2024 -- S 2680

========

LC005486

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2024

____________

A N   A C T

RELATING TO DOMESTIC RELATIONS -- THE RHODE ISLAND INDIAN CHILD

WELFARE ACT

     Introduced By: Senators DiPalma, and Gu

     Date Introduced: March 01, 2024

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Legislative finding and declaration of policy.

     1. Finding. The Legislature finds and declares that membership, citizenship, or nationality

in an Indian tribe, as well as eligibility for membership, citizenship, or nationality in an Indian tribe,

as determined by each Indian tribe, is a political classification.

     2. Declaration of policy. The purpose of the Rhode Island Indian Child Welfare Act is for

the State to acknowledge that Indian tribes have a continuing and compelling governmental interest

in an Indian child whether or not the Indian child is in the physical or legal custody of an Indian

parent, Indian family, or an Indian custodian at the commencement of an Indian child custody

proceeding and whether or not the Indian child resides or is domiciled on an Indian reservation.

Whenever such placement is necessary or ordered, the State shall protect the essential tribal

relations and best interests of every Indian child by promoting practices in accordance with all laws

applicable to preventing the voluntary or involuntary out-of-home placement of Indian children.

The State shall also place every Indian child, whenever possible, in a placement that reflects the

unique values of the Indian child's tribal culture and that best assists the Indian child in establishing,

developing and maintaining a political, cultural, and social relationship with the Indian child's

Indian tribe and tribal community. To ensure that the intent and provisions of this Chapter are

enforced, the State shall cooperate fully with the Indian tribes and Indians inhabiting the State and

elsewhere.

     SECTION 2. Title 15 of the General Laws entitled “Domestic Relations” is hereby

amended by adding thereto the following chapter:

CHAPTER 15-31

THE RHODE ISLAND INDIAN CHILD WELFARE ACT

     15-31-1. Short title.

     This chapter may be known and cited as "The Rhode Island Indian Child Welfare Act."

     15-31-2. Definitions.

     As used in this chapter, unless the context otherwise indicates, the following terms have

the following meanings:

     (1) "Active efforts" means active, affirmative, appropriate, beneficial, necessary, thorough,

and timely efforts tailored to the facts and circumstances of every individual case and with intent

to maintain or reunite an Indian child with that Indian child's family. When the state is involved in

any Indian child custody proceeding, active efforts shall include assisting the Indian family, Indian

parent, or Indian custodian through the steps of a case plan and assisting the Indian family, Indian

parent, or Indian custodian with accessing and developing the resources necessary to satisfy the

case plan. To the maximum extent possible, active efforts shall be provided consistent with the

prevailing social and cultural conditions and way of life of the Indian child's Indian tribe and in

partnership with the Indian child and the Indian child's family or Indian parents and with the Indian

child’s extended family members, Indian custodians and Indian tribe. When applicable, active

efforts shall include, but are not limited to:

     (i) Conducting a comprehensive assessment of the circumstances of the Indian child's

Indian family or Indian parent, with the intent and goal of safely reunifying the Indian child with

the Indian family or Indian parent;

     (ii) Identifying appropriate services and helping the Indian family or Indian parent to

overcome barriers, including actively assisting the Indian family or Indian parent in obtaining such

services;

     (iii) Identifying, notifying and inviting representatives of the Indian child's Indian tribe to

participate in providing support and services to the Indian child's Indian family, Indian parent, or

Indian custodian and in family team meetings, permanency planning, and resolution of placement

issues;

     (iv) Conducting or causing to be conducted a diligent search for extended family members

and contacting and consulting with the extended family members to provide family structure and

support for the Indian child and the Indian child's Indian family or Indian parent;

     (v) Offering and implementing all available and culturally appropriate family preservation

LC005486 - Page 2 of 17

strategies and facilitating the use of remedial and rehabilitative services as provided or determined

by the Indian child's Indian tribe;

     (vi) Taking all steps to keep siblings together whenever possible;

     (vii) Supporting regular visits with the Indian family, Indian parent, or Indian custodian

and extended family members. Visits shall occur in the most natural setting possible and shall

ensure the health, safety and welfare of the Indian child.

     (viii) Supporting trial home visits of the Indian child during any period of removal.

