Existing federal law, the Indian Child Welfare Act, governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of his or her parent or guardian. Existing provisions of state law govern child custody proceedings, adoption proceedings, and dependency proceedings, including termination of parental rights, the voluntary relinquishment of a child by a parent, and guardianship proceedings. Existing law recognizes that the federal Indian Child Welfare Act applies if the subject of these proceedings is or may be an Indian child, and specifies conforming procedures in these cases with regard to the right to notice and intervention accorded the childs tribe and the standard of proof applied in evaluating the evidence submitted, among other things.

Existing law requires an attorney or law firm that receives or disburses trust funds to establish and maintain an Interest on Lawyers Trust Account (IOLTA) and to deposit in the account all client deposits or funds that are nominal in amount or are on deposit or invested for a short period of time, the interest and dividend earnings on which are to be paid to the State Bar of California to be used to fund qualified legal services projects that provide free civil legal services to indigent persons and qualified support centers that provide legal training, legal technical assistance, or advocacy support to qualified legal services projects, as specified.

This bill would require the State Bar of California to administer grants to qualified legal services projects and qualified support centers for the purpose of providing legal services to Indian tribes in child welfare matters under the federal Indian Child Welfare Act and legal training and technical assistance to qualified legal services projects regarding child welfare matters under the federal Indian Child Welfare Act. The bill would provide that its provisions shall become operative upon an appropriation of not less than $1,000,000 to the State Bar of California in the annual Budget Act expressly identified for the purpose of these provisions.

Existing federal law, the Indian Child Welfare Act, governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of his or her parent or guardian. Existing provisions of state law govern child custody proceedings, adoption proceedings, and dependency proceedings, including termination of parental rights, the voluntary relinquishment of a child by a parent, and guardianship proceedings. Existing law recognizes that the Indian Child Welfare Act applies if the subject of these proceedings is or may be an Indian child, and specifies conforming procedures in these cases with regard to the right to notice and intervention accorded the childs tribe and the standard of proof applied in evaluating the evidence submitted, among other things.

Existing federal law, the Indian Child Welfare Act, governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of his or her parent or guardian. Existing provisions of state law govern child custody proceedings, adoption proceedings, and dependency proceedings, including termination of parental rights, the voluntary relinquishment of a child by a parent, and guardianship proceedings. Existing law recognizes that the Indian Child Welfare Act applies if the subject of these proceedings is or may be an Indian child, and specifies conforming procedures in these cases with regard to the right to notice and intervention accorded the childs tribe and the standard of proof applied in evaluating the evidence submitted, among other things.

Existing law authorizes the Director of Social Services to enter into an agreement with a tribe, consortium of tribes, or tribal organization, regarding the care and custody of Indian children and jurisdiction over Indian child custody proceedings, under specified circumstances. Existing law requires these agreements to provide for the delegation to the tribe, consortium of tribes, or tribal organization the responsibility that would otherwise be the responsibility of the county for the provision of child welfare services or assistance payments under the Aid to Families with Dependent Children-Foster Care (AFDC-FC) program, under which counties provide payments to foster care providers on behalf of qualified children in foster care, or both.

This bill would, subject to funding in the annual Budget Act, require the State Department of Social Services to provide grants to qualified nonprofit legal services organizations to provide legal services to Indian tribes in, and legal training and technical assistance to eligible nonprofit organizations regarding, child welfare matters under the Indian Child Welfare Act. The bill would require that the grants be provided only to qualified nonprofit legal services organizations that meet specified requirements, including specified years of related experience and meeting the requirements to receive funding from the Trust Fund Program administered by the State Bar of California. The bill would require the department to annually report to the fiscal committees of the Legislature specified information, including the implementation timeline and any further barriers and challenges to Indian tribes in obtaining legal services in these child welfare matters.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 3076 (Reyes) - Indian child welfare: legal services

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

AB 3076 would require the State Bar of California to administer grants for the purpose of providing legal services to Indian tribes in child welfare matters under the federal Indian Child Welfare Act (ICWA), as specified.

Fiscal Impact:

• Costs pressure of at least $1 million to the General Fund to fund grants.
• Costs of about $60,000 to the State Bar to administer the grant program. (General Fund)

Background:

Congress enacted ICWA in 1978. In establishing ICWA, Congress explained that states “often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families,” and that the removal of Indian children was “often unwarranted.” (25 U.S.C. § 1901.) The goal of ICWA is thus to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (25 U.S.C § 1902.) The Indian Child Welfare Act established minimum federal standards, both procedural and substantive, that govern the removal of Indian children from their families and subsequent placement in foster or adoptive homes. (Fresno County Dep’t of Children & Family Services v. Superior Court (2004) 122 Cal.4th 626.) Under ICWA, there is a presumption that it is in the best interests of an Indian child to retain tribal ties and cultural heritage and in the interest of the tribe in preserving future generations.

Among other things, ICWA sets forth minimum federal standards by: (1) establishing jurisdictional requirements; (2) allowing for notice of and intervention in Indian child custody proceedings by a tribe; and (3) providing that the acts, records, and judicial proceedings of tribal courts are entitled to full faith and credit to the same extent that the acts, records, or judicial proceedings of another state would be. In addition, ICWA prohibits a court from terminating parental rights without proof beyond a reasonable doubt and without clear and convincing evidence, including the testimony of a qualified expert, that continued custody by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. § 1911 et seq.)

Proposed Law:

This bill would require the State Bar to administer grants to qualified legal services projects and qualified support centers for the purpose of providing legal services to Indian tribes in child welfare matters under ICWA. It would specify that the State Bar can provide grants to only qualified legal service projects and qualified support centers that have experience handling child welfare matters under ICWA or that have experience providing legal services to Indian tribes. This measure would become operative upon an appropriation of at least $1 million to the State Bar in the Budget Act that is expressly identified for this purpose.

Related Legislation:

AB 3047 would waive the $500 fee for an out-of-state attorney to make an appearance in California court to represent a tribe in an ICWA proceeding. AB 3047 is pending on the Senate floor.

SB 678 (Ducheny, Stats. 2006, Ch. 838) affirmed the state’s interest in protecting Indian children and the child’s interest in having tribal membership and a connection to the tribal community, and makes legislative findings that express the state’s interest in protecting children who are members of, or eligible for membership in, Indian tribes.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: AB 3076 (Author:Reyes)

Version: April 18, 2018

Hearing Date: June 19, 2018

Fiscal: Yes

Urgency: No

Consultant: MEC

SUBJECT

Indian child welfare: legal services.

