A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ADDING CHAPTER 23 TO TITLE 63 SO AS TO ESTABLISH REQUIREMENTS FOR CHILD WELFARE PROCEEDINGS INVOLVING INDIAN CHILDREN; TO GRANT INDIAN TRIBES EXCLUSIVE JURISDICTION IN CERTAIN CHILD CUSTODY PROCEEDINGS INVOLVING INDIAN CHILDREN, WITH EXCEPTIONS; TO REQUIRE STATE COURTS AND THE DEPARTMENT OF SOCIAL SERVICES TO COMPLY WITH CERTAIN INQUIRIES AND PROCESSES IN CHILD CUSTODY PROCEEDINGS INVOLVING INDIAN CHILDREN; AND FOR OTHER PURPOSES; BY ADDING SECTION 63-9-45 SO AS TO MAKE THE SOUTH CAROLINA ADOPTION CODE INAPPLICABLE TO THE ADOPTION OF INDIAN CHILDREN, WITH EXCEPTIONS; BY AMENDING SECTIONS 63-15-302 AND 63-15-306, BOTH RELATING TO CHILD CUSTODY PROCEEDINGS, SO AS TO MAKE CONFORMING CHANGES; AND FOR OTHER PURPOSES.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  Title 63 of the S.C. Code is amended by adding:

 

CHAPTER 23

 

South Carolina Indian Child Welfare Act

 

    Section 63-23-10.  As used in this chapter:

       (1) "Active efforts" means affirmative, thorough, and timely efforts made to maintain or reunite an Indian child with his family, which, if the department or another agency is involved in the child custody proceeding, must involve assisting the parent or Indian custodian with the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. Active efforts are to be tailored to the facts and circumstances of the case and may include, but are not limited to, the following:

           (a) conducting a comprehensive assessment of the circumstances of the Indian child's family, with a focus on safe reunification as the most desirable goal;

           (b) identifying appropriate services and helping parents to overcome barriers, including actively assisting parents in obtaining services;

           (c) identifying, notifying, and inviting representatives of the Indian child's tribe to participate in providing support and services to the Indian child's family and in family team meetings, permanency planning, and resolution of placement issues;

           (d) conducting or facilitating a diligent search for the Indian child's extended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child's parents;

           (e) offering and employing all available family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the Indian child's tribe;

           (f) taking steps to keep siblings together whenever possible;

           (g) supporting regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the Indian child;

           (h) identifying community resources, including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child's parents or, as appropriate, the Indian child's family, in utilizing and accessing those resources;

           (i) monitoring any progress and participation in services; and

           (j) providing postreunification services and monitoring.

       (2) "Agency" means a nonprofit, for-profit, or governmental organization and its employees, agents, or officials that performs or provides services to biological parents, foster parents, or adoptive parents to assist in the administrative and social work necessary for foster, preadoptive, or adoptive placement.

       (3)(a) "Child custody proceeding" means a legal proceeding that may result in one of the following outcomes:

               (i) foster care placement, which means the removal of an Indian child from his parent or Indian custodian for temporary placement in a foster home, institution, or the home of a guardian or conservator, in which the parent or Indian custodian cannot have the child returned upon demand but in which parental rights have not been terminated;

               (ii) termination of parental rights, which means the termination of the parent-child relationship;

               (iii) preadoptive placement, which means the temporary placement of an Indian child in a foster home or institution after the termination of parental rights but prior to or in lieu of adoptive placement; or

               (iv) adoptive placement, which means the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.

           (b) If a child is placed in an out-of-home placement as the result of a status offense, as defined in Section 63-1-40, that status offense proceeding is considered to be a child custody proceeding pursuant to this chapter.

       (4) "Department" means the South Carolina Department of Social Services.

       (5) "Domicile" means:

           (a) for an Indian child's parent or Indian custodian, the place where the parent or Indian custodian has been physically present and regards as home, or the true, fixed, principal, and permanent home, to which the parent or Indian custodian intends to return and remain indefinitely even if currently residing elsewhere; and

           (b) for an Indian child, the domicile of the Indian child's parents, Indian custodian, or guardian or in the case of an Indian child whose parents are not married to each other, the domicile of the Indian child's custodial parent.

       (6) "Extended family member" means the same as is defined by the law or custom of the Indian child's tribe or, in the absence of such law or custom, means a person who has reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.

