BILL ANALYSIS
SB 678
Page 1
SENATE THIRD READING
SB 678 (Ducheny)
As Amended August 21, 2006
2/3 vote. Urgency
SENATE VOTE :29-6
JUDICIARY 9-0 HUMAN SERVICES 5-0
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|Ayes:|Jones, Evans, Haynes, |Ayes:|De La Torre, Arambula, |
| |Laird, Leslie, Levine, | |Bass, Coto, Spitzer |
| |Lieber, Monta?ez, Huff | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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APPROPRIATIONS 18-0
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|Ayes:|Chu, Sharon Runner, Bass, | | |
| |Berg, | | |
| |Calderon, De La Torre, | | |
| |Emmerson, | | |
| |Haynes, Karnette, Klehs, | | |
| |Leno, | | |
| |Nakanishi, Nation, Laird, | | |
| | | | |
| |Ridley-Thomas, Saldana, | | |
| |Walters, Yee | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Revises and recasts the portions of the Family,
Probate, and Welfare & Institutions Codes (FPWI) 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 ,
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.
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2)Clarifies that ICWA applies to certain proceedings under the
FPWI 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 order the parties to engage in family
mediation services if the prospective adoptive parent fails to
negotiate a post-adoption contact agreement in good faith
after having agreed to enter into such negotiations. If
parties fail again to then negotiate in good faith, allows the
court, among other things, to require the parties to engage in
further 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.
8)Requires that active efforts be made to prevent the breakup of
Indian families.
9)Helps clarify who may qualify as a "qualified expert witness"
for purposes of testifying whether continued custody by the
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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.
11) Contains provisions to prevent chaptering out with SB 1667
and AB 2480.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Court costs for this legislation would likely be in excess of
$500,000. While this bill essentially codifies current
federal requirements, it does broaden the interpretation of
current laws. Primarily, court costs will include additional
noticing requirements for tribes and tribal representatives,
extended hearings, and additional expert testimony.
2)Administrative costs for the Department of Social Services to
maintain records of each Indian foster care and adoptive
placement should be minimal and absorbable because the
requirements in this bill are generally current practice.
3)This bill constitutes a reimbursable state mandate to the
extent that additional workload is imposed upon social workers
and other county employees. However, given that these
requirements are now federal law and largely current practice,
it is unlikely that there will be any local mandate costs.
COMMENTS : In response to reports that approximately 25 to 35%
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 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 bill, sponsored by California Indian Legal Services (CILS),
seeks to revise and recast the portions of the FPWI Codes that
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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 that 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 [FPWI 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 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, 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.
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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 FP Codes
addressing ICWA compliance, and would incorporate identical
legislative findings, notice procedures, and definitions into
each of the FPWI Codes. This bill would implement the
substantive provisions of ICWA, including jurisdictional
requirements, in the WI Code and would cross-reference those
provisions in the FP Codes.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0016448