BILL ANALYSIS AB 2418 Page 1 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 AB 2418 Page 2 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 AB 2418 Page 3 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 AB 2418 Page 4 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 AB 2418 Page 5 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 AB 2418 Page 6 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 : AB 2418 Page 7 Support None on file Opposition None on file Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334