BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2418
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          Date of Hearing:  April 27, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                     AB 2418 (Cook) - As Amended:  April 21, 2010

           SUBJECT  :  INDIAN CHILDREN: AGE 18 TO 21

           KEY ISSUE  :  SHOULD SELECTED CUSTODY PROCEEDINGS INVOLVING NATIVE  
          AMERICAN YOUNG ADULTS, AGES 18 TO 21, WHO REMAIN UNDER THE  
          JURISDICTION OF THE DEPENDENCY COURT, BE SUBJECT TO THE  
          REQUIREMENTS OF THE INDIAN CHILD WELFARE ACT? 

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS
          
          This bill, sponsored by the Soboba Band of Luise?o Indians,  
          expands the definition of Indian child under the Indian Child  
          Welfare Act (ICWA) to provide various protections to tribes,  
          families and children in certain custody proceedings involving  
          Indian children who are no longer minors.  The bill is carefully  
          crafted to apply just to adult Indian children who are under the  
          age of 21 and who are under the jurisdiction of the dependency  
          court.  In addition, in order to respect the wishes of these  
          young adults, the bill allows them to opt out of ICWA  
          application if they so choose.  The author writes that this bill  
          is necessary to help "provide essential protections to the most  
          vulnerable Indian youth over the age of 18," and allow "more  
          comprehensive and culturally appropriate services to be provides  
          in these service-intensive cases."  There is no reported  
          opposition.

           SUMMARY  :  Revises the definition of Indian child for purposes of  
          an Indian child custody proceeding.  Specifically,  this bill   
          states that for purposes of an Indian child custody proceedings,  
          an "Indian child" is either:

          1)An Indian child as defined by ICWA, which is defined as any  
            unmarried person who is under age 18 and is either (a) a  
            member of an Indian tribe or (b) is eligible for membership in  
            an Indian tribe and is the biological child of a member of an  
            Indian tribe; or 









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          2)An unmarried person age 18 or over, but under 21 years of age,  
            who is either a member of an Indian tribe or eligible for  
            membership in an Indian tribe and the biological child of a  
            member of an Indian tribe, and who is under the jurisdiction  
            of the dependency court, unless that person or his or her  
            attorney elects not to be considered as an Indian child for  
            purposes of the Indian child custody proceeding.  Requires  
            that all Indian child custody proceedings involving persons 18  
            and over must be conducted in a manner that respects the  
            child's status as a legal adult.
           
          EXISTING LAW  :

          1)Defines Indian child as any unmarried person who is under age  
            18 and is either (a) a member of an Indian tribe or (b) is  
            eligible for membership in an Indian tribe and is the  
            biological child of a member of an Indian tribe.  (Welfare &  
            Institutions Code Section 224.1; 25 U.S.C. Section 1903(4).   
            Unless otherwise stated, all further references are to the  
            Welfare & Institutions Code.)

          2)Defines "Indian child custody proceeding" as an Indian child  
            custody proceeding under ICWA, including a proceeding for  
            foster care, guardianship, termination of parental rights,  
            preadoptive placement after termination of parental rights, or  
            adoptive placement.  Specifically excludes a voluntary foster  
            care or guardianship placement if the parent or Indian  
            custodian retains the rights to have the child returned upon  
            demand, and a custody proceeding between a child's parents,  
            unless the proceeding involves freeing a child from the  
            custody or control of a parent.  (Section 224.1; Family Code  
            Section 170.)

          3)Defines a "child custody proceeding" under ICWA to mean a:   
            (a) foster care placement; (b) termination of parental rights;  
            (c) preadoptive placement; and (d) adoptive placement.   
            Specifically excludes from the definition a divorce proceeding  
            where custody is awarded to one of the parents.  (25 U.S.C.  
            Section 1903(1).)

