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REFERENCE TITLE: Indian child welfare; custody proceedings |
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State of Arizona Senate Fifty-fifth Legislature First Regular Session 2021
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SB 1773 |
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Introduced by Senators Gonzales: Alston, Contreras, Mendez, Navarrete, Peshlakai, Quezada, Steele; Representatives Cano, Jermaine
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AN ACT
amending title 8, Arizona Revised Statutes, by adding chapter 14; relating to child custody.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 8, Arizona Revised Statutes, is amended by adding chapter 14, to read:
CHAPTER 14
INDIAN CHILD WELFARE
ARTICLE 1. CHILD CUSTODY PROCEEDINGS
8-1201. Indian child custody proceedings; jurisdiction
A. An Indian tribe has exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of the tribe, except if jurisdiction is otherwise vested in this state by existing federal law. If an Indian child is a ward of a tribal court, the Indian tribe retains exclusive jurisdiction, notwithstanding the residence or domicile of the child.
B. In a juvenile court proceeding for the foster care placement of or termination of parental rights to an Indian child who is not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer the proceeding to the jurisdiction of the tribe, unless a parent of the child objects or a parent, the Indian custodian of the child or the Indian child's tribe petitions the court. A transfer pursuant to this subsection is subject to declination by the tribal court of the tribe.
C. In any juvenile court proceeding for the foster care placement of or termination of parental rights to an Indian child, the Indian custodian of the child and the Indian child's tribe may intervene at any point in the proceeding.
D. This state shall give full faith and credit to the public acts, records and judicial proceedings of an Indian tribe applicable to Indian child custody proceedings to the same extent this state gives full faith and credit to the public acts, records and judicial proceedings of any other entity.
8-1202. Pending court proceedings
A. In any involuntary proceeding in juvenile court, if the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of or termination of parental rights to an Indian child shall notify the parent or Indian custodian of the child and the Indian child's tribe, by registered mail, return receipt requested, of the pending proceedings and of the right of intervention. If the identity or location of the parent or Indian custodian of the child and the Indian child's tribe cannot be determined, the notice shall be given to the United States secretary of the interior by registered mail, return receipt requested. A foster care placement or termination of parental rights proceeding may not be held until at least ten days after the parent or Indian custodian of the child and the Indian child's tribe or the Secretary receives notice. The parent or Indian custodian of the child or the Indian child's tribe shall, on request, be granted up to twenty additional days to prepare for the proceeding.
B. If the court determines indigency, the parent or Indian custodian of the child has the right to court-appointed counsel in any removal, placement or termination proceeding. The court may appoint counsel for the Indian child on a finding that appointment is in the best interest of the Indian child.
C. Each party to a foster care placement or termination of parental rights proceeding involving an Indian child may examine all reports or other documents filed with the court on which any decision with respect to the action may be based.
D. Any party who seeks to effect a foster care placement of or termination of parental rights to an Indian child shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.
E. A court may not order a foster care placement in the absence of a determination, supported by clear and convincing evidence, that the continued custody of the Indian child by the parent or Indian custodian of the child is likely to result in serious emotional or physical damage to the Indian child. The evidence considered shall include the testimony of qualified expert witnesses.
F. A court may not order THE termination of parental rights in the absence of a determination, supported by evidence beyond a reasonable doubt, that the continued custody of the Indian child by the parent or Indian custodian of the child is likely to result in serious emotional or physical damage to the Indian child. The evidence considered shall include the testimony of qualified expert witnesses.
8-1203. Parental rights; voluntary termination
A. If a parent or Indian custodian of the child voluntarily consents to a foster care placement or to termination of parental rights, the consent is not valid unless it is executed in writing and recorded before a judge of the juvenile court and accompanied by the juvenile court 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 of the child fully understood the explanation in English or that it was interpreted into a language that the parent or Indian custodian understood. Any consent given before or within ten days after birth of the Indian child is not valid.
B. A parent or Indian custodian of the child may withdraw consent to a foster care placement at any time and, if the consent is withdrawn, the child shall be returned to the parent or Indian custodian.
C. In any voluntary proceeding for termination of parental rights to or adoptive placement of an Indian child, the parent may withdraw consent for any reason at any time before the entry of a final decree of termination or adoption and the child shall be returned to the parent.
