BILL NUMBER: AB 2417 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 2, 2010
INTRODUCED BY Assembly Member Cook
FEBRUARY 19, 2010
An act to amend Section 366.24 of the Welfare and Institutions
Code, relating to tribal customary adoption.
LEGISLATIVE COUNSEL'S DIGEST
AB 2417, as amended, Cook. Tribal customary adoption.
Existing law provides for tribal customary adoption as one
placement option for Indian children. Existing law requires that, in
all cases prior to final approval of the tribal customary adoptive
placement, a state and federal criminal background check through the
Department of Justice shall be conducted on the prospective tribal
customary adoptive parents and on persons over 18 years of age
residing in their household. Existing law provides that if the tribe
chooses a designee to conduct the home study, the designee shall
perform that background check. Existing law requires a tribal
designee to be an entity that is authorized to request that
information from the Department of Justice. If the tribe chooses to
conduct its own home study, the agency that has the placement and
care responsibility of the child, shall perform the state and federal
criminal background check.
This bill would make technical and clarifying changes to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 366.24 of the Welfare and Institutions Code is
amended to read:
366.24. (a) For purposes of this section, "tribal customary
adoption" means adoption by and through the tribal custom,
traditions, or law of an Indian child's tribe. Termination of
parental rights is not required to effect the tribal customary
adoption.
(b) Whenever an assessment is ordered pursuant to Section 361.5,
366.21, 366.22, 366.25, or 366.26 for Indian children, the assessment
shall address the option of tribal customary adoption.
(c) For purposes of Section 366.26, in the case of tribal
customary adoptions, all of the following apply:
(1) The child's tribe or the tribe's designee shall conduct a
tribal customary adoptive home study prior to final approval of the
tribal customary adoptive placement.
(A) If a tribal designee is conducting the home study, the
designee shall do so in consultation with the Indian child's tribe.
The designee may include a licensed county adoption agency, the State
Department of Social Services when it is acting as an adoption
agency in counties not served by a county adoption agency, or a
California licensed California-licensed
adoption agency. Any tribal designee must be an entity that is
authorized to request a search of the Child Abuse Central Index and,
if necessary, a check of any other state's child abuse and neglect
registry, and must be an entity that is authorized to request a
search for state and federal level criminal offender records
information through the Department of Justice.
(B) The standard for the evaluation of the prospective adoptive
parents' home shall be the prevailing social and cultural standard of
the child's tribe. The home study shall include an evaluation of the
background, safety , and health information of the
adoptive home, including the biological, psychological ,
and social factors of the prospective adoptive parent or parents
, and an assessment of the commitment, capability ,
and suitability of the prospective adoptive parent or parents to
meet the child's needs.
(2) In all cases, an in-state check of the Child Abuse Central
Index and, if necessary, a check of any other state's child abuse and
neglect registry shall be conducted. If the tribe chooses a designee
to conduct the home study, the designee shall perform a check of the
Child Abuse Central Index pursuant to Section 1522.1 of the Health
and Safety Code as it applies to prospective adoptive parents and
persons over 18 years of age residing in their household. If the
tribe conducts its own home study, the agency that has the placement
and care responsibility of the child shall perform the check.
(3) (A) In all cases prior to final approval of the tribal
customary adoptive placement, a state and federal criminal background
check through the Department of Justice shall be conducted on the
prospective tribal customary adoptive parents and on persons over 18
years of age residing in their household.
(B) If the tribe chooses a designee to conduct the home study, the
designee shall perform the state and federal criminal background
check required pursuant to subparagraph (A) through the Department of
Justice prior to final approval of the adoptive placement.
(C) If the tribe conducts its own home study, the child
welfare agency that has the placement and care responsibility of the
child, public adoption agency that is
otherwise authorized to obtain criminal background information for
the purpose of adoption shall perform the state and federal
criminal background check required pursuant to subparagraph (A)
through the Department of Justice prior to final approval of the
adoptive placement.
