1 Family Preparedness Planning in California Abigail Trillin Executive Director, Legal Services for Children Erikson Albrecht, Kinship Care Attorney, Bet Tzedek Legal Services Rachel Prandini Immigrant Youth Project Attorney, ILRC June 15, 2017 For technical issues with webinar system – Call 1-800-843-9166 – For webinar link or registration questions, contact Helen Leung at [email protected]During the Webinar Immigrant Legal Resource Center
Transcript
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Family Preparedness Planning in California
Abigail TrillinExecutive Director, Legal Services for Children
Erikson Albrecht, Kinship Care Attorney, Bet Tzedek Legal Services
– For webinar link or registration questions, contact Helen Leung at [email protected]
During the Webinar
Immigrant Legal Resource Center
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Questions During the Webinar
Agenda
Introduction to Family Preparedness
Informal Arrangements for Care
Powers of Attorney
Guardianship
Child Welfare Proceedings
Q & A
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I. Introduction to Family Preparedness
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Child Care Planning
Investigating Immigration
Options
Know Your Rights
What is Family Preparedness Planning?
What is Family Preparedness Planning?
www.ilrc.org/red_cards
• Today’s presentation will focus on child care planning• For additional information about KYR or immigration
options, see www.ilrc.org
• High levels of fear in the immigrant community• Panic is understandable given administration’s
cruel rhetoric, but often does not reflect reality• Important to put our suggestions today within
realistic context that most undocumented immigrants face small chance of being detained and minimal risk of being deported if they exercise their rights
• Every family – not just immigrants – should have a plan for their children should they not be able to care for them
Family Preparedness in Context
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• Most important aspect of child care planning is communication: talking about the plan as a family (including children), and discussing in detail with the potential caregiver(s)
Child Care Planning
• In addition to choosing a back-up caregiver and considering what legal documents to prepare, very important to:• Gather important documents (passports,
birth certificates, custody orders, etc.)• Make a list of emergency numbers and
important contact information• Update emergency contacts at children’s
schools and daycare providers
Child Care Planning
•Verbal agreement or other informal arrangement (e.g. grandma is caring for kids, no documents are signed, or mom writes a letter saying grandma can authorize medical care)
•Caregiver’s Authorization Affidavit (e.g. family friend is temporarily housing and caring for child and has signed a Caregiver’s Authorization Affidavit)
•Nomination of a Guardian (e.g. parents plan for children to stay in U.S. with maternal aunt and prepare form nominating aunt as guardian)
Options in California include:
Child Care Planning, cont.
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There is no one-size-fits-all plan!
•their wishes: children remain in U.S. versus go with parents to home country; and
•any special circumstances, such as custody disputes, prior custody orders, children with significant medical issues
Families must decide what fits best with:
Child Care Planning, cont.
• Silvia and Jorge live in San Bernardino and have three children: Ana (17 y.o., DACA recipient), Maria (12 y.o., U.S. Citizen), and Fernando (9 y.o., U.S. Citizen). Jorge has been living in the U.S. for 21 years, and Silvia has been living in the U.S. for 16 years. Silvia and Jorge are both undocumented. Silvia was stopped when she was crossing the border and thinks she received an order of deportation at that time. Jorge has never had any interaction with immigration officials.
Silvia & Jorge
• Aware of the assault on immigrants, Silvia and Jorge are making a plan for their family in case either of them come into contact with Immigration & Customs Enforcement (ICE) officers. They have an appointment to meet with a non-profit legal services provider in Los Angeles to investigate their immigration options. They also attended a community presentation to learn their rights if ICE comes to their home or stops them on the street.
Silvia & Jorge
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• But, they are most concerned about what will happen to their children. Their goals are: (1) allow Ana to stay in the U.S. to finish high school while living with Jorge’s sister, Luisa, and (2) coordinate for Maria & Fernando to travel back to Mexico to be reunified with them, should they face deportation; in the interim, they would also stay with Luisa if necessary. Luisa is also undocumented, so if she too was unavailable, Ana would stay with her best friend’s parents who are LPRs, and the younger children would temporarily stay with one of Silvia’s employers of 15 years, who are USCs. Their biggest fear is that their children will be taken away by Child Welfare.
Silvia & Jorge
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II. Informal ArrangementsFamily Preparedness
• It is always important to balance being prepared with minimizing disruption for the family
• Not all situations are the same- it is important for each family to consider their level of risk
• Making a plan and talking about it is the most important part
Things to keep in mind
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• Decide who will care for children• Discuss with potential caretakers and children• Make sure ALL providers have this information-
school, day care, after-school• Provide important information to potential
caretaker (see ILRC guide)
Planning
• Does not need to be signed by parents so can be filled out after detention
• Can provide some peace of mind to fill out ahead of time
• Allows any caretaker to enroll child in school• Allows relatives to consent to medical care
and receive benefits (if child eligible)• Does not change custody
Caregiver’s Authorization Affidavit
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• Education:• Caregiver Affidavit allows any caregiver to
enroll a child in school• Caregiver Affidavit Limitations
• does not address Preschools and Daycare centers
• does not specifically authorize participation in school activities, programs (such as sports, field trips)
• cannot consent to special education • Transfer of school records must be by
parent or guardian
Caregiver Affidavit vs. Guardianship
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Medical Decisions• Caregiver Affidavit
• Related Caregiver can authorize general medical care• “Qualified Relative” = spouse, parent, stepparent,
sibling (includes step and half-siblings), uncle, aunt, niece, nephew, 1st cousin or any person denoted by the prefix “grand” or “great” or a spouse of any of these individuals, even after the marriage has ended
• Unrelated Caregiver can authorize only school-related medical care• Includes any medical treatment necessary for
school enrollment, including vaccinations, physical exams
• Guardian has authority to make medical decisions.
Caregiver Affidavit vs. Guardianship
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• Uninvolved parent who still has joint custody consider custody proceeding
• Child with medical needs without a relative who will be able to care for child talk with provider & prepare appropriate forms
• Especially if custodial parent has a risk factor such as an order of deportation
Scenarios when CAA/informal may not be sufficient
• Passports• Check with airlines about letters needed for
children traveling without parents
Preparation for children who will join parents in home country
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III. Powers of AttorneyWhy not to use them for Family Preparedness?
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• The Power of Attorney Law, Division 4.5 (§§4000-4545)
• The Health Care Decisions Law, Division 4.7 (§§4600-4806)
• A Power of Attorney grants authority for an attorney-in-fact to act on the principal’s behalf.
POAs & the California Probate Code
• There is no California statute establishing POAs as a means for the transfer or assignment of the powers, duties, and rights to an attorney-in-fact to serve as a custodial caregiver and advocate for a minor.
• §4123: “The attorney-in-fact may be granted authority with regard to the principal’s property, personal care, or any other matter.”
• No legal authority = inadequate protection
POAs of Minor lack legal authority
• In California, custody of a minor cannot be transferred from a parent to a nonparent without order of a judge.
• Documents called “Power of Attorney for Minor Child” or “Short-term Guardianship” do not transfer custody or otherwise authorize a nonparent to make decisions about a child’s care, custody, and control.
• Notarization does not make such documents any more effective.
POAs of Minor lack legal authority
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• Fails to address educational rights• Fails to address custodial rights• California child welfare laws are rooted in and
guided by minor’s best interest.• Susceptibility to unnecessary notary cost
• a power of attorney does not need to be notarized; rather, it may instead be signed by at least two witnesses, Probate Code §§4121(c), 4222.
• Susceptibility to notario fraud
Additional problems with POAs
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IV. GuardianshipsWhen to use them for Family Preparedness
• A legal process where a previously informal caregiver files a petition with the Probate Court to ask for legal custody of a child.
• Does not terminate parental rights; rather, it suspends parental rights temporarily.
• A legal guardian has the ability to act on the child’s behalf and make all decisions regarding the child.
What is a Guardianship?
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• Child needs significant advocacy (medical, etc.)• Parent has been removed and will not be
reunited w/ child for the foreseeable future• Parent will be detained for extended period of
time (discuss pros/cons)• Child has expressed a desire to remain in the
United States
When is a guardianship necessary?
• Parent and child will be reunited in foreseeable future.
• Be prepared for parent(s) to be apprehensive about discussing guardianship of their children.
When is a guardianship not needed?
• The caretaker should be over 18• The caretaker does not need to have lawful
status him/herself• The caretaker does not need to be a family
member• The caretaker must be willing to be responsible
for the child until their 18th birthday• The caretaker will need to undergo an
investigation by the Probate Court (if a family member) or the Department of Children and Family Services (if not a relative caretaker)
Guardian considerations
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• Parents can nominate someone to be appointed legal guardian of their child(ren)
• May use court form GC-211 for nomination• The nomination can be conditioned upon a
• The condition (detention, removal, etc.) must be clearly stated in writing in the nomination. May use court form MC-025 attached to the GC-211 for this purpose.
• Complete forms after discussing plan with the nominee and be certain that nominee knows location of forms in the event of parent’s detention.
• Nomination of a legal guardian does not expire.
When to file for guardianship?