       (7) "ICWA" means the Indian Child Welfare Act of 1978 (25 U.S.C. Section 1901, et. seq.) and related regulations, codified at 25 C.F.R. Part 23.

       (8) "Indian" means any person who is a member of an Indian tribe or who is an Alaska Native and a member of a Regional Corporation, as defined in Section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C. Section 1606.

       (9) "Indian child" means any unmarried person who is under the age of eighteen and is either:

           (a) a member or citizen of an Indian tribe; or

           (b) eligible for membership or citizenship in an Indian tribe and is the biological child of a member or citizen of an Indian tribe.

       (10) "Indian child's tribe" means the Indian tribe in which an Indian child is a member or citizen or is eligible for membership or citizenship. If an Indian child is a member or citizen, or eligible for membership or citizenship, in more than one tribe, the Indian child's tribe shall be determined by Section 63-23-90.

       (11) "Indian custodian" means:

           (a) any Indian who has legal custody of an Indian child under applicable tribal law, tribal custom, or state law; or

           (b) any person to whom temporary physical care, custody, and control has been transferred by the parent of an Indian child. A person may demonstrate that he is an Indian custodian by looking to tribal law, tribal custom, or state law.

       (12) "Indian tribe" or "tribe" means a tribe, band, nation, or other organized group or community of Indians that:

           (a) the South Carolina Commission for Minority Affairs considers to be a state-recognized Indian tribe, Native American entity, or group by certification as provided in Chapter 31, Title 1; or

           (b) is otherwise recognized as eligible for services provided to Indians by the State of South Carolina or the Secretary of the Department of the Interior because of their status as Indians, including any Alaska Native village as defined in Section 3 (c) of the Alaska Native Claims Settlement Act, 43 U.S.C. Section 1602 (c).

       (13) "Involuntary proceeding" means a child custody proceeding in which a parent:

           (a) does not consent to a foster care, preadoptive, or adoptive placement, or to termination of parental rights; or

           (b) consents to a foster care, preadoptive, or adoptive placement under threat of removal of the child by a state court or agency.

       (14) "Parent" means a biological parent of an Indian child or a person who has lawfully adopted an Indian child, including by an adoption under tribal law or custom. "Parent" does not include a putative father if paternity has not been acknowledged or established.

       (15) "Secretary" means the United States Secretary of the Interior.

       (16) "Voluntary proceeding" means a child custody proceeding that is not an involuntary proceeding, such as a proceeding for a foster care, preadoptive, or adoptive placement in which a parent, both parents, or an Indian custodian has consented to the placement or termination of parental rights without the threat of removal by the department.

 

    Section 63-23-20.  (A) This chapter applies whenever an Indian child is the subject of a child custody proceeding or an emergency proceeding.

    (B) The following are not considered to be child custody proceedings for the purposes of this chapter:

       (1) a placement based upon an act which, if committed by an adult, would be deemed a crime; or

       (2) a placement based upon an award of custody in a divorce proceeding.

    (C) Any legal proceeding that results in one of the outcomes described in Section 63-23-10(3)(a) is considered to be a separate child custody proceeding.

 

    Section 63-23-30. In Indian child custody proceedings, the best interest of the Indian child must be determined, in consultation with the Indian child's tribe as provided by this chapter, ICWA, and any other applicable state or federal law.

 

    Section 63-23-40.(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 once the Indian tribe has established a tribal court authorized to handle child custody proceedings, except if jurisdiction is otherwise vested in this State by existing state or federal law or tribal agreement. If an Indian child is a ward of a tribal court, the Indian tribe retains exclusive jurisdiction, notwithstanding the residence or domicile of the Indian child.

    (B) The department is authorized to enter into agreements with Indian tribes concerning the care and custody of Indian children and jurisdiction over child custody proceedings, including agreements that may provide for the orderly transfer of jurisdiction on a case-by-case basis and agreements that provide for concurrent jurisdiction between the State and an Indian tribe. An agreement entered into pursuant to this subsection may be revoked by either party upon one hundred eighty days' written notice to the other party. Revocation does not affect any action or proceeding over which a court already has assumed jurisdiction, unless the agreement provides otherwise.

    (C) In any state court proceeding for the foster care placement of, or termination of parental rights to, an Indian child 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 once the tribe has established a tribal court authorized to handle child custody proceedings, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe, provided that transfer is subject to declination by the tribal court of the tribe.

    (D) In any state 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 has a right to intervene at any point in the proceeding.

    (E) This State shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that the entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity.

