Cal. Code Regs. tit. 22, § 35095.2

California Code of Regulations

Title 22. Social Security

Division 2. Department of Social Services--Department of Health Services

Subdivision 4. Institutions and Boarding Homes for Persons Aged 16 and Above

Chapter 3. Adoptions Program Regulations

Subchapter 4. Procedures for Independent Adoptions

Article 3. Prerequisites to Consent


§ 35095.2. Statement of Understanding for the Parent Whose Child is Subject to the ICWA.


(a) (Reserved)


(b) The statement of Understanding shall contain statements which summarize the following:


(1) For the parent who gave physical custody of the Indian child to the adoptive parents but who did not place the child for independent adoption:


(A) The parent wants to give his child permanently to the petitioners for adoption.


(B) The parent has chosen the petitioners to be adoptive parents based on the parent's personal knowledge pursuant to Family Code Section 8801.


1. (Reserved)


(C) That because the child has been determined to be an Indian child the requirements of the Indian Child Welfare Act (ICWA) will apply to the taking of the consent and the adoption of the child.


(D) According to the ICWA the best place for the child to live if he cannot be with the parent would be with a member of his extended family. The next choice would be other members of the child's tribe. The third choice would be with another Indian family. If the parent does not wish to follow any of these placement choices, he or she must tell the court. The court must make the final decision as to whether this placement order will be changed.


(E) The consent to adoption shall be signed before a judge of the Superior Court in California, or before a court of competent jurisdiction if signed outside the state.


(F) The parent has the right to seek legal counsel to assist in the Independent Adoption process and, the petitioners may be required to pay the cost, up to $500, of such legal counsel, unless a higher fee is agreed to by the parties.


(G) The parent may talk about the plan to place the child with other professionals and with family and friends.


(H) The parent knows there are other services to assist with finance, employment, education, housing, temporary child care and health matters if uncertain about consenting to the adoption.


1. The agency will make a referral to the appropriate resource.


(I) If the parent does not wish to consent to the adoption, the parent may sign a AD 20 or write a letter to the adoption agency, and the adoption agency will report to the court that the parent does not want the child adopted by the petitioners.


(J) If the parent does not sign the consent to adoption, the parent may request that the child be returned. If the petitioners do not return the child, the parent may ask the court for the return of the child. The parent will probably need legal help to do so.


(K) If the parent should change his or her mind about the adoption after signing the consent to adoption, the parent may withdraw the consent before the adoption is granted by the court and the child will be returned to the parent.


(L) The parent remains legally responsible for the child until the adoption is granted by the court. The agency will notify the parent if the child is not adopted by the petitioners to determine the parent's further plans for the child. The parent must keep the agency informed of his or her address.


(M) The parent has received enough information about the petitioners and about the child's adjustment in the petitioners' family and wishes to proceed with signing the consent to adoption.


(N) After the court grants the adoption the parent will no longer be the child's legal parent, which means:


1. The parent will no longer be responsible for the care of the child.


2. The petitioners will be the legal parents and will be legally responsible for caring for the child.


3. The parent will no longer have any right to the custody, services, or earnings of the child.


(O) The parent will be notified if any other parent asks to take back his or her consent and of any court proceedings because he/she is asking to take back the consent.


1. The parent is responsible for keeping his or her name and address current with the agency so that notice can be given.


(P) If there is court action to terminate parental rights, the agency shall notify the child's tribe and the tribe may intervene in the proceedings.


(Q) Upon petition of either parent or the child's tribe, court proceedings to terminate parental rights will be transferred to the jurisdiction of the tribal court, provided:


1. The child's tribe has a court with jurisdiction to hear child custody proceedings,


2. The California court finds no good cause not to transfer the proceeding to the Indian tribe.


3. No other parent objects, and


4. The tribe does not decline the transfer.


(R) The adoption agency will take the necessary steps to obtain a Certificate of Degree of Indian Blood for the child and may enroll the child in his or her tribe or register his or her for any Bureau of Indian Affairs benefits that he or she may be able to get.


(S) The agency is required to give the parent all known information about the status of the child's adoption including the approximate date the adoption was completed and if the adoption was not completed or was vacated, for any reason, whether adoptive placement of the child is again being considered.