DESCRIPTION

This bill would require the State Bar of California (State Bar) to administer grants to qualified legal services projects and qualified support centers for the purpose of providing legal services to Indian tribes in child welfare matters under the federal Indian Child Welfare Act (ICWA). The bill would, provide that grants shall be provided only to qualified legal services projects and qualified support centers that have experience handling child welfare matters under the federal ICWA or providing legal services to Indian tribes. The provisions of this bill would only become operative if an appropriation of one million dollars ($1,000,000) or more is made to the State Bar in the annual Budget Act expressly identified for these purposes.

BACKGROUND

According to the U.S. Census, the American Indian and Alaska Native population for California was 723,225 in 2010.^[1] And, of “all respondents who identified as American Indian and Alaska Native alone or in combination with another race, California had the largest percentage (14 percent).” California has a sinister history of using the power of the government against the first people of this state in an attempt to destroy the natives of California. As just one example, California Governors authorized 24 separate state militias and raised $1.5 million for Indian hunting militia operations.^[2] California’s first Governor Peter Burnett, declared that “a war of extermination will continue to be waged until the Indian race becomes extinct.” According to UCLA Associate Professor Benjamin Madley:

The near annihilation of California’s Indian population [. . . ] was actually a case of genocide, sanctioned, paid for, and facilitated by state and federal officials. For example, in 1852, California’s US Senator John Weller, who later became the State’s Governor in 1858. He told his colleagues in the United States Senate that the California Indians, and I quote, “will be exterminated before the onward march of the white man.” And, he insisted that the interest of the white man demands their extinction. [. . . ] California politicians knew from the beginning that the federal government would reimburse them for money they had expended on killing Indian people. [ . . . ] What has changed very recently was that the Governor of California, Jerry Brown, acknowledged that what happened in California was in his words, an actual genocide.”^[3]

Congress enacted the Indian Child Welfare Act (ICWA) in 1978. In enacting ICWA, Congress explained that states “often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families,” and that the removal of Indian children was “often unwarranted.” (25 U.S.C. Sec. 1901.) The goal of ICWA is thus to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” (25 U.S.C Sec. 1902.) The Indian Child Welfare Act (ICWA) establishes minimum federal standards, both procedural and substantive, that govern the removal of Indian children from their families and subsequent placement in foster or adoptive homes. (Fresno County Dep’t of Children & Family Services v. Superior Court (2004) 122 Cal.4th 626.) Under the ICWA, there is a presumption that it is in the best interests of an Indian child to retain tribal ties and cultural heritage and in the interest of the tribe in preserving future generations.

Among other things, ICWA sets forth minimum federal standards by: (1) establishing jurisdictional requirements; (2) allowing for notice of and intervention in Indian child custody proceedings by a tribe; and (3) providing that the acts, records, and judicial proceedings of tribal courts are entitled to full faith and credit to the same extent that the acts, records, or judicial proceedings of another state would be. In addition, ICWA prohibits a court from terminating parental rights without proof beyond a reasonable doubt and without clear and convincing evidence, including the testimony of a qualified expert, that continued custody by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. Sec. 1911 et seq.)

In 2007, SB 678 (Ducheny, Ch. 838, Stats. 2006) codified many of the ICWA requirements into California Law. As a result, the court in a child welfare proceeding involving an Indian child must not only consider the child’s interests, but also the interests of the child’s tribe. In any child custody proceeding in which the court knows or has reason to know that an Indian child is involved, the child’s tribe must be notified of the proceeding and of their right to intervene in the proceeding. (25 U.S.C. Sec. 1912(a); Welf. & Inst. Code Sec. 224.2(a).)

This bill is intended to facilitate the participation of Indian tribes in proceedings where the Indian Child Welfare Act applies. To this end, this bill would require the State Bar to administer grants to qualified legal services projects and qualified support centers for the purpose of providing legal services to Indian tribes in child welfare matters under ICWA. The bill would provide that grants shall be provided only to qualified legal services projects and qualified support centers that have experience handling child welfare matters under the federal ICWA or providing legal services to Indian tribes.

CHANGES TO EXISTING LAW

Existing federal law, under the federal Indian Child Welfare Act (ICWA), provides that tribes are entitled to notice of child welfare proceedings involving children who are either identified as members or eligible for membership in the tribe. (25 U.S.C. Sec. 1901 et seq.)

Existing law provides that tribes have presumptive jurisdiction over child welfare matters involving children who are either identified as members or eligible for membership in the tribe and allows tribes to seek transfer of state court child welfare matters involving these children to tribal court. If the case remains in state court, existing law allows tribes to intervene and participate in those cases. (25 U.S.C. Sec. 1911; Welf. & Inst. Code Sec. 305.5.)

Existing federal law establishes jurisdictional requirements. (25 U.S.C. Sec. 1911.)

Existing federal law allows for notice of and intervention in Indian child custody proceedings by a tribe. (25 U.S.C. Sec. 1912.)

Existing federal law provides that the acts, records, and judicial proceedings of tribal courts are entitled to full faith and credit to the same extent that the acts, records, or judicial proceedings of another state would be. (25 U.S.C. Sec. 1911.)

Existing federal law requires that active efforts have been made, and have failed, to prevent the breakup of the Indian family when a party seeks a foster care placement, guardianship, or the termination of parental rights. (25 U.S.C. Sec. 1912.)

Existing federal law prohibits a court from terminating parental rights without proof beyond a reasonable doubt, or ordering foster care or guardianship without clear and convincing evidence, including the testimony of a qualified expert, that continued custody by the child’s parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C. Sec. 1912.)

Existing federal law establishes placement preferences for Indian children who are being placed in foster or adoptive placements. (25 U.S.C. Sec. 1915.)

Existing federal law creates protections for a parent or Indian custodian who voluntarily consents to foster care placement, guardianship, or the termination of parental rights. (25 U.S.C. Sec. 1915.)

Existing state law requires a social worker or child advocate appointed by the court to prepare an evidentiary study, covering various aspects of a child’s situation, for use by the court in determining the proper disposition of a dependent child of the juvenile court. (Welf. & Inst. Code Sec. 358.1.)

Existing state law provides for two exceptions to the termination of parental rights for the parents of Native American children in the child welfare system where the court could otherwise order such termination of rights. The court is not required to order termination, if the court finds that such termination would be detrimental to the child because: (1) 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; or (2) 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. (Welf. & Inst. Code Sec. 366.26.)

