Tennessee 2025-2026 Regular Session

Tennessee Senate Bill SB0485 Compare Versions

Only one version of the bill is available at this time.

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2	2	<BillNo> <Sponsor>
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4	4	SENATE BILL 485
5	5	By Bowling
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7	7
8	8	SB0485
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10	10	- 1 -
11	11
12	12	AN ACT to amend Tennessee Code Annotated, Title 36
13	13	and Title 37, relative to Indian child welfare.
14	14
15	15	BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
16	16	SECTION 1. Tennessee Code Annotated, Title 37, Chapter 2, is amended by adding
17	17	the following new part:
18	18	37-2-701. Part definitions.
19	19	As used in this part:
20	20	(1) "Adoptive placement" means the permanent placement of an Indian
21	21	child for adoption, including any action resulting in a final decree of adoption, but
22	22	does not include a placement based upon an act which, if committed by an adult,
23	23	would be deemed a crime or upon an award, in a divorce proceeding, of custody
24	24	to one (1) of the parents;
25	25	(2) "Child custody proceeding" means and includes foster care
26	26	placement, termination of parental rights, preadoptive placement, and adoptive
27	27	placement;
28	28	(3) "Commissioner" means the commissioner of children's services;
29	29	(4) "Extended family member" means:
30	30	(A) As defined by the law or custom of the Indian child's tribe; or
31	31	(B) In the absence of such law or custom described in subdivision
32	32	(4)(A), a person who has reached eighteen (18) years of age and who is
33	33	the Indian child's grandparent, aunt or uncle, brother or sister, brother-in-
34	34	law or sister-in-law, niece or nephew, first or second cousin, or
35	35	stepparent;
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40	40	(5) "Foster care placement":
41	41	(A) Means any action removing an Indian child from the child's
42	42	parent or Indian custodian for temporary placement in a foster home or
43	43	institution or the home of a guardian or conservator where the parent or
44	44	Indian custodian cannot have the child returned upon demand, but where
45	45	parental rights have not been terminated; and
46	46	(B) Does not include a placement based upon an act which, if
47	47	committed by an adult, would be deemed a crime or upon an award, in a
48	48	divorce proceeding, of custody to one (1) of the parents;
49	49	(6) "Indian" means any person who is a member of an Indian tribe, or
50	50	who is an Alaska Native and a member of a regional corporation as defined in 43
51	51	U.S.C. § 1606;
52	52	(7) "Indian child" means any unmarried person who is under eighteen
53	53	(18) years of age and is either:
54	54	(A) A member of an Indian tribe; or
55	55	(B) Eligible for membership in an Indian tribe and is the biological
56	56	child of a member of an Indian tribe;
57	57	(8) "Indian child's tribe" means:
58	58	(A) The Indian tribe in which an Indian child is a member or
59	59	eligible for membership; or
60	60	(B) In the case of an Indian child who is a member of or eligible
61	61	for membership in more than one (1) tribe, the Indian tribe with which the
62	62	Indian child has the more significant contacts;
63	63	(9) "Indian custodian" means any Indian person who has legal custody of
64	64	an Indian child under tribal law or custom or under state law or to whom
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69	69	temporary physical care, custody, and control has been transferred by the parent
70	70	of such child;
71	71	(10) "Indian organization" means any group, association, partnership,
72	72	corporation, or other legal entity owned or controlled by Indians, or a majority of
73	73	whose members are Indians;
74	74	(11) "Indian tribe" means any Indian tribe, band, nation, or other
75	75	organized group or community of Indians recognized as eligible for the services
76	76	provided to Indians by the United States secretary of the interior because of their
77	77	status as Indians, including any Alaska Native village as defined in 43 U.S.C. §
78	78	1602(c);
79	79	(12) "Parent" means any biological parent or parents of an Indian child or
80	80	any Indian person who has lawfully adopted an Indian child, including adoptions
81	81	under tribal law or custom, but does not include the unwed father where paternity
82	82	has not been acknowledged or established;
83	83	(13) "Preadoptive placement" means the temporary placement of an
84	84	Indian child in a foster home or institution after the termination of parental rights,
85	85	but prior to or in lieu of adoptive placement, but does not include a placement
86	86	based upon an act which, if committed by an adult, would be deemed a crime or
87	87	upon an award, in a divorce proceeding, of custody to one (1) of the parents;
88	88	(14) "Reservation" means Indian country as defined in 18 U.S.C. § 1151
89	89	and any lands, not covered under such section, title to which is either held by the
90	90	United States in trust for the benefit of any Indian tribe or individual or held by
91	91	any Indian tribe or individual subject to a restriction by the United States against
92	92	alienation;
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97	97	(15) "Termination of parental rights" means any action resulting in the
98	98	termination of the parent-child relationship but does not include a placement
99	99	based upon an act which, if committed by an adult, would be deemed a crime or
100	100	upon an award, in a divorce proceeding, of custody to one (1) of the parents; and
101	101	(16) "Tribal court" means a court with jurisdiction over child custody
102	102	proceedings and that is either a Court of Indian Offenses, a court established and
103	103	operated under the code or custom of an Indian tribe, or any other administrative
104	104	body of a tribe that is vested with authority over child custody proceedings.