• By operation of law a guardianship ends when:• Death of ward or guardian • Ward turns 18 years old• Ward is emancipated, married, joins armed
forces• A parent, legal guardian, and/or ward may
petition to terminate a guardianship.
Guardianship termination
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Slide Title Here
V. Child Welfare ProceedingsJuvenile Dependency
• What is Juvenile Dependency? • When the court intervenes on behalf of a minor who
has been or is at risk of being abused, neglected or abandoned. (See Welfare and Institutions code 300)
• Dependency is triggered when Child Protective Services (CPS), after investigating an allegation of abuse or neglect, files a petition with the court seeking to open a court case on behalf of a child and possibly seeking the removal of the child from a parents’ custody.
• Each county has its own dependency court. Each dependency court has its own court culture and local practices that can make it difficult to predict how a social worker will respond to any given situation.
Juvenile Dependency
• Right to Counsel, including incarcerated parents (Welfare and Institutions Code 317)
• Right to placement with relatives (Welfare and Institutions Code 319(d)(2))
• No grounds for petition if parents have made adequate arrangements (Welfare and Institutions Code 300(g)-parent has been incarcerated and cannot arrange for care)
Protections for All Parents
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• SB 1064 – law passed in 2012 to help ensure that undocumented immigrant parents and relatives are treated as equitably as possible in child custody and dependency cases in California• Requires reasonable efforts be made to
reunify a family even if parents are detained or deported
Special Protections for Immigrant Families
• Provides for extended reunification for immigration-related reasons
• Confirms that relatives should be given preferential placement even if they are undocumented
• Requires CDSS to provide guidance to child welfare agencies on assisting children eligible to apply for Special Immigrant Juvenile Status (SIJS), T and U-visas, and VAWA self-petitions.
SB 1064, cont.
• For more information, see https://www.ilrc.org/reuniting-immigrant-families-act-sb-1064
SB 1064, cont.
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Slide Title Here
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Family Preparedness Plan Every family should have a Family Preparedness Plan. While it is our hope that you never have to use your plan, it is a good practice to have one in place to help reduce the stress of the unexpected. This packet will help everyone create a Family Preparedness Plan, regardless of immigration status. However, because of the additional challenges immigrant and mixed status families face, we also have additional advice for immigrants. Make a Child Care Plan Have a plan so that a trusted adult can care for your child if you cannot. This plan should include emergency numbers, a list of important contact information and a file with important documents. This packet includes templates to put together these documents. Whether you want your child to accompany you to your home country in the event you face deportation, or wish for your child to stay in the United States in the care of another trusted adult, you should begin planning to make these arrangements. This packet includes information about the options available to create an informal or formal care arrangement for your child in California.
Find Out About Your Immigration Options
Information and resources to find good immigration legal help is included in this packet.
If you have a green card, find out if you can become a U.S. citizen. If you are here on a visa, find out if you can get a green card. If you do not have immigration status, find out if you may be eligible to get a green card, visa or work permit. If you have a criminal arrest or conviction, find out how it might affect your situation, or if there is a way to erase it from your record. If you are detained or put into deportation proceedings, ask for a hearing in front of a judge to get out of detention and to fight your deportation.
Know Your Rights
Everyone – both documented and undocumented persons – have rights in this country. Make sure you, your family members (even children), housemates, neighbors, and co-workers, regardless of their immigration status, know of their right to remain silent and all of their other rights if ICE or the police come to your home, neighborhood or workplace. A list of these rights, and a card asserting these rights, are included in this packet.
Child Care Plan Talk to Your Children About Your Plan Without worrying them, assure your children that they will be taken care of if for some reason you are unable to care for them, even for a short period of time. Let them know who will care for them until you can. Decide Who Can Care for Your Children if You Are Unable To Ideally, the person you designate to care for your children is a U.S. citizen or someone with immigration status who does not also face the threat of detention or deportation. Make sure that person knows they will be listed as an emergency contact and knows how to access all of your important documents and information. Memorize that person’s phone numbers and have your children memorize them too. Make sure your children know who can pick them from up school, who cannot pick them up from school, and who will care for them. Your child’s school may only release your child to adults you designate. Therefore, make sure to regularly update all school, afterschool, day care, summer camp, and other programs’ emergency contact sheets and release forms to include the names of those who can and cannot pick up your children. If you have a restraining order against anyone, make sure to give a copy of it to the school. Make sure the people who can pick up and care for your children are up to date on your child’s location and school. Provide them with all of the Important Children’s Information contained in the sample form in this packet. Write Down Instructions if Your Child Has Any Medical Conditions and /or Takes Any Medications Make sure to write down any medical conditions or allergies your child has, any medications that your child takes, as well as doctor and health insurance information. Keep a copy of this information in your important documents file. Give a copy to your child’s school and the adult you designate to care for your children. Let your child know where to find this information if you are not around. Decide What Kind of a Child Care Plan You Want to Put in Place
If you plan for your children to remain in the United States with another caretaker if you are detained or deported, decide whether to prepare a formal or informal child care plan.
There are various ways to plan for another adult to care for your child if you are unable to do so. Verbal Agreement. The most informal arrangement is to let another adult know of your wishes for your child and to verbally agree with that adult that they will carry out your wishes and care for your child if you cannot. The benefit of this is that it is informal and easy – you need not complete any forms or legal documents, and such an agreement will not affect your parental rights. The downside of this informal arrangement is that the other adult who you choose to care for your child will not have legal authority to make medical or school-related decisions on behalf of your child, which would be problematic if you were deported and unable to care for your child for an extended period of time. Caregiver’s Authorization Affidavit (“CAA”). The next option in California is to not only get another adult’s verbal agreement to care for your child in the event you are unable, but to have that adult complete a Caregiver’s Authorization Affidavit (“CAA”) that will allow them to make certain school and medical decisions on behalf of your child. The benefits of this approach include: the CAA can be given to your child’s school or health care provider so that the person you choose as the caregiver can make certain decisions for the child, and it does not affect your parental rights (you still have custody and control of your child). More information about the CAA and a form you can use are included at the end of this packet. Please note: the Caregiver’s Authorization Affidavit is for use in California only. Guardianship. The most formal arrangement you can make for your child if you are not available to care for them is to have a court appoint a guardian for your child. The benefit of a guardianship is that once someone has been appointed as a guardian by a California Probate Court, that person has full legal and physical custody of your child, meaning they “step into the shoes” of the parent and can make decisions on behalf of your child. (When a guardian is appointed, this does not terminate parental rights, it just suspends them while the guardianship is in place.) However, the drawback of a guardianship is that because it is a formal arrangement put in place by the Probate Court, if you want to terminate the guardianship and get your parental rights back, you must file a petition in the Probate Court requesting the court to do so, and it will be up to the judge to decide whether to the terminate the guardianship. Keep in mind that you cannot grant another person guardianship of your child informally or through a power of attorney – only a state court can do that. However, you can prepare a Form GC-211 to nominate a specific person to be the guardian of your child. The court will then consider the Form GC-211 if/when a guardianship petition is filed. You can also make the nomination conditional upon your detention and/or deportation by completing an attachment to the form GC-211 that specifies when the nomination will be effective. For a sample GC-211 and attachment, and additional information about guardianships, see Bet Tzedek Legal Service’s “How to Prepare for a Family Emergency Under the Trump Administration.” Nominating someone else to have legal custody of your child is a serious decision; you should talk to an attorney before taking this step.
A Note on Power of Attorney. A power of attorney is a written document that you can sign to grant another person the authority to act on your behalf in specified ways. For example, a power of attorney may be used to designate another person to handle your finances, make business decisions, use your money to pay your rent or mortgage, use your money to provide for your child, and similar actions. In California, we do not recommend that a power of attorney be used as a way to designate another person to care for your child. While a power of attorney may be a good option in other states, in California, it cannot be used to transfer custody of your children to another person (only a state court can do that). It may be possible to use a power of attorney to grant someone else the authority to make medical and educational decisions on behalf of your child, but in California completing the Caregiver’s Authorization Affidavit is a simpler and less costly way to do the same thing. If however you wish to give someone else the authority to access and use your finances in order to care for your child (a very serious decision that you should discuss with an attorney), you may wish to use a power of attorney.
Make Sure Your Children All Have Passports If your child was born in the United States, visit www.travel.state.gov for more information on obtaining a U.S. passport. If your child was born in your home country, check with your embassy or consulate for more information on obtaining a passport.
Inform Your Family and Emergency Contacts About How to Find You if You Are Detained by ICE Family members can use the ICE detainee locator: https://locator.ice.gov/odls/homePage.do. Be sure your family and emergency contacts have a copy of your A-Number (your alien registration number found on your immigration documents from ICE) if you have one.
Want to Do Even More? You can also register your child’s birth with your country’s government (for example, with your country’s consulate) if your child was born in the United States. This may grant your child benefits, including citizenship in your home country in some cases.
Important Children’s Information Keep this information so those you designate to care for your children in your absence have all
of the information they need. Child’s Name Date of Birth Child’s Cell Phone Number (if applicable) School School Address School Phone Number Teacher’s Name Classroom Number Afterschool Program Afterschool Program Phone Number Other Camp/Sports/Program Other Camp/Sports/Program Phone Number Allergies Medical conditions Medications Doctor’s Phone Number Doctor’s Address Health Insurance
Emergency Numbers and Important Contact Information
Keep this information in one place so that you and your family can access it easily.
