BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 678|
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UNFINISHED BUSINESS
Bill No: SB 678
Author: Ducheny (D)
Amended: 8/21/06
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 8/23/05
AYES: Dunn, Cedillo, Escutia, Figueroa, Kuehl
NOES: Ackerman
NO VOTE RECORDED: Morrow
SENATE APPROPRIATIONS COMMITTEE : 8-3, 1/19/06
AYES: Murray, Alquist, Battin, Escutia, Florez, Ortiz,
Romero, Torlakson
NOES: Aanestad, Ashburn, Dutton
NO VOTE RECORDED: Alarcon, Poochigian
SENATE FLOOR : 29-6, 1/30/06
AYES: Alarcon, Alquist, Battin, Bowen, Cedillo, Chesbro,
Denham, Ducheny, Dunn, Dutton, Figueroa, Florez,
Hollingsworth, Kehoe, Kuehl, Lowenthal, Machado,
Maldonado, Margett, Migden, Murray, Ortiz, Perata,
Romero, Simitian, Soto, Speier, Torlakson, Vincent
NOES: Aanestad, Ackerman, Ashburn, Cox, McClintock, Morrow
NO VOTE RECORDED: Escutia, Poochigian, Runner, Scott,
Vacancy
ASSEMBLY FLOOR : 79-0, 8/24/06 - See last page for vote
SUBJECT : Indian children
SOURCE : California Indian Legal Services
CONTINUED
SB 678
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DIGEST : This bill revises and recasts 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 (ICWA), the Bureau of Indian Affairs
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 Probate and Family Codes, as well as
the Welfare and Institutions Code, (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, (4) 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, (5)
specifies the circumstances under which a proceeding shall
or may be transferred to a tribal court, (6) clarifies the
placement preferences for out-of-home placements for Indian
children and when a court may deviate from the preferences,
(7) requires that active efforts be made to prevent the
breakup of the Indian family and provide guidance as to
what constitutes active efforts, (8) clarifies 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 (9) establishes specified exceptions to the termination
of parental rights to an Indian child.
Assembly Amendments (1) deleted the urgency clause, (2)
made nonsubstantive technical and clarifying changes, and
(3) added double-jointing language.
ANALYSIS : Existing federal law, the ICWA, 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
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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 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/her adoption records for the
purpose of protecting any rights flowing from their tribal
affiliation. [Section 1917]
This bill codifies these provisions of ICWA into state
statute.
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 deletes the current scattered
provisions in the Family and Probate Codes addressing ICWA
compliance, and incorporates identical legislative
findings, notice procedures, and definitions into each of
the Family, Probate and Welfare and Institutions Codes.
This bill implements the substantive provisions of ICWA,
including placement preferences, and jurisdictional
requirements, in the Welfare and Institutions Code and
cross-references those provisions in the Family and Probate
Codes.
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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
declares 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
declares 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.
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.
[Section 2112 of the Probate Code]
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. [Section 7810 of the Family
Code (FAM)]
Existing state law provides that the application of the
ICWA in Indian child custody proceedings is mandatory.
[FAM Section 7810 and Section 360.6 of the Welfare and
Institutions Code]
Existing state law affirms that if a presumed father's
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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. [FAM 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. [FAM Section 8620]
Existing state law recognizes that tribes may enter into
agreements with adopting parents to permit continuing
contact between the child and the tribe. [FAM 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. [FAM
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. [FAM
Section 8620]
Existing state law authorizes the Director of the
Department of Social Services (DSS) to enter into
tribal-state agreements under Section 1903 of ICWA.
[Sections 10553.1-10553.3 of the Welfare and Institutions
Code (WIC)]
Existing state law provides for notice in accordance with
ICWA. [WIC Sections 290.1-297]
Existing state law requires Indian child custody
proceedings be transferred to an Indian child's tribe in
specified circumstances. [WIC 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. [WIC Section 361.2]
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Existing state law establishes placement preferences for
delinquents with tribal members when relative placements
are not available. [WIC Section 727.1]
This bill revises and recasts these provisions of state law
to include additional provisions of ICWA, and Rules of
Court.
This bill requires a copy of the adoption order be provided
to the Bureau of Indian Affairs (BIA), as required by ICWA.
This bill codifies 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.
This bill defines a court of another state to include a
tribal court having and exercising jurisdiction over a
custody proceeding involving an Indian child.
This bill requires 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 allows, 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 clarifies that an Indian child's tribe has a
right to intervene in the proceedings at any time.
This bill clarifies 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 provides 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.
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This bill provides 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 provides 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 clarifies 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 requires a record of each foster care or adoptive
placement of an Indian child be maintained in perpetuity by
the DSS, as is implied by the ICWA.
This bill clarifies that the Director of the DSS 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.
This bill is double-jointed with SB 1667 (Kuehl) and AB
2480 (Evans).
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 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."
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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, 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 to state
statutes, court rules, federal statutes and regulations,
and BIA-issued guidelines to determine how to comply with
the terms of ICWA.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2006-07 2007-08
2008-09 Fund
Additional court $0 $550
$550Local
processing
Costs under this bill 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 this bill 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
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will likely be assumed by the courts.
According to the Judicial Council of California 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 this bill include additional notice requirements for
participating tribes and tribal representatives, extended
hearings and additional expert testimony.
The DSS 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. This bill'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.
SUPPORT : (Verified 8/25/06)
California Indian Legal Services (source)
Advocates for American Indian Children
Agua Caliente Band of Cahuilla Indians
American Federation of State, County and Municipal
Employees, AFL-CIO
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 NationsIndian 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
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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
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.
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Viejas Tribal Government
Yurok Tribe
ARGUMENTS IN SUPPORT : 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 too often, according to
the sponsor, 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.
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Bass, Benoit, Berg,
Bermudez, Blakeslee, Bogh, Calderon, Canciamilla, Chan,
Chavez, Chu, Cogdill, Cohn, Coto, Daucher, De La Torre,
DeVore, Dymally, Emmerson, Evans, Frommer, Garcia,
Goldberg, Hancock, Haynes, Jerome Horton, Shirley Horton,
Houston, Huff, Jones, Karnette, Keene, Klehs, Koretz, La
Malfa, La Suer, Laird, Leno, Leslie, Levine, Lieber,
Lieu, Liu, Matthews, Maze, McCarthy, Montanez, Mountjoy,
Mullin, Nakanishi, Nation, Nava, Negrete McLeod, Niello,
Oropeza, Parra, Pavley, Plescia, Richman, Ridley-Thomas,
Sharon Runner, Ruskin, Saldana, Salinas, Spitzer,
Strickland, Torrico, Tran, Umberg, Vargas, Villines,
Walters, Wolk, Wyland, Yee, Nunez
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NO VOTE RECORDED: Vacancy
RJG:mel 8/25/06 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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