BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 678 S
Senator Ducheny B
As Amended August 22, 2005
Hearing Date: August 23, 2005
Family, Probate, and Welfare and Institutions Codes 6
MJM:cjt 7
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SUBJECT
Indian Children
DESCRIPTION
This bill would revise and recast the portions of the
Family, Probate, and Welfare and Institutions (W & I) Codes
that address Indian child custody proceedings by codifying
into state law various provisions of the federal Indian
Child Welfare Act (ICWA), the Bureau of Indian Affairs
(BIA) Guidelines for State Courts, and state Rules of
Court. Specifically, this bill would:
Affirm the state's interest in protecting Indian children
and the child's interest in having tribal membership and
a connection to the tribal community;
Clarify that ICWA applies to certain proceedings under
the Probate and Family Codes, as well as the W & I code;
Specify the requirements necessary for giving proper
notice when it is known or there is reason to know that a
proceeding involves an Indian child;
If the child has more than one tribal affiliation,
clarify the factors a court should consider when
determining which tribe is the child's tribe for purposes
of an Indian child custody proceeding;
Specify the circumstances under which a proceeding shall
or may be transferred to a tribal court;
Clarify the placement preferences for out-of-home
placements for Indian children and when a court may
deviate from the preferences;
(more)
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Require that active efforts be made to prevent the
breakup of the Indian family and provide guidance as to
what constitutes active efforts;
Clarify who may qualify as a "qualified expert witness"
for purposes of testifying whether continued custody of
the parent would result in physical or emotional damage
to the Indian child; and
Establish specified exceptions to the termination of
parental rights to an Indian child.
BACKGROUND
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, Congress enacted
the Indian Child Welfare Act (ICWA) in 1978. The goal of
ICWA was 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 the
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 when removing Indian children from their home and
placing them in foster or adoptive homes. ICWA does not
prevent Congress or any state from establishing higher
standards and expressly recognizes that where Congress or a
state has done so, the higher standards shall prevail.
ICWA has never been amended but is supplemented by federal
regulations governing notice and the funding and
administration of tribal Indian child and family service
programs authorized under the ICWA. The Department of the
Interior, Bureau of Indian Affairs, has also issued
Guidelines for State Courts; Indian Child Custody
Proceedings.
California's implementation of ICWA into state law has been
piecemeal. As a result, parties must look to state
statutes, court rules, federal statutes and regulations,
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and BIA-issued guidelines to determine how to comply with
the terms of ICWA.
This committee held an informational hearing on May 17
regarding ICWA and related compliance problems.
Representatives from various tribes, the Department of
Social Services, the County Welfare Directors Association,
and California Indian Legal Services testified at the
hearing and highlighted significant ICWA compliance issues
that still plague tribes and practitioners despite ICWA's
long existence.
CHANGES TO EXISTING LAW
1. Existing federal law , the Indian Child Welfare Act,
governs specified custody proceedings involving Indian
children. ICWA establishes jurisdictional requirements,
allows for notice of and intervention in Indian child
custody proceedings by a tribe. [25 U.S.C. Sections
1911, 1912, 1918, 1920.] ICWA provides that the acts,
records and judicial proceedings of tribal courts are
entitled to full faith and credit to the same extent
that the acts, records or judicial proceedings of
another state would be. [Section 1911.] ICWA provides
that an indigent parent or Indian custodian has the
right to court-appointed counsel. [Section 1912.] ICWA
requires 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. [Section 1912.] ICWA
prohibits 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. [Section 1912.] ICWA
establishes placement preferences for Indian children
who are being placed in foster or adoptive placements.
[Section 1915.] ICWA creates protections for a parent
or Indian custodian who voluntarily consents to foster
care placement, guardianship or termination of parental
rights. [Section 1913.] ICWA requires states to keep
records of Indian child placements and provide them to
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the Secretary of the Interior and the child's tribe.
[Sections 1915 and 1951.] ICWA provides that an Indian
adult who was adopted as a child may unseal his or her
adoption records for the purpose of protecting any
rights flowing from their tribal affiliation. [Section
1917.]
This bill would codify these provisions of ICWA into
state statute. (See Comment section for full
description.)
2. Existing state law provides that where Title 25 of the
United States Code (Indians), which includes the ICWA,
applies to a guardianship or conservatorship proceeding,
the provisions of the Probate Code are subject to Title
25 and, if inconsistent with Title 25, are superseded by
it. [Probate Code Section 2112.]
Existing state law affirms that it is in the interests
of Indian children to have their tribal membership and
connection to the tribal community encouraged and
protected and that state courts must take this into
consideration when determining the best interest of the
Indian child and recognize that the child's tribal
membership or eligibility for membership constitutes a
significant political affiliation with the tribe.
[Family Code Section 7810.]
Existing state law provides that the application of the
ICWA in Indian child custody proceedings is mandatory.
[Family Code Section 7810 and W & I Code Section 360.6.]
Existing state law affirms that if a presumed father's
waiver or rights in a voluntary proceeding must be
executed in accordance with the ICWA in the case of an
Indian child and that the waiver does not affect the
child's tribe's rights under the ICWA. [Family Code
Section 7660.5.]
