO.
It is important to remember that once the TCAO is completed and ordered by the child’s tribe, it may not be changed by the parties. If there is a significant issue with the TCAO which prevents the judge from affording the order full faith and credit, the judge may return the documents to the tribe for reconsideration of that issue.
Filing the TCAO:
Once the TCAO is completed, it is filed with the State court 20 days prior to the hearing date. The county social worker will then file an addendum report with the court seven days prior to the hearing. The report should include information regarding the TCAO indicating whether county is in agreement with the TCAO or if there are concerns that the parties were unable to resolve. (WIC 366.24(c)(6)
ACL 10-47 – Section 9.0 - Addendum to Selection and Implementation WIC 366.26 Hearing Report
Once the county social worker has received a copy of the TCAO, the county social worker then completes an addendum report which must be submitted to the court no less than seven days prior to the continued 366.26 hearing. The report should address the following:
• Continued suitability of TCA as the permanent plan for the child
• Recommendation of approval or denial of the prospective adoptive applicant
• Results of the full state and federal level adoption specific background checks
• Any pertinent information gathered during the WIC 366.24 process including the TCAO
• Any updates regarding the TCA the agency deems necessary to report, including any concerns or agreements regarding the TCAO
Expert Witness:
Due to the fact that parental rights are not being terminated, an expert witness is not required.
Continued 366.26 hearing:
At this hearing the judge reviews the TCAO and as long as the TCAO meets the criteria for full faith and credit (FF&C), the judge will afford FF&C to the TCAO.
The affording of FF&C to the TCAO triggers then next steps in the adoption process. In the CWS/CMS system this is the equivalent to TPR. The Indian child becomes eligible for adoptive placement.
ADOPTION
Adoption process:
ACL 10-47 – 11.0 - TCA Placement
ACL 10-47 – 11.0 - TCA Placement – Subsection 11.4 re: VS-44
ACL 10-47 Section 12.1
ACL 10-47 – 13.0 – Adoption Assistance Program (AAP) Benefits
ACL 10-47 – 11.0 – Tribal Customary Adoptive Placement
Signing adoptive placement papers:
• Similar to the conventional adoption process, an adoptive placement agreement can be prepared and executed during the tribal customary adoptive placement process, after full faith and credit has been afforded to the TCAO and the home study has been completed and approved by the tribe.
• The paperwork includes:
○ Adoptive placement agreement
○ AAP 4 Eligibility Certification - Adoption Assistance Program
○ All medical, psychological, and educational information the county has on the child
Any non-identifying information on the county has on the parents, which includes medical and mental health history.
Similar to the conventional adoptive placement process found in Title 22, Division 2, CCR section 35195, pursuant to WIC §366.24(a)(9) the following information is required to complete the tribal customary adoptive placement:
○ A written report, using form AD 512, on the Indian child’s medical, and if available, the medical background on the child’s biological parents, given to the prospective tribal customary adoptive parents and an acknowledgement they have received it. The report on the Indian child’s background must contain all known diagnostic information, including the following:
▪ Current medical reports on the Indian child;
▪ Psychological evaluations;
▪ Scholastic information; and
▪ Developmental history.
• If there is a name change or if the adoptive parents are being put on the birth certificate, then there will be additional forms. If this was addressed in the TCAO make sure that the forms reflect the decisions that were made. If there was a decision that names were NOT to be changed in any way and the adoptive parents were not to be placed on the birth certificate, make sure that the VS-44 is not filed or reflects no changes.
NOTE: Adoptive placement paper signing should include the private agency that was designated to complete the home study for the tribe as this is a cooperative placement.
Filing court documents for finalization:
• Some counties may file the necessary paperwork in court for the adoption finalization. If the county does not file the paperwork the prospective adoptive parents may either file the paperwork themselves or hire an attorney to assist with the filing.
• Required forms:
○ Adopt 200 – Adoption Request
○ Adopt 210 – Adoption Agreement
○ Adopt 215 – Adoption Order (The TCAO must be attached to the Adoption Order)
○ Adopt 220 – Adoption of an Indian Child (must be attached to the Adopt 200)
○ Adopt 230 – Adoption Expenses
○ Adopt 310 – Contact after Adoption Agreement NOT NEEDED – Contact is incorporated into the TCAO.
• Final Court Report of Adoption must be completed and filed by agency with care and placement responsibility for the child. Post-
Placement Supervision
ACL 10-47 – Supervision of Tribal Customary Adoptive Placement
The agency with the care and placement responsibility will provide post-placement supervision for the child. As with any adoptive placement the minor must be in the home of the prospective adoptive family for a minimum of six months prior to the finalization of the adoption. The time may be reduced by one month for each mother the minor was in placement with the family as a foster child. This may be done in conjunction with the tribal worker. There must be a minimum of one in-home visit with the adoptive family and the child following the signing of the adoptive placement papers and prior to the finalization of the adoption. (CA-DSS Manuel: Title 22 Adoptions Program Regulations, Subchapter 5 Article 12 Sections 35203 (c) and (d)(1)).