    (F) The department shall make available to any Indian child's tribe, all documents in the custody of the department related to the welfare of any Indian child upon request.

    (G) The department shall involve any Indian child's tribe in any department-involved activities relating to the Indian child, whether or not the courts are involved.

 

    Section 63-23-50. In any case in which the court determines indigency, a parent or Indian custodian has the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for an Indian child upon a finding that such appointment is in the best interest of the Indian child.

 

    Section 63-23-60.  (A) In an emergency proceeding or a child custody proceeding, the court must ask each participant whether the participant knows or has reason to know that the child is an Indian child. The inquiry shall be made at the commencement of the proceeding, and all responses must be on the record.

    (B) 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 and the Indian child's tribe, by registered or certified mail with return receipt requested, of the pending proceedings and of their right of intervention.

    (C) The court, upon conducting the inquiry required in subsection (A), has reason to know that a child involved in an emergency or child custody proceeding is an Indian child if:

       (1) any participant in the proceeding, officer of the court involved in the proceeding, Indian tribe, or agency informs the court that the child is an Indian child;

       (2) any participant in the proceeding, officer of the court involved in the proceeding, Indian tribe, or agency informs the court that it has discovered information indicating that the child is an Indian child;

       (3) the child who is the subject of the proceeding gives the court reason to know that he is an Indian child;

       (4) the court is informed that the domicile or residence of the child, the child's parent, or the child's Indian custodian is within the reservation of an Indian tribe;

       (5) the court is informed that the child is or has been a ward of a tribal court; or

       (6) the court is informed that either a parent or the child possesses an identification card indicating membership or citizenship in an Indian tribe.

    (D) The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know that the child is an Indian child.

    (E) In seeking verification of a child's status in a voluntary proceeding in which a consenting parent requests anonymity by written request or statement in the record, the court must keep relevant documents pertaining to the inquiry required under this section confidential and under seal. A request for anonymity does not relieve the court, the department, any agency, or any other party from any duty of compliance with state or federal law, including the obligation to verify whether the child is an "Indian child." A tribe receiving information related to this inquiry must keep documents and information confidential.

 

    Section 63-23-70.  (A) Notice provided pursuant to this chapter must be in clear and understandable language and include:

       (1) the child's name, birthdate, and birthplace;

       (2) the parents' names, including all names known, such as maiden, married, and former names or aliases; birthdates and birthplaces; and tribal enrollment numbers if known;

       (3) if known, the names, birthdates, birthplaces, and tribal enrollment information of extended family members or other direct lineal ancestors of the child, such as grandparents;

       (4) the name of each Indian tribe in which the child is a member or citizen or may be eligible for membership or citizenship;

       (5) a copy of the petition, complaint, or other document by which the child custody proceeding was initiated and, if a hearing has been scheduled, information on the date, time, and location of the hearing;

       (6) statements setting forth:

           (a) the name of the petitioner and the name and address of petitioner's attorney;

           (b) the right of any parent or Indian custodian of the child, if not already a party to the child custody proceeding, to intervene in the proceedings;

           (c) the Indian tribe's right to intervene at any time in a state court proceeding for the foster care placement of or termination of parental rights for an Indian child;

           (d) that, if the child's parent or Indian custodian is unable to afford counsel based on a determination of indigency by the court, the parent or Indian custodian has the right to court appointed counsel;

           (e) the right to be granted, upon request, up to twenty additional days to prepare for child custody proceedings;

           (f) if applicable, the right of a parent or Indian custodian and Indian child's tribe to petition the court for transfer of a foster care placement or termination of parental rights proceeding to a tribal court pursuant to 25 U.S.C. Section 1911 and 25 C.F.R. Part 23.115;

           (g) the mailing addresses and telephone numbers of the court and information related to all parties to the child custody proceeding and individuals notified pursuant to this section;

           (h) the potential legal consequences of the child custody proceedings on the future parental and custodial rights of the parent or Indian custodian;

           (i) that all parties notified must keep confidential the information contained in the notice.

    (B) If the identity or location of the parent or Indian custodian and the tribe cannot be determined, notice must be given to the department in like manner, which shall provide the requisite notice to the parent or Indian custodian, the tribe, and the Secretary, if applicable.

 

    Section 63-23-80.  (A) The Indian tribe of which it is believed that the child is a member or eligible for membership shall determine whether the child is a member of the tribe or whether the child is eligible for membership, except as otherwise provided by state, federal, or tribal law.

