Adoption TPR

The historical stigma attached to adoption has resulted in many tribes being opposed to the concept of adoption. In addition, many tribes have the belief that the parent-child bond is one that cannot be severed and so do not believe in termination of parental rights. However, some tribes utilize a customary adoption procedure that does not require a TPR.

If a tribe does not consent to the termination of parental rights you will need to look at other permanency options for the child. Even though the Adoption and Safe Families Act requires that a termination of parental rights be filed after the child has been in placement for 15 of the last 22 months, the fact that the child is an Indian child is a compelling reason why a termination of parental rights is not in the best interests of the Indian child. Guardianship is an acceptable permanency option for an Indian child when the tribe does not agree with the termination of parental rights.

Any consent for a voluntary placement or termination of parental rights must be executed in writing, recorded before a judge, and accompanied by a written certificate by the judge that states that the terms and consequences of the consent were fully explained, and the parent or Indian custodian fully understood

Any consent for a voluntary placement or voluntary TPR given prior to or within 10 days after birth of the Indian child is not valid.

In a voluntary TPR the parent may withdraw consent at any time prior to entry of final TPR order for any reason. If the parent withdraws consent, the child must be returned to the parent immediately unless an order or agreement that was in effect prior to the TPR provides for a different placement.


WICWA applies even in private adoptions. Official notice must be sent to the tribes to notify them of the proceedings and the private adoption agency must contact the tribe in order to comply with the placement preferences. This contact must occur even if the biological parents ask that the tribe not be contacted. The private adoption agency must make active efforts to meet the placement preferences and to ensure the connection between the child and their tribe is maintained.

The biological parent has up to 2 years after the final adoption order to withdraw their consent for the voluntary termination of parental rights if that consent was obtained by fraud or duress. [48.028(5)(c)].


TPR/adoption does not affect the child’s tribal membership. Therefore,W/ICWA applies to any voluntary or involuntary court proceedings involving an Indian child which could result in any of the following:

  • An adoptive placement
  • An out-of-home care placement
  • A pre-adoptive placement
  • A termination of parental rights
  • A delegation of powers by a parent regarding the care and custody of an Indian child for longer than one year
  • An emergency proceeding
  • Any proceeding or voluntary placement in which the parent cannot have their child returned to them upon demand
  • JIPS cases/status offenses


Initial notice by registered mail with return receipt requested must be sent to the Indian child’s biological parent or prior Indian custodian and tribe whenever:

  • Final order of adoption for and Indian child is vacated or set aside, or
  • Adoptive parent voluntarily consents to termination of parental rights to an Indian child


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