     (ix) Identifying and providing active assistance to the Indian child's Indian family, Indian

parent, or Indian custodian and extended family to access community resources for, but not limited

to, housing, finance, transportation, mental health, substance abuse and peer support services;

     (x) Monitoring progress and participation in services;

     (xi) If the optimum services do not exist or are not available, identifying and facilitating

access to alternative ways to address the needs of the Indian child's Indian family, Indian parent, or

Indian custodian; and

     (xii) Providing post-reunification services and monitoring.

     (2) "Adoptive placement" means the permanent placement of an Indian child for adoption,

including any action resulting in a final decree of adoption.

     (3) "Calendar days" means consecutive calendar days.

     (4) "Domicile" means:

     (i) For the Indian family, an Indian parent, or an Indian custodian, the place at which a

person has been physically present and regards as home; the true, fixed, principal and permanent

home, to which the Indian family, the Indian parent, or the Indian custodian intends to return and

remain indefinitely even though the Indian family, the Indian parent, or the Indian custodian may

be currently residing elsewhere; and

     (ii) For an Indian child, the domicile of the Indian child's Indian family, Indian parent,

Indian custodian or guardian.

     (5) "Emergency proceeding" means a court action that involves the emergency removal or

emergency placement of an Indian child. "Emergency proceeding" does not include a court action

involving an emergency award of custody of the Indian child to one of the parents including, but

not limited to, an emergency custody order or a protection from abuse proceeding.

     (6) "Extended family member" means a person who is defined as a member of an Indian

child's extended family by the law or custom of the Indian child's Indian tribe or, in the absence of

applicable law or custom, a person who is at least eighteen (18) years of age and who is the Indian

child's grandparent, aunt, uncle, sibling, sibling-in-law, niece, nephew, first cousin, second cousin,

LC005486 - Page 3 of 17

or stepparent.

     (7) "Family court" means the Rhode Island family court.

     (8) "Foster care placement" means the removal of an Indian child from the home of the

Indian child's Indian family, Indian parent or Indian custodian for temporary placement in:

     (i) A foster home;

     (ii) A qualified residential treatment program;

     (iii) A residential care center for Indian children and youth;

     (iv) A shelter care facility;

     (v) The home of a relative other than an Indian parent or Indian custodian; or

     (vi) In the home of a guardian, from which placement, the Indian family, Indian parent or

Indian custodian cannot have the child returned upon demand. "Foster care placement" does not

include an adoptive placement, a preadoptive placement, an emergency removal or the detention

of an Indian child.

     (9) "Guardian" means a person who is not an Indian and who has legal custody of an Indian

child under state law or to whom temporary physical care, custody and control has been transferred

by the parent of the Indian child.

     (10) "Indian" means an individual who:

     (i) Is a member, citizen, or national of an Indian tribe;

     (ii) Is eligible to be a member, citizen, or national of an Indian tribe; or

     (iii) Is an Alaska Native and a member of a Regional Corporation as defined in 43 U.S.C.

§ 1606.

     Only an Indian tribe may determine its membership, citizenship, or nationality including

eligibility for membership, citizenship, or nationality.

     (11) "Indian child" means an unmarried person who is under eighteen (18) years of age

and:

     (i) Is a member, citizen, or national of an Indian tribe; or

     (ii) Is eligible for membership in, citizenship in, or nationality in an Indian tribe and is the

biological child of an Indian.

     (12) "Indian child custody proceeding" means a proceeding, other than an emergency

proceeding, that may culminate in any of the following outcomes for or related to an Indian child:

     (i) Adoptive placement;

     (ii) Foster care placement;

     (iii) Preadoptive placement; or

     (iv) Termination of parental rights.

LC005486 - Page 4 of 17

     An Indian child custody proceeding does not include a proceeding in tribal court or a

proceeding that may culminate in an outcome for which placement is based upon an adjudication

of delinquency by an Indian child that, if committed by an adult, would be considered a crime or a

proceeding involving an award of custody to one of the Indian child's parents, including, but not

limited to, a divorce proceeding, a judicial separation proceeding, a protection from abuse

proceeding or other domestic relations proceeding.

     (13) "Indian custodian" means an Indian who has legal custody of an Indian child under

tribal law or custom, under state law, or to whom temporary physical care, custody and control has

been transferred by a parent of the Indian child. Indian custodian also means an Indian who has

lawfully adopted an Indian child, including adoptions under tribal law or custom.

