(a) As used in this division, unless the context requires otherwise, the terms “Indian,” “Indian child,” “Indian custodian,” “Indian tribe,” “reservation,” and “tribal court” shall be defined as provided in Section 1903 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(b) As used in connection with an Indian child custody proceeding, the term “Indian child” also means an unmarried person who is 18 years of age or over, but under 21 years of age, who is a member of an Indian tribe or eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe, and who is under the jurisdiction of the dependency court, unless that person or their attorney elects not to be considered an Indian child for purposes of the Indian child custody proceeding. All Indian child custody proceedings involving persons 18 years of age and older shall be conducted in a manner that respects the person’s status as a legal adult.
(c) As used in connection with an Indian child custody proceeding, the terms “extended family member” and “parent” shall be defined as provided in Section 1903 of the federal Indian Child Welfare Act.
(d) (1) “Indian child custody proceeding” means a hearing during a juvenile court proceeding brought under this code, or a proceeding under the Probate Code or the Family Code, involving an Indian child, other than an emergency proceeding under Section 319, that may culminate in one of the following outcomes:
(A) Foster care placement, which includes removal of an Indian child from their parent, parents, or Indian custodian for placement in a foster home, institution, or the home of a guardian or conservator, in which the parent or Indian custodian may not have the child returned upon demand, but in which parental rights have not been terminated. Foster care placement does not include an emergency placement of an Indian child pursuant to Section 309, as long as the emergency proceeding requirements set forth in Section 319 are met.
(B) Termination of parental rights, which includes any action involving an Indian child resulting in the termination of the parent-child relationship.
(C) Preadoptive placement, which includes 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.
(D) Adoptive placement, which includes the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption.
(E) If a child is placed in foster care or another out-of-home placement as a result of a status offense, that status offense proceeding is considered an Indian child custody proceeding.
(2) “Indian child custody proceeding” does not include a voluntary foster care or guardianship placement if the parent or Indian custodian retains the right to have the child returned upon demand.
(e) (1) “Indian child’s tribe” means the Indian tribe in which an Indian child is a member or citizen or eligible for membership or citizenship, or in the case of an Indian child who is a member or citizen of, or eligible for membership or citizenship in, more than one tribe, the Indian tribe with which the Indian child has the more significant contacts.
(2) In the case of an Indian child who meets the definition of “Indian child” through more than one tribe, deference should be given to the tribe of which the Indian child is already a member or citizen, unless otherwise agreed to by the tribes.
(3) If an Indian child meets the definition of “Indian child” through more than one tribe because the child is a member or citizen of more than one tribe or the child is not a member or citizen but is eligible for membership or citizenship in more than one tribe, the court shall provide the tribes the opportunity to determine which tribe shall be designated as the Indian child’s tribe.
(4) If the tribes are able to reach an agreement, the agreed-upon tribe shall be designated as the Indian child’s tribe.
(5) If the tribes are unable to reach an agreement, the court shall designate as the Indian child’s tribe, the tribe with which the Indian child has the more significant contacts, taking into consideration all of the following:
(A) Preference of the parents for membership of the child.
(B) Length of past domicile or residence on or near the reservation of each tribe.
(C) Tribal membership of the child’s custodial parent or Indian custodian.
(D) Interest asserted by each tribe in the child custody proceeding.
(E) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes.
(F) Self-identification by the child, if the child is of sufficient age and capacity to meaningfully self-identify.
(6) If an Indian child becomes a member of a tribe other than the one designated by the court as the Indian child’s tribe under paragraph (5), actions taken based on the court’s determination prior to the child’s becoming a tribal member continue to be valid.
(7) A determination of the Indian child’s tribe for purposes of the federal Indian Child Welfare Act does not constitute a determination for any other purpose.
