BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 1325
A
AUTHOR: Cook
B
VERSION: May 6, 2009
HEARING DATE: June 23, 2009
1
FISCAL: To Judiciary and to Appropriations
3
2
CONSULTANT:
5
Hailey
SUBJECT
Tribal customary adoption
SUMMARY
Establishes, as of July 1, 2010, customary adoption as an
additional exception to termination of parental rights for
parents of Indian children who have been adjudicated
dependents of the court. Sunsets this additional exception
on January 1, 2014, unless a later enacted statute deletes
or extends that date.
ABSTRACT
Current federal law
1) Governs child welfare proceedings involving Indian
children who are subject to the jurisdiction of the court
because of abuse or neglect or the risk of such harm.
2) Establishes jurisdictional requirements.
3) Allows for notice of and intervention in Indian child
custody proceedings by a tribe.
Continued---
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
2
4) Provides 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.
5) Provides that an indigent parent or Indian custodian
has the right to court-appointed counsel.
6) 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 the
termination of parental rights.
7) 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.
8) Establishes placement preferences for Indian children
who are being placed in foster or adoptive placements.
9) Creates protections for a parent or Indian custodian
who voluntarily consents to foster care placement,
guardianship or the termination of parental rights.
10) Requires states to keep records of Indian child
placements and provide them to the Secretary of the
Interior and the child's tribe.
11) Provides that an Indian adult who was adopted as a
child may unseal their adoption records for the purpose of
protecting any rights flowing from their tribal
affiliation.
Current state law
1) Requires a social worker or child advocate appointed by
the court to prepare an evidentiary study, covering various
aspects of a child's situation, for use by the court in
determining the proper disposition of a dependent child of
the juvenile court.
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
3
2) Provides for the termination of parental rights in
specific circumstances unless one of several situations
applies, including for an Indian child, 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,
termination of parental rights would substantially
interfere with the child's connection to his or her tribal
community, or 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. [WIC Section 366.26 (c)(1) and
(c)(1)(B)(vi)]
3) Provides that the juvenile court shall proceed with an
adoption of a child who is a dependent of the juvenile
court after the appellate rights of the natural parents
have been exhausted.
4) Establishes the adoption assistance program to provide
benefits to qualifying children who have been in foster
care. (WIC Sections 16115 et seq.)
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, after consultation with an Indian
child's tribe, on whether customary adoption is an
appropriate permanent plan for a child if reunification
fails.
3) Requires that the social workers' assessment, in the
case when tribal customary adoption is recommended, include
an analysis of
(a) whether tribal customary adoption would or would
not be detrimental to the child and the reasons for
reaching that conclusion;
(b) whether the Indian child cannot or should not be
returned to the home of the Indian parent or Indian
custodian and the reasons for reaching that conclusion;
and
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
4
(c) the likelihood of adoption.
4) Defines a "tribal customary adoption" as "adoption by
and through the tribal custom, traditions, or law of an
Indian child's tribe."
5) States that termination of parental rights is not
required to effect a tribal customary adoption.
6) Requires that assessments for court hearings on an
Indian child's placement shall address the option of a
tribal customary adoption.
7) Gives to prospective and adoptive parents through a
tribal customary adoption the same rights and privileges
afforded to any other prospective and adoptive parents
provided pursuant to the laws of the state.
8) Provides that in the case of a tribal customary
adoption, the following shall apply:
(a) the child's tribe or the tribe's designee shall
conduct an adoptive home study prior to final approval
of the adoptive placement;
(b) the tribe or its designee shall perform a check of
the child abuse central index for all persons over 18
years of age living in the prospective adoptive
household;
(c) the tribe or its designee shall perform a state and
federal criminal background check on all persons over
18 years of age living in the prospective adoptive
household; and,
(d) under no circumstances shall final approval be
granted for an adoptive placement if any adult in the
prospective adoptive home has a felony conviction for
child abuse or neglect and other violent crimes, or,
within the past five years, a felony conviction for
physical assault, battery, or a drug-related offense.
9) Provides that the court may continue the hearing for
120 days (with discretion to add 60 days) to permit the
tribe to complete the process for tribal customary adoption
and file an order that a tribal customary adoption has been
completed; if the child's tribe does not file the order
within the designated time period, the court shall make new
findings and orders to determine the best permanent plan
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
5
for the child.
10) Permits various individuals to present evidence to the
child regarding the child's best interest, including the
child, birth parents, Indian custodian, and tribal
customary adoptive parents and their counsel.
11) Provides that prior consent to a permanent plan of
tribal customary adoption shall not be required of an
Indian parent or Indian custodian whose parental
relationship to the child is modified by the adoption.
12) Provides that the court shall terminate its
jurisdiction of the child after the adoption has been
completed, the order of the tribe filed, and the order of
adoption issued.
13) Establishes the option of tribal customary adoption as
of July 1, 2010.
14) 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.
15) Establishes that a child who has been adopted through
tribal custom shall be eligible for the adoption assistance
program. (Welfare and Institutions Code Section 16120)
16) 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.