Existing state law requires that notice be given to the
child's tribe in voluntary adoption proceedings and
affirm that the tribe has the right to intervene in such
proceedings. [Family Code Section 8620.]
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Existing state law recognizes that tribes may enter into
agreements with adopting parents to permit continuing
contact between the child and the tribe. [Family Code
Section 8620.]
Existing state law requires parents of an Indian child
to be informed of their right to withdraw their consent
to an adoption at any time prior to the making of a
final order for termination of parental rights or
adoption. [Family Code Section 8620.]
Existing state law requires civil penalties to be
assessed against persons other than a birth parent who
knowingly and willfully take action to conceal the
child's Indian status or remove the child from
California for the purpose of avoiding notice being
given to the child's tribe. [Family Code Section 8620.]
Existing state law authorizes the Director of the
Department of Social Services to enter into tribal-state
agreements under Section 1903 of ICWA. [W & I Code
Sections 10553.1 - 10553.3.]
Existing state law provides for notice in accordance
with ICWA. [W & I Code Sections 290.1 through 297.]
Existing state law requires Indian child custody
proceedings be transferred to an Indian child's tribe in
specified circumstances. [W & I Code Section 305.5.]
Existing state law affirms that a social worker may
place a dependent child in a home or facility authorized
under the ICWA. [W & I Code Section 361.2.]
Existing state law establishes placement preferences for
delinquents with tribal members when relative placements
are not available. [W & I Code Section 727.1.]
This bill would revise and recast these provisions of
state law to include additional provisions of ICWA, and
Rules of Court. (See Comment section for full
description.)
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COMMENT
1. Need for the bill
According to the sponsor of this bill, California Indian
Legal Services (CILS), although ICWA was enacted more
than 25 years ago, state courts and county agencies in
California continue to violate not only the spirit and
intent of ICWA, but also its express provisions. Of
significant concern is the inability of tribes to
participate in child custody proceedings because they
fail to be properly notified of the proceedings. If a
tribe is notified and intervenes, according to the
sponsor, too often its voice is ignored. Indian
children continue to be adopted outside of their tribal
communities against the wishes of their tribes.
The sponsor points to the myriad of appellate court
decisions involving ICWA in recent years (30 published
and 270 unpublished cases since 2000). CILS contends
that these numbers demonstrate that county social
workers, courts and other parties still have difficulty
complying with ICWA's requirements. Accordingly, the
sponsor proposes substantial amendments to the Family,
Probate, and Welfare and Institutions Codes to alleviate
confusion and ensure that the Act's objective, "to
protect the best interests of Indian children and to
promote the stability and security of Indian tribes and
families" is met.
2. This bill reworks and reorganizes existing law
addressing Indian child custody proceedings
In seeking to ensure ICWA compliance and alleviate
confusion, this bill proposes to reorganize and
supplement existing state law regarding Indian child
custody proceedings. This bill would delete the current
scattered provisions in the Family and Probate Codes
addressing ICWA compliance, and would incorporate
identical legislative findings, notice procedures, and
definitions into each of the Family, Probate and W & I
Codes. This bill would implement the substantive
provisions of ICWA, including placement preferences, and
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jurisdictional requirements, in the W & I Code and would
cross-reference those provisions in the Family and
Probate Codes.
However, as evidenced by the opposition and concerns
raised by CWDA and various adoption advocates, not all
of the changes are merely codification of existing
federal law or guidelines. (See particularly Comments 3
and 4.)
The legislative findings proposed by this bill express
the state's interest in protecting children who are
members of, or eligible for membership in, Indian
tribes. This bill would declare that the state is
committed to protecting the essential tribal relations
and the best interest of Indian children by promoting
practices in accordance with ICWA and other applicable
laws that prevent the child's involuntary out-of-home
placement if possible, and if not possible by placing
the child in a placement that reflects the unique values
of the child's tribal culture and is best able to assist
the child in establishing, developing and maintaining a
political, cultural, and social relationship with the
child's tribe and tribal community. This bill would
declare that the child's membership and connection with
the tribe and tribal community should be encouraged
whether the child is in the physical custody of a parent
or Indian custodian at the time of the custody
proceeding, the parental rights of the parent have been
terminated, or where the child has resided or been
domiciled.
3. This bill would require and define "active efforts" to
prevent the breakup of the Indian family
A. Active efforts must be proven by clear and
convincing evidence: Academy of Adoption Lawyers
(ACAL) opposition
ICWA requires that active efforts be made to prevent
the breakup of the Indian family before parental
rights may be terminated or a child may be placed in
foster care. This bill would provide that in all
Indian child custody proceedings under the Family,
Probate, or W & I Codes, the court must find by clear
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and convincing evidence that active efforts have been
made. A description of what constitutes active
efforts would be set forth in the W & I Code by this
bill. Notably, neither ICWA nor the BIA guidelines
explicitly require active efforts be proven by clear
and convincing evidence, but are silent on the
evidentiary standard for active efforts. The sponsor
maintains that the clear and convincing standard is
appropriate because ICWA and the BIA guidelines
require elevated evidentiary standards for the other
finding that must be made before parental rights are
terminated. For example, the BIA guidelines require
clear and convincing evidence that continued custody
with the parent or Indian custodian is likely to
result in physical or emotional damage to the child.