Existing state law affirms that it is in the interests of Indian children to have their tribal membership and connection to the tribal community encouraged and protected and that courts must take this into consideration when determining the best interest of the Indian child and recognize that the child’s tribal membership or eligibility for membership constitutes a significant political affiliation with the tribe. (Welf. & Inst. Code Sec. 224.)

Existing state law defines “Indian custodian” to be, as defined under ICWA, any Indian person who has legal custody of an Indian child under tribal law or custom or under state law or to whom temporary physical care, custody, and control has been transferred by the parent of such child. (Welf. & Inst. Code Sec. 224.1.)

Existing state law requires the court, in any Indian child custody proceeding, to give full faith and credit to the public acts, records, judicial proceedings, and judgments of any Indian tribe applicable to the proceeding to the same extent that full faith and credit is given to any other entity. (Welf. & Inst. Code Sec. 224.5.)

This bill would require the State Bar of California to administer grants to qualified legal services projects and qualified support centers for the purpose of providing

legal services to Indian tribes in child welfare matters under the federal Indian Child Welfare Act.

This bill would provide that grants shall be provided only to qualified legal services projects and qualified support centers that have experience handling child welfare matters under the federal Indian Child Welfare Act or providing legal services to Indian tribes.

This bill would provide that provisions of this bill would only become operative if an appropriation of one million dollars ($1,000,000) or more is made to the State Bar of California in the annual Budget Act expressly identified for these purposes.

COMMENT

1. Stated need for the bill

According to the author:

In 1978, Congress passed the Indian Child Welfare Act to protect the interests of Native children and promote stability and security of tribes and families. In 2005, the California State Legislature passed SB 678 (Ducheny), and codified ICWA standards into state law, known as Cal-ICWA. California is leading the nation in ICWA related appeals, with a total of 152 cases appealed in 2017 alone. This case load, as well as a variety of issues brought forward by the California ICWA Compliance Task Force Report to the California Attorney General’s Bureau of Children’s Justice, [demonstrates that] California remains heavily non-compliant with ICWA. This is of grave concern, as families continue to get torn apart, particularly with cases with lack of appropriate legal counsel due to the extreme financial burden placed on tribes. [This bill] will remedy this problem and help ensure California becomes compliant with ICWA and protect tribal communities by providing adequate legal counsel to families dealing with ICWA related cases.

In support, Wilton Rancheria writes:

While progress has been made, major concerns persist regarding ICWA compliance and how ICWA proceedings are conducted. Many tribes do not have sufficient resources to retain legal counsel, leaving tribes as the sole unrepresented party in child welfare cases where ICWA applies. Tribes often rely [on] social workers to represent their interests in these matters, which has been cited by judges and tribes alike as being an impediment to ICWA compliance.

2. Making it easier for tribes to participate in ICWA actions

The Indian Child Welfare Act (ICWA) establishes minimum federal standards, both procedural and substantive, that govern the removal of Indian children from their families and subsequent placement in foster or adoptive homes. (Fresno County Dep’t of Children & Family Services v. Superior Court (2004) 122 Cal.4th 626.) Under the ICWA, there is a presumption that it is in the best interests of an Indian child to retain tribal ties and cultural heritage and in the interest of the tribe in preserving future generations.

In 2007, SB 678 (Ducheny, Ch. 838, Stats. 2006) codified many of the ICWA requirements into California Law. As a result, the court in a child welfare proceeding involving an Indian child must not only consider the child’s interests, but also the interests of the child’s tribe. In any child custody proceeding in which the court knows or has reason to know that an Indian child is involved, the child’s tribe must be notified of the proceeding and of their right to intervene in the proceeding. (25 U.S.C. Sec. 1912(a); Welf. & Inst. Code Sec. 224.2(a).) Some of the tribes that have the right to intervene do not have legal help to do so.

This Committee recently passed AB 3047 (Daly, 2018). AB 3047 would provide that the pro hac vice fees that otherwise would be required to be paid to the court shall be waived when the applicant is an attorney representing a tribe in a child welfare matter under the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). The bill currently before this committee is intended to further facilitate the participation of tribes in California proceedings where the Indian Child Welfare Act applies by creating a program to provide legal services to Indian tribes in child welfare matters under the ICWA.

The California Tribal Business Alliance, in support, writes:

California’s Welfare & Institutions Code §317 provides for appointment of legal counsel for parents or Indian custodians, and guardians who cannot afford counsel. It also compels appointment of counsel for children in every case. De facto parents may be appointed counsel under California Rules of Court, rule 5.534(c)(2). The agency is always represented by one or more counsel.

The absence of a corresponding provision for appointment of counsel for tribes is a significant breach of the mandates of due process. The multitude of errors in ICWA cases is a cost on the entire system and could be minimized if tribes were afforded the same right to counsel consistent with other parties.

In California, many tribes do not have resources sufficient to retain legal counsel, leaving tribes as the sole unrepresented party in child welfare cases where the ICWA applies. Tribes often rely on social workers to represent their interests in these matters, which has been cited by judges and tribes as being an impediment to ICWA compliance.

In order to ensure oversight of the program funds and their use in a way that helps those most in need, grant recipients under this bill would need to comply with requirements applicable to grant recipients under the Legal Services Trust Fund Program. The Legal Services Trust Fund Program grant recipients must comply with requirements, including: adopting financial eligibility guidelines, maintaining quality service and professional standards; and submitting financial reports to the State Bar of California regarding the expenditure of funds.

Support: Agua Caliente Band of Cahuilla Indians; Alliance for Children’s Rights; Bear River Band of the Rohnerville Rancheria; California Tribal Business Alliance; Cher-Ae Heights Indian Community of the Trinidad Rancheria; Coyote Valley Band of Pomo Indians; Federated Indians of Graton Rancheria; Habematolel Pomo of Upper Lake; Jamul Indian Village of California; Judicial Council of California; Morongo Band of Mission Indians; North Fork Rancheria of Mono Indians of California; Pala Band of Mission Indians; Pechanga Band of Luiseño Indians; Redwood Valley Little River Band of Pomo Indians; Rincon Band of Luiseño Indians; Round Valley Indian Tribes; Soboba Band of Luiseño Indians; Southern California Tribal Chairmen’s Association, Inc.; Susanville Indian Rancheria; Viejas Band of Kumeyaay Indians; Wilton Rancheria; Yocha Dehe Wintun Nation

Opposition: None Known

HISTORY

Source: California Tribal Families Coalition

Related Pending Legislation: AB 3047 (Daly, 2018) would provide that the pro hac vice fees that otherwise would be required to be paid to the court shall be waived when the applicant is an attorney representing a tribe in a child welfare matter under the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). This bill is in the Senate Committee on Appropriations.

