BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 2418
A
AUTHOR: Cook
B
VERSION: April 29, 2010
HEARING DATE: June 10, 2010
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FISCAL: To the floor
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1
CONSULTANT:
8
Hailey
SUBJECT
Indian children
SUMMARY
Revises the definition of Indian child for purposes of an
Indian child custody proceeding.
ABSTRACT
Current 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.
2) Defines "Indian child custody proceeding" as an Indian
child custody proceeding under the federal Indian Child
Welfare Act (ICWA; 25 U.S.C. Sec. 1901 et seq.), including
a proceeding for foster care, guardianship, termination of
parental rights, pre-adoptive placement after termination
of parental rights, or adoptive placement. Specifically
excludes a voluntary foster care or guardianship placement
Continued---
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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.
3) Defines a "child custody proceeding" under ICWA to
mean:
a) foster care placement;
b) termination of parental rights;
c) pre-adoptive placement; or
d) adoptive placement. Specifically excludes from the
definition a divorce proceeding where custody is awarded to
one of the parents.
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 proceedings by a tribe;
b) Providing that an indigent parent or Indian custodian
has the right to court-appointed counsel;
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;
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;
e) Establishing placement preferences for Indian children
who are being placed in foster or adoptive placements; and,
f) Creating protections for a parent or Indian custodian
who voluntarily consents to foster care placement,
guardianship or termination of parental rights.
5) Specifies the law that must be applied to an Indian
child custody proceeding.
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
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children.
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.
This bill
1) States that for purposes of an Indian child custody
proceedings, an "Indian child" is either:
a) An Indian child, as defined by ICWA -- any unmarried
person who is under age 18 and is either a member of an
Indian tribe or is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian
tribe; or
b) 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.
2) 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.
FISCAL IMPACT
None
BACKGROUND AND DISCUSSION
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 by this committee, would
expand the number of adults who are 18 to 21 and still
under the jurisdiction of the dependency court, in order to
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provide them needed support.
According to the author, AB 2418, 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.
The Indian Child Welfare Act establishes minimum standards
that state courts must follow 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.
Studies over the years have shown that outcomes for youth
who emancipate from California's foster care system are, by
any measure, sobering. 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
daunting 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 3
percent of former foster youth go to college and 51percent
are unemployed. In any given year, the report found,
adults who were foster children comprise a disproportionate
share of persons in homeless shelters and in prisons.
To improve these outcomes, Congress passed the 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
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21-year-old adults emancipating from the foster care system
and who meet certain requirements. As noted above, AB 12,
currently under consideration, would enable California to
realize this federal opportunity. Under AB 12, some young
adults could continue to receive support; if they choose to
do so, they would remain under the jurisdiction of the
dependency court. This bill, AB 2418, recognizes the adult
status of young Indians emancipating from foster care, and
it provides them with some choice as to who may participate
in their legal proceedings.
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,
young Indian adults 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.
The author believes that these steps are necessary to bring
California law regarding Indian dependent youth and young
adults into conformity with the policy direction of the
federal Fostering Connections Act - and the state's
Fostering Connections Act if that becomes law.
Assembly votes
Human Services Committee 6-0
Appropriations Committee 10-0
Floor 74-0
POSITIONS
Support: Soboba Band of Luise?o Indians, sponsor
Morongo Band of Mission Indians
Oppose: None received
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