17) Requires the Judicial Council, by July 1, 2010, to
adopt rules of court and necessary forms to implement
tribal customary adoption.
18) 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.
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
6
FISCAL IMPACT
The Assembly Appropriations Committee notes minor and
absorbable costs.
BACKGROUND AND DISCUSSION
Synopsis
This bill, sponsored by the Soboba Band of Luiseno Indians,
establishes a process to allow Indian children in the child
welfare system to be provided with the permanence offered
by adoption, through the use of traditional or customary
adoption, without first terminating the birth parents
rights.
Proponents argue that customary adoption allows the child
to retain his or her connection with the tribe and allows
for the flow of federal and state adoption assistance
program funds to the adoptive parents. In dependency cases
involving Indian children where termination of parental
rights is warranted, this bill permits the child's tribe to
seek tribal customary adoption without ending the birth
parent's rights. The tribe, through a process that permits
participation by the parties and their counsel, develops an
adoption order, which specifies the legal rights and
obligations of the birth parents or Indian custodian and
the prospective adoptive parents. The order is then filed
with the dependency court, which must issue the order as
submitted by the tribe, provided that it complies with
full, faith and credit and other specified requirements.
Termination of parental rights
This bill, sponsored by the Soboba Band of Luiseno Indians,
establishes a process to allow Indian children in the child
welfare system to be provided with the permanence offered
by traditional or customary adoption without first
terminating the birth parents rights. It is similar to
last year's AB 2736 (Cook), which died on the Senate
inactive file.
For most tribes in the United States, adoption has been
practiced within the tribe through tribal law, custom, or
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
7
tradition. According to the author, termination of
parental rights is contrary to many tribes' cultural
beliefs and is associated with oppressive policies used
historically against tribes and Indian people - for
example, forced removal of Indian children and Indian
boarding schools.
Further, termination of parental rights has cultural
implications for the tribal community, disrupting important
cultural norms of family structure, changing the
fundamental dynamics and familial order. Additionally, the
author reports that this might affect the child's ability
to be a full member of the tribe, create barriers to full
participation in tribal life, and prevent the child from
accessing services and benefits available to tribal
members.
Tribes, to avoid termination of parental rights when an
Indian child cannot reunify with birth parents, often
advocate that the Indian child remain in a permanent plan
of guardianship. However, guardianship does not offer the
permanency that adoption does, nor does it allow for the
supportive resources available to families where there is
termination of parental rights. Further, adoption
assistance is not available to families where there is a
guardianship.
The motivation for AB 1325 was borne out of the tension
between tribal cultural norms and existing state law, which
does not include a culturally appropriate means of
achieving permanency for dependent Indian children. The
experience of tribes and tribal families engaged in the
dependency system is that of feeling forced to accept
termination of parental rights and adoption despite
articulating fundamental opposition. According to the
author, AB 1325 will allow Indian children and families to
realize the permanency and support of adoption without the
culturally offensive precursor of termination of parental
rights by providing "customary adoption" as an additional
option for permanency planning.
In addition, the author explains that there is at least
another disadvantage to a guardianship. Counties do not
receive the same reimbursement from the state and federal
governments for guardianships as they do for adoptions and,
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
8
even though these placements are permanent, counties are
unable to report them to the state and federal governments
as completed cases. Moreover, funding for guardianship
placements is limited. While there are kinship
guardianship assistance payment program (Kin GAP) funds
available to guardians, the funds are significantly less
than those provided to adoptive parents through the
adoption assistance program (AAP).
The Indian Child Welfare Act and existing state law
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 the Indian Child
Welfare Act in 1978. The goal of the act 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.)
The act 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. The act 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.)
Existing law recognizes exceptions to termination of
parental rights for Indian children. AB 678 (Ducheny,
Chap. 838, Stats. 2006) created two exceptions to the
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
9
termination of parental rights for the parents of Indian
children in the child welfare system where the court could
otherwise order such termination of rights. The court can,
if termination would be detrimental to the Indian child,
not order such termination if either of the following is
true: (1) termination of parental rights would interfere
with the child's connection to his or her tribal community
or the child's tribal membership rights; or (2) the child's
tribe has identified guardianship, long-term foster care
with a fit and willing relative, or another permanent
living arrangement for the child. AB 1325 creates, in
essence, another exception to termination of parental
rights: tribal customary adoption.
Customary adoption
Historically, adoption was practiced in most tribal
communities - traditional or customary adoption was the way
that many Native American children were cared for when
their parents were unable or unwilling to do so. There is
no evidence, however, that the rights of birth parents were
terminated before such customary adoptions. Since passage
of the federal Adoption and Safe Families Act, which
creates incentives for achieving permanency for children in
the foster care system by terminating parental rights and
arranging for adoption of children, many tribes have had a
renewed interest in customary adoption. Committee staff is
aware of one state - Minnesota - that recognizes customary
adoption performed by tribes (without tribal courts)
without termination of the birth parents' rights. [Minn.
Stat. 259.67 Subdiv. 4 (3)(ii)] The Minnesota statute,
however, is short on details and process.
