Sponsored by the Soboba Band of Luiseño Indians

Presented by:Nancy L. Currie, Soboba Director of Social

ServicesKimberly Cluff, Attorney – Forman &

Associates

AB 1325AB 1325TRIBAL CUSTOMARY TRIBAL CUSTOMARY

ADOPTIONADOPTION

A CULTURALLY APPROPRIATE A CULTURALLY APPROPRIATE OPTION FOR TRIBES AND INDIAN OPTION FOR TRIBES AND INDIAN

FAMILIES FAMILIES

YAHOO!!He signed it!

On October 11th Governor Schwarzenegger signed AB 1325 into law.

The law will go into effect July 1, 2010.

Historical Perspective

Historically, tribal communities had no need for the type of child welfare systems that exist in mainstream society today. Traditional beliefs, customs and values about child rearing and protection provided the infrastructure of traditional American Indian/Alaska Natives child welfare.

No courts or social workers existed to ensure child safety. No systems of foster care or legal adoptions were necessary. Through community values, social pressure and other cultural practices enforced by extended family, a natural child protection system existed.

Looking back is part of looking forward...

“Historically and traditionally, adoption has been practiced in most tribal communities through custom and ceremony. In general, tribes did not practice termination of parental rights. Unfortunately, adoption became a negative thing due to forced assimilation policies; it was used as a tool to destroy Indian families and culture. Due to this historical trauma, many tribes actively abhor adoption as understood by the larger culture’s definition.”

From the website of the National Indian Child Welfare Association (www.nicwa.org).

Termination of Parental Rights & Permanency

Federal child welfare law and policy express clear preference for termination of parental rights and adoption of children who cannot return to their biological families (ASFA).

California will share in the $35 Million just allocated by HHS this September for adoption incentive payments to states.

The SB678 Termination Exceptions

California statute allows for exceptions to terminating parental rights for Indian children, W&I §366.26(F):

(F) The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:

(i) Termination of parental rights would substantially interfere with the child’s connection to his or her tribal community or the child’s tribal membership rights.

(ii) The child’s tribe has identified guardianship, long-term foster care with a fit and willing relative, or another planned permanent living arrangement for the child.

The SB678 Termination Exceptions Unfortunately, the Termination Exceptions

are not an adequate protection for Indian Tribes or families. 1.) Counties/Courts pressure families to adopt. 2.) Judges find “in their discretion” that the

Termination Exceptions do not apply. 3.) Without adoption, families cannot qualify

for Adoption Assistance payments. 4.) Some families and children believe

adoption is best and do not feel guardianship is adequate.

The Need to Include Customary Adoption in

State Law

The Definition of Customary Adoption

• Customary adoption transfers the custody of a child to the care and protection of adoptive parents without the termination of parental rights.

Underlying Premises of Customary Adoption

In formulating and developing an approach to customary adoption in California the following underlying assumption were relied on...

Underlying Premises of Customary Adoption

...a belief that culturally based tribal adoption law must provide the legal means to ensure a child’s continuity of relationships and community as well as a sense of belonging over time.

Underlying Premises of Customary Adoption

…one of a tribe’s basic sovereign rights is the right to decide the custody of its children.

... a tribe has the power and jurisdiction to articulate through law its own customary practices concerning child custody and to create law based on its historical, customary, and current cultural interpretations of civil relationships.

Underlying Premises of Customary Adoption

...a belief that children are the sacred responsibility of the tribe.

An Overview of the Process...

Tribal Customary Adoption creates a tribal process utilizing the state court, in the absence of a tribal court, for the recognition and certification of traditional adoption, or “making relatives”.

Using underlying legal theories and the traditional practices, a tribe can frame, codify, and support modern interpretations of traditional practices

Steps of Tribal Customary Adoption

An Indian child that is subject to a plan of Family Reunification in state court is identified, as part of concurrent planning, as eligible for customary adoption. All reports must include TCA as a concurrent plan option. (See W&I 366.26(b))

At the point the court orders that reunification services have not been successful, the Tribe can elect a permanent plan of Customary Adoption. (See W&I361.5(g)(1)(G)

However, the Tribe will know that the plan of TCA may be necessary before the .21(e) and/or .26 hearing and can be preparing in advance.

