BILL ANALYSIS Ó AB 900 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON JUDICIARY Mark Stone, Chair AB 900 Levine - As Amended April 23, 2015 SUBJECT: EXTENDED GUARDIANSHIPS: special immigrant juvenile status KEY ISSUE: IN ORDER TO BETTER PROTECT VULNERABLE IMMIGRANT YOUTH, SHOULD CALIFORNIA LAW ALIGN WITH FEDERAL LAW AND ALLOW A GUARDIANSHIP TO LAST UNTIL Age 21 For THOSE YOUTH WHO MAY BE ELIGIBLE FOR SPECIAL IMMIGRANT JUVENILE STATUS? SYNOPSIS This bill, sponsored by Bet Tzedek and the Immigrant Legal Resource Center, is designed to better align state and federal law in order to protect vulnerable, unaccompanied immigrant youth up to 21 years old. Federal law allows youth up to 21 years of age to qualify for special immigrant juvenile status and, thus, be eligible to remain in the United States lawfully. To qualify, a state juvenile court must make certain initial findings. However, California law today only has a process to make those findings for youth up to 18 years of age, unless the youth is a nonminor dependent in the foster care system. This bill creates that missing process, and allows for custodial assistance from a caring adult, for youth 18 to 21 by allowing for the establishment and extension of guardianships until 21 AB 900 Page 2 for immigrant youth seeking Special Immigrant Juvenile Status. Given that these 18 and over youth are legally adults, this bill rightly ensures that they have the legal decisionmaking authority of adults, similar to the authority that nonminor dependents in the juvenile court have. The author believes that this bill is necessary not only to allow these youth to apply for legal status, "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 legal guardian." This bill is supported by numerous children's advocates and immigrant rights organizations. It has no known opposition. SUMMARY: Allows for guardianships for youth from ages 18 until 21 who may qualify for federal Special Immigrant Juvenile Status (SIJS). Specifically, this bill: 1)Allows, with the consent of the proposed ward, a probate court to establish 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 regarding SIJS, as specified. Allows the petition for guardianship to be filed by a relative, the proposed ward or any other person. 2)Allows, with the consent, or at the request, of the ward, a court to extend a guardianship of the person beyond 18 years of age in order to allow the ward to complete the application process with U.S. Citizenship and Immigration Services for classification as a special immigrant juvenile, as specified. Provides that the petition for guardianship may be filed by a relative, the ward or any other person. Prevents the guardianship from extending beyond the ward reaching 21 years of age. AB 900 Page 3 3)Provides that nothing in #s 1) or 2), above, abrogates any other rights a ward who is 18 or older may have as an adult under California law. Notwithstanding statutes allowing a guardian to fix the residence of a ward or consent to medical treatment on behalf of a ward, provides that a ward who is 18 years or older retains all legal decisionmaking authority as an adult. 4)Provides that a court may terminate the guardianship of a ward who is 18 or older if the ward requests termination. 5)Requires Judicial Council to adopt necessary rules and forms by July 1, 2016. 6)States the legislation findings that, among other things: a) SIJS offers interim relief from deportation for children under 21, where a state juvenile court has made specified findings, including that reunification with one or both parents is not viable due to abuse, neglect, or abandonment, and a finding that it is not in the child's best interest to be returned to his or her country of origin. b) Federal law allows a person under 21 to seek relief from deportation as a special immigrant juvenile, but youth 18-21 in California have largely been unable to obtain the necessary state court findings because probate courts cannot take jurisdiction, for purposes of establishing a guardianship, of youth over 18, even though unaccompanied immigrant youth between 18 and 21 face identical circumstances to those faced by their younger counterparts. AB 900 Page 4 c) It is necessary to allow unaccompanied immigrant youth, many of whom have experienced parental abuse, neglect or abandonment, the opportunity to have a custodial relationship with a responsible adult as they adjust to a new cultural context, language and education system, and recover from the trauma of abuse, neglect and abandonment, in order to promote permanency and long-term well-being of these youth. d) Guardianship of the person may be necessary and convenient for these youth, although any such youth appointed a guardian still retains the rights of an adult under California law. EXISTING LAW: 1)Allows a the court to appoint a guardian of the person, the estate, or both for a child under 18, taking into consideration the best interest of the proposed ward. (Probate Code Section 1501 et seq.) 2)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 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. 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), 1153(b)(4).) 3)Provides that the superior court, including a juvenile, probate, or family court department or division of the superior court, has jurisdiction to make judicial AB 900 Page 5 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 fiscal. COMMENTS: This bill is designed to better align state and federal law in order to protect vulnerable, unaccompanied immigrant youth ages 18-21. 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 juvenile court must first make certain findings. However, California law today only has a process to make those findings for youth up to 18 years of age, unless the youth is a nonminor dependent in the foster care system. This bill creates that missing process, and allows for custodial assistance from a caring adult, for youth 18 to 21 by allowing for the establishment and extension of guardianships until 21 for immigrant youth seeking SIJS. In support, the author writes: 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 legal guardian. Special Immigrant Juvenile Status. "Special Immigrant Juvenile AB 900 Page 6 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: 1. The child is a dependent of a juvenile court or committed to the custody of a state agency or a court-appointed individual; 2. 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 3. Return to the child's country of nationality or last habitual residence is not in his or her 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. 