(T) The agency shall notify the parent if the adoption petition is withdrawn, dismissed, or denied or if the adoption is set aside.


1. The parent is responsible for keeping his or her name and address current with the agency so that notice can be given.


(U) Adoption terminates any inheritance from the parents or blood relatives to the child unless they make specific provision for the child by will or by trust; the child legally inherits from his or her adoptive family.


1. The adoption of an Indian child terminates inheritance from the biological parents or blood relatives to the child; however, any rights or benefits the child has or may be eligible for as a result of his or her status as an Indian are unaffected. See Subchapter 8.


(V) After the child has been legally adopted, the parent cannot reclaim the child.


(W) The agency cannot release any identifying information about the parent unless:


1. The welfare of the child requires the release of information to certain agencies as specified in law relating to the adoption petition, or


2. The adult adoptee and birth parent both sign written consents to arrange contact between these persons in accordance with Family Code Section 9204, or


(i) (Reserved)


3. The adoptee who has reached the age of 21 has requested the identity of his or her birth parent and his or her most current address is indicated in the agency's records if the birth parent has indicated consent to the disclosure in writing in accordance with Family Code Section 9203, or


4. The birth parent of an adopted person who has reached the age of 21 has requested the adopted name of the adoptee and most current address as shown in the agency's records if the adult adoptee has indicated consent to the disclosure in writing in accordance with Family Code Section 9203, or


5. The adoptive parent of an adopted person under 21 years of age has requested the identity of the birth parent and his or her most current address as shown in the agency's records if there is a finding by the agency a necessity or other extraordinary circumstance justifies the disclosure in accordance with Family Code Section 9203.


(i) (Reserved)


(X) Information regarding the adoption may be released as follows:


1. The adopted child who has reached age 18 may request and receive from the court which granted the adoption information regarding the tribal affiliation of the birth parent and any other information necessary to protect any rights the adopted child may have with regard to his or her tribal relationship.


2. The court granting the adoption will release to the Secretary of the Interior information concerning the adoption and the child, the adoptive parents, the birth parents, and the agency having information concerning the adoptive placement. The parent who desires anonymity must file an affidavit requesting anonymity with the court. The ICWA requires the Secretary of the Interior to ensure that confidentiality will be maintained; however, tribes do not always maintain confidentiality if they know of the adoption.


3. At the request of the adopted child over age 18, the adoptive parents or the Indian tribe, the Secretary of the Interior will release the information provided by the court to the extent necessary to enroll the adopted person in the tribe or to determine any rights or benefits associated with tribal membership. If the parent submitted an affidavit to the court requesting anonymity, the Secretary will certify, where information warrants, that the child is entitled to enrollment rather than release the information.


4. Upon request of the Bureau of Indian Affairs or an adopted child who has reached age 18, the department will make a copy of all documents pertaining to the degree of Indian blood and tribal enrollment available to the requestor.


(Y) The parent will be able, at any time, to add information about him or herself to the agency's adoption record.


(Z) The law permits the court to release identifying information from the court adoption file after considering the reasons for the request.


(AA) Within five years of the granting of the adoption in court the parent shall have the right to petition the court to set aside the adoption if the consent is obtained through fraud or duress.


(BB) The parent may petition the court to invalidate any action terminating parental rights if termination procedures did not comply with the ICWA.


(CC) The parent has considered the reasons for consenting to or not consenting to the adoption of the child and has decided that to consent to adoption of the child by the petitioners is in the best interest of the child.


(DD) The Statement of Understanding for the parent who gave physical custody of the child subject to the provisions of the ICWA is the AD 900.


(2) For the parent who intends to place the Indian child for independent adoption as provided by Sections 35094.1 and 35094.2:


(A) The parent wants to give his child permanently to the prospective adoptive parents for adoption.


(B) The parent has chosen the prospective adoptive parents to be adoptive parents based on the parent's personal knowledge pursuant to Family Code Section 8801.


(C) That because the child has been determined to be an Indian child the requirements of the Indian Child Welfare Act (ICWA) will apply to the signing of the adoption placement agreement and the adoption of the child.