Steps of TCA

The Court shall continue the 366.26 hearing for 120 days (with a 60 day continuance, if needed) for the Tribe to file a TCAO evidencing that a Customary Adoption has been completed. (See Proposed W&I 366.24(c)(6))

Steps of TCA

Once the court affords Full Faith and Credit, the following steps are triggered: The child is eligible for adoptive placement The tribal customary adoption agreement

to be signed with the family The Adoption Assistance Agreement to be

signed (to start the AAP payments) The adopting parents to then file their

petition for adoption Proposed W&I 366.24(c)(8)

Steps of TCA

The Tribe must file the TCAO no less than 20 days prior to the continued .26 hearing. Proposed W&I 366.24(c)(6).

The County shall fill an addendum report no less than 7 days prior to the continued .26. Proposed W&I 366.24(c)(6).

The other parties may provide evidence to the Tribe regarding the TCAO and the child’s best interests. Proposed W&I 366.24(c)(7).

The court either affords Full Faith and Credit to the TCAO or does not, if not, the Tribe and possibly parties must address the issue.

Steps of TCA

After Full Faith and Credit is afforded, the court shall order a hearing to finalize the adoption and filing of the adoption petition (the “Finalization Hearing”). W&I 366.26(e)(2).

At the Finalization Hearing, the court shall order the adoption final and terminate dependency.

Finalization does not need to wait for exhaustion of appellate rights of parents. W&I 366.26(j).

Steps of TCA

Under 366.26(b)(2) The court shall: “Order, without termination of parental rights, the plan of tribal

customary adoption, as described in Section 366.24...and upon affording the tribal customary adoption order full faith and credit at the continued selection and implementation hearing, order that a hearing be set pursuant to paragraph (2) of subdivision (e).”

Under 366.26(e)(2) The court shall: In the case of an Indian child, if the Indian child’s tribe has

elected a permanent plan of tribal customary adoption, the court, upon receiving the tribal customary order will afford the tribal customary adoption order full faith and credit...The court shall thereafter order a hearing to finalize the adoption be set upon the filing of the adoption petition...The court shall thereafter issue an order of adoption pursuant to 366.24.

Steps of TCA

BACK GROUND CHECKS:

The home study will be completed by the Tribe or the tribe’s designee. W&I 366.24(c)(1)-(2)

The background checks of the adoptive family will be completed by the state, county or the tribe’s designee. W&I 366.24(c)(3)-(5)

First .26 hearingTCA ordered as permanent plan;

Court continues .26 hearing for 120 daysfor Tribe to complete TCA.

Tribe to file TCAOno less than 20 days prior to continued .26

Continued .26 hearingCourt reviews TCAO; Affords FF&C.

Adoption Finalization Hearing ordered upon filing of adoption petition

Adoption placement papers signedAAP Agreement signedAdoption petition filed

Adoption Finalization HearingAdoption Order issued

Jurisdiction dismissed.

Sixty (60)Day Continuance

can be granted

Dept. to file addendum report no less than 7 days Prior to the continued .26

If the tribe does not file a TCAO the court enters new

.26 orders(366.26(c)(6))

If the Court does not afford

full faith and credit then the court may remand the

TCAO back to the Tribe or set it for a contest. This issue is not

controlled by the statute

Elements of a Tribal Customary Adoption Order

Customary adoption is a tribal process, and the TCAO is an order of the Tribe.

The TCAO, in combination with the state court Order of Adoption, will represent the legal framework of the modified relationships of the native child. The TCAO will establish...

The legal relationship, responsibilities and privileges between adoptee and adoptive family,

The modified legal relationship between child and birth parent after adoption,

The child’s right to a relationship and contact with the birth parents and/or extended birth family.

Elements of a Tribal Customary Adoption Order

The TCAO must address the “mandatory” issues:

Modification of the legal relationship of the birth parents/Indian Custodian and child and contact between same

Responsibilities of the adopting parents and/or birth parents/Indian Custodians

Inheritance rights of the child The child’s legal relationship with the

Tribe

W&I 366.24(c)(10)

Elements of a Tribal Customary Adoption Order

Access to the Title IV-E adoption subsidy, AAP, will be secured by the findings made by the state court and the Tribe.

