BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 2736 A
Assembly Members Cook and Beall B
As Amended May 6, 2008
Hearing Date: June 24, 2008 2
Welfare & Institutions Code 7
KB:jd 3
6
SUBJECT
Indian children: parental rights: tribal customary adoption
DESCRIPTION
This bill would establish procedures to allow Indian
children in the child welfare system to be provided with
the permanence offered by adoption without first
terminating the birth parents rights through the use of
traditional or customary tribal adoption.
BACKGROUND
In response to reports that a large percentage of Indian
children were removed from their families by courts and
child welfare agencies, and placed in foster or adoptive
homes and institutions, Congress enacted the Indian Child
Welfare Act (ICWA) in 1978. Congress recognized that
states "often failed to recognize the essential tribal
relations of Indian people and the cultural and social
standards prevailing in Indian communities and families,"
and that the removal of Indian children was "often
unwarranted." (25 U.S.C 1901.) The goal of ICWA is thus
to "protect the best interests of Indian children and to
promote the stability and security of Indian tribes and
families." (25 U.S.C 1902.)
Generally, ICWA governs child welfare proceedings involving
Indian children who are subject to the jurisdiction of the
dependency court because of abuse or neglect or the risk of
such harm. Among other things, ICWA sets forth minimum
(more)
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federal standards by: (1) establishing jurisdictional
requirements; (2) allowing for notice of and intervention
in Indian child custody proceedings by a tribe; and (3)
providing that the acts, records, and judicial proceedings
of tribal courts are entitled to full faith and credit to
the same extent that the acts, records, or judicial
proceedings of another state would be. In addition, ICWA
prohibits a court from terminating parental rights without
proof beyond a reasonable doubt and without clear and
convincing evidence, including the testimony of a qualified
expert, that continued custody by the child's parent or
Indian custodian is likely to result in serious emotional
or physical damage to the child. (25 U.SC. 1911 et seq.)
In 2006, SB 678 ((Ducheny), Ch. 838, Stats. 2006), created
two exceptions to the termination of parental rights for
the parents of Native American children in the child
welfare system where the court could otherwise order such
termination of rights. The court is not required to order
termination, if the court finds that such termination would
be detrimental to the child because: (1) termination of
parental rights would substantially interfere with the
child's connection to his or her tribal community or the
child's tribal membership rights; or (2) the child's tribe
has identified guardianship, long-term foster care with a
fit and willing relative, or another planned permanent
living arrangement for the child. SB 678 thus recognized
that tribes may have different cultural and familial values
which do not necessarily conform to the strong presumption
in state law that permanence is always in the child's best
interest.
This bill seeks to establish an additional exception to the
termination of parental rights for Indian children through
"tribal customary adoption."
CHANGES TO EXISTING LAW
Existing federal law governs child welfare proceedings
involving Indian children who are subject to the
jurisdiction of the court because of abuse or neglect or
the risk of such harm. (25 U.S.C. 1901 et seq.)
Existing federal law establishes jurisdictional
requirements. (25 U.S.C. 1911.)
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Existing federal law allows for notice of and intervention
in Indian child custody proceedings by a tribe. (25 U.S.C.
1912.)
Existing federal law provides that the acts, records, and
judicial proceedings of tribal courts are entitled to full
faith and credit to the same extent that the acts, records,
or judicial proceedings of another state would be. (25
U.S.C. 1911.)
Existing federal law requires that active efforts have been
made, and have failed, to prevent the breakup of the Indian
family when a party seeks a foster care placement,
guardianship, or the termination of parental rights. (25
U.S.C. 1912.)
Existing federal law prohibits a court from terminating
parental rights without proof beyond a reasonable doubt, or
ordering foster care or guardianship without clear and
convincing evidence, including the testimony of a qualified
expert, that continued custody by the child's parent or
Indian custodian is likely to result in serious emotional
or physical damage to the child. (25 U.S.C. 1912.)
