Bill Text: CA AB1412 | 2019-2020 | Regular Session | Amended
Bill Title: Juveniles: special immigrant juvenile status.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2020-02-03 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1412 Detail]
Download: California-2019-AB1412-Amended.html
|
Amended
IN
Assembly
March 25, 2019 |
CALIFORNIA LEGISLATURE—
2019–2020 REGULAR SESSION
| Assembly Bill | No. 1412 |
| Introduced by Assembly Member Bloom |
February 22, 2019 |
An act to amend Section 7551 of the Family Code, relating to parentage. amend Section 155 of the Code of Civil Procedure, and to add Division 15 (commencing with Section 12000) to the Family Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
AB 1412, as amended, Bloom.
Genetic testing to determine parentage. Juveniles: special immigrant juvenile status.
Existing federal law, the Immigration and Nationality Act, establishes a procedure for classification of certain aliens as special immigrants who have been declared dependent on 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. Under federal regulations, an alien is eligible for special immigrant juvenile status if they are under 21 years of age. Existing state law provides that the superior court, including, but not limited to, the juvenile, probate, and family court divisions of the superior court, have jurisdiction to make judicial determinations regarding the custody and care of juveniles within the meaning of those provisions of the federal Immigration and Nationality Act. Existing law also requires the
court, upon request, to make the necessary findings regarding special immigrant juvenile status if there is evidence to support those findings, as specified.
This bill would establish a procedure to be used by the family court division of the superior court in making those determinations and findings when a petition to do so is filed independently of any other action or filed as part of a family law proceeding. The bill would, among other things, authorize a hearing, trial, and records pertaining to these petitions to be confidential, provided that there is no filing fee for any papers related to these petitions, and require hearings on these petitions to have priority over all other matters. The bill would make the denial of a petition filed under these provisions subject to appellate review as an emergency application for a writ of mandate. The bill would
also authorize the probate division of the superior court to use these procedures when a petition to make the judicial determinations and factual findings is filed in a probate proceeding. The bill would require the Judicial Council, by July 1, 2020, to promulgate forms and instructions for filing a petition pursuant to these provisions and modify existing forms, instructions, or rules of court to conform with these provisions.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Existing law defines the parent and child relationship as the legal relationship between a child and the child’s parents, and provides rebuttable presumptions as to the parentage of a child born under certain circumstances. Existing law also establishes procedures for the use of genetic testing, as defined, to determine parentage. Under existing law, in a civil action or proceeding in which parentage is a relevant fact, a court may, upon its own initiative or the suggestion of a person involved, and shall, upon the motion of a party to the action or proceeding, order the person who gave birth, the child, and the alleged genetic parent to submit to genetic testing, except as specified. Existing law prohibits genetic testing ordered under these circumstances to be used for specified purposes, and establishes procedures in the event that a person refuses to submit to, or is unavailable for,
genetic testing.
This bill would make technical, nonsubstantive changes to those provisions.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
The Legislature finds and declares both of the following:(a) It is the public policy of California to protect children entitled to obtain Special Immigrant Juvenile Status (SIJS) as provided by federal law. Many children in California have been abandoned by one or both parents and need the benefit of SIJS findings. A large number of unprotected children in California may be entitled to SIJS findings.
(b) The purposes of this act are to accomplish all of the following:
(1) To codify the holding of Bianka M. v. Superior Court (Gladys M.) (2018) 5 Cal.5th 1004, which acknowledged the importance of permitting children to obtain SIJS findings without regard to whether the action was motivated by a desire to establish a particular immigration status.
(2) To create an efficient, simple way for an SIJS application to be filed and finalized.
(3) To provide that SIJS applications are heard and finalized before a child’s 18th birthday.
SEC. 2.
Section 155 of the Code of Civil Procedure is amended to read:155.
(a) (1)(2) The Except as otherwise described in subdivision (f), 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 his or her the child’s parent’s, previous country of nationality or country of last habitual residence.
(2) The superior the 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) The Judicial Council shall adopt any rules and forms needed to implement this section.
(f) (1) The family court division of the superior court shall make the determinations and findings described in subdivision (a) pursuant to Division 15 (commencing with Section 12000) of the Family Code if the petition is filed independently of any other action or if the petition is filed as part of an action brought pursuant to the Family Code.
