BILL ANALYSIS Ó
SB 1064
Page 1
Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1064 (de León) - As Amended: April 16, 2012
SENATE VOTE : 28-7
SUBJECT : Child Custody: Immigration
KEY ISSUE : IN ORDER TO ENSURE THAT FOSTER CHILDREN RECEIVE THE
BEST AND MOST APPROPRIATE CUSTODIAL PLACEMENT, SHOULD A
PARENT'S, RELATIVE'S OR GUARDIAN'S IMMIGRATION STATUS NOT BE
CONSIDERED WHEN DETERMINING THAT PLACEMENT AND SHOULD EXTRA TIME
BE PERMITTED FOR REUNIFICATION SERVICES WHEN PARENTS ARE
DETAINED OR DEPORTED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
When parents are detained or deported by the United States
Department of Homeland Security (DHS), their children may become
dependents of the juvenile court. All too often in these cases,
reunification efforts fail within the required timeframe because
the parents are unable to participate. If these children are
not taken in by relatives, they may remain in the foster care
system with strangers and their parents' rights may be
terminated. This bill seeks to create uniform, statewide
policies and practices that eliminate family reunification
barriers in the child welfare system for immigrant families.
First, this bill grants an extension of time for family
reunification where parents are detained or deported. Second,
where reunification is not immediately available, this bill
seeks to ensure that children can be placed with relatives by
prohibiting a family member's immigration status from being
considered when deciding where to temporarily or permanently
place dependent children. Lastly, the bill requires the
Department of Social Services (DSS) to provide guidance to
counties on (1) establishing memoranda of understanding with
foreign consulates in the handling of these cases; and (2) how
to identify and aid children eligible for Special Immigrant
Juvenile Status and other forms of relief available for
immigrant children. This bill is supported by numerous
children's advocates, religious organizations and immigrants'
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rights groups, and there is no reported opposition.
SUMMARY : Provides family and custodial protections for children
of immigrant families. Specifically, this bill:
1)States that a relative's immigration status does not
disqualify the relative from receiving custody of a child in a
family law proceeding.
2)Allows a relative to file for guardianship of a minor
dependent regardless of immigration status and provides that
immigration status of the relative alone shall not constitute
unsuitability.
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 release
shall occur 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 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's or relative's immigration status.
6)Specifies that when a relative has requested placement of a
child who is removed from parental custody, preferential
consideration be given to the 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 his or her immigration status.
8)Authorizes an extension of reunification services from 6 or 12
months to 18 or 24 months, as specified, for parents who have
been arrested and issued an immigration hold, detained by DHS,
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or deported to their country of origin.
9)Adds detention by DHS 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.
10)Directs the court to provide reasonable efforts to 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 accept reports from local child welfare
authorities as to the parents' living situation, progress and
participation in services.
11)Adds a parent's detention to the list of circumstances
eligible for alternative family reunification services. 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.
12)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 DHS or deported
and the court determines that either the parent has made
reasonable efforts to regain custody of the child or
termination of parental rights would be detrimental to the
child.
13)Requires the court to consider a parent's detention or
deportation as barriers to that parent's ability to
participate in reunification when determining a child's
permanency plan.
14)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 DHS or recently returned to the
United States following deportation to his or her country of
origin.
15)Requires DSS, prior to July 1, 2013, to provide guidance to
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counties and municipalities to establish memoranda of
understanding with foreign consulates in custody cases in
which a parent has been arrested and issued an immigration
hold, has been detained by DHS, or has been deported to his or
her country of origin, including specified procedures relating
to family reunification.
16)Requires 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.
EXISTING LAW :
1)Establishes an order of preference to be used when determining
custody of a child. Preference is first for one or both of
the parents, then to the person in whose home the child has
been living, and then to any other person the court deems to
be suitable. (Family Code Section 3040.)
2)Provides that a relative may file for guardianship of a child
and that, in appointing a guardian, the court shall be guided
by the best interest of the child, and shall also consider the
child's preference. (Probate Code Sections 1510.)
3)Requires a social worker to attempt to maintain the child with
the child's family. Absent specified circumstances, requires
the social worker to immediately release the child to the
custody of the child's parent, guardian, or relative.
(Welfare & Institutions Code Section 309. Unless stated
otherwise, all further statutory references are to that code.)
4)Requires a social worker to use due diligence in investigating
the names and locations of relatives who are able and willing
to care for a dependent child. Requires social workers to
conduct an assessment of a relative or non-relative's
suitability, including an in-home inspection and a criminal
records check. (Id.)
5)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
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to maintain contact with his or her child. Allows for court
ordered services in pursuit of family reunification to be
extended from 6 or 12 months 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. (Section 361.5.)
COMMENTS : This bill seeks to reduce barriers faced by immigrant
families who come in contact with the child welfare system.
Immigration laws attempt to keep family together, whether or not
parents are deported. Child welfare policies also strive for
family reunification. In practice, however, it is often the
case that these policies are not achieved for families with
undocumented parents. When parents are detained or deported
and, as a result, their children become dependents of the court,
reunification often does not happen within the required
timeframe. If these children are not taken in by relatives,
they may remain in the foster care system with strangers and
their parents' rights may be terminated.
