BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1325
Assembymembers Cook and Beall
As Amended May 6, 2009
Hearing Date: July 14, 2009
Family Code; Welfare and Institutions Code
KB:jd
SUBJECT
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. Sec. 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. Sec. 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 federal
standards by: (1) establishing jurisdictional requirements; (2)
allowing for notice of and intervention in Indian child custody
(more)
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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.S.C. Sec. 1911 et seq.)
In 2006, SB 678 (Ducheny, Chapter 838, Statutes of 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 was approved by the Senate Committee on Human Services
on June 23, 2009.
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. Sec. 1901 et seq.)
Existing federal law establishes jurisdictional requirements.
(25 U.S.C. Sec. 1911.)
Existing federal law allows for notice of and intervention in
Indian child custody proceedings by a tribe. (25 U.S.C. Sec.
1912.)
Existing federal law provides that the acts, records, and
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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. Sec.
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. Sec. 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. Sec. 1912.)
Existing federal law establishes placement preferences for
Indian children who are being placed in foster or adoptive
placements. (25 U.S.C. Sec. 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.
Sec. 1915.)
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. (Welf. & Inst. Code Sec. 358.1.)
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. (Welf. & Inst. Code Sec. 366.26.)
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Existing state law affirms that it is in the interests of Indian
children to have their tribal membership and connection to the
tribal community encouraged and protected and that courts must
take this into consideration when determining the best interest
of the Indian child and recognize that the child's tribal
membership or eligibility for membership constitutes a
significant political affiliation with the tribe. (Wel. & Inst.
Code Sec. 224.)
Existing state law defines "Indian custodian" to be, as defined
under ICWA, any Indian person who has legal custody of an Indian
child under tribal law or custom or under state law or to whom
temporary physical care, custody, and control has been
transferred by the parent of such child. (Wel. & Inst. Code
Sec. 224.1.)
Existing state law requires the court, in any Indian child
custody proceeding, to give full faith and credit to the public
acts, records, judicial proceedings, and judgments of any Indian
tribe applicable to the proceeding to the same extent that full
faith and credit is given to any other entity. (Wel. & Inst.
Code Sec. 224.5.)
This bill would define "tribal customary adoption" as adoption
by and through tribal custom, traditions, or law and specifies
that termination of parental rights is not required to effect
the adoption.
This bill would require tribal customary adoption orders to
describe the modification of the relationship between the birth
parents or Indian custodian and child, including contact, if
any, between the birth parents or custodian and the child, the
responsibilities of the birth parents or custodian and the
child's rights of inheritance, as well as the child's legal
relationship to the tribe. This bill would establish a
presumption that parental rights or obligations not specified in
the order vest in the adoptive parents.
This bill would specify that individuals who may be, will be, or
are adoptive parents through a tribal customary adoption have
all of the rights and privileges given to other adoptive parents
in the state and that the prior consent of the birth parents or
Indian custodian is not necessary to establish a tribal
customary adoption.
This bill would require the tribe or its designee, as specified,
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to conduct an adoptive home study prior to final approval of an
adoptive placement.
This bill would establish the standard for evaluating the
adoptive home as the prevailing social and cultural standards of
the child's tribe.
This bill would require the tribe or its designee to conduct
specified background checks to the extent required by federal
law as a condition of receiving Title IV-E funding.
This bill would require the court to continue the selection and
implementation hearing for a period not to exceed 120 days to
permit the tribe to complete the tribal customary adoption
process and file an order to document its completion. This bill
would further authorize the court to grant a continuance if
additional time of up to 60 days is needed. This bill would
direct the court to make new findings and orders if the
customary adoption is not completed during that time.
This bill would require that social workers or child advocates
include information in each social study or evaluation given to
the court on whether tribal customary adoption is an appropriate
permanent plan for an Indian child if reunification was not
successful.
This bill would require that this information be provided in
consultation with the Indian child's tribe.
This bill would specify that if a court does not order family
reunification services, it shall, at the dispositional hearing,
determine if a hearing to terminate parental rights shall be set
in order to determine the most appropriate plan for the child,
which could include tribal customary adoption.
This bill would, after the court has ordered that a hearing to
terminate parental rights be held, require the assessment the
agency prepares to include a preliminary assessment of the
eligibility and commitment of a prospective tribal customary
adoptive parent. When tribal customary adoption is recommended,
this bill would also require assessment to include the
likelihood of adoption, whether or not a customary adoption
would be detrimental to the child, and whether the Indian child
cannot or should not be returned to the home of the Indian
parent or custodian.
This bill would add a tribal customary adoption order to the
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list of compelling reasons for which a court may find that
termination of parental rights over an Indian child would not be
in a child's best interests. This bill would specify that a
court shall not terminate parental rights if the court has
ordered a tribal customary adoption.
This bill would add tribal customary adoption, without
termination of parental rights, as an order the court may make
at a hearing regarding the possible termination of parental
rights. This bill would prioritize this option behind the
termination of parental rights and placement of the child for
adoption, and before the appointment of a relative guardian,
establishment of a goal of adoption, appointment of a
nonrelative guardian, and placement in long-term foster care.
This bill would require the court to set an adoption hearing at
which the tribal customary adoption order shall be filed if the
Indian child's tribe has elected a permanent plan of tribal
customary adoption.
This bill would specify that the court will, upon receipt of the
tribal order, afford the order full faith and credit to the same
extent as it applies to the public acts, records, judicial
proceedings, and judgments of other entities, and, upon a
determination that the order can be afforded full faith and
credit, thereafter issue an order of tribal customary adoption.
