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SB-947 Indians: child welfare services: adoptions.(2003-2004)

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SB947:v92#DOCUMENT

Senate Bill No. 947
CHAPTER 469

An act to amend Section 6086.7 of the Business and Professions Code, and to amend Sections 7810 and 7950 of, and to add Section 8620 to, the Family Code, and to amend Section 10553.1 of the Welfare and Institutions Code, relating to Native American children.

[ Filed with Secretary of State  September 22, 2003. Approved by Governor  September 20, 2003. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 947, Ducheny. Indians: child welfare services: adoptions.
(1) Existing federal law, contained in the Indian Child Welfare Act, specifies that an Indian tribe shall have exclusive jurisdiction, except in certain cases, over any custody proceeding involving an Indian child, as defined, and specifies procedures and rights applicable to state court proceedings involving an Indian child. Among other things, these provisions authorize an Indian child’s tribe to intervene in state court proceedings to determine the foster care placement of, or termination of parental rights to, an Indian child.
Existing California law directs the courts to strive to promote the stability and security of Indian tribes and families and to comply with the federal Indian Child Welfare Act in all Indian child custody proceedings, as specified, and requires that the federal act be applied in those proceedings if the tribe determines that an unmarried person, who is under 18 years of age, is a member of the tribe or is eligible for membership and is a biological child of a member of a tribe.
Existing law includes findings and declarations regarding these provisions.
This bill would revise those findings and declarations.
(2) Existing law requires state and local authorities to provide notice of, and to transfer child custody proceedings to, an Indian tribe within a specified period in cases in which an Indian child has been removed from parental custody by those authorities and the tribe has exclusive jurisdiction, as specified.
Existing law also requires that diligent efforts be made to locate an appropriate relative when placing a child in foster care.
This bill would, among other things, require the State Department of Social Services, a licensed adoption agency, or the adoption service provider, as applicable, to ask whether a child is or may be a member of, or eligible for membership in, an Indian tribe, as defined, when a parent seeks to relinquish a child for adoption or to execute an adoption placement agreement, as specified. The bill would require those entities to obtain additional information if there is information indicating that the child is or may be an Indian child, and to send a notice, including that additional information, to any Indian tribe, as defined, of which the child is or may be a member or eligible for membership. The bill would also impose specified civil penalties upon a person, other than a birth parent, who knowingly and willfully makes false claims in the required notice. The bill would require the State Department of Social Services to adopt regulations to ensure that the parent of an Indian child who is being voluntarily relinquished for adoption is advised of his or her right to withdraw his or her consent at any time prior to the entry of a final decree of termination of parental rights or adoption, as specified. The bill would require that a child be placed in the home of a relative for purposes of foster care, except as specified. The bill would specifically authorize an Indian tribe, as defined, to intervene in certain adoption proceedings and proceedings to determine the foster care placement of an Indian child on behalf of a tribal member relative, as specified. The bill would also require that there be a court finding that diligent efforts have been made to locate an appropriate relative before placing a child in foster care including, but not be limited to, requesting information about appropriate Indian tribes, as defined, and evaluation of each relative whose name is submitted. An Indian tribe that has received the required notices would be encouraged to provide notice regarding whether or not it intends to intervene, as specified.
(3) Existing law authorizes an agency responsible for the placement of a foster child to take into consideration in placing the child the cultural, ethnic, or racial background of the child and the capacity of the prospective foster parents to meet the needs of a child of this background.
This bill would delete those provisions and, instead, would provide that specified provisions of existing law with respect to the placement of children in foster care shall not be construed to affect the application of the Indian Child Welfare Act.
(4) Existing law requires a court to notify the State Bar when specified sanctions are imposed upon an attorney.
This bill would require a court to notify the State Bar when the civil penalties described in (2) above are imposed upon an attorney.
(5) Existing law provides that the Director of the State Department of Social Services may enter into an agreement with any California Indian tribe for the delegation to the tribe of the responsibility, that would otherwise be that of a county, for the provision of child welfare services or assistance payments.
This bill would also preclude construction of the implementation of the director’s agreements with Indian tribes to delegate county child welfare responsibilities as imposing liability upon, or requiring indemnification by, the participating county or the State of California for any act or omission performed by an officer, agent, or employee of the participating tribe.

The people of the State of California do enact as follows:


SECTION 1.

