BILL NUMBER: AB 595 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Adams
FEBRUARY 25, 2009
An act to amend Section 1522 of the Health and Safety Code, and to
amend Section 361.4 of the Welfare and Institutions Code, relating
to children, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 595, as introduced, Adams. Placement of children: criminal
background checks.
(1) Existing law, the California Community Care Facilities Act,
provides for the licensure and regulation of community care
facilities, including foster family homes and foster family agencies,
by the State Department of Social Services. Violation of these
provisions is a misdemeanor.
Existing law requires a criminal record check of applicants for a
license, special permit, or certificate of approval for a foster
family home or certified family home, and other persons, including
nonclients who reside in those homes and staff and employees.
Existing law requires that an application be denied, unless the
Director of Social Services grants an exemption, if it is found that
the applicant or any of the other designated persons has been
convicted of prescribed crimes.
This bill would prohibit the State Department of Social Services
or other approving authority from issuing a license or certificate of
approval to any foster family home or certified family home
applicant who has not obtained both a California and Federal Bureau
of Investigation criminal record clearance or an exemption from
disqualification, as prescribed.
This bill would, to the same extent required for federal funding,
effective October 1, 2008, prohibit the director from granting an
exemption where a foster care provider applicant or any of the other
designated persons have been convicted of certain felonies at any
time and other felonies in the previous 5 years. This bill would
prohibit exemptions under these circumstances for foster care
providers, as specified, in those homes where the individual has been
convicted of murder or voluntary manslaughter.
(2) Existing law sets forth circumstances under which a minor may
be adjudged a dependent child of the juvenile court, and establishes
procedures to determine the temporary placement of a dependent child.
Existing law requires a county social worker to visit the home of
a relative or prospective guardian who is not a licensed or certified
foster parent, prior to placing the child in that home, to ascertain
the appropriateness of the placement. Existing law also requires the
court or county social worker to initiate a state and federal
criminal records check through the California Law Enforcement
Telecommunications System as part of their assessment. Existing law
provides that these provisions shall remain in effect only until
January 1, 2010, and as of that date is repealed, unless a later
enacted statute, that is enacted before January 1, 2010, deletes or
extends that date.
This bill would prohibit placement of the child in the home of a
person if the criminal records check indicates the person has been
convicted of a crime that the Director of Social Services cannot
grant an exemption for with respect to foster family home and
certified family home applicants.
This bill would also prohibit placement of a child in the home of
a person who has been convicted of a crime that the Director of
Social Services may grant an exemption for unless a criminal records
exemption has been granted by the county, based on substantial and
convincing evidence, to support a reasonable belief that the person
with the criminal conviction is of such good character as to justify
the placement and not present a risk of harm to the child.
This bill would repeal the provisions relating to the sunset and
repeal of these existing law provisions.
To the extent this bill would impose additional duties on county
welfare departments, this bill would create a state-mandated local
program.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(4) This bill would declare that it is to take effect immediately
as an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1522 of the Health and Safety Code is amended
to read:
1522. The Legislature recognizes the need to generate timely and
accurate positive fingerprint identification of applicants as a
condition of issuing licenses, permits, or certificates of approval
for persons to operate or provide direct care services in a community
care facility, foster family home, or a certified family home of a
licensed foster family agency. Therefore, the Legislature supports
the use of the fingerprint live-scan technology, as identified in the
long-range plan of the Department of Justice for fully automating
the processing of fingerprints and other data by the year 1999,
otherwise known as the California Crime Information Intelligence
System (CAL-CII), to be used for applicant fingerprints. It is the
intent of the Legislature in enacting this section to require the
fingerprints of those individuals whose contact with community care
clients may pose a risk to the clients' health and safety. An
individual shall be required to obtain either a criminal record
clearance or a criminal record exemption from the State Department of
Social Services before his or her initial presence in a community
care facility.
(a) (1) Before issuing a license or special permit to any person
or persons to operate or manage a community care facility, the State
Department of Social Services shall secure from an appropriate law
enforcement agency a criminal record to determine whether the
applicant or any other person specified in subdivision (b) has ever
been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in Section 290 of the Penal Code,
for violating Section 245 or 273.5, of the Penal Code, subdivision
(b) of Section 273a of the Penal Code, or, prior to January 1, 1994,
paragraph (2) of Section 273a of the Penal Code, or for any crime for
which the department cannot grant an exemption if the person was
convicted and the person has not been exonerated.
(2) The criminal history information shall include the full
criminal record, if any, of those persons, and subsequent arrest
information pursuant to Section 11105.2 of the Penal Code.
(3) Except during the 2003-04 through to
the 2009-10 fiscal years, inclusive, neither the Department of
Justice nor the State Department of Social Services may charge a fee
for the fingerprinting of an applicant for a license or special
permit to operate a facility providing nonmedical board, room, and
care for six or less children or for obtaining a criminal record of
the applicant pursuant to this section.
