AB 2642: Guardianship: special immigrant juveniles.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-07-16
The Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law authorizes a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if certain conditions are met, including, if the corporation is incorporated in this state. Existing law requires a nonprofit charitable corporation appointed as a guardian or conservator to meet specific requirements, including, notifying the court of a change in the person who is the responsible corporate officer for compliance with the legal requirements of acting as guardian, as specified. Existing law limits the compensation for a nonprofit charitable corporation or its attorney to compensation for services actually rendered.
This bill would, until January 1, 2022, enact comparable provisions authorizing a nonprofit charitable corporation that was not incorporated in this state to be appointed as a guardian of a minor in connection with a petition regarding special immigrant juvenile status, if the nonprofit charitable corporation otherwise meets the requirements described above, is licensed by the state, as specified, and is contracted by a specific federal office to provide care and custody for the minor. The bill would state findings and declarations of the Legislature relative to special immigrant juveniles.
The Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law authorizes a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if certain conditions are met, including, if the corporation is incorporated in this state. Existing law requires a nonprofit charitable corporation appointed as a guardian or conservator to meet specific requirements, including, notifying the court of a change in the person who is the responsible corporate officer for compliance with the legal requirements of acting as guardian, as specified. Existing law limits the compensation for a nonprofit charitable corporation or its attorney to compensation for services actually rendered.
This bill would, until January 1, 2022, enact comparable provisions authorizing a nonprofit charitable corporation that was not incorporated in this state to be appointed as a guardian of a minor in connection with a petition regarding special immigrant juvenile status, if the nonprofit charitable corporation otherwise meets the requirements described above, is licensed by the state, as specified, and is contracted by a specific federal office to provide care and custody for the minor. The bill would state findings and declarations of the Legislature relative to special immigrant juveniles.
The Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law authorizes a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if certain conditions are met, including, if the corporation is incorporated in this state. Existing law requires a nonprofit charitable corporation appointed as a guardian or conservator to meet specific requirements, including, notifying the court of a change in the person who is the responsible corporate officer for compliance with the legal requirements of acting as guardian, as specified. Existing law limits the compensation for a nonprofit charitable corporation or its attorney to compensation for services actually rendered.
This bill would, until January 1, 2022, enact comparable provisions authorizing a nonprofit charitable corporation that was not incorporated in this state to be appointed as a guardian of a minor in connection with a petition regarding special immigrant juvenile status, if the nonprofit charitable corporation otherwise meets the requirements described above, is licensed by the state, as specified, and is contracted by a specific federal office to provide care and custody for the minor. The bill would state findings and declarations of the Legislature relative to special immigrant juveniles.
The Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law authorizes a petition for instructions or to grant a guardian or conservator any power or authority, which may be filed by a guardian or conservator, to also be filed by a person who petitions for the appointment of a guardian or conservator. Existing law authorizes a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if certain conditions are met, including, if the corporation is incorporated in this state. Existing law requires a nonprofit charitable corporation appointed as a guardian or conservator to meet specific requirements, including, notifying the court of a change in the person who is the responsible corporate officer for compliance with the legal requirements of acting as guardian, as specified. Existing law limits the compensation for a nonprofit charitable corporation or its attorney to compensation for services actually rendered.
This bill would make technical, nonsubstantive changes to these provisions. would, until January 1, 2022, enact comparable provisions authorizing a nonprofit charitable corporation that was not incorporated in this state to be appointed as a guardian of a minor in connection with a petition regarding special immigrant juvenile status, if the nonprofit charitable corporation is contracted by a specific federal office to provide care and custody for the minor. The bill would state findings and declarations of the Legislature relative to special immigrant juveniles.
The Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law authorizes a petition for instructions or to grant a guardian or conservator any power or authority, which may be filed by a guardian or conservator, to also be filed by a person who petitions for the appointment of a guardian or conservator.
This bill would make technical, nonsubstantive changes to these provisions.
The Legislature finds and declares the following:
(a)California law grants the superior courts jurisdiction to make judicial determinations regarding the custody and care of children, including the juvenile, probate, and family court divisions of the superior court. These courts are also empowered to make the findings necessary for a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile under federal immigration law.
(b)Special immigrant juvenile status, under the federal Immigration and Nationality Act, offers relief from deportation and a path to permanent residence to undocumented immigrant children under 21 years of age, if a state juvenile court has made specific findings.
(c)The findings necessary for a child to petition for classification as a special immigrant juvenile include, among others, a finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and a finding that it is not in the childs best interest to be returned to his or her country of origin.
(d)Despite recent changes to law that eliminate ambiguity regarding the jurisdiction of superior courts to make the findings necessary to petition for special immigrant juvenile status, misalignment between state and federal law continues to exist.
(e)Children who enter the United States without a parent or legal guardian and without immigration documentation are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement. While most unaccompanied immigrant children are released to family members or other adult caretakers with whom they can seek a legal guardianship, there are a small number of children who have no appropriate caregiver in the United States and therefore remain in Office of Refugee Resettlement custody. Some of these children remain in the shelter system and some are transferred to a federal foster care program that is administered by the Office of Refugee Resettlement. In either case, the minor may need to seek a state court order regarding their eligibility for special immigrant juvenile status.
(f)Minors in some Office of Refugee Resettlement placements in California are currently able to obtain the necessary state court order through entity guardianship proceedings pursuant to Section 2104 of the Probate Code. However, current law limits entity guardianships to entities that are incorporated in California. Some Office of Refugee Resettlement programs in California are part of national agencies that are incorporated in another state, although the programs are licensed in California. These national agencies, despite their extensive experience in providing care for unaccompanied immigrant children, cannot currently petition for entity guardianship of those children, denying the children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation.
(g)Given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, it is necessary to provide an avenue for these unaccompanied children to petition the probate courts to have an entity guardian appointed regardless of which agency they are placed with. This is particularly necessary in light of the vulnerability of this class of unaccompanied youth, who have been found to have no available caretaker in the United States and who require a stable placement and services to recover from the trauma of abuse, neglect or abandonment.
(h)It is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status. It is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.
SEC. 2.Section 2104.1 is added to the Probate Code, to read:2104.1.(a)A nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
(1)The articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian.
(2)The nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement, or its successor federal government entity, to provide care and custody of the minor.
(3)The petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
(4)The nonprofit charitable corporation is licensed by this state to provide care for minors.
(5)The nonprofit charitable corporation complies with all of the requirements of Section 2104, except for paragraphs (1) and (2) of subdivision (a) of Section 2104.
(b)This section shall remain in effect only until January 1, 2022, and as of that date is repealed.
The Legislature finds and declares the following:
(a)California law grants the superior courts jurisdiction to make judicial determinations regarding the custody and care of children, including the juvenile, probate, and family court divisions of the superior court. These courts are also empowered to make the findings necessary for a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile under federal immigration law.
(b)Special immigrant juvenile status, under the federal Immigration and Nationality Act, offers relief from deportation and a path to permanent residence to undocumented immigrant children under 21 years of age, if a state juvenile court has made specific findings.
(c)The findings necessary for a child to petition for classification as a special immigrant juvenile include, among others, a finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and a finding that it is not in the childs best interest to be returned to his or her country of origin.
(d)Despite recent changes to law that eliminate ambiguity regarding the jurisdiction of superior courts to make the findings necessary to petition for special immigrant juvenile status, misalignment between state and federal law continues to exist.