Importantly, this bill would require that active
efforts be made in private proceedings to the same
extent that they must be made in a government
initiated termination of parental rights. The ACAL
expresses opposition to this provision of the bill
because they believe the additional costs and burdens
placed on private parties seeking to adopt Indian
children will be too high and adoptions and permanent
placements for these children will be significantly
impacted by these provisions if enacted. ACAL
asserts:
Our state laws have always differentiated between
the justifiably high standards set for a
governmental removal of children from homes, as
opposed to the lower standards applied to a
private party who seeks to formalize a de facto
family relationship by completing an adoption.
This section of SB 678 would remove that
distinction and essentially render it impossible
for private party caretakers to adopt children of
Indian heritage no matter how long they have cared
for the children or how long the Indian parent has
failed to provide for the child. No private party
can marshal the resources to provide the same
level of "active efforts" toward family
reunification that is and should be required when
the government removes children from homes.
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Although ACAL agrees that ICWA provisions apply to
private party adoptions, they believe there should be
a difference in the requirements and precautions that
must be adhered to when the person effecting the
termination or adoption is a private party instead of
the state. Notably, though, neither ICWA nor the BIA
guidelines differentiate between adoptions or
termination of parental rights initiated by private
parties rather than the state.
B. Opposition to proposed standards for what
constitutes active efforts
This bill would incorporate language from the BIA
guidelines which provide that active efforts should
be assessed on a case-by-case basis, taking into
account the prevailing social and cultural values,
conditions and way of life of the Indian child's
tribe. This bill would provide that active efforts
shall utilize the Indian child's extended family,
tribe, tribal and other Indian social service
agencies. This bill would also provide a list of six
actions which may constitute active efforts. This
list is not included in ICWA or the BIA guidelines,
but rather has been gleaned from caselaw on the
subject.
CWDA and ACAL are extremely concerned that the list,
although purportedly for example only and intended to
lessen confusion on the part of practitioners, will
in essence create a mandate upon social workers and
private parties to do those activities listed in the
statute. They argue that neither ICWA nor the BIA
guidelines define active efforts because active
efforts should be assessed on a case-by-case basis.
They point out that the active efforts that must be
made in the case of an Indian child are similar to
the reasonable efforts requirement for non-Indian
children and contend that the Legislature has
declined to provide examples of reasonable efforts
for the same reason. CWDA and ACAL rely on the
commentary to the BIA guidelines which acknowledge
that consideration was given to establishing detailed
criteria and procedures to determine whether active
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efforts were made, but was rejected because it would
require the court to second-guess the professional
judgment of social service agencies. "The Act does
not contemplate such a role for the courts and they
generally lack the expertise to make such judgments."
The sponsor of the bill maintains that this list has
been included not to create a mandatory list of
active efforts which must be provided in each base,
but to provide suggestions for those who must engage
in active efforts. Too often, social workers and
parties who must engage in active efforts are
understandably confused about how to make active
efforts to prevent the breakup of the Indian family.
As the author and sponsor acknowledge their intent in
including this list is not to mandate that these
actions necessarily be taken in every case, they have
committed to working with ACAL and CWDA to craft
language which will clarify that their intent is to
provide a list of examples only.
4. This bill would require the testimony of a qualified
expert witness to free an Indian child from the custody
and control of a parent or to terminate parental rights:
Opposition from ACAL
This bill would provide that before the court may
declare an Indian child free from the custody or control
of a parent, or terminate parental rights, the court
must find, supported by evidence beyond a reasonable
doubt, that the continued custody of the child by the
parent is likely to result in serious physical or
emotional damage to the child. This standard is adopted
from ICWA.
This bill would incorporate the definition and
description of a qualified expert witness directly from
the federal guidelines. Accordingly, after amendments
taken in response to concerns raised by CWDA and ACAL,
this bill would now provide that persons with the
following characteristics are most likely to meet the
requirements for a qualified expert witness for Indian
child custody proceedings:
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a member of the Indian child's tribe who is
recognized by the tribal community as knowledgeable in
tribal customs as they pertain to family organization
and childrearing;
any expert witness having substantial experience in
the delivery of child and family services to Indians
and extensive knowledge of prevailing social and
cultural standards within the child's tribe; or
a professional person having substantial education
and experience in the area of his or her specialty.
However, this bill would expand slightly the role of the
qualified expert witness from the role described in the
BIA guidelines, and ACAL expresses concerns about this
modification. This bill would require the court, before
terminating parental rights or involuntarily placing an
Indian child in foster care, to require the testimony of
a qualified expert witness to testify whether the
continued custody of the child with the parent is likely
to result in serious emotional or physical damage to the
child and to consider evidence of the prevailing social
and cultural standards of the Indian child's tribe,
including the tribe's family organization and child
rearing practices.
ACAL contends that the ICWA only requires the qualified
expert witness to testify regarding the damage to the
child if custody is continued with the parent or Indian
custodian. ACAL argues that the language of this bill
requiring the qualified expert witness to verify that
the social and cultural standards of the tribe have been
considered expands the role of the qualified expert
witness beyond that contemplated by ICWA, which only
explicitly requires the court to consider whether
continued custody would result in harm to the child.