(4) The following shall apply to the criminal record information:
(A) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b), has been
convicted of a crime other than a minor traffic violation, the
application shall be denied, unless the director grants an exemption
pursuant to subdivision (g).
(B) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) is
awaiting trial for a crime other than a minor traffic violation, the
State Department of Social Services may cease processing the
application until the conclusion of the trial.
(C) If no criminal record information has been recorded, the
Department of Justice shall provide the applicant and the State
Department of Social Services with a statement of that fact.
(D) If the State Department of Social Services finds after
licensure that the licensee, or any other person specified in
paragraph (2) (1) of subdivision (b),
has been convicted of a crime other than a minor traffic violation,
the license may be revoked, unless the director grants an exemption
pursuant to subdivision (g).
(E) An applicant and any other person specified in subdivision (b)
shall submit fingerprint images and related information to the
Department of Justice for the purpose of searching the criminal
records of the Federal Bureau of Investigation, in addition to the
criminal records search required by this subdivision. If an applicant
and all other persons described in subdivision (b) meet all of the
conditions for licensure, except receipt of the Federal Bureau of
Investigation's criminal offender record information search response
for the applicant or any of the persons described in subdivision (b),
the department may issue a license if the applicant and each person
described in subdivision (b) has signed and submitted a statement
that he or she has never been convicted of a crime in the United
States, other than a traffic infraction, as defined in paragraph (1)
of subdivision (a) of Section 42001 of the Vehicle Code. If, after
licensure, the department determines that the licensee or any other
person specified in subdivision (b) has a criminal record, the
license may be revoked pursuant to Section 1550. The department may
also suspend the license pending an administrative hearing pursuant
to Section 1550.5.
(F) The State Department of Social Services shall develop
procedures to provide the individual's state and federal criminal
history information with the written notification of his or her
exemption denial or revocation based on the criminal record. Receipt
of the criminal history information shall be optional on the part of
the individual, as set forth in the agency's procedures. The
procedure shall protect the confidentiality and privacy of the
individual's record, and the criminal history information shall not
be made available to the employer.
(G) Notwithstanding any other provision of law,
the department is authorized to provide an individual with a copy of
his or her state or federal level criminal offender record
information search response as provided to that department by the
Department of Justice if the department has denied a criminal
background clearance based on this information and the individual
makes a written request to the department for a copy specifying an
address to which it is to be sent. The state or federal level
criminal offender record information search response shall not be
modified or altered from its form or content as provided by the
Department of Justice and shall be provided to the address specified
by the individual in their his or
her written request. The department shall retain a copy of the
individual's written request and the response and date provided.
(b) (1) In addition to the applicant, this section shall be
applicable to criminal convictions of the following persons:
(A) Adults responsible for administration or direct supervision of
staff.
(B) Any person, other than a client, residing in the facility.
(C) Any person who provides client assistance in dressing,
grooming, bathing, or personal hygiene. Any nurse assistant or home
health aide meeting the requirements of Section 1338.5 or 1736.6,
respectively, who is not employed, retained, or contracted by the
licensee, and who has been certified or recertified on or after July
1, 1998, shall be deemed to meet the criminal record clearance
requirements of this section. A certified nurse assistant and
certified home health aide who will be providing client assistance
and who falls under this exemption shall provide one copy of his or
her current certification, prior to providing care, to the community
care facility. The facility shall maintain the copy of the
certification on file as long as care is being provided by the
certified nurse assistant or certified home health aide at the
facility. Nothing in this paragraph restricts the right of the
department to exclude a certified nurse assistant or certified home
health aide from a licensed community care facility pursuant to
Section 1558.
(D) Any staff person, volunteer, or employee who has contact with
the clients.
(E) If the applicant is a firm, partnership, association, or
corporation, the chief executive officer or other person serving in
like capacity.
(F) Additional officers of the governing body of the applicant, or
other persons with a financial interest in the applicant, as
determined necessary by the department by regulation. The criteria
used in the development of these regulations shall be based on the
person's capability to exercise substantial influence over the
operation of the facility.
(2) The following persons are exempt from the requirements
applicable under paragraph (1):
(A) A medical professional as defined in department regulations
who holds a valid license or certification from the person's
governing California medical care regulatory entity and who is not
employed, retained, or contracted by the licensee if all of the
following apply:
(i) The criminal record of the person has been cleared as a
condition of licensure or certification by the person's governing
California medical care regulatory entity.
(ii) The person is providing time-limited specialized clinical
care or services.
(iii) The person is providing care or services within the person's
scope of practice.
(iv) The person is not a community care facility licensee or an
employee of the facility.
(B) A third-party repair person or similar retained contractor if
all of the following apply:
(i) The person is hired for a defined, time-limited job.
(ii) The person is not left alone with clients.
(iii) When clients are present in the room in which the
repairperson repair person or contractor is
working, a staff person who has a criminal record clearance or
exemption is also present.
