BILL ANALYSIS
SB 678
Page 1
Date of Hearing: June 20, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
SB 678 (Ducheny) - As Amended: June 14, 2006
SENATE VOTE : 29-6
SUBJECT: INDIAN CHILDREN
KEY ISSUE : IN ORDER TO ENSURE COMPLIANCE WITH FEDERAL
REQUIREMENTS, SHOULD FAMILY, PROBATE AND WELFARE & INSTITUTIONS
CODE SECTIONS AFFECTING THE CUSTODY OF INDIAN CHILDREN BE
REVISED BY CODIFYING VARIOUS PROVISIONS OF THE FEDERAL INDIAN
CHILD WELFARE ACT, ALONG WITH IMPLEMENTING RULES AND GUIDELINES?
SYNOPSIS
This urgency bill, sponsored by California Indian Legal
Services, revises and recasts the portions of the Family,
Probate, and Welfare and Institutions (W & I) Codes that address
custody, dependency and probate proceedings regarding Indian
child custody, including termination of parental rights, foster
care placements, preadoptive and adoptive placements, and
guardianships, 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, state Rules of
Court, and other best practices. The author believes that this
bill is necessary to increase compliance with ICWA, and its
implementing rules and regulations, throughout California.
This bill is supported by over 50 tribes who believe that it
will help achieve greater compliance with ICWA, thus allowing
Indian children to maintain a connection with their extended
Indian family, culture and tribal heritage. The California
Association of Adoption Agencies opposes the bill, believing
that it will negatively impact the courts' ability to terminate
parental rights and it will deprive Indian children of
permanent, stable families.
SUMMARY : Revises and recasts the portions of the Family,
Probate, and W & I Codes that address Indian child custody
proceedings by codifying into state law various provisions of
the ICWA, the BIA Guidelines for State Courts, and state Rules
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of Court. Specifically, this bill , among other things:
1)Affirms the state's interest in protecting Indian children and
the child's interest in having tribal membership and a
connection to the tribal community.
2)Clarifies that ICWA applies to certain proceedings under the
Family, Probate and W & I Codes. Specifically allows any
Indian child, or the child's tribe, parent or custodian to
challenge a foster care or guardianship placement, or
termination of parental rights proceedings if ICWA was
violated. Does not include custody proceedings brought by a
parent to determine the custody rights of the parent, unless
the proceeding seeks to declare the child free of the custody
or control of the parent or give custody to a non-parent over
the parent's objection.
3)Specifies the requirements necessary for giving proper notice
when it is known or there is reason to know that a proceeding
involves an Indian child. Prohibits disclosure of contact
information if there is a risk of harm from domestic violence,
child abuse, sexual abuse or stalking.
4)Permits the court, if a child would be considered an Indian
child but for the status of the child's tribe, to allow the
child's tribe to participate in a custody proceeding, as
specified.
5)If the child has more than one tribal affiliation, clarifies
the factors a court should consider when determining which
tribe is the child's tribe for purposes of an Indian child
custody proceeding.
6)Permits the court, prior to issuing an order for adoption for
an Indian child, to modify a prior order if the prospective
adoptive parent fails to negotiate a postadoption contact
agreement in good faith after having agreed to enter into such
negotiations. In these circumstances, allows the court, among
other things, to require the parties to engage in mediation
services, initiate guardianship proceedings or authorize a
change of adoptive placement.
7)Specifies the circumstances and the process under which a
proceeding may be transferred to a tribal court.
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8)Requires that active efforts be made to prevent the breakup of
Indian families and provides guidance in the form of specified
examples as to what constitutes active efforts.
9)Helps clarify who may qualify as a "qualified expert witness"
for purposes of testifying whether continued custody by the
parent would result in physical or emotional damage to the
Indian child.
10) Establishes specified exceptions to the termination of
parental rights for an Indian child.
EXISTING LAW :
1)Governs, through the Indian Child Welfare Act, 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. (25 U.S.C. Sections 1911, 1912,
1918, 1920.)
b) Providing 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. (25 U.S.C.
