<BillNo> <Sponsor>
SENATE BILL 485
By Bowling
SB0485
000050
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AN ACT to amend Tennessee Code Annotated, Title 36
and Title 37, relative to Indian child welfare.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Title 37, Chapter 2, is amended by adding
the following new part:
37-2-701. Part definitions.
As used in this part:
(1) "Adoptive placement" means the permanent placement of an Indian
child for adoption, including any action resulting in a final decree of adoption, but
does not include a placement based upon an act which, if committed by an adult,
would be deemed a crime or upon an award, in a divorce proceeding, of custody
to one (1) of the parents;
(2) "Child custody proceeding" means and includes foster care
placement, termination of parental rights, preadoptive placement, and adoptive
placement;
(3) "Commissioner" means the commissioner of children's services;
(4) "Extended family member" means:
(A) As defined by the law or custom of the Indian child's tribe; or
(B) In the absence of such law or custom described in subdivision
(4)(A), a person who has reached eighteen (18) years of age 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;
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(5) "Foster care placement":
(A) Means any action removing an Indian child from the child's
parent or Indian custodian for temporary placement in a foster home or
institution or the home of a guardian or conservator where the parent or
Indian custodian cannot have the child returned upon demand, but where
parental rights have not been terminated; and
(B) Does not include a placement based upon an act which, if
committed by an adult, would be deemed a crime or upon an award, in a
divorce proceeding, of custody to one (1) of the parents;
(6) "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 43
U.S.C. § 1606;
(7) "Indian child" means any unmarried person who is under eighteen
(18) years of age and is either:
(A) A member of an Indian tribe; or
(B) Eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe;
(8) "Indian child's tribe" means:
(A) The Indian tribe in which an Indian child is a member or
eligible for membership; or
(B) In the case of an Indian child who is a member of or eligible
for membership in more than one (1) tribe, the Indian tribe with which the
Indian child has the more significant contacts;
(9) "Indian custodian" means any Indian person who has legal custody of
an Indian child under tribal law or custom or under state law or to whom
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temporary physical care, custody, and control has been transferred by the parent
of such child;
(10) "Indian organization" means any group, association, partnership,
corporation, or other legal entity owned or controlled by Indians, or a majority of
whose members are Indians;
(11) "Indian tribe" means any Indian tribe, band, nation, or other
organized group or community of Indians recognized as eligible for the services
provided to Indians by the United States secretary of the interior because of their
status as Indians, including any Alaska Native village as defined in 43 U.S.C. §
1602(c);
(12) "Parent" means any biological parent or parents of an Indian child or
any Indian person who has lawfully adopted an Indian child, including adoptions
under tribal law or custom, but does not include the unwed father where paternity
has not been acknowledged or established;
(13) "Preadoptive placement" 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, but does not include a placement
based upon an act which, if committed by an adult, would be deemed a crime or
upon an award, in a divorce proceeding, of custody to one (1) of the parents;
(14) "Reservation" means Indian country as defined in 18 U.S.C. § 1151
and any lands, not covered under such section, title to which is either held by the
United States in trust for the benefit of any Indian tribe or individual or held by
any Indian tribe or individual subject to a restriction by the United States against
alienation;
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(15) "Termination of parental rights" means any action resulting in the
termination of the parent-child relationship but does not include a placement
based upon an act which, if committed by an adult, would be deemed a crime or
upon an award, in a divorce proceeding, of custody to one (1) of the parents; and
(16) "Tribal court" means a court with jurisdiction over child custody
proceedings and that is either a Court of Indian Offenses, a court established and
operated under the code or custom of an Indian tribe, or any other administrative
body of a tribe that is vested with authority over child custody proceedings.
37-2-702. Declaration of policy.
The general assembly declares that it is the policy of this state to protect the best
interests of Indian children and to promote the stability and security of Indian tribes and
families by the establishment of minimum standards for the removal of Indian children
from their families and the placement of such children in foster or adoptive homes that
will reflect the unique values of Indian culture, and by providing for assistance to Indian
tribes in the operation of child and family service programs.
37-2-703. Indian tribe jurisdiction over Indian child custody proceedings.
(a) An Indian tribe has jurisdiction exclusive as to any state over any child
custody proceeding involving an Indian child who resides or is domiciled within the
reservation of such tribe, except where such jurisdiction is otherwise vested in the state
by existing federal law. Where an Indian child is a ward of a tribal court, the Indian tribe
retains exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) 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
such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon
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the petition of either parent or the Indian custodian or the Indian child's tribe; provided,
that such transfer is subject to declination by the tribal court of such tribe.
(c) 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 have a right to intervene at any point in the proceeding.
(d) The United States, every state, every territory or possession of the United
States, and every Indian tribe 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 such entities give full faith and credit to the public
acts, records, and judicial proceedings of any other entity.
37-2-704. Pending court proceedings.