 Section 6086.7 of the Business and Professions Code is amended to read:

6086.7.
 (a) A court shall notify the State Bar of any of the following:
(1) A final order of contempt imposed against an attorney that may involve grounds warranting discipline under this chapter. The court entering the final order shall transmit to the State Bar a copy of the relevant minutes, final order, and transcript, if one exists.
(2) Whenever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.
(3) The imposition of any judicial sanctions against an attorney, except sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).
(4) The imposition of any civil penalty upon an attorney pursuant to Section 8620 of the Family Code.
(b) In the event of a notification made under subdivision (a) the court shall also notify the attorney involved that the matter has been referred to the State Bar.
(c) The State Bar shall investigate any matter reported under this section as to the appropriateness of initiating disciplinary action against the attorney.

SEC. 2.

 Section 7810 of the Family Code is amended to read:

7810.
 (a) The Legislature finds and declares the following:
(1) There is no resource that is more vital to the continued existence and integrity of recognized 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.
(2) It is in the interest of an Indian child that the child’s membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected.
(b) In all Indian child custody proceedings, as defined in the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), the court shall consider all of the findings contained in subdivision (a), 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.
(c) A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) to the proceedings.

SEC. 3.

 Section 7950 of the Family Code is amended to read:

7950.
 (a) With full consideration for the proximity of the natural parents to the placement so as to facilitate visitation and family reunification, when a placement in foster care is being made, the following considerations shall be used:
(1) Placement shall, if possible, be made in the home of a relative, unless the placement would not be in the best interest of the child. Diligent efforts shall be made by an agency or entity to which this subdivision applies, to locate an appropriate relative. Before any child may be placed in long-term foster care, the court shall find that the agency or entity to which this subdivision applies has made diligent efforts to locate an appropriate relative and that each relative whose name has been submitted to the agency or entity as a possible caretaker, either by himself or herself or by other persons, has been evaluated as an appropriate placement resource.
(2) No agency or entity that receives any state assistance and is involved in foster care placements may do either of the following:
(A) Deny to any person the opportunity to become a foster parent on the basis of the race, color, or national origin of the person or the child involved.
(B) Delay or deny the placement of a child into foster care on the basis of the race, color, or national origin of the foster parent or the child involved.
(b) Subdivision (a) shall not be construed to affect the application of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 and following).
(c) Nothing in this section precludes a search for an appropriate relative being conducted simultaneously with a search for a foster family.

SEC. 4.

 Section 8620 is added to the Family Code, to read:

8620.
 (a) (1) If a parent is seeking to relinquish a child pursuant to Section 8700 or execute an adoption placement agreement pursuant to Section 8801.3, the department, licensed adoption agency, or adoption service provider, as applicable, shall ask the child and the child’s parent or custodian whether the child is, or may be, a member of, or eligible for membership in an Indian tribe or whether the child has been identified as a member of an Indian organization. The department, licensed adoption agency, or adoption service provider, as applicable, shall complete the forms provided for this purpose by the department and shall make this completed form a part of the file.
(2) If there is any oral or written information that indicates that the child is, or may be, an Indian child, the department, licensed adoption agency, or adoption service provider, as applicable, shall obtain the following information:
(A) The name of the child involved, and the actual date and place of birth of the child.
(B) The name, address, date of birth, and tribal affiliation of the birth parents, maternal and paternal grandparents, and maternal and paternal great-grandparents of the child.
(C) The name and address of extended family members of the child who have a tribal affiliation.
(D) The name and address of the Indian tribes or Indian organizations of which the child is, or may be, a member.
(E) A statement of the reasons why the child is, or may be, an Indian.
(3) (A) The department, licensed adoption agency, or adoption service provider, as applicable, shall send a notice, which shall include information obtained pursuant to paragraph (2) and a request for confirmation of the child’s Indian status, to any parent and any custodian of the child, and to any Indian tribe of which the child is, or may be, a member or eligible for membership. If any of the information required under paragraph (2) cannot be obtained, the notice shall indicate that fact.
(B) The notice sent pursuant to subparagraph (A) shall describe the nature of the proceeding and advise the recipient of the Indian tribe’s right to intervene in the proceeding on its own behalf or on behalf of a tribal member relative of the child.
(b) The department shall adopt regulations to ensure that if a child who is being voluntarily relinquished for adoption, pursuant to Section 8700, is an Indian child, the parent of the child shall be advised of his or her right to withdraw his or her consent and thereby rescind the relinquishment of an Indian child for any reason at any time prior to entry of a final decree of termination of parental rights or adoption, pursuant to Section 1913 of Title 25 of the United States Code.
(c) If a child who is the subject of an adoption proceeding after being relinquished for adoption pursuant to Section 8700, is an Indian child, the child’s Indian tribe may intervene in that proceeding on behalf of a tribal member relative of the child.
(d) Any notice sent under this section shall, consistent with subdivision (f) of Rule 1439 of the California Rules of Court, as it read on January 1, 2003, comply with all of the following:
(1) Notice shall be sent by registered or certified mail with return receipt requested, and additional notice by first-class mail is recommended.
(2) Notice to the tribe shall be to the tribal chairman, unless the tribe has designated another agent for service.
(3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership.
(4) If the identity or location of an Indian relative or Indian custodian or the tribe cannot be determined, notice shall be sent to the office of the Secretary of the Interior, which has 15 days to provide notice as required.
(5) Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter, including, but not limited to, the hearing at which the final adoption order is to be granted.
(e) If all prior notices required by this section have been provided to an Indian tribe, the Indian tribe receiving those prior notices is encouraged to provide notice to the department and to the licensed adoption agency or adoption service provider, not later than five calendar days prior to the date of the hearing to determine whether or not the final adoption order is to be granted, indicating whether or not it intends to intervene in the proceeding required by this section, either on its own behalf or on behalf of a tribal member who is a relative of the child.
(f) The Legislature finds and declares that some adoptive children may benefit from either direct or indirect contact with an Indian tribe. Nothing in the adoption laws of this state shall be construed to prevent the adopting parent or parents, the birth relatives, including the birth parent or parents, an Indian tribe, and the child, from voluntarily entering into a written agreement to permit continuing contact between the Indian tribe and the child, if the agreement is found by the court to have been entered into voluntarily and to be in the best interest of the child at the time the adoption petition is granted.
(g) With respect to giving notice to Indian tribes in the case of voluntary placements of Indian children pursuant to this section, a person, other than a birth parent of the child, shall be subject to a civil penalty if that person knowingly and willfully:
(1) Falsifies, conceals, or covers up by any trick, scheme, or device, a material fact concerning whether the child is an Indian child or the parent is an Indian.
(2) Makes any false, fictitious, or fraudulent statement, omission, or representation.
(3) Falsifies a written document knowing that the document contains a false, fictitious, or fraudulent statement or entry relating to a material fact.
(4) Assists any person in physically removing a child from the State of California in order to obstruct the application of notification.
(h) Civil penalties for a violation of subdivision (g) by a person other than a birth parent of the child are as follows:
(1) For the initial violation, a person shall be fined not more than ten thousand dollars ($10,000).
(2) For any subsequent violation, a person shall be fined not more than twenty thousand dollars ($20,000).
(i) For purposes of this section, the terms “Indian tribe,” “Indian organization,” and “Indian child” are defined in Section 1903 of Title 25 of the United States Code.

SEC. 5.

 Section 10553.1 of the Welfare and Institutions Code is amended to read:

10553.1.
 (a) Notwithstanding any other provision of law, the director may enter into an agreement, in accordance with Section 1919 of Title 25 of the United States Code, with any California Indian tribe or any out-of-state Indian tribe, as defined in Section 1903 of Title 25 of the United States Code, that has reservation lands that extend into this state.
(b) (1) An agreement under subdivision (a) shall provide for the delegation to the tribe or tribes of the responsibility that would otherwise be the responsibility of the county for the provision of child welfare services or assistance payments under the AFDC-FC program, or both.
(2) An agreement under subdivision (a) concerning the provision of child welfare services shall ensure that a tribe meets current service delivery standards provided for under Chapter 5 (commencing with Section 16500) of Part 4, and provides the local matching share of costs required by Section 10101.
(3) An agreement under subdivision (a) concerning assistance payments under the AFDC-FC program shall ensure that a tribe meets current foster care standards provided for under Article 5 (commencing with Section 11400) of Chapter 2 of Part 3, and provides the local matching share of costs required by Section 15200.
(c) Upon the implementation date of an agreement authorized by subdivision (a), the county that would otherwise be responsible for providing the child welfare services or AFDC-FC payments specified in the agreement as being provided by the tribe shall no longer be subject to that responsibility to children served under the agreement.
(d) Upon the effective date of an agreement authorized by subdivision (a), the tribe shall comply with fiscal reporting requirements specified by the department for federal and state reimbursement child welfare or AFDC-FC services.
(e) An Indian tribe that is a party to an agreement under subdivision (a), shall, in accordance with the agreement, be eligible to receive allocations of child welfare services funds pursuant to Section 10102.
(f) Implementation of an agreement under subdivision (a) may not be construed to impose liability upon, or to require indemnification by, the participating county or the State of California for any act or omission performed by an officer, agent, or employee of the participating tribe pursuant to this section.