Section 1911.)
c) Providing that an indigent parent or Indian custodian
has the right to court-appointed counsel. (25 U.S.C.
Section 1912.)
d) 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. (25 U.S.C. Section 1912.)
e) 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. (25 U.S.C. Section 1912.)
f) Establishing placement preferences for Indian children
who are being placed in foster or adoptive placements. (25
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U.S.C. Section 1915.)
g) Creating protections for a parent or Indian custodian
who voluntarily consents to foster care placement,
guardianship or termination of parental rights. (25 U.S.C.
Section 1913.)
h) Requiring states to keep records of Indian child
placements and providing them to the Secretary of the
Interior and the child's tribe. (25 U.S.C. Sections 1915
and 1951.)
2)Provides that where Title 25 of the United States Code, which
includes 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.)
3)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 recognizes that the child's tribal membership
or eligibility for membership constitutes a significant
political affiliation with the tribe. (Family Code Section
7810.)
4)Provides that the application of ICWA in Indian child custody
proceedings is mandatory. (Family Code Section 7810 and W & I
Code Section 360.6.)
5)Affirms that a presumed father's waiver of rights in a
voluntary proceeding must be executed in accordance with ICWA
in the case of an Indian child and that the waiver does not
affect the child's tribe's rights under ICWA. (Family Code
Section 7660.5.)
6)Provides for postadoption contact agreements between adoptive
parents and birth relatives of the adopted child and permits
such agreements to include the child's Indian tribe in cases
governed by ICWA. Specifically recognizes that tribes may
enter into agreements with adopting parents to permit
continuing contact between the child and the tribe. (Family
Code Sections 8616.5, 8620.)
7)Requires that notice be given to the child's tribe in
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voluntary adoption proceedings and affirms that the tribe has
the right to intervene in such proceedings. (Family Code
Section 8620.)
8)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.)
9)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.)
10) Authorizes the Director of the Department of Social
Services to enter into tribal-state agreements under Section
1903 of ICWA. (W & I Code Sections 10553.1-53.3.)
11) Provides for notice in accordance with ICWA. (W & I Code
Sections 290.1 through 297.)
12) Requires Indian child custody proceedings to be
transferred to an Indian child's tribe in specified
circumstances. (W & I Code Section 305.5.)
13) 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.)
14) Establishes placement preferences for delinquents with
tribal members when relative placements are not available. (W
& I Code Section 727.1.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : 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
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doing so, Congress recognized that 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."
This urgency bill, sponsored by California Indian Legal Services
(CILS), seeks to revise and recast the portions of the Family,
Probate, and W & I Codes that address custody, dependency and
probate proceedings regarding Indian child custody, including
termination of parental rights, foster care placements,
preadoptive and adoptive placements, and guardianships, by
codifying into state law various provisions of the federal ICWA,
the BIA Guidelines for State Courts, state Rules of Court, and
other best practices.
The author hopes by "consolidating existing federal law within
state law . . . to increase compliance with national
requirements regarding children's relationship with their tribe
and the role of tribes in dependency hearings. The practical
need for this bill is due to the fact custody and adoption
proceedings are handled differently in different counties. . . .
SB 678 would conform and cross-reference [the Family, Probate
and W & I Codes] for purposes of custody proceedings involving
Indian children."
According to 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.
ICWA and California Law . ICWA establishes minimum standards
that state courts must follow when removing Indian children from
their homes and placing them in foster care 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.
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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 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 not just to state
statutes, but also to court rules, federal statutes and
regulations, and BIA-issued guidelines, in addition to case law,
to determine how to comply with the terms of ICWA.
This bill reworks and reorganizes existing state law addressing
Indian child custody proceedings . In seeking to ensure ICWA
compliance and alleviate confusion, this bill proposes to
reorganize and supplement existing federal and 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 jurisdictional requirements, in the W & I Code and
would cross-reference those provisions in the Family and Probate
Codes.
In keeping with the intent of ICWA, 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, or the parental rights of the parent
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have been terminated.