105	105	37-2-702. Declaration of policy.
106	106	The general assembly declares that it is the policy of this state to protect the best
107	107	interests of Indian children and to promote the stability and security of Indian tribes and
108	108	families by the establishment of minimum standards for the removal of Indian children
109	109	from their families and the placement of such children in foster or adoptive homes that
110	110	will reflect the unique values of Indian culture, and by providing for assistance to Indian
111	111	tribes in the operation of child and family service programs.
112	112	37-2-703. Indian tribe jurisdiction over Indian child custody proceedings.
113	113	(a) An Indian tribe has jurisdiction exclusive as to any state over any child
114	114	custody proceeding involving an Indian child who resides or is domiciled within the
115	115	reservation of such tribe, except where such jurisdiction is otherwise vested in the state
116	116	by existing federal law. Where an Indian child is a ward of a tribal court, the Indian tribe
117	117	retains exclusive jurisdiction, notwithstanding the residence or domicile of the child.
118	118	(b) In any state court proceeding for the foster care placement of, or termination
119	119	of parental rights to, an Indian child not domiciled or residing within the reservation of the
120	120	Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer
121	121	such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon
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126	126	the petition of either parent or the Indian custodian or the Indian child's tribe; provided,
127	127	that such transfer is subject to declination by the tribal court of such tribe.
128	128	(c) In any state court proceeding for the foster care placement of, or termination
129	129	of parental rights to, an Indian child, the Indian custodian of the child and the Indian
130	130	child's tribe have a right to intervene at any point in the proceeding.
131	131	(d) The United States, every state, every territory or possession of the United
132	132	States, and every Indian tribe shall give full faith and credit to the public acts, records,
133	133	and judicial proceedings of any Indian tribe applicable to Indian child custody
134	134	proceedings to the same extent that such entities give full faith and credit to the public
135	135	acts, records, and judicial proceedings of any other entity.
136	136	37-2-704. Pending court proceedings.
137	137	(a) In any involuntary proceeding in a state court, where the court knows or has
138	138	reason to know that an Indian child is involved, the party seeking the foster care
139	139	placement of, or termination of parental rights to, an Indian child shall notify the parent or
140	140	Indian custodian and the Indian child's tribe, by registered mail with return receipt
141	141	requested, of the pending proceedings and of their right of intervention. If the identity or
142	142	location of the parent or Indian custodian and the tribe cannot be determined, such
143	143	notice must be given to the commissioner of children's services in like manner, who has
144	144	fifteen (15) days after receipt to provide the requisite notice to the parent or Indian
145	145	custodian and the tribe. A foster care placement or termination of parental rights
146	146	proceeding must not be held until at least ten (10) days after receipt of notice by the
147	147	parent or Indian custodian and the tribe or the commissioner; provided, that the parent or
148	148	Indian custodian or the tribe shall, upon request, be granted up to twenty (20) additional
149	149	days to prepare for such proceeding.