    (B) The court may not substitute its own determination regarding a child's membership in a tribe or a child's eligibility for membership in a tribe. The determination by a tribe as to whether a child is a member or is eligible for membership is solely within the jurisdiction and authority of the tribe, except as otherwise provided by state, federal, or tribal law.

    (C) The court may rely on documentation, such as tribal enrollment documentation, indicating a tribal determination of membership or eligibility for membership in making a judicial determination as to whether a child is an "Indian child."

 

    Section 63-23-90.  (A) If an Indian child is a member or eligible for membership in only one tribe, that tribe must be designated as the Indian child's tribe.

    (B) If an Indian child meets the definition of "Indian child" for more than one tribe, deference must be given to the tribe in which the Indian child is already a member, unless otherwise agreed to by the tribes.

    (C)(1) If an Indian child meets the definition of "Indian child" for more than one tribe because the child is a member of more than one tribe or the child is eligible for membership in more than one tribe, the court must provide the opportunity in any involuntary child custody proceeding for the tribes to determine which tribe is the Indian child's tribe.

       (2) If the tribes are able to reach an agreement, the agreed-upon tribe must be designated as the Indian child's tribe.

        (3) If the tribes are unable to reach an agreement, the state court shall designate the Indian tribe with which the Indian child has the more significant contacts, taking into consideration:

            (a) the preference of the parents for the membership of the Indian child;

           (b) the length of the past domicile or residence on or near the reservation of each tribe;

           (c) the tribal membership of the child's custodial parent or Indian custodian;

           (d) the interest asserted by each tribe in the child custody proceeding;

           (e) whether there has been a previous adjudication with respect to the Indian child by a court of one of the tribes; and

           (f) any self-identification by the child, if the child is of sufficient age and capacity to meaningfully self-identify.

 

    Section 63-23-100. To determine whether to dismiss the case in a child custody proceeding involving an Indian child, a court must determine the residence and domicile of the Indian child and whether the child is a ward of a tribal court. If either the residence or domicile is on a reservation where the tribe exercises exclusive jurisdiction over child custody proceedings, or the child is a ward of a tribal court, the court must:

       (1) expeditiously notify the tribal court of the pending dismissal based on the tribe's exclusive jurisdiction;

       (2) dismiss the court child custody proceeding; and

       (3) ensure that the tribal court is sent all information regarding the Indian child custody proceeding including, but not limited to, the pleadings and any court record.

 

    Section 63-23-110. (A) Except as provided by Section 63-23-120 and any other applicable law, no child custody proceeding for foster care placement or termination of parental rights may be held until the waiting periods to which the parents or Indian custodians and to which the Indian child's tribe are entitled have expired, as follows:

       (1) ten days after each parent or Indian custodian has received notice of the child custody proceeding;

       (2) ten days after the Indian child's tribe has received notice of the child custody proceeding;

       (3) if the parent or Indian custodian has requested up to twenty additional days to prepare for the child custody proceeding, up to thirty days after the parent or Indian custodian has received notice of the child custody proceeding; and

       (4) if the Indian child's tribe has requested up to twenty additional days to prepare for the child custody proceeding, up to thirty days after the Indian child's tribe has received notice of the child custody proceeding.

    (B) Additional time may also be available under state law or pursuant to extensions granted by the court.

 

    Section 63-23-120. (A) Any emergency removal or placement of an Indian child under state law must terminate immediately if the removal or placement is no longer necessary to prevent imminent physical damage or harm to the Indian child.

    (B) The court must:

       (1) make a finding on the record that the emergency removal or placement is necessary to prevent imminent physical damage or harm to the Indian child;

       (2) whenever new information indicates that the emergency situation has ended, promptly hold a hearing on whether the emergency removal or placement continues to be necessary to prevent imminent physical damage or harm to the Indian child;

       (3) at any court hearing during the emergency proceeding, determine whether the emergency removal or placement continues to be necessary to prevent imminent physical damage or harm to the Indian child; and

       (4) once the court or agency possesses sufficient evidence to determine that the emergency removal or placement is no longer necessary to prevent imminent physical damage or harm to the Indian child, immediately terminate the emergency proceeding.

    (C) An emergency proceeding can be terminated by one or more of the following actions:

       (1) initiation of a child custody proceeding;

       (2) transfer of the child to the jurisdiction of the appropriate Indian tribe; or

       (3) restoring the child to the parent or Indian custodian.