(2) The probate court division of the superior court may make the determinations and findings described in subdivision (a) pursuant to Division 15 (commencing with Section 12000) of the Family Code if the petition is filed as part of an action brought pursuant to the Probate Code.
SEC. 3.
Division 15 (commencing with Section 12000) is added to the Family Code, to read:DIVISION 15. Special Immigrant Juvenile Status
PART 1. Short Title
12000.
This division shall be known and may be cited as the Special Immigrant Juvenile Status Proceeding Act.PART 2. General Provisions
12020.
The purpose of this division is to protect children entitled to obtain special immigrant juvenile status, as provided by federal law, and to create a simple and efficient procedure for obtaining special immigrant juvenile status findings.12021.
(a) The family court division and probate court division of the superior court has jurisdiction to make a judicial determination 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) pursuant to this division.(b) The family court division and probate court division of the superior court has jurisdiction to make the factual findings necessary to enable a child to petition the United States Citizen 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 pursuant to this division.
12022.
(a) A proceeding under this division may be brought independently of any other action.(b) A proceeding under this division shall be adjudicated without delay, in a manner consistent with the expedited process set forth in Part 3 (commencing with Section 12050), even if related to, or consolidated with, another proceeding.
(c) A proceeding under this division shall have the highest statutory priority.
12023.
(a) In the event of a concurrent or subsequent proceeding involving a child who is subject to a proceeding under this division, the matters shall be related.(b) The court may consolidate petitions for special immigrant juvenile status findings made on behalf of more than one sibling or half-sibling, named in the same case or separate cases, into one hearing.
(c) If proceedings relating to siblings or half-siblings are pending in multiple departments of a single court or in the courts of more than one county, the departments or courts may communicate about consolidation consistent with Section 3410.
(d) The
court shall make separate special immigrant juvenile findings with respect to each child on whose behalf a petition is filed.
12024.
(a) A petition under this division may be filed by any person, including, but not limited to, a parent, a guardian ad litem, a child, or an attorney authorized to represent the child.(b) If a child younger than 12 years of age seeks to file a petition under this division, a guardian ad litem shall be appointed to prosecute the matter on their behalf, as set forth in Section 12025.
(c) A child 12 years of age or older may file a petition under this division on their own behalf.
12025.
Appointment of the guardian ad litem, as set forth in subdivision (b) of Section 12024, shall be made pursuant to the forms and procedures established under Section 7635 of the Family Code, except that the guardian ad litem application may be submitted at the same time as a petition is filed under this division, shall be ruled upon immediately, and shall be granted but for good cause shown.12026.
(a) The expedited process in this division applies to any petition to make the judicial determinations and factual findings described in Section 12021, whether the petition is filed independently of any other action, or if the petition is filed as part of an action brought pursuant to this code or the Probate Code.(b) Nothing in this division affects the jurisdiction of the juvenile court. While the juvenile court retains exclusive jurisdiction over a child, it shall have exclusive jurisdiction to grant or deny a petition to make the judicial determinations and factual findings described in Section 12021.
(c) Any order issued pursuant to this division shall be issued on
forms adopted by the Judicial Council. However, the fact that an order issued by a court pursuant to this division was not issued on forms adopted by the Judicial Council shall not, in and of itself, render the order invalid.
12027.
(a) Unless otherwise specifically provided, the Judicial Council shall prescribe the form of the orders and any other documents required by this division and shall promulgate forms and instructions for applying for the petition and orders described in this division, and shall modify any existing forms, instructions, or rules of court to conform with this division, by July 1, 2020.(b) Until the forms described in subdivision (a) are adopted, an application or petition under this division may be made in any form which substantially complies with the requirements of this division.
12028.
A petition under this division shall include all of the following:(a) The full name of the child.
(b) The full name of the person filing the petition on behalf of a child, if applicable.
(c) The child’s date of birth.
(d) The child’s country of origin.
(e) A statement by the child, or a person applying on behalf of the child, based upon personal knowledge, of the names of each of the child’s parents and each parent’s last known address, except when the petitioner is a child and the parent’s last known
address is unknown to them.
(f) A statement by the child, or a person applying on behalf of the child, affirming that it is possible to give actual notice to at least one parent.
(g) The name of the individual the petitioner is requesting to be granted sole custody of the child during the pendency of further proceedings involving the child.
(h) A statement indicating whether the child is currently a dependent of the court.
(i) A statement indicating whether the child has been legally committed to, or placed under the custody of, a state agency or department, or an individual or entity appointed by the court.
