BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Carole Migden, Chair
678 (Ducheny)
Hearing Date: 8/25/05 Amended: 8/22/05
Consultant: John Miller Policy Vote: Judiciary 5 - 1
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BILL SUMMARY: SB 678, an urgency measure, would revise and
recast the portions of the Family, Probate, and Welfare and
Institutions codes that address Indian child custody proceedings
by codifying into state law various provisions of the federal
Indian Child Welfare Act, the Bureau of Indian Affairs
Guidelines for State Courts, and state Rules of Court.
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Fiscal Impact (in thousands)
Major Provisions 2005-06 2006-07 2007-08 Fund
Additional court processing $0 $550 $550 Local
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STAFF COMMENTS: This bill meets the criteria for referral to the
Suspense File.
The principal law guiding protection of Indian children is the
federal Indian Child Welfare Act (ICWA) which is intended to
"protect the best interests of Indian children and promote the
stability and security of Indian tribes and families?"
California's implementation of ICWA into state laws has been
piecemeal. As a result, interested parties are required to
check multiple legal sources and guidelines to determine
compliance with the ICWA. SB 678's consolidation is intended to
clarify and simplify that process.
SB 678 codifies, under state law, provisions from the Federal
Indian Child Welfare Act, state court guidelines from the Bureau
of Indian Affairs and current Rules of Court regarding rights
and protections for Indian children in dependency and probate
proceedings. By consolidating existing federal law within state
law, the author hopes to increase compliance with national
requirements regarding children's relationship with their tribe
and the role of tribes in dependency hearings.
The bill clarifies application of the ICWA to probate and Family
Code proceedings; specifies notice requirements for proceedings
involving Indian children; specifies role of a tribal court;
clarifies preferences for out-of-home placement of Indian
children and establishes exemptions to the termination of
parental rights for an Indian child. The bill also requires
active efforts to prevent the break-up of the Indian family and
defines an "expert" for establishing appropriate custody of an
Indian child. The effect of these changes is to procedurally
protect Indian children and children's interests in having
tribal membership and legal connections to the tribal community.
The bill will broaden interpretation of current laws.
Costs under this legislation result from the additional workload
imposed on county and state courts. Greater compliance will
require new forms and procedures and will require additional
court time and resources to provide consistent and appropriate
notice or expertise in family law cases involving Indian
children. The changes in SB 678 will impose new
responsibilities on persons seeking custody of Indian children
(generally relatives of the child) and in the event these
responsibilities are not met, the costs will likely be assumed
by the courts.
According to the Judicial Council there are approximately 100
probate guardianship proceedings and 1,000 dependency
proceedings each year in California which will involve Indian
children. Assuming one half of these cases (550) require an
average of $1,000 in additional costs for full compliance, the
annual implementation costs would be $550,000 on local courts.
Court costs resulting from SB 678 will include: additional
notice requirements for participating tribes and tribal
representatives, extended hearings and additional expert
testimony.
The Department of Social Services is also required by this bill
to maintain records of each Indian foster care or adoptive
placement and enter into agreements with tribes for transfer of
jurisdiction of some specified cases. SB 678's requirements on
state agencies are largely current practice and will result in
minimal state costs. Given that these requirements are now
federal law, there should be no local mandate costs.