(C) Employees of a licensed home health agency and other members
of licensed hospice interdisciplinary teams who have a contract with
a client or resident of the facility and are in the facility at the
request of that client or resident's legal decisionmaker. The
exemption does not apply to a person who is a community care facility
licensee or an employee of the facility.
(D) Clergy and other spiritual caregivers who are performing
services in common areas of the community care facility or who are
advising an individual client at the request of, or with the
permission of, the client or legal decisionmaker, are exempt from
fingerprint and criminal background check requirements imposed by
community care licensing. This exemption does not apply to a person
who is a community care licensee or employee of the facility.
(E) Members of fraternal, service, or similar organizations who
conduct group activities for clients if all of the following apply:
(i) Members are not left alone with clients.
(ii) Members do not transport clients off the facility premises.
(iii) The same organization does not conduct group activities for
clients more often than defined by the department's regulations.
(3) In addition to the exemptions in paragraph (2), the following
persons in foster family homes, certified family homes, and small
family homes are exempt from the requirements applicable under
paragraph (1):
(A) Adult friends and family of the licensed or certified foster
parent, who come into the home to visit for a length of time no
longer than defined by the department in regulations, provided that
the adult friends and family of the licensee are not left alone with
the foster children. However, the licensee, acting as a reasonable
and prudent parent, as defined in paragraph (2) of subdivision (a) of
Section 362.04 of the Welfare and Institutions Code, may allow his
or her adult friends and family to provide short-term care to the
foster child and act as an appropriate occasional short-term
babysitter for the child.
(B) Parents of a foster child's friends
friend when the foster child is visiting the friend's home and
the friend, licensed or certified foster parent, or both are also
present. However, the licensee, acting as a reasonable and prudent
parent, may allow the parent of the foster child's friends
friend to act as an appropriate short-term
babysitter for the child without the friend being present.
(C) Individuals who are engaged by any licensed or certified
foster parent to provide short-term care to the child for periods not
to exceed 24 hours. Caregivers shall use a reasonable and prudent
parent standard in selecting appropriate individuals to act as
appropriate occasional short-term babysitters.
(4) In addition to the exemptions specified in paragraph (2), the
following persons in adult day care and adult day support centers are
exempt from the requirements applicable under paragraph (1):
(A) Unless contraindicated by the client's individualized program
plan (IPP) or needs and service plan, a spouse, significant other,
relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to the client.
(B) A volunteer if all of the following applies:
(i) The volunteer is supervised by the licensee or a facility
employee with a criminal record clearance or exemption.
(ii) The volunteer is never left alone with clients.
(iii) The volunteer does not provide any client assistance with
dressing, grooming, bathing, or personal hygiene other than washing
of hands.
(5) (A) In addition to the exemptions specified in paragraph (2),
the following persons in adult residential and social rehabilitation
facilities, unless contraindicated by the client's individualized
program plan (IPP) or needs and services plan, are exempt from the
requirements applicable under paragraph (1): a spouse, significant
other, relative, or close friend of a client, or an attendant or a
facilitator for a client with a developmental disability if the
attendant or facilitator is not employed, retained, or contracted by
the licensee. This exemption applies only if the person is visiting
the client or providing direct care and supervision to that client.
(B) Nothing in this subdivision shall prevent a licensee from
requiring a criminal record clearance of any individual exempt from
the requirements of this section, provided that the individual has
client contact.
(6) Any person similar to those described in this subdivision, as
defined by the department in regulations.
(c) (1) Subsequent to initial licensure, any
a person specified in subdivision (b) and
who is not exempted from fingerprinting shall
, as a condition to employment, residence, or presence in a
community care facility, be fingerprinted and sign a declaration
under penalty obtain either a criminal record
clearance or an exemption from disqualification pursuant to
subdivision (g) from the State Department of Social Services prior to
employment, residence, or initial presence in the facility. A person
specified in subdivision (b) who is not exempt from fingerprinting
shall be fingerprinted and shall sign a declaration under penalty
of perjury regarding any prior criminal convictions. The
licensee shall submit fingerprint images and related information to
the Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level
criminal offender record information search, or to
comply with paragraph (1) of subdivision (h) , prior to the
person's employment, residence, or initial presence in the community
care facility . These fingerprint images and related
information shall be sent by electronic transmission in a manner
approved by the State Department of Social Services and the
Department of Justice for the purpose of obtaining a permanent set of
fingerprints, and shall be submitted to the Department of Justice by
the licensee. A licensee's failure to submit fingerprints
to the Department of Justice prohibit the employment,
residence, or initial presence of a person specified in subdivision
(b) who is not exempt from fingerprin ting and
who has not received either a criminal record clearance or an
exemption from disqualification pursuant to subdivision (g) or
to comply with paragraph (1) of subdivision (h), as required in this
section, shall result in the citation of a deficiency and the
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation per day for a maximum of five days,
unless the violation is a second or subsequent violation within a
12-month period in which case the civil penalties shall be in the
amount of one hundred dollars ($100) per violation for a maximum of
30 days, and shall be grounds for disciplining the licensee pursuant
to Section 1550. The department may assess civil penalties for
continued violations as permitted by Section 1548. The fingerprint
images and related information shall then be submitted to the
Department of Justice for processing. Upon request of the licensee,
who shall enclose a self-addressed stamped postcard for this purpose,
the Department of Justice shall verify receipt of the fingerprints.
