Tribal Attorney FAQ

TCA is a permanency option in Indian Child Welfare Act dependency cases only, it is not an option in non-ICWA cases or in ICWA probate, family law or delinquency cases. If your case is a dependency case under Section 300 of the Welfare and Institutions Code ("WIC"), then TCA may be something to consider. WIC 366.24(b): "Whenever an assessment is ordered pursuant to 361.5, 366.21, 366.22, 366.25 or 366.26 for Indian children the assessment shall address the option of tribal customary adoption".

PRACTICE TIP: Look for specific reference to TCA in all the court reports and where appropriate make a note on the record where the reports do not address TCA as an option. Doing so will help create a record if the County fails to adequately document a concurrent plan and could help if there objections to TCA or the Tribal Customary Adoption Order (“TCAO”) later on. See In Re G.C., Jr. 3rd District (6/7/13).

It really is never too early to be thinking about TCA as a potential option, consideration of TCA is part of concurrent planning which starts immediately in dependency cases. (WIC 366.24(b)).  See also ACL 10-47, describing the requirement that the County consult with the Tribe regarding TCA as a permanency option.  There are two steps you can take at the outset of your case, first, make sure that TCA is addressed by the County Social Worker in all reports/assessments. Second, start the conversation with the tribal leaders and or the extended family (of course, with consideration of confidentiality issues) about what they want if the parents do not reunify.  If the tribe has not done a TCA before it may take many months to become familiar with the concept and to prepare a Tribal Customary Adoption Order.

PRACTICE TIP: If the tribe has an ICWA Social Worker or ICWA coordinator work with that person early on to seek out TCA placements and to educate the tribal leaders about TCA. Further, encourage the tribal representative to access available resources regarding TCA, such as this TCA website.

No, TCA is only available for children that meet the definition of an Indian Child under the ICWA. However, simply because there are non-Indian siblings does not mean that TCA cannot be utilized as a permanency option. Non-Indian siblings can have different permanent plans from their ICWA eligible siblings.

No, there is no legal mandate that there be an identified adoptive family for the Tribe to take the position that TCA is the Tribe's permanency plan.  However, keep in mind that it will be imperative to have an identified family that can clear a criminal background check and have a completed and approved home study in order to eventually make the TCA possible, so it is essential that the tribe seek out an appropriate family as soon as possible.

PRACTICE TIP: Complete the finger printing and home study as quickly as possible so that the child/ren can be moved early in the case; by getting children moved to the adoptive home quickly bonding based placement challenges may be avoided. It is helpful if the tribe can locate a family for the child as quickly as possible and begin the background and home study process. If the family is approved as a foster placement the child can be placed at that time and the adoptive home study can be completed after placement. Further, if there is a criminal record hit on a member of the potential placement household, there may be an exemption process available through foster care, but utilizing that process takes time. (see FAQ #6)

Yes.  There is no legal impediment to a non-tribal/non-Indian adoptive family entering into a TCA.  However, one of the goals of TCA is that the TCAO creates a structure wherein the adoptive family keeps the Indian child closely connected to the Tribe and if appropriate allows contact with the extended family, and maybe even the biological parents, so the non-tribal/non-Indian adoptive family will need to be educated and clearly understand what the TCAO requires including participation in tribal events or ceremony, travel to the reservation and contact with the biological family.

PRACTICE TIP: TCA does not have to be an "open adoption", but this may be a key factor in the TCA. Talk with your client early on to avoid confusion and internal tribal disagreement about this issue.

No, a plan of TCA does not change the background requirements of the WIC or federal law. Adoptive parents in a TCA still must clear the same criminal background checks as conventional adoptions. However, keep in mind 1.) there is specific statutory authority for exempting criminal histories for foster care placements in ICWA cases and 2.) for any adoption the entity completing the home study can still approve an adoptive home even where a resident of the home has a criminal history. (See Health &Safety Code Section 1501 and WIC 361.4(f) ). Further, under TCA the home study process is different from a conventional adoption, (See WIC366.24(c).

PRACTICE TIP: If the tribe does not have an ICWA social worker consider contacting a tribal adoption agency to assist with the home study (See tribal social services tab for more information on home studies and background checks)

When the TCA statute was written it was the intention of the sponsors that the parties, including minor's counsel, parents’ counsel and the County Counsel, would be able to provide information regarding the Tribe's selection of TCA as a permanent plan. The statute states the parties can "present evidence to the tribe regarding the tribal customary adoption and the child's best interest". WIC 366.24(c)(6)&(7).

Some attorneys take the position that it is an open question whether the selection of TCA as the permanent plan can be contested or is subject to the discretion of the court, (See Sieser & Kumli: "Many believe that there can be no contested hearing in the juvenile court regarding a tribal customary adoption" Section 2.125[11], page 2-370, 2013 Edition). Further, one appellate court found that "We disagree with the tribe's contention that the court was required to select tribal customary adoption as the child's permanent plan, simply because the tribe elected such a plan" (In Re H.R. 1st District, 8/20/12). However, this same court, while holding that the Court retained discretion on the selection of the permanent plan, reversed the termination of parental rights. The Court held that TCA is the preferred plan for Indian children unless detriment can be shown. Thus, under In Re H.R., the court retains discretion regarding the selection of TCA, but there is high burden of proof for those opposing TCA and advocating a different permanent plan,. This is an area to watch for future developments.

