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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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