Existing federal law establishes placement preferences for
Indian children who are being placed in foster or adoptive
placements. (25 U.S.C. 1915.)
Existing federal law creates protections for a parent or
Indian custodian who voluntarily consents to foster care
placement, guardianship, or the termination of parental
rights. (25 U.S.C. 1915.)
1. Existing state law requires a social worker or child
advocate appointed by the court to prepare an evidentiary
study, covering various aspects of a child's situation,
for use by the court in determining the proper
disposition of a dependent child of the juvenile court.
(Welfare & Institutions Code 358.1.)
This bill would require, until January 1, 2012, that the
court study of the child's situation shall, for an Indian
child for whom reunification with a parent is
unsuccessful, include whether tribal customary adoption
is an appropriate permanency placement.
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2. Existing state law provides for two exceptions to the
termination of parental rights for the parents of Native
American children in the child welfare system where the
court could otherwise order such termination of rights.
The court is not required to order termination, if the
court finds that such termination would be detrimental to
the child because: (1) termination of parental rights
would substantially interfere with the child's connection
to his or her tribal community or the child's tribal
membership rights; or (2) the child's tribe has
identified guardianship, long-term foster care with a fit
and willing relative, or another planned permanent living
arrangement for the child. (Welfare & Institutions Code
366.26.)
This bill would add the availability of a tribal
customary adoption as an additional condition that could
preclude the court's terminating parental rights.
This bill would define a "tribal customary adoption" as
"adoption by and through the child's tribe's custom,
traditions, or tribal law without termination of parental
rights."
This bill would establish certain requirements for cases
in which a tribal customary adoption is considered,
including
a) the completion of an adoptive home study by the
tribe or the tribe's designee, using the prevailing
social and cultural standard of the child's tribe as
the standard for the evaluation;
b) the filing by the child's tribe (within 120 days
with a court option to grant a continuance of up to 60
additional days) of a tribal customary adoption order
evidencing that a tribal customary adoption has been
completed;
c) providing an opportunity to the child, birth
parents, Indian custodian, tribal customary adoptive
parents, and their counsel, to present evidence
regarding the child's best interest; and
d) requiring tribal customary adoption orders to
include a description of the modified legal
relationship of the birth parents or Indian custodian
and the child, and include a description of the
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child's legal relationship with the tribe.
This bill would provide that prior consent to a permanent
plan of a tribal customary adoption shall not be required
of an Indian parent or Indian custodian whose parental
relationship to the child will be modified.
This bill would allow, in the case of an Indian child
where the child's tribe has elected a permanent plan of
tribal customary adoption, and after the appellate rights
of the birth parents or Indian custodian have been
exhausted, to order that an adoption hearing be set, at
which time the tribal customary adoption order shall be
filed and the court shall issue an order of adoption
unless the court finds by clear and convincing evidence
that issuance of the order would be detrimental to the
child.
This bill would provide that a tribal customary adoption
order shall be afforded the same force and effect as an
order of adoption.
This bill would direct the Judicial Council to adopt
rules of court and necessary forms required to implement
tribal customary adoption as a permanent plan for
dependent Indian children, effective July 1, 2009.
This bill would require the Judicial Council to study
California's tribal customary adoption provisions and
their effects on children, parents, Indian custodians,
tribes, and the court, and report all findings to the
Legislature before January 1, 2011.
3. Existing state law establishes the adoption assistance
program to provide
benefits to qualifying children who have been in foster
care. (Welfare & Institutions Code 16115 et seq.)
This bill would allow a child otherwise eligible for the
adoption assistance program to receive those benefits if
he or she is the subject of an order of adoption based on
a tribal customary adoption.
This bill would sunset provisions related to a tribal
customary adoption on January 1, 2012.