(a) In any involuntary proceeding in a state court, where 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 mail with return receipt
requested, of the pending proceedings and of their right of intervention. If the identity or
location of the parent or Indian custodian and the tribe cannot be determined, such
notice must be given to the commissioner of children's services in like manner, who has
fifteen (15) days after receipt to provide the requisite notice to the parent or Indian
custodian and the tribe. A foster care placement or termination of parental rights
proceeding must not be held until at least ten (10) days after receipt of notice by the
parent or Indian custodian and the tribe or the commissioner; provided, that the parent or
Indian custodian or the tribe shall, upon request, be granted up to twenty (20) additional
days to prepare for such proceeding.
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(b) In any case in which the court determines indigency, the 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 the child
upon a finding that such appointment is in the best interest of the child. Where state law
makes no provision for appointment of counsel in such proceedings, the court shall
promptly notify the commissioner upon appointment of counsel, and the commissioner,
upon certification of the presiding judge, shall pay reasonable fees and expenses out of
funds of the department.
(c) Each party to a foster care placement or termination of parental rights
proceeding under state law involving an Indian child has the right to examine all reports
or other documents filed with the court upon which any decision with respect to such
action may be based.
(d) Any party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under state law shall satisfy the court that active efforts
have been made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts have proved
unsuccessful.
(e) A court shall not order a foster care placement in such proceeding in the
absence of a determination, supported by clear and convincing evidence, including
testimony of qualified expert witnesses, that the continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or physical damage to
the child.
(f) A court shall not order a termination of parental rights in such proceeding in
the absence of a determination, supported by evidence beyond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody of the child
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by the parent or Indian custodian is likely to result in serious emotional or physical
damage to the child.
37-2-705. Parental rights; voluntary termination.
(a) Where any parent or Indian custodian voluntarily consents to a foster care
placement or to termination of parental rights, such consent is not valid unless executed
in writing and recorded before a judge of a court of competent jurisdiction and
accompanied by the presiding judge's certificate that the terms and consequences of the
consent were fully explained in detail and were fully understood by the parent or Indian
custodian. The court shall also certify that either the parent or Indian custodian fully
understood the explanation in English or that it was interpreted into a language that the
parent or Indian custodian understood. Any consent given prior to, or within ten (10)
days after, birth of the Indian child is not valid.
(b) Any parent or Indian custodian may withdraw consent to a foster care
placement under state law at any time and, upon such withdrawal, the child must be
returned to the parent or Indian custodian.
(c) In any voluntary proceeding for termination of parental rights to, or adoptive
placement of, an Indian child, the consent of the parent may be withdrawn for any
reason at any time prior to the entry of a final decree of termination or adoption, as the
case may be, and the child must be returned to the parent.
(d) After the entry of a final decree of adoption of an Indian child in any state
court, the parent may withdraw consent thereto upon the grounds that consent was
obtained through fraud or duress and may petition the court to vacate such decree.
Upon a finding that such consent was obtained through fraud or duress, the court shall
vacate such decree and return the child to the parent. An adoption that has been
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effective for at least two (2) years must not be invalidated under this subsection (d)
unless otherwise permitted under state law.
37-2-706. Petition to court of competent jurisdiction to invalidate action upon
showing of certain violations.
Any Indian child who is the subject of any action for foster care placement or
termination of parental rights under state law, any parent or Indian custodian from whose
custody such child was removed, and the Indian child's tribe may petition any court of
competent jurisdiction to invalidate such action upon a showing that such action violated
§§ 37-2-703 – 37-2-705.
37-2-707. Placement of Indian children.
(a) In any adoptive placement of an Indian child under state law, a preference
must be given, in the absence of good cause to the contrary, to a placement with:
(1) A member of the child's extended family;
(2) Other members of the Indian child's tribe; or
(3) Other Indian families.
(b) Any child accepted for foster care or preadoptive placement must be placed
in the least restrictive setting that most approximates a family and in which the child's
special needs, if any, may be met. The child must also be placed within reasonable
proximity to the child's home, taking into account any special needs of the child. In any
foster care or preadoptive placement, a preference must be given, in the absence of
good cause to the contrary, to a placement with:
(1) A member of the Indian child's extended family;
(2) A foster home licensed, approved, or specified by the Indian child's
tribe;
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(3) An Indian foster home licensed or approved by an authorized non-
Indian licensing authority; or
(4) An institution for children approved by an Indian tribe or operated by
an Indian organization that has a program suitable to meet the Indian child's
needs.
(c) In the case of a placement under subsection (a) or (b), if the Indian child's
tribe shall establish a different order of preference by resolution, the agency or court
effecting the placement shall follow such order so long as the placement is the least
restrictive setting appropriate to the particular needs of the child, as provided in
subsection (b). Where appropriate, the preference of the Indian child or parent must be
considered; provided, that where a consenting parent evidences a desire for anonymity,
the court or agency shall give weight to such desire in applying the preferences.
(d) The standards to be applied in meeting the preference requirements of this
section must be the prevailing social and cultural standards of the Indian community in
which the parent or extended family resides or with which the parent or extended family
members maintain social and cultural ties.
(e) A record of each such placement, under state law, of an Indian child must be
maintained by the state in which the placement was made, evidencing the efforts to
comply with the order of preference specified in this section. Such record must be made
available at any time upon the request of the commissioner of children's services or the
Indian child's tribe.
37-2-708. Return of custody.