(2) Within 14 calendar days of the receipt of the fingerprint
images, the Department of Justice shall notify the State Department
of Social Services of the criminal record information, as provided
for in subdivision (a). If no criminal record information has been
recorded, the Department of Justice shall provide the licensee and
the State Department of Social Services with a statement of that fact
within 14 calendar days of receipt of the fingerprint images.
Documentation of the individual's clearance or exemption from
disqualification shall be maintained by the licensee and be
available for inspection. If new fingerprint images are required for
processing, the Department of Justice shall, within 14 calendar days
from the date of receipt of the fingerprints, notify the licensee
that the fingerprints were illegible, the Department of Justice shall
notify the State Department of Social Services, as required by
Section 1522.04, and shall also notify the licensee by mail, within
14 days of electronic transmission of the fingerprints to the
Department of Justice, if the person has no criminal history
recorded. A violation of the regulations adopted pursuant to Section
1522.04 shall result in the citation of a deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day for a maximum of five days, unless the
violation is a second or subsequent violation within a 12-month
period in which case the civil penalties shall be in the amount of
one hundred dollars ($100) per violation for a maximum of 30 days,
and shall be grounds for disciplining the licensee pursuant to
Section 1550. The department may assess civil penalties for continued
violations as permitted by Section 1548.
(3) Except for persons specified in paragraph (2) of
subdivision (b) who are exempt from fingerprinting
, the licensee shall endeavor to ascertain the previous
employment history of persons required to be fingerprinted
under this subdivision . If it is determined by the State
Department of Social Services, on the basis of the fingerprint images
and related information submitted to the Department of Justice, that
subsequent to obtaining a criminal record clearance or
exemption from disqualification pursuant to subdivision (g),
the person has been convicted of, or is awaiting trial for, a sex
offense against a minor, or has been convicted for an offense
specified in Section 243.4, 273a, 273d, 273g, or 368 of the Penal
Code, or a felony, the State Department of Social Services shall
notify the licensee to act immediately to terminate the person's
employment, remove the person from the community care facility, or
bar the person from entering the community care facility. The State
Department of Social Services may subsequently grant an exemption
from disqualification pursuant to subdivision (g). If the
conviction or arrest was for another crime, except a minor traffic
violation, the licensee shall, upon notification by the State
Department of Social Services, act immediately to either (A)
terminate the person's employment, remove the person from the
community care facility, or bar the person from entering the
community care facility; or (B) seek an exemption from
disqualification pursuant to subdivision (g). The State
Department of Social Services shall determine if the person shall be
allowed to remain in the facility until a decision on the exemption
from disqualification is rendered. A licensee's failure to
comply with the department's prohibition of employment, contact with
clients, or presence in the facility as required by this paragraph
shall result in a citation of deficiency and an immediate
assessment of civil penalties in the amount of one hundred dollars
($100) per violation per day and shall be grounds for
disciplining the licensee pursuant to Section 1550.
(4) The department may issue an exemption from disqual
ification on its own motion pursuant to subdivision (g) if
the person's criminal history indicates that the person is of good
character based on the age, seriousness, and frequency of the
conviction or convictions. The department, in consultation with
interested parties, shall develop regulations to establish the
criteria to grant an exemption from disqualification
pursuant to this paragraph.
(5) Concurrently with notifying the licensee pursuant to paragraph
(3), the department shall notify the affected individual of his or
her right to seek an exemption from disqualification
pursuant to subdivision (g). The individual may seek an exemption
from disqualification only if the licensee terminates the
person's employment or removes the person from the facility after
receiving notice from the department pursuant to paragraph (3).
(d) (1) Before issuing a license , special permit,
or certificate of approval to any person or persons to
operate or manage a foster family home or
certified family home as described in Section 1506, the State
Department of Social Services or other approving authority shall
secure from an appropriate law enforcement agency a criminal
record California and Federal Bureau of Investigation
criminal history information to determine whether the
applicant or any person specified in subdivision (b) who is not
exempt from fingerprinting has ever been convicted of a crime
other than a minor traffic violation or arrested for any crime
specified in subdivision (c) of Section 290 of the Penal Code, for
violating Section 245 or 273.5, subdivision (b) of Section 273a or,
prior to January 1, 1994, paragraph (2) of Section 273a of the Penal
Code, or for any crime for which the department cannot grant an
exemption if the person was convicted and the person has not been
exonerated. The State Department of Social Services or other
approving authority shall not issue a license or certificate of
approval to any foster family home or certified family home applicant
who has not obtained both a California and Federal Bureau of
Investigation criminal record clearance or exemption from
disqualification pursuant to subdivision (g).
