BILL ANALYSIS
AB 2418
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2418 (Cook)
As Amended July 15, 2010
Majority vote
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|ASSEMBLY: |74-0 |(May 6, 2010) |SENATE: |33-0 |(August 11, |
| | | | | |2010) |
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Original Committee Reference: JUD.
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" also includes 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.
The Senate amendments clarify that the expanded definition of
Indian child applies only for the child custody proceedings.
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.
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
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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 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 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; and,
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.
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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.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
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
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.
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 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, 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
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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 3% 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% of the state's population, and yet 40% 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
their status as young adults, this bill provides them with some
choice as to who may participate in their legal proceedings.
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
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autonomy in decisionmaking that appropriately belongs to a young
adult.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0005337