Emergency Numbers Immediate Emergency 911 Police Department Fire Department Poison Control Family Contacts Mother/Parent/Guardian Home Phone Cell Phone Work Address Work Phone Father/Parent/Guardian Home Phone Cell Phone
Work Address Work Phone Other Emergency Contact and Relationship Cell Phone Other Emergency Contact and Relationship Cell Phone Other Emergency Contacts and Relationship Cell Phone Miscellaneous Contacts Doctor Phone Number Health Insurance Company Policy Number Pediatrician Phone Number Health Insurance Company Policy Number Dentist Phone Number Dental Insurance Company Policy Number Car Make/Model License Plate Number Car Insurance Company Insurance Policy Number Phone Number Consulate Address Phone Number Attorney/Nonprofit Legal Services Provider Address Phone Number Church/Temple/Mosque/Place of Worship Address Phone Number
File of Important Documents Keep a file of all of these documents or a copy of these documents in a safe place. Tell your children, family members and emergency caregiver where to find this file in an emergency.
Passports Birth Certificates Marriage License (if applicable) Caregiver’s Authorization Affidavit Any Restraining Orders you may have against anyone (if applicable) A-Number and any immigration documents (work permit, green card, visa, etc.) Documents demonstrating your residence in the United States and amount of time you have been physically present in the United States Driver’s License and/or Other Identification Cards Social Security Card or ITIN number Registry of birth (for U.S. born children registered in parent’s home country)(if applicable) Important Children’s Information Emergency Numbers and Important Contact Information Children(s)’ Medical Information, including health insurance, medication list, and doctor’s contact information Any other documents you would want to be able to quickly find
Find a local, nonprofit legal services organization that can help you find out if there is an immigration option for you to get a green card, work permit or visa, or protect you from deportation. Also, keep a list of these local organizations in case you ever have a problem with ICE. These organizations have attorneys who may be able to help you.
Warning! Protect Yourself from Fraud! Only a licensed attorney or accredited representative is authorized and qualified to assist you with your immigration case. Do not hire anyone who:
• Refuses to give you a written contract; • Charges you for blank immigration forms; • Promises you a good result because of their special contacts at Immigration; • Pretends to be a qualified lawyer or bonded immigration consultant; • Asks you to lie on a form or sign a blank document; or • Charges you to “get on a waiting list” or “put your application in line.” There is no list.
There is no line. If you suspect fraud, report it to your consulate or the police, or contact the Federal Trade Commission to file a complaint in English or Spanish at 877-FTC-HELP (877-382-4357). Visit Stop Notario Fraud for more information and resources: http://www.stopnotariofraud.org/ Do what you can now to protect you and your family in the United States. If you have a green card, find out if you can become a U.S. citizen. If you are here on a visa, find out if you can get a green card. If you do not have immigration status, find out if you may be eligible to get a visa or work permit. Also, review what to do if approached and questioned by ICE. If you have a criminal arrest or conviction, find out how it might affect your situation, or if there is a way to erase it from your record. If you are detained or put into deportation proceedings, ask for a hearing in front of a judge to get out of detention and to fight your deportation.
Find a Legal Services Provider The Immigration Advocates Network National Immigration Legal Services Directory lists nonprofit organizations that provide free or low-cost immigration legal services. You can use it to find an immigration service provider near you for a consultation. https://www.immigrationadvocates.org/nonprofit/legaldirectory/ Find an Info Session or Immigration Workshop Near You Ready California is a collaboration of California nonprofits organizations across the state. You can use the Ready California website to find local organizations as well as an events calendar that lists free immigration events throughout the state. These events may be DACA renewal workshops, Know Your Rights presentations, or Post-Election forums. http://ready-california.org/events-calendar/#1
Remain calm and do not try to run away. If you do, ICE or the police may use that against you.
Everyone – both documented and undocumented persons – has rights in this country. Talk to everyone in your family (including children) and household to make sure they all know what to do if approached by immigration officials (ICE) or if immigration officials (ICE) come to your house.
ICE at Your Door Do not open the door for ICE or any police officer without a signed warrant. You do not need to open the door unless an ICE agent can show you a warrant signed by a judge with your specific and correct name and address on it. If ICE knocks on your door, ask them to slide the search warrant under the door or show it through a window. Make sure the warrant is signed by a judge and has your address on it. If ICE or the police do not have this, then you do not have to open the door. Once you open the door, you lose certain rights.
Keep a Know Your Rights red card on you and by your door at all times. You can slide it under the door to ICE, show it to ICE, or read the English side of the card to ICE – it explains your rights and that you do not have to open the door. Have your children and other family members practice showing it or sliding it under the door.
Talking to ICE
You do not have to talk to ICE or answer their questions. You have the right to remain silent and can refuse to answer ICE’s questions. Say that you want to remain silent until you speak with a lawyer. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Do not give ICE any personal information about yourself or anyone in your family. Have your children and others in your family and household practice saying “No” to ICE.
You have the right to refuse to sign anything before you talk to a lawyer. Do not sign anything you do not understand and agree with. That could eliminate your right to speak with a lawyer or have a hearing in front of an immigration judge. This may result in you being deported immediately without a hearing.
Ask to speak with your lawyer and to go before the immigration judge. You have the right to speak to a lawyer and the right to make a phone call. Make sure to memorize or carry with you at all times the phone numbers of the person you will call in an emergency. Ideally, this person would be someone who can put your plans and wishes into place, call your immigration attorney, and access all of your important documents.
Other Resources Your Country’s Consulate Have the contact information for your country’s nearest consulate. Many consulates have an emergency number for cases where you need immediate assistance from the consulate. Have that number written down in case ICE detains you. Know Your Rights Materials and Other Resources There are a lot of resources available to teach you about your rights. Below are just a few places to start looking if you want to learn more about immigration law. Informed Immigrant: https://www.informedimmigrant.com/ Immigrant Legal Resource Center (ILRC): https://www.ilrc.org/community-resources National Immigration Law Center (NILC): https://www.nilc.org/
Documents You Should and Should Not Carry With You Carry a valid work permit or green card, if you have one. If you do not have one, generally it is advisable to carry a municipal ID, state ID or driver’s license if it was issued in the United States and contains no information at all about your immigration status or your country of origin. Ask a local immigration advocate about what kind of documents are safe to carry in your area. Carry a red card to exercise your right to remain silent in case you are stopped or interrogated by ICE or police officers. Carry the telephone number of someone who can put your plans and wishes into place, call your immigration attorney, and access all of your important documents in an emergency. Do not carry any documentation about your country of origin. Do not carry any false identity documents or false immigration documents.
Caregiver's Authorization Affidavit Instructions Please note: the Caregiver’s Authorization Affidavit is for use in California only.
Who completes and signs the Caregiver's Authorization Affidavit (CAA)? The person who will be acting as your child’s caretaker completes and signs the CAA. The parent does not need to sign the CAA. It is a good idea to have the person that you want to care for your child fill out the CAA in advance, but they should not sign or date it unless or until they need to use it (for example, only if you are actually detained or deported). Using the CAA, who can serve as a caregiver?
Any person, relative or non-relative, who is 18 years of age or older who completes the CAA may serve as a caregiver. What can the CAA be used for?
If the CAA is completed by a non-relative, it will allow that person to enroll your child in school and to consent to school-related medical treatment. School-related medical treatment includes immunizations, physical exams and medical exams conducted in school. If the CAA is completed by a relative (including a grandparent, aunt, uncle, or other qualified relative of the minor (see the back of the CAA template in this packet for the full definition of “qualified relative”), it will allow that person to enroll your child in school, consent to school-related medical treatment, and consent to most other forms of medical and dental care for your child. Does my child have to live with caregiver for the CAA to be valid?
Yes, in order for the CAA to be valid, your child needs to live with the caretaker. (Of course, the child does not need to live with the caregiver, and the caregiver does not need to use the CAA, unless and until you are no longer available to care for your child.) If your child stops living with the caregiver, the caregiver must notify any school, health care provider, or health care service plan that has been given the CAA. The CAA is invalid after the school, health care provider, or health care service plan receives notice that your child is no longer living with the caregiver. Does the CAA need to be notarized?
No, the CAA does not need to be notarized. There have been reports that some schools want a notarized copy of the CAA, but that is not required by law. Also, remember that the CAA is signed only by the caretaker, not by the parent(s).
Should I give the CAA to my child’s school and medical providers now and ask them to keep it on file?
No, the CAA should not be given to your child’s school or medical providers unless and until your child is living with the caretaker, and you as the parent are not available to make school and medical decisions for your child. Does the CAA expire?
Yes, the CAA will expire one year after the date it is signed. If I would like to have someone complete a CAA to be able to make certain decisions for my children in my absence, what steps should I take?