This bill seeks to create uniform, statewide policies and
practices that eliminate family reunification barriers in the
child welfare system for immigrant families. This bill grants
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 their immigration
status. In support of the bill, the author states:
When children enter the child welfare system, due to abuse
or neglect, social workers prioritize family reunification
if it is in the best interest of the child. However, many
immigrant families are not given the opportunity for family
reunification because of detention or deportation. Even
though a parent accused of a non-serious crime would
normally be released and able to follow through with the
family reunification process, non-citizen parents are
frequently unable to access services and meet requirements
set out by dependency courts to regain custody of their
children. This is further complicated by a parent's
deportation because of the difficulty in making
arrangements in the country of origin. Though 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
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with undocumented parents and relatives.
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 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. Additionally, given California's
fiscal woes, promoting relative placement and family
reunification for immigrant families has the potential to
decrease costs in the child welfare system, as fewer
children will be placed into care in the first place and
fewer will be kept in foster care unnecessarily.
"Shattered Families" Report : A November 2011 report prepared by
the Applied Research Center (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,
nearly 700 California children currently in the foster care
system could have detained or deported parents.
Family Reunification : When children are removed from their
parents and made dependents of the juvenile court, the court
must generally order reunification services for the parents
(certain exceptions exist, of course, if reunification is not
safe for the children). 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
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released to the custody of their parents. Reunifications
services can generally be offered for 12 months if the child is
3 years of age or older, or for 6 months if the child is under 3
years old. In 2008, California extended the time period for
reunification for up to 18 or 24 months if parents are
incarcerated, institutionalized, or in residential substance
abuse treatment. (AB 2070 (Bass), Chap. 482, Stats. 2008.)
This bill enacts similar extensions 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 meet.
MOUs Can Help Reunification Efforts : According to the author,
some California counties already are taking efforts to remove
barriers to reunification for immigrant families. Los Angeles,
San Francisco and several other counties have MOUs with their
local Mexican consulates that define responsibilities for each
entity and ensure confidentiality of information exchanged. San
Francisco's MOU 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 actual circumstances of
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.
This bill requires DSS to provide guidance to counties, no later
than July 1, 2013, to establish MOUs with appropriate foreign
consulates for cases in which a parent has been detained or
deported by DHS. The MOU must include, among other things,
procedures for contacting a foreign consulate at the onset of a
child custody case, locating a detained parent, facilitating
family reunification once a parent has been deported, aiding the
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safe transfer of a child to the parent's country of origin, and
communicating with relevant departments and services in that
country.
Placing Dependent Children with Relatives : When a child is
removed from the custody of his or her parents, the child
welfare agency must place the child in temporary custody.
Preference is first given to placement with relatives. As a
result of a systemic bias against placing children with
undocumented parents or relatives, the author asserts that
children of detained or deported parents are likely to remain in
foster care with strangers when they could be with their own
relatives. Even when immigrant relatives are willing to take
custody of a child whose parents have been detained or deported,
social workers and courts may simply assume that children cannot
be placed with undocumented family members. However, placement
with relatives - whether documents or undocumented - is
generally considered the best possible placement for foster
children.
This bill requires that social workers and courts consider
relatives for the placement of minor children regardless of
their immigration status. This bill also enacts other best
practices, such as authorizing social workers, when evaluating
the safety of a relative's home for placement, to use foreign
identification or consulate cards for criminal background
checks.
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 emancipated from the child welfare
system, it is important that social workers file for legal
status in a timely manner. This bill requires 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 laws.
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,
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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. Other children
may achieve legal status under the Battered Immigrant Women
Protection Act of 2000.
REGISTERED SUPPORT / OPPOSITION :
Support
All Saints Church Foster Care Project
Alternative Family Services
American Civil Liberties Union
American Federation of State, County, and Municipal Employees
(AFL-CIO)
Applied Research Center
Asian Americans for Civil Rights & Equality
Asian Law Alliance
ASISTA Immigration Assistance
California Catholic Conference
California Immigrant Policy Center
California Latinas for Reproductive Justice
California Partnership
California Partnership to End Domestic Violence
California Rural Legal Assistance Foundation
California Youth Connection
Californians United for a Responsible Budget
Children's Defense Fund - California
Clergy and Laity United for Economic Justice, Los Angeles
Coalition for Humane Immigrant Rights of Los Angeles
Coalition to Abolish Slavery and Trafficking
Congregation of Sisters of the Holy Cross
First Focus Campaign for Children
Franciscan Action Network
Guam Communications Network
Immigrant Legal Resource Center
Immigration Task Force of the United Methodist Church
Justice Center
Latino Policy Coalition
Legal Services for Prisoners with Children
Los Angeles Dependency Lawyers
Lutheran Office of Public Policy -- California
Mexican American Legal Defense and Educational Fund (MALDEF)
MomsRising.org
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Mujeres Unidas y Activas
National Association of Social Workers - California Chapter
9to5, National Association of Working Women
Public Counsel
Restoration Project, Tucson
Safe Passages
Santa Clara County Board of Supervisors
Services, Immigrant Rights & Education Network
Tongan Community Service Center
Several individuals
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334