BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2418| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ 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 CONTINUED AB 2418 Page 2 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 AB 2418 Page 3 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 AB 2418 Page 4 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 AB 2418 Page 5 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 **** END ****