D. After the entry of a final decree of adoption of an Indian child, the parent may withdraw consent to the adoption on the grounds that consent was obtained through fraud or duress and may petition the court to vacate the decree. If the court finds that the consent was obtained through fraud or duress, the court shall vacate the decree and return the Indian child to the parent. An adoption that has been effective for at least two years may not be invalidated under this subsection unless otherwise allowed by statute.
8-1204. Petition to invalidate action
An Indian child who is the subject of any action for foster care placement or termination of parental rights, any parent or Indian custodian of the child from whose custody the child was removed and the Indian child's tribe may petition the juvenile court to invalidate the action on a showing that the action violated section 8-1201, 8-1202 or 8-1203.
8-1205. Placement of Indian children
A. In any adoptive placement of an Indian child, a preference shall be given, in the absence of good cause to the contrary, to a placement with a member of the Indian child's extended family, other members of the Indian child's tribe or other Indian families.
B. An Indian child who is accepted for foster care or preadoptive placement shall be placed in the least restrictive setting that most approximates a family and in which the Indian child's special needs, if any, may be met. The Indian child shall also be placed within reasonable proximity to the Indian child's home, taking into account any special needs of the Indian child. In a foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with any of the following:
1. A member of the Indian child's extended family.
2. A foster home licensed, approved or specified by the Indian child's tribe.
3. An Indian foster home licensed or approved by an authorized non-Indian licensing authority.
4. An institution for children approved by an Indian tribe or operated by an Indian organization that has a program suitable to meet the Indian child's needs.
C. In a placement under subsection A or B of this section, if the Indian child's tribe establishes a different order of preference by resolution, the agency or court effecting the placement shall follow that order as long as the placement is the least restrictive setting appropriate to the particular needs of the Indian child, as provided in subsection B of this section. If appropriate, the preference of the Indian child or parent shall be considered. If a consenting parent evidences a desire for anonymity, the court or agency shall give weight to this desire in applying the preferences.
D. The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
E. The department shall maintain a record of each placement pursuant to this chapter of an Indian child that evidences the efforts to comply with the order of preference specified in this section. The record shall be made available at any time on the request of the United States secretary of the interior or the Indian child's tribe.
8-1206. Return of custody
A. Notwithstanding any other law, if a final decree of adoption of an Indian child has been vacated or set aside or the adoptive parents voluntarily consent to the termination of their parental rights to the Indian child, a biological parent or prior Indian custodian may petition for return of custody, and the court shall grant the petition unless there is a showing, in a proceeding subject to section 8-1202, that the return of custody is not in the best interests of the Indian child.
B. If an Indian child is removed from a foster home or institution for the purpose of further foster care or preadoptive or adoptive placement, the placement shall be in accordance with this chapter, except if an Indian child is being returned to the parent or Indian custodian of the child from whose custody the child was originally removed.
8-1207. Tribal affiliation information
On application by an Indian individual who is at least eighteen years of age and who was the subject of an adoptive placement, the court that entered the final decree shall inform the individual of the tribal affiliation, if any, of the individual's biological parents and provide other information as may be necessary to protect any rights flowing from the individual's tribal relationship.
8-1208. Improper removal of child from custody; declination of jurisdiction
If a petitioner in an Indian child custody proceeding has improperly removed the child from custody of the parent or Indian custodian of the child or has improperly retained custody after a visit or other temporary relinquishment of custody, the court shall decline jurisdiction over the petition and shall immediately return the child to the child's parent or Indian custodian unless returning the child to the child's parent or Indian custodian would subject the Indian child to a substantial and immediate danger or threat of danger.
8-1209. Emergency removal or placement of child
This chapter does not prevent the emergency removal of an Indian child who is a resident of or who is domiciled on a reservation, but temporarily located off the reservation, from the child's parent or Indian custodian or the emergency placement of the child in a foster home or institution to prevent imminent physical damage or harm to the Indian child. The department or other agency involved shall ensure that the emergency removal or placement terminates immediately when the removal or placement is no longer necessary to prevent imminent physical damage or harm to the Indian child and shall expeditiously initiate a child custody proceeding subject to this chapter, transfer the Indian child to the jurisdiction of the appropriate Indian tribe or restore the Indian child to the parent or Indian custodian of the child, as may be appropriate.