(a) Notwithstanding state law to the contrary, whenever a final decree of
adoption of an Indian child has been vacated or set aside or the adoptive parents
voluntarily consent to the termination of their parental rights to the child, a biological
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parent or prior Indian custodian may petition for return of custody and the court shall
grant such petition unless there is a showing, in a proceeding subject to § 37-2-704, that
such return of custody is not in the best interests of the child.
(b) Whenever an Indian child is removed from a foster care home or institution
for the purpose of further foster care, preadoptive, or adoptive placement, such
placement must be in accordance with this part, except in the case where an Indian child
is being returned to the parent or Indian custodian from whose custody the child was
originally removed.
37-2-709. Tribal affiliation information and other information for protection of
rights from tribal relationship; application of subject of adoptive placement; disclosure
by court.
Upon application by an Indian individual who has reached eighteen (18) years of
age and who was the subject of an adoptive placement, the court that entered the final
decree shall inform such individual of the tribal affiliation, if any, of the individual's
biological parents and provide such other information as may be necessary to protect
any rights flowing from the individual's tribal relationship.
37-2-710. Agreements between this state and Indian tribes.
(a) This state and Indian tribes are authorized to enter into agreements with
each other respecting care and custody of Indian children and jurisdiction over child
custody proceedings, including agreements that may provide for orderly transfer of
jurisdiction on a case-by-case basis and agreements that provide for concurrent
jurisdiction between the state and Indian tribes.
(b) Such agreements may be revoked by either party upon written notice of one
hundred eighty (180) days to the other party. Such revocation does not affect any action
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or proceeding over which a court has already assumed jurisdiction, unless the
agreement provides otherwise.
37-2-711. Improper removal of child from custody; declination of jurisdiction;
forthwith return of child: danger exception.
Where any petitioner in an Indian child custody proceeding before a state court
has improperly removed the child from custody of the parent or Indian custodian or has
improperly retained custody after a visit or other temporary relinquishment of custody,
the court shall decline jurisdiction over such petition and shall forthwith return the child to
the child's parent or Indian custodian unless returning the child to the parent or custodian
would subject the child to a substantial and immediate danger or threat of such danger.
37-2-712. Higher state or federal standard applicable to protect rights of parent or
Indian custodian of Indian child.
In any case where state or federal law applicable to a child custody proceeding
under state or federal law provides a higher standard of protection to the rights of the
parent or Indian custodian of an Indian child than the rights provided under this part, the
court shall apply the state or federal standard.
37-2-713. Emergency removal or placement of child; termination; appropriate
action.
This part does not prevent the emergency removal of an Indian child who is a
resident of or is domiciled on a reservation, but temporarily located off the reservation,
from the child's parent or Indian custodian or the emergency placement of such child in a
foster home or institution, under applicable state law, in order to prevent imminent
physical damage or harm to the child. The state authority, official, or agency involved
shall ensure that the emergency removal or placement terminates immediately when
such removal or placement is no longer necessary to prevent imminent physical damage
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or harm to the child and shall expeditiously initiate a child custody proceeding subject to
this part, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the
child to the parent or Indian custodian, as may be appropriate.
37-2-714. Information availability to and disclosure by commissioner.
(a) Any state court entering a final decree or order in any Indian child adoptive
placement after July 1, 2025, shall provide the commissioner of children's services with a
copy of such decree or order together with such other information as may be necessary
to show:
(1) The name and tribal affiliation of the child;
(2) The names and addresses of the biological parents;
(3) The names and addresses of the adoptive parents; and
(4) The identity of any agency having files or information relating to such
adoptive placement.
(b) Where the court records contain an affidavit of the biological parent or
parents that the parent's identity remain confidential, the court shall include such affidavit
with the other information. The commissioner shall ensure that the confidentiality of
such information is maintained and such information is not open for inspection by
members of the public.
(c) Upon the request of the adopted Indian child who is eighteen (18) years of
age or older, the adoptive or foster parents of an Indian child, or an Indian tribe, the
commissioner shall disclose such information as may be necessary for the enrollment of
an Indian child in the tribe in which the child may be eligible for enrollment or for
determining any rights or benefits associated with that membership. Where the
documents relating to such child contain an affidavit from the biological parent or parents
requesting anonymity, the commissioner shall certify to the Indian child's tribe, where the
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information warrants, that the child's parentage and other circumstances of birth entitle
the child to enrollment under the criteria established by such tribe.
37-2-715. Rules.
The commissioner of children's services is authorized to promulgate rules to
effectuate this part. The rules must be promulgated in accordance with the Uniform
Administrative Procedures Act, compiled in title 4, chapter 5.
37-2-716. Severability.
If any provision of this part or its application to any person or circumstance is
held invalid, then the invalidity does not affect other provisions or applications of the part
that can be given effect without the invalid provision or application, and to that end, the
provisions of this part are severable.
SECTION 2. The headings in this act are for reference purposes only and do not
constitute a part of the law enacted by this act. However, the Tennessee Code Commission is
requested to include the headings in any compilation or publication containing this act.
SECTION 3. This act takes effect July 1, 2025, the public welfare requiring it.