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Changes to State Law Strengthen the Indian Child Welfare ActSpring 2007After two years of negotiations, testimony before various subcommittees in the Senate and the Assembly, and meetings with groups and individuals in opposition to SB 678, California Indian Legal Services, the Pala Band of Mission Indians and Senator Denise Moreno Ducheny, successfully passed comprehensive Indian Child Welfare Act legislation through the California legislature. The legislation, labeled SB 678 (because it originated in the State Senate) was signed into law by Governor Arnold Schwarzenegger on September 30, 2006 and was effective January 1, 2007. The main goal behind the passage of SB 678 is to improve and achieve compliance in California with the federal Indian Child Welfare Act (“ICWA”). Although the ICWA was enacted by Congress in 1978 not all courts or court appointed attorneys have applied its provisions uniformly. As a result, for the last 29 years, tribes, Indian families and Indian children have been denied the full protections afforded by the ICWA. Advocates at the tribal level, in the courts and with various state and county agencies struggled to achieve compliance. An underlying goal with the enactment of SB 678 is uniformity of the implementation of the ICWA in all 58 counties in California . This legislation will impact every tribe in the nation should one of their Indian children be involved in a family law matter, a probate guardianship or a case falling under the Welfare and Institutions codes. While SB 678 codifies the ICWA in state law, it also expands the ICWA’s reach in California. Historically, courts in California were reluctant to apply the ICWA in a family law matter involving the termination of parental rights, in a probate guardianship case, or in a case involving a minor in a juvenile delinquency case. Even in a juvenile dependency case compliance and full application of the ICWA was sporadic or perfunctory. SB 678 encourages the courts and counties to work with an Indian child’s family and tribe to ensure that the child’s emotional, political and spiritual well-being is best promoted by fostering strong connections with the child’s extended family, culture, ancestral homeland, and tribe. The intent of this article is to highlight the key provisions in the Bill predominately for tribal ICWA advocates and workers. These women and men work directly with their tribal families and children, often without the assistance of an attorney and appear on behalf of their respective tribes in court. These individuals are often the first persons to respond to an Indian child custody proceeding in state court and are sometimes ignored by the courts and county agencies. CILS recognizes the hard work of tribal ICWA advocates and workers and hopes this brief article will assist them in the early months of implementation of SB 678. Key Provisions of SB 678At first glance, SB 678 appears to be repetitive because it restates its provisions in three different codes: the Family, Probate and Welfare and Institutions codes. 1/ That is by design, and is intended to set forth the various contexts in which the law applies. For example, Family Code §170, Probate Code §1449 and Welfare & Institutions Code §224.1 contain definitions as found in the ICWA, 25 U.S.C. §1903. Similarly, Family Code §175, Probate Code §1459 and Welfare & Institutions Code §224 contain proclamations of the Legislature which extinguishes the Existing Indian Family doctrine. 2/ These code sections echo the intent of Congress in 1978 that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe.” These sections also declare that placements of Indian children should reflect “the unique values of the child’s tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with child’s tribe and tribal community.” Moreover, these sections embrace tribal determinations of membership, recognize the significant political affiliation with a tribe and that the courts “shall . . . strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child.” 1. Notice Family Code §180, Probate Code §1460.2, and Welfare & Institutions Code §224.2 all pertain to the proper notice of an Indian child custody proceeding. The Family and Probate sections also state that the court shall apply “Sections 224.3 to 224.6, inclusive, and Sections 305.5, 361.31, and 361.7 of the Welfare and Institutions Code.” Reference is also made to California Rules of Court, as they read on January 1, 2005, authorizing tribal representatives from the Indian child’s tribe to appear in the proceeding, to address the court, receive notice of the hearings, examine all court documents, submit written reports and recommendations to the court and perform other duties and responsibilities as requested or approved by the court, the right to intervene, and the right to appear by counsel. 3/ It is important to note, that pursuant to Welfare & Institutions Code §224.3 that the “court, county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child . . . is or may be an Indian child.” Further, Section 224.3 reinstates and emphasizes that a “determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe . . . shall be conclusive.” Historically, counties, courts and petitioners, have struggled with the notice requirements of the ICWA. While some may criticize the cross-referencing in SB 678, it is usefully to note that the notice provisions are uniform for each and every Indian child custody proceeding. The cross-referencing within SB 678 assists bench officers, attorneys, tribal ICWA advocates, social workers and probation officers to work within a framework designed to unify proceedings and comply with federal and state laws. 2. Active Efforts Family Code §7892.5, Probate Code §1459.5(b) refer to Welfare & Institutions Code § 361.7. Active efforts “shall be assessed on a case-by-case basis. The active efforts shall be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe.” Such efforts “shall utilize the available resources of the Indian child’s extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers.” Without setting forth a checklist or laundry list of what constitutes “active efforts,” Section 361.7 allows the court, tribes and parties to assess each remedial and rehabilitative service and program offered to the Indian family and whether all available resources were utilized. It is also clear that the plain meaning of the word “active” differentiates those acts from “passive” efforts, and that SB 678 contemplates a higher level of remedial services. Courts should provide, and advocates should request, specific findings on what “active efforts” were provided or offered. 