BILL ANALYSIS
AB 1325
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
AB 1325 (Cook and Beall, Jr.) - As Introduced: February 27,
2009
SUBJECT : Dependent children: tribal customary adoption.
SUMMARY : As of July 1, 2010, establishes procedures to allow
Indian children in the child welfare system to be provided with
the permanence offered by adoption without first terminating the
birth parents' rights through the use of tribal customary
adoption. Specifically, this bill :
1)Defines "tribal customary adoption" as adoption by and through
tribal custom, traditions or law and specifies that
termination of parental rights is not required to effect the
adoption. Requires tribal customary adoption orders to
describe the modification of the relationship between the
birth parent(s) or custodian(s) and child, as well as the
child's legal relationship to the tribe. Establishes a
presumption that parental rights or obligations not specified
in the order vest in the tribal customary adoptive parent(s).
2)Specifies that individuals who may be, will be, or are
adoptive parents through a tribal customary adoption have all
of the rights and privileges given to other adoptive parents
in the state and that the prior consent of the birth parent(s)
or custodian(s) is not necessary to establish a tribal
customary adoption.
3)Requires the tribe or its designee, as specified, to conduct
an adoptive home study prior to final approval of an adoptive
placement. Establishes the standard for evaluating the
adoptive home as the prevailing social and cultural standards
of the child's tribe. Requires the tribe or its designee to
conduct specified background checks to the extent required by
federal law as a condition of receiving Title IV-E funding.
4)Authorizes the court to continue the selection and
implementation hearing for a period not to exceed 120 days to
permit the tribe to complete the tribal customary adoption
process and file an order to document its completion. Further
authorizes the court to grant a continuance if additional time
AB 1325
Page 2
of up to 60 days is needed. Directs the court to make new
findings and orders if the customary adoption is not completed
during this time.
5)Requires that social workers or child advocates include
information in each social study or evaluation given to the
court on whether tribal customary adoption is an appropriate
permanent plan for an Indian child if reunification was not
successful. Requires that this information be provided in
consultation with the Indian child's tribe.
6)Specifies that if a court does not order family reunification
services, it shall, at the dispositional hearing, determine if
a hearing to terminate parental rights shall be set in order
to determine the most appropriate plan for the child, which
could include tribal customary adoption.
7)After the court has ordered that a hearing to terminate
parental rights be held, requires the assessment the agency
prepares to include a preliminary assessment of the
eligibility and commitment of a prospective tribal customary
adoptive parent. When tribal customary adoption is
recommended, also requires assessment to include the
likelihood of adoption, whether or not a customary adoption
would be detrimental to the child, and whether the Indian
child cannot or should not be returned to the home of the
Indian parent or custodian.
8)Adds a tribal customary adoption order to the list of
compelling reasons for which a court may find that termination
of parental rights over an Indian child would not be in a
child's best interests. Specifies that a court shall not
terminate parental rights if the court has ordered a tribal
customary adoption.
9)At a hearing regarding the possible termination of parental
rights, adds tribal customary adoption, without termination of
parental rights, as an order the court may make. Prioritizes
this option behind the termination of parental rights and
placement of the child for adoption, and before the
appointment of a relative guardian, establishment of a goal of
adoption, appointment of a nonrelative guardian and placement
in long-term foster care.
10)Requires the court to set an adoption hearing at which the
AB 1325
Page 3
tribal customary adoption order shall be filed if the Indian
child's tribe has elected a permanent plan of tribal customary
adoption. Specifies that the court will, upon receipt of the
tribal order, afford the order full faith and credit to the
same extent as it applies to the public acts, records,
judicial proceedings, and judgments of other entities, and
thereafter issue an order of tribal customary adoption.
Requires the court to terminate its jurisdiction over an
Indian child after a tribal customary adoption has been
completed and the order of adoption has issued.
11)Allows a child otherwise eligible for the adoption assistance
program to receive those benefits if he or she is the subject
of a tribal customary adoption order.
12)Specifies that a tribal customary adoption has the same force
and effects as other adoption orders and that the rights and
obligations of all parties are binding. Prohibits a court
from ordering compliance with the tribal customary adoption
order unless the party seeking enforcement participated or
attempted to participate in good faith in family mediation
services through the court, or dispute resolution through the
tribe, prior to filing the enforcement action.
13)Exempts tribal customary adoptions from various provisions of
the Family Code applicable to adoptions generally, including
those related to birth parent consent, the minimum age
difference of 10 years between the child and prospective
adoptive parent and the requirement that a child over the age
of 12 years consent to the adoption.
14)Requires the Judicial Council to adopt, before July 1, 2010,
rules of court and forms to implement tribal customary
adoption as a permanent plan for dependent Indian children.
15)Makes other related, conforming changes.