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154	154	(b) In any case in which the court determines indigency, the parent or Indian
155	155	custodian has the right to court-appointed counsel in any removal, placement, or
156	156	termination proceeding. The court may, in its discretion, appoint counsel for the child
157	157	upon a finding that such appointment is in the best interest of the child. Where state law
158	158	makes no provision for appointment of counsel in such proceedings, the court shall
159	159	promptly notify the commissioner upon appointment of counsel, and the commissioner,
160	160	upon certification of the presiding judge, shall pay reasonable fees and expenses out of
161	161	funds of the department.
162	162	(c) Each party to a foster care placement or termination of parental rights
163	163	proceeding under state law involving an Indian child has the right to examine all reports
164	164	or other documents filed with the court upon which any decision with respect to such
165	165	action may be based.
166	166	(d) Any party seeking to effect a foster care placement of, or termination of
167	167	parental rights to, an Indian child under state law shall satisfy the court that active efforts
168	168	have been made to provide remedial services and rehabilitative programs designed to
169	169	prevent the breakup of the Indian family and that these efforts have proved
170	170	unsuccessful.
171	171	(e) A court shall not order a foster care placement in such proceeding in the
172	172	absence of a determination, supported by clear and convincing evidence, including
173	173	testimony of qualified expert witnesses, that the continued custody of the child by the
174	174	parent or Indian custodian is likely to result in serious emotional or physical damage to
175	175	the child.
176	176	(f) A court shall not order a termination of parental rights in such proceeding in
177	177	the absence of a determination, supported by evidence beyond a reasonable doubt,
178	178	including testimony of qualified expert witnesses, that the continued custody of the child
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183	183	by the parent or Indian custodian is likely to result in serious emotional or physical
184	184	damage to the child.
185	185	37-2-705. Parental rights; voluntary termination.
186	186	(a) Where any parent or Indian custodian voluntarily consents to a foster care
187	187	placement or to termination of parental rights, such consent is not valid unless executed
188	188	in writing and recorded before a judge of a court of competent jurisdiction and
189	189	accompanied by the presiding judge's certificate that the terms and consequences of the
190	190	consent were fully explained in detail and were fully understood by the parent or Indian
191	191	custodian. The court shall also certify that either the parent or Indian custodian fully
192	192	understood the explanation in English or that it was interpreted into a language that the
193	193	parent or Indian custodian understood. Any consent given prior to, or within ten (10)
194	194	days after, birth of the Indian child is not valid.
195	195	(b) Any parent or Indian custodian may withdraw consent to a foster care
196	196	placement under state law at any time and, upon such withdrawal, the child must be
197	197	returned to the parent or Indian custodian.
198	198	(c) In any voluntary proceeding for termination of parental rights to, or adoptive
199	199	placement of, an Indian child, the consent of the parent may be withdrawn for any
200	200	reason at any time prior to the entry of a final decree of termination or adoption, as the
201	201	case may be, and the child must be returned to the parent.
202	202	(d) After the entry of a final decree of adoption of an Indian child in any state
203	203	court, the parent may withdraw consent thereto upon the grounds that consent was
204	204	obtained through fraud or duress and may petition the court to vacate such decree.
205	205	Upon a finding that such consent was obtained through fraud or duress, the court shall
206	206	vacate such decree and return the child to the parent. An adoption that has been
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211	211	effective for at least two (2) years must not be invalidated under this subsection (d)
212	212	unless otherwise permitted under state law.
213	213	37-2-706. Petition to court of competent jurisdiction to invalidate action upon
214	214	showing of certain violations.
215	215	Any Indian child who is the subject of any action for foster care placement or
216	216	termination of parental rights under state law, any parent or Indian custodian from whose
217	217	custody such child was removed, and the Indian child's tribe may petition any court of
218	218	competent jurisdiction to invalidate such action upon a showing that such action violated
219	219	§§ 37-2-703 – 37-2-705.
220	220	37-2-707. Placement of Indian children.