The background checks of the adoptive family will be completed by the state, county or the tribe’s designee.

The home study will be completed by the Tribe or the tribe’s designee.

Additional thoughts...

It is not required or recommended that tribal customs and/or traditions, processes or ceremonies are disclosed, this is not necessary.

Utilizing Customary Adoption is up to each individual Tribe. This permanent plan for native children is completely optional. Many tribes utilizing this tool will need to review and update their own internal processes, governance, codes and social services systems. This will require time, energy and leadership.

Common Questions regarding TCA What are a birth parents’ rights with

regard to contesting or appealing a TCA order? A birth parent has the same ability to

“fight” TCA as a permanent plan as with LTF or guardianship.

A birth parent does not have the a writ right as to TCA, as writ rights are limited to TPR.

W&I 366.26(j) (page 93 of the bill)

Common Questions regarding TCA Why would a Judge not afford FF&C to a

TCAO FF&C is a federal concept regarding when

and how different sovereigns enforce each others court orders.

If an order from sovereign #1 violates a generally accepted public policy of sovereign #2, sovereign #2 may not enforce the order.

So if the TCAO violates a general public policy (long standing, generally accepted, codified), the state court may find it does not/can’t enforce.

Common Questions regarding TCA Example:

TCAO provides for unsupervised contact between father and child that is subject of TCAO.

Father is a sex offender that perpetrated against child.

State law/public policy is that perpetrator cannot have contact.

State court judge may require that the visitation provision be amended/stricken.

Common Questions regarding TCA What if a party does not comply with a

provision of the TCAO? The complaining party may file with the court a

request to enforce the TCAO; however, that party must show that they “participated or attempted to participate, in good faith, in family mediation services of the court or dispute resolution through the tribe regarding the conflict, prior to the filing of the enforcement action”.

W&I 366.26(i)(2) (page 92 of bill)

Common Questions regarding TCA Who are “tribal designees” in .24(c) and

why would we designate the responsibility for the home study and criminal background checks to someone else? The Tribe may not have capacity. There may be a native agency the Tribe

trusts. Where the county does not have an

adoptions dept., the tribe may ask that the state to be the “designee”.

The Next Steps

Key Elements for Implementation of AB1325

Courts

Empowering Parties and helping them be knowledgeable

Collaborating with Judicial Council on education Bench Officers

Forms Bench Officers scripts Making it easy!

Tribes

Educating Tribal Leaders Educating Tribal Social Services

Depts./Employees Creating user friendly guides and

materials Model forms and pleadings Model Tribal Resolutions and TCAO’s

County Departments

Empowering County Social Workers, so that TCA is an easy and a beneficial new option.

Creating user friendly guides and materials and providing in-person training through various education forums.

CMS/CWS update. Getting Judicial Council Forms out soon. Making it easy!

Attorneys

Creating user friendly guides and materials and providing in-person training through Bar Associations and other lawyer education forums.

Tracking appeals and providing support when needed to protect from bad decisions.

Families

Empowering families, helping them be knowledgeable so they can advocate for TCA when appropriate.

Educating families about what TCA will or can mean for them.

Resources To Be Developed Through Collaboration with Stakeholders A web based information and

implementation tools- Perhaps a California Tribal Customary Adoption website.

A Benchguide for Courts and advocates. A “toolbox” document for county social

workers for use in standard training. Model/example forms and

model/example tribal codes for tribes.

ACKNOWLEDGEMENTS

Special thanks to... Soboba Tribal Council for their support in

making the bill a reality. Assemblymen Cook and Beall for sponsoring. CWDA, specifically Kathy Watkins and Kathy

Senderling. Kathy Deserly, consultant, for her help and

background information on customary adoption.

NICWA for their background information and research.

CDSS for their support and patience.

SPECIAL THANKS

We are especially thankful to all of the tribes for their support and input on this important issue. We couldn’t have done this without you.

Contact Information

Nancy L. Currie, Director Soboba Tribal Social Services 951-487-0283 ncurrie@soboba-nsn.gov

Kimberly Cluff, Attorney – Forman & Associates 415-491-2310 kimberly@gformanlaw.com

Questions, Answers, Thoughts and Input