This bill incorporates 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
further clarifies which proceedings under state law are Indian
child custody proceedings and subject to ICWA.
In the Family Code, this bill provides 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 long-term foster care or
guardianship placement if the parent or Indian custodian cannot
have the child returned upon demand. The bill clarifies 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 or grants custody to a
person other than a parent over the objection of a parent.
In the Probate Code, this bill provides 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 clarifies that 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 also applies 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 clarifies that
Indian child custody proceedings include proceedings for
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temporary or long-term foster care or guardianship placement,
termination of parental rights, preadoptive placements after
termination of parental rights, and adoptive placements. It
clarifies 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.
Under this bill failure to negotiate a postadoption contact
agreement may be used as grounds to set aside previous orders,
including orders terminating parental rights, and stall or
prevent the adoption; and the California Association of Adoption
Agencies opposes . Current law allows adoptive families and
birth relatives to enter into postadoption contracts regarding
continuing contact with the adopted child. The adoption cannot
be set aside for failure to comply with a postadoption contact
agreement, nor can failure to abide by its terms serve as a
basis for a custody order of the child in question.
According to the sponsor, 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, even
before the adoption is finalized, the prospective adoptive
parents refuse to follow through with their promises. To
address this issue, this bill allows a court, prior to issuing
the final adoption order, to modify a prior court order, such as
an order terminating parental rights, if the prospective
adoptive parent had agreed to enter into negotiations regarding
postadoption contact and then failed to negotiate in good faith.
This provision applies to Indian children only. In addition to
modifying prior orders, the court can also require the parties
to engage in family mediation services, initiate guardianship
proceedings or authorize a change of adoptive placement for the
child.
This provision, even limited by its own terms to Indian
children, could have some significant unintended consequences
for those children. As the California Association of Adoption
Agencies notes, this language could actually discourage parties
from agreeing to enter into postadoption contact agreements in
the first place: "Agreements work best when they are entered
into willingly. This bill would add a coercive component to
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obtaining these agreements, which would serve to discourage
rather than encourage these agreements." Alternatively, this
bill could, at the very end of the process, allow the birth
parents or the tribe to stall or torpedo adoptions, leaving the
child in limbo for what could be months or even years. It could
also result in the removal of the child from his or her
prospective adoptive home. Such outcomes may well not be
positive for many of the children who would be affected by this
provision. Given the potential for significant negative impacts
on Indian children, this Committee may wish to discuss with the
author the possibility of limiting the remedies so that the
court may only require that parties engage in mediation services
for purposes of reaching a postadoption agreement .
This bill requires and defines "active efforts" to prevent the
breakup of the Indian family, and CWDA opposes the exemplary
list of what may constitute active efforts . ICWA requires that
active efforts be made to prevent the breakup of an Indian
family before parental rights may be terminated or a child may
be placed in foster care. This bill provides that in all Indian
child custody proceedings under the Family, Probate, or W & I
Codes, the court must find by clear and convincing evidence that
active efforts have been made before terminating parental
rights. This bill incorporates 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 provides that active efforts involve
the Indian child's extended family, tribe, tribal and other
Indian social service agencies. This bill also provides 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 case law on the subject.
CWDA is 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 to do those activities listed in the statute. CWDA
argues 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
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reasonable efforts for the same reason. CWDA relies on the
commentary to the BIA guidelines which acknowledge that
consideration was given to establishing detailed criteria and
procedures to determine whether active 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 case, but to provide suggestions for
those who must engage in active efforts. Too often, social
workers who must engage in active efforts are understandably
confused about how to make active efforts to prevent the breakup
of the Indian family.
This bill requires 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 . This bill provides 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 incorporates the description of a qualified expert
witness from the federal guidelines. This bill provides that
persons with the following characteristics are most likely to
meet the requirements for a qualified expert witness for Indian
child custody proceedings, including (1) 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; (2) 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 (3) a
professional person having substantial education and experience
in the area of his or her specialty. This bill goes beyond the
guidelines by prohibiting employees of the person or agency
recommending termination of parental rights from acting as the
qualified expert.
