Bill
H 5548
SC ICWA-based framework governs Indian child custody/adoption, with exclusive tribal jurisdiction where applicable and increased tribal involvement in all agency actions.
South Carolina Bill H 5548 (2025-2026) – Summary
Purpose and overall intent
- The bill establishes a South Carolina-specific framework modeled on the federal Indian Child Welfare Act (ICWA) to govern child welfare proceedings involving Indian children.
- It adds a new Chapter 23 to Title 63 (South Carolina Code) creating state-level procedures, standards, and tribal-communication requirements, and it aligns parts of the Adoption and Child Custody statutes with ICWA principles.
- It also creates provisions to recognize exclusive tribal jurisdiction in certain custody matters, and it clarifies the interaction between state law, tribal law, and federal law in Indian child adoptions and custody.
Key provisions and changes
1) South Carolina Indian Child Welfare Act (Chapter 23, Title 63)
- Definitions and terms:
- Active efforts: A detailed, tribe-informed set of measures to prevent removal or to reunify families, including family assessments, services, inviting tribe participation, locating extended family, ensuring sibling placement, facilitating natural parent-child visits, and post-reunification support.
- Expanded glossary for terms such as Indian child, Indian tribe, Indian custodian, domicile/residence, family members, extended family, and the scope of ICWA protections.
- Scope and applicability:
- Chapter applies to any Indian child involved in a child custody or emergency proceeding.
- Clarifies which actions count as child custody proceedings (foster care, TPR, preadoption, and adoptive placements, plus status offenses if they trigger out-of-home placement).
- Tribal jurisdiction and cooperation:
- Exclusive tribal jurisdiction over Indian child custody proceedings residing or domiciled on a tribe’s reservation, once a tribal court is established for child custody matters, with exceptions.
- Department of Social Services (DSS) may enter agreements with tribes on jurisdiction, including transfer of cases or concurrent jurisdiction; either party can revoke after 180 days’ notice.
- When a tribe’s custody jurisdiction is triggered, transfer is contemplated absent objections by parents; tribal intervention rights are preserved.
- Full faith and credit given to tribal acts, records, and proceedings; DSS must provide tribal authorities with relevant documents upon request.
- DSS must involve the child’s tribe in all agency activities related to the Indian child.
- Notice, status verification, and right to counsel:
- Clear, on-the-record notice requirements to parents, custodians, and tribes; notices include detailed information about the case, rights to intervene, and counsel.
- Court-appointed counsel available for indigent parties; counsel can be appointed for Indian children in certain circumstances.
- For voluntary proceedings, parents may request up to 20 additional days to prepare; translations and confidentiality protections are specified where needed.
- A right to examine reports and documents timely.
- Determination of membership and placement:
- Tribe determines whether a child is a member or eligible for membership; courts cannot override tribal determinations, though documentation may be used.
- In multi-tribal situations, tribal determination and significant contact considerations guide designation of the Indian child’s tribe; if unresolved, courts weigh several factors (e.g., parental preference, length of residence near reservations, tribal custodial status, prior tribal adjudications, child self-identification).
- Placement preferences prioritize extended family, then other tribe members, then other Indian families; tribes may establish alternate orders of preference.
- Good-cause provisions allow departing from placement preferences with clear and convincing evidence; departure criteria include parental input, child’s preference, sibling attachments, special needs, and availability of suitable placements after diligent searches.
- Emergency removals and transfers:
- Strict standards to end emergency removals when no longer necessary; mandatory hearings to reassess ongoing need; potential transfer to tribal jurisdiction when appropriate.
- Court procedures and standards:
- Clear and convincing evidence standards for foster care placements; beyond a reasonable doubt standard for termination of parental rights, with required expert testimony and respect for tribal cultural standards.
- Qualified expert witnesses must be capable of addressing tribal social and cultural norms; the tribe or BIA may assist in locating experts.
- Transfer requests to tribal courts require timely action and consider objections or tribal declines; good-cause determinations must be on the record.
- Records and reporting:
- The department must maintain and provide access to records related to Indian child placements and proceedings; final adoption notices and orders must be confidential and transmitted to the appropriate parties and tribal offices.
- Departments must notify the BIA when applicable and support transfer and confidentiality requirements.
- Fees, indigency, and counsel:
- Courts must provide counsel for indigent parties in removal, placement, or TPR proceedings and may appoint counsel for Indian children when in the child’s best interest.
2) Adoption Code and related sections
- Section 63-9-45: Adoption proceedings involving Indian children are not subject to the standard Adoption Code to the extent governed by state law, tribal agreements, or ICWA.
- Amendments to 63-15-302 and 63-15-306: Aligns “tribe” and jurisdiction language with ICWA Chapter 23 to ensure consistency with the new act and ICWA procedures.
Effective date
- The act takes effect upon the Governor’s approval.
Potential impact and considerations
- Greater alignment with ICWA for South Carolina, including explicit tribal involvement and potential transfer of custody cases to tribal courts when appropriate.
- Increased tribal participation and access to records and case materials.
- Enhanced protections for Indian families in custody and adoption proceedings through clear standards for active efforts, placement preferences, and evidentiary requirements.
- Possible increase in intergovernmental coordination between DSS, tribal authorities, and state courts; potential for nuanced jurisdictional debates in multi-tribal or non-reservation situations.
Compiled from official sources — confirm details with the bill’s official record.
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