(D) An individual who is the subject of a background check
conducted pursuant to this paragraph may be provided, by the entity
performing the background check, with a copy of his or her state or
federal level criminal offender record information search response as
provided to that entity by the Department of Justice if the entity
has denied a criminal background clearance based on this information
and the individual makes a written request to the entity for a copy
specifying an address to which it is to be sent. The state or federal
level criminal offender record information search response shall not
be modified or altered from its form or content as provided by the
Department of Justice and shall be provided to the address specified
by the individual in his or her written request. The entity shall
retain a copy of the individual's written request and the response
and date provided.
(4) If federal or state law provides that tribes may conduct all
required background checks for prospective adoptive parents, the
tribally administered background checks shall satisfy the
requirements of this section, so long as the standards for the
background checks are the same as those applied to all other
prospective adoptive parents in the State of California.
(5) Under no circumstances shall final approval be granted for an
adoptive placement in any home if the prospective adoptive parent or
any adult living in the prospective tribal customary adoptive home
has any of the following:
(A) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subdivision, crimes involving violence means those violent
crimes contained in clause (i) of subparagraph (A) and subparagraph
(B), or paragraph (1) of, subdivision (g) of Section 1522 of the
Health and Safety Code.
(B) A felony conviction that occurred within the last five years
for physical assault, battery, or a drug-related offense.
(6) If the tribe identifies tribal customary adoption as the
permanent placement plan for the Indian child, the court may continue
the selection and implementation hearing governed by Section 366.26
for a period not to exceed 120 days to permit the tribe to complete
the process for tribal customary adoption and file with the court a
tribal customary adoption order evidencing that a tribal customary
adoption has been completed. The tribe shall file with the court the
tribal customary adoption order no less than 20 days prior to the
date set by the court for the continued selection and implementation
hearing. The department shall file with the court the addendum
selection and implementation hearing court report no less than seven
days prior to the date set by the court for the continued selection
and implementation hearing. The court shall have discretion to grant
an additional continuance to the tribe for filing a tribal customary
adoption order up to, but not exceeding, 60 days. If the child's
tribe does not file the tribal customary adoption order within the
designated time period, the court shall make new findings and orders
pursuant to subdivision (b) of Section 366.26 and this subdivision to
determine the best permanent plan for the child.
(7) The child, birth parents, or Indian custodian and the tribal
customary adoptive parents and their counsel, if applicable, may
present evidence to the tribe regarding the tribal customary adoption
and the child's best interest.
(8) Upon the court affording full faith and credit to the tribal
customary adoption order and the tribe's approval of the home study,
the child shall be eligible for tribal customary adoptive placement.
The agency that has placement and care responsibility of the child
shall be authorized to make a tribal customary adoptive placement and
sign a tribal customary adoptive placement agreement and,
thereafter, shall sign the adoption assistance agreement pursuant to
subdivision (g) of Section 16120. The prospective adoptive parent or
parents desiring to adopt the child may then file the petition for
adoption. The agency shall supervise the adoptive placement for a
period of six months unless either of the following circumstances
exists:
(A) The child to be adopted is a foster child of the prospective
adoptive parents whose foster care placement has been supervised by
an agency before the signing of the adoptive placement agreement in
which case the supervisory period may be shortened by one month for
each full month that the child has been in foster care with the
family.
(B) The child to be adopted is placed with a relative with whom
they have an established relationship.
(9) All licensed public adoption agencies shall cooperate with and
assist the department in devising a plan that will effectuate the
effective and discreet transmission to tribal customary adoptees or
prospective tribal customary adoptive parents of pertinent medical
information reported to the department or the licensed public
adoption agency, upon the request of the person reporting the medical
information.
(A) A licensed public adoption agency may not place a child for
tribal customary adoption unless a written report on the child's
medical background and, if available, the medical background on the
child's biological parents, so far as ascertainable, has been
submitted to the prospective tribal customary adoptive parents and
they have acknowledged in writing the receipt of the report.
(B) The report on the child's background shall contain all known
diagnostic information, including current medical reports on the
child, psychological evaluations, and scholastic information, as well
as all known information regarding the child's developmental
history.
(10) The tribal customary adoption order shall include, but not be
limited to, a description of (A) the modification of the legal
relationship of the birth parents or Indian custodian and the child,
including contact, if any, between the child and the birth parents or
Indian custodian, responsibilities of the birth parents or Indian
custodian, and the rights of inheritance of the child and (B) the
child's legal relationship with the tribe. The order shall not
include any child support obligation from the birth parents or Indian
custodian. There shall be a conclusive presumption that any parental
rights or obligations not specified in the tribal customary adoption
order shall vest in the tribal customary adoptive parents.
