BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1064 (De Leon)
As Amended April 16, 2012
Hearing Date: April 24, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Child Custody: Immigration
DESCRIPTION
This bill would authorize the dependency court to extend the
review hearing periods for reunification following consideration
of a parent's ability to comply with court ordered services
where a child has been removed from the custody of a parent and
the 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. This bill would
prohibit a family member's immigration status from being
considered when deciding where to temporarily or permanently
place minor dependent children. Additionally, this bill would
allow for the use of foreign or consulate identification cards
and passports in criminal background checks and live scan
fingerprinting by social workers when determining the fitness of
a relative's home for the placement of a child. This bill would
require the California Department of Social Services (CDSS) to
provide guidance to counties in establishing memoranda of
understanding with foreign consulates in child custody cases.
Finally, this bill would require, by July 1, 2013, CDSS to
provide guidance to California county child welfare services on
how to identify and aid children eligible for Special Immigrant
Juvenile Status and other forms of relief available under
immigration law.
BACKGROUND
Immigration laws are largely based on the policy that families
should be united, whether or not parents are deported. Child
(more)
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welfare policies also strive for family reunification where
possible. In practice, however, it is often the case that these
policies are not achieved. When parents are detained or
deported by the U.S. government, and the children become
dependents of the court, reunification often does not happen
within the time frame required by law. After reunification has
failed, courts begin terminating the rights of the parent.
According to a 2011 report by the Applied Research Center, in
the first six months of 2011, the federal government deported
more than 46,000 parents of U.S. citizen children. (Applied
Research Center, Shattered Families: The Perilous Intersection
of Immigration Enforcement and the Child Welfare System,
http://arc.org/ shatteredfamilies.) If these children are not
taken in by relatives, they will enter into the foster system.
Where reunification is not possible, child welfare policy
prioritizes placing children with relatives, if the placement is
safe and stable. This priority is not always realized, because
in practice it can be unclear to courts and social workers
whether placement with an undocumented relative is safe or
stable.
Some California counties have taken efforts to eliminate these
barriers to reunification for families with detained or deported
parents. These counties make placing children with relatives,
regardless of immigration status, a priority and open lines of
communication with the detained or deported parent's country of
origin. For example, Los Angeles and San Francisco have
established memoranda of understanding (MOU) with the local
Mexican consulates. These MOUs define the responsibilities for
each entity and protect the confidentiality of information
exchanged.
SB 1064 seeks to create uniform state-wide policy and practice
that would eliminate family reunification barriers in the child
welfare system for immigrant families. This bill would grant an
extension in the family reunification period where parents are
detained or deported. Where reunification is not immediately
available, this bill seeks to ensure that children can be placed
with relatives, regardless of immigration status.
CHANGES TO EXISTING LAW
1.Existing law establishes an order of preference to be used in
conjunction with the best interests of the child when
determining custody of a child. Preference is first for one
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or both of the parents, then to the person in whose home the
child has been living in a wholesome and stable environment,
then to any other person deemed by the court to be suitable.
(Fam. Code. Sec. 3040.)
This bill would add that a relative's immigration status shall
not disqualify the relative from receiving custody of a child.
2.Existing law provides that a relative may file guardianship
and that, in appointing a guardian, the court shall be guided
by what appears to be in the best interest of the child,
including the child's preference. (Prob. Code Sec. 1510(a),
(c), and (e).)
This bill would allow a relative to file for guardianship of a
minor dependent regardless of immigration status, and would
provide that immigration status alone shall not constitute
unsuitability.
3.Existing law requires a social worker to attempt to maintain
the child with the child's family. Absent specified
circumstances, the social worker shall immediately release the
custody of the child's parent, guardian, or relative. (Welf. &
Inst. Code Sec. 309(a).)
Existing law requires a social worker to use due diligence in
investigating the names and locations of relatives who are
able and willing custodians of a minor child under the
temporary custody of the court. (Welf. & Inst. Code Sec.
309(e)(3).)
This bill would require that the social worker immediately
release a child under temporary custody of the court to a
responsible relative, as specified, regardless of the
relative's immigration status unless a specified condition
exists.
4.Existing law requires social workers to conduct an assessment
of the relative or non-relative's suitability, including an
in-home inspection and a criminal records check, and a check
of allegations of prior child abuse or neglect of the adult
relative and all adults residing in the home prior to placing
the child in the home. (Welf. & Inst. Code Secs. 309(d), and
Welf. & Inst. Code 361.4(b)(1).)
This bill would allow social workers to use a foreign
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identification card or foreign passport to conduct a criminal
records check and fingerprint clearance in background and
criminal investigations of relatives of dependent minor
children.
5.Existing law provides that, in pursuing family reunification,
the court shall order reasonable services for incarcerated or
institutionalized parents, and must consider the parent's
access to the court-mandated services and his or her ability
to maintain contact with his or her child. This information
shall be noted in the child's case plan. (Welf. & Inst. Code
Sec. 361.5(e).)