    (D) A petition for a court order authorizing the emergency removal or continued emergency placement, or its accompanying documents, should contain a statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent such imminent physical damage or harm to the child. The petition or its accompanying documents should also contain the following information:

       (1) the name, age, and last known address of the Indian child;

       (2) the name and address of the child's parents and Indian custodians, if any;

       (3) the steps taken to provide notice to the child's parents, custodians, and tribe about the emergency proceeding;

       (4) if the child's parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them;

       (5) the residence and the domicile of the Indian child;

       (6) if either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village;

       (7) the tribal affiliation of the child and of the parents or Indian custodians;

       (8) a specific and detailed account of the circumstances that led the agency responsible for the emergency removal of the child to take that action;

       (9) if the child is believed to reside or be domiciled on a reservation where the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and are being made to contact the tribe and transfer the child to the tribe's jurisdiction; and

       (10) a statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.

    (E) An emergency removal proceeding regarding an Indian child should not be continued for more than thirty days unless the court makes the following determinations:

       (1) restoring the child to the parent or Indian custodian would subject the child to imminent physical damage or harm;

       (2) the court has been unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe; and

       (3) it has not been possible to initiate a "child custody proceeding" as defined in this chapter.

 

    Section 63-23-130. (A) If, in the course of any child custody proceeding, any party asserts or the court has reason to believe that the Indian child may have been improperly removed from the custody of the child's parent or Indian custodian, or that the Indian child has been improperly retained, such as after a visit or other temporary relinquishment of custody, the court must expeditiously determine whether there was improper removal or retention.

    (B) If the court finds that the Indian child was improperly removed or retained, the court must terminate the proceeding and the child must be returned immediately to the parent or Indian custodian, unless returning the child to the parent or Indian custodian would subject the child to substantial and immediate danger or threat of such danger.

 

    Section 63-23-140. (A) Either parent, the Indian custodian, or the Indian child's tribe may request, at any time, orally on the record or in writing, that the state court transfer a foster care or termination of parental rights proceeding to the jurisdiction of the child's tribe.

    (B) The right to request a transfer is available at any stage in each foster care or termination of parental rights proceeding.

 

    Section 63-23-150. Upon receipt of a transfer petition, the state court must ensure that the tribal court is promptly notified in writing of the transfer petition. This notification may request a timely response regarding whether the tribal court wishes to decline the transfer.

 

    Section 63-23-160. Upon receipt of a transfer petition from an Indian child's parent, Indian custodian, or tribe, the court must transfer the child custody proceeding unless the court determines that transfer is not appropriate because one or more of the following criteria are met:

       (1) either parent objects to such transfer;

       (2) the tribal court declines the transfer; or

       (3) good cause exists for denying the transfer.

 

    Section 63-23-170. (A) If the state court believes, or any party asserts, that good cause to deny transfer exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing on the record and to the parties to the child custody proceeding.

    (B) Any party to the child custody proceeding must have the opportunity to provide the court with views regarding whether good cause to deny transfer exists.

    (C) In determining whether good cause exists, the court must not consider:

       (1) whether the foster care or termination of parental rights proceeding is at an advanced stage if the Indian child's parent, Indian custodian, or tribe did not receive notice of the child custody proceeding until an advanced stage;

       (2) whether there have been prior proceedings involving the child for which no petition to transfer was filed;

       (3) whether transfer could affect the placement of the child;

       (4) the Indian child's cultural connections with the tribe or its reservation; or

       (5) socioeconomic conditions or any negative perception of tribal or Bureau of Indian Affairs social services or judicial systems.

    (D) The basis for any state court decision to deny transfer should be stated orally on the record or in a written order.

 

    Section 63-23-180. (A) If the tribal court accepts the transfer, the state court should expeditiously provide the tribal court with all records related to the proceeding including, but not limited to, the pleadings and any court record.

    (B) The state court should work with the tribal court to ensure that the transfer of the custody of the Indian child and of the proceeding is accomplished smoothly and in a way that minimizes the disruption of services to the family.

 

    Section 63-23-190. (A) Prior to ordering an involuntary foster care placement or termination of parental rights, the court must conclude that active efforts have been made to prevent the breakup of the Indian family and that those efforts have been unsuccessful.

    (B) To the maximum extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child's tribe and should be conducted in partnership with the Indian child and the Indian child's parents, extended family members, Indian custodians, and tribe.

    (C) Active efforts must be documented in detail in the record.

