BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: SB 1064
S
AUTHOR: De Leon
B
VERSION: March 19, 2012
HEARING DATE: March 27, 2012
1
FISCAL: Judiciary
0
6
CONSULTANT:
4
Brown
SUBJECT
Child custody: immigration
SUMMARY
Prohibits a family member's immigration status from being
considered when deciding where to place children whose
parents have been detained or deported by the U.S.
government, and authorizes the use of specified
identification documents from a country of origin for
conducting background checks on those perspective
guardians. Makes other substantive and non-substantive
changes.
ABSTRACT
Current law
1) Establishes in California's Family Code a process
for deciding how to award custody of minor children.
2) Establishes in the California Probate Code a
Continued---
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process for seeking custody of a minor and a process
for the court to appoint a guardian under specified
circumstances.
3) Establishes a process in Welfare and Institutions
code for a social worker to investigate the facts and
circumstances upon which a child is placed in
temporary custody of the child welfare system.
4) Directs a social worker to immediately release a
child who is placed in the temporary custody of the
county to his or her parent, guardian or a responsible
relative unless specified conditions exist that
require the continued detention of the child in the
child welfare system.
5) Establishes a process for social workers to conduct
a criminal records check and fingerprint clearance
check when considering an able and willing relative
for the temporary placement or foster care placement
of a child in the custody of the child welfare system.
6) Requires in cases where children are the subject of
family law jurisdiction, and are placed in foster
care, that they be under the supervision of a child
welfare social worker who may place the child in one
of a specified list of foster home options, including
in the home of a noncustodial parent or approved home
of a relative.
7) Requires that when a child is removed from physical
custody of his or her parents and determined to be a
dependent of the court that preferential consideration
for foster care placement be given to a request by a
relative of the child's.
8) Establishes a reunification process and time frame
for the court to determine whether a child may be
returned to the custody of their parents. This process
includes a requirement for the child's parent or
parents to participate in services to prepare them for
safe reunification.
9) In determining whether court-ordered services may
be extended for an additional period of time,
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establishes that the court shall consider the special
circumstances of incarcerated or institutionalized
parents, or parents who have been court-ordered to a
residential substance abuse treatment program
including whether parents have had access to required
reunification services and have been able to maintain
contact with their child.
10) Provides that a parent must participate in
court-ordered counseling and other treatment services
as a condition of reunification, unless the parent's
participation is deemed inappropriate, or the parent
is incarcerated and required services are not
available.
11) Requires that the court consider an incarcerated or
institutionalized parent's barrier to services, degree
of parent-child bonding, nature of the crime or
illness, and that parent's likelihood of discharge
within the reunification time frame, among other
factors, in determining reunification services for
that parent.
12) Establishes a process and time frame under which a
dependency court should consider terminating the
reunification process.
13) Establishes that a parent whose whereabouts was not
immediately known upon the entry of a child into the
custody of the dependency court may receive
reunification services if the parents whereabouts
become known within six months of the out-of-home
placement of the child.
14) Establishes a series of services and activities for
reunification that may be required of parents who are
incarcerated or institutionalized.
15) Permits the court to determine that the failure of
the parent to participate regularly in reunification
services or to make substantive progress in
court-ordered treatment is prima facie evidence that
reunification would be detrimental to the child. In
making this decision, the court is required to take
into account the particular barriers of an
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incarcerated or institutionalized parent in accessing
mandated services and maintaining contact with their
child.
16) Establishes a process and time frame for hearings
in which a dependency court must decide whether to
return a child to his or her parents, or terminate
reunification services. Among those required court
events is the permanency hearing at 12 months, at
which time the court shall determine the permanent
plan for the child, including whether the child will
be returned home.
17) Permits the court to continue a permanency review
hearing in six-month increments for up to 24 months
under specified circumstances, including the progress
of a parent in reunification services who was recently
discharged from incarceration or institutionalization.
This bill
1) Establishes that immigration status shall not
disqualify a parent, legal guardian or relative from
receiving custody of a child under the Family Code.
2) Establishes in the Probate Code that a relative may
petition for status of a minor regardless of their
immigration status, and that a relative's immigration
status alone shall not constitute unsuitability for
nomination as a guardian in specified circumstances.
3) Directs that if a social worker, upon investigation
of the circumstances of a child being taken into
temporary custody, decides that it is appropriate to
release the child to his or her parent, guardian or a
responsible relative, that the release shall happen
regardless of the adult's immigration status.
4) Provides that a relative's identification card from
a foreign consulate or a foreign passport shall be
considered valid forms of identification for the
purposes of conducting criminal record and fingerprint
clearance checks when a social worker is deciding
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whether to place a child in the temporary custody of a
relative or into the home of a relative as a foster
care placement.
5) Specifies that when a social worker is placing a
child in a foster care setting, the home of a
noncustodial parent or approved home of a relative may
be considered regardless of the parent or relative's
immigration status.
6) Specifies that when a relative has requested
placement of a child who is removed from parental
custody, that preferential consideration be given to
that family member regardless of that relative's
immigration status.
