BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2418|
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                                 THIRD READING


          Bill No:  AB 2418
          Author:   Cook (R)
          Amended:  7/15/10 in Senate
          Vote:     21

           
           SENATE HUMAN SERVICES COMMITTEE  :  3-0, 6/10/10
          AYES:  Liu, Runner, Yee
          NO VOTE RECORDED:  Romero, Vacancy

           ASSEMBLY FLOOR  :  74-0, 5/6/10 - See last page for vote


           SUBJECT  :    Indian children

           SOURCE  :     Soboba Band of Luise?o Indians


           DIGEST  :    This bill revises the definition of Indian child  
          for purposes of an Indian child custody proceeding.

           Senate Floor Amendments  of 7/15/10 modify the definition of  
          "Indian child" for Indian child custody proceedings only  
          and restore the definition of "Indian child" for all other  
          portions of the code division.

           ANALYSIS  :    

           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  
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             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  
             proceedings 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 custodial 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:  (a) foster care placement; (b) termination of  
             parental rights; (c) preadoptive placement; and (d)  
             adoptive placement.  Specifically excludes from the  
             definition of child custody proceeding 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  







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                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.

             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  
             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

             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  







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                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.

           Background
           
          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  
          three 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  







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          disproportionate share of persons in homeless shelters and  
          in prisons.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  7/15/10)

          Soboba Band of Luise?o Indians (source)
          Morongo Band of Mission Indians

           ARGUMENTS IN SUPPORT  :    This bill is 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.


           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Beall, Tom  
            Berryhill, Blakeslee, Blumenfield, Bradford, Brownley,  
            Buchanan, Caballero, Charles Calderon, Carter, Chesbro,  
            Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,  
            Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,  
            Fuller, Furutani, Gaines, Galgiani, Garrick, Hagman,  
            Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,  
            Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,  
            Ma, Miller, Monning, Nava, Nestande, Niello, Nielsen,  
            Norby, V. Manuel Perez, Portantino, Ruskin, Salas,  
            Saldana, Silva, Skinner, Smyth, Solorio, Audra  
            Strickland, Swanson, Torlakson, Torres, Torrico, Tran,  
            Villines, Yamada, John A. Perez
          NO VOTE RECORDED:  Bass, Bill Berryhill, Block, Gilmore,  
            Mendoza, Vacancy


          CTW:do  7/20/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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