(2) The criminal history information shall include the full
criminal record, if any, of those persons.
(3) Neither the Department of Justice nor the State Department of
Social Services may charge a fee for the fingerprinting of an
applicant for a license, special permit, or certificate of approval
described in this subdivision. The record, if any, shall be taken
into consideration when evaluating a prospective applicant.
(4) The following shall apply to the criminal record information:
(A) If the applicant or other persons specified in subdivision (b)
who are not exempt from fingerprinting have convictions
that would make the applicant's home unfit as a foster family home or
a certified family home, the license, special permit, or certificate
of approval shall be denied.
(B) If the State Department of Social Services finds that the
applicant, or any person specified in subdivision (b) who is not
exempt from fingerprinting is awaiting trial for a
crime other than a minor traffic violation, the State Department of
Social Services or other approving authority may cease processing the
application until the conclusion of the trial.
(C) For the purposes of this subdivision, a
criminal record clearance provided under Section 8712 of the Family
Code may be used by the department or other approving agency.
(D) To the same extent required by
for federal law funding , an
applicant for a foster family home license or for certification as a
family home, and any other person specified in subdivision (b)
who is not exempt from fingerprinting , shall submit a set of
fingerprint images and related information to the Department of
Justice and the Federal Bureau of Investigation, through the
Department of Justice, for a state and federal level criminal
offender record information search, in addition to the criminal
records search required by subdivision (a).
(5) Any person specified in this subdivision shall, as a part of
the application, be fingerprinted and sign a declaration under
penalty of perjury regarding any prior criminal convictions or
arrests for any crime against a child, spousal or cohabitant abuse
or, any crime for which the department cannot grant an exemption if
the person was convicted and shall submit these fingerprints to the
licensing agency or other approving authority.
(6) (A) The foster family agency shall obtain fingerprint images
and related information from certified home applicants and from
persons specified in subdivision (b) and shall submit them directly
to the Department of Justice by electronic transmission in a manner
approved by the State Department of Social Services and the
Department of Justice. A foster family home licensee or foster
(6) (A)
Subsequent to initial licensure or certification, a person specified
in subdivision (b) who is not exempt from fingerprinting shall obtain
both a California and Federal Bureau of Investigation criminal
record clearance , or an exemption from disqualification
pursuant to subdivision (g), prior to employment, residence, or
initial presence in the foster family or certified family home. A
foster family home licensee or foster family agency shall
submit these fingerprint
images and related information of persons
specified in subdivision (b) who are not exempt from
fingerprinting to the Department of Justice and the Federal
Bureau of Investigation, through the Department of Justice, for a
state and federal level criminal offender record information search,
or to comply with paragraph (1) of subdivision (b) prior to
the person's employment, residence, or initial presence in the foster
family home or certified family home. A (h). A foster
family home licensee's or a foster family agency's failure to
submit fingerprint images and related information to the
Department of Justice, either prohibit the employment,
residence, or initial presence of a person specified in
subdivision (b) who is not exempt from fingerprinting and who has not
received either a criminal record clearance or an exemption from
disqualification pursuant to subdivision (g), or comply with
paragraph (1) of subdivision (h), as required in this section, shall
result in a citation of a deficiency, and the immediate civil
penalties of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining the
licensee pursuant to Section 1550. A violation of the regulation
adopted pursuant to Section 1522.04 shall result in the citation of a
deficiency and an immediate assessment of civil penalties in the
amount of one hundred dollars ($100) per violation per day for a
maximum of five days, unless the violation is a second or subsequent
violation within a 12-month period in which case the civil penalties
shall be in the amount of one hundred dollars ($100) per violation
for a maximum of 30 days, and shall be grounds for disciplining
the foster family home licensee or the foster family agency
pursuant to Section 1550. A licensee's failure to submit
fingerprint images and related information to the Department of
Justice, or comply with paragraph (1) of subdivision (h), as required
in this section, may result in the citation of a deficiency and
immediate civil penalties of one hundred dollars ($100) per
violation. A licensee's violation of regulations adopted pursuant to
Section 1522.04 may result in the citation of a deficiency and an
immediate assessment of civil penalties in the amount of one hundred
dollars ($100) per violation. The State Department of
Social Services may assess penalties for continued violations, as
permitted by Section 1548. The fingerprint images shall then be
submitted to the Department of Justice for processing.
(B) Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the Department of Justice
shall verify receipt of the fingerprints. Within five working days of
the receipt of the criminal record or information regarding criminal
convictions from the Department of Justice, the department shall
notify the applicant of any criminal arrests or convictions. If no
arrests or convictions are recorded, the Department of Justice shall
provide the foster family home licensee or the foster family agency
with a statement of that fact concurrent with providing the
information to the State Department of Social Services.