     (14) "Indian family" means an Indian child’s biological mother and biological father

collectively.

     (15) "Indian organization" means a group, association, partnership, corporation or other

legal entity owned or controlled by Indians, or a majority of whose members are Indians.

     (16) "Indian parent" means an Indian who is the biological mother or biological father of

an Indian child but who is not married to the Indian child’s other biological Indian parent.

     (17) "Indian tribe" means an Indian tribe, band, nation or other organized group or

community of Indians that is:

     (i) Acknowledged in state law;

     (ii) Recognized as eligible for the services provided to Indians by state law or policy; or

     (iii) Recognized as eligible for the services provided to Indians by federal law or policy;

and in which the Indian child is an Indian. In cases in which a child meets the definition of "Indian

child" through more than one Indian tribe, the Indian tribes shall determine which Indian tribe is

the Indian child’s Indian tribe for purposes of this chapter. If the Indian tribes cannot agree on the

determination, the court shall designate the Indian child's tribe for purposes of this chapter based

on which Indian tribe the Indian child has more significant contacts with.

     (18) "Involuntary Indian child custody proceeding" means an Indian child custody

proceeding or emergency proceeding in which:

     (i) An Indian family, Indian parent or Indian custodian does not consent to the foster care

placement, preadoptive placement, adoptive placement or termination of parental rights of or to an

Indian child; or

     (ii) An Indian family, Indian parent or Indian custodian consents to the foster care

placement, preadoptive placement or adoptive placement under threat of removal of the Indian

child by a state court or agency.

LC005486 - Page 5 of 17

     (19) "Parent" means an individual who is not an Indian but who is the biological mother or

the biological father of an Indian child.

     (20) "Preadoptive placement" means the temporary placement of an Indian child in a foster

home or institution after the termination of parental rights, but before or in lieu of adoptive

placement.

     (21) "Qualified expert witness" means a person who meets the requirements of § 15-31-

14.

     (22) "Reservation" means:

     (i) Indian country, as defined in 18 U.S.C. § 1151;

     (ii) Any land not covered under 18 U.S.C. § 1151 to which title is either held by the United

States in trust for the benefit of an Indian tribe or Indians; or

     (iii) Any land otherwise held by an Indian tribe or an Indian.

     (23) "State" means the State of Rhode Island and its agents, agencies, assignees,

departments, employees, or representatives.

     (24) "Termination of parental rights" means an action resulting in the termination of the

parent-child relationship.

     (25) "Tribal court" means a court of an Indian tribe possessing jurisdiction over Indian

child custody proceedings, including:

     (i) A federal court of Indian offenses;

     (ii) A court established and operated under the code or custom of an Indian tribe; or

     (iii) Any other administrative body of an Indian tribe that is vested with authority over

Indian child custody proceedings.

     (26) "Voluntary proceeding" means an Indian child custody proceeding or an emergency

proceeding in which an Indian family, an Indian parent or an Indian custodian consents, by free

will and without the threat of removal by a state agency, to:

     (i) The foster care placement, proadaptive placement or adoptive placement of an Indian

child; or

     (ii) The termination of parental rights to an Indian child.

     15-31-4. Jurisdiction over Indian child custody proceedings.

     (a) Exclusive jurisdiction. An Indian tribe has exclusive jurisdiction over any Indian child

custody proceeding or emergency proceeding held in this state involving an Indian child who

resides or is domiciled within the reservation of that Indian tribe, except when the jurisdiction is

otherwise vested in the state courts by federal law. When an Indian child is a ward of a tribal court,

the Indian tribe retains exclusive jurisdiction, regardless of the residence or domicile of the child.

LC005486 - Page 6 of 17

Except as provided in §15-31-13, any Indian child custody proceeding or emergency proceeding in

family court that is within the exclusive jurisdiction of an Indian tribe shall be dismissed. The

family court shall expeditiously notify the tribal court of the pending dismissal based on the tribe's

exclusive jurisdiction and ensure that the tribal court receives all information regarding the

proceeding including, but not limited to, the pleadings and any court record.