221	221	(a) In any adoptive placement of an Indian child under state law, a preference
222	222	must be given, in the absence of good cause to the contrary, to a placement with:
223	223	(1) A member of the child's extended family;
224	224	(2) Other members of the Indian child's tribe; or
225	225	(3) Other Indian families.
226	226	(b) Any child accepted for foster care or preadoptive placement must be placed
227	227	in the least restrictive setting that most approximates a family and in which the child's
228	228	special needs, if any, may be met. The child must also be placed within reasonable
229	229	proximity to the child's home, taking into account any special needs of the child. In any
230	230	foster care or preadoptive placement, a preference must be given, in the absence of
231	231	good cause to the contrary, to a placement with:
232	232	(1) A member of the Indian child's extended family;
233	233	(2) A foster home licensed, approved, or specified by the Indian child's
234	234	tribe;
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239	239	(3) An Indian foster home licensed or approved by an authorized non-
240	240	Indian licensing authority; or
241	241	(4) An institution for children approved by an Indian tribe or operated by
242	242	an Indian organization that has a program suitable to meet the Indian child's
243	243	needs.
244	244	(c) In the case of a placement under subsection (a) or (b), if the Indian child's
245	245	tribe shall establish a different order of preference by resolution, the agency or court
246	246	effecting the placement shall follow such order so long as the placement is the least
247	247	restrictive setting appropriate to the particular needs of the child, as provided in
248	248	subsection (b). Where appropriate, the preference of the Indian child or parent must be
249	249	considered; provided, that where a consenting parent evidences a desire for anonymity,
250	250	the court or agency shall give weight to such desire in applying the preferences.
251	251	(d) The standards to be applied in meeting the preference requirements of this
252	252	section must be the prevailing social and cultural standards of the Indian community in
253	253	which the parent or extended family resides or with which the parent or extended family
254	254	members maintain social and cultural ties.
255	255	(e) A record of each such placement, under state law, of an Indian child must be
256	256	maintained by the state in which the placement was made, evidencing the efforts to
257	257	comply with the order of preference specified in this section. Such record must be made
258	258	available at any time upon the request of the commissioner of children's services or the
259	259	Indian child's tribe.
260	260	37-2-708. Return of custody.
261	261	(a) Notwithstanding state law to the contrary, whenever a final decree of
262	262	adoption of an Indian child has been vacated or set aside or the adoptive parents
263	263	voluntarily consent to the termination of their parental rights to the child, a biological
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268	268	parent or prior Indian custodian may petition for return of custody and the court shall
269	269	grant such petition unless there is a showing, in a proceeding subject to § 37-2-704, that
270	270	such return of custody is not in the best interests of the child.
271	271	(b) Whenever an Indian child is removed from a foster care home or institution
272	272	for the purpose of further foster care, preadoptive, or adoptive placement, such
273	273	placement must be in accordance with this part, except in the case where an Indian child
274	274	is being returned to the parent or Indian custodian from whose custody the child was
275	275	originally removed.
276	276	37-2-709. Tribal affiliation information and other information for protection of
277	277	rights from tribal relationship; application of subject of adoptive placement; disclosure
278	278	by court.
279	279	Upon application by an Indian individual who has reached eighteen (18) years of
280	280	age and who was the subject of an adoptive placement, the court that entered the final
281	281	decree shall inform such individual of the tribal affiliation, if any, of the individual's
282	282	biological parents and provide such other information as may be necessary to protect
283	283	any rights flowing from the individual's tribal relationship.
284	284	37-2-710. Agreements between this state and Indian tribes.
285	285	(a) This state and Indian tribes are authorized to enter into agreements with
286	286	each other respecting care and custody of Indian children and jurisdiction over child
287	287	custody proceedings, including agreements that may provide for orderly transfer of
288	288	jurisdiction on a case-by-case basis and agreements that provide for concurrent
289	289	jurisdiction between the state and Indian tribes.
290	290	(b) Such agreements may be revoked by either party upon written notice of one
291	291	hundred eighty (180) days to the other party. Such revocation does not affect any action
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296	296	or proceeding over which a court has already assumed jurisdiction, unless the
297	297	agreement provides otherwise.