(7) If the State Department of Social Services finds that the
applicant, or any other person specified in subdivision (b) who
is not exempt from fingerprinting , has been convicted of a
crime other than a minor traffic violation, the application shall be
denied, unless the director grants an exemption from
disqualification pursuant to subdivision (g).
(8) If the State Department of Social Services finds after
licensure or the granting of the certificate of approval that the
licensee, certified foster parent, or any other person specified in
paragraph (2) of subdivision (b) who is not
exempt from fingerprinting , has been convicted of a crime
other than a minor traffic violation, the license or certificate of
approval may be revoked by the department or the foster family
agency, whichever is applicable, unless the director grants an
exemption from disqualification pursuant to subdivision
(g). A licensee's failure to comply with the department's prohibition
of employment, contact with clients, or presence in the facility as
required by paragraph (3) of subdivision (c) shall be grounds for
disciplining the licensee pursuant to Section 1550.
(e) The State Department of Social Services may
shal l not use a record of arrest to deny,
revoke, or terminate any application, license, employment, or
residence unless the department investigates the incident and secures
evidence, whether or not related to the incident of arrest, that is
admissible in an administrative hearing to establish conduct by the
person that may pose a risk to the health and safety of any person
who is or may become a client. The State Department of Social
Services is authorized to obtain any arrest or conviction records or
reports from any law enforcement agency as necessary to the
performance of its duties to inspect, license, and investigate
community care facilities and individuals associated with a community
care facility.
(f) (1) For purposes of this section or any other provision of
this chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Social Services is permitted to take following
the establishment of a conviction may be taken when the time for
appeal has elapsed, when the judgment of conviction has been affirmed
on appeal, or when an order granting probation is made suspending
the imposition of sentence, notwithstanding a subsequent order
pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting
the person to withdraw his or her plea of guilty and to enter a plea
of not guilty, or setting aside the verdict of guilty, or dismissing
the accusation, information, or indictment. For purposes of this
section or any other provision of this chapter, the record of a
conviction, or a copy thereof certified by the clerk of the court or
by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of
these documents in a civil or administrative action.
(2) For purposes of this section or any other provision of this
chapter, the department shall consider criminal convictions from
another state or federal court as if the criminal offense was
committed in this state.
(g) (1) After review of the record, the director may grant an
exemption from disqualification for a license or special permit as
specified in paragraphs (1) and paragraph
(4) of subdivision (a), or for a license, special permit, or
certificate of approval as specified in paragraphs (4) , (7),
and (5) (8) of subdivision (d),
or for employment, residence, or presence in a community care
facility as specified in paragraphs (3), (4), and (5) of subdivision
(c), if the director has substantial and convincing evidence to
support a reasonable belief that the applicant and the person
convicted of the crime, if other than the applicant, are of good
character as to justify issuance of the license or special permit or
granting an exemption for purposes of subdivision (c). Except as
otherwise provided in this subdivision, an exemption may
shall not be granted pursuant to this subdivision
if the conviction was for any of the following offenses:
(A) (i) An offense specified in Section 220, 243.4, or 264.1,
subdivision (a) of Section 273a or, prior to January 1, 1994,
paragraph (1) of Section 273a, Section 273d, 288, or 289, subdivision
(c) of Section 290, or Section 368 of the Penal Code, or was a
conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(ii) Notwithstanding clause (i), the director may grant an
exemption regarding the conviction for an offense described in
paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5
of the Penal Code, if the employee or prospective employee has been
rehabilitated as provided in Section 4852.03 of the Penal Code, has
maintained the conduct required in Section 4852.05 of the Penal Code
for at least 10 years, and has the recommendation of the district
attorney representing the employee's county of residence, or if the
employee or prospective employee has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code. This clause
shall not apply to foster care providers, including relative
caregivers, nonrelated extended family members, or any other person
specified in subdivision (b), in those homes where the individual has
been convicted of an offense described in paragraph (1) of
subdivision (c) of Section 667.5 of the Penal Code.
(B) A felony offense specified in Section 729 of the Business and
Professions Code or Section 206 or 215, subdivision (a) of Section
347, subdivision (b) of Section 417, or subdivision (a) of Section
451 of the Penal Code.
(C) Under no circumstances shall an exemption be granted pursuant
to this subdivision to any foster care provider applicant if that
applicant, or any other person specified in subdivision (b) in those
homes, has a felony conviction for either of the following offenses:
(i) A felony conviction for child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but
not including other physical assault and battery. For purposes of
this subparagraph, a crime involving violence means a violent crime
specified in clause (i) of subparagraph (A), or subparagraph (B).
(ii) A felony conviction, within the last five years, for physical
assault, battery, or a drug- or alcohol-related offense.
(iii) This subparagraph shall not apply to licenses or approvals
wherein a caregiver was granted an exemption to a criminal conviction
described in clause (i) or (ii) prior to the enactment of this
subparagraph.