(e)Children who enter the United States without a parent or legal guardian and without immigration documentation are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement. While most unaccompanied immigrant children are released to family members or other adult caretakers with whom they can seek a legal guardianship, there are a small number of children who have no appropriate caregiver in the United States and therefore remain in Office of Refugee Resettlement custody. Some of these children remain in the shelter system and some are transferred to a federal foster care program that is administered by the Office of Refugee Resettlement. In either case, the minor may need to seek a state court order regarding their eligibility for special immigrant juvenile status.
(f)Minors in some Office of Refugee Resettlement placements in California are currently able to obtain the necessary state court order through entity guardianship proceedings pursuant to Section 2104 of the Probate Code. However, current law limits entity guardianships to entities that are incorporated in California. Some Office of Refugee Resettlement programs in California are part of national agencies that are incorporated in another state, although the programs are licensed in California. These national agencies, despite their extensive experience in providing care for unaccompanied immigrant children, cannot currently petition for entity guardianship of those children, denying the children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation.
(g)Given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, it is necessary to provide an avenue for these unaccompanied children to petition the probate courts to have an entity guardian appointed regardless of which agency they are placed with. This is particularly necessary in light of the vulnerability of this class of unaccompanied youth, who have been found to have no available caretaker in the United States and who require a stable placement and services to recover from the trauma of abuse, neglect or abandonment.
(h)It is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status. It is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.
SEC. 2.Section 2104.1 is added to the Probate Code, to read:2104.1.(a)A nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
(1)The articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian.
(2)The nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement, or its successor federal government entity, to provide care and custody of the minor.
(3)The petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
(4)The nonprofit charitable corporation is licensed by this state to provide care for minors.
(5)The nonprofit charitable corporation complies with all of the requirements of Section 2104, except for paragraphs (1) and (2) of subdivision (a) of Section 2104.
(b)This section shall remain in effect only until January 1, 2022, and as of that date is repealed.
The Legislature finds and declares the following:
(a)California law grants the superior courts jurisdiction to make judicial determinations regarding the custody and care of children, including the juvenile, probate, and family court divisions of the superior court. These courts are also empowered to make the findings necessary for a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile under federal immigration law.
(b)Special immigrant juvenile status, under the federal Immigration and Nationality Act, offers relief from deportation and a path to permanent residence to undocumented immigrant children under 21 years of age, if a state juvenile court has made specific findings.
(c)The findings necessary for a child to petition for classification as a special immigrant juvenile include, among others, a finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and a finding that it is not in the childs best interest to be returned to his or her country of origin.
(d)Despite recent changes to law that eliminate ambiguity regarding the jurisdiction of superior courts to make the findings necessary to petition for special immigrant juvenile status, misalignment between state and federal law continues to exist.
(e)Children who enter the United States without a parent or legal guardian and without immigration documentation are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement. While most unaccompanied immigrant children are released to family members or other adult caretakers with whom they can seek a legal guardianship, there are a small number of children who have no appropriate caregiver in the United States and therefore remain in Office of Refugee Resettlement custody. Some of these children remain in the shelter system and some are transferred to a federal foster care program that is administered by the Office of Refugee Resettlement. In either case, the minor may need to seek a state court order regarding their eligibility for special immigrant juvenile status.
(f)Minors in some Office of Refugee Resettlement placements in California are currently able to obtain the necessary state court order through entity guardianship proceedings pursuant to Section 2104 of the Probate Code. However, current law limits entity guardianships to entities that are incorporated in California. Some Office of Refugee Resettlement programs in California are part of national agencies that are incorporated in another state, although the programs are licensed in California. These national agencies, despite their extensive experience in providing care for unaccompanied immigrant children, cannot currently petition for entity guardianship of those children, denying the children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation.
(g)Given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, it is necessary to provide an avenue for these unaccompanied children to petition the probate courts to have an entity guardian appointed regardless of which agency they are placed with. This is particularly necessary in light of the vulnerability of this class of unaccompanied youth, who have been found to have no available caretaker in the United States and who require a stable placement and services to recover from the trauma of abuse, neglect or abandonment.
(h)It is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status. It is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.
SEC. 2.Section 2104.1 is added to the Probate Code, to read:2104.1.(a)A nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
(1)The articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian.
(2)The nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement, or its successor federal government entity, to provide care and custody of the minor.
(3)The petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
(4)The nonprofit charitable corporation is licensed by this state to provide care for minors.
(5)The nonprofit charitable corporation complies with all of the requirements of Section 2104, except for paragraphs (1) and (2) of subdivision (a) of Section 2104.
(b)(1)The petition for appointment of a nonprofit charitable corporation described in this section as a guardian shall include in the caption the name of a responsible corporate officer who shall act for the nonprofit charitable corporation for the purposes of this division. (2)If, for any reason, the officer so named ceases to act as the responsible corporate officer for the purposes of this division, the nonprofit charitable corporation shall file with the court, as soon as practicable, a notice containing the name of the successor responsible corporate officer and the date the successor responsible corporate officer becomes the responsible corporate officer.(c)If a nonprofit charitable corporation described in this section is appointed as a guardian, the nonprofit charitable corporations compensation as guardian and any fee allowed for an attorney for the nonprofit charitable corporation shall be allowed only for services actually rendered. (d)(b)This section shall remain in effect only until January 1, 2022, and as of that date is repealed.
The Legislature finds and declares the following:
(a)California law grants the superior courts jurisdiction to make judicial determinations regarding the custody and care of children, including the juvenile, probate, and family court divisions of the superior court. These courts are also empowered to make the findings necessary for a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile under federal immigration law.
(b)Special immigrant juvenile status, under the federal Immigration and Nationality Act, offers relief from deportation and a path to permanent residence to undocumented immigrant children under 21 years of age, if a state juvenile court has made specific findings.
(c)The findings necessary for a child to petition for classification as a special immigrant juvenile include, among others, a finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and a finding that it is not in the childs best interest to be returned to his or her country of origin.
(d)Despite recent changes to law that eliminate ambiguity regarding the jurisdiction of superior courts to make the findings necessary to petition for special immigrant juvenile status, misalignment between state and federal law continues to exist.
(e)Children who enter the United States without a parent or legal guardian and without immigration documentation are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement. While most unaccompanied immigrant children are released to family members or other adult caretakers with whom they can seek a legal guardianship, there are a small number of children who have no appropriate caregiver in the United States and therefore remain in Office of Refugee Resettlement custody. Some of these children remain in the shelter system and some are transferred to a federal foster care program that is administered by the Office of Refugee Resettlement. In either case, the minor may need to seek a state court order regarding their eligibility for special immigrant juvenile status.
(f)Minors in some Office of Refugee Resettlement placements in California are currently able to obtain the necessary state court order through entity guardianship proceedings pursuant to Section 2104 of the Probate Code. However, current law limits entity guardianships to entities that are incorporated in California. Some Office of Refugee Resettlement programs in California are part of national agencies that are incorporated in another state, although the programs are licensed in California. These national agencies, despite their extensive experience in providing care for unaccompanied immigrant children, cannot currently petition for entity guardianship of those children, denying the children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation.
(g)Given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, it is necessary to provide an avenue for these unaccompanied children to petition the probate courts to have an entity guardian appointed regardless of which agency they are placed with. This is particularly necessary in light of the vulnerability of this class of unaccompanied youth, who have been found to have no available caretaker in the United States and who require a stable placement and services to recover from the trauma of abuse, neglect or abandonment.
(h)It is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status. It is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.
SEC. 2.Section 2104.1 is added to the Probate Code, to read:2104.1.(a)A nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
(1)The articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian.