Recent changes in federal Indian child welfare laws
In October, 2008, Congress enacted the Fostering
Connections to Success and Increasing Adoptions Act
(Fostering Connections Act, P.L. 110-351). It authorizes
Indian tribes, under specified circumstances, to receive
federal funds to support the operation of child welfare
programs directly. The 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 Section 671(a). AB 770 (Torres), which is
also before the committee, proposes to conform state law to
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
10
these requirements.
How AB 1325 would work
The bill establishes processes and procedures for tribal
customary adoption. The process begins after the court has
ordered that a hearing to terminate parental rights for an
Indian child be held. At that point, the child welfare
agency must, in their assessment, address the issue of
tribal customary adoption and whether it may be
appropriate. When tribal customary adoption is
recommended, the child welfare agency assessment must
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.
Under the bill, a tribal customary adoption order is added
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. After that
determination, the court retains jurisdiction over the
child, but the tribe completes the adoptive home study and
the tribe's designee performs the background checks for all
caregivers and adults living in the prospective home. The
bill specifies that the standard for evaluation of the home
study is the prevailing social and cultural standards of
the child's tribe. This is consistent with the Indian
Child Welfare Act. [See 25 USC Section 1915(b).]
The tribe is required, within 120 days, to file with the
court a tribal customary adoption order showing that the
customary adoption has been completed. The tribe may seek
a continuance of up to 60 days to finalize the order, which
the court has discretion to grant. If the tribe does not
file the adoption order with the court in the allotted
time, the court shall make new findings and orders to
determine an alternative permanent plan for the child. If
the tribe submits an order, the court is required to afford
the order full faith and credit.
This bill represents the first time that children will have
more than two legal parents. California law recognizes
that children can have only two parents. While there have
been academic discussions about recognizing more than two
legal parents, our law has thus far not recognized more
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
11
than two legal parents at any one time. This bill,
however, by recognizing a legal adoption without
termination of the 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 make matters more complicated, these cases may
also include an Indian custodian.
To help resolve the myriad of legal confusions that could
arise from four parents with legal rights and
responsibilities of parenthood, this bill requires the
adoption order to include (1) the modification of the legal
relationship between the birth parents or Indian custodian
and the child, including contact, responsibilities of the
birth parents or Indian custodian, and rights of
inheritance of the child; and (2) the child's legal
relationship with the tribe. There is a conclusive
presumption that any rights or obligations not specified in
the tribal customary adoption order vest in the adoptive
parents.
Jurisdictional issues
This bill poses unique jurisdictional considerations for
the court and the tribe. 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. (Section 305.5.) However, most tribes
in California do not have tribal courts. Under the Indian
Child Welfare Act, 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. 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.
This bill makes clear that the court is only required to
enter the tribal adoption order if the order comports with
full faith and credit. Thus, if the order violates the
legitimate public policy of the state, the court is not
required to enter the order. Under that standard, a court
would not be required to enter an order that it determined
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
12
was not in the best interests of a dependent child under
the court's jurisdiction. In all other cases, however, the
dependency court would be required to enter the tribal
adoption order, provided that it complied with the
requirements of this bill.
Given that this bill represents uncharted territory, the
author has agreed to a sunset, in four years, for the
bill's provisions. Also, the bill requires a report from
the Judicial Council, due to the Legislature three years
after the bill has been in operation, on how the bill is
being implemented, examining, in particular, the best
interests of the child and the rights and obligations of
all parents and the Indian custodian. The report should
help the Legislature determine how customary adoption is
working, whether it requires any legislative changes and
whether it should be extended indefinitely.
Similar legislation
Last year, Mr. Cook's AB 2736, which died on the Senate
inactive file, passed out of the Senate Human Services
Committee on a vote of 4-0.
Assembly votes
Floor 76-0
Appropriations15-0
Judiciary 10-0
Human Services 6-0
COMMENTS AND QUESTIONS
Social worker expertise
This bill requires that the court study of an Indian
child's situation shall include whether tribal customary
adoption is an appropriate permanency placement. The
committee may want to ask the author if social workers will
receive any additional education and training on how to
make these assessments.
POSITIONS
Support: Soboba Band of Luiseno Indians (sponsor)
California State Association of Counties
STAFF ANALYSIS OF ASSEMBLY BILL 1325 (Cook) Page
13
California Valley Miwok Tribe
California Welfare Directors Association
County Welfare Directors Association of
California
Elem Indian Colony of Pomo Indians
Habematolel Pomo of Upper Lake
Iipay Nation of Santa Ysabel
Los Coyotes Band of Indians
Kashia Band of Pomo Indians
Middletown Rancheria Band of Pomo Indians
Morongo Band of Mission Indians
North Fork Rancheria of Mono Indian of
California
Pechanga Band of Luse?o Mission Indians
Pinoleville Pomo Nation
Ramona Band of Cahuilla Indians
Redding Rancheria
Robinson Racheria Band of Pomo Indians
Rincon Band of Luiseno Indians
San Pasqual Band of Mission Indians
1 individual
Oppose: None received
-- END --