298	298	37-2-711. Improper removal of child from custody; declination of jurisdiction;
299	299	forthwith return of child: danger exception.
300	300	Where any petitioner in an Indian child custody proceeding before a state court
301	301	has improperly removed the child from custody of the parent or Indian custodian or has
302	302	improperly retained custody after a visit or other temporary relinquishment of custody,
303	303	the court shall decline jurisdiction over such petition and shall forthwith return the child to
304	304	the child's parent or Indian custodian unless returning the child to the parent or custodian
305	305	would subject the child to a substantial and immediate danger or threat of such danger.
306	306	37-2-712. Higher state or federal standard applicable to protect rights of parent or
307	307	Indian custodian of Indian child.
308	308	In any case where state or federal law applicable to a child custody proceeding
309	309	under state or federal law provides a higher standard of protection to the rights of the
310	310	parent or Indian custodian of an Indian child than the rights provided under this part, the
311	311	court shall apply the state or federal standard.
312	312	37-2-713. Emergency removal or placement of child; termination; appropriate
313	313	action.
314	314	This part does not prevent the emergency removal of an Indian child who is a
315	315	resident of or is domiciled on a reservation, but temporarily located off the reservation,
316	316	from the child's parent or Indian custodian or the emergency placement of such child in a
317	317	foster home or institution, under applicable state law, in order to prevent imminent
318	318	physical damage or harm to the child. The state authority, official, or agency involved
319	319	shall ensure that the emergency removal or placement terminates immediately when
320	320	such removal or placement is no longer necessary to prevent imminent physical damage
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325	325	or harm to the child and shall expeditiously initiate a child custody proceeding subject to
326	326	this part, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the
327	327	child to the parent or Indian custodian, as may be appropriate.
328	328	37-2-714. Information availability to and disclosure by commissioner.
329	329	(a) Any state court entering a final decree or order in any Indian child adoptive
330	330	placement after July 1, 2025, shall provide the commissioner of children's services with a
331	331	copy of such decree or order together with such other information as may be necessary
332	332	to show:
333	333	(1) The name and tribal affiliation of the child;
334	334	(2) The names and addresses of the biological parents;
335	335	(3) The names and addresses of the adoptive parents; and
336	336	(4) The identity of any agency having files or information relating to such
337	337	adoptive placement.
338	338	(b) Where the court records contain an affidavit of the biological parent or
339	339	parents that the parent's identity remain confidential, the court shall include such affidavit
340	340	with the other information. The commissioner shall ensure that the confidentiality of
341	341	such information is maintained and such information is not open for inspection by
342	342	members of the public.
343	343	(c) Upon the request of the adopted Indian child who is eighteen (18) years of
344	344	age or older, the adoptive or foster parents of an Indian child, or an Indian tribe, the
345	345	commissioner shall disclose such information as may be necessary for the enrollment of
346	346	an Indian child in the tribe in which the child may be eligible for enrollment or for
347	347	determining any rights or benefits associated with that membership. Where the
348	348	documents relating to such child contain an affidavit from the biological parent or parents
349	349	requesting anonymity, the commissioner shall certify to the Indian child's tribe, where the
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354	354	information warrants, that the child's parentage and other circumstances of birth entitle
355	355	the child to enrollment under the criteria established by such tribe.
356	356	37-2-715. Rules.
357	357	The commissioner of children's services is authorized to promulgate rules to
358	358	effectuate this part. The rules must be promulgated in accordance with the Uniform
359	359	Administrative Procedures Act, compiled in title 4, chapter 5.
360	360	37-2-716. Severability.
361	361	If any provision of this part or its application to any person or circumstance is
362	362	held invalid, then the invalidity does not affect other provisions or applications of the part
363	363	that can be given effect without the invalid provision or application, and to that end, the
364	364	provisions of this part are severable.
365	365	SECTION 2. The headings in this act are for reference purposes only and do not
366	366	constitute a part of the law enacted by this act. However, the Tennessee Code Commission is
367	367	requested to include the headings in any compilation or publication containing this act.
368	368	SECTION 3. This act takes effect July 1, 2025, the public welfare requiring it.