Prior Legislation:

SB 678 (Ducheny, Stats. 2006, Ch. 838) affirmed the state’s interest in protecting Indian children and the child’s interest in having tribal membership and a connection to the tribal community, and makes legislative findings that express the state’s interest in protecting children who are members of, or eligible for membership in, Indian tribes.

Prior Vote:

Assembly Floor (Ayes 77, Noes 0)

Assembly Appropriations Committee (Ayes 16, Noes 0)

Assembly Judiciary Committee (Ayes 10, Noes 0)

Assembly Human Services Committee (Ayes 7, Noes 0)

**************

1. The American Indian and Alaska Native Population: 2010, 2010 Census Briefs, Issued Jan. 2012, Tina Norris, Paula L Vines, Elizabeth M. Hoeffel, available at <https://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf> as of [as of 5/19/18]. ↑

2. All That Glitters? Legacies of the California Gold Rush, Backstory (Jan. 19, 2018) #0229, available at <https:www.backstoryradio.org/shows/gold-rush/> [as of 5/20/18]. ↑

3. Id. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 3076

Author:(Reyes)

As Amended Ver:

Majority vote

SUMMARY: Requires the State Bar of California, upon appropriation of no less than $1,000,000 in the annual Budget Act specifically for the purposes of implementing the provisions of this bill, to administer grants to qualified legal services projects and support centers in order to provide legal services to Indian tribes in child welfare matters, as specified, and further requires the grants be provided only to qualified legal services projects and support centers that have experience handling child welfare matters under the federal Indian Child Welfare Act (ICWA) or providing legal services to Indian tribes.

EXISTING LAW:

1. States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected, or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (Welfare and Institutions Code Section (WIC) 300.2)
2. Declares the intent of the Legislature to, whenever possible, preserve and strengthen a child's family ties and, when a child must be removed from the physical custody of his or her parents, to give preferential consideration to placement with relatives. States the intent of the Legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive family setting and as close to the child’s family as possible, as specified. Further states the intent of the Legislature that all children live with a committed, permanent, nurturing family and states that services and supports should be tailored to meet the specific needs of the individual child and family being served, as specified. (WIC 16000)
3. Establishes ICWA, which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and the custody proceedings involving the removal of Indian children from the custody of their parents. (25 United States Code Section (USC) 1901 et seq.)
4. Describes the requirements organizations must meet in order to qualify for tax exempt status under federal tax law. (26 USC 501 (c)(3)(4), and (5))
5. Declares the commitment of the State of California to protecting the essential tribal relations and best interest of an Indian child by promoting practices in accordance with federal law, as specified. (WIC 224 et seq.)

FISCAL EFFECT: According to the Assembly Appropriations Committee on May 16, 2018, this bill may result in state costs of $1 million General Fund to fund the grant program, subject to an appropriation to the State Bar in the annual budget act.

COMMENTS:

Child Welfare Services: The primary objective of California's Child Welfare Services (CWS) system is to protect children from abuse and neglect while also providing for their health, safety, and overall well-being. When it is determined that a child is at risk of abuse, neglect, or abandonment, county juvenile courts hold legal jurisdiction and the CWS system appoints a social worker in order to best serve the needs of the child. Through CWS, multiple opportunities arise for the judicial system to evaluate, review and determine the custody of the child, or determine the best out of home placement for the youth. Together, the judicial system and the child’s social worker work to ensure that the best possible services are provided to the child. The CWS system also, when appropriate, works to reunite children who have been removed from the custody of their parents or guardians with individuals they consider to be family. California's child welfare system currently serves 60,000 children and youth.

Indian Child Welfare Act (ICWA): Signed into law on November 8, 1978, ICWA (25 USC 1901 et seq.) was introduced and enacted as a result of congressional hearings held in the mid-1970s, which found that Native American children were removed from their homes in large numbers. At the time, studies showed that Native American children were six to seven times as likely as non-native children to be placed in foster care or adoptive homes, and approximately 25-35% of all Native American children were removed from their homes and placed in foster care, adoptive homes, or boarding schools. In California, Native American children were more than eight times as likely as non-native children to be placed in adoptive homes, over 90% of California Native American children subject to adoption were placed in non-native homes, and one in every 124 Indian children in California was in a foster home, compared to a rate of one in 367 for non-native children. In order to ensure the preservation of Native American families, tribes, and tribal cultures, Congress passed ICWA, which serves as civil rights legislation to protect the interests of Native American children when interaction with the child welfare system is warranted. California codified the provisions of ICWA with the passage of SB 678 (Ducheny), Chapter 838, Statutes of 2006, known as Cal-ICWA, and declared that a Native American child's best interests are served by protecting and encouraging connection to his or her tribal community. The legislation built upon ICWA's foundation and included additional protections, such as: clarifying that ICWA applies to probate guardianships and conservatorships; imposing a duty to inquire whether a child in a child-custody proceeding may be a Native American child; and requiring that available tribal resources be used when trying to meet ICWA's placement preferences, among others.

According to data provided by DSS, between January 1, 2016 and December 31, 2016, of the 29,391 youth who entered the child welfare system, 364 of those youth were Native American. Data also indicates that 12 in every 1,000 youth entering the child welfare system is Native American. As of October 1, 2017, 36.4% of American Indian children in the child welfare system were placed with relatives, and approximately 42.6% were placed with non-relatives who were not Native American.

Legal Services Trust Fund Program: Administered by the State Bar of California, the Legal Services Trust Fund Program was founded in 1981 and aimed to expand the availability and improve the quality of existing free legal services to low-income individuals. Current law requires that the interest earned on certain accounts held by California attorneys be forwarded to the State Bar, and a portion of those proceeds are distributed to qualified legal services projects and qualified legal support centers. By the end of 2018, the State Bar will have distributed over $720 million in grants since its inception, according to information provided by the State Bar of California. In 2016, an estimated 250,000 low-income individuals received legal services from the Trust Fund; of those individuals, approximately 25% were elderly, 14% had limited English proficiency, 31% had disabilities, 3.6% were veterans, 29.2% were white, 34.1% were Hispanic, and 1.1% were Native American.