First, you should identify the person who you would like to serve as your child’s caretaker. Next, you should discuss with that person what the CAA does (it gives them power to make certain school and medical decisions on behalf of your child), and does not do (it does not give them legal custody of your child, guardianship over your child, or access to any of your financial resources to care for your child). Finally, you should have that person complete a CAA, but they should wait to sign and date it until it actually becomes necessary to use it. (It’s not necessary to sign and date it now since it won’t be needed unless or until you are actually unavailable to care for your child. Plus, it will expire one year after the date it is signed). The caregiver should keep the CAA in a safe place, and you should also keep a copy of it in your file of important documents in case the caregiver cannot locate theirs when it becomes necessary. Can a caregiver use the CAA to coordinate my child’s travel to my home country in the event I am deported and decide to have my children accompany me to my home country?
No, the CAA only allows the caregiver to make decisions related to school and medical issues for your child. Consult your home country’s embassy or consulate for information about facilitating your child’s travel to your home country if you will not accompany the child. Must my child’s caregiver have immigration status in the United States?
No, but ideally, the person you authorize to be your child’s caregiver would not also be at risk for deportation or detention. The person should be someone with a California driver's license or identification card (ID). If they do not have a California driver's license or ID, they should be ready to provide another form of identification such as a social security number or Medi-Cal number.
Use of this affidavit is authorized by Part 1.5 (commencing with Section 6550) of Division 11 of the California Family Code. Instructions: Completion of items 1-4 and the signing of the affidavit is sufficient to authorize enrollment of a minor in school and authorize school-related medical care. Completion of items 5 through 8 is additionally required to authorize any other medical care. Only complete items 5 through 8 if you are related to the child. Print clearly. The minor named below lives in my (the caregiver’s) home and I am 18 years of age or older. 1. Name of minor: ___________________________________________. 2. Minor's birth date: _________________________________________. 3. My name (adult giving authorization): _________________________. 4. My home address: ___________________________________________________________. 5. [ ] I am the minor’s grandparent, aunt, uncle, spouse, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, niece, nephew, first cousin, grandaunt, granduncle, great-grandparent, great-grandaunt, great-granduncle, or the spouse of one of these persons. 6. Check one or both (for example, if one parent was advised and the other cannot be located):
[ ] I have advised the parent(s) or other person(s) having legal custody of the minor of my intent to authorize medical care, and have received no objection. [ ] I am unable to contact the parent(s) or other person(s) having legal custody of the minor at this time, to notify them of my intended authorization.
7. My date of birth: ________________________________________. 8. My California driver's license or identification card number: ____________________. Warning: Do not sign this form if any of the statements above are incorrect, or you will be committing a crime punishable by fine, imprisonment, or both. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: _______________________ Signed: _______________________________________
1. This declaration does not affect the rights of the minor’s parents or legal guardian regarding the care, custody, and control of the minor, and does not mean that the caregiver has legal custody of the minor.
2. A person who relies on this affidavit has no obligation to make any further inquiry or investigation.
3. This affidavit is not valid for more than one year after the date on which it is executed. Additional Information: TO CAREGIVERS: 1. "Qualified relative," for purposes of item 5, means a spouse, parent, stepparent, brother, sister, stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or any person denoted by the prefix "grand" or "great," or the spouse of any of the persons specified in this definition, even after the marriage has been terminated by death or dissolution. 2. The law may require you, if you are not a relative or a currently licensed foster parent, to obtain a foster home license in order to care for a minor. If you have any questions, please contact your local department of social services. 3. If the minor stops living with you, you are required to notify any school, health care provider, or health care service plan to which you have given this affidavit. 4. If you do not have the information requested in item 8 (California driver's license or I.D.), provide another form of identification such as your social security number or Medi-Cal number. 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 caregiver. 2. The school district may require additional reasonable evidence that the caregiver lives at the address provided in item 4. TO HEALTH CARE PROVIDERS AND HEALTH CARE SERVICE PLANS: 1. No person who acts in good faith reliance upon a caregiver's authorization affidavit to provide medical or dental care, without actual knowledge of facts contrary to those stated on the affidavit, is subject to criminal liability or to civil liability to any person, or is subject to professional disciplinary action, for such reliance if the applicable portions of the form are completed. 2. This affidavit does not confer dependency for health care coverage purposes.
How to Prepare for a Family Emergency Our community faces the possibility of our families being separated. We advise you to make a family emergency plan in preparation for this worst-case scenario. Hopefully, you will not have to go to these measures, but if you do not have legal status, or you are not a citizen and have minor children in the United States, it is important to keep the following in mind.
Talk to your children and family:
In case you are detained, talk to your children about who will care for them while you are not available. Have the contact information of the person you assign as the caregiver of your children so that you can take care of your children.
Prepare important documents:
Keep the following important documents and information in a folder:
- Your children’s birth certificates; - Your children’s social security cards; - Your children’s passports; - Name and telephone number of your children's school and teachers; - Your children’s vaccination cards; - Copies of your children's health insurance cards; - Names and numbers of your children's doctors; - List of medicines your children are taking, if they are under medical treatment; - Other important information about your children; - Emergency numbers and important contact information; - Restraining/Protective order involving your children; - Caregiver Affidavit - GC-211 form - Conditional Nomination with the MC-025 attachment
Decide who will take care of your children:
Talk to your family and friends about the best plan for your family if you become detained and deported. Identify an adult who is willing to take responsibility for your children and talk to them about that responsibility. Name this person as an emergency contact in your child's schools. You and your children should memorize this person’s phone number. The adult you designate to care for your children can take on the role as a formal caregiver or an informal caregiver.
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Informal Family Caregivers have physical custody of a minor, but they have limited rights to make decisions about a child in their care because they do not have legal custody. We do not recommend that you obtain a power of attorney as a means of transferring custody of your children to the caregiver because this document is not valid; a power of attorney is not an effective means of transferring legal custody of your children. Legal custody can only be transferred from a parent to a caregiver by a judge. Parents should instead consider preparing a Caregiver Affidavit for the caregiver’s use.
Considerations regarding Caregiver Affidavits: With this document, the caregiver can enroll the child in school, and authorize some medical treatment. It is valid for one year from the date it is signed, and does not need to be notarized or submitted to a court. The information requested in the form relates to the child and caregiver (not the parent), and must be signed by the caregiver (not the parent). It does not confer any custody rights upon the caregiver. Legal Guardians are formal caregivers whose petitions to be appointed legal guardians have been approved by the Probate Court (Superior Court of Los Angeles). Once they have been appointed as legal guardians, they have full legal and physical custody of the minor. The legal guardian has the capacity to act on behalf of the child and to make decisions about the child just as a parent of the child normally would. The legal guardian has physical and legal custody. Establishing a guardianship does not terminate parental rights; rather parental rights are suspended for the duration of the guardianship. If a parent wishes to regain their rights and custody of their child, they may file a petition to terminate the guardianship; otherwise, the legal guardianship ends automatically upon the earliest of the following: when the minor turns 18, the minor marries, the minor emancipates, the minor enlists in the armed services, or death of either the minor or the guardian.
Considerations regarding Legal Guardianship: The person you want to be your child's guardian needs to be of legal age. They can be a relative or a nonrelative. If you have adult children, they can be the caretaker of your minor children. They do not need to have legal status, but must be willing to be investigated by the court (if relative) or the Department of Children and Family Services (DCFS) (if nonrelative) for the court to ensure that they has no serious criminal history, drug or alcohol problems, or allegations of child abuse/neglect against them. What are the benefits of being a Probate Court Legal Guardian? Permanent Resident Children and United States Citizens living with a legal guardian may qualify for:
- CalWORKS monthly cash assistance
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o The guardian's income should not be used to determine if the child qualifies for any of the programs
- Medical insurance through Medi-Cal - SSI (in cases of a child with an eligible disability) - Survivorship benefits
What is Probate Court legal guardianship? A legal process in which an informal caregiver files a petition with the Probate Court to request legal custody of the child. Legal guardianship does not terminate the rights of the child's parents, but rather suspends the rights of the parents temporarily. Can parents consent to legal guardianship? Yes, a parent may nominate and/or consent to the appointment of a guardian and the Court usually respects those wishes. When the guardianship is not opposed by parents or other relatives, the process is quite simple. The whole process usually takes between one and three months. Can someone still apply for guardianship if the parents do not give their consent or are not in communication with the caregiver? Yes, a person may file a petition requesting legal guardianship of the child even when a parent has not given consent or cannot be located. However, the law requires that the parents of the child, siblings, half-siblings, and grandparents be advised that this process is being conducted, to give them an opportunity to oppose the request if they so wish. How do you obtain legal guardianship?
1. Bet Tzedek can help the caregiver who lives in Southern California file the petition for legal guardianship if the caregiver is low income and qualifies for our services. Please contact Liz Gonzalez at (323)549-5825 for a consultation. Also, the Los Angeles Superior Court (111 N. Hill Street, Los Angeles, CA) has a self-help clinic administered by Public Counsel that assists with filing petitions without the representation of a lawyer.
2. The caregiver may file a petition with the court asking for legal guardianship of their children. The court requires that fees be paid to file the guardianship papers. However, the court may be asked to waive fees by completing and filing a Fee Waiver form.