(f) “Active efforts” means affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with their family. If an agency is involved in an Indian child custody proceeding, active efforts shall involve assisting the parent, parents, or Indian custodian through the steps of a case plan and with accessing or developing the resources necessary to satisfy the case plan. To the maximum extent possible, active efforts shall be provided in a manner consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe and shall be conducted in partnership with the Indian child and the Indian child’s parents, extended family members, Indian custodians, and tribe. Active efforts shall be tailored to the facts and circumstances of the case and may include, but are not limited to, any of the following:
(1) Conducting a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal.
(2) Identifying appropriate services and helping the parents overcome barriers, including actively assisting the parents in obtaining those services.
(3) 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.
(4) Conducting or causing to be conducted 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.
(5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s tribe.
(6) Taking steps to keep siblings together whenever possible.
(7) 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 child.
(8) Identifying community resources, including housing, financial assistance, transportation, mental health and substance abuse services, and peer support services, and actively assisting the Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources.
(9) Monitoring progress and participation in services.
(10) Considering alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available.
(11) Providing postreunification services and monitoring.
(g) “Assistant Secretary” means the Assistant Secretary of the Bureau of Indian Affairs.
(h) “Bureau of Indian Affairs” means the Bureau of Indian Affairs of the Department of the Interior.
(i) “Continued custody” means physical custody or legal custody or both, under any applicable tribal law or tribal custom or state law, that a parent or Indian custodian already has or had at any time in the past. The biological mother of an Indian child is deemed to have had custody of the Indian child.
(j) “Custody” means physical custody or legal custody or both, under any applicable tribal law or tribal custom or state law.
(k) “Domicile” means either of the following:
(1) For a parent, Indian custodian, or legal guardian, the place that a person has been physically present and that the person regards as home. This includes a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain indefinitely even though the person may be currently residing elsewhere.
(2) For an Indian child, the domicile of the Indian child’s parents, Indian custodian, or legal guardian. In the case of an Indian child whose parents are not married to each other, the domicile of the Indian child means the domicile of the Indian child’s custodial parent.
(l) “Emergency proceeding” for purposes of juvenile dependency proceedings is the initial petition hearing held pursuant to Section 319.
(m) “Indian foster home” means a foster home where one or more of the licensed or approved foster parents is an Indian as defined in Section 3 of the federal Indian Child Welfare Act of 1978.
(n) “Involuntary proceeding” means an Indian child custody proceeding in which the parent does not consent of their free will to the foster care, preadoptive, or adoptive placement, or termination of parental rights. “Involuntary proceeding” also means an Indian child custody proceeding in which the parent consents to the foster care, preadoptive, or adoptive placement, under threat of removal of the child by a state court or agency.
(o) “Status offense” means an offense that would not be considered criminal if committed by an adult, including, but not limited to, school truancy and incorrigibility.
(p) “Upon demand” means, in the case of an Indian child, the parent or Indian custodian may regain physical custody during a voluntary proceeding simply upon verbal request, without any delay, formalities, or contingencies.
(q) “Voluntary proceeding” means an Indian child custody proceeding that is not an involuntary proceeding, including, but not limited to, a proceeding for foster care, preadoptive or adoptive placement that either parent, both parents, or the Indian custodian has, of their free will, without a threat of removal by a state agency, consented to for the Indian child, or a proceeding for voluntary termination of parental rights.
(r) “Tribally approved home” means a home that has been licensed or approved by an Indian child’s tribe, or a tribe or tribal organization designated by the Indian child’s tribe, for foster care or adoptive placement of an Indian child using standards established by the child’s tribe pursuant to Section 1915 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). A tribally approved home is not required to be licensed or approved by the state or county and is equivalent to a state-licensed or county-licensed or approved home, including an approved resource family home. Background check requirements for foster care or adoptive placement as required by Sections 1522 and 1522.1 of the Health and Safety Code shall apply to a tribally approved home.
(Amended by Stats. 2019, Ch. 27, Sec. 17. (SB 80) Effective June 27, 2019.)