(a)
As used in this division, unless the context requires otherwise, the following definitions shall apply:
(1)
“Indian” means any person who is a member or citizen of an Indian tribe, as defined in paragraph (4), or who is an Alaska Native and a member or citizen of a Regional Corporation as defined in Section 1606 of Title 43 of the United States Code.
(2)
“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 temporary physical care, custody, and control
have been transferred by the parent of that child.
(3)
“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.
(4)
“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 Secretary of the Interior because of their status as Indians, including any Alaska Native village as defined in subdivision (c) of Section 1602 of Title 43 of the United States Code.
(5)
“Reservation” has the same meaning as “Indian country” as defined in Section 1151 of Title 18 of the
United States Code, and any lands that are not covered under Section 1151 and the 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.
(6)
“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.
(b)
As used in this division, the term “Indian child” means all of the
following:
(1)
Any unmarried person who is under 18 years of age and who is either of the following:
(A)
A member or citizen of an Indian tribe.
(B)
Eligible for membership or citizenship in an Indian tribe and is a biological child of a member or citizen of an Indian tribe.
(2)
As used in connection with an Indian child custody proceeding, as defined in subdivision (d), brought in a juvenile court, 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 or citizen of an Indian tribe or eligible for membership
or citizenship in an Indian tribe and is the biological child of a member or citizen of an Indian tribe, and who is under the jurisdiction of the juvenile 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,
as defined in subdivision (d), the following definitions shall apply:
(1)
“Extended family member” has the same meaning as defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached 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.
(2)
“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.
(d)
(1)
“Indian child custody proceeding” means a hearing other than an
emergency proceeding under Section 319, during a juvenile court proceeding brought under this code, including, but not limited to, any hearing pursuant to Section 366.26, or a proceeding under the Probate Code or the Family Code, involving an Indian child, 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, the home of a guardian or conservator, or anyone other than one of the child’s parents, as defined in paragraph (2) of subdivision (c), or the child’s Indian custodian, 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 includes placement in the home of a legal
guardian under the provisions of the Family Code, Probate Code, and the Welfare and Institutions Code. 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, or a tribal customary adoption as described in Section 366.24, 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 or citizenship of the child.
(B)
Length of past domicile or residence on or near the reservation of each tribe.
(C)
Tribal membership or citizenship 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 or citizen 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 or citizen continue to be valid.
(7)
A determination of the Indian child’s tribe for purposes of the federal Indian Child Welfare Act and pursuant to these provisions for purposes of an Indian child custody proceeding, as defined in subdivision (d), 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. When an agency knows a child is an Indian child or has reason to know a child is an Indian child as described in subdivision (d) of Section 224.2, active efforts shall start upon receipt of a referral regarding the Indian child or upon first contact with the Indian child or family, whichever is earlier. Whenever a county child welfare agency is required to make reasonable efforts or provide reasonable reunification services, in any case involving an Indian child, those efforts and services shall meet the standard of active efforts described in this subdivision. 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, including services offered pursuant to Chapter 7 (commencing with Section 16585) of Part 4 of Division 9 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 regarding possible placements and 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 paragraph (1) of subdivision (a).
(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, as defined in subdivision (d), that is not an involuntary proceeding, where both parents have,
or the Indian custodian has, of their free will, without a threat of removal by a state agency, consented to the placement of 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.) and as described by Section 10553.12. 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.