BILL ANALYSIS
AB 1325
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1325 (Cook and Beall)
As Amended September 2, 2009
Majority vote
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|ASSEMBLY: |76-0 |(May 28, 2009) |SENATE: |39-0 |(September 4, |
| | | | | |2009) |
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Original Committee Reference: HUM. S.
SUMMARY : Establishes procedures, until January 1, 2014, 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, with specified exemptions. Establishes the option
of tribal customary adoption, and establishes regulations
consistent with ensuring Title IV-E federal funding for
adoption assistance.
2)Requires social workers to include information in their
reports to the court, as specified, after consultation with an
Indian child's tribe, on whether customary adoption is an
appropriate permanent plan for a child if reunification fails.
3)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.
4)Provides for an adoptive home study prior to final approval of
the placement, as specified. Establishes that a child who has
been adopted through tribal custom shall be eligible for the
adoption assistance program (AAP).
5)Requires the Judicial Council (JC), by July 1, 2010, to adopt
rules of court and necessary forms to implement tribal
customary adoption. Requires the JC to study California's
tribal customary adoption provision, as specified, and report
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to the Legislature by January 1, 2013.
6)Permits the Department of Social Services (DSS) to adopt
emergency regulations to implement and administer the
provisions of this bill.
7)Makes other related clarifying and technical changes.
The Senate amendments :
1)Clarify provisions to the tribal customary adoption to provide
a clear and concise vision of the process.
2)Permit DSS to adopt emergency regulations to implement and
administer the provisions of this bill.
3)Add chaptering out language to avoid conflict with AB 706
(Human Services).
4)Make technical and clarifying amendments.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version passed by the Senate.
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
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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
the Indian Child Welfare Act (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 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
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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
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), Chapter 1055, Statutes of 1998, and 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).
According to the author's office, the September 2, 2009
amendments came at the request of DSS to clarify AAP eligibility
for Indian children adopted under a tribal customary adoption.
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This clarification was needed because children adopted under TCA
would not meet the criteria of AAP, and therefore, any child
subject to a tribal customary adoption would fail to be eligible
for AAP. A specific qualification for eligibility under
subdivision (a) of section 16120 has been added to account for
TCAs. Also added were specific eligibility statements for
federal AAP funding under paragraphs (j) and (k) of the same
section.
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; and, 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 adoption
order vest in the adoptive parents.
August 19, 2009 Amendments: The majority of the August 19th
amendments were presented to the Senate Appropriations Committee
as a direct result of multiple conversations with DSS. The
author states that it became clear during these discussions that
there was some confusion regarding how the process of tribal
customary adoption would actually work, from the selection of
customary adoption by the tribe to the completion of the
adoption. Therefore, the majority of the tribal customary
adoption language was reworked to provide a clear and concise
vision of the process. Also contained in this version were the
amendments from the Department of Justice regarding background
checks.
Sunset provision : Given that the significant changes proposed
by this bill represent uncharted territory, the authors have
agreed to a sunset for the bill, with a report due to the
Legislature. The bill charts significantly new territory for
California law by more than two legal parents for a child. The
recognition of more than two legal parents (potentially four and
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perhaps an Indian custodian) will raise unique and previously
unexplored issues that cannot be fully considered without some
experience in the area. As a result, the authors have rightly
agreed to a four-year sunset to the bill and requiring a report
from the JC, 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.
Analysis Prepared by : Frances Chacon / HUM. S. / (916)
319-2089
FN: 0002943