BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 900 (Levine)
Version: June 24, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Juveniles: special immigrant juvenile status
DESCRIPTION
This bill would authorize a court to appoint a guardian, or
extend a guardianship, for an unmarried individual who is
between 18 and 21 years of age in connection with a petition to
make the necessary findings regarding special immigrant juvenile
status, as specified, with the consent of the proposed ward.
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 consistent
with accepted child welfare principles and international norms.
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
AB 900 (Levine)
Page 2 of ?
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, as determined
by state law, to return to the child's or his or her parent's
country of nationality.
Last year, in AB 873 (Budget and Fiscal Review, Ch. 685, Stats.
of 2014), the Legislature specifically provided that superior
courts can make the findings necessary for a child to be
eligible for SIJS. That new 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
AB 900 (Levine)
Page 3 of ?
dependency or delinquency proceeding, in family court as part of
a custody proceeding, or in probate court as part of a
guardianship proceeding. Nonminor dependents, or youths between
the ages of 18 and 21 under the jurisdiction of the dependency
court, may also qualify for SIJS status if a court makes the
appropriate findings. However, for youths over 18 who are not
dependents of the juvenile court, there is currently no state
court proceeding under which the requisite findings can be made.
This bill, seeking to ensure that the courts have the ability
to make the findings required for all eligible youths to qualify
for SIJS, would allow a court to extend or approve a
guardianship for a youth between 18 and 21 years of age.
CHANGES TO EXISTING LAW
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 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 allows a 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 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.)
This bill would authorize, with the consent of the proposed
ward, a probate court to establish or extend a guardianship of
AB 900 (Levine)
Page 4 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 regarding SIJS or complete the SIJS
application process, as specified.
This bill would allow the petition for guardianship, or to
extend a guardianship, to be filed by a relative, the proposed
ward, or any other person.
This bill would provide that a guardianship may not extend
beyond the ward reaching 21 years of age.
This bill would provide that nothing in the provisions above
abrogates any other rights that a ward who is 18 or older may
have as an adult under California law, including, but not
limited to, decisions regarding the ward's medical treatment,
education, or residence, without the ward's express consent.
This bill would require the court to terminate a guardianship
upon the petition of a ward who is 18 years of age or older.
This bill would define, for the purposes of the provisions
above, the terms "child," "minor," and "ward" to include an
unmarried individual who is younger than 21 years of age and
who, pursuant to this section, consents to the appointment of a
guardian or extension of a guardianship after he or she attains
18 years of age.
This bill would require the Judicial Council to adopt necessary
rules and forms by July 1, 2016.
COMMENT
1.Stated need for the bill
According to the author:
The purpose of this bill is two-fold. First, this bill will
provide immigrant youth a better opportunity to adjust to life
in California by allowing them to have an adult guardian
present in their lives. Second, this bill will increase access
to immigration relief through Special Immigrant Juvenile
Status (SIJS). Under federal immigration law, children who
AB 900 (Levine)
Page 5 of ?
cannot be reunified with one or both parents because of abuse,
neglect or abandonment and who are unmarried and under the age
of 21 may obtain immigration relief through SIJS.
2.Guardianship
A probate guardianship is a court proceeding in which a guardian
is appointed by the probate court to protect the person or
estate of a minor. Historically, guardianships were established
for the protection of orphans, and guardianship of the minor
person (care, custody, and control) was combined with
guardianship of the minor's estate. Guardianships today are most
often used to protect minors whose parents are still living and
are usually established by relatives or other caring adults to
provide stability and needed care for minors whose parents fail
to provide these essentials to them. A guardian of the person,
appointed to have custody over the ward, is responsible for
determining: where the ward lives; ensuring that the ward is
properly fed, clothed, and sheltered; and supervising the ward's
conduct, education, and medical care. (See Prob. Code Secs.
2351-2353.) Guardianships expire upon a ward's 18th birthday,
unless terminated earlier by a court order.