Existing law allows for court ordered services in pursuit of
family reunification to be extended from 12 to 18 or 24
months, as specified, for parents who are incarcerated,
institutionalized, or ordered into a resident substance abuse
program if the court makes particular findings. (Welf. & Inst.
Code Sec. 361.5(a)(3)-(4).)
This bill would authorize an extension in reunification
services from 12 to 18 or 24 months, as specified, for parents
who have been arrested and issued an immigration hold,
detained by DHS, or deported to his or her country of origin.
This bill would require the Department of Social Services
(DSS), prior to July 1, 2013, to provide guidance to counties
in establishing memoranda of understanding with foreign
consulates in custody cases, including specified procedures
relating to family reunification.
This bill would require DSS, prior to July 1, 2013, to provide
guidelines to counties and municipalities detailing procedures
for social workers to assist children in child custody and
dependency cases who are eligible for special immigrant
juvenile status and any other form of relief available under
immigration law.
COMMENT
1. Need for the bill
The author states:
In 2010, 400,000 undocumented immigrants were deported from
the United States, 22 percent of who are the parents of
U.S. born children. As a result of increased collaboration
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between U.S. Immigration and Customs Enforcement and local
law enforcement through programs that deputize law
enforcement as immigration agents, the number of detained
parents is substantially rising. Consequently, many of
these parents lose custody of their children in the
process. Currently there are at least 5,100 children
nationwide in the child welfare system because their
parents are under immigration custody or have been
deported. This number is expected to rise to 15,000 in the
next five years. The majority of these children are United
States citizens. ?
A report by the Public Policy Institute of California
indicates that over half of the children who enter foster
care for the first time are reunified with their birth
parents. Given the nature of the immigration system, this
outcome is less likely for immigrant families. Many
counties, such as Los Angeles, Santa Clara, San Francisco,
and Fresno have policies in place that make family
reunification or relative placement feasible for these
families, including alternative ways of identifying
relatives for background checks and partnerships with
foreign consulates. However, some child welfare departments
may lack the tools necessary to keep families united when
parents are detained or deported. Systemic policies that
specifically address these conditions are necessary to
ensure that children are placed in stable environments.
2. Goals of the dependency court
The juvenile dependency system seeks to ensure children's
safety and protection, and where possible, preserve and
strengthen families. Social workers are required to
immediately release a child in temporary custody to a
responsible relative, unless a specified condition exists.
(Welf. & Inst. Code Sec. 309(a).) If a child later becomes a
dependent of the court, social workers create a case plan with
the following order of priorities: maintain the child in his
or her home; remove the child but with the goal of reuniting
the parent and child within statutory time limits; or find a
permanent placement for the child. Furthermore, in finding a
placement for a child, relatives are given preference. The
court is required to consider whether there is a relative who
is ready and willing to care for the child, before considering
other, non-relative home placements. (Welf. & Inst. Code Sec.
319.)
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a. Family reunification
Courts must generally order social workers to provide
services to reunify a family if the parent has not
voluntarily relinquished his or her parental rights. (Welf.
& Inst. Code Sec. 360(a).) Reunification plans must be
appropriate and based on the unique facts of the family.
Where parents successfully complete the reunification plan,
and reunification is in the best interest of the child,
children are typically released to the custody of the
parent. In 2008, California expanded this concept of
tailoring reunification plans to the unique facts of each
family when it enacted AB 2070 (Bass, Chapter 482, Statutes
of 2008). AB 2070 required that courts take into
consideration, among other factors, the particular barriers
to accessing court-mandated services, including
parent-child bonding, and consideration of the likelihood
of the parent's discharge within the reunification
timeframe, for incarcerated or institutionalized parents.
Where courts find that reunification is in the child's best
interest and the institutionalized or incarcerated parents
did not have reasonable access to court mandated services,
the court may extend reunification services for six to
twelve months, as specified.
This bill would enact similar provisions for parents who
have been issued an immigration hold, detained, or deported
by DHS. Because statutory time limits for reunification
expire, courts need to be flexible where factors unrelated
to parental fitness, such as incarceration or deportation,
may contribute to the permanent severing of parent-child
ties. In situations where a parent has been detained or
deported, an extension in the reunification period is
especially important because the requirements and time
limits mandated under reunification plans are virtually
impossible for detained parents to adhere to.
SB 1064 would also require DSS to establish memoranda of
understanding (MOU) with foreign consulates, including
specified procedures relating to family reunification.
Where a parent has been deported, the practices of Los
Angeles and San Francisco counties indicate that
communication with foreign consulates may be very helpful.