Finalization
• When the adoption request is filed with the court, the court will set a date to finalize the adoption. Make sure the TCAO is attached to the Adopt 215 – Adoption Order.
• Following the filing of the Adoption Request the agency with the placement, care and responsibility for the child shall submit to the court, a full and final report of the fact of the proposed TCA. (WIC 366.24(c)(12))
• For the finalization hearing, the TCA family, the children, tribal worker, and any one the family wishes to have present may attend the hearing.
• Once the final documents are signed and the adoption is finalized, the judge will dismiss the dependency case. (WIC 366.24(c)(14))
• The family may receive a copy of the adoption order at court or it may be mailed to them. Make sure that the tribe has a copy for their files. All copies should have the TCAO attached to the Adopt 215 - Adoption Order
• The family may receive a copy of the adoption order at court or it may be mailed to them, depending on the procedures in the county where the adoption is finalized. Make sure that the tribe has a copy for their files.
HOME STUDIES
ACL 10-47 – Section 5.0 TCA Home Study
TCA is a unique permanency option for Indian children. In conventional adoption, the prospective adoptive family usually goes to the county adoption agency or a private adoption agency to have a home study completed so that they may be considered for a variety of children in foster care throughout the State.
The TCA home study is specific to the child and the family who wishes to adopt the child. It is important that the home study be completed and approved prior to the completion of the TCAO. If for some reason there is a problem with the background or if the tribe decides not to approve the home study, the work on the TCAO will have to be done again with another family. The agreements made in the TCAO are with prospective adoptive family, the child’s tribe and the birth parents/family if there is visitation.
If a tribe does not have a designated placement for the child, the county social worker must engage the tribal worker in the family finding process. Home studies of prospective families may be shared with the tribal worker IF these families have agreed to engage in a TCA. The home studies for these families must include an addendum which address the fact that they have been informed of TCA and are willing to participate in the TCA process.
The tribe has the right to read the home study of any prospective adoptive family. The tribe may interview the prospective parents once they have been tentatively matched with a child to ensure that they understand TCA and what may be asked of them during the TCA process. If the prospective adoptive family refuses to meet with the tribal worker or is resistant to the process then they should not be matched with the tribal child. (WIC 366.24(c)(1))
When it has been determined that a child is unable to return to the care of the biological parents AND the child’s tribe selects TCA as the best option for the child, the tribe then must decide who will complete the home study.
Options for home study:
ACL 10-47 – Section 5.0, Subsections 5.2 - When the Tribe Conducts the Home Study
ACL 10-47 – Section 7 – Review of Criminal and Child Abuse and Neglect Backgrounds
• Tribe completes study and requests the county in which the Tribe is located to complete the background checks.
○ The agency performing the background check MUST provide a letter to the Tribe indicating that all individuals in the home 18 years of age or older passed/did not pass the background check, which consists of CACI, DOJ criminal history, and FBI clearances per Adam Walsh
○ The tribe’s study must include the bio psycho social history of the prospective adoptive family
ACL 10-47 Section 5.0 Subsection 5.4 When a Tribe Designates an Agency to Complete the Home Study
ACL 10-47 Section 6.0 Tribal Designee
• The studies below must be done in consultation with the child’s tribe in order to address the cultural issues and must address the family's willingness to complete a Tribal Customary Adoption:
○ Tribe requests a private licensed California adoption agency to complete the study
○ Tribe requests the County complete the home study
○ In those cases where the County does not have its own adoption agency the Tribe may request State Adoptions to complete the home study
Responsibility of Designees
ACL 10-47 Section 6.0 subsection 6.3 - What are the responsibilities of the tribal designee?
Tribal designees will be responsible for the following:
• Working with the Indian child’s tribe;
• Completing the TCA home study using the prevailing social and cultural standards of the child’s tribe. This includes, but is not limited to: accepting the adoption application and providing all required information to the applicant;
• Recommending approval or denial of the adoptive applicant to the tribe. This includes providing a copy of the completed home study to the tribe.
• Conducting California (CA) Department of Justice (DOJ) and Federal Bureau of Investigations (FBI) criminal background checks; and
• Conducting Child Abuse Central Index (CACI) and out-of-state child abuse and neglect registry checks.
Additional responsibilities may include, but not be limited to:
• Supervision of the adoptive placement;
• Termination of the adoptive placement;
• Completing the final court report; or
• The immediate filing of the final court report.
ACL 10-47 – Section 5.7 Home Study Approval
The Tribe has the final approval of the home study regardless of which agency completes the study.
Private Agency Adoption Reimbursement Program (PAARP)
Since TCA involves an Indian child who is a dependent of the court, effective July 1, 2010, licensed private adoption agencies can claim PAARP reimbursement for tribal customary adoptions. The same process and forms used for a conventional adoption of a child in foster care are used to complete the claiming process. AD PAARP Form 4348 has been modified to include TCA.