Need for this bill: According to the author, "In 1978, Congress passed the Indian Child Welfare Act to protect the interests of Native children and promote stability and security of tribes and families. In 2005, the California State Legislature passed SB 678 (Ducheny), and codified ICWA standards into state law, known as Cal-ICWA. California is leading the nation in ICWA related appeals, with a total of 152 cases appealed in 2017 alone. This case load, as well as a variety of issues brought forward by the California ICWA Compliance Task Force Report to the California Attorney General's Bureau of Children's Justice, California remains heavily non-compliant with ICWA. This is of grave concern, as families continue to get torn apart, particularly with cases with lack of appropriate legal counsel due to the extreme financial burden placed on tribes. [This bill] will remedy this problem and help ensure California becomes compliant with ICWA and protect tribal communities by providing adequate legal counsel to families dealing with ICWA related cases."

Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089 FN: 0003224

Date of Hearing: May 16, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 3076

Author:(Reyes) – As Amended Ver:April 18, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill provides, upon a state General Fund appropriation, grants to legal services programs to support Indian tribes in child welfare cases. Specifically, this bill:

1. Requires the State Bar's Legal Services Trust Fund Program, subject to a General Fund appropriation of at least $1 million, to administer grants to qualified legal services projects and support centers to provide legal services to Indian tribes in child welfare matters under ICWA.
2. Limits grants to only qualified legal services projects and qualified support centers that have experience handling child welfare matters under ICWA or providing legal services to Indian tribes.

FISCAL EFFECT:

State costs of $1 million (GF) to fund the grant program, subject to an appropriation to the State Bar in the annual budget act.

COMMENTS:

1. Purpose. This bill seeks to expand legal support for Indian tribes involved in the child welfare cases under ICWA.
2. Background. The federal Indian Child Welfare Act (ICWA) was enacted to reduce the number of Native American children removed from their parents and their tribes through the child welfare system. ICWA establishes minimum standards that state courts must follow before removing Indian children from their homes and placing them in foster care or adoptive homes -- including providing for involvement of the child’s tribe -- that are above-and- beyond what is required for non-Indian children.

According to data provided by the Department of Social Services, 364 of the nearly 30,000 children who entered the child welfare system in 2016 were Native American, roughly 12 in every 1,000 children. As of October 1, 2017, only 36% of Native American children in the child welfare system were placed with relatives, while 43% were placed with non-relatives who were not Native American.

1. Legal Services Trust Fund Program. Current law requires that the interest earned on certain client accounts held by California attorneys (Interest on Lawyers’ Trust Accounts, or IOLTA) be forwarded to the State Bar's Legal Services Trust Fund Program, and distributed to qualified legal services projects and qualified legal support centers that provide free legal services to indigent persons. Attorneys can also make voluntary donations to the fund when paying their annual license fees. The Legal Services Trust Fund Program also administers the Equal Access Fund, a fund created in 1999 to help low-income Californians access the court through a $10 million General Fund contribution. Given the extraordinary crisis facing low-income Californians trying to access the courts today, the Equal Access Fund has been increased to $20 million this year and next.

Recipients of grants from the Legal Services Trust Fund Program must comply with a number of important requirements, including ensuring the maintenance of quality service and professional standards and that funds are expended in accordance with requirements; adopting financial eligibility guidelines for indigent persons; submitting a financial statement to the State Bar, including an audit of the funds expended, a report demonstrating the programs on which they were expended, and a report on the recipient’s compliance with the requirements; and ensuring that grant funds are not expended on fee-generating or criminal cases.

1. Related Legislation.

AB 3176 (Waldron), of this legislative session, makes a number of changes to court proceedings related to Native American children in the child welfare system. That bill is pending hearing in this committee.

AB 3047 (Daly), of this legislative session, allows certain fees to be waived when the applicant is an attorney representing a tribe in a child welfare matter. That bill is pending referral in the Senate.

1. Prior Legislation.

AB 1325 (Cook), Chapter 287, Statutes of 2009, allowed dependent tribal children in need of long-term placement plans to be adopted without first terminating parental rights.

SB 678 (Ducheny), Chapter 838, Statutes of 2006, codified elements of ICWA in California statute.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: April 24, 2018

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 3076

Author:(Reyes) – As Amended Ver:April 18, 2018

PROPOSED CONSENT

SUBJECT: Indian child welfare: legal services

KEY ISSUE: in order to help keep native american children connected with their families anD their tribes, should the state Bar’s legal services trust fund, subject to at least a $1,000,000 general fund appropriation, administer a grant program to organizations that provide legal services on child welfare matters to tribes?

SYNOPSIS

The federal Indian Child Welfare Act (ICWA) was enacted to reduce the number of Native American children removed from their parents and their tribes through the child welfare system. ICWA establishes minimum standards that state courts must follow before removing Indian children from their homes and placing them in foster care or adoptive homes, including providing for involvement of the child’s tribe, that are above and beyond what is required for non-Native American children. However, for tribes to meaningfully participate in child welfare matters and best assist these children, they, like the children and their parents, need legal assistance. This bill, sponsored by the California Tribal Families Coalition, seeks to expand legal support for Indian tribes involved in the child welfare cases under ICWA by requiring the State Bar, subject to a state general fund appropriation of at least $1,000,000, to administer grants to qualified legal services programs for the purposes of providing legal services to Indian tribes in child welfare matters under ICWA. The bill limits grants to only qualified legal services programs that have experience handling child welfare matters under ICWA or providing legal services to Indian tribes. Also, like all recipients of similar grants from the State Bar, recipients under this bill would have to comply with basic rules applicable to other legal services grant recipients, including reporting requirements. This bill is supported by a number of tribes and has no opposition.

SUMMARY: Creates, if funded, a program to support qualified legal services projects providing legal services to Indian tribes on child welfare matters under the Indian Child Welfare Act (ICWA). Specifically, this bill requires the State Bar, subject to an appropriation to the State Bar of not less than $1,000,000 in the annual Budget Act, to administer grants to qualified legal services projects and support centers for the purposes of providing legal services to Indian tribes in child welfare matters under ICWA. Limits grants to only qualified legal services projects and qualified support centers that have experience handling child welfare matters under ICWA or providing legal services to Indian tribes.