(j) A statement that the child’s reunification with one or both parents is not
viable, due to abuse, neglect, or abandonment by the parent, or a similar basis under California law.
(k) A statement by the child, or person applying on behalf of the child, indicating why it is not in the best interest of the child to be returned to their home country, previous country of nationality or country of last habitual residence, or to the home country, previous county of nationality, or country of last habitual residence of either of the child’s parents.
(l) The name of the person with whom the child has resided for the past six months.
12029.
A Uniform Child Custody Jurisdiction and Enforcement Act declaration (FL-105), completed to the extent possible subject to Section 12033, shall be submitted with every petition filed under this division.12030.
In developing forms pursuant to Section 12027, the Judicial Council shall include the following statements on the petition form:(a) If the petitioner is a child, the petitioner’s inability to state a last known address of a parent shall not be grounds for denial of the petition.
(b) Actual notice to at least one parent is required.
12031.
An order described in this division is effective when issued.12032.
(a) Consistent with subdivisions (c) and (d) of Section 155 of the Code of Civil Procedure, a hearing or trial held under this division may be held in closed court without admittance of any person other than those necessary to the action or proceeding. Except as provided in subdivisions (c) and (d), all papers and records, other than the final judgment, pertaining to the action or proceeding, whether part of the permanent record of the court or of a file in a public agency or elsewhere, are subject to inspection and copying only in exceptional cases upon an order of the court for good cause shown.(b) A child’s place of residence, school, employment, and child care services provider are confidential.
(c) Papers and records pertaining to the action or proceeding that are part of the permanent record of the court are subject to inspection and copying by the parties to the action, their attorneys, and by agents acting pursuant to written authorization from the parties to the action or their attorneys. An attorney shall obtain the consent of the party to the action prior to authorizing an agent to inspect and copy the permanent record. An attorney shall also state on the written authorization that they have obtained the consent of the party to authorize an agent to inspect and copy the permanent record.
(d) For purposes of establishing parentage and establishing and enforcing child support orders, papers, and records pertaining to the action or proceeding that are part of the permanent record of the court are subject to inspection and copying by any local child support agency, as
defined in subdivision (h) of Section 17000.
12033.
A petition for an order described in this division, and any orders that may issue under this division, are valid and enforceable notwithstanding, if applicable, the confidentiality of the address of the child’s place of residence, school, employment, or child care services provider.12034.
There is no filing fee for a petition, response, or other necessary papers filed under this division.PART 3. Issuance of Orders
12050.
(a) Actual notice to at least one parent is required.(b) A petitioning party is not required to give notice to an absent parent whose whereabouts are unknown.
12051.
A hearing on a petition filed under this division shall be entitled to priority over any other matter on the court’s docket.12052.
(a) A petition filed under this division shall be set for a hearing within 21 days of the initial filing of the petition. Time for the hearing may be extended to 25 days for good cause shown, or, pursuant to subdivision (b) of Section 12057, for a longer duration.(b) If a child subject to a petition filed under this division will turn 18 years of age prior to the time for hearing set pursuant to subdivision (a), the court shall find that exigent circumstances exist for an order shortening time and shall set the matter for hearing and enter findings prior to the child’s 18th birthday.
12053.
In determining whether to grant a petition under this division, the court shall give great weight to whether a child will have an adequate remedy at law in the event of a delay in granting or denying a petition.12054.
(a) The burden of proof required for entry of judgment on a petition under this division shall be by a preponderance of the evidence.(b) For a proceeding under this division, relevant evidence deemed sufficiently reliable by the court shall not be made inadmissible because it is hearsay.
(c) A petitioner’s statements in a petition filed under this division may be based upon personal knowledge or information and belief.
(d) The court shall afford the same weight to a statement or declaration made upon information and belief as it affords to a statement made upon personal
knowledge.
12055.
(a) The court shall not inquire regarding the existence of a good faith basis for a petition under this division.(b) The court shall not inquire into the asserted, purported, or perceived motivation of a child petitioning for a special immigrant juvenile order under this division.
(c) The court shall not reference the asserted, purported, or perceived motivation of a child petitioning for a special immigrant juvenile order in any court findings made under this division.
12056.