3. The caregiver and the minor shall be required to attend an investigation by the Court or DCFS. There will then be a probate court hearing where a judge will determine whether to approve the petition for legal guardianship.
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What if the Department of Children and Family Services (DCFS) takes the children? In general, a relative receives a call from DCFS after the child has been taken out of the home of their parents. It is important that your children know who to call in case DCFS asks them whom they want to go to live with. DCFS may ask this family member to obtain legal guardianship to the Probate Court. The person you appoint to care for your children can call the DCFS helpline (1-800-540-4000) and say that they want to take care of the child and that they need the name and number of the emergency social worker. They should be ready to give the child's name, address, and age, and the parents' name. What documents you can have ready now: Caregiver Affidavit: This statement does not affect the rights of the child's parent with regard to the care, custody, and control of the child and does not mean that the caregiver has the legal guardianship of the child. This form allows the caregiver to register the child at school and consent to medical and dental treatment, including immunizations. The powers and limitations of the affidavit are listed on the back of the form. Conditional Nomination with Attachment MC-025 (GC-211): A parent can prepare a GC-211 form in which they nominate a specific person to be the guardian of their children. The nomination may be conditioned upon a potential future event, for example, if you are detained and/or deported.
Immigrant Legal Resource Center www.ilrc.org
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Important Children’s Information Keep this information so those you designate to care for your children in your absence have all
of the information they need.
Child’s Name Date of Birth Child’s Cell Phone Number (if applicable) School School Address School Phone Number Teacher’s Name Classroom Number Afterschool Program Afterschool Program Phone Number Other Camp/Sports/Program Other Camp/Sports/Program Phone Number Allergies Medical conditions Medications Doctor’s Phone Number Doctor’s Address Health Insurance
Emergency Numbers and Important Contact Information Keep this information in one place so that you and your family can access it easily.
Emergency Numbers Immediate Emergency 911 Police Department Fire Department Poison Control Family Contacts Mother/Parent/Guardian Home Phone Cell Phone Work Address Work Phone Father/Parent/Guardian Home Phone Cell Phone
Work Address Work Phone Other Emergency Contact and Relationship Cell Phone Other Emergency Contact and Relationship Cell Phone Other Emergency Contacts and Relationship Cell Phone
Miscellaneous Contacts Doctor Phone Number Health Insurance Company Policy Number Pediatrician Phone Number Health Insurance Company Policy Number Dentist Phone Number Dental Insurance Company Policy Number Car Make/Model License Plate Number Car Insurance Company Insurance Policy Number Phone Number Consulate Address Phone Number Attorney/Nonprofit Legal Services Provider Address Phone Number
File of Important Documents Keep a file of all of these documents or a copy of these documents in a safe place. Tell your children, family members and emergency caregiver where to find this file in an emergency.
Passports Birth Certificates Marriage License (if applicable) Caregiver’s Authorization Affidavit Any Restraining Orders you may have against anyone (if applicable) A-Number and any immigration documents (work permit, green card, visa, etc.) Driver’s License and/or Other Identification Cards Social Security Card or ITIN number Registry of birth (for U.S. born children registered in parent’s home country)(if applicable) Important Children’s Information Emergency Numbers and Important Contact Information Children(s)’ Medical Information, including health insurance, medication list, and doctor’s contact information Any other documents you would want to be able to quickly find
Use of this affidavit is authorized by Part 1.5 (commencing with Section 6550) of Division 11 of theCalifornia Family Code.
Instructions: Completion of items 1-4 and the signing of the affidavit is sufficient to authorizeenrollment of a minor in school and authorize school-related medical care. Completion of items 5-8 isadditionally required to authorize any other medical care. Print clearly.
The minor named below lives in my home and I am 18 of age or older.
1. Name of minor:
2. Minor's birth date:
3. My name (adult giving authorization):
4. My home address:
5. ���� I am a grandparent, aunt, uncle, or other qualified relative of the minor (see back of this form for adefinition of "qualified relative").
6. Check one or both (for example, if one parent was advised and the other cannot be located):
���� I have advised the parent(s) or other person(s) having legal custody of the minor of my intent toauthorize medical care and have received no objection.
���� I am unable to contact the parent(s) or other person(s) having legal custody of the minor at thistime to notify them of my intended authorization.
7. My date of birth:
8. My California driver's license or identification card number:
I declare under penalty of perjury under the laws of the State of California that the foregoing is true andcorrect.
Dated: Signed:
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Warning: Do not sign this form if any of the statements above are incorrect, or youwill be committing a crime punishable by a fine, imprisonment, or both.
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Notices:
1. This declaration does not affect the rights of the minor's parents or legal guardian regarding thecare, custody, and control of the minor and does not mean that the caregiver has legal custody ofthe minor.
2. A person who relies on this affidavit has no obligation to make any further inquiry orinvestigation.
3. This affidavit is not valid for more than one year after the date on which it is executed.
Additional Information:
To Caregivers:
1. "Qualified relative," for purposes of item 5, means a spouse, parent, stepparent, brother, sister,stepbrother, stepsister, half-brother, half-sister, uncle, aunt, niece, nephew, first cousin, or anyperson denoted by the prefix "grand" or "great," or the spouse of any of the persons specified inthis definition, even after the marriage has been terminated by death or dissolution.
2. The law may require you, if you are not a relative or currently licensed foster parent, to obtain afoster home license in order to care for a minor. If you have any questions, please contact yourlocal department of social services.
3. If the minor stops living with you, you are required to notify any school, health care provider, orhealth care service plan to which you have given this affidavit.
4. If you do not have the information requested in item 8 (California driver's license or I.D.),provide another form of identification such as your social security number or Medi-Cal number.
To School Officials:
1. Section 48204 of the Education Code provides that this affidavit constitutes a sufficient basis fordetermination of residency of the minor, without the requirement of a guardianship or othercustody order, unless the school district determines from actual facts that the minor is not livingwith the caregiver.
2. The school district may require additional reasonable evidence that the caregiver lives at theaddress provided in item 4.
To Health Care Providers and Health Care Service Plans:
1. No person who acts in good faith reliance upon a caregiver's authorization affidavit to providemedical or dental care, without actual knowledge of facts contrary to those stated on the affidavit,is subject to criminal liability or to civil liability to any person, or is subject to professionaldisciplinary action, for such reliance if the applicable portions of the form are completed.
2. This affidavit does not confer dependency for health care coverage purposes.
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The Reuniting Immigrant Families Act
Overview
The Reuniting Immigrant Families Act (“SB 1064” or “The Act”), enacted September 30, 2012, is the nation’s first law addressing the reunification barriers faced by many immigrant families involved with the child welfare system. The law clarifies that maintaining children’s ties to their families remains the priority despite barriers imposed by immigration status, including immigration detention and deportation.
Reasonable Efforts
The Act clarifies that reasonable efforts must be provided to reunify a family after the court and child welfare agency consider the particular barriers a detained or deported parent faces in accessing services and maintaining contact with the child.
The Act lists examples of ways the agency can help deported parents including helping them contact local child welfare authorities and obtaining services in their country.
Parents detained by immigration authorities can be ordered to engage in counseling, parenting classes, or vocational training programs under the Act, but only where those services are actually accessible. The Act also provides examples of how the agency can assist detained parents, including with phone and in-person visitation, transportation, and services for relatives and foster parents caring for the child.
For more information see ABA/ILRC Reasonable Efforts handout
Extended Reunification Periods
The Act added immigration-related issues to the list of compelling reasons for which the court can extend the period of family reunification services. As with other listed special circumstances, extension of the service period is not automatic. In determining whether to extend a reunification deadline, the court will examine:
Parental contact & visitation (taking into account any barriers posed by the parent’s immigration situation);
The parent’s progress in resolving the issues that led to the child’s placement in foster care; and Whether the parent has demonstrated the capacity or ability to complete his or her case plan.
Under SB 1064, courts also have the authority to extend the time period in which the agency may pursue a diligent search for a parent who may have been detained or deported, or to find a potential relative placement.
For more information see ABA/ILRC Reunification Period Extension handout
Relative Placements
SB 1064 includes a number of provisions confirming equal treatment of relatives, regardless of immigration status. Recent changes to the law:1
Prohibit the disqualification of relatives (including parents) based on immigration status alone; Clarify that relatives receive preferential placement consideration regardless of immigration status; Allow certain alternative types of documentation for non-citizen relative records checks; and Describe how a child removed from the custody of his or her parents may be placed with a relative
outside the United States if the court finds that placement to be in the best interest of the child.
For more information see ABA/ILRC Relative Placements handout
Immigration Relief Options
SB 1064 requires the California Department of Social Services to provide guidance to child welfare agencies on assisting children eligible to apply for Special Immigrant Juvenile Status (SIJS), T and U-visas, and Violence Against Women Act self-petitions. For more information see ABA/ILRC Immigration Relief handout
Encouraging Agency/Consulate MOUs
SB 1064 requires the California Department of Social Services to provide guidance on establishing Memoranda of Understanding (MOUs) with appropriate foreign consulates in juvenile court cases in which a parent has been arrested and issued an immigration hold, detained by DHS, or deported.
