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25 U.S.C.A. § 1913

United States Code Annotated
Title 25.  Indians
Chapter 21. Indian Child Welfare (Refs & Annos)

Subchapter I. Child Custody Proceedings


§ 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for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent.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.


CREDIT(S)


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


HISTORICAL AND STATUTORY NOTES


Revision Notes and Legislative Reports


1978 Acts. House Report No. 95-1386, see 1978 U.S. Code Cong. and Adm. News, p. 7530.


LAW REVIEW COMMENTARIES


Connecticut's trend in the termination of parental rights and what can be done to further it.  Note, 10 Conn.Prob.L.J. 269 (1996).


Protecting abused children:  A judge's perspective on public law deprived child proceedings and the impact of the Indian Child Welfare Acts.  Edward L. Thompson, 15 Am.Indian L.Rev. 1 (1990).


LIBRARY REFERENCES


American Digest System


Indians 6(2), 32(11).


Key Number System Topic No. 209.


RESEARCH REFERENCES


ALR Library


89 ALR 5th 195, Construction and Application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) Upon Child Custody Determinations.


Encyclopedias


Am. Jur. 2d Indians § 145, Generally; Tribe's Jurisdiction.


Am. Jur. 2d Indians § 150, Voluntary Consent; Withdrawal of Consent.


Am. Jur. 2d Indians § 151, Effect of Fraudulently Obtained Consent.


Treatises and Practice Aids


Federal Procedure, Lawyers Edition § 46:473, Voluntary Termination of Parental Right.


Federal Procedure, Lawyers Edition § 46:474, Withdrawal of Consent; Resulting Return of Child.


Federal Procedure, Lawyers Edition § 46:475, Consent Fraudulently Obtained; Petitions for Vacation of Order and Return of Custody.


Federal Procedure, Lawyers Edition § 46:477, Standing to Invalidate Proceedings.


NOTES OF DECISIONS


Abandonment of parental control 2

Ancestry investigations 3

Limitations 5

Paternity proceedings 6

Standard of protection of parental rights 1

Withdrawal of consent 4

  

1. Standard of protection of parental rights


This chapter provides a higher standard of protection to rights of parents in termination proceedings.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Infants  178


2. Abandonment of parental control


Where Indian father foresaw lengthy, expensive hospitalization and agreed, for welfare of his children, to grant foster home temporary custody, and there was no express mutual agreement by the parents granting emancipation of children, there was no complete abandonment of parental responsibility and control, and the personal health problems of the parents did not show intent to abandon, so that reservation residency and domicile of the children was not lost by any supposed abandonment or emancipation on the part of the parents.  Matter of Guardianship of D. L. L., S.D.1980, 291 N.W.2d 278.  Indians  6.6(1)


3. Ancestry investigations


Under Indian Child Welfare Act, neither private adoption agency nor court had duty to investigate mother's Indian ancestry based upon sparse information mother and father provided to agency's counselor;  mother's information to counselor did not suggest that child was eligible for enrollment in recognized tribe, and mother's statements failed to suggest any relationship with identifiable tribe, and gave counselor no positive leads to enable her to discover any tribal affiliation.  Matter of Adoption of Crews, Wash.1992, 825 P.2d 305, 118 Wash.2d 561.  Indians  6.10


4. Withdrawal of consent


Placement of Indian child with foster parents was temporary and, thus, adoptive Indian parent had right and ability under federal Indian Child Welfare Act to withdraw her consent to placement and to effect immediate return of child, notwithstanding fact that adoption may have been, at one time, "ultimate objective" of parties, where placement was purely consensual.  (Per Cirillo, President Judge, with one Judge concurring).  In re Adoption of K.L.R.F., Pa.Super.1986, 515 A.2d 33, 356 Pa.Super. 555, appeal granted 522 A.2d 50, 514 Pa. 624, appeal granted 522 A.2d 50, 514 Pa. 625, appeal dismissed 533 A.2d 708, 516 Pa. 520.  Indians  6.10


