BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1325|
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THIRD READING
Bill No: AB 1325
Author: Cook (R) and Beall (D), et al
Amended: 8/19/09 in Senate
Vote: 21
SENATE HUMAN SERVICES COMMITTEE : 5-0, 6/23/09
AYES: Liu, Maldonado, Alquist, Runner, Yee
SENATE APPROPRIATIONS COMMITTEE : 13-0, 8/27/09
AYES: Kehoe, Cox, Corbett, Denham, Hancock, Leno, Oropeza,
Price, Runner, Walters, Wolk, Wyland, Yee
ASSEMBLY FLOOR : 76-0, 5/28/09 - See last page for vote
SUBJECT : Tribal customary adoption
SOURCE : Soboba Band of Luiseno Indians
DIGEST : This bill 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 status deletes or extends that date.
ANALYSIS :
Existing Federal Law
1.Governs child welfare proceedings involving Indian
CONTINUED
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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 and intervention of Indian child
custody proceedings by the tribe.
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 of 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 purposes of
protecting any rights flowing from their tribal
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affiliation.
Existing 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 for the juvenile court.
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. (Welfare and
Institutions Code 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. (Welfare and Institutions Code Section\ 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
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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.
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
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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.
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 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 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
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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
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11
2011-12 Fund
New tribal adoption $34 $59
$31 General
program
Mandate: county Unknown, potentially
significant General
social workers
AAP eligibility Very minor, likely under $5
annually General
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Judicial Council study Minor and
absorbable General
SUPPORT : (Verified 9/1/09)
Soboba Band of Luiseno Indians (source)
California State Association of Counties
California Tribal Business Alliance
California Valley Miwok Tribe
California Welfare Directors Association
Campo Band of Mission Indians
Elem Indian Colony
Elk Valley Rancheria, California
Enterprise Rancheria
Habematolel Pomo of Upper Lake
Judicial Council of California
Karuk Tribe
Lytton Band of Pomo Indians
Morongo Band of Mission Indians
Pala Band of Mission Indians
Pauma Band of Mission Indians
Pechanga Band of Luiseno Indians
Redding Rancheria
Round Valley Indian Tribes
San Manuel Band of Mission Indians
San Pasqual Band of Diegueno Mission Indians of California
Santa Ynez Band of Chumash Indians
Scotts Valley Band of Pomo Indians
Sherwood Valley Rancheria
Shingle Springs Rancheria
Susanville Indian Rancheria
Twenty-Nine Palms Band of Mission Indians
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Buchanan, Caballero, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
DeVore, Emmerson, Eng, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,
Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,
Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue,
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Bonnie Lowenthal, Ma, Miller, Monning, Nava, Niello,
Nielsen, John A. Perez, V. Manuel Perez, Portantino,
Price, Ruskin, Salas, Saldana, Silva, Skinner, Smyth,
Solorio, Audra Strickland, Swanson, Torlakson, Torres,
Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Duvall, Evans, Mendoza, Nestande
DLW:cm 9/1/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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