          4)Governs, through ICWA, the specified custody proceedings  
            involving Indian children, including:

             a)   Establishing jurisdictional requirements, and allowing  
               for notice of and intervention in Indian child custody  








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               proceedings by a tribe.  (25 U.S.C. Sections 1911, 1912,  
               1918, 1920.)  
             b)   Providing that an indigent parent or Indian custodian  
               has the right to court-appointed counsel.  (25 U.S.C.  
               Section 1912.)  
             c)   Requiring 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  
               termination of parental rights.  (25 U.S.C. Section 1912.)   

             d)   Prohibiting 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. Section 1912.)  
             e)   Establishing placement preferences for Indian children  
               who are being placed in foster or adoptive placements.  (25  
               U.S.C. Section 1915.)  
             f)   Creating protections for a parent or Indian custodian  
               who voluntarily consents to foster care placement,  
               guardianship or termination of parental rights.  (25 U.S.C.  
               Section 1913.)  

          5)Specifies the law that must be applied to an Indian child  
            custody proceeding.  (Family Code Section 177.)

          6)Specifies the notice that must be given to Indian tribes, as  
            well as the rights of participation of those tribes, in child  
            custody proceedings involving Indian children.  (Family Code  
            Sections 180-85.)

          7)Authorizes the dependency court to continue jurisdiction over  
            a dependent child who has reached the age of majority if the  
            county has not met specified requirements and termination of  
            jurisdiction would harm the child's best interests.  (Section  
            391.)

           COMMENTS  :  While foster children generally emancipate from  
          dependency when they turn 18, dependency courts today may, in  
          certain limited situations, retain jurisdiction over foster  
          youth who have attained the age of majority.  AB 12 (Beall and  
          Bass), now being considered in the Senate, would significantly  
          expand the number of foster youth who are 18 to 21 and still  








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          under the jurisdiction of the dependency court, in order to  
          provide needed support to these young adults.  This bill,  
          sponsored by the Soboba Band of Luise?o Indians, expands the  
          definition of Indian child to provide protections to tribes,  
          families and children in certain custody proceedings involving  
          Indian children who are no longer minors, but are still under  
          the jurisdiction of the dependency court.  Writes the author:

               Currently, state statutes concerning Indian children  
               do not protect Indian youth over the age of 18.  A  
               dependent Indian youth who turns 18 is not considered  
               an "Indian" under the legal definition as it currently  
               stands.  When the Indian youth is deemed non-Indian  
               for purposes such as dependency law, tribes lose the  
               ability to participate and assist in legal proceedings  
               related to the tribal child.

               When the tribal youth, due to her or his age, does not  
               fall within the definition of an Indian Child, the  
               overall interests of Indian youth, families, and  
               tribes suffer.  For example, the youth's particular  
               tribe will have no standing to participate in child  
               custody proceedings, will be precluded from  
               participating in court services, and will be precluded  
               from providing or receiving essential information  
               about the case.  This construct is contrary to the  
               mandate of supporting Indian families contained in  
               federal and state law and contrary to the direction in  
               which child welfare policy is moving (in supporting  
               dependents beyond the age of 18). 

           ICWA and California Law  :  Congress enacted ICWA in 1978 in  
          response to reports that approximately 25 to 35 percent of all  
          Indian children were removed from their families by state child  
          welfare agencies and state courts, and placed in foster or  
          adoptive homes and institutions.  The goal of ICWA is to  
          "protect the best interests of Indian children and to promote  
          the stability and security of Indian tribes and families."  In  
          doing so, 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."  

          ICWA establishes minimum standards that state courts must follow  








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          when removing Indian children from their homes and placing them  
          in foster care or adoptive homes.  Among other things, ICWA  
          requires that (1) notice be provided to tribes in Indian child  
          custody proceedings and they be permitted to intervene in these  
          proceedings; (2) indigent parents or Indian custodians be  
          provided with court-appointed counsel; and (3) "active efforts"  
          must have been made, and failed, to prevent the breakup of the  
          Indian family when a party seeks a foster care placement,  
          guardianship or termination of parental rights.  ICWA does not  
          prevent a state from establishing higher standards and expressly  
          recognizes that where a state has done so, the higher standards  
          will prevail.
                     