EXISTING FEDERAL LAW :
1)Under the Indian Child Welfare Act (ICWA), establishes minimum
standards for child welfare cases involving Indian children,
including requirements related to jurisdiction, notice of and
intervention in proceedings by a tribe, and specifies that the
acts, records, and judicial proceedings of tribal courts are
entitled to full faith and credit to the same extent that the
AB 1325
Page 4
acts, records, or judicial proceedings of another state would
be.
2)Requires that active efforts have been made, and have failed,
to prevent the breakup of an Indian family when a party seeks
a foster care placement, guardianship or the termination of
parental rights.
3)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.
4)Establishes placement preferences for Indian children who are
being placed in foster or adoptive placements.
5)Allows states to make adoption assistance payments to adoptive
parents of a child with special needs, as defined. Specifies
that the amount of assistance payments shall be determined
through agreement between the adoptive parent(s) and the state
or local agency, with consideration of the circumstances of
the adopting parent(s) and needs of the child.
EXISTING STATE LAW :
1)Establishes a system of child welfare services, including
foster care, for children who have been or are at risk of
being abused or neglected.
2)Authorizes the state to enter into agreements with tribes to
pass through IV-E funds if tribes take on child welfare
responsibilities like those of the counties in the other
cases.
3)Provides for the termination of parental rights in specific
circumstances unless one of several exceptions applies. For an
Indian child, these exceptions include when:
a) The child is living with an extended family member who
is unable or unwilling to adopt the child but who is
willing and capable of providing for the child through a
legal guardianship;
AB 1325
Page 5
b) Termination of parental rights would substantially
interfere with the child's connection to his or her tribal
community; or
c) 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.
4)Establishes the Adoption Assistance Program (AAP) with the
intent to reduce the number of children in foster care and
provide stable, secure homes for children who meet specified
eligibility requirements.
FISCAL EFFECT : Unknown
COMMENTS : Last year's AB 2736 (Cook, Beall), which died on the
Senate inactive file, contained some of the same concepts as
this bill. Under this bill, tribal customary adoption, which
does not require the termination of the birth parents' parental
rights, would become a permanency option available to a
dependent Indian child. To effect a tribal customary adoption,
the child's tribe, under specified circumstances, would file a
tribal customary adoption order in the juvenile court. The
court would then grant the order full faith and credit as the
act, record or proceeding of another sovereign entity. If a
dispute arises after a tribal customary adoption is completed,
the parties must first attempt to participate in court mediation
or tribal dispute resolution services before seeking to enforce
the order through the court.
Background and recent changes in federal Indian child welfare
laws: In response to reports that a large percentage of Indian
children had been removed from their families by courts and
child welfare agencies and placed in foster or adoptive homes
and institutions, Congress enacted ICWA in 1978. With this
landmark legislation, Congress acknowledged 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." 25 U.S.C 1901. The goal of
ICWA is thus to "protect the best interests of Indian children
and to promote the stability and security of Indian tribes and
families." 25 U.S.C 1902. ICWA and the conforming California
statutes provide an overall framework that governs child welfare
proceedings involving Indian children who are subject to the
AB 1325
Page 6
jurisdiction of state dependency courts because of abuse or
neglect or the risk of such harm.
California law also allows a dependency court, in specified
cases, to dismiss a proceeding or terminate jurisdiction and
transfer the case to a tribal court. However, most tribes in
California do not have tribal courts. Under ICWA, states must
afford full faith and credit to tribal acts, records, and
judicial proceedings to the same extent that the acts, records,
or judicial proceedings of another state would be granted full
faith and credit. Full faith and credit does not, however,
require the court to apply the law of the tribe in violation of
the legitimate public policy of the state. ( See In re Laura F.
et al. v. Tulare County Health and Human Services Agency, (2000)
83 Cal.App.4th 583; see also In re Marriage of Maria and Randy
Jacobsen, (2004) 121 Cal.App.4th 1187.) In the case of juvenile
dependency proceedings, the state's primary objective is to
ensure that court orders are in the best interests of the
dependent child.
In October, 2008, Congress enacted and President Bush signed one
of the most significant pieces of child welfare legislation in
some time. Among its provisions, the Fostering Connections to
Success and Increasing Adoptions (Fostering Connections) Act
(P.L. 110-351) authorized Indian tribes, under specified
circumstances, to receive federal funds to support the operation
of child welfare programs directly. The Fostering Connections
Act also requires states to negotiate in good faith with an
Indian tribe, organization or consortium that requests to
develop an agreement with the state to administer all or part of
the child welfare program on behalf of Indian children under
authority of the tribe. 42 USC 671(a). AB 770 (Torres) was
introduced this session to conform state law to these
requirements.
Purpose of this bill: According to the author, the termination
of parental rights which is currently a prerequisite to adoption
of a child is "totally contrary to many tribes' cultural beliefs
and it is, in fact, associated with some of the most oppressive
policies historically used against tribes and Indian people. .
