Indian children: guardianship or conservatorship proceedings.

(1) Existing federal law, the Indian Child Welfare Act (ICWA) , governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of the child's parent or guardian. Existing law states findings and declarations of the Legislature regarding Indian children, including that the state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices in accordance with the ICWA, and it is in the interest of an Indian child that the child's membership or citizenship in the child's Indian tribe and connection to the tribal community be encouraged and protected, and requires the court to consider those findings in all Indian child custody proceedings. This bill would additionally state that the State of California is committed to protecting essential tribal relations by recognizing a tribe's right to protect the health, safety, and welfare of its citizens. (2) Existing provisions of state law govern guardianship and conservatorship proceedings. Existing law provides various definitions for these purposes, including "Indian child," as defined in the ICWA, and sets forth requirements for proceedings involving Indian children. Existing law requires, if the subject of a petition is or may be an Indian child, that the petition state that fact. This bill would define various terms consistent with provisions of the ICWA and for purposes of guardianship and conservator proceedings. The bill would also make conforming changes. This bill would require, if the subject of a petition is or may be an Indian child, that the petition include specified information, including the reasons to know or believe the child of the petition is or may be an Indian child and the efforts taken to prevent the need for the appointment of the guardian. This bill would specify that the court or a petitioner has a duty to inquire whether the child is or may be an Indian child prior to filing a petitioner for guardianship or conservatorship. The bill would require a court presiding over any guardianship or conservatorship proceeding that could result in placement of an Indian child with someone other than a parent or Indian custodian, to inquire at the first hearing on a petition whether the child is, or may be, an Indian child, as specified. This bill would require that, in an Indian child custody proceeding, a party seeking placement of an Indian child provide evidence to the court that active efforts, as defined, have been made to prevent the breakup of the Indian family and efforts have been unsuccessful. The bill would also require the initial and any subsequent placement of the child comply with specified placement preferences. To the extent this requirement would impose additional duties on county employees, this bill would impose a state-mandated local program. This bill would require the testimony of a qualified expert witness in an Indian child custody proceeding in specified circumstances, including testimony that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. This bill would specify notice requirements for proceedings involving Indian children, and set forth procedures for transfer of a case to jurisdiction of the child's tribe. This bill, in a proceeding involving a child who would otherwise be an Indian child, but is not, based on the child's Indian tribe not having federal recognition, would authorize the court to permit the tribe to participate in the proceeding upon request from the tribe. (3) Under existing law, in an Indian child custody proceeding, when it appears to the court that a parent or Indian custodian desires counsel but is unable to afford and hire counsel, the federal law and regulations authorizing the appointment of counsel applies, as specified. Federal law requires the appointment of counsel for the parent or Indian custodian in any removal, placement, or termination proceeding, in which the court determines the parent or Indian custodian is indigent. This bill would require the court to appoint counsel for the parent or Indian custodian when it appears to the court that a parent or Indian custodian in an Indian child custody proceeding cannot afford to hire counsel and desires to have counsel for the proceedings. (4) Existing law, if the petitioner or proposed guardian has knowledge of any pending adoption, juvenile court, marriage dissolution, domestic relations, custody, or other similar proceeding affecting the child who is the subject of the petition, requires the petition to disclose the pending proceeding. This bill would additionally require a petitioner or proposed guardian to disclose an investigation by a county welfare agency regarding the safety of the child in a petition. (5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.