BILL ANALYSIS
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THIRD READING
Bill No: AB 2418
Author: Cook (R)
Amended: 7/15/10 in Senate
Vote: 21
SENATE HUMAN SERVICES COMMITTEE : 3-0, 6/10/10
AYES: Liu, Runner, Yee
NO VOTE RECORDED: Romero, Vacancy
ASSEMBLY FLOOR : 74-0, 5/6/10 - See last page for vote
SUBJECT : Indian children
SOURCE : Soboba Band of Luise?o Indians
DIGEST : This bill revises the definition of Indian child
for purposes of an Indian child custody proceeding.
Senate Floor Amendments of 7/15/10 modify the definition of
"Indian child" for Indian child custody proceedings only
and restore the definition of "Indian child" for all other
portions of the code division.
ANALYSIS :
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
CONTINUED
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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 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.
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.
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.
B. Providing that an indigent parent or Indian
custodian has the right to court-appointed counsel.
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.
D. Prohibiting a court from terminating parental
rights without proof beyond a reasonable doubt, or
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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.
E. Establishing placement preferences for Indian
children who are being placed in foster or adoptive
placements.
F. Creating protections for a parent or Indian
custodian who voluntarily consents to foster care
placement, guardianship or termination of parental
rights.
5. Specifies the law that must be applied to an Indian
child custody proceeding.
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.
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.
This bill:
1. States that for purposes of an Indian child custody
proceedings, an "Indian child" is either:
A. An Indian child, as defined by ICWA -- any
unmarried person who is under age 18 and is either
a member of an Indian tribe or is eligible for
membership in an Indian tribe and is the biological
child of a member of an Indian tribe
B. 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
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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.
2. 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.
Background
The Indian Child Welfare Act 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 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.
Studies over the years have shown that outcomes for youth
who emancipate from California's foster care system are, by
any measure, sobering. 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
daunting 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
51percent are unemployed. In any given year, the report
found, adults who were foster children comprise a
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disproportionate share of persons in homeless shelters and
in prisons.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/15/10)
Soboba Band of Luise?o Indians (source)
Morongo Band of Mission Indians
ARGUMENTS IN SUPPORT : This bill is 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.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Tom
Berryhill, Blakeslee, Blumenfield, Bradford, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Gaines, Galgiani, Garrick, Hagman,
Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,
Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,
Ma, Miller, Monning, Nava, Nestande, Niello, Nielsen,
Norby, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Silva, Skinner, Smyth, Solorio, Audra
Strickland, Swanson, Torlakson, Torres, Torrico, Tran,
Villines, Yamada, John A. Perez
NO VOTE RECORDED: Bass, Bill Berryhill, Block, Gilmore,
Mendoza, Vacancy
CTW:do 7/20/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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