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AB-2642 Guardianship: special immigrant juveniles.(2017-2018)

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Date Published: 07/16/2018 09:00 PM
AB2642:v95#DOCUMENT

Assembly Bill No. 2642
CHAPTER 103

An act to add and repeal Section 2104.1 of the Probate Code, relating to guardianship.

[ Approved by Governor  July 16, 2018. Filed with Secretary of State  July 16, 2018. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2642, Levine. Guardianship: special immigrant juveniles.
The Guardianship-Conservatorship Law generally establishes the standards and procedures for the appointment and termination of an appointment for a guardian or conservator of a person, an estate, or both. Existing law authorizes a nonprofit charitable corporation to be appointed as a guardian or conservator of the person or estate, or both, if certain conditions are met, including, if the corporation is incorporated in this state. Existing law requires a nonprofit charitable corporation appointed as a guardian or conservator to meet specific requirements, including, notifying the court of a change in the person who is the responsible corporate officer for compliance with the legal requirements of acting as guardian, as specified. Existing law limits the compensation for a nonprofit charitable corporation or its attorney to compensation for services actually rendered.
This bill would, until January 1, 2022, enact comparable provisions authorizing a nonprofit charitable corporation that was not incorporated in this state to be appointed as a guardian of a minor in connection with a petition regarding special immigrant juvenile status, if the nonprofit charitable corporation otherwise meets the requirements described above, is licensed by the state, as specified, and is contracted by a specific federal office to provide care and custody for the minor. The bill would state findings and declarations of the Legislature relative to special immigrant juveniles.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares the following:
(a) California law grants the superior courts jurisdiction to make judicial determinations regarding the custody and care of children, including the juvenile, probate, and family court divisions of the superior court. These courts are also empowered to make the findings necessary for a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile under federal immigration law.
(b) Special immigrant juvenile status, under the federal Immigration and Nationality Act, offers relief from deportation and a path to permanent residence to undocumented immigrant children under 21 years of age, if a state juvenile court has made specific findings.
(c) The findings necessary for a child to petition for classification as a special immigrant juvenile include, among others, a finding that reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law, and a finding that it is not in the child’s best interest to be returned to his or her country of origin.
(d) Despite recent changes to law that eliminate ambiguity regarding the jurisdiction of superior courts to make the findings necessary to petition for special immigrant juvenile status, misalignment between state and federal law continues to exist.
(e) Children who enter the United States without a parent or legal guardian and without immigration documentation are placed in the custody of the federal Department of Health and Human Services, Office of Refugee Resettlement. While most unaccompanied immigrant children are released to family members or other adult caretakers with whom they can seek a legal guardianship, there are a small number of children who have no appropriate caregiver in the United States and therefore remain in Office of Refugee Resettlement custody. Some of these children remain in the shelter system and some are transferred to a federal foster care program that is administered by the Office of Refugee Resettlement. In either case, the minor may need to seek a state court order regarding their eligibility for special immigrant juvenile status.
(f) Minors in some Office of Refugee Resettlement placements in California are currently able to obtain the necessary state court order through entity guardianship proceedings pursuant to Section 2104 of the Probate Code. However, current law limits entity guardianships to entities that are incorporated in California. Some Office of Refugee Resettlement programs in California are part of national agencies that are incorporated in another state, although the programs are licensed in California. These national agencies, despite their extensive experience in providing care for unaccompanied immigrant children, cannot currently petition for entity guardianship of those children, denying the children the opportunity to be in the legal care and custody of these care providers, and to petition for special immigrant juvenile findings which could protect them from deportation.
(g) Given the recent influx of unaccompanied immigrant children arriving in the United States, many of whom have experienced parental abuse, neglect, or abandonment, it is necessary to provide an avenue for these unaccompanied children to petition the probate courts to have an entity guardian appointed regardless of which agency they are placed with. This is particularly necessary in light of the vulnerability of this class of unaccompanied youth, who have been found to have no available caretaker in the United States and who require a stable placement and services to recover from the trauma of abuse, neglect or abandonment.
(h) It is the intent of the Legislature to ensure unaccompanied minors are treated with equity and are able to receive underlying state court orders the children need to apply for special immigrant juvenile status. It is the intent of the Legislature to give the probate court jurisdiction to appoint an entity guardian, regardless of where the entity is incorporated, as long as that entity is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement to provide care for and custody of the minor, and that minor needs to request findings from the probate court necessary to enable them to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile.

SEC. 2.

 Section 2104.1 is added to the Probate Code, to read:

2104.1.
 (a) A nonprofit charitable corporation not incorporated in this state may be appointed as the guardian of a minor if all of the following requirements are met:
(1) The articles of incorporation specifically authorize the nonprofit charitable corporation to accept appointments as a guardian.
(2) The nonprofit charitable corporation is contracted by the federal Department of Health and Human Services, Office of Refugee Resettlement, or its successor federal government entity, to provide care and custody of the minor.
(3) The petition for guardianship is filed in connection with a petition to make the necessary findings regarding special immigrant juvenile status pursuant to subdivision (b) of Section 155 of the Code of Civil Procedure.
(4) The nonprofit charitable corporation is licensed by this state to provide care for minors.
(5) The nonprofit charitable corporation complies with all of the requirements of Section 2104, except for paragraphs (1) and (2) of subdivision (a) of Section 2104.
(b) This section shall remain in effect only until January 1, 2022, and as of that date is repealed.