(2)The nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement, or its successor federal government entity, to provide care and custody of the minor.
(3)The petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
(b)(1)The petition for appointment of a nonprofit charitable corporation described in this section as a guardian shall include in the caption the name of a responsible corporate officer who shall act for the nonprofit charitable corporation for the purposes of this division.
(2)If, for any reason, the officer so named ceases to act as the responsible corporate officer for the purposes of this division, the nonprofit charitable corporation shall file with the court, as soon as practicable, a notice containing the name of the successor responsible corporate officer and the date the successor responsible corporate officer becomes the responsible corporate officer.
(c)If a nonprofit charitable corporation described in this section is appointed as a guardian, the nonprofit charitable corporations compensation as guardian and any fee allowed for an attorney for the nonprofit charitable corporation shall be allowed only for services actually rendered.
(d)This section shall remain in effect only until January 1, 2022, and as of that date is repealed.
SECTION 1.Section 1455 of the Probate Code is amended to read:1455.A petition for instructions or to grant a guardian or a conservator a power or authority under this division, which may be filed by a guardian or conservator, may also be filed by a person who petitions for the appointment of a guardian or conservator, including, but not limited to, a person who petitions under Section 2002 for transfer of conservatorship.Any A petition for instructions or to grant a guardian or a conservator any a power or authority under this division, which may be filed by a guardian or conservator, may also be filed by a person who petitions for the appointment of a guardian or conservator, including, but not limited to, a person who petitions under Section 2002 for transfer of conservatorship.
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Date
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Status
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|---|---|
| Jul 16, 2018 | Chaptered by Secretary of State - Chapter 103, Statutes of 2018. |
| Jul 16, 2018 | Approved by the Governor. |
| Jul 10, 2018 | Enrolled and presented to the Governor at 3 p.m. |
| Jul 3, 2018 | In Assembly. Ordered to Engrossing and Enrolling. |
| Jul 2, 2018 | Read third time. Passed. Ordered to the Assembly. |
| Jun 25, 2018 | From Consent Calendar. |
| Jun 14, 2018 | Read second time. Ordered to Consent Calendar. |
| Jun 13, 2018 | From committee: Do pass. To Consent Calendar. (Ayes 7. Noes 0.) (June 12). |
| May 17, 2018 | Referred to Com. on JUD. |
| May 3, 2018 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 3, 2018 | Read third time. Passed. Ordered to the Senate. |
| May 2, 2018 | Read second time. Ordered to third reading. |
| May 1, 2018 | From committee: Do pass. (Ayes 10. Noes 0.) (May 1). |
| Apr 30, 2018 | Re-referred to Com. on JUD. |
| Apr 26, 2018 | From committee chair, with author's amendments: Amend, and re-refer to Com. on JUD. Read second time and amended. |
| Apr 12, 2018 | In committee: Hearing postponed by committee. |
| Apr 2, 2018 | Re-referred to Com. on JUD. |
| Apr 2, 2018 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 22, 2018 | Referred to Com. on JUD. |
| Feb 16, 2018 | From printer. May be heard in committee March 18. |
| Feb 15, 2018 | Read first time. To print. |
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Date
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Description
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Location
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Votes
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|---|---|---|---|---|
| Jul 2, 2018 | Assembly 3rd Reading AB2642 Levine By Hertzberg | Senate Floor |
Passed |
|
| Jun 12, 2018 | Do pass and be ordered to the Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| May 3, 2018 | AB 2642 LEVINE Assembly Third Reading | Assembly Floor |
Passed |
|
| May 1, 2018 | Do pass. | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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Organization
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Position
|
Date
|
|---|---|---|
| American Civil Liberties Union of California | ** Support | Jun 26, 2018 |
| Central American Resource Center of Northern California | ** Support | Jun 26, 2018 |
| Central Valley Empowerment Alliance | * Support | May 1, 2018 |
| Immigrant Legal Resource Center | ** Support | Jun 26, 2018 |
| Legal Services for Children | ** Support | Jun 26, 2018 |
| Public Counsel'S Immigrants' Rights Project | ** Support | Jun 26, 2018 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 2642
:
SENATE JUDICIARY COMMITTEE: 7-0, 6/12/18
AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski
ASSEMBLY FLOOR: 64-0, 5/3/18 - See last page for vote
DIGEST:
This bill provides, in an effort to ensure that unaccompanied minors are able to apply for Special Immigrant Juvenile Status immigration relief, that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if specified requirements are met, which include that (1) the nonprofit charitable corporation is licensed by this state to provide care for minors; (2) the nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care and custody of the minor; and (3) the petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
Existing law:
- Provides immigration relief that relies on a state’s interest in the welfare of children by providing for Special Immigrant Juvenile Status (SIJS) where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country. (8 U.S.C. Sec. 1101 (a)(27)(J).)
- Establishes that the care and custody of unaccompanied minors is the responsibility of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services instead of the Department of Homeland Security. (Homeland Security Act of 2002; P.L. 107-296, Sec. 462.)
- Defines a “special immigrant juvenile” as a person under 21 who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both of his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to his or her country of nationality or last habitual residence is not in his or her best interest. (8 U.S.C. Sec. 1101(a)(27)(J).)
- Allows such a person to obtain SIJS and, based on that, apply for a visa for lawful permanent residency. (8 U.S.C. Sec. 1153(b)(4).)
- Provides that the superior court, including a juvenile, probate, or family court department or division of the superior court, has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law, if there is evidence to support those findings. (Code Civ. Proc. Sec. 155.)
- Allows the court to appoint a guardian of the person, the estate, or both for a child under 18 years of age, taking into consideration the best interest of the proposed ward. (Prob. Code Sec. 1501 et seq.)
- Provides that a nonprofit charitable corporation may be appointed as a guardian of the person if all of the following requirements are met:
- the corporation is incorporated in this state; (Prob. Code Sec. 2104(a)(1))
- the articles of incorporation specifically authorize the corporation to accept appointments as guardian, as the case may be; and (Prob. Code Sec. 2104 (a)(2))
- the corporation has been providing, at the time of appointment, care, counseling, or financial assistance to the proposed ward under the supervision of a registered social worker certified by the Board of Behavioral Science Examiners of this state. (Prob. Code Sec. 2104(a)(3).)
- Provides that the petition for appointment of a nonprofit charitable corporation described in this section as a guardian shall include in the caption the name of a responsible corporate officer who shall act for the corporation for the purposes of this division. If, for any reason, the officer so named ceases to act as the responsible corporate officer for the purposes of this division, the corporation shall file with the court a notice containing: the name of the successor responsible corporate officer; and the date the successor becomes the responsible corporate officer. (Prob. Code Sec. 2104(b).)
- Provides that if a nonprofit charitable corporation described in this section is appointed as a guardian:
- the corporation’s compensation as guardian or conservator shall be allowed only for services actually rendered; and
- any fee allowed for an attorney for the corporation shall be for services actually rendered. (Prob. Code Sec. 2104(c).)
This bill:
- Makes findings and declarations.
- Provides that it is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status.
- Provides that it is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, ORR to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.
- Provides that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
- the articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian;
- the nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, ORR, or its successor federal government entity, to provide care and custody of the minor;
- the petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure;
- the nonprofit charitable corporation is licensed by this state to provide care for minors; and
- the nonprofit charitable corporation complies with all of the requirements of Section 2104, except for paragraphs (1) and (2) of subdivision (a) of Section 2104.
- Remains in effect until January 1, 2022.