ACAL maintains that there is no reason for the court to
consider the prevailing cultural standards of the
tribe-the sole consideration should be the harm to the
child.
The sponsor, however, argues that the prevailing
cultural standards, including the tribe's family
organization and child rearing practices are intimately
related to whether the child will be harmed by the
continued custody with the parent or Indian custodian.
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The sponsor points to the commentary to the BIA
guidelines to support this conclusion.
[K]nowledge of tribal culture and child rearing
practices will frequently be very valuable to the
court. Determining the likelihood of future harm
frequently involves predicting future behavior -
which is influenced to a large degree by culture.
Specific behavior patterns will often need to be
placed in the context of the total culture to
determine whether they are likely to cause serious
emotional harm.
Accordingly, the sponsor maintains that consideration of
the prevailing cultural standards is implied in ICWA's
requirement that the qualified expert witness testify
whether continued custody will result in harm to the
child.
This bill would also provide that the parent, Indian
custodian or tribe may waive the requirement of
producing evidence of the likelihood of serious damage
to the child only if the court is satisfied that the
party has been fully advised of the requirements of ICWA
and that the party has knowingly, intelligently, and
voluntarily waived them.
5. This bill clarifies which proceedings, under California
law, are Indian child custody proceedings and subject to
ICWA
This bill would incorporate identical language into the
Family, Probate, and W & I Codes providing that terms
"Indian," "Indian child," "Indian child's tribe,"
"Indian custodian," "Indian organization," "Indian
tribe," "reservation," and "tribal court" are to be
defined as they are defined in ICWA. This bill would
further clarify which proceedings under state law are
Indian child custody proceedings and subject to ICWA.
In the Family Code, this bill would provide that ICWA
applies to the termination of parental rights, adoptive
placements, and voluntary or involuntary proceedings
that may result in the Indian child's temporary or
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long-term foster care or guardianship placement if the
parent or Indian custodian cannot have the child
returned upon demand. The bill would clarify that ICWA
does not apply to custody disputes between parents,
unless the proceeding involves a petition to declare the
child free from the custody and control of a parent and
the grant of custody to a person other than a parent
over the objection of a parent.
In the Probate Code, this bill would provide that Indian
child custody proceedings include voluntary or
involuntary proceedings that may result in an Indian
child's temporary or long-term foster care or
guardianship placement if the Indian parent or Indian
custodian cannot have the child returned upon demand,
termination of parental rights, or adoptive placement.
This bill would clarify that the ICWA applies to any
guardianship or conservatorship proceeding in which the
proposed ward or conservatee is an Indian child and the
proposed guardian is not the natural parent or Indian
custodian of the child, unless the proposed guardian has
been selected by the natural parents and the parents
retain the right to the return of the child upon demand.
It would also apply to proceedings to have the Indian
child declared free from the custody and control of one
or both parents, and to proceedings in which the
proposed conservatee is a minor whose marriage has been
dissolved and the proposed conservator is seeking
physical custody of the Indian child and is not the
natural parent or Indian custodian of the minor and the
natural parent or Indian custodian does not retain the
right to have the child returned upon demand.
In the Welfare and Institutions Code, this bill would
clarify that Indian child custody proceedings include
proceedings for temporary or long-term foster care or
guardianship placement, termination of parental rights,
preadoptive placements after termination of parental
rights, and adoptive placements. It would clarify that
an Indian child custody proceeding does not include a
voluntary foster care or guardianship placement if the
parent or Indian custodian can have the child returned
upon demand.
6. This bill would require notice procedures that mirror
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federal guidelines
ICWA requires notice of any involuntary Indian child
custody proceeding be provided to the parent, Indian
custodian, and the child's tribe. California law also
provides that notice be provided in voluntary
proceedings as well. The BIA guidelines provide
detailed recommendations regarding the contents and
procedures for issuing such notice. This bill would
incorporate the notice procedures and contents of the
BIA guidelines into state law.
Specifically, this bill would require, in any Indian
child custody proceeding, that notice of the proceedings
be sent the child's parent or legal guardian, Indian
custodian, if any, and the Indian child's tribe. This
notice must be sent registered or certified mail, and it
must be sent to the tribal chairperson, unless the tribe
designates another agent. Notice shall be sent to all
tribes to which the child may be a member or eligible
for membership until the court determines which tribe is
the child's tribe. The notice must also be sent to the
BIA. The notice must include, if known, the name,
birthdate and birthplace of the Indian child, the name
of any Indian tribe in which the child is a member or
may be eligible for membership, and all names and
addresses of the child's biological parents,
grandparents, great-grandparents, including identifying
information such as birthplaces and dates, dates of
death and tribal enrollment numbers. The notice must
also contain a copy of the petition, the child's birth
certificate if available, and the location, mailing
address and telephone number of all parties notified.
It must also include a statement of rights of the
child's parents, Indian tribe, and Indian custodian and
confidentiality.
