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AB-1950 Child welfare: Indian children.(2021-2022)

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Date Published: 02/10/2022 09:00 PM
AB1950:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1950

Introduced by Assembly Member Ramos

February 10, 2022

An act to amend Section 224.2 of, and to add Section 224.61 to, the Welfare and Institutions Code, relating to child welfare.


LEGISLATIVE COUNSEL'S DIGEST


AB 1950, as introduced, Ramos. Child welfare: Indian children.
Existing federal law, the Indian Child Welfare Act of 1978 (ICWA), governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of the child’s parent or guardian. Existing law states findings and declarations of the Legislature regarding Indian children, including that the state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices in accordance with ICWA, and it is in the interest of an Indian child that the child’s membership or citizenship in the child’s Indian tribe and connection to the tribal community be encouraged and protected, and requires the court to consider those findings in all Indian child custody proceedings.
Existing law authorizes the juvenile court to adjudge a child to be a dependent child of the court or a minor to be a ward of the court under specified circumstances, including, among others, if there is a substantial risk that the child will suffer serious physical harm inflicted nonaccidentally. Existing law requires the juvenile court in these proceedings to inquire whether a child is or may be an Indian child, and, if so, ICWA requires, among other things, the notification of the proceedings to the Indian child’s tribe. Existing law requires the Judicial Council to adopt rules of court to allow for telephonic or other remote appearance options by an Indian child’s tribe in these proceedings. Existing law prohibits telephonic or other computerized remote access for court appearances from being subject to fees.
This bill would instead authorize an Indian child’s tribe to participate by telephone or other remote appearance options in proceedings in which the ICWA may apply, and would authorize the method of appearance to be determined by the court, as specified. The bill would prohibit fees from being charged for telephonic or other computerized remote access for court appearances established under these provisions.
This bill would establish the Cal-ICWA County Accountability System Evaluation (CASE) Program to be administered by the State Department of Social Services to measure a county’s compliance with the ICWA and Cal-ICWA among their dependency cases involving an Indian child. The bill would require the department, on or before April 1, 2024, to convene a stakeholder workgroup, and in partnership with that workgroup and in consultation with Indian tribes, develop the case review system under the program, as specified. The bill would, commencing in the 2024–25 fiscal year, require the department to reimburse each county for its proportionate share of the available program funding based on the county’s nonfederal share of the cost for out-of-home placement of Indian children, except when a county is determined to be substantially out of compliance with ICWA or Cal-ICWA for 2 consecutive years, as specified. The bill would require counties to report specified information to the department for these purposes, and would require the department to report to the appropriate fiscal and policy committees of the Legislature the data collected under the program and to issue a public report with specified information to be posted on its internet website. The bill would specify that implementation of the program is subject to an appropriation in the Budget Act for the program. By imposing duties on counties, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 224.2 of the Welfare and Institutions Code is amended to read:

224.2.
 (a) The court, county welfare department, human services agency, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 may be or has been filed, is or may be an Indian child. The duty to inquire begins with the initial contact, including, but not limited to, asking the party reporting child abuse or neglect whether the party has any information that the child may be an Indian child.
(b) If a child is placed into the temporary custody of a county welfare department human services agency pursuant to Section 306 or county probation department pursuant to Section 307, the county welfare department human services agency or county probation department has a duty to inquire whether that child is an Indian child. Inquiry includes, but is not limited to, asking the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.
(c) At the first appearance in court of each party, the court shall ask each participant present in the hearing whether the participant knows or has reason to know that the child is an Indian child. The court shall instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.
(d) There is reason to know a child involved in a proceeding is an Indian child under any of the following circumstances:
(1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family informs the court that the child is an Indian child.
(2) The residence or domicile of the child, the child’s parents, or Indian custodian is on a reservation or in an Alaska Native village.
(3) Any participant in the proceeding, officer of the court, Indian tribe, Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child.
(4) The child who is the subject of the proceeding gives the court reason to know that the child is an Indian child.
(5) The court is informed that the child is or has been a ward of a tribal court.
(6) The court is informed that either parent or the child possess an identification card indicating membership or citizenship in an Indian tribe.
(e) If the court, social worker, or probation officer has reason to believe that an Indian child is involved in a proceeding, but does not have sufficient information to determine that there is reason to know that the child is an Indian child, the court, social worker, or probation officer shall make further inquiry regarding the possible Indian status of the child, and shall make that inquiry as soon as practicable.
(1) There is reason to believe a child involved in a proceeding is an Indian child whenever the court, social worker, or probation officer has information suggesting that either the parent of the child or the child is a member or may be eligible for membership in an Indian tribe. Information suggesting membership or eligibility for membership includes, but is not limited to, information that indicates, but does not establish, the existence of one or more of the grounds for reason to know enumerated in paragraphs (1) to (6), inclusive, of subdivision (d).
(2) When there is reason to believe the child is an Indian child, further inquiry is necessary to help the court, social worker, or probation officer determine whether there is reason to know a child is an Indian child. Further inquiry includes, but is not limited to, all of the following:
(A) Interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.3.
(B) Contacting the Bureau of Indian Affairs and the State Department of Social Services for assistance in identifying the names and contact information of the tribes in which the child may be a member, or eligible for membership in, and contacting the tribes and any other person that may reasonably be expected to have information regarding the child’s membership status or eligibility.
(C) Contacting the tribe or tribes and any other person that may reasonably be expected to have information regarding the child’s membership, citizenship status, or eligibility. Contact with a tribe shall, at a minimum, include telephone, facsimile, or electronic mail contact to each tribe’s designated agent for receipt of notices under the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.). Contact with a tribe shall include sharing information identified by the tribe as necessary for the tribe to make a membership or eligibility determination, as well as information on the current status of the child and the case.
(f) If there is reason to know, as set forth in subdivision (d), that the child is an Indian child, the party seeking foster care placement shall provide notice in accordance with paragraph (5) of subdivision (a) of Section 224.3.
(g) If there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an Indian child, the court shall confirm, by way of a report, declaration, or testimony included in the record that the agency or other party used due diligence to identify and work with all of the tribes of which there is reason to know the child may be a member, or eligible for membership, to verify whether the child is in fact a member or whether a biological parent is a member and the child is eligible for membership.
(h) A determination by an Indian tribe that a child is or is not a member of, or eligible for membership in, that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive. Information that the child is not enrolled, or is not eligible for enrollment in, the tribe is not determinative of the child’s membership status unless the tribe also confirms in writing that enrollment is a prerequisite for membership under tribal law or custom.
(i) (1) When there is reason to know that the child is an Indian child, the court shall treat the child as an Indian child unless and until the court determines on the record and after review of the report of due diligence as described in subdivision (g), and a review of the copies of notice, return receipts, and tribal responses required pursuant to Section 224.3, that the child does not meet the definition of an Indian child as used in Section 224.1 and the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.).
(2) If the court makes a finding that proper and adequate further inquiry and due diligence as required in this section have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) does not apply to the proceedings, subject to reversal based on sufficiency of the evidence. The court shall reverse its determination if it subsequently receives information providing reason to believe that the child is an Indian child and order the social worker or probation officer to conduct further inquiry pursuant to Section 224.3.
(j) Notwithstanding a determination that the federal Indian Child Welfare Act of 1978 does not apply to the proceedings, if the court, social worker, or probation officer subsequently receives any information required by Section 224.3 that was not previously available or included in the notice issued under Section 224.3, the party seeking placement shall provide the additional information to any tribes entitled to notice under Section 224.3 and to the Secretary of the Interior’s designated agent.

(k)The Judicial Council, by July 1, 2021, shall adopt rules of court to allow for telephonic or other remote appearance options by an Indian child’s tribe in proceedings where the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) may apply. Telephonic or other computerized remote access for court appearances established under this subdivision shall not be subject to fees.

(k) An Indian child’s tribe may participate by telephone or other remote appearance options in proceedings in which the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) may apply. The method of appearance may be determined by the court consistent with court capacity and contractual obligations, and taking into account the capacity of the tribe, as long as a method of effective remote appearance and participation sufficient to allow the tribe to fully exercise its rights is provided. Fees shall not be charged for telephonic or other computerized remote access for court appearances established under this subdivision.

SEC. 2.

 Section 224.61 is added to the Welfare and Institutions Code, to read:

224.61.
 (a) The Legislature finds and declares all of the following:
(1) California has the largest American Indian population of any state and Indian children are disproportionately represented in the child welfare system at a rate twice their proportion of the California population. The State Department of Social Service’s fiscal year 2021 Annual Progress and Services Report (APSR) identified a goal to “improve statewide [federal Indian Child Welfare Act of 1978] ICWA implementation” to improve the well-being of Indian children and reduce disproportionality of Indian children in its child welfare system, but there is still no baseline measure of ICWA implementation compliance in California.
(2) When ICWA and Cal-ICWA compliance is achieved, data shows promising outcomes for Indian children and families. For example, one study found that when tribes are timely notified and present at the initial hearing, 52 percent of families reach reunification compared to only a 40-percent reunification rate in cases in which the tribe is not present at the initial hearing.
(3) A centralized evaluation mechanism to measure compliance with ICWA and Cal-ICWA across counties in the State of California is needed to ensure the spirit and letter of the law is achieved.
(b) The Cal-ICWA County Accountability System Evaluation (CASE) Program is hereby established to be administered by the State Department of Social Services to review each county’s compliance with the federal Indian Child Welfare Act of 1978 and Cal-ICWA among their dependency cases involving an Indian child.
(c) (1) On or before April 1, 2023, the department shall convene a stakeholder workgroup to make recommendations to the department regarding implementation of the program and develop the case review instrument by which county compliance will be measured, as described in subdivision (d).
(2) The members of the stakeholder workgroup shall include tribal leaders, or their designees, from Indian tribes in California, and may also include, but are not limited to, all of the following:
(A) Representatives from county social services agencies.
(B) Tribal and state court judges.
(C) A representative from the department’s Office of Tribal Affairs.
(D) Indian youth who have experience with the child welfare system.
(3) The department shall provide stipends to stakeholders to participate as subject matter experts in the development of the case review system.
(d) (1) On or before April 1, 2024, the department, in partnership with the stakeholder workgroup and after consultation with Indian tribes, shall do all of the following:
(A) Finalize the case review system.
(B) Hire and train staff to conduct the annual reviews in partnership with local tribes. For the duration of the program, the department shall provide a stipend to up to one tribal subject matter expert from the Indian child’s tribe of each case reviewed.
(C) Provide technical assistance to counties to train and prepare for the program.
(2) (A) Under the program, the department shall measure county compliance with ICWA and Cal-ICWA beginning at an Indian child’s initial contact with the county through the duration of the case until permanency.
(B) The case review system may include, but is not limited to, all of the following:
(i) The methodology for selecting which cases to review annually.
(ii) The criteria to be reviewed to demonstrate compliance.
(iii) The methodology for calculating the rate of noncompliance.
(iv) The program improvement plan, including prescribed training for counties that do not achieve substantial compliance for two or more consecutive years.
(C) The case review system shall measure all of the following:
(i) County collaboration with tribes throughout the duration of a case.
(ii) Compliance with the minimum federal standards specified in ICWA, and the heightened standards in Cal-ICWA.
(iii) Court and department processes throughout the case.
(e) Commencing in the 2024–25 fiscal year, except as provided in subdivision (g), the department shall reimburse each county for the county’s proportionate share of the available funding for the program for the fiscal year. Each county’s proportionate share is based on the county’s nonfederal share of the cost for out-of-home placement of Indian children for the prior fiscal year, provided that both of the following are true:
(1) The department has accurate data available to make the reimbursement amount determination under this section.
(2) Commencing in the 2026–2027 fiscal year, the department certifies that the county is in substantial compliance, as measured under the program.
(f) By July 1, 2024, and each July 1 thereafter, each county shall report, in a format developed by the department, both of the following information to the department:
(1) The amount paid out of the budget of the county human services agency for out-of-home placement of Indian children in the fiscal year immediately preceding the year in which the report was made.
(2) The number of days foster care maintenance payments were made for each Indian child in the fiscal year immediately preceding the year in which the report was made.
(g) (1) If the department and the tribal subject matter expert determines that a county is substantially out of compliance with ICWA or Cal-ICWA, the department shall provide a written notice to the county of its noncompliance and what actions are necessary by the county to improve and maintain compliance.
(2) Commencing July 1, 2026, if a county is substantially out of compliance with ICWA and Cal-ICWA, as determined by the department and tribal subject matter expert, for two consecutive years, the department shall withhold the county reimbursement beginning with the fiscal year following the fiscal year in which the determination of noncompliance was measured and until the department certifies that the county is in substantial compliance and is again eligible for the reimbursement. The department shall certify by June 30 of each year which counties are not eligible for a reimbursement in the following fiscal year.
(3) The determination made by the department and tribal subject matter expert regarding a county’s compliance or noncompliance with ICWA and Cal-ICWA for purposes of this program shall be final.
(h) By July 1, 2024, and each July 1 thereafter, the department shall certify to the appropriate fiscal and policy committees of the Legislature the data reported under the program and whether it accurately reflects total expenditures by counties for out-of-home placement costs of Indian children.
(i) On or before July 1, 2029, the department, in consultation with Indian tribes, shall issue a public report, to be posted on its internet website, on the fiscal savings associated with the program up until that point in time, key conclusions, and the benefits conferred or realized, using quantitative and qualitative data.
(j) For purposes of this section, the following definitions shall apply:
(1) “Cal-ICWA” means all provisions of state law implementing the federal Indian Child Welfare Act of 1978.
(2) “Out-of-home placement” means 24-hour substitute care provided for an Indian child, which includes “foster care” and “voluntary placement,” as those terms are defined in Section 11400.
(k) Implementation of this section shall be subject to an appropriation in the Budget Act for purposes of this section.

SEC. 3.

 To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.