(iv) This subparagraph shall remain operative only to the extent
that compliance with its provisions is required by federal law as a
condition for receiving funding under Title IV-E of the federal
Social Security Act (42 U.S.C. Sec. 670 et seq.).
(2) The department may shall not
prohibit a person from being employed or having contact with clients
in a facility on the basis of a denied criminal record exemption
request or arrest information unless the department complies with the
requirements of Section 1558.
(h) (1) For purposes of compliance with this section, the
department may permit an individual to transfer a current criminal
record clearance, as defined in subdivision (a), from one facility to
another, as long as the criminal record clearance has been processed
through a state licensing district office, and is being transferred
to another facility licensed by a state licensing district office.
The request shall be in writing to the State Department of Social
Services, and shall include a copy of the person's driver's license
or valid identification card issued by the Department of Motor
Vehicles, or a valid photo identification issued by another state or
the United States government if the person is not a California
resident. Upon request of the licensee, who shall enclose a
self-addressed envelope for this purpose, the State Department of
Social Services shall verify whether the individual has a clearance
that can be transferred.
(2) The State Department of Social Services shall hold criminal
record clearances in its active files for a minimum of two
three years after an employee is no longer
employed at a licensed facility in order for the criminal record
clearance to be transferred.
(3) The following shall apply to a criminal record clearance or
exemption from the department or a county office with
department-delegated licensing authority:
(A) A county office with department-delegated licensing authority
may accept a clearance or exemption from the department.
(B) The department may accept a clearance or exemption from any
county office with department-delegated licensing authority.
(C) A county office with department-delegated licensing authority
may accept a clearance or exemption from any other county office with
department-delegated licensing authority.
(4) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by the department or a county office with department-delegated
licensing authority, all of the following shall apply:
(A) The Department of Justice shall process a request from the
department or a county office with department-delegated licensing
authority to receive the notice only if all of the following
conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the
department and the Department of Justice.
(B) (i) On or before January 7, 2005, the department shall notify
the Department of Justice of all county offices that have
department-delegated licensing authority.
(ii) The department shall notify the Department of Justice within
15 calendar days of the date on which a new county office receives
department-delegated licensing authority or a county's delegated
licensing authority is rescinded.
(C) The Department of Justice shall charge the department, a
county office with department-delegated licensing authority, or a
county child welfare agency with criminal record clearance and
exemption authority, a fee for each time a request to substitute the
recipient agency is received for purposes of this paragraph. This fee
shall not exceed the cost of providing the service.
(5) (A) A county child welfare agency with authority to secure
clearances pursuant to Section 16504.5 of the Welfare and
Institutions Code and to grant exemptions pursuant to Section 361.4
of the Welfare and Institutions Code may accept a clearance or
exemption from another county with criminal record and exemption
authority pursuant to these sections.
(B) With respect to notifications issued by the Department of
Justice pursuant to Section 11105.2 of the Penal Code concerning an
individual whose criminal record clearance was originally processed
by a county child welfare agency with criminal record clearance and
exemption authority, the Department of Justice shall process a
request from a county child welfare agency with criminal record and
exemption authority to receive the notice only if all of the
following conditions are met:
(i) The request shall be submitted to the Department of Justice by
the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type
for which the original clearance was obtained.
(iii) The request shall contain all prescribed data elements and
format protocols pursuant to a written agreement between the State
Department of Social Services and the Department of Justice.
(i) The full criminal record obtained for purposes of this section
may be used by the department or by a licensed adoption agency as a
clearance required for adoption purposes.
(j) If a licensee or facility is required by law to deny
employment or to terminate employment of any employee based on
written notification from the state department that the employee has
a prior criminal conviction or is determined unsuitable for
employment under Section 1558, the licensee or facility shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
(k) The State Department of Social Services may charge a fee for
the costs of processing electronic fingerprint images and related
information.
(l) Amendments to this section made in the 1999 portion of the
1999-2000 Regular Session shall be implemented commencing 60 days
after the effective date of the act amending this section in the 1999
portion of the 1999-2000 Regular Session, except that those
provisions for the submission of fingerprints for searching the
records of the Federal Bureau of Investigation shall be implemented
90 days after the effective date of that act.
SEC. 2. Section 361.4 of the Welfare and Institutions Code is
amended to read:
361.4. (a) Prior to placing a child in the home of a relative, or
the home of any prospective guardian or other person who is not a
licensed or certified foster parent, the county social worker shall
visit the home to ascertain the appropriateness of the placement.
