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TENNESSEE COMPILATION OF SELECTED LAWS ON CHILDREN, YOUTH AND FAMILIES, 2011 EDITION

TENNESSEE CODE ANNOTATED

UNITED STATES CODE SERVICE - TITLE 25 INDIANS

CHAPTER 21. INDIAN CHILD WELFARE

§ 1913. Parental rights; voluntary termination

(a) Consent; record; certification matters; invalid consents. Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, such consent shall not be valid unless executed in writing and recorded before a judge of a court of competent jurisdiction and accompanied by the presiding judge's certificate that the terms and consequences of the consent were fully explained in detail and were fully understood by the parent or Indian custodian. The court shall also certify that either the parent or Indian custodian fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.

(b) Foster care placement; withdrawal of consent. Any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.

(c) Voluntary termination of parental rights or adoptive placement; withdrawal of consent; return of custody. In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.

(d) Collateral attack; vacation of decree and return of custody; limitations. After the entry of a final decree of adoption of an Indian child in any State court, the parent may withdraw consent thereto upon the grounds that consent was obtained through fraud or duress and may petition the court to vacate such decree. Upon a finding that such consent was obtained through fraud or duress, the court shall vacate such decree and return the child to the parent. No adoption which has been effective for at least two years may be invalidated under the provisions of this subsection unless otherwise permitted under State law.

(Nov. 8, 1978, P. L. 95-608, Title I, § 103, 92 Stat. 3072.)

RESEARCH REFERENCES

Cross References

This section is referred to in 25 USCS § 1914

Research Guide

Federal Procedure:

19 Fed Proc L Ed, Indians and Indian Affairs §§ 46:473-475

Am Jur:

41 Am Jur 2d, Indians; Native Americans §§ 125, 127

Annotations:

Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq. [25 USCS §§ 1901 et seq.]) Upon Child Custody Determinations. 89 ALR5th 195

Texts:

1 Adoption Law and Practice (Matthew Bender), ch 2, Consent to Adoption § 2.11

2 Adoption Law and Practice (Matthew Bender), ch 15, Adoption of Native American Children §§ 15.03, 15.05

Cohen's Handbook of Federal Indian Law (Matthew Bender), ch 11, Indian Child Welfare Act §§ 11.01, 11.02, 11.04, 11.05

Law Review Articles:

Myers. The Indian Child Welfare Act. 83 Mich Bar J 19, July 2004

Trentadue; DeMontigny. The Indian Child Welfare Act of 1987: A Practitioner's Perspective. 62 ND L Rev 487, 1986

CASE ANNOTATIONS

1. Generally

2. Construction and application

1. Generally

Trial court erred in appointing non-Indian successor guardians for 3 Indian children, where court failed to give notice of pending successor guardian appointment to children's paternal grandparents. Duncan v Wiley (1982, Okla App) 657 P2d 1212

Because tribal central council was alleging violation of 25 USCS § 1913(a) regarding validity of parental consent to voluntary adoption of Native American child and because 25 USCS §§ 1911 and 1914 applied, council had standing to intervene and petition to invalidate trial court's order. Phillip A.C. v Central Council (In re Phillip A.C.) (2006, Nev) 149 P3d 51, 122 Nev Adv Rep 109

In termination of parental rights and adoption case, state supreme court found that (1) trial court did not lack jurisdiction to consider tribal central council's motion to intervene and invalidate adoption because substantial evidence supported inference that submitted ambiguous notice of voluntary dismissal under Nev. R. Civ. P. 41(a) only applied to mother or had no force and effect because it was filed after trial court addressed merits of case; (2) under Nev. R. Civ. P. 56(e), affidavit of tribal enrollment officer was admissible to establish that child was Native American child under 25 USCS § 1903(4) and subject to Indian Child Welfare Act (ICWA), 25 USCS §§ 1901-1963; (3) under 25 USCS § 1911, 1913, and 1914, ICWA provided tribe with independent standing to challenge voluntary adoption proceeding, which included termination of parental rights, apart from child's parents; and (5) adoptive father should have been given opportunity to rebut enrollment officer's affidavit that child was Native American; because adoptive father was not given opportunity to rebut tribal enrollment officer's affidavit, trial court's order vacating adoption was reversed and matter was remanded for further proceedings. Phillip A.C. v Central Council (In re Phillip A.C.) (2006, Nev) 149 P3d 51, 122 Nev Adv Rep 109

2. Construction and application

Failure to include, in documents consenting to adoption of Indian child, explicit statement that consent could be withdrawn at any time for any reason prior to entry of final decree of adoption, as required by 25 USCS § 1913(c), was immaterial where final decree was entered on same day. Navajo Nation v Superior Court (1999, ED Wash) 47 F Supp 2d 1233, 44 FR Serv 3d 1232 (criticized in Doe v Mann (2003, ND Cal) 285 F Supp 2d 1229)

Order terminating parental rights is voluntary where it is entered into in order to avoid adversary proceeding, where counsel and court explained papers to parent, and court expressly found that relinquishment was voluntary; § 1913 does not permit parent to withdraw voluntary relinquishment after final order terminating parental rights has been entered. In re J.R.S. (1984, Alaska) 690 P2d 10 (criticized in In re Desiree F. (2000, 5th Dist) 83 Cal App 4th 460, 99 Cal Rptr 2d 688, 2000 CDOS 7315, 2000 Daily Journal DAR 9659)

Voluntary placement agreement between mother of Indian child and state which allowed state to provide temporary foster care for child is not subject to requirements of Indian Child Welfare Act (25 USCS §§ 1901 et seq.) and agreement was not improper because it was neither executed nor certified according to § 1913(a); agreement could not furnish basis for court to decline jurisdiction under § 1920 and return child to mother. D.E.D. v State (1985, Alaska) 704 P2d 774

Court properly dismissed father's petition to set aside adoption under Indian Child Welfare Act because state's one-year statute of limitations applied; it provided appropriate balance between important federal rights of Indian tribes and families and best interests of adopted children; trial court issued adoption decree on September 6, 2002, therefore, father's October 21, 2004 petition to invalidate adoption was time-barred. In re Adoption of Erin G. (2006, Alaska) 140 P3d 886

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