Sample MOUs & relevant policies are available at http://research.jacsw.uic.edu/icwnn/state-specific-resources/#California
For more information see ABA/ILRC Consulate MOU handout
1 Most of these recent changes were made by SB 1064. The last, which addresses a child’s placement outside the United States, was added by AB 2209, enacted July 17, 2012.
The Reuniting Immigrant Families Act Reasonable Efforts
The Reuniting Immigrant Families Act (“SB 1064” or “the Act”), enacted September 30, 2012, is the nation’s first law addressing the reunification barriers faced by many immigrant families in the child welfare system. This fact sheet provides information on the provisions of SB 1064 clarifying that reasonable efforts must be provided to prevent removal and achieve permanency, regardless of a family’s immigration status.
Under California and federal law, courts must ensure that reasonable efforts are provided by the Department of Social Services to prevent removal of children and to reach permanency if children are removed from the home. For all parents, the law requires an individualized case plan – meaning one that is “well defined, specific, and tailored to provide services that will lead to the resumption of a family relationship.”1 A plan must meet “the unique needs of each family.”2
The Act recognizes that deported or detained parents may have limited access to services, barriers to visitation, or difficulty completing other case plan tasks required by the agency or court.3 SB 1064 requires that reasonable services must be provided to help reunify a family after the court and agency consider the particular barriers a detained or deported parent faces in accessing services and maintaining contact with the child.4
Reasonable Efforts Must Be Provided for Deported Parents
Among other efforts that may meet the family’s individual needs, the Act indicates that the agency’s reasonable efforts to assist deported parents in reunifying with their children may include:
Helping deported parents contact their country’s child welfare authorities;
Identifying services in their country that can assist them in meeting case plan goals;
Documenting the parents’ participation in those services; and
Accepting reports from local child welfare authorities regarding a parent’s living situation, progress, and participation in services.5
1 In re Mario C., 276 Cal. Rptr. 548, 603 (Cal. App. 1990). 2 In re Precious J., 50 Cal. Rptr. 2d 385, 390 (Cal. App. 1996). 3 Cal. Welf. & Inst. § 361.5(a)(3). 4 Cal. Welf. & Inst. § 361.5(e)(1). 5 Cal. Welf. & Inst. § 361.5(e)(1)(E).
Reasonable Efforts Must Be Provided for Detained Parents
The Act specifies that for detained parents, among other efforts, the agency should, where appropriate, facilitate:
Phone calls between parents and children;
Visitation;
Transportation; and
Services for family members who could care for the child.6
The Act adds that a detained parent may be required to “attend counseling, parenting classes, or vocational training programs”7 but only if they actually have access to the services in the facility where they are detained.
Non-custodial/Non-offending Parents Are Entitled to Reasonable Efforts Regardless of Immigration Status
California law has long been clear that both parents are entitled to reunification efforts (if they are not given custody outright). Given SB 1064’s protections for custodial parents and relatives, no matter what their immigration status, it is clear that non-custodial/non-offending parents are entitled to placement or reunification efforts regardless of their citizenship status or foreign residency.8
Reunifying Immigrant Families Act Placement with Undocumented Relatives
California’s Reuniting Immigrant Families Act (“SB 1064” or “the Act”), enacted September 30, 2012, is the nation’s first law addressing the reunification barriers faced by many immigrant families in the child welfare system. This fact sheet provides information on the provisions of SB 1064 addressing placement of children with undocumented relatives, as well as how child welfare agencies and courts must treat those individuals. Placement of Children The Act is clear that the immigration status alone of a parent or relative cannot be a barrier to placement of the child with that person, including:
Release of the child to a parent, guardian, or responsible adult after the state takes temporary custody;1
Placement or custody with a non-custodial parent for a child removed in a dependency case;2 and
Placement in the care of a responsible relative for a child removed from the custody of his or her parents in a dependency case.3
Additionally, a child removed from the custody of his or her parents may be placed with a relative outside the United States if the court finds, upon clear and convincing evidence, that placement to be in the best interest of the child.4
Working with Undocumented Relatives in Dependency Cases
SB 1064 recognizes the great value to dependent children of maintaining children’s ties to their relatives, and includes provisions to facilitate the involvement of immigrant relatives.
A relative’s request for the child to be placed with him or her is still due preferential consideration by the child welfare agency, regardless of the relative’s immigration status.
The child welfare agency may use the relative’s foreign passport or consulate ID card as
a valid form of identification to initiate the criminal records check and fingerprint clearance check required for placement determinations.5
1 Cal. Welf. & Inst. §§ 309(a). 2 Cal. Welf. & Inst. § 361.2(e)(1). 3 Cal. Welf. & Inst. § 361.2(e)(2). 4 Cal. Welf. & Inst. § 361.2(f). This statutory amendment was added by AB 2209, Section 1, enacted July 17. 2012. 5 Cal. Welf. & Inst. §§ 309(d)(1), 361.4(b)(2).
The child welfare agency must give a relative caregiver information about the permanency options of guardianship and adoption, regardless of the caregiver’s immigration status. The information must be provided before legal guardianship is established or adoption is pursued, and must include the long-term benefits and consequences of each action.6
Other Custody Contexts
The Act’s prohibition against making caretaking determinations based solely on immigration status extends to state Family and Probate Courts.
In private custody cases, a person’s immigration status does not disqualify a person from receiving custody if the custody arrangement is otherwise in the child’s best interest.7
A relative may be considered for guardianship of a child in probate court regardless of the relative’s immigration status.8
The Reuniting Immigrant Families Act Reunification Period Extensions
The Reuniting Immigrant Families Act (“SB 1064” or “the Act”), enacted September 30, 2012, is the nation’s first law addressing the reunification barriers faced by many immigrant families in the child welfare system. This fact sheet provides information on the provisions of SB 1064 specifying that courts may extend reunification periods for immigrant families due to barriers imposed by immigration detention or deportation.
Prior to passage of SB 1064, California courts could extend the statutory reunification period based on compelling reasons and allow the county agency to continue to pursue reunification. These reasons included certain listed circumstances of parents, such as incarceration, institutionalization, and court-ordered residence in a substance abuse treatment program. SB 1064 broadened this list of circumstances to include parents who have been detained or deported by U.S. immigration authorities.1 Initial Dispositions The Act provides that in initial disposition orders, courts will ensure that:
Reunification services are provided for detained parents unless evidence is presented that services would be detrimental to the child.2
Reunification services are provided for deported parents including:
o Efforts made to identify services in their home country; and
o Acceptance of reports from foreign child welfare authorities regarding parental progress.3
These initial dispositional requirements reflect the reasonable efforts the agency must extend toward parents to help achieve the permanency goal of reunification. If the services included in the initial dispositional order or other reasonable efforts have not been provided by subsequent review periods, the court may extend the reunification period.
Up to 12 Months in Care*
Under California law, the reunification period is generally 12 months. Any party may move to terminate reunification services before the 12 month hearing if reunification seems significantly unlikely. The Act added that the court will consider any barriers imposed by deportation or
detention to visiting or completing case plan goals in hearing a motion to stop reunification services.4
*Note: Children who are under age 3 at the time of removal, or who have a sibling under the age of 3 may have a 6 month reunification service timeframe. Cal. Welf. & Inst. § 361.5(a).
At 12 Months
At the 12 month permanency hearing, the court may extend reunification services for 6 months if there is a “substantial probability” that the child will be returned during the time period OR if “reasonable services have not been provided to the parent.”5
To determine whether a “substantial probability” that the child will be returned exists, the court must find that the parent has:
Consistently maintained contact and visitation;
Made significant progress in resolving the reasons the child is in care; and
Demonstrated a capacity to complete his or her plan and provide a safe home.6
However, the court may consider in this decision any immigration related barriers to completing case plan tasks as well as good faith efforts the parent made to maintain contact with the child.7
At 18 Months
If reunification services have been provided for 18 months and the child remains out of the parent’s custody, the court may extend services for an additional 6 months if:
The parent was recently discharged from detention or has been deported and
Is making significant and consistent progress and
There is a substantial probability the child will be returned during the extended period.8
Immigration Relief Options for Dependent Children and their Families
The Reuniting Immigrant Families Act (“SB 1064” or “the Act”), enacted September 30, 2012, is the nation’s first law addressing the many barriers faced by immigrant families in the child welfare system. This fact sheet provides information on the provision of SB 1064 encouraging child welfare agencies to assist children eligible for certain immigration legal relief options. The Act requires the State Department of Social Services to provide guidance to child welfare agencies on assisting children eligible to apply for certain immigration legal relief options, including Special Immigrant Juvenile Status (SIJS), T and U-visas, and the Violence Against Women Act self-petitions.1 As social workers come into contact with immigrant children and families early in child welfare cases, they can be important resources for critical immigration relief information. This fact sheet includes brief summaries of the forms of immigration relief identified by SB 1064, as well as others (Asylum, DACA) that may be available to dependent immigrant children and their families. Each is a discretionary form of immigration relief that allows the applicant to live and work in the United States for the duration of the visa or status granted. As a best practice, workers should consider not only the relief options available directly to children, but also the relief available to parents, since children can derive certain forms of status from their parents. Special Immigrant Juvenile Status (SIJS) Special immigrant juvenile status is a pathway to lawful permanent residency for an unmarried non-citizen under age 21 for whom a juvenile court has made the following findings:
the child has been declared dependent on a juvenile court, or the court has placed the child under the custody of an agency, department of a state, individual, or entity appointed by a state or juvenile court;
the child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or a similar basis under state law; and
it is not in the child’s best interest to return to his/her country of origin.