(b) Whenever a child may be placed in the home of a relative, or
the home of any prospective guardian or other person who is not a
licensed or certified foster parent, the court or county social
worker placing the child shall cause a state-level criminal records
check to be conducted by an appropriate government agency through the
California Law Enforcement Telecommunications System (CLETS)
pursuant to Section 16504.5. The criminal records check shall be
conducted with regard to all persons over 18 years of age living in
the home, and on any other person over 18 years of age, other than
professionals providing professional services to the child, known to
the placing entity who may have significant contact with the child,
including any person who has a familial or intimate relationship with
any person living in the home. A criminal records check may be
conducted pursuant to this section on any person over 14 years of age
living in the home who the county social worker believes may have a
criminal record. Within 10 calendar days following the criminal
records check conducted through the California Law Enforcement
Telecommunications System, the social worker shall ensure that a
fingerprint clearance check of the relative and any other person
whose criminal record was obtained pursuant to this subdivision is
initiated through the Department of Justice to ensure the accuracy of
the criminal records check conducted through the California Law
Enforcement Telecommunications System and shall review the results of
any criminal records check to assess the safety of the home. The
Department of Justice shall forward fingerprint requests for
federal-level criminal history information to the Federal Bureau of
Investigation pursuant to this section.
(c) Whenever a child may be placed in the home of a relative, or a
prospective guardian or other person who is not a licensed or
certified foster parent, the county social worker shall cause a check
of the Child Abuse Central Index pursuant to subdivision (a) of
Section 11170 of the Penal Code to be requested from the Department
of Justice. The Child Abuse Central Index check shall be conducted on
all persons over 18 years of age living in the home. For any
application received on or after January 1, 2008, if any person in
the household is 18 years of age or older and has lived in another
state in the preceding five years, the county social worker shall
check the other state's child abuse and neglect registry to the
extent required by federal law.
(d) (1) If the results of the California and federal criminal
records check indicates that the person has no criminal record, the
county social worker and court may consider the home of the relative,
prospective guardian, or other person who is not a licensed or
certified foster parent for placement of a child.
(2) If the criminal records check indicates that the person has
been convicted of a crime that the Director of Social Services cannot
grant an exemption for under Section 1522 of the Health and Safety
Code, the child may shall not be placed
in the home. If the criminal records check indicates that the person
has been convicted of a crime that the Director of Social Services
may grant an exemption for under Section 1522 of the Health and
Safety Code, the child may shall not be
placed in the home unless a criminal records exemption has been
granted by the county, based on substantial and convincing evidence
to support a reasonable belief that the person with the criminal
conviction is of such good character as to justify the placement and
not present a risk of harm to the child pursuant to paragraph (3).
(3) (A) A county may issue a criminal records exemption only if
that county has been granted permission by the Director of Social
Services to issue criminal records exemptions. The county may file a
request with the Director of Social Services seeking permission for
the county to establish a procedure to evaluate and grant appropriate
individual criminal records exemptions for persons described in
subdivision (b). The director shall grant or deny the county's
request within 14 days of receipt. The county shall evaluate
individual criminal records in accordance with the standards and
limitations set forth in paragraph (1) of subdivision (g) of Section
1522 of the Health and Safety Code, and in no event shall the county
place a child in the home of a person who is ineligible for an
exemption under that provision.
(B) The department shall monitor county implementation of the
authority to grant an exemption under this paragraph to ensure that
the county evaluates individual criminal records and allows or
disallows placements according to the standards set forth in
paragraph (1) of subdivision (g) of Section 1522 of the Health and
Safety Code.
(4) The department shall conduct an evaluation of the
implementation of paragraph (3) through random sampling of county
exemption decisions.
(5) The State Department of Social Services shall not evaluate or
grant criminal records exemption requests for persons described in
subdivision (b), unless the exemption request is made by an Indian
tribe pursuant to subdivision (f).
(6) If a county has not requested, or has not been granted,
permission by the State Department of Social Services to establish a
procedure to evaluate and grant criminal records exemptions, the
county may shall not place a child into
the home of a person described in subdivision (b) if any person
residing in the home has been convicted of a crime other than a minor
traffic violation, except as provided in subdivision (f).
(e) Nothing in this section shall preclude a county from
conducting a criminal background check that the county is otherwise
authorized to conduct using fingerprints.
(f) Upon request from an Indian tribe, the State Department of
Social Services shall evaluate an exemption request, if needed, to
allow placement into an Indian home that the tribe has designated for
placement under the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et
seq.) that would otherwise be barred under this section. However, if
the county with jurisdiction over the child that is the subject of
the tribe's request has established an approved procedure pursuant to
paragraph (3) of subdivision (d), the tribe may request that the
county evaluate the exemption request. Once a tribe has elected to
have the exemption request reviewed by either the State Department of
Social Services or the county, the exemption decision may only be
made by that entity. Nothing in this subdivision limits the duty of a
county social worker to evaluate the home for placement or to gather
information needed to evaluate an exemption request.
(g) This section shall remain in effect only until January 1,
2010, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2010, deletes or extends
that date.
SEC. 3. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.
SEC. 4. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to secure necessary federal funding for the care of
children in California, it is necessary for this act to take effect
immediately.