 

    Section 63-23-200. (A) The court must not enter an order placing an Indian child in foster care unless clear and convincing evidence is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

    (B) The court must not enter an order for termination of parental rights to an Indian child unless evidence beyond a reasonable doubt is presented, including the testimony of one or more qualified expert witnesses, demonstrating that the child's continued custody by the child's parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

    (C) For an order of foster care placement or termination of parental rights, the evidence must show a causal relationship between the particular conditions in the home and the likelihood that continued custody of the child will result in serious emotional or physical damage to the particular child who is the subject of the child custody proceeding.

    (D) Without a causal relationship identified in subsection (C), evidence that shows only the existence of community or family poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not by itself constitute clear and convincing evidence or evidence beyond a reasonable doubt that continued custody is likely to result in serious emotional or physical damage to the child.

 

    Section 63-23-210. (A) A qualified expert witness must be qualified to testify regarding whether the child's continued custody by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child and should be qualified to testify as to the prevailing social and cultural standards of the Indian child's tribe. A person may be designated by the Indian child's tribe as being qualified to testify to the prevailing social and cultural standards of the Indian child's tribe.

    (B) The court or any party may request the assistance of the Indian child's tribe or the Bureau of Indian Affairs office serving the Indian child's tribe in locating persons qualified to serve as expert witnesses.

    (C) The social worker regularly assigned to the Indian child may not serve as a qualified expert witness in child custody proceedings concerning the child.

 

    Section 63-23-220. (A) The state court must require the participants in a voluntary proceeding to state on the record whether the child is an Indian child, or whether there is reason to believe the child is an Indian child, pursuant to Section 63-23-60.

    (B) If there is reason to believe that the child is an Indian child, the state court must ensure that the party seeking placement has taken all reasonable steps to verify the child's status.

    (C) State courts must ensure that the placement for the Indian child complies with Section 63-23-260 through Section 63-23-290.

 

    Section 63-23-230. (A) A parent's or Indian custodian's consent to a voluntary termination of parental rights or to a foster care, preadoptive, or adoptive placement must be executed in writing and recorded before a court of competent jurisdiction.

    (B) Prior to accepting the consent, the court must explain to the parent or Indian custodian:

       (1) the terms and consequences of the consent in detail; and

       (2) the following limitations, applicable to the type of child custody proceeding for which consent is given, on withdrawal of consent:

           (a) for consent to foster care placement, the parent or Indian custodian may withdraw consent for any reason, at any time, and have the child returned;

           (b) for consent to termination of parental rights, the parent or Indian custodian may withdraw consent for any reason, at any time prior to the entry of the final decree of termination and have the child returned; or

           (c) for consent to an adoptive placement, the parent or Indian custodian may withdraw consent for any reason, at any time prior to the entry of the final decree of adoption, and have the child returned.

    (C) The court must certify that the terms and consequences of the consent were explained on the record in detail in English or in the language of the parent or Indian custodian, if English is not the primary language, and that the terms and consequences of the consent were fully understood by the parent or Indian custodian.

    (D) Where confidentiality is requested or indicated, execution of consent need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with this section.

    (E) A consent given prior to or within ten days after the birth of an Indian child is not valid.

 

    Section 63-23-240. (A) If there are any conditions to the consent, the written consent must clearly set out the conditions.

    (B) A written consent to foster care placement should contain, in addition to the information specified in subsection (A):

       (1) the name and birthdate of the Indian child;

       (2) the name of the Indian child's tribe;

       (3) the tribal enrollment number for the parent and for the Indian child, where known, or some other indication of the child's membership in the tribe; and

       (4) the name, address, and other identifying information of the consenting parent or Indian custodian; the name and address of the person or entity, if any, who arranged the placement; and the name and address of the prospective foster parents, if known at the time.

 

    Section 63-23-250. (A)(1) The parent or Indian custodian may withdraw consent to voluntary foster care placement at any time.

       (2) To withdraw consent, the parent or Indian custodian must file a written document with the court or otherwise testify before the court. Additional methods of withdrawing consent may be available under state law.

       (3) If a parent or Indian custodian withdraws consent to a voluntary foster care placement, the court must ensure that the Indian child is returned to that parent or Indian custodian as soon as practicable.

    (B) A parent may withdraw consent to voluntary termination of parental rights at any time prior to the entry of a final decree of termination.