7) Specifies that a relative caregiver shall be given
information regarding the permanency options of
guardianship and adoption regardless of their
immigration status.
8) Adds to the list of circumstances that a court must
consider when determining whether to increase the time
allowed and services provided for reunification
whether a parent has been arrested and issued an
immigration hold, detained by the United States
Department of Homeland Security or deported to his or
her country of origin.
9) Establishes that a parent who is required to
participate in court-ordered counseling or other
treatment services as a condition of reunification may
be exempted from that requirement if the parent is
detained by the U.S. Department of Homeland Security
or has been deported to his or her country of origin
and services ordered by the court are not accessible
in that country.
10) Adds detention by the Department of Homeland
Security and deportation to a parent's country of
origin to the list of circumstances that must be
considered by the dependency court in determining
appropriate reunification services for a child.
11) Directs the court to provide reasonable efforts to
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assist parents who have been deported to contact child
welfare authorities in their country of origin,
identify any available services that would
substantially comply with case plan requirements,
document parents' participation in those services and
to accept reports from local child welfare authorities
as to the parents living situation, progress and
participation in services.
12) Adds a parent's detention to the list of
circumstances eligible for alternative family
reunification services.
13) Adds a parent's detention or deportation to the
list of circumstances that a court must consider in
determining whether the failure of the parent to
participate in services is prima facie evidence that
reunification would be detrimental to the child.
14) Permits the court to continue a child's permanency
review hearing for up to six months if the parent has
been arrested and issued an immigration hold, detained
by the U.S. Department of Homeland Security or
deported and the court determines that either the
parent has made reasonable efforts to regain custody
of the child or that termination of parental rights
would be detrimental to the child.
15) Requires the court to consider the parent's
detention or deportation as barriers to the parent's
ability to participate in reunification when
determining a child's permanent plan.
16) Adds to the list of circumstances under which a
dependency court may extend a child's permanency
hearing that a parent is making progress in
reunification services after being recently discharged
from the custody of the U.S. Department of Homeland
Security or recently returned to the United States
following deportation to his or her country of origin.
17) Directs the California Department of Social
Services (CDSS) to provide guidelines for counties and
municipalities no later than July 1, 2013, detailing
procedures for social workers to assist eligible
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children in applying for special immigrant juvenile
status, and any other form of relief available under
any immigration law before children reach age 21 or
get married.
FISCAL IMPACT
This bill has not yet been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Author's statement
SB 1064 is an author-sponsored bill. The author states this
bill is intended to eliminate barriers to reunification
with their children for parents who have been detained or
deported by the U.S. Department of Homeland Security by
creating uniformity across state and county child welfare
policies. Despite efforts by child welfare case workers to
prioritize family reunification when it is in the best
interest of the child, many parents who are arrested and
detained or deported are unable to access the required
services to be able to reunify with their children.
"The Reuniting Immigrant Families Act is a comprehensive
attempt to provide a uniform approach in dealing with
immigrant child welfare cases. ? This bill seeks to ensure
that parents / guardians have reasonable opportunities to
regain custody of their children in several ways."
The author also states that in cases where family
reunification is not possible, the bill seeks to ensure
that children can be placed with their relatives,
regardless of immigration status. ? "Relatives can provide
stable and nurturing environments, and can help ease trauma
of family separation," the author states.
Child Welfare System
Approximately 70,000 children are in the custody of
California's child welfare system because of abuse, neglect
- including abandonment - or at-risk living situations.
This figure includes those living in foster homes, group
homes and with relatives. In California, the law requires
that courts first consider whether a child is appropriate
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for family reunification services, defined as
"? activities designed to provide time-limited foster
care services to prevent or remedy neglect, abuse, or
exploitation, when the child cannot safely remain at
home, and needs temporary foster care, while services
are provided to reunite the family." WIC
16501(3)(f).
Typically, the family reunification case plan requires
parents or guardians to participate in therapy,
rehabilitation and other services with the goal of
regaining custody of the child. State law requires
adherence to a strict timeline in which to provide
services, evaluate whether reunification is in the best
interest of the child and create a permanent plan for the
child.
In cases involving parents who are incarcerated or
institutionalized, the law recognizes that there may be
barriers to receiving services and to establishing
visitation schedules between parents and children, and
provides an opportunity for the courts to extend this
timeline if it appears reunification is likely and would be
appropriate. It also provides an opportunity for dependency
courts to exempt parents from reunification services if
they are incarcerated or institutionalized and those
services are not available.
"Shattered Families" report
A November 2011 report prepared and released by the Applied
Research Center estimated that 5,100 children nationwide
whose parents were either detained or deported are living
in foster care. The center's report, "Shattered Families:
The Perilous Intersection of Immigration Enforcement and
the Child Welfare System," predicted that number of
children in foster care with deported or detained parents
could grow by another 15,000 in the next five years. The
center's projections are based on a calculation that
approximately 1.25 percent of all children in foster care
have parents who have been detained or deported. Using that
rate, the number of California children currently in the
system with detained or deported parents would be
approximately 875.