." By contrast, historically and traditionally, most tribes
have practiced adoption by custom and ceremony. In addition,
the termination of parental rights can disrupt the child's
ability to be a full member of the tribe or participate fully in
tribal life. The author states that the use of guardianship as
AB 1325
Page 7
a means of avoiding these complications is not a sufficient
solution because it does not offer the same permanency as
adoption and does not allow guardians to receive adoption
assistance benefits.
Customary adoption in another state and eligibility for AAP:
While several other states legally recognize tribal customary
adoptions conducted within tribal courts, Minnesota appears to
be the only state that specifically recognizes customary
adoption performed by tribes through state courts without
termination of birth parents' rights. Minn. Stat. 259.67
Subdiv. 4 (3)(ii). The Minnesota statute only mentions
customary adoptions in the context of eligibility conditions for
adoption assistance under title IV-E of the Social Security Act,
and is otherwise lacking in details and procedures.
According to the author of this bill, there are differences
between the benefits of California's Kinship Guardianship
Assistance Payment program (Kin-GAP), created by SB 1901
(McPherson), Ch. 1055, Stats. 1998, and the Adoption Assistance
Program (AAP) that can make AAP benefits better able to provide
for the needs of children and families. Similar to Minnesota
law, this bill would make children adopted through tribal
customary adoption eligible to receive AAP benefits. This
eligibility is also consistent with guidance from the federal
government that recognizes its validity when other criteria are
met. ( See
http://www.acf.hhs.gov/j2ee/programs/cb/laws_policies/laws/cwpm/p
olicy_dsp.jsp?citID=49 , last visited on April 9, 2009).
The possibility of more than two legal parents : While there
have been academic discussions about recognizing more than two
legal parents, California law has thus far not allowed for this
possibility at any one time. This bill, by recognizing a legal
adoption without termination of birth parents' rights, would
allow for the existence of up to four parents-- the birth
parents whose rights have not been terminated, and the adoptive
parents. To minimize potential confusion this bill would
require a tribal customary adoption order to include: (1) the
modification of the legal relationship between the birth parents
or Indian custodian and the child, including contact, continuing
responsibilities of birth parents, and the child's rights of
inheritance; as well as (2) the child's legal relationship with
the tribe. There would also be a conclusive presumption that
any rights or obligations not specified in the customary
AB 1325
Page 8
adoption order vest in the adoptive parents.
Arguments in opposition to this bill: FLEXCOM opposes this bill
unless amended to further clarify that the final authority in
these cases rests with the California courts. Specifically,
they suggest an amendment to state that the court shall grant
the tribal order full faith and credit and thereafter issue an
order, " unless the court finds by clear and convincing evidence
that issuance of the order would be detrimental to the child. "
Technical amendments: The author may wish to consider the
following amendments to this bill:
1)Page 2, Line 3- insert "With the exception of Section 8608,"
before "this part"; and
Line 4- change reference to Section 366.26 to instead refer to
Section 366.24.
1)Page 36, lines 15 to 18, reword Section 366.24(a) to read:
"For purposes of this section, "tribal customary adoption"
means adoption by and through the tribal custom, traditions
or law of an Indian child's tribe. Termination of parental
rights is not required to effect the adoption."
2)Page 36, line 25, insert "prospective adoptive or" after the
word "other" and before "adoptive parent".
3)Change the reference on Page 36, line 26, change 366.2 to read
Section 366.26.
4)Page 37, line 13, replace the word "action" with the word
"case".
5)Page 37, line 39, include a more specific reference to
describe the "selection and implementation hearing governed by
Section 366.26 ".
6)Page 38, line 21, insert "parental" after "any" and before
"rights".
7)Page 43, line 36-38- Amend current language to instead read:
"Order, without termination of parental rights, the plan of
tribal customary adoption, as described in Section 366.24,
through the Indian child's tribe's custom, traditions or
AB 1325
Page 9
tribal law, and upon the filing of the tribal customary
adoption order, order that a hearing be set pursuant to
subsection (e)(2)."
8)Page 44, line 6- Insert "tribal customary adoption" after
"identify adoption".
REGISTERED SUPPORT / OPPOSITION :
Support
County Welfare Directors Association of California (CWDA)
Elm Indian colony of Pomo Indians
Habematolel Pomo of Upper Lake
Iipay Nation of Santa Ysabel
Kashia Band of Pomo Indians
Los Coyotes Band of Cahuilla and Cupeno Indians
Middletown Rancheria Band of Pomo Indians
North Fork Rancheria of Mono Indian of CA
Pane & Pane Associates, Inc.
Pimoleville Pomo Nation
Ramona Band of Cahuilla Indians
Viejas Band of Kumeyaay Indians
Opposition
Family Law Section, State Bar of California (FLEXCOM)
Analysis Prepared by : Jennifer Troia / HUM. S. / (916)
319-2089