     (b) Transfer of proceedings; declination by tribal court. In any proceeding for the foster

care placement of, or termination of parental rights to, an Indian child who is not domiciled or

residing within the reservation of the Indian child's Indian tribe, the family court shall, upon the

petition of the Indian child's Indian family, Indian parent, Indian custodian or Indian tribe, promptly

notify the tribal court of the transfer petition and transfer the proceeding to the jurisdiction of the

Indian child's Indian tribe, except when:

     (1) An Indian parent of the Indian child objects to the transfer;

     (2) The Indian child's Indian tribe does not have a tribal court, or the tribal court of the

Indian child's Indian tribe declines jurisdiction; or

     (3) The family court determines that good cause exists to deny the transfer. The party

opposing transfer has the burden to show good cause by clear and convincing evidence. The good

cause determination shall be based on which court is best positioned to adjudicate the proceeding,

and not on the potential outcome of the proceeding. In determining whether good cause exists, the

court may not consider:

     (i) Whether the foster care placement or termination of parental rights proceeding is at an

advanced stage if the Indian child's Indian family, Indian parent, Indian custodian or Indian tribe

did not receive notice of the child custody proceeding until the advanced stage;

     (ii) Whether there have been prior proceedings involving the Indian child for which no

petition to transfer was filed;

     (iii) Whether transfer could affect the placement of the Indian child;

     (iv) The Indian child's cultural connections with the tribe or its reservation; or

     (v) Any socioeconomic conditions or any negative perception of tribal social services or

judicial systems or of the United States Department of the Interior, Bureau of Indian Affairs social

services or judicial systems.

     (c) Intervention. An Indian child's Indian custodian or Indian tribe may intervene in any

proceeding for the foster care placement of, or termination of parental rights to, an Indian child at

any point in the proceeding.

     (d) Full faith and credit. The state shall give full faith and credit to the public acts, records

and judicial proceedings of any Indian tribe or tribal court that are applicable to an Indian child

LC005486 - Page 7 of 17

custody proceeding to the same extent that the state gives full faith and credit to the public acts,

records and judicial proceedings of any other governmental entity.

     15-31-5. Court proceedings.

     (a) Determination of Indian child status. In any proceeding that would qualify as an Indian

child custody proceeding or emergency proceeding if the child were an Indian child, the family

court shall ask each participant whether the participant knows or has reason to know that the child

is an Indian child. The family court may use the procedures in 25 C.F.R. § 23.107 to determine if

a child may be an Indian child, or seek a determination by the tribe. Only a tribe shall make a final

determination whether a child is an Indian child.

     (b) Notice; time for commencement of proceedings; additional time for preparation. In any

involuntary Indian child custody proceeding in which the family court or a party to the proceeding

knows or has reason to know that an Indian child is involved, the party seeking the adoptive

placement, foster care placement, preadoptive placement or termination of parental rights of or to

an Indian child shall provide notice to the Indian child’s Indian family, Indian parent or Indian

custodian and the Indian child's Indian tribe of the pending proceedings and of their right of

intervention. An original or a copy of each notice sent pursuant to the provisions of this subsection

shall be filed with the family court together with any return receipts or other proof of service. The

notice shall:

     (1) Be written in clear and understandable language;

     (2) Conform with the requirements of 25 C.F.R. § 23.111(d);

     (3) If sent to an Indian family, Indian parent, or Indian custodian, be sent by certified mail,

return receipt requested;

     (4) If sent to the Indian child's Indian tribe, be sent by certified mail, return receipt

requested, at the mailing address of the Indian child’s Indian tribe and be sent via email at the Indian

tribe's email address on file with the state; and

     (5) If the identity or location of the Indian family, Indian parent or Indian custodian and

the Indian tribe cannot be determined, be given to the appropriate regional director of the United

States Department of the Interior, Bureau of Indian Affairs in like manner.

     (c) The first hearing in the proceeding shall not be held until at least ten (10) calendar days

after receipt of the notice by the Indian family, Indian parent, or Indian custodian and Indian child’s

Indian tribe or the appropriate regional director of the United States Department of the Interior,

Bureau of Indian Affairs. On the request of an Indian family, Indian parent, Indian custodian or

Indian tribe, the family court shall grant a continuance of up to twenty (20) additional calendar days

to enable the requester to prepare for the hearing. The family court may create a standardized form

LC005486 - Page 8 of 17

to be used to provide notice pursuant to the provisions of this section.