CWDA has raised concerns about the requirement that
notice include the names, locations and addresses of all
parties notified. CWDA notes that although federal law
does not provide an exception for situations in which a
party's safety might be jeopardized by the release of
his or her location or address, such as situations
involving domestic violence, it would be appropriate to
have such an exception in state law. The sponsor and
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author agree, and have committed to work with CWDA as
the bill moves along to create such an exception.
As suggested in the BIA guidelines, this bill would
require notice be sent whenever it is known or there is
reason to believe that a child is an Indian child and
notice must be given for every hearing until the tribe
acknowledges that the child is a member or eligible for
membership or intervenes in the proceedings. After
that, the notice may be abbreviated. This bill would
provide that circumstances in which there is reason to
believe a child is an Indian child include, but are not
limited to:
when a person having an interest in the child
provides information suggesting that the child is an
Indian child;
when the residence of the child, the child's
parents or Indian custodian is in a predominantly
Indian community; or
when the child or the child's family has received
services or benefits from a tribe or services that are
available to Indians from tribes or the federal
government.
If a social worker, or any party petitioning for the
termination of parental rights or adoption under the
Family or Probate Codes knows or has reason to know that
an Indian child is involved in the proceedings, this
bill would require that person to make further inquiry
regarding the possible Indian status of the child. This
further inquiry includes interviewing the parents,
Indian custodian and extended family, contacting the BIA
and contacting the tribe or any other person that can
reasonably be expected to have knowledge of the child's
Indian status.
This bill would provide that a determination from a
tribe that a child is or is not a member or eligible for
membership in that tribe is conclusive. In the absence
of a contrary determination by the tribe, a
determination by the BIA of the child's Indian status is
conclusive. If proper notice has been provided, as
described above, and neither the tribe nor the BIA has
provided a determinative response within 60 days, the
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court may determine that the child is not an Indian
child and ICWA does not apply. However, if a tribe or
the BIA later confirms that the child is an Indian
child, this bill requires the court to reverse its
determination that ICWA does not apply and apply ICWA
prospectively.
This bill would also provide that even if a
determination is made that the ICWA does not apply to
the proceedings, if the court or any other party to the
proceeding subsequently receives information that would
have been required to be included in the notice to the
tribe, the party shall provide that additional
information to the tribe and the BIA.
7. This bill would limit the situations in a which an
Indian child could be deemed to be abandoned
Part Four of the Family Code provides for a child to be
freed from parental custody and control in specified
situations, including when a child has been abandoned by
a parent. This bill would provide that an Indian child
shall not be deemed to be abandoned simply because a
parent leaves the child in the care and custody of an
Indian custodian unless the parent demonstrates an
intent to abandon the child. This bill would provide
that the intent to abandon may be demonstrated by
failing to resume the care of or make provisions for the
child upon the demand of the Indian custodian. If the
Indian custodian is unable to locate the parent to make
the demand after reasonable efforts, this may also be
evidence of the intent to abandon.
8. This bill would incorporate ICWA provisions regarding
the rights of parents to consent to adoption
This bill would incorporate provisions from ICWA that
protect a parent of an Indian child when voluntarily
consenting to the adoption of a child under the Family
Code. Identical provisions would be created in the
Probate Code regarding an Indian child's parents'
ability to consent to nomination of a guardian of the
person and estate of an Indian child. It would provide
that the consent must be executed in writing at least 10
days after the child's birth, the judge must certify
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that the terms and consequences of the consent were
fully explained in English and were understood by the
parent or translated to the parent, that the parent has
the right to withdraw consent until the final decree of
adoption is entered, and after the decree is entered a
parent may withdraw consent within two years on the
grounds that it was obtained fraudulently or under
duress.
9. This bill would implement placement preferences from
ICWA with some modification
ICWA sets forth placement preferences for Indian
children who are being placed for adoption or for
temporary guardianship or foster care. This bill would
require, as provided in ICWA, that if an Indian child is
being placed for adoption, preference shall be given to
placements in the following order:
a member of the Indian child's extended family;
other members of the child's tribe; or
another Indian family.
This bill would also prioritize the placement options
for an Indian child who is being placed in foster care
or guardianship. Specifically, in descending order of
priority, a child should be placed with:
a member of the child's extended family;
a foster home, licensed, approved, or specified by
the child's tribe;
a Indian foster home approved by a non-Indian
licensing authority; or
an institution for children approved by an Indian
tribe or operated by an Indian organization which has
a program suitable for the child's needs.
The court can deviate from these placement preferences
if the child's tribe has established a different order
of preference. Additionally, the placement shall
consider the preference of the child if of sufficient
age, and a consenting parent's request for anonymity
shall also be considered. When no preferred placement
is available, active efforts shall be made to place the
child with a family committed to enabling the child to
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have extended family visitation and participation in the
cultural and ceremonial events of the child's tribe.