This bill would additionally authorize a court to establish or
extend a guardianship for immigrant youth, between 18 and 21
years of age, in connection with a petition for Special
Immigrant Juvenile Status (SJIS). Co-sponsor, Immigrant Legal
Resource Center describes the urgent need for this legislation,
"particularly in light of the recent influx of unaccompanied
children arriving to the United States, including 5,831 of whom
were released to family members or other adults in the state of
California in 2014 alone, this bill is crucial to protecting
vulnerable unaccompanied immigrant children in the state of
California." However, the California Association of Superior
Court Investigators (CASCI) has expressed concern regarding
whether a guardianship is appropriate for these youth. CASCI
writes:
The proposed law would allow the "child" or "minor" to retain
all of the rights an adult under California law. If the young
adult retains all the rights of adulthood, the person
appointed legal guardian would have no clear duties to perform
as outlined in the Duties of Guardian (please see Judicial
Council form GC-248), rendering a guardianship of the person
unnecessary. Further if AB 900 were to be enacted, CASCI is
AB 900 (Levine)
Page 6 of ?
concerned that there would be no guidelines or metrics that
Court Investigators could use to effectively monitor these
guardianships or determine whether the guardian is carrying
out his or her fiduciary duties since, as noted above, the
"ward" retains all rights of adulthood and the guardian
appears to lack clear duties or responsibilities.
Bet Tzedek, co-sponsor, responds: "We are particularly concerned
about the incredibly vulnerable population of undocumented,
unaccompanied youth in our state, who arrive to the United
States so close to the age of 18 that they are not able to
access the protections provided for children through state
systems, nor are they able to access the federal immigration
relief that was designed specifically for them, simply because
no courts can take jurisdiction over such youth past the age of
18. Accordingly, AB 900 provides protection and support that is
in line with current science on child development, in keeping
with California's established legal mechanisms for nonparental
care and custody, and in agreement with federal law, which
already recognizes that youth who have been abandoned, abused,
or neglected by a parent may need special protection up until
the age of 21." The co-sponsor further notes that even though a
youth would retain all the rights of an adult, guardianships
provide other benefits including allowing a ward to access
health insurance while still remaining independent for the
purposes of federal student financial aid, and ensuring that the
youth have an adult who can make specified medical and
educational decisions for wards.
3.Tradition of extending certain services/protections beyond age
of majority
Increasingly, government has come to recognize that 18 is not an
appropriate age to end all services for youth. For example, the
Affordable Care Act requires health insurance plans that offer
dependent coverage to make that coverage available until the
adult child reaches the age of 26. In October 2008, the federal
government enacted the Fostering Connections to Success and
Increasing Adoptions Act (Public Law 110-351) which offers
states funding if they choose to provide foster care to 18 to
21-year-old youth. Subsequently, AB 12 (Beall and Bass, Ch.
559, Stats. of 2010), the California Fostering Connections to
Success Act, authorized this state's juvenile courts to exercise
jurisdiction over and extend foster care benefits to nonminor
dependents between the ages of 18 to 21 if they meet specified
AB 900 (Levine)
Page 7 of ?
criteria.
AB 12's extended foster care provides a workable example for how
adult wards may maintain the rights of an adult, but still
benefit from a protective relationship. Accordingly, this
bill's language is modeled after Welfare & Institutions Code
Section 303(d), which provides that nonminor dependents retain
all of their legal decision-making authority as adults even if
they have elected to receive extended foster care assistance.
4.Protecting wards from abuse
This bill would provide that any person on behalf of the ward,
or the ward, may file a petition to establish or extend a
guardianship under this bill. The population that this bill
seeks to protect is particularly vulnerable, as described by the
California Immigrant Policy Center who writes in support that
"many unaccompanied minors arriving to the United States have
experienced high levels of trauma. In fact, a 2013 UNHCR survey
of unaccompanied children from Mexico, El Salvador, Honduras,
and Guatemala, found that 58 percent were forcibly displaced
because of harm they suffered or would face and which would
indicate a need for international protection."
