43-1506. Voluntary proceeding; consent; when valid; initiation of voluntary services; notice; department or state; duties; withdrawal of consent.

(1) When any parent or Indian custodian voluntarily consents (a) to a foster care placement or (b) to relinquishment or 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.

(2) When the department or the state offers the parent, Indian child, or Indian custodian services through a voluntary foster care placement or in-home services and the department or the state knows or has reason to know that an Indian child is involved, the department or the state shall notify the parent or Indian custodian and the Indian child's tribe or tribes, by telephone call, facsimile transmission, email, or registered mail with return receipt requested, of the provision of services and any pending child custody proceeding. If the identity or location of the parent or Indian custodian and the tribe or tribes cannot be determined, such notice shall be given to the secretary and the appropriate area director listed in 25 C.F.R. 23.11 in like manner who may provide the requisite notice to the parent or Indian custodian and the tribe or tribes. Notice shall be provided within five days after the initiation of voluntary services.

(3) When the department or the state offers the parent or Indian custodian services through a voluntary foster care placement or in-home services, the Indian custodian of the child and the Indian child's tribe or tribes have a right to participate in, provide, or consult with the department or the state regarding the provision of voluntary services.

(4) When the department or the state offers the parent or Indian custodian services through a voluntary foster care placement or in-home services, the department or the state shall provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family or unite the parent or Indian custodian with the Indian child until these efforts have proved unsuccessful.

(5) Prior to any voluntary relinquishment or termination of parental rights proceeding in which the department or the state is a party or was providing assistance to a parent or Indian custodian, the department or the state or its designee shall submit the following information, in writing, to the court if it has not previously been provided:

(a) The jurisdictional authority of the court in the proceeding;

(b) The date of the Indian child's birth and the date of any voluntary consent to relinquishment or termination;

(c) The age of the Indian child at the time voluntary consent was given;

(d) The date the parent appeared in court and was informed by the judge of the terms and consequences of any voluntary consent to relinquishment or termination;

(e) The parent fully understood the explanation of such terms and consequences in English or, when necessary, the explanation was interpreted into a language that the parent understood and the parent fully understood the explanation of such terms and consequences in the language into which such terms and consequences were translated;

(f) The name and address of any prospective adoptive parent whose identity is known to the consenting parent;

(g) The promises, if any, made to the parent, as a condition of the parent's consent, including promises regarding the tribal affiliation or health, ethnic, religious, economic, or other personal characteristics of any adoptive family with which the child would be placed; and

(h) The details, if any, of an enforceable communication or contact agreement authorized by section 43-162.

(6) Any parent or Indian custodian may withdraw consent to a foster care or voluntary foster care placement under state law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.

(7) In any voluntary proceedings 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.

(8) 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.

Source

Annotations

The 2-year time limitation in this section is a statute of limitations; an action to invalidate an adoption must be filed within 2 years of the date of the adoption decree. In re Adoption of Kenten H., 272 Neb. 846, 725 N.W.2d 548 (2007).

The lower standard of proof under subsection (3) of section 43-279.01 for the termination of parental rights to non-Indian children, as opposed to the higher standard of proof under the Nebraska Indian Child Welfare Act does not violate the equal protection rights of parents of non-Indian children. In re Interest of Phoenix L. et al., 270 Neb. 870, 708 N.W.2d 786 (2006).

The provisions relating to the withdrawal of a relinquishment provided for in this section of the Nebraska Indian Child Welfare Act do not apply to a relinquishment signed prior to the applicability of the act. In re Interest of Nery V. et al., 20 Neb. App. 798, 832 N.W.2d 909 (2013).