BILL ANALYSIS
SB 678
Page 1
Date of Hearing: June 27, 2006
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Noreen Evans, Chair
SB 678 (Ducheny) - As Amended: June 26, 2006
SENATE VOTE : 29-6
SUBJECT : Indian Children.
SUMMARY : Revises and recasts the portions of the Family,
Probate, and Welfare & Institution Codes that address Indian
child custody proceedings by codifying into state law various
provisions of the Indian Child Welfare Act (ICWA), the Bureau of
Indian Affairs (BIA) Guidelines for State Courts, and state
Rules of Court. Specifically, this bill :
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
SB 678
Page 2
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, order the parties to engage in family
mediation services for the purpose of reaching a post-adoption
contract agreement if the prospective adoptive parent fails to
negotiate a post-adoption contact agreement in good faith
after having agreed to enter into such negotiations.
7)Permits the court, prior to issuing the order of adoption, if
the parties fail to negotiate in good faith, to enter into a
post-adoption contract agreement during the negotiations.
Further allows the court to modify prior orders or issue new
orders as necessary to ensure the best interest of the Indian
child is met, including requiring the parties to engage in
further family mediation services, initiate guardianship
proceedings or authorize a change of adoptive placement.
8)Specifies the circumstances and the process under which a
proceeding may be transferred to a tribal court.
9)Requires that active efforts be made to prevent the breakup of
Indian families.
10) 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.
11) Establishes specified exceptions to the termination of
parental rights for an Indian child.
EXISTING LAW :
1)Governs, through the ICWA, specified custody proceedings
involving Indian children, including:
a) Establishing jurisdictional requirements, and allowing
for notice of and intervention in Indian child custody
proceedings by a tribe;
b) Providing that 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
SB 678
Page 3
judicial proceedings of another state would be;
c) Providing that an indigent parent or Indian custodian
has the right to court-appointed counsel;
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;
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;
f) Establishing placement preferences for Indian children
who are being placed in foster or adoptive placements;
g) Creating protections for a parent or Indian custodian
who voluntarily consents to foster care placement,
guardianship or termination of parental rights; and
h) Requiring states to keep records of Indian child
placements and providing them to the Secretary of the
Interior and the child's tribe.
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.
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.
4)Provides that the application of ICWA in Indian child custody
proceedings is mandatory.
SB 678
Page 4
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.
6)Provides for post-adoption 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.
7)Requires that notice be given to the child's tribe in
voluntary adoption proceedings and affirms that the tribe has
the right to intervene in such proceedings.
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.
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.
10) Authorizes the Director of the Department of Social
Services to enter into tribal-state agreements under Section
1903 of ICWA.
11) Provides for notice in accordance with ICWA.
12) Requires Indian child custody proceedings to be
transferred to an Indian child's tribe in specified
circumstances.
13) Affirms that a social worker may place a dependent child
in a home or facility authorized under the ICWA.
14) Establishes placement preferences for delinquents with
tribal members when relative placements are not available.
FISCAL EFFECT : Unknown.
SB 678
Page 5
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
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.
SB 678
Page 6
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.
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 (BIA), 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.
In addition, 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
have been terminated.
SB 678
Page 7
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.
Data collection . In recent years, several bills have been
enacted attempting to address the issue of Indian children
retaining their Indian status and tribal culture in child
welfare, foster care and adoption settings, but there is little
concrete data to show if recent efforts are working. This
measure 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. The Committee may
wish to suggest better efforts at data collection to determine
whether the recent legislation has furthered those goals.
Specifically, a report back to the Legislature may include, an
update on state compliance with ICWA, the number of children
affected by recent legislation, compliance with notification of
the tribes when an Indian child is being adopted, any unintended
consequences of recent legislation, and other areas for
improvement in law relating to the issue of Indian children.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Judiciary Committee on June 20, 2006, and was
approved on a 9-0 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
SB 678
Page 8
None on file.
Analysis Prepared by : Caitlin O'Halloran / HUM. S. / (916)
319-2089