Background
SIJS, found in the Federal Immigration and Nationality Act, is a statutory tool enacted over two decades ago to benefit immigrant children. SIJS involves both federal and state law. The federal statute and regulations provide the framework, and the state courts provide the details for each individual situation. The Los Angeles County Bar Association describes the interplay between state and federal law in a 2012 article as follows:
First, a juvenile court must establish the child’s eligibility for immigration relief. Without the court’s findings, the child cannot apply for SIJS. A “juvenile court,” for SIJS purposes, is “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” This broad definition encompasses many California courts--those that handle dependency and delinquency proceedings as well as those that hear guardianships, adoptions, and even family law cases. What matters is the jurisdiction of California courts, not the labels they use for themselves.
Second, the juvenile court must have either 1) declared the child dependent on the court, 2) legally committed the child to, or placed the child under the custody of, an agency or department of a state, or 3) legally committed the child to, or placed the child under the custody of, an individual or entity appointed by the court. Juvenile court dependents … meet this requirement. So too do … wards when the court vests their “care, custody and control” in the probation department. A child whose custody is placed with a guardian, including an institutional guardian, or with a prospective adoptive parent also meets this requirement. (Jackson, Special Status Seekers: Through the underused SIJS process, immigrant juveniles may obtain legal status, 34 (Feb. 2014) Los Angeles Lawyer 20, 22.)
The court must additionally determine that reunification with one or more of the child’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. “Under California law, children have met this requirement when, for example, their parents are deceased; their parents’ identities are unknown; their parents have sexually, physically, or emotionally harmed them; or their parents have not provided appropriate care, support, or protection. By definition, SIJS-eligible children have suffered the lack of a stable and safe two-parent household.” (Id.) Additionally, the court must find that it is not in the child’s best interest to return to the child’s or his or her parent’s country of nationality.
In 2014, through SB 873 (Senate Budget and Fiscal Review, Chapter 685, Statutes of 2014), the Legislature clarified that superior courts can make the findings necessary for a child to be eligible for SIJS. That law states that the superior court (including a juvenile, probate, or family court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the court to make an order containing the necessary findings for SIJS, if there is evidence to support them. (Code Civ. Proc. Sec. 155.) Thus, a child in California today, who is under 18, may have the necessary SIJS findings made in a juvenile court as part of a dependency or delinquency proceeding, in family court as part of a custody proceeding, or in probate court as part of a guardianship proceeding.
In an effort to ensure that unaccompanied minors are able to apply for SIJS immigration relief, this bill provides that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if specified requirements are met.
Comments
The author writes:
When Central American asylum seekers began arriving at the U.S. border in late April of this year, they were held at the Mexican border in Tijuana as immigration officials told them their claims could not be processed. Many of these asylum seekers included unaccompanied minors. Unfortunately, due to widespread fear in the immigrant community, family members are hesitant to step forward and claim these children. As a result, many immigrant children cannot be released from federal detention, creating a more pressing need for legal guardianship than ever before. These vulnerable children should not be placed in shelters or detention facilities, and should be able to find care in places that can include family homes.
AB 2642 will make it easier for non-profit organizations to care for unaccompanied minors, keeping them out of detention, and helping them obtain special immigrant juvenile status allowing them to remain in this country legally. Under current law, only non-profits that are based in California can serve as legal guardian for unaccompanied minors. AB 2642 would allow non-profits from other states to help meet the growing demand for guardians that is straining the capacity of California-based organizations.
Related/Prior Legislation
AB 2090 (Gonzalez Fletcher, 2018) clarifies that a parent may be appointed a guardian pursuant to Probate Code Section 1510.1 relating to guardianships of unaccompanied minors seeking necessary findings to pursue SIJS immigration relief. The bill is pending hearing in the Senate Judiciary Committee.
AB 1603 (Assembly Budget Committee, Chapter 25, Statutes of 2016) made statutory changes to clarify the intent of SB 873 (Senate Budget and Fiscal Review Committee, Chapter 685, Statutes of 2014) and AB 900 (Levine, Chapter 694, Statutes of 2015), relating to the Unaccompanied Undocumented Minors program, administered by the Department of Social Services, which provides legal services funding for unaccompanied undocumented minors. Specifically, these changes clarify that SIJS findings can be made at any point in the court proceedings; prerequisites for SIJS findings are the same across superior court divisions; and perceived motivations of the child/juvenile in seeking classification as a special immigrant juvenile shall not be included or referred in the findings under this section.
AB 900 (Levine, Chapter 694, Statutes of 2015) authorized, with the consent of the proposed ward, a probate court to establish or extend a guardianship of the person for an unmarried individual, who is at least 18 years of age, but not yet 21, in connection with a petition to make necessary findings for the youth to pursue SIJS immigration relief.
SB 873 (Senate Budget and Fiscal Review Committee, Chapter 685, Statutes of 2014) enacted Code of Civil Procedure Section to strengthen protections for immigrant children by making it clear that all California courts have jurisdiction to make SIJS findings.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
American Civil Liberties Union of California
Central American Resource Center of Northern California
Immigrant Legal Resource Center
Legal Services for Children
Public Counsel’s Immigrants’ Rights Project
OPPOSITION: (Verified 6/13/18)
None received
ASSEMBLY FLOOR: 64-0, 5/3/18
AYES: Acosta, Aguiar-Curry, Arambula, Baker, Berman, Bloom, Bonta, Calderon, Carrillo, Cervantes, Chau, Chávez, Chen, Chiu, Chu, Cooley, Cooper, Cunningham, Dahle, Daly, Eggman, Flora, Fong, Frazier, Friedman, Gallagher, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Gray, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager-Dove, Kiley, Lackey, Levine, Limón, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Muratsuchi, Nazarian, O'Donnell, Quirk, Reyes, Rodriguez, Rubio, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon
NO VOTE RECORDED: Travis Allen, Bigelow, Brough, Burke, Caballero, Choi, Cristina Garcia, Grayson, Harper, Obernolte, Patterson, Quirk-Silva, Voepel, Waldron
Prepared by: Margie Estrada / JUD. / (916) 651-4113
6/26/18 11:16:04
**** END ****
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: AB 2642 (Author:Levine)
Version: April 26, 2018
Hearing Date: June 12, 2018
Fiscal: No
Urgency: No
Consultant: MEC
SUBJECT
Guardianship: special immigrant juveniles
DESCRIPTION
In an effort to ensure that unaccompanied minors are able to apply for Special Immigrant Juvenile Status immigration relief, this bill would provide that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if specified requirements are met, which include that the nonprofit charitable corporation is licensed by this state to provide care for minors; the nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care and custody of the minor; and the petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
BACKGROUND
Special Immigrant Juvenile Status (SIJS), found in the Federal Immigration and Nationality Act, is a statutory tool enacted over two decades ago to benefit immigrant children. SIJS involves both federal and state law. The federal statute and regulations provide the framework, and the state courts provide the details for each individual situation. The Los Angeles County Bar Association describes the interplay between state and federal law in a 2012 article as follows:
First, a juvenile court must establish the child’s eligibility for immigration relief. Without the court’s findings, the child cannot apply for SIJS. A “juvenile court,” for SIJS purposes, is “a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles.” This broad definition encompasses many California courts--those that handle dependency and delinquency proceedings as well as those that hear guardianships, adoptions, and even family law cases. What matters is the jurisdiction of California courts, not the labels they use for themselves.