     (d) Appointment of counsel. Indian families, Indian parents and Indian custodians are

entitled to legal counsel in any Indian child custody proceeding or emergency proceeding. An

Indian family, Indian parent or Indian custodian may request the family court to appoint legal

counsel for them. Upon a finding that an Indian family, Indian parent or Indian custodian is

indigent, the family court shall appoint legal counsel for the Indian family, Indian parent or Indian

custodian in the family court. The family court may, in its discretion, appoint counsel for the Indian

child upon a finding that an appointment of counsel is in the best interest of the Indian child.

     (e) Examination of reports or other documents. Under state law and when involving an

Indian child, each party to a foster care placement or termination of parental rights proceeding has

the right to examine all reports and all other documents filed with the family court that may inform

any decision made with respect to the proceeding.

     (f) Remedial services, rehabilitative programs and preventive measures. A party seeking to

effect a foster care placement of, or termination of parental rights to, an Indian child shall satisfy

the family 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.

     (g) Involuntary foster care placement. Involuntary foster care placement shall not be

ordered in the absence of a determination supported by clear and convincing evidence, that:

     (1) Includes testimony of qualified expert witnesses that the continued custody of the

Indian child by the parent or Indian custodian is likely to result in serious emotional or physical

damage to the Indian child; and

     (2) Establishes a causal relationship between the particular conditions in the home and the

likelihood that continued custody of the Indian child shall result in serious emotional or physical

injury to the Indian child who is the subject of the Indian child custody proceeding.

     (h) Involuntary termination of parental rights. Involuntary termination of parental rights

shall not be ordered in the absence of a determination supported by evidence beyond a reasonable

doubt, that:

     (1) Include testimony of qualified expert witnesses that the continued custody of the Indian

child by the parent or Indian custodian is likely to result in serious emotional or physical injury to

the Indian child; and

     (2) Establishes a causal relationship between the particular conditions in the home and the

likelihood that continued custody of the Indian child will result in serious emotional or physical

damage to the particular Indian child who is the subject of the Indian child custody proceeding.

LC005486 - Page 9 of 17

     15-31-6. Parental rights; voluntary termination.

     (a) Consent; record; certification matters; invalid consents. When an Indian family, Indian

parent or Indian custodian voluntarily consents to a foster care placement or to termination of

parental rights, consent is not valid unless executed in writing and recorded before a judge of the

family court or the tribal court. The court shall certify in writing that the terms and consequences

of the consent were fully explained in detail and were fully understood by the Indian family, Indian

parent or Indian custodian. The court shall also certify on the record or in writing that the Indian

family, Indian parent or Indian custodian fully understood the explanation in English or that the

explanation was interpreted into a language that the Indian family, Indian parent or Indian custodian

understood. Consent is not valid if given prior to, or within ten (10) calendar days after, the birth

of an Indian child.

     (b) Foster care placement; withdrawal of consent; return of custody. At any time, an Indian

family, Indian parent or Indian custodian may withdraw consent to a voluntary foster care

placement. Upon such withdrawal, the Indian child shall be returned to the Indian family, Indian

parent or Indian custodian within thirty (30) calendar days of withdrawal.

     (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 Indian family, Indian parent or Indian custodian may withdraw

consent for any reason at any time prior to the entry of a final decree of termination or adoption,

and the Indian child shall be returned to the Indian family, Indian parent or Indian custodian within

thirty (30) calendar days of such withdrawal.

     (d) Collateral attack; vacation of decree and return of custody; limitations. In a voluntary

proceeding, after the entry of a final decree of adoption of an Indian child in the family court, the

Indian family, Indian parent or Indian custodian may withdraw consent to the adoption upon the

grounds that consent was obtained through fraud or duress and may petition the court to vacate the

decree. Upon a finding by clear and convincing evidence that the consent was obtained through

fraud or duress, the court shall vacate the decree and return the Indian child to the Indian family,

Indian parent or Indian custodian within thirty (30) calendar days of the court vacating the decree.

     15-31-7. Petition to court of competent jurisdiction to invalidate action upon showing

of certain violations.