Notably, this bill would require the placement
preferences for guardianships and foster care be
followed in an emergency removal. Neither ICWA nor the
BIA guidelines require this. Instead, the BIA
guidelines allow the removal of an Indian child in an
emergency situation without being bound to the placement
preferences for foster, guardianship or adoptive
placement. The BIA guidelines provide that the
temporary removal placement last no more than 90 days,
absent extraordinary circumstances. In response to
concerns that these placement preferences would be
extremely difficult to adhere to in an emergency
situation, particularly when it may not be known if the
child is an Indian child, recent amendments have
clarified that these placement preferences apply only to
the emergency removal of a child known to be an Indian
child. The sponsor and author have committed to
continue working to delineate between foster care and
guardianship placements and emergency removals, as they
are distinguished in the ICWA and guidelines.
To deviate from these placement preferences, the court
must find that there is good cause, supported by clear
and convincing evidence to deviate. ICWA does not
clarify the level of evidence that must support a
finding of good cause to deviate from the placement
preferences. Again, the sponsor and author maintain
that the clear and convincing standard is implied in
ICWA, because the other findings that must be made by
the court must be supported by clear and convincing
evidence.
10. This bill would allow for the creation of more than one
CASA program per county if a program were operated by an
Indian tribe
Current law provides that Judicial Council shall
establish a planning and advisory group to develop and
adopt court-appointed special advocate (CASA) programs
within the state. Current law requires the council
adopt criteria for funding guidelines to encourage
multi-county CASA programs where appropriate and shall
SB 678 (Ducheny)
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not provide funding for more than one CASA program per
county. This bill would provide that the Council may
provide funding to more than one CASA program per county
if the additional CASA programs are operated by an
Indian tribe or Indian organization. This bill would
also clarify that an Indian tribe or organization is not
prevented from establishing its own CASA program
independent of state funding or limit the court's
discretion to appoint CASAs from those programs in
Indian child custody proceedings.
Judicial Council has expressed concern about the
provision that would allow more than one CASA program
per county to be funded. Judicial Council points out
that the funding available for CASA programs is already
insufficient and that to further divide the small pool
of money will render the provision of such funds
virtually useless. The sponsor and author have agreed
to work with Judicial Council on language which would
achieve the desired result of ensuring that CASAs
operated and funded by Indian tribes are allowed to
operate and be utilized by a court in an Indian child
custody proceeding without depleting already scarce
resources.
11. This bill would clarify when an Indian tribe has
jurisdiction over an Indian child custody proceeding
The ICWA provides that tribes will have exclusive
jurisdiction over Indian child custody proceedings
involving an Indian child who resides or is domiciled on
an Indian reservation unless jurisdiction is otherwise
vested in the state by existing federal law. Public Law
280 vests California, and other specified states, with
broad criminal and certain civil jurisdiction over
Indians, but allows a tribe to petition the BIA to
reassume exclusive jurisdiction over Indian child
custody proceedings. Recently, the Ninth Circuit Court
of Appeals clarified that unless the tribe has
petitioned and reassumed jurisdiction over Indian child
custody proceedings, a state court is still vested with
jurisdiction over an Indian child when the child is
domiciled on an Indian reservation. [Doe v. Mann (9th
Cir. 2005) U.S. App. LEXIS 14544.]
SB 678 (Ducheny)
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Current California law provides that when a child who
resides on a reservation of a tribe which has reassumed
exclusive jurisdiction over Indian child custody
proceedings is the subject of Indian child custody
proceedings, the state court shall transfer the
proceeding to the tribal court within specified time
limits. This bill would clarify that a tribe has
exclusive jurisdiction over the Indian child custody
proceeding not only when the tribe has reassumed
exclusive jurisdiction under Public Law 280 and the
child is domiciled on the reservation, but also when the
child is a ward of the tribal court, as provided in
ICWA. This bill would also clarify that a tribe has
exclusive jurisdiction over Indian child custody
proceedings if the tribe never lost exclusive
jurisdiction pursuant to Public Law 280, ie., a tribe
not located in California or another Public Law 280
state.
Additionally this bill would also implement ICWA
provisions requiring the transfer of jurisdiction of
Indian child custody proceedings to a tribal court of a
tribe which has not reassumed exclusive jurisdiction
over Indian child custody proceedings, or where the
child was not domiciled on the reservation, upon the
petition of either parent, the Indian custodian, or the
child's tribe, unless the court finds good cause not to
transfer the proceeding. Good cause not to transfer
exists if one or both of the child's parents objects to
the transfer; the child's tribe does not have a tribal
court; the tribal court declines the transfer. Good
cause may exist if the evidence to decide the case
cannot be presented in tribal court without undue
hardship to the parties or witnesses, the proceeding was
at an advanced stage when the petition to transfer was
received, the child is age 12 or older and objects to
the transfer, or the parents of the child, age 5 or
older, are not available and the child has had little or
no contact with the tribe. These good cause provisions
are adopted from the federal guidelines. This bill
would also provide that socioeconomic conditions and the
perceived adequacy of the tribal social services or
judicial systems may not be considered in the
determination that good cause not to transfer exists.
SB 678 (Ducheny)
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Although the good cause exception to the transfer of
jurisdiction for proceedings at an advanced stage is
included in the BIA guidelines, this bill would further
specify that it shall not be considered an unreasonable
delay for a party to wait until reunification efforts
have failed and reunification services have been
terminated before filing the petition to transfer
jurisdiction. The sponsor maintains that sometimes
tribes will not request the transfer of jurisdiction
because it appears that reunification efforts will
succeed. When the reunification efforts fail later, the
tribe may then petition to move the proceedings to
tribal court. Concerns have been raised that while this
wait-and-see approach and late petition to transfer may
often be in good faith and with the full understanding
of all parties and the state court, sometimes it is not.
