BILL ANALYSIS
AB 2418
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Date of Hearing: April 27, 2010
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 2418 (Cook) - As Amended: April 21, 2010
SUBJECT : Indian children
SUMMARY : Revises the definition of an "Indian child" for
purposes of preserving his or her eligibility for application of
the Indian Child Welfare Act (ICWA), as the following:
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
2)An unmarried person who is over 18 years of age, 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 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 proceedings 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
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custodian retains the rights to have the child returned upon
demand, and a custodial 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 of child custody
proceeding 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
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.); and
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.
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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.)
FISCAL EFFECT : This bill has not yet been analyzed for its
fiscal effect.
COMMENTS : This bill, sponsored by the Soboba Band of Luise?o
Indians, expands the definition of Indian child under ICWA to
provide various 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. 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 believes 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 provided in these service-intensive
cases."
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 (e.g. age 18). 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
under the jurisdiction of the dependency court. 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
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Indian children who are no longer minors, but are still under
the jurisdiction of the dependency court. The author states:
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
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; 2)
indigent parents or Indian custodians be provided with
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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 These Young Adults More Assistance : 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 the University of San Diego found that
less than three percent of former foster youth go to college and
51% 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 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.
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
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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 decision-making 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"
Related legislation
AB 1325 (Cook), Chapter 287, Statutes of 2009, established, 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.
AB 12 (Beall & Bass): Requires California to opt in to federal
financial participation in kinship guardianship assistance
payments and extends transitional foster care services for
eligible youth between 18 and 21 years of age pursuant to the
federal Fostering Connections to Success and Increasing
Adoptions Act of 2008 (Fostering Connections Act). Referred to
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the Senate Human Services Committee.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Judiciary Committee on April 27, 2010.
REGISTERED SUPPORT / OPPOSITION :
Support
Soboba Band of Luise?o Indians (sponsor)
Opposition
None on file.
Analysis Prepared by : Frances Chacon / HUM. S. / (916)
319-2089