     Upon a showing by clear and convincing evidence that an action or order of the family

court violated any provision of this chapter, the following individuals or their representative may

petition the family court to invalidate the action:

     (1) An Indian child who, is the subject of an action for foster care placement or termination

LC005486 - Page 10 of 17

of parental rights;

     (2) An Indian family, Indian parent or Indian custodian from whose custody the Indian

child was removed; and

     (3) The Indian child's Indian tribe.

     15-31-8. Placement of Indian children.

     (a) Adoptive placements; preferences. In the absence of good cause to the contrary, in an

adoptive placement of an Indian child, placement preference shall be provided, in descending order,

as listed below:

     (1) An extended family member of the Indian child;

     (2) Another member, citizen or national of the Indian child's Indian tribe;

     (3) A member, citizen or national of an Indian tribe that is not the Indian child's Indian

tribe but in which the Indian child is eligible for membership, citizenship, or nationalization;

     (4) Another Indian with whom the Indian child has a relationship with; or

     (5) Another Indian from a tribe that is culturally similar to or linguistically connected to

the Indian child's Indian tribe.

     (b) Foster care or preadoptive placements; criteria; preferences. An Indian child accepted

for foster care placement or preadoptive placement shall be placed in the least restrictive setting

that best approximates an Indian family and in which that Indian child's special needs, if any, shall

be met. The Indian child shall also be placed within reasonable proximity to that Indian child's

home, taking into account any special needs of the Indian child. In the absence of good cause to the

contrary, in any foster care placement or preadoptive placement, placement preference shall be

provided, in descending order, as listed below:

     (1) An extended family member of the Indian child;

     (2) A foster home licensed, approved or specified by the Indian child's Indian tribe;

     (3) An institution for children approved by the Indian child’s Indian tribe;

     (4) An institution for children operated by an Indian;

     (5) An Indian foster home licensed or approved by an authorized non-Indian licensing

authority; or

     (6) An organization that has a program suitable to meet the Indian child's needs.

     (c) Good cause to deviate from placement preferences. When appropriate, the preference

of the Indian child, Indian family or Indian parent shall be considered when the court determines a

placement pursuant to the provisions of this chapter. The party seeking departure from the

placement preferences under this chapter bears the burden of proving by clear and convincing

evidence that there is good cause to depart from the placement preferences. A court's determination

LC005486 - Page 11 of 17

of good cause to depart from the placement preferences shall be made on the record or in writing

and may be based on one or more of the following considerations:

     (1) The request of the Indian family or the Indian parent, if they attest that they have

reviewed the placement options, if any, that comply with the order of preference;

     (2) The request of the Indian child, if the Indian child is of sufficient age and has the mental

capacity to understand the decision that is being made;

     (3) The presence of a sibling attachment that can be maintained only through a particular

placement;

     (4) The extraordinary physical, mental or emotional needs of the Indian child including,

but not limited to, specialized treatment services that may be unavailable in the community where

potential families who meet the placement preferences live; or

     (5) The unavailability of a suitable placement after a determination by the court that a

diligent search was conducted to find suitable placements meeting the preference criteria, but none

has been located.

     (d) For purposes of a determination under this subsection, the standards for determining

whether a placement is unavailable shall conform to the prevailing social and cultural standards of

the Indian tribe of the Indian child, the Indian family, the Indian parent, or the extended family

member. A placement shall not depart from the preferences pursuant to the provisions of this

section based on the socioeconomic status of any placement relative to another placement; solely

on ordinary bonding; or on attachment that developed from time spent in a non-preferred placement

that was made in violation of this chapter.

     (e) Tribal resolution for different order of preference and anonymity in application of

preferences. In the case of a placement pursuant to the provisions of this chapter, if the Indian

child's Indian tribe establishes a different order of preference, the agency or court effecting the

placement shall follow the order determined by the Indian child’s Indian tribe. When a consenting

Indian family or Indian parent evidences a desire for anonymity, the court or agency shall give

weight to such desire in applying the preferences.

     (f) Social and cultural standards applicable. The standards to be applied in meeting the

preference requirements of this section shall be the prevailing social and cultural standards of the

Indian tribe of the Indian child, Indian family, Indian parent or extended family member.

     (g) Record of placement; availability. A record of each placement of an Indian child under

this chapter shall be maintained by the state, including all evidence of any efforts made to comply

with the order of preference specified in this chapter. The record shall be made available at any

time upon the request of the United States Secretary of the Interior or the Indian child's Indian tribe.

