BILL ANALYSIS
AB 2418
Page 1
Date of Hearing: April 27, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2418 (Cook) - As Amended: April 21, 2010
SUBJECT : INDIAN CHILDREN: AGE 18 TO 21
KEY ISSUE : SHOULD SELECTED CUSTODY PROCEEDINGS INVOLVING NATIVE
AMERICAN YOUNG ADULTS, AGES 18 TO 21, WHO REMAIN UNDER THE
JURISDICTION OF THE DEPENDENCY COURT, BE SUBJECT TO THE
REQUIREMENTS OF THE INDIAN CHILD WELFARE ACT?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by the Soboba Band of Luise?o Indians,
expands the definition of Indian child under the Indian Child
Welfare Act (ICWA) to provide various protections to tribes,
families and children in certain custody proceedings involving
Indian children who are no longer minors. The bill is carefully
crafted to apply just to adult Indian children who are under the
age of 21 and who are under the jurisdiction of the dependency
court. In addition, in order to respect the wishes of these
young adults, the bill allows them to opt out of ICWA
application if they so choose. The author writes that this bill
is necessary to help "provide essential protections to the most
vulnerable Indian youth over the age of 18," and allow "more
comprehensive and culturally appropriate services to be provides
in these service-intensive cases." There is no reported
opposition.
SUMMARY : Revises the definition of Indian child for purposes of
an Indian child custody proceeding. Specifically, this bill
states that for purposes of an Indian child custody proceedings,
an "Indian child" is either:
1)An Indian child as defined by ICWA, which is defined as any
unmarried person who is under age 18 and is either (a) a
member of an Indian tribe or (b) is eligible for membership in
an Indian tribe and is the biological child of a member of an
Indian tribe; or
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2)An unmarried person age 18 or over, but under 21 years of age,
who is either a member of an Indian tribe or eligible for
membership in an Indian tribe and the biological child of a
member of an Indian tribe, and who is under the jurisdiction
of the dependency court, unless that person or his or her
attorney elects not to be considered as an Indian child for
purposes of the Indian child custody proceeding. Requires
that all Indian child custody proceedings involving persons 18
and over must be conducted in a manner that respects the
child's status as a legal adult.
EXISTING LAW :
1)Defines Indian child as any unmarried person who is under age
18 and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe. (Welfare &
Institutions Code Section 224.1; 25 U.S.C. Section 1903(4).
Unless otherwise stated, all further references are to the
Welfare & Institutions Code.)
2)Defines "Indian child custody proceeding" as an Indian child
custody proceeding under ICWA, including a proceeding for
foster care, guardianship, termination of parental rights,
preadoptive placement after termination of parental rights, or
adoptive placement. Specifically excludes a voluntary foster
care or guardianship placement if the parent or Indian
custodian retains the rights to have the child returned upon
demand, and a custody proceeding between a child's parents,
unless the proceeding involves freeing a child from the
custody or control of a parent. (Section 224.1; Family Code
Section 170.)
3)Defines a "child custody proceeding" under ICWA to mean a:
(a) foster care placement; (b) termination of parental rights;
(c) preadoptive placement; and (d) adoptive placement.
Specifically excludes from the definition a divorce proceeding
where custody is awarded to one of the parents. (25 U.S.C.
Section 1903(1).)
4)Governs, through ICWA, the specified custody proceedings
involving Indian children, including:
a) Establishing jurisdictional requirements, and allowing
for notice of and intervention in Indian child custody
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proceedings by a tribe. (25 U.S.C. Sections 1911, 1912,
1918, 1920.)
b) Providing that an indigent parent or Indian custodian
has the right to court-appointed counsel. (25 U.S.C.
Section 1912.)
c) Requiring 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
termination of parental rights. (25 U.S.C. Section 1912.)
d) 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 U.S.C. Section 1912.)
e) Establishing placement preferences for Indian children
who are being placed in foster or adoptive placements. (25
U.S.C. Section 1915.)
f) Creating protections for a parent or Indian custodian
who voluntarily consents to foster care placement,
guardianship or termination of parental rights. (25 U.S.C.
Section 1913.)
5)Specifies the law that must be applied to an Indian child
custody proceeding. (Family Code Section 177.)
6)Specifies the notice that must be given to Indian tribes, as
well as the rights of participation of those tribes, in child
custody proceedings involving Indian children. (Family Code
Sections 180-85.)
7)Authorizes the dependency court to continue jurisdiction over
a dependent child who has reached the age of majority if the
county has not met specified requirements and termination of
jurisdiction would harm the child's best interests. (Section
391.)