    (C)(1) A parent or Indian custodian may withdraw consent to voluntary adoption at any time prior to the entry of a final decree of adoption.

       (2) To withdraw consent prior to the entry of a final decree of adoption, the parent or Indian custodian must file a written document with the court or otherwise testify before the court.

       (3) The court in which the withdrawal of consent is filed must promptly notify the person or entity who arranged any voluntary preadoptive or adoptive placement of such filing, and the Indian child must be returned to the parent or Indian custodian as soon as practicable.

 

    Section 63-23-260. (A) In any foster care, preadoptive, or adoptive placement of an Indian child, the placement preferences pursuant to Sections 63-23-260 and 63-23-270 apply.

    (B) Where a consenting parent requests anonymity in a voluntary proceeding, the court must give weight to the request in applying the preferences.

    (C) The placement preferences must be applied in any foster care, preadoptive, or adoptive placement unless there is a determination on the record that good cause pursuant to Section 63-23-270 exists not to apply those placement preferences.

 

    Section 63-23-270. (A) In any adoptive placement of an Indian child under state law, where the Indian child's tribe has not established a different order of preference pursuant to subsection (B), preference must be given in descending order, as listed below, to placement of the child with:

       (1) a member of the Indian child's extended family;

       (2) other members of the Indian child's tribe; or

       (3) other Indian families.

    (B) If the Indian child's tribe has established by resolution a different order of preference, the tribe's placement preferences apply.

    (C) The court must, if appropriate, also consider the placement preference of the Indian child or Indian child's parent.

 

    Section 63-23-280. (A) If any party asserts that good cause not to follow the placement preferences exists, the reasons for that belief or assertion must be stated orally on the record or provided in writing to the parties to the child custody proceeding and the court.

    (B) The party seeking departure from the placement preferences bears the burden of proving by clear and convincing evidence that there is good cause to depart from the placement preferences.

    (C) A court's determination of good cause to depart from the placement preferences must be made on the record or in writing and should be based on one or more of the following considerations:

       (1) the request of one or both of the Indian child's parents, if they attest that they have reviewed the placement options, if any, that comply with the order of preference;

       (2) the request of the child, if the child is of sufficient age and capacity to understand the decision that is being made;

       (3) the presence of a sibling attachment that can be maintained only through a particular placement;

       (4) the extraordinary physical, mental, or emotional needs of the Indian child, such as specialized treatment services that may be unavailable in the community where families who meet the placement preferences live; and

       (5) the unavailability of a suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the preference criteria, but none has been located. For purposes of this analysis, the standards for determining whether a placement is unavailable must conform to the prevailing social and cultural standards of the Indian community in which the Indian child's parent or extended family resides or with which the Indian child's parent or extended family members maintain social and cultural ties.

    (D) A placement may not depart from the preferences based on the socioeconomic status of any placement relative to another placement.

    (E) A placement may not depart from the preferences based solely on ordinary bonding or attachment that flowed from time spent in a nonpreferred placement that was made in violation of this chapter, ICWA, or other applicable law.

 

    Section 63-23-290. Each party to an emergency proceeding or a foster care placement or termination of parental rights proceeding involving an Indian child has a right to timely examine all reports and other documents filed with the court upon which any decision with respect to the action may be based.

 

    Section 63-23-300. (A) Within two years after a final decree of adoption of any Indian child by a state court, or within any longer period of time otherwise permitted by state law, the state court may invalidate the voluntary adoption upon finding that the parent's consent was obtained by fraud or duress.

    (B) Upon the parent's filing of a petition to vacate the final decree of adoption of the parent's Indian child, the court must give notice to all parties to the adoption proceedings and the Indian child's tribe and must hold a hearing on the petition.

    (C) Where the court finds that the parent's consent was obtained through fraud or duress, the court must vacate the final decree of adoption, order the consent revoked, and order that the child be returned to the parent.

 

    Section 63-23-310. (A) Any of the following may petition any court of competent jurisdiction to invalidate an action for foster care placement or termination of parental rights under state law where it is alleged that the relevant provisions of this chapter have been violated:

       (1) an Indian child who is or was the subject of any action for foster care placement or termination of parental rights;

       (2) a parent or Indian custodian from whose custody such child was removed; and

       (3) the Indian child's tribe.

    (B) Upon a showing that an action for foster care placement or termination of parental rights violated any relevant provision of this chapter, the court must determine whether it is appropriate to invalidate the action.