LC005486 - Page 12 of 17

     15-31-9. Return of custody.

     (a) Petition; best interests of Indian child. Notwithstanding any provision of law to the

contrary, whenever a final decree of adoption of an Indian child has been vacated or set aside or

when the adoptive parents voluntarily consent to the termination of their parental rights to an Indian

child, the Indian family, an Indian parent, or a prior Indian custodian may petition for return of

custody. Unless there is a showing in a proceeding subject to the provisions of this chapter, that the

return of custody is not in the best interests of the Indian child, the court shall grant the petition.

     (b) Removal from foster care placement; procedure. Except for a case in which an Indian

child is being returned to the Indian family, the Indian parent, or the Indian custodian from whose

custody the Indian child was originally removed, whenever an Indian child is removed from a foster

care home or institution for the purpose of further foster care placement, preadoptive placement, or

adoptive placement, such placement must be in accordance with the provisions of this chapter.

     15-31-10. Disclosure of tribal affiliation information.

     Upon application by an individual who has reached eighteen (18) years of age; was an

Indian child; and was the subject of an adoptive placement, the family court that entered the final

decree shall inform the individual of the tribal affiliation, if any, of the individual’s biological

parent or parents and shall provide the individual with any other information necessary to protect

any rights of the individual that arise from the individual's tribal relationship.

     15-31-11. Improper removal of Indian child from custody; declination of jurisdiction;

forthwith return of Indian child; danger exception.

     Unless returning the Indian child to the Indian child's Indian family, Indian parent or Indian

custodian would subject the Indian child to a substantial and immediate danger or threat of danger,

if a petitioner in an Indian child custody proceeding before the family court improperly removed

the Indian child from custody of the Indian family, an Indian parent or Indian custodian or if custody

has been improperly retained after a visit or other temporary relinquishment of custody, the family

court shall either decline jurisdiction over the petition or shall forthwith order return the Indian

child to the child's Indian family, Indian parent or Indian custodian within thirty (30) calendar days.

     15-31-12. Higher state or federal standard applicable to protect rights of parent or

Indian custodian of Indian child; interpretive guidance.

     In any case in which state or federal law provides a higher standard of protection to the

rights of the Indian child’s Indian family, Indian parent or Indian custodian than the rights provided

under this chapter, the state or federal court shall apply the higher state or federal standard. To the

extent any procedure of an Indian child custody proceeding is not addressed in this chapter, then

25 C.F.R. Part 23 shall govern the determination in the proceeding.

LC005486 - Page 13 of 17

     15-31-13. Emergency removal or placement of an Indian child; termination;

appropriate action.

     (a) Emergency removal or placement. In order to prevent imminent physical damage or

harm to an Indian child, this chapter does not prevent:

     (1) The emergency removal of an Indian child from their Indian family, Indian parent or

Indian custodian, if the Indian child is a resident of or is domiciled on a reservation, but is

temporarily located off the reservation; or

     (2) The emergency placement of an Indian child in a foster home or institution under the

laws of this state.

     (b) Termination. An emergency removal or placement of an Indian child shall terminate

immediately when the removal or placement is no longer necessary to prevent imminent physical

damage or harm to the Indian child. An emergency removal or placement of an Indian child may

be terminated by, but is not necessarily terminated by:

     (1) Initiation of an Indian child custody proceeding subject to the provisions this chapter;

     (2) Transfer of the Indian child to the jurisdiction of the appropriate Indian tribe; or

     (3) Restoration of the Indian child to the Indian family, Indian parent or Indian custodian.

     (c) Procedure applicable to emergency proceedings. In any emergency proceeding in

family court, the court shall:

     (1) Make a finding on the record, supported by clear and convincing evidence, that the

emergency removal or placement is necessary to prevent imminent physical damage or harm to the

Indian child;

     (2) Promptly hold a hearing on whether the emergency removal or placement continues to

be necessary whenever new information indicates that the emergency situation has ended; and

     (3) At any family court hearing during the emergency proceeding, determine whether there

is clear and convincing evidence demonstrating that the emergency removal or placement remains

necessary to prevent imminent physical damage or harm to the Indian child and, if not, immediately

terminate or ensure that the petitioning party immediately terminates the emergency proceeding.