COMMENTS : While foster children generally emancipate from
dependency when they turn 18, dependency courts today may, in
certain limited situations, retain jurisdiction over foster
youth who have attained the age of majority. AB 12 (Beall and
Bass), now being considered in the Senate, would significantly
expand the number of foster youth who are 18 to 21 and still
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under the jurisdiction of the dependency court, in order to
provide needed support to these young adults. This bill,
sponsored by the Soboba Band of Luise?o Indians, expands the
definition of Indian child to provide protections to tribes,
families and children in certain custody proceedings involving
Indian children who are no longer minors, but are still under
the jurisdiction of the dependency court. Writes the author:
Currently, state statutes concerning Indian children
do not protect Indian youth over the age of 18. A
dependent Indian youth who turns 18 is not considered
an "Indian" under the legal definition as it currently
stands. When the Indian youth is deemed non-Indian
for purposes such as dependency law, tribes lose the
ability to participate and assist in legal proceedings
related to the tribal child.
When the tribal youth, due to her or his age, does not
fall within the definition of an Indian Child, the
overall interests of Indian youth, families, and
tribes suffer. For example, the youth's particular
tribe will have no standing to participate in child
custody proceedings, will be precluded from
participating in court services, and will be precluded
from providing or receiving essential information
about the case. This construct is contrary to the
mandate of supporting Indian families contained in
federal and state law and contrary to the direction in
which child welfare policy is moving (in supporting
dependents beyond the age of 18).
ICWA and California Law : Congress enacted ICWA in 1978 in
response to reports that approximately 25 to 35 percent of all
Indian children were removed from their families by state child
welfare agencies and state courts, and placed in foster or
adoptive homes and institutions. 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." 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."
ICWA establishes minimum standards that state courts must follow
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when removing Indian children from their homes and placing them
in foster care or adoptive homes. Among other things, ICWA
requires that (1) notice be provided to tribes in Indian child
custody proceedings and they be permitted to intervene in these
proceedings; (2) indigent parents or Indian custodians be
provided with court-appointed counsel; and (3) "active efforts"
must have been made, and failed, to prevent the breakup of the
Indian family when a party seeks a foster care placement,
guardianship or termination of parental rights. ICWA does not
prevent a state from establishing higher standards and expressly
recognizes that where a state has done so, the higher standards
will prevail.
Foster Youth Who Age Out of Foster Care at 18 Face Significant
Challenges, But Legislation Now Pending in California May Soon
Offer More Support to These Young Adults : Studies over the
years have shown that outcomes for youth who emancipate from
California's foster care system are, by any measure,
disheartening. A recent study by the Casey Family Program and
the Harvard Medical School involving more than 600 case records
and interviews with 500 former foster youth found that a
majority of these young people face major mental health,
education, and employment challenges. One-third of the young
people in the study had incomes at or below the poverty level,
one third had no health insurance, and nearly a quarter had been
homeless after foster care. A 2007 report from the Children's
Advocacy Institute at U.C. San Diego found that less than three
percent of former foster youth go to college and 51 percent are
unemployed. In any given year, the report found, foster
children comprise less than 0.3 percent of the state's
population, and yet 40 percent of persons living in homeless
shelters are former foster children. A similarly
disproportionate percentage of the nation's prison population is
comprised of former foster youth.
To help improve these tragic statistics, Congress passed the
federal Fostering Connections to Success and Increasing
Adoptions Act of 2008, which allows states, among other things,
to extend foster care, KinGAP, and adoption assistance to 18 to
21-year-old foster youth who meet certain requirements. AB 12,
the California Fostering Connections Act, would, among other
things, enable this state to do just that. Under AB 12, foster
youth could continue to receive support after reaching the age
of majority. If they choose to do so, they would remain under
the jurisdiction of the dependency court. However, recognizing
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their status as young adults, this bill provides them with some
choice as to who may participate in their legal proceedings.
This Bill Expands Application of ICWA to Specified Proceedings
Involving Young Adults Under the Jurisdiction of the Dependency
Court : Currently, ICWA applies to specified custody proceedings
involving Indian children under the age of 18, including foster
care proceedings, proceedings to terminate parental rights and
adoption proceedings. This bill expands that to include adult
Indian children under the age of 21 who are under the
jurisdiction of the dependency court. Thus, adult Indian
children over whom the dependency court has retained
jurisdiction, as well as children receiving services and support
under AB 12, should that bill become law, would be considered
Indian children for purposes of ICWA application in proceedings,
including dependency, termination of parental rights and
adoption proceedings.
This bill, however, recognizes that these youth are adults and
capable of making independent decisions and does not make ICWA
application automatic. This bill appropriately allows an adult
Indian child to opt out of ICWA application, if he or she so
chooses. In addition, the bill requires that any custody
proceedings involving an adult Indian child must be conducted in
a manner that respects the person's status as a legal adult.
These provisions allow the 18 to 21 year old Indian child the
autonomy in decisionsmaking that appropriately belongs to a
young adult.
Proposed Amendments : As currently drafted, this bill applies
only to Indian children over the age of 18. The author,
however, has asked that the bill apply to youth age 18 and over.
The following amendments make that clarification:
On page 2, line 17, delete "over"
On page 2, line 17, after "age" insert "or over"
This bill, assuming it passes out of this Committee, will be
heard in the Assembly Human Services Committee later today. The
author has agreed to accept these clarifying amendments in that
Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support
None on file
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334