 

    Section 63-23-320. Upon application by an Indian who has reached age eighteen who was the subject of an adoptive placement, the court that entered the final decree of adoption must inform the individual of the tribal affiliations, if any, of the individual's biological parents and provide other information necessary to protect any rights, which may include tribal membership, resulting from the individual's tribal relationship.

 

    Section 63-23-330. (A) If an Indian child has been adopted, the court must notify, by registered or certified mail with return receipt requested, the child's biological parent or prior Indian custodian and the Indian child's tribe whenever:

       (1) a final decree of adoption of the Indian child has been vacated or set aside; or

       (2) the adoptive parent has voluntarily consented to the termination of parental rights to the child.

    (B) The notice must state the current name, and any former name, of the Indian child, inform the recipient of the right to petition for return of custody of the child, and provide sufficient information to allow the recipient to participate in any scheduled hearings.

    (C)(1) A parent or Indian custodian may waive his or her right to notice by executing a written waiver of notice and filing the waiver with the court.

       (2) Prior to accepting a waiver of notice, the court must explain the consequences of the waiver and explain how the waiver may be revoked.

       (3) The court must certify that the terms and consequences of the waiver and how the waiver may be revoked were explained in detail in English, or in the language of the parent or Indian custodian, if English is not the primary language, and that the terms and consequences of the waiver were fully understood by the parent or Indian custodian.

       (4) Where confidentiality is requested or indicated, execution of the waiver need not be made in a session of court open to the public but still must be made before a court of competent jurisdiction in compliance with this section.

       (5) The biological parent or Indian custodian may revoke the waiver at any time by filing with the court a written notice of revocation.

       (6) A revocation of the right to receive notice does not affect any child custody proceeding that was completed before the filing of the notice of revocation.

 

    Section 63-23-340. (A) Any state court entering a final adoption decree or order in any voluntary or involuntary Indian child adoptive placement must furnish a copy of the decree or order within thirty days to the department, along with the following information, in an envelope marked "Confidential":

       (1) the birth name and birthdate of the Indian child, and tribal affiliation and name of the Indian child after adoption;

       (2) names and addresses of the biological parents;

       (3) names and addresses of the adoptive parents;

       (4) name and contact information for any agency having files or information relating to the adoption;

       (5) any affidavit signed by the biological parent or parents asking that their identity remain confidential; and

       (6) any information relating to tribal membership or eligibility for tribal membership of the adopted child.

    (B) If applicable, the department must also furnish a copy of the decree or order within thirty days to the Bureau of Indian Affairs, Chief, Division of Human Services, 1849 C Street NW, Mail Stop 3645 MIB, Washington, D.C. 20240, along with the information required in subsection (A), pursuant to ICWA.

 

    Section 63-23-350. (A) The department must maintain a record of every voluntary or involuntary foster care, preadoptive, and adoptive placement of an Indian child and make the record available within fourteen days of a request by an Indian child's tribe or the Secretary, if applicable.

    (B) The record must contain, at a minimum, the petition or complaint, all substantive orders entered in the child custody proceeding, the complete record of the placement determination including, but not limited to, the findings in the court record and the social worker's statement, and, if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preferences.

 

    Section 63-23-360. If any portion of this chapter is determined to be invalid by a court of competent jurisdiction, the other portions of the chapter remain in effect.

 

SECTION 2.  Article 1, Chapter 9, Title 63 of the S.C. Code is amended by adding:

 

    Section 63-9-45. An adoption proceeding that pertains to an Indian child as defined in Chapter 23, Title 63 or the Indian Child Welfare Act, 25 U.S.C. Section 1901, et seq., is not subject to this chapter to the extent that it is governed by the relevant state law, tribal agreement, or the Indian Child Welfare Act.

 

SECTION 3.  Section 63-15-302(16) of the S.C. Code is amended to read:

 

    (16) "Tribe" means an Indian tribe or band, or Alaskan native village, which is recognized by federal law or formally acknowledged by a state "Tribe" has the same meaning as defined in Section 63-23-10.

 

SECTION 4.  Section 63-15-306(A) of the S.C. Code is amended to read:

 

    (A) A child custody proceeding that pertains to an Indian child as defined in Chapter 23, Title 63 or the Indian Child Welfare Act, 25 U.S.C. Section 1901, et seq., is not subject to this article to the extent that it is governed by relevant state law, tribal agreement, or the Indian Child Welfare Act.

 

SECTION 5.  This act takes effect upon approval by the Governor.

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