BILL ANALYSIS
AB 1325
Page 1
Date of Hearing: May 20, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 1325 (Cook) - As Amended: May 6, 2009
Policy Committee: JudiciaryVote:10
- 0
Human Services 7 - 0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill, as of July 1, 2010, establishes customary adoption as
an additional exception to termination of parental rights for
parents of Indian children who have been adjudicated dependents
of the court. Specifically, this bill:
1)Creates an exception from the termination of parental rights
in cases where an Indian child's tribe has determined that
tribal customary adoption is appropriate for the child.
2)Requires social workers to include information in their
reports to the court on whether or not customary adoption is
an appropriate option for a child if reunification fails.
3)Requires the dependency court to accept an order of customary
adoption from a tribe unless the court finds by clear and
convincing evidence that the issuance of such an order would
be detrimental to the child.
4)Requires the Judicial Council to study California's tribal
customary adoption provision and the affect on children, birth
parents, adoptive parents and other effected parties, and
report to the Legislature by January 1, 2013.
FISCAL EFFECT
1)Costs for the Judicial Council to produce the required report
would be minor and absorbable within existing resources.
2)Costs for social workers to include the required information
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in their report would be minor, likely under $25,000 per year.
3)Any additional workload costs for social workers and the
courts would be minor and absorbable within existing
resources.
COMMENTS
1)Purpose . This bill, sponsored by the Soboba Band of Luiseno
Indians, is intended to find permanency for Indian children
while preserving family lineage and protecting tribal
heritage. The author notes that this bill will add to existing
state dependency law a culturally appropriate alternative to
traditional adoptions that require the termination of parental
rights. This option, as with all other permanency options,
would only be allowed if the tribe and the courts determine
that customary adoption is in the child's best interest.
2)Tribal Customary Adoption . Similar to legal guardianships in
the state, tribal customary adoptions allow a person or
persons to adopt a child while still maintaining the birth
parents' parental rights. Maintaining a connection with the
birth parent is a way that tribes can find permanency for a
child while continuing to honor tribal values and beliefs.
Extended lineages and tribal family systems form the basis for
all tribes. Maintaining the birth parent/child connection,
even when the child is permanently placed with another family,
protects the child's connection to their extended family and
their lineage.
Historically, adoption, boarding school systems and foster
care have been used to assimilate Indian children into the
non-Indian mainstream community. Because of concerns about the
historical abuse of the adoptions process, tribes remain
skeptical of a system that terminates parental rights and
potentially severs a child's link with their tribal heritage.
Customary adoptions, when appropriate, could be a valuable
tool for finding safe, permanent homes for Indian children in
foster care while allowing them to maintain important family
linkages
3)The Indian Child Welfare Act : In response to reports that a
large percentage of Indian children were removed from their
families by courts and child welfare agencies and placed in
foster or adoptive homes and institutions, Congress enacted
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ICWA in 1978. The goal of ICWA is to "protect the best
interests of Indian children and to promote the stability and
security of Indian tribes and families." (25 USC Section
1902.) 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." (25 USC Section
1901.)
ICWA governs child welfare proceedings involving Indian
children who are subject to the jurisdiction of the dependency
court because of abuse or neglect or the risk of such harm.
Among other things, ICWA sets forth minimum federal standards
by establishing jurisdictional requirements; allowing for
notice of and intervention in Indian child custody proceedings
by a tribe; 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; and 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 USC Section
1911 et seq.)
4)Related Legislation . In 2008, AB 2736 (Cook and Beall), which
contained many of the same provisions and died on the Senate's
inactive file.
Analysis Prepared by : Julie Salley-Gray / APPR. / (916)
319-2081