EXISTING LAW:

1. Establishes ICWA, which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and custody proceedings involving the removal of Indian children from the custody of their parents. (25 U.S.C. 1901 et seq.; 18 Fed. Reg. 114 (June 14, 2016), revising 25 C.F.R. Part 23.)
2. States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected, or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (Welfare & Institutions Code Section 300.2.)
3. Declares the commitment of California to protecting the essential tribal relations and best interest of an Indian child by promoting practices in accordance with federal law, as specified. Requires the court, in all Indian child custody proceedings as defined by ICWA, to strive to promote the stability and security of Indian tribes and families, comply with ICWA, and seek to protect the best interest of the child, and further requires, whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for purposes of foster care, guardianship, or adoptive placement, the placement of the child to be in accordance with ICWA. Requires ICWA to apply to any proceedings regarding an unmarried minor who is either the member of an Indian tribe or who is eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe, as specified. (Welfare & Institutions Code Section 224.)
4. Declares that, due to insufficient funding, existing programs providing free legal services in civil matters to indigent persons, especially underserved client groups, such as the elderly, the disabled, juveniles, and non-English-speaking persons, do not adequately meet the needs of these persons. (Business & Professions Code Section 6210.)
5. Requires the State Bar to distribute all moneys received under specified programs to qualified legal services projects and support centers, as defined, for the provision of legal services to indigent persons and permits the State Bar to pay the administrative costs of the program and a reasonable reserve from those moneys. (Business & Professions Code Section 6216.)
6. Requires each grant recipient under 5), above, to ensure the maintenance of quality service and professional standards, the expenditure of funds received in accordance with requirements, the preservation of the attorney-client privilege in any case, and the protection of the integrity of the adversary process from any impairment in furnishing legal assistance to indigent persons, and that no one shall interfere with any attorney in carrying out his or her professional responsibility to his or her client. (Business & Professions Code Section 6217.)
7. Requires all grant recipients under 5) to adopt financial eligibility guidelines for indigent persons. (Business & Professions Code Section 6218.)
8. Requires all grant recipients under 5) to submit a financial statement to the State Bar, including an audit of the funds and a report demonstrating the programs on which they were expended, as provided. Requires the State Bar’s Board of Trustees to include a report of receipts of funds under 5), expenditures for administrative costs, and disbursements of the funds, on a county-by-county basis, in the annual report of State Bar receipts and expenditures. (Business & Professions Code Section 6222.)
9. Prohibits any funds allocated to grant recipients under 5) from being used for: (a) the provision of legal assistance in a fee generating case, except as provided; (b) the provision of legal assistance in any criminal proceeding; and (c) the provision of legal assistance, except to indigent persons or except to provide support services to qualified legal services projects as defined. (Business & Professions Code Section 6223.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: The federal Indian Child Welfare Act (ICWA) was enacted to reduce the number of Native American children removed from their parents and their tribes through the child welfare system. ICWA establishes minimum standards that state courts must follow before removing Indian children from their homes and placing them in foster care or adoptive homes -- including providing for involvement of the child’s tribe -- that are above and beyond what is required for non-Indian children. However, for tribes to meaningfully participate in child welfare matters and best assist these children, they, like the children and parents involved in the cases, need legal assistance. This bill seeks to expand legal support for Indian tribes involved in the child welfare cases under ICWA.

In support of the bill, the author writes:

In 1978, Congress passed the Indian Child Welfare Act to protect the interests of Native children and promote stability and security of tribes and families. In 2005, the California State Legislature passed SB 678 (Ducheny), and codified ICWA standards into state law, known as Cal-ICWA. California is leading the nation in ICWA related appeals, with a total of 152 cases appealed in 2017 alone. This case load, as well as a variety of issues brought forward by the California ICWA Compliance Task Force Report to the California Attorney General’s Bureau of Children’s Justice, [demonstrates that] California remains heavily non-compliant with ICWA. This is of grave concern, as families continue to get torn apart, particularly with cases with lack of appropriate legal counsel due to the extreme financial burden placed on tribes. [This bill] will remedy this problem and help ensure California becomes compliant with ICWA and protect tribal communities by providing adequate legal counsel to families dealing with ICWA related cases.

Basics on the Indian Child Welfare Act. Signed into law on November 8, 1978, ICWA (25 U.S.C. 1901 et seq.) was enacted as a result of congressional hearings held in the mid-1970s, which found that Native American children were removed from their homes in large numbers. At the time, studies showed that Native American children were six to seven times as likely as non-native children to be placed in foster care or adoptive homes, and approximately 25-35 percent of all Native American children were removed from their homes and placed in foster care, adoptive homes, or boarding schools. In California, Native American children were more than eight times as likely as non-native children to be placed in adoptive homes, over 90 percent of California Native American children subject to adoption were placed in non-native homes. One in every 124 Indian children in California was in a foster home, compared to a rate of one in 367 for non-native children. In order to ensure the preservation of Native American families, tribes, and tribal cultures, Congress passed ICWA as civil rights legislation to protect the interests of Native American children and families involved with the child welfare system. California codified many of the provisions of ICWA with the passage of SB 678 (Ducheny), Chap. 838, Stats. 2006, and declared that a Native American child’s best interests are served by protecting and encouraging connection to his or her tribal community. That legislation built upon ICWA’s foundation and included additional protections, such as clarifying that ICWA applies to probate guardianships and conservatorships; imposing a duty to inquire whether a child in a child-custody proceeding may be a Native American child; and requiring that available tribal resources be used when trying to meet ICWA’s placement preferences.

According to data provided by the Department of Social Services, 364 of the nearly 30,000 children who entered the child welfare system in 2016 were Native American, roughly 12 in every 1,000 children. As of October 1, 2017, only 36 percent of Native American children in the child welfare system were placed with relatives, while 43 percent were placed with non-relatives who were not Native American.

Legal Services Trust Fund Program. Current law requires that the interest earned on certain client accounts held by California attorneys (Interest on Lawyers’ Trust Accounts, or IOLTA) be forwarded to the State Bar's Legal Services Trust Fund Program, and distributed to qualified legal services projects and qualified legal support centers that provide free legal services to indigent persons. Attorneys can also make voluntary donations to the fund when paying their annual license fees. The Legal Services Trust Fund Program also administers the Equal Access Fund, a fund created in 1999 to help low-income Californians access the court through a $10 million general fund contribution. Given the extraordinary crisis facing low-income Californians trying to access the courts today, the Equal Access Fund has been increased to $20 million this year and next.

Recipients of grants from the Legal Services Trust Fund Program must comply with a number of important requirements, including ensuring the maintenance of quality service and professional standards and that funds are expended in accordance with requirements; adopting financial eligibility guidelines for indigent persons; submitting a financial statement to the State Bar, including an audit of the funds expended, a report demonstrating the programs on which they were expended, and a report on the recipient’s compliance with the requirements; and ensuring that grant funds are not expanded on fee generating or criminal cases.

This bill provides, upon a state general fund appropriate, grants to legal services programs to support Indian tribes in child welfare cases. This bill would, subject to a general fund appropriation of at least $1,000,000, require the State Bar's Legal Services Trust Fund Program to administer grants to qualified legal services organizations to provide legal services to Indian tribes in child welfare matters under ICWA. The bill requires that grants only be given to organizations that have experience handling child welfare matters under ICWA, or providing legal services to Indian tribes. This should help stretch limited grants by requiring that grant recipients are not learning on the job, but can immediately offer effective legal assistance to tribes.