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This bill requires notice procedures for actions under the
Family, Probate and W & I Codes that mirror 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 incorporates the
notice procedures and contents of the BIA guidelines into state
law.
Specifically, this bill requires, in any Indian child custody
proceeding, that notice of the proceedings be sent to the
child's parent or legal guardian, Indian custodian, if any, and
the Indian child's tribe. Notice must 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. In order to protect against harm, the notice cannot
include contact information for any person who is at risk of
harm as a result of domestic violence, child abuse, sexual
abuse, or stalking.
As suggested in the BIA guidelines, this bill requires 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 limits the situations in which an Indian child may 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 provides that an Indian child will 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.
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This bill incorporates ICWA provisions regarding the rights of
parents to consent to adoption . This bill incorporates
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 are also established 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 provides that the consent must be executed
in writing at least 10 days after the child's birth, the judge
must certify 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.
This bill clarifies when an Indian tribe has jurisdiction over
an Indian child custody proceeding . ICWA provides that tribes
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. Just last year, 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 resides on an
Indian reservation. ( Doe v. Mann , 415 F.3d 1038 (9th Cir.
2005).)
Current California law provides that when a child who resides on
the 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
must transfer the proceeding to the tribal court within
specified time limits. This bill clarifies 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
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reservation, but also when the child is a ward of the tribal
court, as provided in ICWA. This bill also clarifies that a
tribe has exclusive jurisdiction over Indian child custody
proceedings if the tribe never lost exclusive jurisdiction under
Public Law 280.
This bill also implements 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. The bill
requires the court to transfer jurisdiction only after receiving
proof that the tribal court has accepted transfer of
jurisdiction. At that time, the court must also make an order
transferring physical custody of the child to the tribal court.
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; or 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 a 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 further specifies 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.
This bill creates 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
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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
creates, for Indian children only, another exception to the
termination of parental rights by providing 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. The later exception is based on similar language from
the regulations implementing the federal Adoption and Safe
Families Act. These provisions could essentially empower a
tribe to veto the termination of parental rights by identifying
a permanent living arrangement for the child.
This bill expands tribal involvement in custody and dependency
proceedings when a child has Indian ancestry, even if ICWA does
not apply . Not all tribes have yet been recognized by the
Secretary of the Interior and, therefore, ICWA, which applies
only to children from recognized Indian tribes, does not apply
to all children of Indian ancestry. This bill expands ICWA by
allowing, but not requiring, a court in a custody or dependency
case involving a child of Indian ancestry to allow the child's
tribe to participate in the proceeding. If the court allows
participation, the tribe may be able to, among other things,
address the court and present information, receive notices of
hearings, and ask to examine documents. The purpose of the
provision is to allow the tribe to inform the court about
placement options and programs for the child available within
the tribe or tribal community.
REGISTERED SUPPORT / OPPOSITION :
Support
California Indian Legal Services (sponsor)
Advocates for American Indian Children
Agua Caliente Band of Cahuilla Indians
American Federation of State, County & Municipal Employees,
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AFL-CIO (AFSCME)
Bear River Band of Rohnerville Rancheria
Big Valley Band of Pomo Indians
Blue Lake Rancheria
Buena Vista Rancheria - Me-Wuk Indians
Cahto Tribe of Laytonville Rancheria
Cahuilla Band of Indians
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
Fernandeno 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 Luiseno Indians
La Posta Band of Mission Indians
Los Coyotes Band of Indians
Manzanita Band of the Kumeyaay Nation
Middletown Rancheria
Mooretown Rancheria
Morongo Band of Mission Indians
North Fork Rancheria of Mono Indians
Owens Valley Board of Trustees - Pauite-Shoshone Band of
Indians, Big Pine Paiute Tribe and Bishop Paiute Tribe of Owens
Valley
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
SB 678
Page 17
Rincon Luiseno 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 Luiseno 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
California Association of Adoption Agencies
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334