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AB-1378 Standby guardianship of minors.(2019-2020)

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Date Published: 05/06/2019 09:00 PM
AB1378:v96#DOCUMENT

Amended  IN  Assembly  May 06, 2019
Amended  IN  Assembly  April 08, 2019
Amended  IN  Assembly  March 28, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 1378

Introduced by Assembly Member Irwin
(Principal coauthor: Assembly Member Robert Rivas)

February 22, 2019

An act to amend Section 155 of the Code of Civil Procedure, to amend Section 48204 of the Education Code, and to add Section 2105.2 to the Probate Code, relating to guardianship.


LEGISLATIVE COUNSEL'S DIGEST


AB 1378, as amended, Irwin. Standby guardianship of minors.
(1) Under existing law, the guardian or conservator of a minor has specified powers over the care, custody, and control of the minor. Existing law authorizes a caregiver, who properly completes and signs a caregiver’s authorization affidavit, to provide specified care to a minor, including, among other care, enrolling the minor in school and consenting to school-related medical care on behalf of the minor.
This bill would authorize a custodial parent or a person who has been awarded custody or guardianship of a minor child to designate a person to serve as a standby guardian of the person, the estate, or both, by completing a Standby Guardian’s Authorization Affidavit. The bill would require the designation of a standby guardian to take effect, absent an objection of a noncustodial parent, under specified circumstances that include if the custodial parent or guardian has died or is detained by law enforcement, incarcerated, or deported. The bill would prescribe the requirements for the designation of a standby guardian, including a statutory form for the Standby Guardian’s Authorization Affidavit that would be signed and witnessed under penalty of perjury. By expanding the definition of the crime of perjury, the bill would impose a state-mandated local program.
(2) Existing federal law, the Immigration and Nationality Act, establishes a procedure for classification of certain aliens as special immigrants who have been declared dependent by a juvenile court and authorizes those aliens to apply for an adjustment of status to that of a lawful permanent resident within the United States. Existing state law provides that the juvenile, probate, and family divisions of the superior court have jurisdiction to make judicial determinations regarding the custody and care of children within the meaning of the federal Immigration and Nationality Act.
This bill would provide that the existence of a standby guardian and evidence that a contingency has occurred that makes the authority of the standby guardian operative is affirmative evidence that the covered juvenile has been abandoned and cannot be reunified with one or both parents for the purposes of making judicial determinations regarding the custody and care of children within the meaning of the federal Immigration and Nationality Act.
(3) Existing law provides that a pupil complies with the residency requirements for school attendance in a school district when, among other things, the pupil resides with a caregiver or caregiving adult who is located within the boundaries of that school district. Under existing law, it is a sufficient basis for a determination of residency if the caregiver has submitted an affidavit, as specified, under penalty of perjury, unless the school district determines from actual facts that the pupil is not living in the home of the caregiver.
This bill would make execution of the standby guardian affidavit a sufficient basis for a determination of residency of a minor child under these provisions, unless the school district determines from actual facts that the pupil is not living in the home of the standby guardian.
(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 155 of the Code of Civil Procedure is amended to read:

155.
 (a) (1) A superior court has jurisdiction under California law to make judicial determinations regarding the custody and care of children within the meaning of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101 et seq. and 8 C.F.R. Sec. 204.11), which includes, but is not limited to, the juvenile, probate, and family court divisions of the superior court. These courts have jurisdiction to make the factual findings necessary to enable a child to petition the United States Citizenship and Immigration Services for classification as a special immigrant juvenile pursuant to Section 1101(a)(27)(J) of Title 8 of the United States Code.
(2) The factual findings set forth in paragraph (1) of subdivision (b) may be made at any point in a proceeding regardless of the division of the superior court or type of proceeding if the prerequisites of that subdivision are met.
(b) (1) If an order is requested from the superior court making the necessary findings regarding special immigrant juvenile status pursuant to Section 1101(a)(27)(J) of Title 8 of the United States Code, and there is evidence to support those findings, which may consist solely of, but is not limited to, a declaration by the child who is the subject of the petition, the court shall issue the order, which shall include all of the following findings:
(A) The child was either of the following:
(i) Declared a dependent of the court.
(ii) Legally committed to, or placed under the custody of, a state agency or department, or an individual or entity appointed by the court. The court shall indicate the date on which the dependency, commitment, or custody was ordered.
(B) That reunification of the child with one or both of the child’s parents was determined not to be viable because of abuse, neglect, abandonment, or a similar basis pursuant to California law. The court shall indicate the date on which reunification was determined not to be viable.
(C) That it is not in the best interest of the child to be returned to the child’s, or the child’s parent’s, previous country of nationality or country of last habitual residence.
(2) The superior court may make additional findings under this section that are supported by evidence only if requested by a party. The asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile shall not be admissible in making the findings under this section. The court shall not include nor reference the asserted, purported, or perceived motivation of the child seeking classification as a special immigrant juvenile in the court’s findings under this section.
(c) In any judicial proceedings in response to a request that the superior court make the findings necessary to support a petition for classification as a special immigrant juvenile, information regarding the child’s immigration status that is not otherwise protected by state confidentiality laws shall remain confidential and shall be available for inspection only by the court, the child who is the subject of the proceeding, the parties, the attorneys for the parties, the child’s counsel, and the child’s guardian.
(d) In any judicial proceedings in response to a request that the superior court make the findings necessary to support a petition for classification as a special immigrant juvenile, records of the proceedings that are not otherwise protected by state confidentiality laws may be sealed using the procedure set forth in California Rules of Court 2.550 and 2.551.
(e) In any judicial proceedings in response to a request that the superior court make the findings necessary to support a petition for classification as a special immigrant juvenile, the existence of a standby guardian designated pursuant to Section 2105.2 of the Probate Code and evidence that a contingency has occurred that makes the authority of the standby guardian operative shall serve as affirmative evidence that the covered juvenile has been abandoned and cannot be reunified with one or both parents. In the case of a standby guardian whose authority is operative, the court shall approve and appoint the standby guardian, if deemed in the child’s best interests, or place the juvenile under the jurisdiction of the dependency court or in the custody of a state agency or department or an individual or entity appointed by the court.
(f) The Judicial Council shall adopt any rules and forms needed to implement this section.

SEC. 2.

 Section 48204 of the Education Code is amended to read:

48204.
 (a) Notwithstanding Section 48200, a pupil complies with the residency requirements for school attendance in a school district if the pupil is any of the following:
(1) (A) A pupil placed within the boundaries of that school district in a regularly established licensed children’s institution or a licensed foster family home as defined in Section 56155.5, or a family home pursuant to a commitment or placement under Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code.
(B) An agency placing a pupil in a home or institution described in subparagraph (A) shall provide evidence to the school that the placement or commitment is pursuant to law.
(2) A pupil who is a foster child who remains in the pupil’s school of origin pursuant to subdivisions (f) and (g) of Section 48853.5.
(3) A pupil for whom interdistrict attendance has been approved pursuant to Chapter 5 (commencing with Section 46600) of Part 26.
(4) A pupil whose residence is located within the boundaries of that school district and whose parent or legal guardian is relieved of responsibility, control, and authority through emancipation.
(5) A pupil who lives in the home of a caregiving adult that is located within the boundaries of that school district. Execution of an affidavit under penalty of perjury pursuant to Part 1.5 (commencing with Section 6550) of Division 11 of the Family Code by the caregiving adult, or pursuant to Section 2105.2 of the Probate Code by a standby guardian, is a sufficient basis for a determination that the pupil lives in the home of the caregiver, unless the school district determines from actual facts that the pupil is not living in the home of the caregiver.
(6) A pupil residing in a state hospital located within the boundaries of that school district.
(7) A pupil whose parent or legal guardian resides outside of the boundaries of that school district but is employed and lives with the pupil at the place of employment within the boundaries of the school district for a minimum of three days during the school week.
(b) (1) A school district may deem a pupil to have complied with the residency requirements for school attendance in the school district if at least one parent or the legal guardian of the pupil is physically employed within the boundaries of that school district for a minimum of 10 hours during the school week.
(2) This subdivision does not require the school district within which at least one parent or the legal guardian of a pupil is employed to admit the pupil to its schools. A school district shall not, however, refuse to admit a pupil under this subdivision on the basis, except as expressly provided in this subdivision, of race, ethnicity, sex, parental income, scholastic achievement, or any other arbitrary consideration.
(3) The school district in which the residency of either the parents or the legal guardian of the pupil is established, or the school district to which the pupil is to be transferred under this subdivision, may prohibit the transfer of the pupil under this subdivision if the governing board of the school district determines that the transfer would negatively impact the court-ordered or voluntary desegregation plan of the school district.
(4) The school district to which the pupil is to be transferred under this subdivision may prohibit the transfer of the pupil if the school district determines that the additional cost of educating the pupil would exceed the amount of additional state aid received as a result of the transfer.
(5) The governing board of a school district that prohibits the transfer of a pupil pursuant to paragraph (2), (3), or (4) is encouraged to identify, and communicate in writing to the parents or the legal guardian of the pupil, the specific reasons for that determination and is encouraged to ensure that the determination, and the specific reasons for the determination, are accurately recorded in the minutes of the board meeting in which the determination was made.
(6) The average daily attendance for pupils admitted pursuant to this subdivision is calculated pursuant to Section 46607.
(7) Unless approved by the sending school district, this subdivision does not authorize a net transfer of pupils out of a school district, calculated as the difference between the number of pupils exiting the school district and the number of pupils entering the school district, in a fiscal year in excess of the following amounts:
(A) For a school district with an average daily attendance for that fiscal year of less than 501 pupils, 5 percent of the average daily attendance of the school district.
(B) For a school district with an average daily attendance for that fiscal year of 501 pupils or more, but less than 2,501 pupils, 3 percent of the average daily attendance of the school district or 25 pupils, whichever amount is greater.
(C) For a school district with an average daily attendance of 2,501 pupils or more, 1 percent of the average daily attendance of the school district or 75 pupils, whichever amount is greater.
(8) Once a pupil is deemed to have complied with the residency requirements for school attendance pursuant to this subdivision and is enrolled in a school in a school district the boundaries of which include the location where at least one parent or the legal guardian of a pupil is physically employed, the pupil does not have to reapply in the next school year to attend a school within that school district and the governing board of the school district shall allow the pupil to attend school through grade 12 in that school district if the parent or legal guardian so chooses and if at least one parent or the legal guardian of the pupil continues to be physically employed by an employer situated within the attendance boundaries of the school district, subject to paragraphs (2) to (7), inclusive.