Every report that is prepared for the case must address permanency planning, for an ICWA case that permanency planning must include consulting with the Tribe about the option of TCA. "In considering a permanent plan for an Indian child, the County is required to consult with the Tribe". See WIC 366.22(C)(1)(G) and Rules of Court, Rule 5.725(d)(8)(C)&(D). Make a record that the County has failed to comply with the requirements to consult with the Tribe. See In Re G.C., Jr. 3rd District (6/7/13), See also In Re A.M. 3rd District (4/11/13),. Lastly, start planning for TCA immediately, for example, inform your client about TCA and initiate the drafting of a TCAO draft as soon as reasonable.

Hopefully early on in the case there has been some concurrent planning and the parties have had some conversations about permanency, for example, is there an adoptive family available?  Further, hopefully there has been some discussions within the tribe regarding what the tribe, and possibly the extended family, expects in the long term for the tribal child.  First, it is important that the parties are clear with the court that the plan will be TCA, and that the judge is in agreement with the plan of TCA.  If the County has complied with the TCA requirements that TCA be considered and the Tribe be consulted regarding TCA then the record should be clear with regard to the potential for TCA as the permanent plan.  However, it is good practice for the Tribe to make a clear record that the Tribe will be seeking TCA. Next, if nothing has been done with regard to drafting the TCAO that should be the highest priority.  The Tribe has up to120 days from the finding that TCA will be the permanent plan to finalize the TCAO, further the court can grant up to an additional 60 days if needed. WIC 36624(c)(6), Rule 5.725(e)(4)(C).  There are model TCAO's that you can review and utilize (see Resource Tab).

WIC 366.24(c)(10) contains the required elements of a TCAO.  There are other elements that the tribe, adoptive family and other parties may want to include, for example clan affiliation, name changes, conditions on biological parents contact and subsequent care provider designations. There are sample TCAO documents that you can review and utilize (see Resource Tab)

PRACTICE TIP: Once a TCAO is completed and finalized by the tribe it is tribal law. While the tribe does not have to complete the TCAO in any specific way, it is recommended that it be become tribal law through tribal custom and tradition, or pursuant to the tribe’s constitution or a tribal statute or ordinance, whatever process the tribe utilizes for enacting tribal law, a written TCAO must be produced either through a tribal resolution or a more formal order. Further, the TCAO can be a tribal court order if that is appropriate under the tribe's laws. Lastly, consider having the adopting parents and other important individuals, like extended family members sign an agreement that includes all of the terms of the TCAO. This document can be attached to the TCAO and will serve as a further evidence of the consultation that was done in the process of completing the TCA.

WIC 266.24(c)(6) states the "timeline" for getting the TCAO completed and filed with the court. There is a provision for up to an additional 60 days if the tribe needs that to complete the TCAO. However, be careful, if the tribe does not complete the TCAO within the timeframes the court may change the order for a permanent plan of TCA and move to another permanent plan, most likely conventional adoption. "If the child's tribe does not file the tribal customary adoption order within the designated time period, the court shall make new findings and orders...to determine the best permanent plan for the child". (366.24(c)(6). See also In Re A.M. 3rd District (4/11/13), where the appellate court upheld a decision to order a conventional adoption where the trial court found the Tribe didn’t complete a TCAO in a timely manner. (There is a depublication request pending for this case) Therefore, while nothing prevents the court from granting additional time/continuance under other statutes, it is best to work within the statutory timeframe if at all possible.

The TCAO is tribal law. It is not subject to revision or challenge by the parties. Under WIC 366.24(c)(7) the parties may provide evidence to the Tribe regarding the TCAO and the child's best interest, however this falls far short of a requirement that such evidence result in specific language being included in the TCAO. The only means by which changes to the contents of the TCAO can be required is that the court can refuse to extend full faith and credit to the TCAO and then require that either revisions be made or the court may reconsider the plan of TCA. However, there is no statutory requirement that the tribe accept revisions to the TCAO demanded by other parties.

PRACTICE TIP: There are many strategy considerations in the timing of when you share or how you share a draft TCAO. In some cases it may advance the Tribe's interests to share a developed draft of the TCAO and request input ("evidence", see WIC 366.24(c)(7)). In other cases it may be better to inform opposing parties that the tribe is preparing the TCAO and if they have specific concerns request they put those concerns in writing to you so you are aware of those concerns as the Tribe prepares the TCAO.

A court can refuse to extend full faith and credit to the acts, records and judicial proceedings of another sovereign where extending such full faith and credit would violate public policy. If there is a provision of a TCAO that violates public policy the court can refuse to extend full faith and credit to the TCAO. In order to be as certain as possible that the TCAO meets the standards for full faith and credit it is important to be familiar with typical impediments to the granting of full faith and credit, for example, due process violations and violations of a minor's safety and security, like unsupervised contact with an offending parent.

Yes. As long as the minor is a dependent of the State of California and is an Indian child under the ICWA or the WIC, a TCA is a permanent plan option.