     15-31-14. Qualified expert witness.

     (a) Identification. In any proceeding subject to this chapter that requires the testimony of a

qualified expert witness, the qualified expert witness shall be provided by the petitioner and shall

meet the criteria of subsection (c) or (d) of this section. A qualified expert witness may be identified

based on information from the Indian child's tribe or with the assistance of the United States

Department of the Interior, Bureau of Indian Affairs.

     (b) Testimony provided. In any proceeding subject to this chapter that requires the

LC005486 - Page 14 of 17

testimony of a qualified expert witness, at least one qualified expert witness shall testify regarding:

     (1) The prevailing social and cultural standards and child-rearing practices of the Indian

child's tribe; and

     (2) Whether the Indian child's continued custody by the Indian child's Indian family, Indian

parent or Indian custodian is likely to result in serious emotional or physical damage to the Indian

child.

     (c) Tribal qualification. A person is a qualified expert witness pursuant to the provision of

this chapter if the Indian child's tribe has designated the person as qualified to testify to the

prevailing social and cultural standards of the Indian tribe.

     (d) Alternative qualification. If the Indian child's Indian tribe has not designated a qualified

expert witness or if the designated qualified expert witness is unavailable, the following individuals,

in descending order of priority, may testify as a qualified expert witness:

     (1) A member of the Indian child's Indian tribe who is recognized by the tribal community

as knowledgeable in tribal customs as they pertain to family organization and child-rearing

practices;

     (2) A member, citizen, or national of another Indian tribe who is recognized to be a

qualified expert witness by the Indian child's Indian tribe;

     (3) A layperson who is recognized by the Indian child's Indian tribe as having substantial

experience in the delivery of child and family services to Indians, and knowledge of prevailing

social and cultural standards and child-rearing practices within the Indian child's Indian tribe; or

     (4) A professional person having substantial education and experience in the area of the

professional person's specialty who can demonstrate knowledge of the prevailing social and cultural

standards and child-rearing practices within the Indian child's Indian tribe.

     (e) Disqualified persons. Neither a petitioning party, an employee of the petitioning party

nor an employee of either the Rhode Island department of human services or the Rhode Island

executive office of health and human services may serve as a qualified expert witness.

     15-31-15. Agreements between the state and Indian tribes.

     The state may enter into agreements with Indian tribes with respect to the care and custody

of Indian children and jurisdiction over Indian child custody proceedings, including agreements

that 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. A revocation of an agreement under

this section does not affect any action or proceeding over which the family court or a tribal court

has already assumed jurisdiction, unless the agreement provides otherwise.

     SECTION 3. Section 15-14.1-4 of the General Laws in Chapter 15-14.1 entitled "Uniform

LC005486 - Page 15 of 17

Child Custody Jurisdiction and Enforcement Act" is hereby amended to read as follows:

     15-14.1-4. Application to Indian tribes.

     (a) A child custody proceeding that pertains to an Indian child as defined in the “Indian

Child Welfare Act,” 25 U.S.C. § 1901 et seq., or the provisions of chapter 31 of title 15 shall is not

be subject to this chapter to the extent that it is governed by the “Indian Child Welfare Act.” or

chapter 31 of title 15.

     (b) A court of this state shall treat a tribe as if it were a state of the United States for the

purpose of applying this chapter.

     (c) A child custody determination made by a tribe under factual circumstances in

substantial conformity with the jurisdictional standards of this chapter must shall be recognized and

enforced under this chapter.

     SECTION 4. This act shall take effect upon passage.

========

LC005486

========

LC005486 - Page 16 of 17

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO DOMESTIC RELATIONS -- THE RHODE ISLAND INDIAN CHILD

WELFARE ACT

***

     This act would establish specific requirements for determination of custody of Indian

children. With limited exceptions, tribal courts would determine custody and placement issues for

Indian children. The act would further provide that Indian tribes shall be treated as if the tribe were

a state of the United States for purposes of the application of chapter 31 of title 15. This act would

also disqualify any employee of the Rhode Island Department of Human Services or the Executive

Office of Health and Human Services from testifying as an expert witness in a child custody or

placement case involving an Indian child.

     This act would take effect upon passage.

========

LC005486

========

LC005486 - Page 17 of 17