(a) If potential prejudice to a parent’s rights is the basis for a denial of a petition, and the evidentiary failings cannot be resolved prior to the issuance of a ruling, the court shall issue an order provisionally granting an otherwise properly presented petition.(b) For any provisional order granted under subdivision (a), the court shall establish a return hearing date prior to the child’s 18th birthday.
12057.
(a) Prior to denying a petition under this division, the court shall issue a tentative ruling, on the record and in the general form of a statement of decision as set forth in the Code of Civil Procedure, setting forth the factual and legal basis for the anticipated denial of the petition. As part of its detailed tentative ruling, the court shall specify the further evidence it believes is necessary to grant the petition. A written tentative statement of decision shall be provided to the litigants immediately upon issuance.(b) If the tentative decision of the court is to deny the petition, prior to rendering an adverse ruling, the court shall grant the petitioner a continuance for a reasonable period of time, in order to permit the
petitioner to gather evidence.
(c) If, after issuing a detailed tentative ruling and affording the petitioner a reasonable period of time in which to address the evidentiary deficits, the court finds that an adverse ruling shall issue, that ruling shall take the form of a statement of decision, in the form set forth in the Code of Civil Procedure.
12058.
(a) If a petition is granted under this division, a judgment shall be entered containing the special immigrant juvenile status findings, and the court shall execute the findings and order form established by the Judicial Council for this purpose.(b) If a petition is denied under this division, the denial shall be without prejudice to a subsequent and timely application by or on behalf of the child.
12059.
A judgment entered under this division without actual notice to a parent does not affect the rights of a presumed parent to seek custody or visitation in a subsequent proceeding.PART 4. Appellate Review
12070.
(a) If a petition is denied under this division, appellate review shall be permitted as an emergency application for a writ of mandate.(b) If a child is the petitioner, and their 18th birthday occurs before the court of appeal rules on their application for writ of mandate, the superior court shall retain subject matter jurisdiction to enter an order granting the petition, retroactive to the day before the child’s 18th birthday.
SEC. 4.
The Legislature finds and declares that Section 3 of this act, which adds Division 15 (commencing with Section 12000) to the Family Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:In order to protect the
privacy of children who are seeking a judicial determination regarding the custody and care of juveniles for purposes of the federal Immigration and Nationality Act, it is necessary that records relating to a petition to obtain those determinations, and hearings and trials related to the petition, be confidential.
(a)Except as provided in subdivisions (b) and (c), in a civil action or proceeding in which parentage is a relevant fact, the court may, upon its own initiative or upon suggestion made by or on behalf of any person who is involved, and shall upon motion of any party to the action or proceeding made at a time so as not to delay the proceedings unduly, order the person who gave birth, the child, and the alleged genetic parent to submit to genetic testing.
(b)(1)Genetic testing shall not be used for any of the following purposes:
(A)To challenge the parentage of a person who is a parent pursuant to subdivision (a) of Section 7613, except to resolve a dispute whether the child was conceived through assisted reproduction.
(B)To challenge the parentage of a person who is a parent pursuant to Section 7962, except to resolve a dispute whether the gestational carrier surrogate is a genetic parent.
(C)To establish the parentage of a person who is a donor pursuant to subdivision (b) or (c) of Section 7613, except to resolve a dispute whether the child was conceived through assisted reproduction.
(2)If the child has a presumed parent pursuant to Section 7540, a motion for genetic testing is governed by Section 7541.
(3)If
the child has a parent whose parentage has been previously established in a judgment, a request for genetic testing shall be governed by Section 7647.7.
(4)A court shall not order genetic testing if the genetic testing would be used to establish the parentage of a person who is prohibited under this division from establishing parentage based on evidence of genetic testing.
(c)A court shall not order in utero genetic testing.
(d)In any case under this division in which genetic testing is ordered, the following shall apply:
(1)If a party refuses to submit to genetic testing, the court may resolve the question of parentage against that party or enforce its order if the rights of others and the interests of justice so require.
(2)The refusal of a party to submit to genetic testing is admissible in evidence in any proceeding to determine parentage.
(3)If two or more persons are subject to court-ordered genetic testing, the court may order that the testing be completed concurrently or sequentially.
(4)Genetic testing of a
person who gave birth to a child is not a condition precedent to the testing of the child and a person whose genetic parentage of the child is being determined. If the person who gave birth is unavailable for genetic testing, the court may order genetic testing of the child and each person whose genetic parentage of the child is at issue.
(5)An order under this division for genetic testing is enforceable by contempt.
