BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2417 (Cook)
As Introduced
Hearing Date: June 29, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Tribal Customary Adoption
DESCRIPTION
This bill would make several clarifications regarding how a
background check must be completed for the purposes of a tribal
customary adoption.
BACKGROUND
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
(ICWA) in 1978. 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 U.S.C. Sec. 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. Sec. 1902.)
Generally, 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: (1) establishing jurisdictional requirements; (2)
allowing for notice of and intervention in Indian child custody
proceedings by a tribe; and (3) providing that the acts,
records, and judicial proceedings of tribal courts are entitled
(more)
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to full faith and credit to the same extent that the acts,
records, or judicial proceedings of another state would be. In
addition, ICWA prohibits a court from terminating parental
rights without proof beyond a reasonable doubt and 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 U.S.C. Sec. 1911 et seq.)
In 2006, SB 678 (Ducheny, Chapter 838, Statutes of 2006) created
two exceptions to the termination of parental rights for the
parents of Native American children in the child welfare system
where the court could otherwise order such termination of
rights. The court is not required to order termination, if the
court finds that such termination would be detrimental to the
child because: (1) termination of parental rights would
substantially 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 planned
permanent living arrangement for the child. SB 678 thus
recognized that tribes may have different cultural and familial
values that do not necessarily conform to the strong presumption
in state law that permanence is always in the child's best
interest.
Last year, the Legislature passed, and the Governor signed, AB
1325 (Cook, Chapter 287, Statutes of 2009) which established
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
traditional or customary tribal adoption. AB 1325 contains a
four-year sunset so as to provide the Legislature with the
opportunity to determine whether the best interests of children,
and the tribes, are being properly protected. This bill would
make several clarifying changes to AB 1325.
CHANGES TO EXISTING LAW
Existing law requires a child's tribe or the tribe's designee to
conduct a tribal customary adoption home study prior to final
approval of the tribal customary adoptive placement. (Wel. &
Inst. Code Sec. 366.24.)
Existing law requires that a state and federal criminal
background check through the Department of Justice be conducted
on the prospective tribal customary adoptive parents and on
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persons over 18 years of age residing in their household. (Id.)
Existing law provides that, if the tribe chooses a designee to
conduct the home study, the designee shall perform the state and
federal criminal background check. (Id.)
Existing law provides that, upon the tribe conducting its own
home study, the agency that has the placement and care
responsibility of the child shall perform the state and federal
criminal background check. (Id.)
This bill would clarify that a tribal designee must be an entity
that is authorized to request a search of the state's child
abuse and neglect registry, and must be an entity that is
authorized to request a search for state and federal level
criminal offender records through the Department of Justice.
This bill would clarify that a state and federal background
check conducted through the Department of Justice must be
conducted for the prospective adoptive parents and any person
residing in the home over 18 prior to final approval of a tribal
customary adoptive placement.
This bill would additionally make grammatical and other
non-substantive changes in order to provide clarification and
correct technical defects that exist in various statutory
provisions governing tribal customary adoption.
COMMENT
1.Stated need for the bill
The author states:
Current law requires a tribe or its designee to conduct
specified background checks to the extent required by federal
law as a condition of receiving federal foster care funding.
The state and federal criminal background check is conducted
through the Department of Justice. However, Section 366.24 of
the Welfare and Institutions Code does not specify that
background checks should be conducted through the Department
of Justice, which may lead to confusion.
AB 2417 will correct this problem.
In support, the Morongo Band of Mission Indians writes:
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The Morongo Band of Mission Indians supported AB 1325 last
year because it was beneficial to tribes in providing for
increased tribal participation in the establishment of
permanent placement plans for tribal children without the
termination of parental rights. We support the clarifying
change in AB 2417 regarding the background checks in existing
law.
2.Clarifications to background check requirements
Under current law, a tribal customary adoption order is a
compelling reason for which a court may find that termination of
parental rights over an Indian child would not be in a child's
best interests. (Wel. & Inst. Code Sec. 361.5.) The court
retains jurisdiction over the child after this determination has
been made, and the child's tribe or the tribe's designee is
required to complete the adoptive home study and perform
background checks for all caregivers and adults living in the
prospective home. The standard for evaluation of the home study
is the prevailing social and cultural standards of the child's
tribe, which is consistent with ICWA. (Wel. & Inst. Code Sec.
366.24; See also 25 U.S.C. Sec. 1915(b).)
This bill would clarify that the state and federal criminal
background checks that are required for all adults living in the
prospective adoptive home before the adoptive placement is
approved must be conducted through the Department of Justice.
3.Additional clarifying amendments
The Department of Social Services has requested the following
additional clarifying amendments, which the author is offering
as author's amendments.
On page 3, line 19, strike "child welfare" and insert "public
adoption"
On page 3, line 20 strike "has the placement and care
responsibility of the child," and insert "is otherwise
authorized to obtain criminal background information for the
purpose of adoption"
Support : Family Law Section of the State Bar; Morongo Band of
Mission Indians
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Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : AB 12 (Beall & Bass) would extend
transitional foster care services to eligible youth between 18
and 21 years of age, and requires California to seek federal
financial participation in kinship guardianship assistance
payments. This bill is currently pending in the Senate
Appropriations Committee.
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
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