3. Expert Witness Testimony The federal ICWA standard was adopted and requires the Department or petitioner to utilize a qualified expert witness to support a finding of detriment. For California, a qualified expert witness is defined in Welfare & Institutions Code §224.6. A qualified expert witness “may include but is not limited to, a social worker, sociologist, physician, psychologist, traditional tribal therapist and healer, tribal spiritual leader, tribal historian, or tribal elder, provided the individual is not an employee of the person or agency recommending foster care placement or termination of parental rights.” Significantly, the county social worker cannot serve as a qualified expert witness in the same county where he or she is employed. As before, no foster care placement or guardianship may be ordered in the absence of a determination, supported by clear and convincing evidence, including testimony of a qualified expert witness that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (Sometimes referred to as the detriment finding.) See, Welfare & Institutions Code §361.7(c); Family Code §7892.5; Probate Code §1459.59(b). In a termination of parental rights case the evidentiary burden is even higher, and must be “beyond a reasonable doubt.” See, Welfare & Institutions Code §366.26(c)(2)(B)(i)(ii); Family Code §7892.5. 4. Placement Placement of an Indian child is governed by Welfare & Institutions Code §361.31 and is cross-referenced in Family Code §8710 and Probate Code §1495.5. Welfare & Institutions Code §361.31 establishes an order of preference as follows:
In an adoptive placement the order of placement is a member of the child’s extended family, other members of the child’s tribe, or another Indian family. But, if the child’s tribe establishes a different order of placement preference, the court “shall follow the order of preference established by the tribe, so long as the placement is the least restrictive setting appropriate to the particular needs of the child.” The legislation does not allow the court to ignore a tribe’s preferred placement scheme. See, Welfare & Institutions Code §361.31(c). 5. Post-Adoption Contract AgreementsFamily Code §8616.5 provides for birth relatives, birth parents, Indian tribes and adoptive parents to enter into written Postadoption contact agreements. Often times, children benefit from continued contact with their tribes, birth relatives and birth parents. In these instances, the parties may negotiate postadoption contact agreements to permit and govern continued contact. Unfortunately, good intentions often wane and Section 8616.5 provides protections for the parties. Mandatory mediation is ordered should the parties fail to negotiate a postadoption contact agreement. Non compliance with postadoption contact agreements may not be used to set aside adoptions but a court may order mediation and if prior to an adoption order, the court may order a change in the adoptive placement. Postadoption contact agreements are also allowed in juvenile dependency cases. 6. Exceptions to Termination of Parental RightsThe legislation expanded the “exceptions” to termination of parental rights. This is significant because but for these exceptions a court can permanently and legally sever a parent and child’s relationship. Senate Bill 678 added an exception where the termination adversely interferes with the child’s tribal community and membership rights. Specifically, Welfare & Institutions Code §366.26(c) (F) contains the two new exceptions to termination of parental rights. In order to terminate parental rights, the court must find a compelling reason that termination of parental rights would be detrimental to the child. Subsection (F) of amended §366.26 provides:
This new language will significantly alter permanent plans for Indian children. Tribes and tribal advocates have long struggled, both culturally and politically, with the concept of termination of parental rights, a concept that has been forced upon them by a “system”, but was not of their choosing. In addition, courts and county agencies have been insensitive or ill-prepared to accept and modify perceptions about adoption. Subsection (F) nearly takes us full circle to Congress’ intent in the passage of the ICWA: “that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe.” (25 U.S.C. §190.) CILS is currently planning several ICWA/SB678 trainings to tribes, courts and court staff throughout California. If your tribe, county Department of Social Services, court and court staff are interested in a training or learning more about SB 678 please contact your nearest CILS office. 1/ All references are to the Family, Probate and Welfare & Institutions codes as of January 1, 2007. 2/ The Existing Indian Family doctrine is a judicially created doctrine which forces an Indian parent to prove that he or she is Indian in an evidentiary hearing. 3/ See, January 1, 2005, California Rules of Court, Rules 1410(7) and 1412(i). About News From Native CaliforniaNews from Native California is a quarterly magazine devoted to California Indian culture. They have been publishing for fifteen years and currently have a circulation of about 5,000 copies per issue. With its calendar of events, news roundup, feature articles, and regular columns on art, language, traditional skills, grants, and legal concerns, News has kept people informed and at times even inspired. They also sponsor performances, workshops, and other events, as well as several benefits for the Indian community each year, and serve informally as a center for information and connection. To get more information, request a free sample copy of the magazine, or subscribe, please call our offices at (510) 549-2802, email margaret@heydaybooks.com, or visit their website at http://www.heydaybooks.com/news (opens new window). |
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