Native American mother's right to withdraw consent to termination of her parental rights to her three minor children expired with entry of final order terminating her rights, rather than lasting until subsequent order of adoption, under the Indian Child Welfare Act, which provides that consent of parent to termination of parental rights may be withdrawn at any time prior to entry of final decree of termination or adoption, "as the case may be."  Matter of Kiogima, Mich.App.1991, 472 N.W.2d 13, 189 Mich.App. 6, appeal denied, certiorari denied 112 S.Ct. 952, 502 U.S. 1064, 117 L.Ed.2d 120. Indians  6.6(1)


Under section of Indian Child Welfare Act providing that in any voluntary proceeding for termination of parental rights to an Indian child, consent of parent may be withdrawn prior to entry of a final decree of termination or adoption, mother's right to withdraw her consent to termination expired when order terminating parental rights became final, notwithstanding that no final decree of adoption had been entered.  B.R.T. v. Executive Director of Social Service Bd. North Dakota, N.D.1986, 391 N.W.2d 594.  Indians  6.6(1)


If child met definition of "Indian child" at time of hearing on mother's motion to dismiss adoption petition, mother was entitled under the Indian Child Welfare Act (ICWA) to revoke her consent to adoption even though that consent had become irrevocable under state law.  Quinn v. Walters, Or.App.1993, 845 P.2d 206, 117 Or.App. 579, review allowed 852 P.2d 838, 316 Or. 142, reversed 881 P.2d 795, 320 Or. 233.  Indians  6.10


Former wife's right under Indian Child Welfare Act to withdraw relinquishment of parental rights did not entitle former wife to custody of child who lived with former husband after rights were relinquished;  rather, trial court should have conducted further proceedings to modify custody.  Harvick v. Harvick, Alaska 1992, 828 P.2d 769.  Indians  6.6(1)


This section does not allow a natural parent to withdraw an executed voluntary relinquishment of parental rights after a final order terminating those rights has been entered, since if Congress had intended consents to termination to be revocable at any time before entry of a final decree of adoption, the words "as the case may be" would not appear in this section.  Matter of J.R.S., Alaska 1984, 690 P.2d 10.  Indians  6.6(1);  Indians  6.10


Even assuming that Arizona court had jurisdiction in proceeding for termination of Indian mother's parental rights and properly declined to refer proceeding to tribal court, where there was no evidence as to mother's fitness as a parent or any attempt to preserve parent-child relationship, Indian mother was entitled to return of her child when she revoked her relinquishment of parental rights.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Infants  231


When Indian child within purview of this chapter is involved, adoption agencies and prospective adoptive parents must be held to assume risk that parent might change her mind regarding relinquishment of parental rights before adoption is finalized.  Matter of Appeal in Pima County Juvenile Action No. S-903, Ariz.App.1981, 635 P.2d 187, 130 Ariz. 202, certiorari denied 102 S.Ct. 1644, 455 U.S. 1007, 71 L.Ed.2d 875.  Adoption  7.6(1)


5. Limitations


Indian Child Welfare Act incorporates state statutes of limitations except in challenges based on fraud or duress which are governed by Act's two-year statute of limitations.  Matter of Adoption of T.N.F., Alaska 1989, 781 P.2d 973, certiorari denied 110 S.Ct. 1480, 494 U.S. 1030, 108 L.Ed.2d 616. Indians  6.10


6. Paternity proceedings


Father's action under Parentage Act to determine existence of father and child relationship was not action that could result in termination of parent-child relationship and, thus, Indian Child Welfare Act did not apply; if father's paternity action was unsuccessful, parent-child relationship would not be terminated, but would simply never be established.  J.A.V. v. Velasco, Minn.App.1995, 536 N.W.2d 896, review granted, affirmed 547 N.W.2d 374. Indians  6.6(1)


25 U.S.C.A. § 1913, 25 USCA § 1913



Approved 07-28-05

 

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