Grant recipients under this bill will also have to comply with the basic requirements applicable to all recipients of grants under the Legal Services Trust Fund Program. These include maintaining quality service and professional standards; adopting financial eligibility guidelines; and submitting financial reports to the State Bar on the funds expended. This should help ensure that, assuming there is general fund support, the grant funding is spent effectively and that urgently needed legal services are provided to tribes, helping children and families involved with the child welfare system.

ARGUMENTS IN SUPPORT: The bill's supporters write that many tribes today do not have sufficient resources to retain legal counsel and, as a result, are unrepresented in child welfare cases. They often "rely on social workers to represent their interests in these matters, which has been cited by judges and tribes alike as being an impediment to ICWA compliance." This bill should help increase ICWA compliance and reduce the need for appeals in those cases.

REGISTERED SUPPORT / OPPOSITION:

Support

California Tribal Families Coalition (sponsor)

Alliance for Children’s Rights

Bear River Band of the Rohnerville Rancheria

California Tribal Business Alliance

Cher-Ae Heights Indian Community of Trinidad Rancheria

Morongo Band of Mission Indians

Soboba Band of Luiseño Indians

The Habematolel Pomo of Upper Lake

Opposition

None on file

Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334

Date of Hearing: April 10, 2018

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Blanca Rubio, Chair

ABPCA Bill Id:AB 3076 (

Author:Reyes) – As Introduced Ver:February 16, 2018

SUBJECT: Indian child welfare: legal services

SUMMARY: Requires the Department of Social Services (DSS) to administer grants to qualified nonprofit legal services organizations in order to provide legal services, training, and technical assistance related to Indian Child Welfare Act (ICWA) issues to Indian tribes, and requires to DSS to annually report certain data to the Legislature.

Specifically, this bill:

1. Requires DSS to provide grants to qualified nonprofit legal services organizations, as specified and subject to funding in the annual Budget Act.
2. Defines “legal training and technical assistance” to include, but not be limited to, webinars, in-person training, and technical assistance in the form of answering questions via telephone, email, or fax.
3. Defines “eligible nonprofit organization” as an organization that meets certain requirements in federal law, as specified.
4. Mandates that grants be for the purpose of providing one or both of the following:
   1. legal services to Indian tribes in child welfare matters under ICWA, as specified; and
   2. legal training and technical assistance to eligible nonprofit organizations regarding child welfare matters under ICWA.
5. Specifies that grants shall only be provided to qualified nonprofit legal services organizations that meet all of the following:
   1. requirements set forth in federal law regarding certain tax-exempt organizations, as specified;
   2. requirements to receive funding from the Trust Fund Program administered by the State Bar of California;
   3. have conducted trainings on ICWA for individuals other than their staff;
   4. have at least three years of experience handling child welfare matters under ICWA, as specified; and
   5. have, for legal services organizations providing legal training and technical assistance, at least 10 years of experience conducting legal services for Indian tribes.
6. Requires grant recipients to maintain adequate legal malpractice insurance.
7. Requires DSS to annually report all of the following information to fiscal committees of the Legislature:
   1. Implementation timelines;
   2. The number of applications submitted;
   3. Qualified nonprofit legal services organizations that were awarded grants; and
   4. Additional barriers and challenges faced by Indian tribes in obtaining legal services in child welfare matters under ICWA, as specified.

EXISTING LAW:

1. States that the purpose of foster care law is to provide maximum safety and protection for children who are currently being physically, sexually, or emotionally abused, neglected, or exploited, and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of harm. (WIC 300.2)
2. Declares the intent of the Legislature to, whenever possible, preserve and strengthen a child’s family ties and, when a child must be removed from the physical custody of his or her parents, to give preferential consideration to placement with relatives. States the intent of the Legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive family setting and as close to the child’s family as possible, as specified. Further states the intent of the Legislature that all children live with a committed, permanent, nurturing family and states that services and supports should be tailored to meet the specific needs of the individual child and family being served, as specified. (WIC 16000)
3. Establishes ICWA, which provides guidance to states regarding the jurisdictional requirements, proceedings of tribal courts, and the custody proceedings involving the removal of Indian children from the custody of their parents. (25 USC 1901 et seq.)
4. Describes the requirements organizations must meet in order to qualify for tax exempt status under federal tax law. (26 USC 501 (c)(3)(4), and (5))
5. Declares the commitment of the State of California to protecting the essential tribal relations and best interest of an Indian child by promoting practices in accordance with federal law, as specified. (WIC 224 et seq.)

FISCAL EFFECT: Unknown

COMMENTS:

Child Welfare Services: The primary objective of California’s Child Welfare Services (CWS) system is to protect children from abuse and neglect while also providing for their health, safety, and overall well-being. When it is determined that a child is at risk of abuse, neglect, or abandonment, county juvenile courts hold legal jurisdiction and the CWS system appoints a social worker in order to best serve the needs of the child. Through CWS, multiple opportunities arise for the judicial system to evaluate, review and determine the custody of the child, or determine the best out of home placement for the youth. Together, the judicial system and the child’s social worker work to ensure that the best possible services are provided to the child. The CWS system also, when appropriate, works to reunite children who have been removed from the custody of their parents or guardians with individuals they consider to be family. California’s child welfare system currently serves 60,000 children and youth.

Indian Child Welfare Act (ICWA): Signed into law on November 8, 1978, ICWA (25 USC 1901 et seq.) was introduced and enacted as a result of congressional hearings held in the mid-1970s, which found that Native American children were removed from their homes in large numbers. At the time, studies showed that Native American children were six to seven times as likely as non-native children to be placed in foster care or adoptive homes, and approximately 25-35% of all Native American children were removed from their homes and placed in foster care, adoptive homes, or boarding schools. In California, Native American children were more than eight times as likely as non-native children to be placed in adoptive homes, over 90% of California Native American children subject to adoption were placed in non-native homes, and one in every 124 Indian children in California was in a foster home, compared to a rate of one in 367 for non-native children. In order to ensure the preservation of Native American families, tribes, and tribal cultures, Congress passed ICWA, which serves as civil rights legislation to protect the interests of Native American children when interaction with the child welfare system is warranted. California codified the provisions of ICWA with the passage of SB 678 (Ducheny), Chapter 838, Statutes of 2006, known as Cal-ICWA, and declared that a Native American child’s best interests are served by protecting and encouraging connection to his or her tribal community. The legislation built upon ICWA’s foundation and included additional protections, such as: clarifying that ICWA applies to probate guardianships and conservatorships; imposing a duty to inquire whether a child in a child-custody proceeding may be a Native American child; and requiring that available tribal resources be used when trying to meet ICWA’s placement preferences, among others.