The California Association of Superior Court Investigators,
expressing concern that some bad actors may volunteer to
establish a guardianship with the intent to exploit a youth
assert that "court investigators see first-hand the conditions
that many of these children and young adults live in, and we are
very concerned about the unintended possible effects of their
being subjected to sex and/or labor trafficking, physical and
sexual abuse, domestic violence and extortion. Through our
investigations we have found instances of proposed guardians
being suspected and/or having been found guilty of many of the
abuses that happened in the country of origin complained of in
the petitions."
The author responds, "AB 900 contemplates that courts will look
to the same standard for appointment of a guardian that they
employ for minor wards: in uncontested cases when it is
'necessary or convenient,' and guided by the 'best interests' of
the ward; in contested cases, the petitioner has the additional
burden of proving that parental custody would be detrimental.
Given that AB 900 guardians will play a very similar role to a
guardian of a minor, courts can rely on their decades of
AB 900 (Levine)
Page 8 of ?
experience in determining whether a guardian is suitable, and
intuiting whether there are any indicators that something is
awry in the situation. Further, the court can also rely on its
ability to order a guardianship investigation to inquire into
the suitableness of the proposed guardian and make
recommendations to the court about whether guardianship would be
appropriate. Pursuant to section 1513, unless waived by the
court, 'a court investigator shall make an investigation and
file with the court a report and recommendation concerning each
proposed guardianship of the person.' There is no reason that
the determination about whether a guardian is appropriate should
become more difficult the day the child turns 18."
Staff further notes that this bill would only authorize a court
to establish a guardianship with the ward's consent, and that
the court would not be required to approve a petition if the
guardianship was inappropriate. In support, Asian Americans
Advancing Justice writes, "this bill will align state law with
federal law by providing our probate courts with jurisdiction
over youth also petitioning for SIJS findings up until the age
of 21. Not only will extending jurisdiction allow these
children to apply for legal status, it will also help meet the
ultimate goals of SIJS, which are not merely to enable
vulnerable children to remain here legally, but to stabilize
their legal immigration situation so that they can overcome the
abuse, abandonment, or neglect they have suffered through the
support of the state court and a legal guardian."
Support : Asian Americans Advancing Justice - Asian Law Caucus;
Asian Pacific Islander Legal Outreach; Association of Pro Bono
Counsel; Bay Area Industrial Areas Foundation; California
Immigrant Policy Center; California Rural Legal Assistance
Foundation; Catholic Charities of the East Bay; Catholic Legal
Immigration Network
Canal Alliance; Central American Resource Center; Centro Legal
de la Raza
Dolores Street Community Services; Immigrant Rights Clinic;
University of California, Irvine School of Law; Immigration
Center for Women and Children; Larkin Street Legal Services;
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area; Legal Advocates for Children and Youth; Legal Aid Society
of San Mateo County; Legal Services for Children; Legal Services
for Prisoners with Children; Los Angeles Center for Law and
Justice; Loyola Immigrant Justice Clinic, Loyola Law School;
AB 900 (Levine)
Page 9 of ?
National Center for Youth Law; Pangea Legal Services; Public
Counsel's Children's Rights Project; San Diego Volunteer Lawyer
Program; San Francisco International High School; Social Justice
Collaborative; Youth Law Center
Opposition : None Known
HISTORY
Source : Bet Tzedek; Immigrant Legal Resource Center
Related Pending Legislation : None Known
Prior Legislation : AB 873 (Budget and Fiscal Review, Chapter
685, Statutes of 2014) See Background.
Prior Vote :
Assembly Floor (Ayes 56, Noes 23)
Assembly Appropriations Committee (Ayes 12, Noes 4)
Assembly Judiciary Committee (Ayes 7, Noes 3)
**************