          Foster Youth Who Age Out of Foster Care at 18 Face Significant  
          Challenges, But Legislation Now Pending in California May Soon  
          Offer More Support to These Young Adults  :  Studies over the  
          years have shown that outcomes for youth who emancipate from  
          California's foster care system are, by any measure,  
          disheartening.  A recent study by the Casey Family Program and  
          the Harvard Medical School involving more than 600 case records  
          and interviews with 500 former foster youth found that a  
          majority of these young people face major mental health,  
          education, and employment challenges.  One-third of the young  
          people in the study had incomes at or below the poverty level,  
          one third had no health insurance, and nearly a quarter had been  
          homeless after foster care.  A 2007 report from the Children's  
          Advocacy Institute at U.C. San Diego found that less than three  
          percent of former foster youth go to college and 51 percent are  
          unemployed.  In any given year, the report found, foster  
          children comprise less than 0.3 percent of the state's  
          population, and yet 40 percent of persons living in homeless  
          shelters are former foster children.  A similarly  
          disproportionate percentage of the nation's prison population is  
          comprised of former foster youth.

          To help improve these tragic statistics, Congress passed the  
          federal Fostering Connections to Success and Increasing  
          Adoptions Act of 2008, which allows states, among other things,  
          to extend foster care, KinGAP, and adoption assistance to 18 to  
          21-year-old foster youth who meet certain requirements.  AB 12,  
          the California Fostering Connections Act, would, among other  
          things, enable this state to do just that.  Under AB 12, foster  
          youth could continue to receive support after reaching the age  
          of majority.  If they choose to do so, they would remain under  
          the jurisdiction of the dependency court.  However, recognizing  








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          their status as young adults, this bill provides them with some  
          choice as to who may participate in their legal proceedings.

           This Bill Expands Application of ICWA to Specified Proceedings  
          Involving Young Adults Under the Jurisdiction of the Dependency  
          Court  :  Currently, ICWA applies to specified custody proceedings  
          involving Indian children under the age of 18, including foster  
          care proceedings, proceedings to terminate parental rights and  
          adoption proceedings.  This bill expands that to include adult  
          Indian children under the age of 21 who are under the  
          jurisdiction of the dependency court.  Thus, adult Indian  
          children over whom the dependency court has retained  
          jurisdiction, as well as children receiving services and support  
          under AB 12, should that bill become law, would be considered  
          Indian children for purposes of ICWA application in proceedings,  
          including dependency, termination of parental rights and  
          adoption proceedings.  

          This bill, however, recognizes that these youth are adults and  
          capable of making independent decisions and does not make ICWA  
          application automatic.  This bill appropriately allows an adult  
          Indian child to opt out of ICWA application, if he or she so  
          chooses.  In addition, the bill requires that any custody  
          proceedings involving an adult Indian child must be conducted in  
          a manner that respects the person's status as a legal adult.   
          These provisions allow the 18 to 21 year old Indian child the  
          autonomy in decisionsmaking that appropriately belongs to a  
          young adult.

           Proposed Amendments  :  As currently drafted, this bill applies  
          only to Indian children over the age of 18.  The author,  
          however, has asked that the bill apply to youth age 18 and over.  
           The following amendments make that clarification:

          On page 2, line 17, delete "over"
           
          On page 2, line 17, after "age" insert "or over"

          This bill, assuming it passes out of this Committee, will be  
          heard in the Assembly Human Services Committee later today.  The  
          author has agreed to accept these clarifying amendments in that  
          Committee.

           REGISTERED SUPPORT / OPPOSITION :   









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           Support  

          None on file

           Opposition  

          None on file
           
          Analysis Prepared by  :  Leora Gershenzon / JUD. / (916) 319-2334