Second, the juvenile court must have either 1) declared the child dependent on the court, 2) legally committed the child to, or placed the child under the custody of, an agency or department of a state, or 3) legally committed the child to, or placed the child under the custody of, an individual or entity appointed by the court. Juvenile court dependents … meet this requirement. So too do … wards when the court vests their “care, custody and control” in the probation department. A child whose custody is placed with a guardian, including an institutional guardian, or with a prospective adoptive parent also meets this requirement. (Jackson, Special Status Seekers: Through the underused SIJS process, immigrant juveniles may obtain legal status, 34 (Feb. 2014) Los Angeles Lawyer 20, 22.)
The court must additionally determine that reunification with one or more of the child’s parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law. “Under California law, children have met this requirement when, for example, their parents are deceased; their parents’ identities are unknown; their parents have sexually, physically, or emotionally harmed them; or their parents have not provided appropriate care, support, or protection. By definition, SIJS-eligible children have suffered the lack of a stable and safe two-parent household.” (Id.) Additionally, the court must find that it is not in the child’s best interest to return to the child’s or his or her parent’s country of nationality.
In 2014, through SB 873 (Budget and Fiscal Review, Ch. 685, Stats. 2014), the Legislature clarified that superior courts can make the findings necessary for a child to be eligible for SIJS. That law states that the superior court (including a juvenile, probate, or family court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the court to make an order containing the necessary findings for SIJS, if there is evidence to support them. (Code Civ. Proc. Sec. 155.) Thus, a child in California today, who is under 18, may have the necessary SIJS findings made in a juvenile court as part of a dependency or delinquency proceeding, in family court as part of a custody proceeding, or in probate court as part of a guardianship proceeding.
In an effort to ensure that unaccompanied minors are able to apply for Special Immigrant Juvenile Status immigration relief, this bill would provide that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if specified requirements are met.
CHANGES TO EXISTING LAW
Existing law provides immigration relief that relies on a state’s interest in the welfare of children by providing for Special Immigrant Juvenile Status where a state determines that reunification with one or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or similar basis found under state law and that it would not be in the child’s best interest to return to their home country. (8 U.S.C. Sec. 1101 (a)(27)(J).)
Existing law establishes that the care and custody of unaccompanied minors is the responsibility of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services instead of the Department of Homeland Security (DHS). (Homeland Security Act of 2002; P.L. 107-296, Sec. 462.)
Existing federal law defines a “special immigrant juvenile” as a person under 21 who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both of his or her parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to his or her country of nationality or last habitual residence is not in his or her best interest. (8 U.S.C. Sec. 1101(a)(27)(J).)
Existing federal law allows such a person to obtain Special Immigrant Juvenile Status (SIJS) and, based on that, apply for a visa for lawful permanent residency. (8 U.S.C. Sec. 1153(b)(4).)
Existing law provides that the superior court, including a juvenile, probate, or family court department or division of the superior court, has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act, and requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law, if there is evidence to support those findings. (Code Civ. Proc. Sec. 155.)
Existing law allows the court to appoint a guardian of the person, the estate, or both for a child under 18 years of age, taking into consideration the best interest of the proposed ward. (Prob. Code Sec. 1501 et seq.)
Existing law provides that a nonprofit charitable corporation may be appointed as a guardian of the person if all of the following requirements are met:
- the corporation is incorporated in this state; (Prob. Code Sec. 2104(a)(1))
- the articles of incorporation specifically authorize the corporation to accept appointments as guardian, as the case may be; and (Prob. Code Sec. 2104 (a)(2))
- the corporation has been providing, at the time of appointment, care, counseling, or financial assistance to the proposed ward under the supervision of a registered social worker certified by the Board of Behavioral Science Examiners of this state. (Prob. Code Sec. 2104(a)(3).)
Existing law provides that the petition for appointment of a nonprofit charitable corporation described in this section as a guardian shall include in the caption the name of a responsible corporate officer who shall act for the corporation for the purposes of this division. If, for any reason, the officer so named ceases to act as the responsible corporate officer for the purposes of this division, the corporation shall file with the court a notice containing: the name of the successor responsible corporate officer; and the date the successor becomes the responsible corporate officer. (Prob. Code Sec. 2104(b).)
Existing law provides that if a nonprofit charitable corporation described in this section is appointed as a guardian:
- the corporation’s compensation as guardian or conservator shall be allowed only for services actually rendered; and
- any fee allowed for an attorney for the corporation shall be for services actually rendered. (Prob. Code Sec. 2104(c).)
This bill would provide that the Legislature finds and declares the following:
- California law grants the superior courts jurisdiction to make judicial determinations regarding the custody and care of children, including the juvenile, probate, and family court divisions of the superior court;
- these courts are also empowered to make the findings necessary for a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile under federal immigration law;
- special immigrant juvenile status, under the federal Immigration and Nationality Act, offers relief from deportation and a path to permanent residence to undocumented immigrant children under 21 years of age, if a state juvenile court has made specific findings;
- the findings necessary for a child to petition for classification as a special immigrant juvenile include, among others, a finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and a finding that it is not in the child’s best interest to be returned to his or her country of origin;
- despite recent changes to law that eliminate ambiguity regarding the jurisdiction of superior courts to make the findings necessary to petition for special immigrant juvenile status, misalignment between state and federal law continues to exist;
- children who enter the United States without a parent or legal guardian and without immigration documentation are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement;
- while most unaccompanied immigrant children are released to family members or other adult caretakers with whom they can seek a legal guardianship, there are a small number of children who have no appropriate caregiver in the United States and therefore remain in Office of Refugee Resettlement custody;
- some of these children remain in the shelter system and some are transferred to a federal foster care program that is administered by the Office of Refugee Resettlement; in either case, the minor may need to seek a state court order regarding their eligibility for special immigrant juvenile status;
- minors in some Office of Refugee Resettlement placements in California are currently able to obtain the necessary state court order through entity guardianship proceedings pursuant to Section 2104 of the Probate Code, however, current law limits entity guardianships to entities that are incorporated in California;
- some Office of Refugee Resettlement programs in California are part of national agencies that are incorporated in another state, although the programs are licensed in California;
- these national agencies, despite their extensive experience in providing care for unaccompanied immigrant children, cannot currently petition for entity guardianship of those children, denying the children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation;
- given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, it is necessary to provide an avenue for these unaccompanied children to petition the probate courts to have an entity guardian appointed regardless of which agency they are placed with; and
- this is particularly necessary in light of the vulnerability of this class of unaccompanied youth, who have been found to have no available caretaker in the United States and who require a stable placement and services to recover from the trauma of abuse, neglect or abandonment.
This bill would provide that it is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status.
This bill would provide that it is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.
This bill would provide that a nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
- the articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian;
- the nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement, or its successor federal government entity, to provide care and custody of the minor;
- the petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure;
- the nonprofit charitable corporation is licensed by this state to provide care for minors; and
- the nonprofit charitable corporation complies with all of the requirements of Section 2104, except for paragraphs (1) and (2) of subdivision (a) of Section 2104.
This bill would remain in effect until January 1, 2022.
COMMENT
1. Stated need for the bill
According to the author:
When Central American asylum seekers began arriving at the U.S. border in late April of this year, they were held at the Mexican border in Tijuana as immigration officials told them their claims could not be processed. Many of these asylum seekers included unaccompanied minors. Unfortunately, due to widespread fear in the immigrant community, family members are hesitant to step forward and claim these children. As a result, many immigrant children cannot be released from federal detention, creating a more pressing need for legal guardianship than ever before. These vulnerable children should not be placed in shelters or detention facilities, and should be able to find care in places that can include family homes.