Please see detailed fact sheet on SIJS at http://www.ilrc.org/info-on-immigration-law/remedies-for-immigrant-children-and-youth.
T Visas (Victims of Human Trafficking) The T Visa is available for a victim of human trafficking in the United States who meets the following requirements:
is or has been a victim of severe trafficking; is physically present in the U.S. as a result of the trafficking; if 18 years of age or above, is complying with any reasonable request for assistance in the
investigation or prosecution of traffickers; and would suffer extreme hardship involving unusual and severe harm upon removal.
U Visas (Crime Victims) The U Visa is available to a noncitizen who:
was the victim of certain qualifying criminal activity; suffered substantial physical or mental abuse as a victim of that criminal activity; has information regarding the criminal activity;
1 Cal. Welf. & Inst. § 10609.97
has been, is being, or is likely to be helpful to a federal, state, or local investigation or prosecution of the criminal activity;
has certification from a federal, state, or local judge, prosecutor, law enforcement officer, or other justice system official involved in investigating or prosecuting the criminal activity that he or she has been or is likely to be of help to the investigation or prosecution of the criminal activity;2 and
the crime occurred in the United States or violated U.S. law. Violence Against Women Act (VAWA) A person can petition for lawful permanent residency under VAWA if the person can show:
she has been battered or subjected to extreme cruelty by a U.S. citizen or Lawful Permanent Resident (LPR) spouse or parent or is the child (whether abused or not) of parent who was abused by a citizen or LPR spouse;
she lived at some point in time with the abuser, in or out of the U.S.; if she is self-petitioning based on abuse by a spouse, the marriage must have been legal and valid in
the location in which it took place; she has good moral character; and for abused children, they must be unmarried and under the age of 21 (although certain exceptions are
available for abused children to self-petition up to age 25). Asylum A person may qualify for asylum if he or she has experienced past persecution or has a well-founded fear of persecution in his or her home country on account of race, religion, nationality, political opinion, or membership in a particular social group. Although many children and their families may be afraid to return to their home country, they are only eligible for asylum if they can show that the persecution was or will be by the government or by a group that the government is unable or unwilling to control. Deferred Action for Childhood Arrivals (DACA) DACA3 is available to an individual who:
was under the age of 31 on June 15, 2012; came to the U.S. before reaching his or her 16th birthday; has continuously resided in the U.S. since June 15, 2007, up to the present time; was physically present in the U.S. on June 15, 2012, and at the time of making the request for
consideration of DACA with USCIS; entered without inspection before June 15, 2012, or the lawful immigration status expired as of June
15, 2012; is currently in school, has graduated or obtained a certificate of completion from high school, has
obtained a GED certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.; and
has not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
For fact sheets on immigration options for youth go to: http://www.ilrc.org/info-on-immigration-law/remedies-for-immigrant-children-and-youth. U.S. Citizenship and Immigration Services provides information about and relevant documents for each form of relief at www.uscis.gov.
2 Certification from a child welfare agency has been found acceptable by CIS. 3 DACA protects a person from deportation and provides work authorization, but is not a permanent immigration status.
The Reuniting Immigrant Families Act Encouraging Agency/Consulate MOUs
California’s Reuniting Immigrant Families Act (“SB 1064” or “the Act”), enacted September 30, 2012, is the nation’s first law addressing the reunification barriers faced by many immigrant families in the child welfare system. This fact sheet provides information on the provision of SB 1064 encouraging the development of Memoranda of Understanding (“MOUs”) between the child welfare agency and foreign consulates. Language of the Act SB 1064 requires DSS to provide guidance to county agencies on creating MOUs with foreign consulates to help facilitate information-sharing and cooperation regarding children in the California child welfare system.1 These MOUs would be relevant in juvenile court cases in which a parent has been detained by the U.S. Department of Homeland Security or has been deported to his or her country of origin. The Act directs that such MOUs include, at minimum, procedures for:
Contacting the foreign consulate at the beginning of a juvenile court case; Accessing documentation for the child; Locating a detained parent; Facilitating family reunification after the parent has been deported; Aiding the safe transfer of a child to the parent’s country of origin; Allowing reports from the foreign child welfare authorities documenting the parent’s
living situation; and Allowing reports from the foreign child welfare authorities documenting the parent’s
participation in service plans in the country of origin that comply with county case plan requirements.2
All-County Letter No. 14-21
The State Department of Social Services issued an All-County Letter regarding SB 1064 in March 2014. In addition to describing the Act’s requirements for measures to be included in any MOUs developed between a county child welfare agency and a foreign consulate, the All-County Letter provides a link to sample MOUs currently in place: www.childsworld.ca.gov/PG3466.htm.
The Vienna Convention on Consular Relations Notification to the consulate of a foreign national parent’s arrest or detention is required under the Vienna Convention on Consular Relations (“VCCR”).3 But the terms of the VCCR also trigger consular notification in cases involving minors. Specifically, it requires prompt consular notification when “appointment of a guardian or trustee appears to be in the interests of a minor” who is a foreign national.4 In addition to being required under the VCCR when the state has taken custody of a non-U.S. citizen child, notification and involvement of the consulate can lead to helpful collaboration in dependency cases. For example, consulate representatives could help locate a child’s parents or relatives in the U.S. or abroad, identify service providers and programs in the parent’s country of origin, work with U.S. immigration officials to secure a temporary parole to the U.S. of a parent for participation in state dependency court proceedings or to meet Case Plan requirements, and bridge language and other communication barriers with the family. As a result, the child welfare agency should:
Determine how to notify a consulate when a foreign national parent has been arrested and issued an immigration hold or detained;
Determine how to notify a consulate when a non-U.S. citizen child, dual citizen child, or U.S. citizen child of foreign nationals is removed from his or her home and taken into state custody;
Safeguard confidential information protected by federal, state, or local law or rules;
Consider whether to develop MOUs with foreign consulates to facilitate the notification process, adhering to SB 1064 requirements;5 and
Make notification decisions on a case-by-case basis, and in consultation with the parent or child. Sharing an individual’s information with the consulate may be harmful to a person with an asylum claim of persecution by the foreign government.
3 Vienna Convention on Consular Relations, 21 U.S.T. 77, Art. 36, ratified by the United States Dec. 24, 1969. The Vienna Convention defines the roles and duties of consular offices and related requirements for countries hosting those offices, including consular notification and access when foreign nationals are involved in certain civil and criminal legal proceedings. If the parent is a Mexican national, also applicable is the Consular Convention Between the United States of America and the United Mexican States, 57 Stat. 800, entered into force July 1, 1943. 4 Vienna Convention at Art. 37(b). See also Art. 5(h). Because a U.S. citizen child may have dual citizenship in another country and those children’s parents are likely foreign nationals, consular notification when a U.S. citizen child is taken into state custody is good practice, though not required under the Vienna Convention based on the child’s removal alone. 5 Several counties already have agreements with Mexican consulates. See http://cssr.berkeley.edu/ucb_childwelfare/lpac/Resources.aspx?topic=3&subTopic=20 for existing policies and forms.
FREE ADVICE from
EXPERTS IN IMMIGRATION IN CHILD WELFARE
Do you have dependency cases where the children come from immigrant families? Immigration issues can affect their case in court. Even if the child is a citizen, the immigration status of their parents or guardians can be
a major issue in their case.
Staff attorneys at the Immigrant Legal Resource Center and American Bar Association’s Center on Children and the Law can offer technical assistance on any immigration related issues that arise in the course of working with children and families in the child welfare system.
1. Figuring out immigration status 2. Finding a parent in immigration detention 3. Specific case assistance such as on Special Immigrant Juvenile Status 4. Advice on new California law, Reuniting Immigrant Families Act (SB 1064) 5. Advice on the new parental interests directive by Immigration and Customs Enforcement 6. Advice on how to navigate the immigration system for recently arrived immigrant youth
Many undocumented minors are eligible to obtain legal status in the U.S. Special Immigrant Juvenile Status (SIJS) Violence Against Women Act (VAWA) T Visas for Trafficking Victims U Visas for Victims of Crime Asylum Family Immigration and Adoption
Contact: [email protected] for expert advice on juvenile immigration issues Please identify your name, agency if relevant, county, and in what capacity you are involved in the dependency case. Email is the preferred first point of contact. Follow up phone consults are available. The ILRC and ABA will usually be able to assist within 72 hours of the request. We are closed for technical assistance on major holidays.
