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Adoption
Farmweddinggirl (super long)
Just starting a new post, because reading some of those other responses was sending my heart racing. I had to wait a day to respond.
So. ICWA. First and foremost, it is a federal statue and it is complicated. (Like a lot of adoption law, which is why it's important to use reputable agencies and attorneys who operate ethically and know the laws.)
Second, adoption is risky. It's the nature of the beast. It is also possible (but not probable) that any of the BMs of kids on this board could claim fraud or duress after TPR and try to overturn the adoptions. Federal law allows birth parents to make this claim up to 2 years after TPR. But we don't go around telling people this, because it is unlikely and it is assumed we are all seeking out reputable agencies who would never defraud a birthparent or force her/him to sign relinquishment papers.
Every tribe has a different "litmus test" for what would trigger ICWA. For example, some tribes only want to be involved if the child is 100% a member of that tribe. Others only care if the placing parent is a "card-carrying" member. Others want to be notified if the child has even 1/16 tribal heritage.
Asking about ICWA is like saying: "What has to happen in an international adoption?" Just like with international adoption you have to meet the laws and requirement of the birth country AND the US. And the law in Russia is not the same as the law in Guatemala. Every tribe is a sovereign nation, and they all operate differently.
A lot of what was posted yesterday, while well meaning, bordered on fear mongering. Saying that if your child has NA heritage they can be removed at ANY time, even after finalization is just inaccurate. It's like saying that every older child is going to have RAD or every child out of Russia has FAS or every foster placement is going to be sent back to a crack addict. Yes, ICWA has disrupted some adoptions, but usually it's because those adoptions weren't legal in the first place, and in almost all those cases there were state agencies involved and bio parents' rights were terminated FOR them not BY them.
Some of what I read last night upset me so much that I made my husband call our attorney today and here, verbatim, is the summary from their phone call that he sent to me. (I did take out the part where he said my Internet rights were taken away for a week. Ha. (Notes in [] are from me.)
I talked to the attorney and this is what he stated---because we followed ICWA procedures for relinquishment, we did not just rely on the agency relinquishment procedures there is no legal justification for the birth family or the tribe to request custody. The lawyer said they can always try, but to his knowledge on the few cases where the birth family has tried to do so, they have lost 100% of the time for the following reasons:
Our attorney made sure of the following (getting the right attorney is key)
1) [In a federal court in front of a federal judge our son's BM] stated she objected to the transfer of proceedings to an Indian Court (an Indian court will now never hear this case). [This is what I meant when I inaccurately referred to his tribe's rights being terminated. They had their one day in court. The end.]
2) The proceedings occurred 10 days after the birth of the child (as required by ICWA).
3) The proceeding occurred in front of a [federal] judge and [our son's BM] testimony was taken (as required by ICWA)
4) She testifies she objects to the ICWA preferences (family, tribe, other Indian tribe) that she wanted the child placed through us. (Very unlikely a tribe will counter the wishes of the mother)
5) She relinquished consent in a voluntary relinquishment proceedings hearing where she admitted that she was not under duress and that this is what she wanted.
Encourage people to hire an attorney who is an expert in ICWA proceedings.
Some states have Mini-ICWA statutes that are above and beyond what is in the Federal ICWA law states. Utah does not have any additional state laws that grant additional rights beyond what the federal laws. So I guess hire the right attorney and pick the right state.
Also, Utah has a one year statute of limitations of one year in the case of fraud or duress (federal law is 2 years). After that they cannot even claim duress or fraud due to statue of limitations
I also want to point out that our son's BM signed TPR 24 hours after birth, like any other parent in Utah who made an adoption plan, per Utah law and then had this ICWA hearing 10 days later.
This is SUPER long, but I just want to say to anyone else reading that as adoptive parents we have an obligation to DISPEL myths and inaccurate information, not perpetuate it. We should be extra careful about the words that we use and the information that we disseminate. There is already so much fear about adoption and what greater fear is there that someone someday can take your child away?
And while some of our regular posters are attorneys, none of us are in positions to offer legal advice to other posters, as we are not their legal counsel.