(D) According to the ICWA, the best place for the child to live if he cannot be with the parent would be with a member of his extended family. The next choice would be other members of the child's tribe. The third choice would be with another Indian family. If the parent does not wish to follow any of these placement choices, he or she must tell the court. The court will make the final decision as to whether this placement preference order will be changed.


(E) The adoption placement agreement shall be signed before a judge of the Superior Court in California, or before a court of competent jurisdiction if signed outside the state.


(F) The parent has the right to seek legal counsel to assist in the Independent Adoption process, and the prospective adoptive parents may be required to pay the cost, up to $500, of such legal counsel, unless a higher fee is agreed to by the parties.


(G) The parent may talk about the plan to place the child for adoption with other professionals and with family and friends.


(H) The parent knows there are other services to assist with finance, employment, education, housing, temporary child care, and health matters if uncertain about consenting to the adoption.


1. The adoption service provider will make a referral to the appropriate resource.


(I) The parent has a right to a minimum of three separate counseling sessions with an adoption service provider or a licensed psychotherapist which, at the parent's request, will be paid for by the prospective adoptive parent.


(J) If the parent does not wish to place the child for adoption, the parent should not sign the Independent Adoption Placement Agreement.


(K) If the parent should change his or her mind about the adoption after signing the adoption placement agreement, the parent may withdraw the placement agreement before the adoption is granted by the court and the child will be returned to the parent.


(L) The parent remains legally responsible for the child until the adoption is granted by the court. The agency will notify the parent if the child is not adopted by the petitioners to determine the parent's further plans for the child. The parent must keep the agency informed of his or her address.


(M) The parent has received enough information about the prospective adoptive parents and wishes to proceed with signing the adoption placement agreement.


(N) The statements required by subsections 35095.1(b)(1)(N) through (BB).


(O) The parent has considered the reasons for placing or not placing the child for adoption and has decided to place the child for adoption with the petitioners is in the best interest of the child.


(P) The Statement of Understanding for the parent who placed the child subject to the provisions of the ICWA for adoption as provided by Sections 35094.2 and 35094.3 is the AD 927.


(3) For the parent who did not give physical custody of the child to the adopting parents:


(A) The parent has carefully considered the reasons for consenting to the adoption of the child by the petitioners.


(B) The statements required by subsections 35095.2(b)(1)(C) through (I).


(C) If the parent does not sign the consent to adoption the parent may request the right to physical custody of the child in court. The parent probably will need an attorney to help him or her do this.


(D) The statements required by subsections 35095.2(b)(1)(K), (L), (M), (N), (O), (P), (Q), (R), (S), (T), (U), (V), (W), (X), (Y), (Z), (AA), (BB) and (CC).


(E) The Statement of Understanding for the legal parent who did not give physical custody of the child subject to the provisions of the ICWA is the AD 900A.


(4) For the alleged natural father:


(A) He has carefully considered the reasons for consenting to the adoption of the child by the petitioners.


(B) The statements required by subsections 35095.2(b)(1)(C), (D) and (E).


(C) He has been told why he is considered to be the alleged natural father of the child and he can deny paternity, waive his rights to further notice of the adoption proceedings, sign a consent to adoption or file a petition to establish the father and child relationship.


(D) The statements required by subsections 35095.2(b)(1)(F) and (G).


(E) He can take court action to establish the father and child relationship and request the right to physical custody of the child.


1. He has the right to seek legal counsel to assist in establishing the father and child relationship and in obtaining the right to physical custody of the child and the adoption agency can refer him to public legal assistance in the community.


(F) He understands that if he does not sign the Statement of Understanding and consent to adoption, the petitioners can petition the court to terminate his parental rights.


1. He has the right to look for a lawyer to help him argue against this; and


2. The adoption agency can refer him to public legal help in his community.


(G) If he is successful in establishing the father and child relationship and obtaining the right to physical custody of the child he may obtain other services to assist with finance, employment, education, housing, temporary child care and health matters.


1. The agency will make a referral to the appropriate source.


(H) The statements required by subsections 35095.2(b)(1)(K), (L), (M), (N), (O), (P), (Q), (R), (S), (T), (U), (V), (W), (X), (Y), (Z), (AA), (BB) and (CC).


(I) The Statement of Understanding for the alleged natural father of a child subject to the provisions of the ICWA is the AD 900B.

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