SB 485

This bill 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 fr om 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. TRIBE JURISDICTION OVER INDIAN CHILD CUSTODY PROCEEDINGS This bill provides the following:  That 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.  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, must transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe as long as such transfer is subject to declination by the tribal court of such tribe.  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.  The United States, every state, every territory or possession of the United States, and every Indian tribe must 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. PENDING COURT PROCEEDINGS In any involuntary proceeding in a state court, where the court knows or has reason to know that an Indian child is involved, this bill requires the party seeking the foster care placement of, or termination of parental rights to, an Indian child to noti fy 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 c an not be determined, such notice must be given to the commissioner of children's services in like manner, who has 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 10 days after receipt of notice by the parent or Indian custodian and the tribe or the commissioner as long as the parent or Indian custodian or the tribe must, upon request, be granted up to 2 0 additional days to prepare for such proceeding. In any case in which the court determines indigency, this bill provides that 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 must promptly notify the commissioner upon appointment of counsel, and t he commissioner, upon certification of the presiding judge, must pay reasonable fees and expenses out of funds of the department. This bill requires any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under state law to satisfy the court that active efforts have been made to provide remedial services and rehabilitative progra ms designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. A court must not order a foster care placement in such proceeding in the absence of a determination, supported by clear and convincing evidence, incl ud ing 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. Additionally, a court must not order a termination of parenta l 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 by the parent or Indian custodian is likely to resul t in serious emotional or physical damage to the child. PARENTAL RIGHTS – VOLUNTARY TERMINATION Where any parent or Indian custodian voluntarily consents to a foster care placement or to termination of parental rights, this bill clarifies that such consent is not valid unless executed in writing and recorded before a judge of a court of competent j urisdiction 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 must also certify that either the parent o r 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 10 days after, birth of the Indian child is not valid. This bill authorizes any parent or Indian custodian to 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. In any voluntary proceeding for termi nation 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 retur ne d to the parent. After the entry of a final decree of adoption of an Indian child in any state court, this bill authorizes the parent to 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 must vacate such decree and return the child to the parent. An adoption that has been effective for at least two years must not be invalidated unless otherwise perm it ted under state law. PETITION TO INVALIDATE ACTION This bill authorizes an Indian child who is the subject of any action for foster care placement or termination of parental rights under state law, a parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe to pet ition any court of competent jurisdiction to invalidate such action upon a showing that such action violated this bill. PLACEMENT OF INDIAN CHILDREN This bill requires, in any adoptive placement of an Indian child under state law, a preference be given, in the absence of good cause to the contrary, to a placement with (i) a member of the child's extended family; (ii) other members of the Indian child 's tribe; or (iii) other Indian families. 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 m us t 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 wi th any of the following:  A member of the Indian child's extended family  A foster home licensed, approved, or specified by the Indian child's tribe  An Indian foster home licensed or approved by an authorized non-Indian licensing authority  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 Generally, if the Indian child's tribe establishes a different order of preference by resolution, this bill requires the agency or court effecting the placement to follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child. Where appropriate, the preference of the Indian child or parent must be considered as long as, where a consenting parent evidences a desire for anonymity, the court or agency must give weight to such desire in applying t he preferences. The standards to be applied in meeting the preference requirements 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 mem bers maintain social and cultural ties. This bill requires a record of each such placement, under state law, of an Indian child to be maintained by the state in which the placement was made, evidencing the efforts to comply with the order of preference specified in this bill. 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. RETURN OF CUSTODY 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, this bill authorizes a biological parent or prior Indian custodian to petition for return of custody and the court must grant such petition unless there is a showing that such return of custody is not in the best interests of the child. Whenever an Indian child is removed from a foster care home or institution for the purpose of further foster care, preadoptive, or adoptive placement, this bill requires such placement to be in accordance with this bill, except in the case where an India n child is being returned to the parent or Indian custodian from whose custody the child was originally removed. ADOPTIVE PLACEMENT Upon application by an Indian individual who has reached 18 and who was the subject of an adoptive placement, the court that entered the final decree must inform such individual of the tribal affiliation, if any, of the individual's biological parents an d provide such other information as may be necessary to protect any rights flowing from the individual's tribal relationship. AGREEMENTS BETWEEN THIS STATE AND INDIAN TRIBES This bill authorizes this state and Indian tribes 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 juris diction on a case-by-case basis and agreements that provide for concurrent jurisdiction between the state and Indian tribes. Such agreements may be revoked by either party upon written notice of 180 days to the other party. However, such revocation does n ot affect any action or proceeding over which a court has already assumed jurisdiction, unless the agreement provides otherwise. RETURN OF THE CHILD 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, this bill requires the court to decline jurisdiction over such petition and must 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 immed ia te danger or threat of such danger. APPLICATION OF STATE OR FEDERAL STANDARDS 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 par t, this bill requires the court to apply the state or federal standard. EMERGENCY REMOVAL OR PLACEMENT This bill 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 preven t imminent physical damage or harm to the child. The state authority, official, or agency involved must ensure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physic al damage or harm to the child and must 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 appropr iate. INFORMATION TO AND DISCLOSURE BY COMMISSIONER This bill requires any state court entering a final decree or order in any Indian child adoptive placement after July 1, 2025, to 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 all of the following:  The name and tribal affiliation of the child  The names and addresses of the biological parents  The names and addresses of the adoptive parents  The identity of any agency having files or information relating to such adoptive placement. Where the court records contain an affidavit of the biological parent or parents that the parent's identity remain confidential, this bill requires the court to include such affidavit with the other information. The commissioner must ensure that the con fidentiality of such information is maintained and such information is not open for inspection by members of the public. Upon the request of the adopted Indian child who is 18 or older, the adoptive or foster parents of an Indian child, or an Indian tribe, this bill requires the commissioner to disclose such information as may be necessary for the enrollment of an Indian c hild 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 requestin g anonymity, the commissioner must certify to the Indian child's tribe, where the information warrants, that the child's parentage and other circumstances of birth entitle the child to enrollment under the criteria established by such tribe. RULEMAKING This bill authorizes the commissioner of children's services to promulgate rules to effectuate this bill. ON MARCH 26, 2026, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 485, AS AMENDED. AMENDMENT #1 makes the following revisions:  Removes the provision that provides that where state law makes no provision for appointment of counsel in such proceedings, the court must promptly notify the commissioner upon appointment of counsel, and the commissioner, upon certification of the presiding judge, must pay reasonable fees and expenses out of funds of the department.  Removes the provision that provides that i n 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 the bill , the court must apply the state or federal standard.  C hanges effective date from July 1, 2025, to, instead, the 30 th day following the occurrence of either : (i) the federal Indian Child Welfare Act is repealed by the United States congress; or (ii) the United States supreme court overturns, in whole or in part, the federal Indian Child Welfare Act. Upon such an occurrence, the attorney general must notify, in writing, the executive secretary of the Tennessee Code Commission of such occurrence and what date the 30 th day would be.