AB 2642 will make it easier for non-profit organizations to care for unaccompanied minors, keeping them out of detention, and helping them obtain special immigrant juvenile status allowing them to remain in this country legally. Under current law, only non-profits that are based in California can serve as legal guardian for unaccompanied minors. AB 2642 would allow non-profits from other states to help meet the growing demand for guardians that is straining the capacity of California-based organizations.
In support, Public Counsel’s Immigrants’ Rights Project explains:
Public Counsel supports Assembly Bill 2642 because this change protects immigrant children from abuse and trauma. There is a shortage of agencies in California able to take custody of these highly vulnerable children; this problem can be solved through this bill. Under current laws, agencies who are highly qualified and who are already caring for abused, abandoned and neglected immigrant children are prevented from serving as organizational guardians for such children because these agencies are not incorporated in our state. This means that children in California under the care of these agencies will never be able to receive the immigration benefits to which they are entitled and which they need in order to receive protection from the trauma they have suffered. With the proposed change, these agencies can help more children, and the state of California can further its goal of making sure that all abused or neglected children in the state are protected, especially vulnerable immigrant children. AB 2642 fixes this by allowing for a non-profit “entity” guardian not incorporated in California to be appointed the legal guardian of a child, facilitating safety, permanency, and the legal rights of vulnerable youth.
2. Allowing more children to be protected under guardianship and apply for SIJS
As explained by the Immigrant Legal Resource Center, supporters of the bill:
When detained, immigrant children in federal custody cannot be released to an appropriate family member or other adult, they can be eligible for long-term foster care through the federal Office of Refugee Resettlement (ORR). There is an increased need for this program given the widespread concern in the immigrant community that decreases the likelihood of families stepping forward to accept care of detained children. Long term foster-care placements are run by non-profit agencies that enter into contracts with ORR. Currently, non-profit agencies incorporated in other states are ineligible to act as the legal guardian for children detained in their custody. These agencies run immigration detention programs in California for children and generally have a great deal of experience caring for unaccompanied immigrant children. However, under current law, despite the fact that these non-profit agencies are subject to licensing requirements in California, they cannot become guardians for children in long-term federal foster care because they are incorporated in another state. This means that children in their care are not able to seek Special Immigrant Juvenile status, a special way for abandoned, abused or neglected children to get immigration status, despite otherwise being eligible.
AB 2642 allows for a non-profit “entity” guardian not incorporated in California to be appointed the legal guardian of a child when that entity is contracted with ORR to provide care for the child and is also seeking Special Immigrant Juvenile findings for the child.
As explained by Legal Services for Children, supporters of the bill:
Minors who are in federal custody based on their immigration status are in the custody of the Office of Refugee Resettlement (ORR). ORR contracts with various agencies to house these children while they are detained. Until fall, 2017, there were three detention programs in Northern California, two group homes and one Juvenile Hall. In the fall of 2017 a federal foster care program was opened. While most children in ORR custody are ultimately released to family or other adults, some children do not have anyone available for them. The federal foster care program is a way for children who will remain detained because of their lack of release options to live in family settings where they can attend regular school and be part of the community. We were thrilled to see a federal foster care program open in our area because the need for federal foster care is greater than ever as fewer family members are willing to come forward to care for children.
The federal foster care program in Southern California has been able to become the legal guardian of children in its care, through the entity guardianship statute. This has provided a pathway for children in its care to apply for Special Immigrant Juvenile Status, a form of immigration relief for vulnerable children who have been victims of abuse and neglect by their parents. Achieving this legal status stabilizes the lives of these children and protects them from deportation. Unfortunately, the new federal foster care program is not able to be an entity guardian because, while it is licensed in California, it is part of a national non-profit which is incorporated out of state. Current law requires that entity guardianships be with an agency that is incorporated in California.
AB 2642 allows for a non-profit “entity” guardian not incorporated in California to be appointed the legal guardian of a child when that entity is contracted with ORR to provide care for the child and is also seeking Special Immigrant Juvenile findings for the child. This will have a tremendous impact on our clients by enabling these extremely vulnerable children –unaccompanied immigrant children who do not have family to be released to –to apply for Special Immigrant Juvenile Status and ultimately legal residency.
Support: American Civil Liberties Union of California; Central American Resource Center of Northern California; Immigrant Legal Resource Center; Legal Services for Children; Public Counsel’s Immigrants’ Rights Project
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: AB 2090 (Gonzalez Fletcher, 2018) would clarify that a parent may be appointed a guardian pursuant to Probate Code Section 1510.1 relating to guardianships of unaccompanied minors seeking necessary findings to pursue Special Immigrant Juvenile Status immigration relief. This bill is pending hearing in the Senate Committee on Judiciary.
Prior Legislation:
AB 1603 (Committee on Budget and Fiscal Review, Ch. 25, Stats. 2016) made statutory changes to clarify the intent of SB 873 (Committee on Budget and Fiscal Review, Ch. 685, Stats. 2014) and AB 900 (Levine, Ch. 694, Stats. 2015), relating to the Unaccompanied Undocumented Minors program, administered by the Department of Social Services, which provides legal services funding for unaccompanied undocumented minors. Specifically, these changes clarify that special immigrant juvenile status (SIJS) findings can be made at any point in the court proceedings; prerequisites for SIJS findings are the same across superior court divisions; and perceived motivations of the child/juvenile in seeking classification as a special immigrant juvenile shall not be included or referred in the findings under this section.
AB 900 (Levine, Ch. 694, Stats. 2015) authorized, with the consent of the proposed ward, a probate court to establish or extend a guardianship of the person for an unmarried individual, who is at least 18 years of age, but not yet 21, in connection with a petition to make necessary findings for the youth to pursue Special Immigrant Juvenile Status immigration relief.
SB 873 (Committee on Budget and Fiscal Review, Ch. 685, Stats. 2014) enacted Code of Civil Procedure Section to strengthen protections for immigrant children by making it clear that all California courts have jurisdiction to make SIJS findings.
Prior Vote:
Assembly Floor (Ayes 64, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************
ASSEMBLY THIRD READING
ATR Bill Id:AB 2642
Author:(Levine)
As Amended Ver:April 26, 2018
Majority vote
Committee | Votes | Ayes | Noes |
Judiciary | 10-0 | Mark Stone, Cunningham, Chau, Chiu, Gonzalez Fletcher, Holden, Kalra, Kiley, Maienschein, Reyes |
SUMMARY: Allows, until January 1, 2022, nonprofit corporations incorporated outside of California to be appointed as a guardian for a child in connection with a petition to make findings necessary for special immigrant juvenile status (SIJS) for the child. Specifically, this bill:
- Allows, until January 1, 2022, a nonprofit, charitable corporation not incorporated in California to be appointed as a guardian of a minor if all of the following are satisfied:
- The corporation's articles of incorporation specifically authorize it to accept appointments as a guardian;
- The corporation contracts with the federal Office of Refugee Resettlement to provide for care and custody of children;
- The petition for guardianship is filed in connection with a petition to make the findings necessary for SIJS;
- The corporation is licensed by the State of California to provide care for children.
- The corporation complies with all of the requirements that a corporation incorporated in California must comply with in order to be appointed as a guardian, other than the requirement to be incorporated in California.
- States detailed legislative findings and declarations regarding the need for immigrant children and youth, without an appropriate caregiver in the United States, to be able to obtain special court findings to qualify for SIJS and the need for more entity guardians appointed to make that happen.