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For example, San Francisco's memoranda of understanding
with Mexico provides that the Mexican consulate is required
to assist with searches in Mexico for parents or relatives
and facilitate the repatriation of Mexican minors when
there are no protective custody issues. The MOU also
outlines the role of both entities in ensuring a parent's
compliance with dependency court, reunification services,
and in finalizing adoptions. Because communication between
county social welfare departments and foreign consulates
can reveal information as to the actual wishes and
circumstances of the detained or deported parents, MOUs
with foreign consulates may help courts make better
informed decisions early on in dependency hearings, and
better understand whether reunification is possible.
b. Placing dependent children with relatives
When a child is removed from the custody of his or her
parents, the county welfare department must place the child
in temporary custody. Temporary custody typically lasts at
least through the reunification period, and preference is
first given to placement with relatives. (Welf. & Inst.
Code Sec. 361.3.) As a result of a systemic bias against
placing children with undocumented parents or relatives,
children of detained or deported parents are likely to
remain in foster care with strangers when they could be
with their own family. (Applied Research Center, supra.)
The author writes, "t]hough immigrant relatives may be
willing to take custody of a child when a parent is
detained or deported, many social workers and courts
incorrectly assume that children cannot be placed with
undocumented parents and relatives." It appears, however,
that this assumption is made by courts and social workers
as well as undocumented relatives. While courts and social
workers may believe that placement with an undocumented
relative is potentially unstable, some undocumented
relatives may be unwilling to come forward and claim
relative children for fear of deportation. California law,
child welfare policy, and practices in other jurisdictions
suggest that not only should undocumented relatives not
fear deportation, placing a dependent with them can be safe
and legal.
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SB 1064 would require that social workers and courts
consider relatives for the placement of minor children
regardless of immigration status of the relative. SB 1064
would also employ practices developed in counties where
similar policies regarding placement with undocumented
relatives have been adopted. For example, this bill would
authorize social workers, in evaluating the safety of a
relative's home for placement, to use foreign
identification or consulate cards for criminal background
checks and Live Scan.
Furthermore, California law contains strong confidentiality
requirements regarding dependent children and information
contained in their case files. Welfare and Institutions
Code Section 10850 provides that records concerning any
individual made by any public agency in connection to any
form of public social services for which grants in aid are
received shall be confidential, and not be open to
examination for any purpose not directly connected with the
administration of that program. The DSS manual of policies
and procedures relating to confidentiality requires that
the names, address and all other information concerning the
circumstances of any individual for whom or about whom
information is obtained is confidential and should be
safeguarded. This is true of all information whether
written or oral. (California Health and Human Services
Agency, Dept. of Social Services, Confidentiality, Fraud,
Civil Rights, and State Hearings (2010)
) Additionally,
a case file may only be accessed for purposes directly
connected with the administration of the particular public
social service a person is receiving.
3. Guidance to Social Workers on Special Immigrant Juvenile
Status
Child welfare policy requires courts and social workers to act
in the best interest of the child, regardless of immigration
status. Because a dependent child without legal immigration
status may be deported when released from the child welfare
system, it is important that social workers file for legal
status in a timely manner. SB 1064 would require DSS, prior
to July 1, 2013, to provide guidelines to counties and
municipalities detailing procedures for social workers to
assist children in child custody and dependency cases who are
eligible for relief available under immigration law.
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According to the author, "frequently, though children may be
eligible for this protective status, but social workers are
not aware of it, or do not know how to apply or locate the
necessary documents. As a result, children age out eligibility
and are left with the challenges of being undocumented."
Undocumented, dependent children who are unable to be
reunified with one or more of the parents because of abuse,
neglect or abandonment, are eligible to obtain legal status
under a federal immigration law known as Special Juvenile
Immigrant Status. (Public Council, Special Immigrant Juvenile
Status Manual, 2010, found at .) Other children
may also achieve legal status under the Battered Immigrant
Women Act of 2000.
By requiring DSS to issue guidelines and policies to county
child welfare services who may be ignorant of the programs
available to undocumented children, SB 1064 would aid in
furthering one of the goals of the child welfare system.
Support : All Saints Church Foster Care Project; American
Federation of State, County, and Municipal Employees (AFL-CIO);
Asian Law Alliance; ASISTA Immigration Assistance; California
Catholic Conference, Inc.; California Immigrant Policy Center;
California Rural Legal Assistance Foundation; California Youth
Connection; Children's Law Center of California; Coalition for
Humane Immigrant Rights of Los Angeles; First Focus Campaign for
Children; Franciscan Action Network; Guam Communications
Network; Iglesia de la Comunidad, Presbyterian Church USA;
Immigration Legal Resource Center; Immigration Task Force of the
United Methodist Church; The Latina Center; Legal Services for
Children; The Mexican American Legal Defense and Educational
Fund (MALDEF); Public Counsel; Restoration Project, Tucson;
Santa Clara County Board of Supervisors; Services, Immigrant
Rights & Education Network; Street Level Health Project; The
Young Center for Immigrant Children's Rights
Opposition : None Known
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HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 2070 (Bass, Chapter 482, Statues of
2008). (See Comment 2a)
Prior Vote : Senate Human Services Committee (Ayes 4, Noes 0)
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