My kids father wants to terminate his parental rights but they are half Indian and tribally enrolled
Full Question:
Answer:
The following are Oklahoma statutes:
Rule 8.2. Decrees, Orders or Judgments Affecting Indian Children
— Compliance with Certain Laws.
All decrees of adoption, divorce or separate maintenance where custody
of a minor Indian child or children is given to a third party, all orders
of adjudication in juvenile proceedings, termination of parental rights
and all final orders in Habeas Corpus and guardianship of the person
proceedings resulting in the adjudication of status, custody or wardship
of minor children, shall contain a finding of compliance with
25 U.S.C.A. 1901 et seq. (Indian Child Welfare Act of 1978), 10 O.S.
1601[10-1601] et seq. (Uniform Child Custody Jurisdiction Act).
The trial court shall in all such proceedings make findings of fact as
to the child's correct, full legal name and date of birth and all
instruments memorializing such decrees, orders and judgments as required
by 12 O.S. 32.2 1083 shall recite the findings required hereby.
§ 10-40.2. Definitions.
For the purposes of the Oklahoma Indian Child Welfare Act:
1. "Indian" means a person who is a member of an Indian tribe;
2. "Indian child" means any unmarried or unemancipated person who
is under the age of eighteen (18) and is either:
a. a member of an Indian tribe, or
b. is eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe;
3. "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 has been transferred by the
parent of such child; and
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.
§ 10-40.3. Application of Act — Exemptions — Determination of Indian
Status.
A. The Oklahoma Indian Child Welfare Act, in accordance with the
federal Indian Child Welfare Act, applies to all child custody
proceedings involving any Indian child except the following:
1. A child custody proceeding arising from a divorce proceeding;
or
2. A child custody proceeding arising from an adjudication of
delinquency, unless there has been a request for termination of parental
rights.
B. Except as provided for in subsection A of this section, the Oklahoma
Indian Child Welfare Act applies to all state voluntary and involuntary
child custody court proceedings involving Indian children, regardless of
whether or not the children involved are in the physical or legal custody
of an Indian parent or Indian custodian at the time state proceedings are
initiated.
C. The court shall seek a determination of the Indian status of the
child in accordance with the preceding standard in the following
circumstances:
1. The court has been informed by an interested party, an officer of
the court, a tribe, an Indian organization or a public or private agency
that the child is Indian; or
2. The child who is the subject of the proceeding gives the court
reason to believe he is an Indian child; or
3. The court has reason to believe the residence or domicile of
the child is a predominantly Indian community.
D. The court shall seek verification of the Indian status of the child
from the Indian tribe or the Bureau of Indian Affairs. A determination of
membership by an Indian tribe shall be conclusive. A determination of
membership by the Bureau of Indian Affairs shall be conclusive in the
absence of a contrary determination by the Indian tribe.
E. The determination of the Indian status of a child shall be made as
soon as practicable in order to ensure compliance with the notice
requirements of Section 40.4[10-40.4] of this title.
25 U.S.C. § 1913. Parental rights; voluntary termination
(a) Consent; record; certification matters; invalid consents
Where any parent or Indian custodian voluntarily consents to a foster
care placement or to termination of parental rights, such consent shall
not be 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 days after, birth
of the Indian child shall not be valid.
(b) Foster care placement; withdrawal of consent
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 shall be returned to the parent or Indian custodian.
(c) Voluntary termination of parental rights or adoptive placement;
withdrawal of consent; return of custody
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 shall be returned to the parent.
(d) Collateral attack; vacation of decree and return of custody;
limitations
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. No adoption
which has been effective for at least two years may be invalidated
under the provisions of this subsection unless otherwise permitted
under State law.
(Pub.L. 95-608, title I, Sec. 103, Nov. 8, 1978, 92 Stat. 3072.)
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1914 of this title.