EXISTING LAW:
- Allows a probate court to appoint a guardian of the person, the estate, or both for a child under 18, taking into consideration the best interests of the proposed ward. Allows the court, with the consent of the proposed ward, to appoint a guardian for an unmarried individual who is 18 years of age or older, but who has not yet attained 21 years of age, in connection with a petition to make necessary findings regarding SIJS, as specified. (Probate Code Sections (PROB) 1501 and 1501.1.)
- Allows a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if the corporation is incorporated in California; the articles of incorporation authorize the corporation to accept appointments as guardians or conservators; and the corporation has been providing care, counseling, or financial assistance to the proposed ward or conservatee under the supervision of a registered social worker. Requires the petition to include in the caption the name of a responsible corporate officer who shall act for the corporation and states how a replacement, if necessary, is to be established. (PROB Section 2104.)
- Under federal law, defines a "special immigrant juvenile" as a person under 21 who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to their country of nationality or last habitual residence is not in their best interest. Allows such person to obtain SIJS and, based on that, apply for a visa for lawful permanent residency. (8 United States Code. Sections 1101(a)(27)(J) and 1153(b)(4).)
- Provides that the superior court (including a juvenile, probate, or family court, department, or division of the superior court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act. Requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law if there is evidence to support those findings. (Code of Civil Procedure Section 155.)
FISCAL EFFECT: None
COMMENTS: This bill seeks to protect vulnerable, unaccompanied immigrant children by helping them move out of federal detention facilities and into more home-like settings, and qualify for a special immigration status that will allow them to remain in the United States legally. Federal law allows youth up to 21 years of age to qualify for SIJS and, thus, be eligible to remain lawfully in the United States. To qualify, a state court must first make certain findings regarding each child. This process works well for children who have family members who are willing to take care of them and seek the necessary findings in court.
However, many of the children in detention today have no family members willing and able to care for them, or to seek their release from detention, and get the necessary superior court findings that can serve as the basis for SIJS. Some of these children, particularly in Southern California, are fortunate enough to have a charitable corporation, incorporated in California, appointed to serve as their guardian, but there are apparently not enough of these charitable entities to help all the detained children in the State. This bill helps alleviate the problems created by the limited number of in-state corporate guardians by allowing, for a limited time, a charitable corporation, incorporated outside of California, but licensed in California, to be appointed as a guardian for these children under specified conditions.
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002768
Date of Hearing: May 1, 2018
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ABPCA Bill Id:AB 2642
Author:(Levine) – As Amended Ver:April 26, 2018
SUBJECT: GuardianshipS: special immigrant juvenile sTATUS
KEY ISSUE: IN AN EFFORT TO better assist AND CARE FOR vulnerable IMMIGRANT CHILDREN, HELP THEM AVOID unnecessary time in DETENTION, AND help them SEEK LEGAL STATUS, SHOULD the type of CHArITABLE CORPORATIOns that CAN BE APPOINTED AS GUARDIANS FOR THESE CHILDREN BE temporarily EXPANDED TO INCLUDE ENTITIES INCORPORATED OUTSIDE OF CALIFORNIA, provided they are properly licensed in this state?
SYNOPSIS
This bill seeks to protect vulnerable, unaccompanied immigrant children by helping them move out of federal detention facilities and into more home-like settings and qualify for a special immigration status that will allow them to remain in the United States legally. Federal law allows youth up to 21 years of age to qualify for special immigrant juvenile status (SIJS) and, thus, be eligible to remain lawfully in the United States. To qualify, a state court must first make certain findings regarding each child. This process works well for children who have a responsible family member or other adult who is willing to care for them and seek the necessary findings in court. However, many of the children in detention today have no family members willing and able to care for them, or to seek their release from detention, and get the necessary superior court findings that can serve as the basis for SIJS. Some of these children, particularly in Southern California, are fortunate enough to have a charitable corporation, incorporated in California, appointed to serve as their guardian, but there are apparently not enough of these charitable entities to help all of the detained children in the State. This bill helps alleviate the problems created by the limited number of in-state corporate guardians by allowing, for a limited time, a charitable corporation, incorporated outside of California, but licensed in California, to be appointed as a guardian for these children under specified conditions. This bill is supported by the American Civil Liberties Union, the Immigrant Legal Resource Center, and Legal Services for Children. It has no known opposition.
SUMMARY: Allows, until January 1, 2022, nonprofit corporations incorporated outside of California to be appointed as a guardian for a child in connection with a petition to make findings necessary for special immigrant juvenile status (SIJS) for the child. Specifically, this bill:
- Allows, until January 1, 2022, a nonprofit, charitable corporation not incorporated in California to be appointed as a guardian of a minor if all of the following are satisfied:
- The corporation’s articles of incorporation specifically authorize it to accept appointments as a guardian;
- The corporation contracts with the federal Office of Refugee Resettlement to provide for care and custody of children;
- The petition for guardianship is filed in connection with a petition to make the findings necessary for SIJS;
- The corporation is licensed by the State of California to provide care for children.
- The corporation complies with all of the requirements that a corporation incorporated in California must comply with in order to be appointed as a guardian, other than the requirement to be incorporated in California.
- States detailed legislative findings and declarations regarding the need for immigrant children and youth, without an appropriate caregiver in the United States, to be able to obtain special court findings to qualify for SIJS and the need for more entity guardians appointed to make that happen.
EXISTING LAW:
- Allows a probate court to appoint a guardian of the person, the estate, or both for a child under 18, taking into consideration the best interests of the proposed ward. Allows the court, with the consent of the proposed ward, to appoint a guardian for an unmarried individual who is 18 years of age or older, but who has not yet attained 21 years of age, in connection with a petition to make necessary findings regarding SIJS, as specified. (Probate Code Sections 1501 and 1501.1.)
- Allows a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if the corporation is incorporated in California; the articles of incorporation authorize the corporation to accept appointments as guardians or conservators; and the corporation has been providing care, counseling, or financial assistance to the proposed ward or conservatee under the supervision of a registered social worker. Requires the petition to include in the caption the name of a responsible corporate officer who shall act for the corporation and states how a replacement, if necessary, is to be established. (Probate Code Section 2104.)
- Under federal law, defines a "special immigrant juvenile" as a person under 21 who is declared a dependent by a juvenile court or committed to the custody of a state agency or a court-appointed individual, whose reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law, and whose return to their country of nationality or last habitual residence is not in their best interest. Allows such person to obtain SIJS and, based on that, apply for a visa for lawful permanent residency. (8 U.S.C. Sections 1101 (a)(27)(J) and 1153 (b)(4).)
- Provides that the superior court (including a juvenile, probate, or family court, department, or division of the superior court) has jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of the federal Immigration and Nationality Act. Requires the superior court to make an order containing the necessary findings regarding SIJS pursuant to federal law if there is evidence to support those findings. (Code of Civil Procedure Section 155.)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This bill seeks to protect vulnerable, unaccompanied immigrant children by helping them move out of federal detention facilities and into more home-like settings, and qualify for a special immigration status that will allow them to remain in the United States legally. Federal law allows youth up to 21 years of age to qualify for SIJS and, thus, be eligible to remain lawfully in the United States. To qualify, a state court must first make certain findings regarding each child. This process works well for children who have family members who are willing to take care of them and seek the necessary findings in court.
However, many of the children in detention today have no family members willing and able to care for them, or to seek their release from detention, and get the necessary superior court findings that can serve as the basis for SIJS. Some of these children, particularly in Southern California, are fortunate enough to have a charitable corporation, incorporated in California, appointed to serve as their guardian, but there are apparently not enough of these charitable entities to help all the detained children in the State. This bill helps alleviate the problems created by the limited number of in-state corporate guardians by allowing, for a limited time, a charitable corporation, incorporated outside of California, but licensed in California, to be appointed as a guardian for these children under specified conditions.