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The report argues that while priorities established in
child welfare policies and immigration policies underscore
the need to reunite families, current practices present
barriers to that goal.
"Immigration policies and laws are based on the
assumption that families will, and should, be united
whether or not parents are deported. Similarly, child
welfare policy aims to reunify families whenever
possible. In practice, however, when mothers and
fathers are detained and deported and their children
are relegated to foster care, family separation can
last for extended periods. Too often, these children
lose the opportunity to ever see their parents again
when a juvenile dependency court terminates parental
rights." (Shattered Families, executive summary, p. 3)
Current Practices
Some California counties already are taking efforts to
remove barriers to reunification for these families. Los
Angeles, San Francisco and several other counties have
memorandums of understanding with their local Mexican
consulates that define responsibilities for each entity and
ensure confidentiality of information exchanged.
In San Francisco County, for example, the county agrees
when possible to obtain a certified copy of the U.S. birth
certificate in order to prove a minor's citizenship and
provides that the consulate may assist the county whenever
possible in obtaining corresponding Mexican birth
certificates. The MOU requires county social workers to
provide verbal updates on the progress of the child's case
when requested by the consulate and requires the county to
consent for the minor to be interviewed by the consulate.
The consulate is required to be available to social workers
during business and after hours, assist with searches in
Mexico for parents or relatives, when needed and facility
the repatriation of Mexican minors when there are no
protective issues involving the child's placement in the
custody of the county's child welfare agency. The MOU also
describes the roles of both agencies in ensuring a parent's
appearance in dependency court, in finalizing adoptions and
in proceeding when a parent has abducted their child and
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fled to Mexico.
Los Angeles County formalized its practice of placing
children with undocumented relatives in policy guidelines
stretching back several decades. "Immigration status of a
relative caregiver should not hinder the placement of a
relative child in the home as long as (licensing standards)
are met," according to a 2008 memo. Los Angeles County also
was one of the initial counties to use foreign consulate
identification cards from the Consulate of Mexico to
satisfy the need to present identification to a live scan
technician. The identification cards may be obtained from
the consulate by an undocumented U.S. resident once a
criminal background check in Mexico is cleared. The cards
then may be used to access the live scan background check
used by California child welfare agencies to clear
prospective foster parents. Los Angeles County subsequently
set up similar arrangements with the consulates of the
Argentine Republic and Korea.
Other jurisdictions
Illinois has a statewide MOU in place with its Mexican
consulate in Chicago and requires child welfare caseworkers
to distribute a pamphlet entitled "Guide for Parents who
are Mexican Nationals," to all Hispanic subjects of
reports. The MOU requires the Illinois Department of
Children and Family Services to notify the consulate in
writing within 10 working days of a decision to take
protective custody of a Mexican or Mexican American minor
whenever a child in the department's custody is identified
as having Mexican ancestry, a parent requests the consulate
be notified, or the state learns that a non-custodial
parent lives in Mexico. Illinois' MOU does not require the
consulate to assist
with parental reunification services or court appearances,
although it does require the state to establish an
emergency care plan for children in the event that their
caregiver is detained due to his or her undocumented legal
status.
Related Legislation
AB 2070 (Bass) Chapter 482, Statutes of 2008, required
dependency courts to consider a parent's incarcerated or
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institutionalized status, including their access to
services and ability to bond with their children, in
deciding whether a parent had satisfactorily participated
in reunification services. It also allowed the court to
grant an extension in cases where that extension would be
in the best interest of the child.
Arguments in support
The Coalition for Human Immigrant Rights of Los Angeles
writes that children whose parents are detained or deported
by immigration officials face economic hardship and
emotional trauma.
"Besides losing his/her parents, these children may
also lose the opportunity to stay close to their
love(d) ones that reside in the U.S. because after the
detention or deportation of their parents they are
placed into foster care. Unfortunately many of them
will never have a realistic opportunity to be
reunified with their parents and /or close relatives
because parents in immigration detainment are
frequently unable to access services ? (and) immigrant
relatives that may be willing to take custody of a
child when a parent is in this situation are turned
down by the child welfare system because of their
immigration status. This bill is an important step in
the right direction to ensure that families stay
together and that children get to grow up in loving
and stable homes."
POSITIONS
Support: American Civil Liberties Union
American Federation of State, County and
Municipal Employees
Asian Law Alliance
ASISTA Immigration Assistance
California Catholic Conference, Inc.
California Rural Legal Assistance Foundation
(CRLSF)\
California Partnership
Californians United for a Responsible Budget
Clergy and Laity United for Economic Justice, Los
Angeles
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Coalition for Humane Immigrant Rights of Los
Angeles
Congregation of the Sisters of the Holy Cross
Franciscan Action Network
Legal Services for Prisoners with Children
MomsRising.org
Mujeres Unidas y Activas
National Association of Social Workers,
California Chapter
9to5, National Association of Working Women
Public Counsel Law Center
Safe Passages
Services, immigrant Rights and Education Network
(SIREN)
9to5 National Association of Working Women
2 Individuals
Oppose:None received
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