Indian children: guardianship or conservatorship proceedings

The law strengthens tribal involvement, family-preservation safeguards, and parents’ due-process rights before an Indian child can be placed outside a parent’s or Indian custodian’s care.

What the law does ​

• Requires petitioners and courts to ask early and continually whether a child may be an Indian child, investigate potential tribal affiliation, and give required notice to parents, Indian custodians, and tribes.
• Requires documented, culturally appropriate active efforts to prevent family breakup before a guardian or conservator may be appointed.
• Requires clear and convincing evidence, including qualified expert testimony, that continued custody would likely cause serious emotional or physical harm before appointing a guardian or conservator.
• Establishes placement preferences favoring extended family, tribally approved homes, Indian homes, and tribally approved Indian organizations, unless clear and convincing evidence supports a departure.
• Gives tribes, parents, and Indian custodians rights to intervene, review case materials, seek transfer to tribal court, and obtain appointed counsel if they cannot afford it.
• Allows qualifying nonfederally recognized tribes to participate in a case at the court’s discretion.
• Requires guardianship petitions to disclose county child-safety investigations and, when an Indian child may be involved, the inquiry, notice, active efforts, expert-witness plan, and proposed placement’s fit with preferences.

Who it affects ​

• Indian children and their parents, Indian custodians, extended families, and tribes.
• People seeking guardianship or conservatorship of an Indian child.
• Probate courts, county child-welfare agencies, court investigators, and qualified expert witnesses.

Context ​

The law aligns probate guardianship and conservatorship procedures with federal Indian Child Welfare Act standards and California’s higher protections.

Breakdown ​

Tribal Authority and Indian Children ​

The bill adds to California’s policy statements about Indian children. It says California is committed to protecting tribal relationships by recognizing each tribe’s right to protect the health, safety, and welfare of its citizens.

Key takeaways

• The bill adds a legislative statement recognizing tribes’ right to protect the health, safety, and welfare of their citizens.
• This new statement is part of California’s commitment to protecting essential tribal relationships involving Indian children.
• Courts must consider the Legislature’s findings and declarations in Indian child custody proceedings.

Indian Child Guardianship Protections ​

This part of AB 1824 adds detailed rules for guardianship and conservatorship cases involving Indian children. It requires earlier inquiry into whether a child may be an Indian child, more information in petitions, proof of efforts to keep Indian families together, placement preferences, expert testimony in certain cases, notice to tribes, and procedures for transferring cases to tribal courts. It also allows certain non-federally recognized tribes to participate in cases involving their children.

Key takeaways

• Petitions involving a child who is or may be an Indian child must explain why that status is known or suspected and what efforts were made to avoid appointing a guardian.
• Courts and petitioners must ask whether a child is or may be an Indian child before or at the start of guardianship or conservatorship proceedings.
• A person seeking to place an Indian child outside the parent’s or Indian custodian’s care must show that active efforts to prevent the breakup of the Indian family were made and did not succeed.
• Placements of Indian children must follow the bill’s specified placement preferences.
• Qualified expert testimony is required in specified Indian child custody cases, including testimony about whether continued custody by a parent or Indian custodian is likely to seriously harm the child.
• The bill sets notice and case-transfer procedures for tribes and allows a non-federally recognized tribe to participate in certain cases upon the tribe’s request.

Counsel for Parents and Indian Custodians ​

The bill requires courts to appoint a lawyer for a parent or Indian custodian in an Indian child custody case when the person wants a lawyer and cannot afford one. This makes the appointment requirement apply to Indian child custody proceedings generally, rather than only the federally specified types of proceedings.

Key takeaways

• A court must appoint counsel when a parent or Indian custodian in an Indian child custody proceeding wants a lawyer but cannot afford to hire one.
• The bill applies this requirement to Indian child custody proceedings without limiting it to removal, placement, or termination cases.
• The appointed counsel is for the parent or Indian custodian who cannot afford representation.

Disclosure of Child Safety Investigations ​

The bill requires a person seeking guardianship to disclose any county welfare agency investigation into the child’s safety. This adds child-safety investigations to the other pending matters that must be listed in the petition when known.

Key takeaways

• A petitioner or proposed guardian must disclose a known county welfare agency investigation concerning the child’s safety.
• The disclosure must be included in the guardianship petition.
• This requirement is added to existing disclosure rules for known pending proceedings affecting the child.