According to data provided by DSS, between January 1, 2016 and December 31, 2016, of the 29,391 youth who entered the child welfare system, 364 of those youth were Native American. Data also indicates that 12 in every 1,000 youth entering the child welfare system is Native American. As of October 1, 2017, 36.4% of American Indian children in the child welfare system were placed with relatives, and approximately 42.6% were placed with non-relatives who were not Native American.

Legal Services Trust Fund Program: Administered by the State Bar of California, the Legal Services Trust Fund Program was founded in 1981 and aimed to expand the availability and improve the quality of existing free legal services to low-income individuals. Current law requires that the interest earned on certain accounts held by California attorneys be forwarded to the State Bar, and a portion of those proceeds are distributed to qualified legal services projects and qualified legal support centers. By the end of 2018, the State Bar will have distributed over $720 million in grants since its inception, according to information provided by the State Bar of California. In 2016, an estimated 250,000 low-income individuals received legal services from the Trust Fund; of those individuals, approximately 25% were elderly, 14% had limited English proficiency, 31% had disabilities, 3.6% were veterans, 29.2% were white, 34.1% were Hispanic, and 1.1% were Native American.

Need for this bill: According to the author, “In 1978, Congress passed the Indian Child Welfare Act to protect the interests of Native children and promote stability and security of tribes and families. In 2005, the California State Legislature passed SB 678 (Ducheny), and codified ICWA standards into state law, known as Cal-ICWA. California is leading the nation in ICWA related appeals, with a total of 152 cases appealed in 2017 alone. This case load, as well as a variety of issues brought forward by the California ICWA Compliance Task Force Report to the California Attorney General’s Bureau of Children’s Justice, California remains heavily non-compliant with ICWA. This is of grave concern, as families continue to get torn apart, particularly with cases with lack of appropriate legal counsel due to the extreme financial burden placed on tribes. [This bill] will remedy this problem and help ensure California becomes compliant with ICWA and protect tribal communities by providing adequate legal counsel to families dealing with ICWA related cases.”

Recommended amendments: in order to ensure clarity about the administration and distribution of funds provided under the provisions of this bill, and to remove extraneous eligibility criteria, committee staff recommends the following amendments:

1. Move the language of this bill to after Section 6214 and before Section 6214.5 of the Business and Professions Code.
   
2. Beginning on line 4 on page 2 of the bill, make the following amendments:
   

3

10553.13.   (a) Subject to funding in the annual Budget Act,

4

the department shall provide grants one million dollars ($1 million) shall be allocated to the State Bar of California for the Legal Services Trust Fund Program to administer as grants to qualified nonprofit legal

5

services organizations, as described in this section.

6

(b) Grants shall be for the purpose of providing one or both of

7

the following services:

8

(1) Legal services to Indian tribes in child welfare matters under

9

the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

10

(2) (A) Legal training and technical assistance to eligible

11

nonprofit organizations regarding child welfare matters under the

12

federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

13

(B)  For purposes of this section, the following definitions shall

14

apply:

15

(i) “Legal training and technical assistance” includes, but is not

16

limited to, webinars, in-person training, and technical assistance

17

in the form of answering questions via telephone, email, or fax.

P3    1

(ii) “Eligible nonprofit organization” means an organization

2

that meets the requirements set forth in Section 501(c)(3),

3

501(c)(4), or 501(c)(5) of the United States Internal Revenue Code.

4

(c) Grants shall be provided only to qualified nonprofit legal

5

services organizations that meet all of the following requirements:

6

(1) The requirements set forth in Section 501(c)(3), 501(c)(4),

7

or 501(c)(5) of the United States Internal Revenue Code.

8

(2) The requirements to receive funding from the Trust Fund

9

Program administered by the State Bar of California.

10

(3) Have conducted trainings on the federal Indian Child Welfare

11

Act (25 U.S.C. Sec. 1901 et seq.) for persons beyond their staff.

12

(4) Except as provided in paragraph (5), have at least three years

13

of experience handling child welfare matters under the federal

14

Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

15

(5) For a legal services organizations that provides legal training

16

and technical assistance, legal services have at least 10 years of experience

17

conducting providing legal services for to Indian tribes.

18

(d) Grant recipients shall maintain adequate legal malpractice

19

insurance.

20

(e) The department shall annually report all of the following

21

information to the fiscal committees of the Legislature:

22

(1) Implementation timeline.

23

(2) Number of applications submitted.

24

(3) Qualified nonprofit legal services organizations that were

25

awarded grants.

26

(4) Any further barriers and challenges to Indian tribes in

27

obtaining legal services in child welfare matters under the federal

28

Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).

(e)Recipients of funds under this Section shall comply with the reporting requirements described in Section 6222 of the Business and Professions Code.

PRIOR AND RELATED LEGISLATION:

AB 3176 (Waldron), 2018, makes a number of changes to court proceedings related to Native American children in the child welfare system. It is currently awaiting hearing in the Assembly Human Services Committee.

AB 3047 (Daly), 2018, allows certain fees to be waived when the applicant is an attorney representing a tribe in a child welfare matter. It is currently awaiting hearing in the Assembly Judiciary Committee.

AB 1325 (Cook), Chapter 287, Statutes of 2009, allowed dependent tribal children in need of long-term placement plans to be adopted without first terminating parental rights.

SB 678 (Ducheny), Chapter 838, Statutes of 2006, codified elements of ICWA in California statute.

S 1214 (Abourezk), P.L. 96-608, dictates procedures governing the jurisdiction over the removal of Native American children from their families.

DOUBLE REFERRAL. This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

Alliance for Children’s Rights

California Tribal Business Alliance

Cher-Ae Heights Indian Community of the Trinidad Rancheria

Coyote Valley Band of Pomo Indians

Habematolel Pomo of Upper Lake

Morongo Band of Mission Indians

Pala Band of Mission Indians

Pechanga Band of Luiseño Indians

Rincon Band of Luiseño Indians

Soboba Band of Luiseño Indians

Susanville Indian Rancheria

Wilton Rancheria

Opposition

None on file.

Analysis Prepared by: Kelsy Castillo / HUM. S. / (916) 319-2089