Whew. 
This discussion has been closed.
Re: Farmweddinggirl (super long)
Thank you SO much for making this post! I'm such a ball of emotions today that I'm actually getting teary-eyed just from gratitude that you took the time to write all this out.
We talked to our CW this morning and she helped us feel better about the ICWA stuff (I was freaking out literally all night long after reading the responses here, although I know they were well meaning). Basically, our agency will do what they need to do to go through the ICWA procedures and will let us know if there's something that holds things up in a way that would be disruptive to the adoption. They were able to comfortably answer all the questions I had, and this is something they deal with a lot, so I feel as confident as possible that they'll handle things correctly and let us know if something happens that would be a deal breaker as far as placement. I didn't ask about the trial that needs to be 10 days after the birth, but will follow up with them about that after they've interviewed the birth mama more in depth about her NA heritage.
Again, HannaB, thank you dearly for this post!
ETA: I also want to thank everyone who responded last night. Even if it did scare me a bit, I am so appreciative of having this board to ask questions and get a variety of answers. You ladies are wonderful!
And yes, the best info comes from attorneys who have experience in this area. Our agency is actually a law firm, so I am hopeful that will help.
I know it doesn't apply to me, but I appreciated reading this and knowing a little more about these situations.
And kiss your beautiful boy for me!
I don't believe there was a bit of fear mongering going on. We were only telling her to be careful and make sure she had a good attorney. She ASKED if there were any red flags related to NA heritage and that was what was provided. She didn't ask for how easy it would be or to hear puppies and rainbows stories.
We consulted with four different attornies for our ICWA case and several of them wouldn't even touch it and two of them both told us what I said in the other post. And both of them said they have had adoptions disrupted. Maybe that has to do with the tribes that they are used to working with, but again she was asking for our opinions and potential red flags and we gave them.
Without knowing the specifics (which she did not have) of her situation regarding which tribe, percentage, etc. we gave the best information we could and did NOT give any legal advice. In fact, I know that I stated at least once that she should consult an experienced ICWA attorney. Without looking back I don't know if anybody else did, but I seem to think they did. No one in that thread claimed to be an expert. We shared information from our attornies and experiences, just like you have shared experienced from your attorney that wouldn't have applied in my situation. It's not fair for you to invalidate our opinions and the information we've shared by calling it "fear mongering", when several people who commented in that thread have had real life ICWA experience that didn't turn out as rosy as yours.
This board has always been about giving real information...some of it pretty and happy, some of it not. But to call if fear mongering is beyond ridiculous. I am VERY happy that your NA adoption turned out well, and I hope that farmgirl's does as well. But when someone asks us for our opinion on a situation that could potentially be negative and we give them, that is not fear mongering.
I agree with MrsB. Some of us DO have experience with ICWA and how some of it works, but we also do not claim to be experts. I'm pretty sure EACH person that posted in that post told her to seek expertise from an attorney that knows/has worked with cases like this.
I actually don't think it needed to spark another post, a lengthy one at that, stating "fear mongering". I know I said it can be messy, and it CAN be. This board is for personal opinions, personal past experiences and personal advice, not expert anything. Even the attorneys on this board have even said "you'll need to ask an attorney in your state .... "
While it's great advice to have an excellent attorney for ICWA, Hannah your experience is just that: Your experience.
Thank you for sharing it and the insight of your lawyer, but one thing that I had a question about was exactly how much did your BM feel a tie to her Native American tribe?
Just as an example, a person who is 50% Pawnee and 50% Apache and is very tied to their cultural roots and gives up their child for adoption: yeah I'd REALLY pay close attention to ICWA. (And, these people are the ones ICWA was put in place for--sorry, it wasn't for the 1/8th Native Children. It just wasn't).
The person who is 1/8 Pawnee and carries their card, but has no cultural ties...I think it's a lot easier for them to state the things Hannah said her birthmom had to state above to get through ICWA.
It's a case by case issue.
The information provided in the other post was also very informative as well as true--to their cases.
I might have a crush on you
for that last sentence.