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).) AB 900 Page 7 Last Year's Legislation Allowed California Courts to Make the Necessary Findings, Although Not All Youth Covered by the Federal Law Are Covered by State Statute. Last year, in AB 873 (Budget and Fiscal Review), Chap. 685, Stats. 2014, the Legislature specifically provided that superior courts can make the findings necessary for a child to be eligible for SIJS. In particular, 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 of Civil Procedure Section 155.) 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 youths over 18, but still eligible for federal SIJS because they are under 21, a juvenile court in a dependency proceeding has jurisdiction over nonminor dependents and could, for those youth, make the requisite findings necessary to secure legal immigration status until 21. This expansion of dependency support and oversight for nonminor youth dates back only a few years when, pursuant to federal legislation providing for foster care financial assistance up to age 21, California established the California Fostering Connections to Success Act of 2010 which, among other provisions, extended transitional foster care to eligible youth up to age 21 as a voluntary program for youth who meet specified work and education participation criteria. (AB 12 (Beall), Chap. 559, Stats. 2010.) AB 900 Page 8 However, for youths over 18 who are not dependents of the juvenile court, there is currently no state court proceeding under which the requisite state court findings can be made. As a result, there is a gap between who the federal government will assist under SIJS - youth under 21 who meet the necessary findings - and those who can get the necessary findings in California - all youth under 18, but only those over 18 who are nonminor dependents of the juvenile court. This gap significantly limits the options for those otherwise eligible immigrant youth in California who, because of state law limitations alone, cannot qualify for SIJS. This Bill Extends Guardianship Proceedings Until 21 for Youth in Need of the Special Immigrant Juvenile Status Finding. This bill seeks to close that gap by allowing probate courts to establish guardianships for youth who are at least 18, but less than 21, and to extend existing guardianships up to 21, if done in connection with a petition to make the necessary SIJS findings. Thus, this bill fills the gap and allows for the necessary state court finding to help these youth become legal residents of California. However, this bill does much more for this very vulnerable population. As the bill's legislative findings make clear, these guardianships connect immigrant youth who have been abused, neglected or abandoned with a caring adult "as they adjust to a new cultural context, language, and education system, and recover from the trauma of abuse, neglect or abandonment. These custodial arrangements promote permanency and the long-term well being of immigrant children present in the United States who have experienced abuse, neglect, or abandonment." California is not alone in extending guardianships to 21. New York and Maryland are among the states that offer extended guardianships until 21 years of age. Bill Makes Clear That These 18-21 Year Old Youth Retain Their AB 900 Page 9 Legal Rights as Adults Under California Law. All of the regular guardianship rules and statutes apply to these new over 18 guardianships, with several key exceptions, all recognizing that the youth subject to them are now adults, with distinct legal rights. Like guardianships for children, guardianships for those over 18 begin with notice to specified relatives and, unless waived by the court, an investigation of the proposed guardianship by a court investigator, probation officer, or domestic relations investigator, along with recommendations of the appropriateness of the guardianship. The court may appoint a guardian if it appears to the court to be "necessary or convenient," the same standard that applies to those under 18. (Probate Code Section 1514.) However, because youth 18 and older are legally adults, this bill rightly proposes to treat nonminor wards different than minor wards. First, the guardianship can only be established for a youth 18 or over, or extended for a youth who has reached 18, with the youth's consent. No non-minor will be forced into a guardianship, just like no nonminor can be forced to remain in dependency after age 18. Second, the court may terminate a guardianship if a ward 18 and over requests termination. This ensures that the nonminor ward remains in a guardianship only if he or she so desires. Finally, this bill specifically states that wards 18 and over retain their legal rights as adults under California law. The language in the bill is modeled after Welfare & Institutions Code Section 303(d), which provides that nonminor dependents retain all of their legal decisionmaking authority as adults even if they have elected to receive extended foster care assistance. In particular, the bill rightly specifies that these nonminor wards are entitled to make their own legal decisions notwithstanding statutory authority for guardians to establish their wards' residences and consent to medical treatment for them. Again, these provisions are analogous to how the law today treats nonminor dependents. AB 900 Page 10 ARGUMENTS IN SUPPORT: This bill is supported by a wide range of children's and immigrant rights advocates. They write: Particularly in light of the recent influx of unaccompanied children arriving in the United States, including 5,831 of whom were released to family members or other adults in the state of California in Fiscal Year 2014 alone, this bill is crucial to protecting vulnerable unaccompanied immigrant children in the state of California. Further, it will facilitate their successful integration into and ultimate contribution to our larger community in cases where such youth are eligible for legal status through Special Immigrant Juvenile Status. This bill will ultimately lead to safety and stability for immigrant children in California, principles that are highly valued by our state. REGISTERED SUPPORT / OPPOSITION: Support Bet Tzedek (co-sponsor) Immigrant Legal Resource Center (co-sponsor) Asian Americans Advancing Justice - Asian Law Caucus Asian Pacific Islander Legal Outreach AB 900 Page 11 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 AB 900 Page 12 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 Pangea Legal Services Public Counsel's Children's Rights Project San Diego Volunteer Lawyer Program San Francisco International High School Social Justice Collaborative AB 900 Page 13 Youth Law Center Opposition None on file Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334