Applying the ICE Parental Interests Directive to Child Welfare Cases
In 2013, U.S. Immigration and Customs Enforcement (ICE) issued a Parental Interests Directive to provide federal guidelines regarding immigration enforcement against parents and legal guardians. The Directive emphasizes that ICE should respect an immigrant parent’s rights and responsibilities, and seeks to ensure that “immigration enforcement activities do not unnecessarily disrupt” parental rights.1 The Directive applies to all parents and guardians involved with ICE, with particular attention to:
Primary caretakers of minor children of any immigration status; Parents or legal guardians who have a direct interest in a family court proceeding
involving a minor or child welfare proceedings; o This includes both dependency and private custody cases; and
Parents, both custodial and non-custodial, and legal guardians of U.S. citizen or lawful permanent resident (LPR) minor children.
The Directive contains important provisions relevant to child welfare agencies and child welfare attorneys, including:
ICE Decision-Making – While ICE offices have discretion in how to handle cases, the Directive provides guidance to try to minimize the negative impact of immigration actions on families. This includes guidance that ICE should:
o Consider whether it should prosecute parents for immigration violations.2 o Consider refraining from detaining parents initially. o Attempt to place parents in detention as close as practical to their child or their
child’s court case.3 Tips: Locate a detained parent through https://locator.ice.gov/odls/homePage.do. Contact the relevant field office and inform ICE of the existing child welfare case. Workers can provide case documentation or court orders, and can encourage ICE to detain the parent in a nearby detention facility or to not detain at all. Balance what information in documentation or orders would facilitate parental participation through ICE with what information is confidential or not in the parent’s interest to share.
Participation in Family & Child Welfare Proceedings
o When possible, ICE should arrange for transportation to family court or child welfare proceedings for detained parents/guardians.4
o If transporting the parent is impractical, ICE should allow other participation, such as by phone or video.5
1 U.S. Immigration & Customs Enforcement, 11064.1: Facilitating Parental Interests in the Course of Civil Immigration Enforcement Activities, 1, (2013); available at http://www.ice.gov/doclib/detention-reform/pdf/parental_interest_directive_signed.pdf. 2 Id. at 5.2(1). 3 Id. at 5.3. 4 Id. at 5.4(1). 5 Id. at 5.4(2).
Tips: Request that the court order the detained parent to attend the proceedings. Provide that order as part of a request to ICE to transport the parent to court or facilitate his or her appearance by video or phone. Agency documentation may be provided to ICE to request the parent’s involvement in meetings and other events outside court that are still important “proceedings” affecting the parent-child relationship.
Parent-Child Visitation – ICE will facilitate visitation if indicated by court order, case
plan, or other documentation to the extent practical between detained parents/guardians and children, including:
o Face-to-face visits in ICE detention facilities, safety and security permitting. o Visitation through video or teleconferencing from the detention facility or the
field office if face-to-face visitation is not possible, if approved by the court or child welfare agency.6
Tips: Request that the court order encourage in-person visits between the detained parent and child. Provide that order to ICE when requesting facilitation of those visits.
Coordinating Care or Travel of Children o When a detained parent/guardian is subject to a final order of deportation from the
U.S., to the extent possible, ICE should accommodate parents’/guardians’ efforts to make provisions for their children before deportation. This may include: Arranging guardianship for the children to remain in the U.S.; or Obtaining travel documents for the children to accompany their parents to
the foreign country.7 Tips: Talk to the parent about relatives and other possible caregivers and secure their contact information. Reach out to possible caregivers to help make arrangements, since the parent may have a limited ability to do so before deportation. Identify who has documents the child would need to travel outside the U.S. or to return to the U.S. if an American citizen – the child? a non-detained parent? other relatives or friends? – and gather those materials. (Materials could include a birth certificate, social security card, passport, other identification card, etc.) Coordinate the child’s travel with ICE.
Return for Termination of Parental Rights Hearings – On a case-by-case basis, ICE
may facilitate the return of a parent to the U.S. who has been removed to attend termination hearings where in-person participation in court is required.8
Tips: Request a court order directing the parent to participate in court hearings or critical agency meetings in person. Provide this order to ICE, requesting the parent’s return to the U.S. for these proceedings.
For questions about implementation of the Directive in your area, see directions for contacting ICE Field Offices’ “Points of Contact”: http://www.ice.gov/about/offices/enforcement-removal-operations/parental-directive.htm.
6 Id. at 5.5. 7 Id. at 5.6. 8 Id. at 5.7 Although the Directive specifically refers to proceedings “related to his or her termination of parental…rights,” (emphasis added) decisions made at every dependency hearing and at important agency case conferences/meetings can potentially form the basis for later TPR petitions under the Adoption and Safe Families Act, depending on the case goal and parent’s circumstances.
PLAN DE PROTECCIÓN FAMILIAR: TRANQUILOS, INFORMADOS, PREPARADOS, Y SEGUROS -- TIPS
Febrero 2017
Por el Immigrant Legal Resource Center
TRANQUILOS • El presidente no puede cambiar las leyes, pero si puede crear políticas. • Solo el Congreso puede crear o modificar leyes de inmigración. • 41 senadores pueden detener cualquier propuesta de ley de inmigración. • Trump no puede eliminar beneficios de inmigración establecidos por ley, como visas familiares, la visa
U, o el asilo. • Para la mayoría de personas indocumentadas, el riesgo de ser deportado es mínimo, sobre todo si
están…
INFORMADOS Y PREPARADOS
1. Informase sobre sus Opciones de Inmigración Consulte con un proveedor de servicios legales de confianza para entender sus opciones legales y si califica para algún beneficio de inmigración. No un notario. Opciones incluyen: visas familiares, Visa U, y para defenderse en la corte de inmigración si es necesario: cancelación de deportación (cancellation of removal) y el asilo. Puede llenar un cuestionario gratis en http://iamerica.org/es/immi para orientarse sobre posibles opciones y recibir referencias de servicios legales en su área.
2. Conozca Sus Derechos en caso de tener contacto con ICE Todos, sin importar nuestro estatus legal, tenemos derechos constitucionales ante las autoridades de inmigración. • Guarde Silencio: Permanezca callado. • No Abra la Puerta: Si llegan agentes de inmigración a su casa. • No Firme Nada. Tiene derecho consultar con un abogado.
Puede entregar la tarjeta roja a un agente de inmigración informándole que tiene el derecho de no contestar sus preguntas y de no dejarle entrar a su casa. Vea https://www.ilrc.org/red-cards.
3. Evite Arrestos y Cargos Criminales Evite contacto negativo con la policía. Personas con una convicción por un DUI, violencia doméstica, posesión de drogas u otros delitos corren mucho más riesgo. Arrestos u otro contacto con la policía puede exponer a uno a las autoridades de inmigración.
4. Únase a un Grupo Comunitario La comunidad es una gran fuente de fuerza, conocimiento, y poder. Si actúa en conjunto, puede ayudar a más personas.
5. Tenga un Plan Familiar Tenga un plan para el cuidado de sus hijos. Ponga personas responsables en la lista de contactos de
emergencia que mantiene la escuela de sus hijos. Complete un “Caregiver’s Authorization Affidavit” que es una declaración que permite una persona responsable hacer cosas básicas para sus hijos.
Memorice el teléfono de un amigo, familiar, o abogado al que pueda llamar en caso de detención. Guarde sus documentos importantes (actas de nacimiento, documentos migratorios) en un lugar seguro,
Haga una Carta de Poder para autorizar a una persona responsable cuidar de sus niños y tomar decisiones en su nombre.
Registre a sus hijos nacidos en los Estados Unidos en el consulado de su país de origen.
6. En caso de Detención por ICE ¡Tranquilos! El riesgo de ser detenidos es mínimo. Pero más vale prevenir que lamentar.
Siga su Plan de Defensa Legal (y ayuda legal) No acepte la Salida Voluntaria sin el consejo de un abogado Pida una audiencia en la corte frente a un juez de inmigración Ahorre $$ para pagar una fianza Asegúrese de que sus seres queridos lo puedan localizar si usted es detenido:
• Use el localizador de detenidos de ICE (https://locator.ice.gov/odls/homePage.do) • Llame a la oficina local de ICE (https://www.ice.gov/contact/ero)
Asegúrese de tener su número de extranjero (A#), si tiene uno, donde lo pueda localizar con facilidad
Complete una Carta Firmada declarando que quiere una audiencia y no acepta salida voluntaria o deportación sin una audiencia.
Ejemplo: I, [NOMBRE], want to exercise my right to have an immigration court hearing. I do not accept either voluntary departure or removal (deportation) without having a court hearing. ** Quiero ejercer mi derecho de tener una audiencia en la corte de inmigración. No acepto ni la salida voluntaria ni la deportación sin tener una audiencia. ___________________________________________________ NAME/NOMBRE ___________________________________________________ SIGNATURE/FIRMA ___________________________________________________ DATE/FECHA
Cosas que Debe Llevar Consigo para Estar Preparado
1. Tarjeta de Teléfono Pre-Pagado con a lo menos 200 minutos. Guarde el número de teléfono y código de la tarjeta en un papel porque si es detenido, es probable que no lo dejen quedarse con la tarjeta plástica. Así, va a poder hacer llamadas desde un teléfono público que hay en muchas cárceles y centros de detención.
2. Números de teléfonos importantes, incluyendo los números de abogados y de amigos o familiares.
3. La tarjeta roja para informar a un agente de inmigración que está ejerciendo su derecho de no hablar con él.