SEC. 3.

 Section 2105.2 is added to the Probate Code, to read:

2105.2.
 (a) A custodial parent or a person who has been awarded custody or guardianship of a minor child may designate a person to serve as a standby guardian of the person, the estate, or both the person and the estate of the minor child. A standby guardian shall have temporary legal custody of the child during the pendency of the circumstances that require the standby guardian to act, to the extent necessary to meet the educational, medical, social, recreational, financial, and other significant needs of the child.
(b) The designation of a standby guardian shall take effect whenever the parent or legal guardian is incapacitated. For purposes of this section, a parent or legal guardian is incapacitated when the parent or legal guardian is any of the following:
(1) Detained by law enforcement.
(2) Incarcerated.
(3) Deported or removed.
(4) Rendered unavailable or mentally or physically disabled such that the parent or legal guardian is unable to care for the child for a significant period of time.
(5) Deployed on military service.
(6) Deceased.
(c) The designation of a standby guardian shall not be made over the objection of a noncustodial parent without a finding by a court that the noncustodial parent’s custody would be detrimental to the minor, as provided in Section 3041 of the Family Code.
(d) The designation of a standby guardian shall not be made by one parent or legal guardian alone, unless one of the following applies:
(1) No other person has or shares custody of the child.
(2) The parent or legal guardian has notified the other parent and any other person having legal custody of the child of the standby guardian designation, and they do not object to the designation.
(3) The parent or legal guardian is unable to contact the other parent and any other person having legal custody of the child to notify them of the standby guardian designation.
(e) Designation of a standby guardian shall not supersede the parental rights of the parent. The standby guardian shall exercise authority jointly with the parent or legal guardian, to the extent the parent or legal guardian is able to participate in the care or custody of the child. The rights of the standby guardian are inferior to the rights of the parent or legal guardian and shall be exercised only during the incapacity of the parent or legal guardian. The parent or legal guardian may terminate the standby guardianship at any time.
(f) A standby guardianship shall not be construed as diminishing, altering, or limiting existing laws intended to protect children, including the duties and authority of law enforcement, juvenile courts, child protective services, mandatory reporters, or similarly situated individuals or agencies.
(g) A standby guardianship shall not be construed as diminishing, altering, or limiting the existing Caregiver’s Authorization Affidavit, as provided in Part 1.5 (commencing with Section 6550) of Division 11 of the Family Code.
(h) The statutory form described in this subdivision is legally sufficient to establish a standby guardianship if all of the following requirements are satisfied:
(1) The signatures of the custodial parent or guardian and the standby guardian are acknowledged before a witness.
(2) The standby guardian is 18 years of age or older.
(3) The authorization is in substantially the following form:
Standby Guardian’s Authorization Affidavit
Use of this affidavit is authorized by Section 2105.2 of the California Probate Code.
Instructions: Custodial parent/guardian shall complete this form to designate a standby guardian, and if applicable, successor standby guardian(s), to assume the care, custody, and control of a minor child when the custodial parent or guardian is incapacitated, as defined by subdivision (b) of Section 2105.2 of the Probate Code. Print clearly.
  1. Name of the minor:
  2. Minor’s date of birth:
  3. Name of the designating custodial parent or guardian:
  4. Home address of the designating custodial parent or guardian:
  5. Name of the designated standby guardian:
  6. Address of the designated standby guardian:
  7. Date of birth of the designated standby guardian:

8. All of the following for the designated standby guardian:

a. Government-issued identification card, number, and issuing

jurisdiction:

b. Passport number and issuing country (if available):

c. Social security number (if available):

d. Medi-Cal identification number (if applicable):

If only one parent or guardian completes the Standby Guardian’s Authorization Affidavit, check one or more of the following, as applicable:
◻ No other person has or shares legal custody of the minor child.
◻ I have advised the parent or other person having legal custody of
the minor of my intent to designate a standby guardian and have received
no objection.
◻ I am unable to contact the parent or other person having legal custody
  of the minor at this time to notify them of my intended designation.
I declare under penalty of perjury under the laws of the State of California that I am / we are the custodial parent(s) or guardian(s) and that the foregoing is true and correct to the best of my/our knowledge.
Date: _______________________
Signature:_______________________________
Print Name:
Address:
Date: _______________________
Signature:_______________________________
Print Name:
Address:
I declare under penalty of perjury under the laws of the State of California that I voluntarily assume the role of standby guardian upon the incapacitation of the custodial parent(s) or guardian(s).
Date: _______________________
Standby Guardian Signature:_______________________________
Print Name:
Address:
I declare under penalty of perjury under the laws of the State of California that I witnessed the signing of this Standby Guardian’s Authorization Affidavit by the custodial parent(s) or guardian(s) and that I am not the person designated as the standby guardian:
Date:
Witness Signature:
Print Name:
Contact Information:
NOTICES:
  1. This declaration does not affect the rights of the minor’s parents or legal
     guardian regarding the care, custody, or control of the minor.
  2. This declaration confers temporary legal custody of the minor
     to the standby guardian during the pendency of the parent or legal guardian’s incapacity.
  3. A person who relies in good faith on the affidavit has no obligation to make any
     further inquiry or investigation beyond verifying the identity of the standby guardian through any of the following means:
(a) A government-issued identification card, including the card number and issuing jurisdiction.
(b) A valid California driver’s license, or a driver’s license issued by another state or by a Canadian or Mexican public agency authorized to issue drivers’ licenses.
(c) A valid consular identification document issued by a consulate of the standby guardian’s country of citizenship, or a valid passport issued by the standby guardian’s country of citizenship.
  4. If the circumstance requiring the standby guardian
     to act ceases or if the standby guardian ceases to act, the
     custodial parent or guardian shall notify any person, school, daycare,
     health care provider, health care service plan, or other entity that relies on this affidavit.
TO SCHOOL OFFICIALS:
  1. Section 48204 of the Education Code provides
     that this affidavit constitutes a sufficient basis for
     a determination of residency of the minor, without
     the requirement of a guardianship or other custody order,
     unless the school district determines from actual facts that
     the minor is not living with the standby guardian.
  2. The school district may require additional reasonable evidence that
     the standby guardian lives at the address provided.
TO HEALTH CARE AND OTHER SERVICE PROVIDERS AND HEALTH CARE SERVICE PLANS:
   A person who acts in good faith reliance upon a
     standby guardian’s authorization affidavit to provide medical
     or dental care, or other services, without knowledge of facts contrary to those stated
     on the affidavit, is not subject to civil or criminal liability and is not
     subject to professional disciplinary action for that reliance.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.