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COMMENT
1. Stated need for the bill
The sponsor of this bill, the Soboba Band of Luiseno
Indians, states that despite the traditional adoption
exceptions in current state law, guardianship should be
valued more highly. AB 2736 would add the option of
"customary adoption," a change that the sponsor hopes
will ensure that courts will recognize tribal cultural
traditions more fully. With customary adoption, parental
rights are not terminated but are suspended or modified.
Under current law, termination of rights of the
biological parents must occur for an Indian child to be
adopted, even when the child is placed with relatives or
other tribal members. The sponsor believes this policy
is problematic in three ways. First, it does not embrace
the rituals some tribes use in "making relatives."
Second, the termination of parental rights might affect
the legal relationship an individual has with the tribe.
Third, there are financial incentives, through the
adoption assistance program that make adoption
preferable, thus creating pressure under current
situations to terminate parental rights in situations
where there may be a better way.
Under AB 2736's establishment of tribal customary
adoption, the court suspends or modifies parental rights
rather than terminating them. This suspension or
modification would allow for the flow of adoption
assistance program funds and services. The author adds
that customary adoption is no less permanent than
adoption and provides the caregivers with all the rights
and responsibilities of a parent and yet allows the
relationships within the family and the tribe to remain
intact. Moreover, customary adoption allows for the
original birth certificate to remain unchanged.
2. This bill seeks to create tribal customary adoption as a
permanency option for Native American children
From the tribal perspective, concepts of identity and
belonging are central to the idea of permanency and are
considered paramount in decisions regarding the placement
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of Indian children. Thus, within tribal communities,
child welfare decisions often are based on the concept of
community permanency. When family reunification is not
an option, the tribal perspective places emphasis on
permanency alternatives that help the child stay
connected to his or her extended family, clan, and tribe.
( See Child Welfare Information Gateway, Tribal-State
Relations, January 2006, available at
www.childwelfare.gov/pubs/issue_briefs/tribal_state/index.
cfm.)
In contrast, within mainstream society, greater emphasis
is often placed on certain types of permanency, such as
adoption with full termination of parental rights. Many
tribal communities, however, do not agree with
terminating a parent's rights and may instead utilize
customary adoption practices. In a customary adoption,
the child is taken by a family or community member but
still has the opportunity to have a relationship with his
or her biological parents and extended family.
This bill would create another exception for the
termination of parental rights where the court finds that
such termination would be detrimental to the child
because the child's tribe has identified tribal customary
adoption as a planned permanent living arrangement. A
tribal customary adoption would be defined as "adoption
by and through the child's tribe's custom, traditions, or
tribal law without termination of parental rights."
The manner in which a tribal customary adoption would be
established is discussed below.
3. This bill would create specific procedures for the
establishment of a tribal customary adoption
While several other states legally recognize tribal
customary adoptions conducted within tribal courts,
Minnesota appears to be the only state that specifically
recognizes customary adoption performed by tribes through
state courts without termination of the birth parents'
rights. (Minn. Stat. 259.67 Subdiv. 4 (3)(ii).) The
Minnesota statute only mentions customary adoptions in
the context of eligibility conditions for adoption
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assistance under title IV-E of the Social Security Act,
and is otherwise lacking in details and procedures.
Current law allows a dependency court, in specified
cases, to dismiss a proceeding or terminate jurisdiction
and transfer the case to a tribal court. (Section
305.5.) Because most tribes in California do not have
tribal courts, this bill would create a process whereby
the court retains jurisdiction over the child, but, at
the tribe's request, permits the tribe to develop a
customary adoption order for the child.
First, the court would have to find that, while it is
appropriate to terminate parental rights for a dependent
child under the jurisdiction of the court, an Indian
child's tribe has identified tribal customary adoption
for the child and therefore the termination of parental
rights would be detrimental to the child. The court
would still retain jurisdiction over the child after the
determination has been made. A child's tribe or the
tribe's designee would complete the adoptive home study
and perform background checks for all caregivers and
adults living in the prospective home. The standard for
evaluation of the home study would be the prevailing
social and cultural standards of the child's tribe, which
is consistent with ICWA. ( See 25 U.S.C 1915(b).)