In response to these concerns, recent amendments
clarify that waiting until reunification efforts have
failed, shall not, in and of itself, necessarily be
considered good cause not to transfer. The sponsor,
author and concerned parties have agreed on this
somewhat awkward language for the time-being, but have
agreed to continue working on better language that would
protect a tribe who has waited to petition to transfer
in the understanding reunification efforts would
succeed, but would still allow a court to find that a
tribe has waived its rights to transfer jurisdiction.
12. This bill would create an exception to termination of
parental rights for Indian children
Current law provides that the court shall terminate
parental rights under specified circumstances, unless
the court finds a compelling reason that termination
would be detrimental to the child due to one or more
listed circumstances. One of the compelling reasons not
to terminate parental rights is that the child's parents
or guardians have maintained regular visitation and
contact with the child and the child would benefit from
continuing the relationship. This bill originally
proposed to add an Indian custodian to this exception.
After extensive discussions regarding CWDA's concerns
about expanding the exception to termination, recent
amendments would now delete the guardian exception to
termination to parental rights and not extend the
SB 678 (Ducheny)
Page 22
exception to include Indian custodians. CWDA argued
that this exception is rarely used, and in its current
form makes little sense because this provision addresses
the termination of parental rights. A child's
relationship with a guardian or an Indian custodian
would not be impacted by the termination of parental
rights.
This bill would, however, create another exception to
the termination of parental rights for Indian children
only. This exception would provide that a court may
find a compelling reason for not terminating parental
rights if the termination would substantially interfere
with the child's connection to his or her tribe or the
child's tribal membership rights. The court may also
find a compelling reason for not terminating parental
rights if the child's tribe has identified guardianship,
long-term foster care with a fit and willing relative or
another planned permanent living arrangement for the
child. These provisions would essentially empower a
tribe to veto the termination of parental rights by
identifying a permanent living arrangement for the
child. Although concerns have been expressed about the
wisdom of such a policy, the sponsor maintains that it
is appropriate to require a state court to consider the
alternatives to termination of parental rights provided
by a tribe. Tribes may have different cultural and
familial values that do not necessarily conform to the
strong presumption in our law that permanence is always
in the child's best interest. Accordingly, these
different values should be accorded appropriate weight
by permitting tribes to identify guardianship, long-term
foster care with a relative, or another permanent living
arrangement for child to avoid the termination of
parental rights.
13. Other provisions of the bill
This bill would require a copy of the adoption
order be provided to BIA, as required by ICWA.
This bill would codify provisions of ICWA which
allow an Indian child, having reached age 18 to find
out his or her tribal affiliation, while protecting
the identity of the child's birth parents, if they
request anonymity.
SB 678 (Ducheny)
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This bill would define a court of another state
to include a tribal court having and exercising
jurisdiction over a custody proceeding involving an
Indian child.
This bill would require an investigator appointed
by the court to investigate and report to the court
regarding the proposed guardian of an Indian child,
to consult with tribes and include information
provided by the tribe in the report.
This bill would allow, in the case of an Indian
child, the tribe to petition the court to terminate a
guardianship, upon a finding that it is in the ward's
best interest to terminate the guardianship.
This bill would clarify that an Indian child's
tribe has a right to intervene in the proceedings at
any time.
This bill would clarify that in an Indian child
custody proceeding, the court shall give full faith
and credit to the public acts, records, judicial
proceedings and judgments of any Indian tribe
applicable to the proceeding.
This bill would provide that the burden to prove
good cause not to transfer proceedings to a tribal
court rests with the party opposing the transfer, as
provided in ICWA.
This bill would provide that an Indian child's
domicile or place of residence is determined by that
of the Indian child's parent, Indian custodian, or
guardian with whom the child primarily resided at the
time the proceeding was initiated.
This bill would provide that if any petitioner
has improperly removed an Indian child from the
custody of the parent or improperly retained custody
of the child, the court shall decline jurisdiction
and immediately return the child to the parent or
Indian custodian, as provided in ICWA.
This bill would clarify that ICWA provides for
court-appointed counsel for an Indian child's parent
or Indian custodian if indigent, or for the Indian
child if the court determines that it is in the
child's best interest.
This bill would require a record of each foster
care or adoptive placement of an Indian child be
maintained in perpetuity by the Department of Social
Services, as is implied by the ICWA.
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Page 24
This bill would clarify that the director of the
Department of Social Services may enter into
agreements with Indian tribes regarding the care and
custody of Indian children, including agreements that
provide for the orderly transfer of jurisdiction on a
case-by-case basis, for exclusive tribal or state
jurisdiction, or for concurrent jurisdiction.