This bill would require the court to terminate its jurisdiction
over an Indian child after a tribal customary adoption has been
completed and the order of adoption has issued.
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 a tribal customary adoption order.
This bill would specify that a tribal customary adoption has the
same force and effects as other adoption orders and that the
rights and obligations of all parties are binding. This bill
would prohibit a court from ordering compliance with the tribal
customary adoption order unless the party seeking enforcement
participated or attempted to participate in good faith in family
mediation services through the court, or dispute resolution
through the tribe, prior to filing the enforcement action.
This bill would exempt tribal customary adoptions from various
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provisions of the Family Code applicable to adoptions generally,
including those related to birth parent consent, the minimum age
difference of 10 years between the child and prospective
adoptive parent and the requirement that a child over the age of
12 years consent to the adoption.
This bill would require the Judicial Council to adopt, before
July 1, 2010, rules of court and forms to implement tribal
customary adoption as a permanent plan for dependent Indian
children.
This bill would require the Judicial Council to study tribal
customary adoption and its affect on children, birth parents,
adoptive parents, Indian custodians, tribes, and the court, and
report all of its findings to the Legislature on or before
January 1, 2013.
This bill would contain a sunset of January 1, 2014.
COMMENT
1. Stated need for the bill
The author states:
For most tribes in the U.S., adoption has been practiced
within the tribe through tribal law, custom, or tradition.
However, TPR [termination of parental rights] is totally
contrary to many tribes' cultural beliefs and it is, in fact,
associated with some of the most oppressive policies
historically used against tribes and Indian people - for
example, forced removal of Indian children and Indian boarding
schools . . .
? Further, TPR has cultural implications for the entire tribal
community, disrupting important cultural norms of family
structure, completely changing the fundamental dynamics and
familial order. Additionally, this might affect the child's
ability to be a full member of the tribe, create barriers to
full participation in tribal life, and might prevent the child
from accessing services and benefits available to tribal
members.
Tribes, to avoid TPR when an Indian child cannot reunify with
birth parents, often advocate that the Indian child remain in
a permanent plan of guardianship. However, guardianship does
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not offer the permanency that adoption does, nor does it allow
for the supportive resources available to families where there
is TPR. Further, adoption assistance is not available to
families where there is a guardianship.
The motivation for AB 1325 was borne out of the tension
between tribal cultural norms and existing state law, which
does not include a culturally appropriate means of achieving
permanency for dependent Indian children. The experience of
many tribes and tribal families engaged in the dependency
system is that of being pressured to accept TPR and adoption
despite articulating fundamental opposition to TPR. AB 1325
will allow Indian children and families to realize the
permanency and support of adoption without the culturally
offensive precursor of TPR by providing "Customary Adoption"
as an additional option for permanency planning in ICWA cases.
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 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
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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
adoptions 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 assistance under title IV-E of
the Social Security Act, and is otherwise lacking in details and
procedures.
Current California law allows a dependency court, in specified
cases, to dismiss a proceeding or terminate jurisdiction and
transfer the case to a tribal court. (Wel. & Inst. Code Sec.
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.
The process would begin after the court has ordered that a
hearing to terminate parental rights for an Indian child be
held. At that point, the child welfare agency must, in their
assessment, address the issue of tribal customary adoption and
whether it may be appropriate. When tribal customary adoption
is recommended, the child welfare agency assessment must include
the likelihood of adoption, whether or not a customary adoption
would be detrimental to the child, and whether the Indian child
cannot or should not be returned to the home of the Indian
parent or custodian.
Under the bill, a tribal customary adoption order is added to
the list of compelling reasons for which a court may find that
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termination of parental rights over an Indian child would not be
in a child's best interests. 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. Sec. 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.
There is no requirement that an Indian parent or custodian
consent to the tribal adoption agreement.
Under ICWA, states must afford full faith and credit to tribal
acts, records, and judicial proceedings to the same extent that
the acts, records, and judicial proceedings of another state
would be granted full faith and credit. 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.
This bill, consistent with existing law, would provide that the
court shall issue a tribal adoption order upon determining that
it may be afforded full faith and credit. Thus, a court would
not be required to enter an order that it determined was not in
the best interests of the child under the court's jurisdiction.
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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 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. (Fam. Code Sec. 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
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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
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
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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
http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/
cwpm/policy_dsp.jsp?citID=49, last visited on June 22, 2009.)
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, 2014 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, 2014. 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, 2013. 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 : California State Association of Counties; California
Valley Miwok Tribe;
California Welfare Directors Association; County Welfare
Directors Association of California; Elem Indian Colony of Pomo
Indians; Habematolel Pomo of Upper Lake;
Iipay Nation of Santa Ysabel; Los Coyotes Band of Indians;
Kashia Band of Pomo Indians; Middletown Rancheria Band of Pomo
Indians; Morongo Band of Mission Indians; North Fork Rancheria
of Mono Indian of California; Pechanga Band of Luse?o Mission
Indians; Pinoleville Pomo Nation; Ramona Band of Cahuilla
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Indians; Redding Rancheria; Robinson Rancheria Band of Pomo
Indians; Rincon Band of Luiseno Indians;
San Pasqual Band of Mission Indians; one individual
Opposition : None Known
HISTORY
Source : Soboba Band of Luiseno Indians
Related Pending Legislation : None Known
Prior Legislation : AB 2736 (Cook and Beall, 2008) would have
established 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.
This bill died on the Senate Inactive file.
Prior Vote :
Assembly Human Services (Ayes 6, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
Senate Human Services Committee (Ayes 5, Noes 0)
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