The tribe is required, within 120 days, to file with the
court a tribal customary adoption order showing that the
customary adoption has been completed. The tribe may
seek a continuance of up to 60 days to finalize the
order, which the court has discretion to grant. If the
tribe does not file the adoption order with the court in
the allotted time, the court shall make new findings and
orders to determine an alternative permanent plan for the
child. If the tribe submits an order, the court must set
an adoption hearing and issue the tribe's customary
adoption order, giving it full faith and credit, unless
it finds by clear and convincing evidence that doing so
would be detrimental to the child. There is no
requirement that an Indian parent or custodian consent to
the tribal adoption agreement.
A previous version of the bill would have provided that
full faith and credit be given to tribal customary
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adoption orders without regard to the interests of the
child. However, concerns were expressed by the Judicial
Council that the bill appeared to prevent the court from
exercising any discretion with regard to the entry of the
adoption order, thereby making the court's function
essentially clerical, and the hearing unnecessary.
Full faith and credit as required under ICWA does not
mandate the court to apply the law of the tribe in
violation of the legitimate public policy of the state.
( See In re Laura F. et al. v. Tulare County Health and
Human Services Agency, (2000) 83 Cal.App.4th 583; see
also In re Marriage of Maria and Randy Jacobsen, (2004)
121 Cal.App.4th 1187.) In the case of juvenile
dependency proceedings, the primary policy objective of
the state is to ensure that all orders made by the court
are in the best interest of the child who is the subject
of the proceeding. The bill's current language standard
preserves judicial discretion to refrain from issuing the
adoption order in the event that it finds by clear and
convincing evidence that the adoption would be
detrimental to the child. Presumably, the instances
where a tribal customary adoption will be detrimental to
a child will be rare. Nonetheless, in light of the
complex relationship between the courts and the tribes
that this bill would create, the preservation of judicial
discretion is appropriate and necessary.
4.A child who is the subject of a tribal customary adoption
would potentially have more than two legal parents
While there have been academic discussions about
recognizing more than two legal parents, California law
has thus far not recognized more than two legal parents
at any one time. This bill, however, by recognizing a
legal adoption without termination of the birth parents'
rights, would allow for the existence of up to four
parents - the birth parents whose rights have not been
terminated, and the adoptive parents.
In order to minimize the myriad of legal confusions that
could arise from the existence of four parents with legal
rights and responsibilities this bill would require the
tribal customary adoption order to include: (1) the
modification of the legal relationship between the birth
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parents or Indian custodian and the child, including
contact, continuing financial obligations, and
responsibilities and rights of inheritance; and (2) the
child's legal relationship with the tribe. The
order would not include any child support obligation from
the birth parents or Indian custodian. There would be a
conclusive presumption that any rights or obligations not
specified in the tribal customary adoption order vest in
the adoptive parents.
5. This bill would provide that parties engage in family
mediation or dispute resolution prior to filing an
enforcement action in court
Under current law, adoptive families and birth relatives,
and the child's Indian tribe may enter into post-adoption
contact agreements regarding continuing contact with the
adopted child. The adoption cannot be set aside for
failure to comply with a post-adoption contact agreement,
nor can failure to abide by its terms serve as a basis
for a custody order of the child in question. (Family
Code 8616.5.) Courts can only enforce such orders if
the parties first have attempted to negotiate in good
faith to reach resolution and, if the enforcement of the
order is in the best interest of the child. In the case
of Indian children, if parties fail to negotiate in good
faith on a post-adoption agreement, the court may, prior
to finalizing the adoption, modify prior court orders to
ensure the best interests of the Indian child are met.
(Id.)