(11) Prior consent to a permanent plan of tribal customary
adoption of an Indian child shall not be required of an Indian parent
or Indian custodian whose parental relationship to the child will be
modified by the tribal customary adoption.
(12) After the prospective adoptive parent or parents desiring to
adopt the child have filed the adoption petition, the agency that has
placement, care and responsibility for the child shall submit to the
court, a full and final report of the facts of the proposed tribal
customary adoption. The requisite elements of the final court report
shall be those specified for court reports in the department's
regulations governing agency adoptions.
(13) Notwithstanding any other provision of law, after the tribal
customary adoption order has been issued and afforded full faith and
credit by the state court, the tribal customary adoptive parents
shall have all of the rights and privileges afforded to, and are
subject to all the duties of, any other adoptive parent or parents
pursuant to the laws of this state.
(14) Consistent with Section 366.3, after the tribal customary
adoption has been afforded full faith and credit and a final adoption
decree has been issued, the court shall terminate its jurisdiction
over the Indian child.
(15) Nothing in this section is intended to prevent the transfer
of those proceedings to a tribal court where transfer is otherwise
permitted under applicable law.
(d) The following disclosure provisions shall apply to tribal
customary adoptions:
(1) The petition, agreement, order, report to the court from any
investigating agency, and any power of attorney filed in a tribal
customary adoption proceeding is not open to inspection by any person
other than the parties to the proceeding and their attorneys and the
department, except upon the written authority of the judge of the
juvenile court. A judge may not authorize anyone to inspect the
petition, agreement, order, report to the court from any
investigating agency, and any power of attorney except in exceptional
circumstances and for good cause approaching the necessitous.
(2) Except as otherwise permitted or required by statute, neither
the department nor any licensed adoption agency shall release
information that would identify persons who receive, or have
received, tribal customary adoption services. However, employees of
the department and licensed adoption agencies shall release to the
State Department of Social Services any requested information,
including identifying information, for the purpose of recordkeeping
and monitoring, evaluation, and regulation of the provision of tribal
customary adoption services.
(3) The department and any licensed adoption agency may, upon
written authorization for the release of specified information by the
subject of that information, share information regarding a
prospective tribal customary adoptive parent or birth parent with
other social service agencies, including the department and other
licensed adoption agencies, or providers of health care as defined in
Section 56.05 of the Civil Code.
(4) Notwithstanding any other law, the department and any other
licensed adoption agency may furnish information relating to a tribal
customary adoption petition or to a child in the custody of the
department or any licensed public adoption agency to the juvenile
court, county welfare department, public welfare agency, private
welfare agency licensed by the department, provider of foster care
services, potential adoptive parents, or provider of health care as
defined in Section 56.05 of the Civil Code, if it is believed the
child's welfare will be promoted thereby.
(5) The department and any licensed adoption agency may make
tribal customary adoption case records, including identifying
information, available for research purposes, provided that the
research will not result in the disclosure of the identity of the
child or the parties to the tribal customary adoption to anyone other
than the entity conducting the research.
(e) This section shall remain operative only to the extent that
compliance with its provisions does not conflict with federal law as
a condition of receiving funding under Title IV-E or the federal
Social Security Act (42 U.S.C. Sec. 670 et seq.).
(f) The Judicial Council shall adopt rules of court and necessary
forms required to implement tribal customary adoption as a permanent
plan for dependent Indian children. The Judicial Council shall study
California's tribal customary adoption provisions and their affects
on children, birth parents, adoptive parents, Indian custodians,
tribes, and the court, and shall report all of its findings to the
Legislature on or before January 1, 2013. The report shall include,
but not be limited to, the following:
(1) The number of families served and the number of completed
tribal customary adoptions.
(2) The length of time it takes to complete a tribal customary
adoption.
(3) The challenges faced by social workers, court, and tribes in
completing tribal customary adoptions.
(4) The benefits or detriments to Indian children from a tribal
customary adoption.
(g) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.