The author explains the need for the bill:
When detained immigrant children in federal custody cannot be released to an appropriate family member or other adult, they can be eligible for long-term foster care through the federal system (Office of Refugee Resettlement). There is an increased need for this program given the widespread fear in the immigrant community that is making it less likely for families to step forward to accept care of detained children.
Long-term foster care placements are often run by non-profit agencies, who enter into contracts with the Office of Refugee Resettlement (ORR). It is important for the agency to become the legal guardian of the child. This is both to provide clarity about who is responsible for care and custody of the child and also to ensure that the child has a court proceeding through which they can obtain an order that is needed for them to apply for Special Immigrant Juvenile Status. . . .
Due to increased need, more agencies will be needed to fill this role. The current statute requires that the non-profit that acts as entity guardian be “incorporated in this state.” That means that non-profit agencies that are incorporated in other states are ineligible. There are programs with a great deal of experience caring for unaccompanied immigrant children who currently run detention programs in California but cannot become guardians for children in long-term federal foster care because they are a national agency, incorporated in another state. This is despite the fact that these non-profit agencies are subject to licensing requirements in California.
Special Immigrant Juvenile Status. "Special Immigrant Juvenile Status" is a federal immigration classification that may help undocumented, vulnerable children and youth remain in the United States. Under the Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, any unmarried person under age 21 who has been abused, neglected, or abandoned by a parent may seek classification as a Special Immigrant Juvenile and then immediately apply for lawful permanent resident status. To be eligible for SIJS, a state juvenile court must first find that:
- The child is a dependent of a juvenile court or committed to the custody of a state agency or a court-appointed individual;
- Reunification with one or both of the child's parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law; and
- Return to the child's country of nationality or last habitual residence is not in the child's best interest. (8 U.S.C. Section 1101 (a)(27)(J).)
The first finding originally only applied to children under the direct jurisdiction of the juvenile court, thus limiting eligibility for SIJS. This was expanded in 2008 to include children with a court-appointed custodian, thus allowing the required findings to be made on behalf of children with guardianships established by a probate court and custodial arrangements established by a family court. The needed findings can be made today in any superior court in California, including a juvenile, probate, or family court. (Code of Civil Procedure Section 155.) This significantly expanded the number of immigrant children eligible for SIJS. Once a state court makes the requisite findings, the child may apply to the U.S. Citizenship and Immigration Services for SIJS. (8 U.S.C. Section 1153 (b)(4).)
Thus, a child in California today, who is under 18, can have the necessary findings made in a juvenile court as part of a dependency or delinquency proceeding, in family court as part of a custody proceeding or in probate court as part of a guardianship proceeding, since all those proceedings would satisfy the first required finding – the child is either declared a dependent by the juvenile court or is legally committed to, or placed under the custody of, a state agency or department, or an individual or entity appointed by the court. For youth over 18, but less than 21, AB 900 (Levine), Chap. 694, Stats. 2015, specifically addressed the issue of the "age gap" between California and federal law. Specifically, while federal law allows any youth up to age 21 to obtain SIJS, an otherwise qualified California youth between the ages of 18 and 21 not under the jurisdiction of the juvenile court could not obtain the necessary finding because California probate courts only have jurisdiction of persons up to the age of 18. AB 900 addressed this gap by authorizing a court to create a guardianship for a willing youth, between 18 and 21 years of age, for the limited purpose of obtaining the state court findings that will permit the youth to apply for SIJS status.
This bill further expands guardianship law in California in order to better protect vulnerable immigrant children and youth. According to the detailed legislative findings in the bill, undocumented children who enter the United States without a parent or guardian are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement (ORR). Most of these unaccompanied children are released to family members or other caretakers who can seek a guardianship for the child, but a significant number of these children have no adult to care for them and must remain in the custody of the federal ORR, whether in detention facilities or the federal foster care program administered by ORR. As the ORR notes, these children are at risk of significant abuse: "The age of these individuals, their separation from parents and relatives, and the hazardous journey they take make unaccompanied alien children especially vulnerable to human trafficking, exploitation and abuse." (ORR, About Unaccompanied Alien Children's Services (https://www.acf.hhs.gov/orr/programs/ucs/about).)
Having a guardian appointed for these children serves two very important functions. First, it allows immigrant children in federal detention to be released to live, ideally, in a family home, attend school, and be part of the community. Second, having a guardian appointed provides the entity and the forum necessary to seek the SIJS findings, which, in turn, should help protect the child from the further abuse of being deported back to the country that they fled. If no person is available to apply for guardianship, it is possible, pursuant to Probate Code Section 2104, to have a charitable corporation become the child’s guardian.
As the number of unaccompanied minors has grown, so has the need for charitable entities to assist these children. But under current law, California is limited to using only those entities incorporated in California, which, the author and supporters argue, unnecessarily limits those corporations that can assist immigrant children in California. They argue that there are national agencies with extensive experience in providing care for unaccompanied immigrant children, but they cannot petition for entity guardianship of children in California under current law because they are incorporated outside of California, denying children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation. Therefore, given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, this bill seeks to ensure there are sufficient guardians available to provide an avenue for these unaccompanied children to get the care and support they need by expanding the universe of available guardians.
To provide that avenue, this bill allows, for three years -- until January 1, 2022, a nonprofit, charitable corporation not incorporated in California to be appointed as a guardian of a minor if all of the following are satisfied:
- The corporation’s articles of incorporation specifically authorize it to accept appointment as a guardian;
- The corporation is contracted by the federal Office of Refugee Resettlement to provide care and the custody to the minor;
- The petition for guardianship is filed in connection with a petition to make necessary findings regarding special immigrant juvenile status;
- The corporation is licensed by the State of California to provide care for minors.
- The corporation complies with all of the requirements that a corporation that is incorporated in California must comply with in order to be appointed as a guardian, other than the requirement to be incorporated in California, including, in particular, that the corporation is providing care, counseling, or financial assistance to the child under the supervision of a registered social worker.
These requirements make sure that the charitable corporation, while not incorporated in California, is still closely tied to the state. It must be licensed in the state by the Department of Social Services' Children Residential Program, thus ensuring oversight of the child's placement. It also must be providing care to the child under the supervision of a registered social worker certified by the Board of Behavioral Science Examiners, thus further ensuring proper oversight within California.
This bill also, by its own terns, is very limited. It sunsets in three years – on January 1, 2022. Before that date, it can only be used in connection with a petition seeking the findings necessary for SIJS. And, the corporation must contract with the federal Office of Refugee Resettlement to provide necessary services. As part of those services, an entity contracting with the ORR must provide the "full range of assistance, care and services available to all foster children in the state." (ORR, About Unaccompanied Alien Children's Services (https://www.acf.hhs.gov/orr/programs/ucs/about).) By requiring that the charitable corporations contract with ORR and be licensed by the Department of Social Services, this bill ensures that the corporation is overseen not only by the probate court appointing the guardian, but also by state and federal officials charged with protecting the child. Thus, this bill is a narrowly tailored effort to provide needed support and protection to vulnerable immigrant children who have no one else to assist them.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union of California
Immigrant Legal Resource Center
Legal Services for Children
Opposition
None on file
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334
Discussed in Hearing
1MIN
Senate Floor
1MIN
Assembly Floor
6MIN
Assembly Standing Committee on Judiciary
Bill Author
Bill Co-Author(s):