This bill would, consistent with current law, require
that any disputes arising from the tribal customary
adoption order be resolved by the parties engaging in
family mediation services or other dispute resolution
through the tribe, prior to the filing of an enforcement
action. This process acknowledges the importance of
resolving matters consistent with tribal custom, but
allows parties to resort to court action when necessary.
6. This bill would provide that a child adoption through
tribal customary adoption is eligible for the Adoption
Assistance Program
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In 1998, California established the Kinship Guardianship
Assistance Payment program (the Kin-GAP program) to
provide financial assistance for children who, after
being adjudged dependent children of the juvenile court,
are placed in legal guardianship with a relative. (SB
1901 (McPherson), Ch. 1055, Stats. 1998.) However, funds
available through the Kin-GAP program are significantly
less than those provided through the federal Adoption
Assistance Program. The Adoption Assistance Program may
provide monthly payments to adoptive parents, based on
the adoption agreement signed between the adopting
parents and the public agency. The states and the
federal government share the cost of these subsidies.
Payment amounts are determined through the agreement,
which takes into consideration the needs of the child and
the circumstances of the adoptive family.
The U.S. Department of Health and Human Services,
Administration of Children and Families, has stated:
"One of the criteria for establishing that a child has
special needs is a determination by the State that the
child cannot or should not be returned to the home of his
or her parents. Previous guidance stated that this means
that the State must have reached that decision based on
evidence by an order from a court of competent
jurisdiction terminating parental rights, the existence
of a petition for a termination of parental rights (TPR),
or a signed relinquishment by the parents. It has been
brought to our attention that there are situations in
which adoptions are legal without a TPR. Specifically,
in some Tribes adoption is legal without a TPR or a
relinquishment from the biological parent(s), and there
is at least one State that allows relatives who have
cared for a related child for a period of time to adopt
without first obtaining a TPR. "
"After consideration, we believe that our earlier policy
is an unduly narrow interpretation of the statute.
Consequently, if a child can be adopted in accordance
with State or Tribal law without a TPR or relinquishment,
the requirement of section 473 (c)(1) of the Act will be
satisfied, so long as the State or Tribe has documented
the valid reason why the child cannot or should not be
returned to the home of his or her parents." ( See
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http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws
/cwpm/policy_dsp.jsp?citID=49 , last visited on June 20,
2008.)
Thus, tribal customary adoptions are recognized by the
federal government for the purposes of determining
eligibility for the Adoption Assistance Program.
Accordingly, this bill would provide that children
adopted through tribal customary adoption are eligible
for these funds.
7.This bill contains a sunset of January 1, 2012 and would
require the Judicial Council to submit a report regarding
tribal customary adoptions
Due to the complex, legal relationships which would be
created by this bill, the provisions pertaining to tribal
customary adoption would sunset on January 1, 2012. The
Judicial Council would be required to study the bill's
tribal customary adoption provisions and their effects on
children, birth parents, adoptive parents, Indian
custodians, and the court. The Judicial Council would
also be required to report all of its findings to the
Legislature by January 1, 2011. The required study and
report should provide some immediate information to
assist the Legislature in determining whether the
provisions of this bill are functioning effectively and
should be continued, or whether modifications are
necessary before a lengthier sunset is granted.
Support: Big Sandy Rancheria Band of Western Mono Indians;
Karuk Tribe; County Welfare Directors
Association; Children's Law Center
Opposition:None Known
HISTORY
Source:Soboba Band of Luiseno Indians
Related Pending Legislation:None Known
Prior Legislation:SB 678 (Ducheny), Chapter 838, Statutes
of 2006, affirmed the state's interest in
protecting Indian children and the child's
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interest in having tribal membership and a
connection to the tribal community and makes
legislative findings that express the
state's interest in protecting children who
are members of, or eligible for membership
in, Indian tribes.
Prior Vote:Assembly Human Services Committee (Ayes 6, Noes
0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes
0)
Assembly Floor (Ayes 76, Noes 0)
Senate Human Services Committee (Ayes 4, Noes 0)
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