14. Deleted controversial provisions to be resolved later
A. Participation of tribes in non-ICWA proceedings
The most recent amendments have deleted provisions of
the bill which would have allowed a court to allow a
tribe to participate as a party in custody
proceedings under the Family, Probate, and W & I
Codes in which the ICWA would not apply, but when the
child has Indian ancestry. In response to concerns
about the need for party standing for a tribe and the
feasibility of such a provision, this provision has
been deleted for further discussion and negotiation.
The purpose of the provision was to allow the tribe
to inform the court about placement options and
programs for the child available within the tribe or
tribal community. CWDA has committed to working with
the author and sponsor to create language which would
permit a tribe, when the child is not an Indian
child, to be allowed to participate in proceedings in
a limited capacity to provide this valuable
information to the court.
B. Post-adoption contact agreements
This bill would have made changes to the law
governing the entering into and enforcement of
post-adoption contact agreements. These changes
would have affected all children, not just Indian
children. These provisions were included, according
to the sponsor, because often tribes and Indian
parents rely on promises by adoptive parents to allow
an Indian child to continue to have contact with the
tribe and extended family and consent to the
termination of parental rights and placement of an
Indian child outside the tribe. All too frequently,
after the adoption is finalized, the adoptive parents
SB 678 (Ducheny)
Page 25
refuse to follow through with their promises. In
response to substantial concerns raised by adoption
advocates and CWDA about the affect of these
provisions on non-Indian children, these provisions
have been removed from the bill, but CWDA and ACAL
have agreed to continue negotiations to craft
appropriate language to provide a remedy to parents
and tribes who have been misled by the promises of
adoptive parents made in bad faith.
15. Suggested technical amendment
The following technical amendment is suggested the next
time the bill is amended.
On page 13, line 9 of the August 15, 2005 version of the
bill, delete "224.5" and insert "224.6"
Support: Advocates for American Indian Children; Agua
Caliente Band of
Cahuilla Indians; American Federation of State,
County & Municipal
Employees, AFL-CIO (AFSCME); Bear River Band of Rohnerville
Rancheria; Big Valley Band of Pomo Indians; Blue
Lake Rancheria;
Buena Vista Rancheria - Me-Wuk Indians; Cabazon
Band of Mission
Indians; Cahuilla Band of Indians; Cahto Tribe; California
Nations
Indian Gaming Association; California Rural Indian
Health Board,
Inc.; Cedarville Rancheria Tribal Office; Cold Springs
Tribe; Consolidated Tribal Health Project, Inc.; Dry Creek
Rancheria - Band of Pomo
Indians; Ewiiaapaayp Band of Kumeyaay Indians;
Fernande?o Tataviam Band of Mission Indians; Greenville
Rancheria; Habematolel Pomo of Upper Lake; Hands United
Together; Hopland Band of Pomo Indians; Inaja Cosmit Band
of Mission Indians; Indian Child and Family Preservation
Program; Karuk Tribe of California; Kashia Band of Pomo
Indians; La Jolla
Band of Luise?o Indians; La Posta Band of Mission Indians;
Los Coyotes Band of Indians; Manzanita Band of the Kumeyaay
Nation;
SB 678 (Ducheny)
Page 26
Middletown Rancheria; Mooretown Rancheria; Morongo Band of
Mission Indians; North Fork Rancheria; Owens Valley Board
of Trustees - Pauite-Shoshone Band of Indians; Pala Band of
Mission Indians;
Paskenta Band of Nomlaki Indians of California; Pauma
Band of Mission Indians; Pechanga Band of Luiseno Mission
Indians;
Picayune Rancheria of the Chukchansi Indians; Ramona Band
of
Cahuilla; Redding Rancheria; Redwood Valley Little River
Band of Pomo Indians; Rincon Luise?o Band of Indians;
San Diego State
University - Native American Student Alliance; San Pasqual
Band of Mission Indians; Santa Rosa Rancheria Tachi
Tribe; Santa Ysabel
Band of Diegueno Indians; Scotts Valley Band of Pomo
Indians; Sherwood Valley Rancheria; Smith River Rancheria;
Soboba Band of Luise?o Indians; Southern California Indian
Center, Inc.; Southern
California Tribal Chairman's Association, Inc.; Susanville
Indian
Rancheria; Timbisha Shoshone Tribe; Torres Martinez Desert
Cahuilla Indian Tribe; Tule River Tribal Council; Tuolumne
Me-Wuk Tribal Council; Tyme Maidu Tribe - Berry Creek
Rancheria; United
Indian Health Services, Inc.; Viejas Tribal Government;
Yurok Tribe;
one individual
Opposition: Academy of California Adoption Lawyers;
California Association of
Adoption Agencies; Family Connections Adoptions
HISTORY
Source: California Indian Legal Services
Related Pending Legislation: None Known
Prior Legislation: AB 947 (Ducheny) Chapter 469, Statutes
of 2003, required parties to inquire whether
a child being placed for adoption is an
Indian child, to provide notice to the
child's tribe in voluntary adoptions, and
SB 678 (Ducheny)
Page 27
imposed penalties upon any party who
knowingly makes false representations
regarding a child's Indian status.
AB 65 (Ducheny) Chapter 275, Statutes of
1999, made legislative findings rejecting the
"existing Indian family exception" and
provided for the transfer of jurisdiction
over Indian child custody proceedings in
specified situations.
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