BILL ANALYSIS
AB 595
Page 1
Date of Hearing: May 12, 2009
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
AB 595 (Adams) - As Introduced: February 25, 2009
SUBJECT : Placement of children: criminal background checks
SUMMARY : To ensure the continuation of federal funding,
conforms state law to federal law requiring background checks
and prohibiting persons convicted of specified offenses from
becoming foster or adoptive parents. Specifically, this bill :
1)Prohibits the Department of Social Services (DSS) 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 an FBI
criminal record clearance or an authorized exemption.
2)Provides that under no circumstances shall DSS grant an
exemption issuing a license or certificate of approval for a
foster care placement in any home where the foster family
applicant or certified family home applicant, or any other
person, as specified, in those homes has a felony conviction
for either:
a) Child abuse or neglect, spousal abuse, crimes against a
child, including child pornography, or for a crime
involving violence, as defined; or,
b) Physical assault, battery, or a drug- or alcohol-related
offense, occurring within the last five years.
3)Provides that the prohibition on exemptions described in No. 2
does not apply to exemptions granted prior to the enactment of
this bill and, further, that it shall remain in effect only to
the extent required by federal law as a condition of receipt
of federal funding under Title IV-E of the Social Security
Act.
4)Provides that a licensee's failure to comply with the
prohibition of employment, contact with clients, or presence
in the facility, as required, shall result in a citation and
an immediate assessment of civil penalties of $100 per
violation per day.
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5)Repeals the January 1, 2010 sunset date on provisions
establishing safeguards for children placed in the home of a
relative or any prospective guardian or other person who is
not a licensed or certified foster parent--including
pre-placement home visits, criminal records checks, and checks
of the Child Abuse Central Index--and allowing DSS to delegate
criminal background check exemption authority to counties so
that they may continue to issue criminal records exemptions in
accordance with state and federal law.
6)Makes various non-substantive, technical changes.
7)Provides that this bill is an urgency measure, to take effect
immediately, in order to secure necessary federal funding for
the care of children in California.
EXISTING LAW
1)Requires a criminal background check for approval of foster
family homes or certified family homes.
2)Requires that, if the applicant or other designated person has
been convicted of particular crimes, an application be denied,
unless DSS grants an exemption.
3)Withholds, under federal law, approval of the State Plan for
foster care, unless it complies with federal law.
4)Requires, under federal law--the Adam Walsh Child Protection
and Safety Act of 2006 (Public Law 109-248)--as a condition of
receipt of federal Title IV-E funding, that child abuse and
neglect registries must be checked in each state in which a
prospective foster or adoptive parent has lived in the past
five years and that states must refuse to approve any foster
care provider if that applicant, or any other person in that
home, has a felony conviction for either of the following
offenses:
a) 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.
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b) Physical assault, battery, or a drug-related offense,
within the last 5 years.
5)Provides safeguards for children placed with a relative
caregiver or other guardian who is not licensed or certified,
including requiring a criminal background check.
FISCAL EFFECT : Unknown
COMMENTS :
Need for this bill : This urgency bill, sponsored by DSS, will
bring California into compliance with the federal Adam Walsh
Act. Current law allows the director of DSS to grant exemptions
to foster care applicants with exemptible criminal convictions
on a case-by-case basis for persons who present convincing
evidence of good character and rehabilitation. The Adam Walsh
Act, however, permanently bars licensure, certification, or
placement of a foster child if anyone in the household has a
felony conviction for specified crimes, including child abuse or
neglect, spousal abuse, crimes against a child, or a crime of
violence including rape, sexual assault, or homicide. It also
bars licensure, certification or placement if anyone in the
household has had a felony conviction for physical assault,
battery, or drug-related offenses in the previous five years.
These new federal requirements were effective October 1, 2008.
A bill conforming California law to these federal requirements
was enacted last year: AB 2651 (Aghazarian), Chapter 701,
Statutes of 2008. AB 2651 was non-controversial and passed with
near unanimous support in the Legislature. Due to an
administrative error, however, portions of AB 2651 were
chaptered out. The Human Services Budget Trailer Bill, AB 1279
(Committee on Budget), Chapter 759, Statutes of 2008, also
amended Section 1522 of the Health and Safety Code and
unintentionally chaptered out amendments to the same section
made by AB 2651. Both bills were signed and in effect on
September 30, 2008.
Therefore, California law does not yet exclude criminal
convictions for offenses specified in the Adam Walsh Act from
exemption. As the author notes, "California receives over $1
billion in federal Title IV-E funds annually; this funding is
the fiscal backbone of California's foster care system.
California cannot afford to remain out of compliance with
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federal law. California's failure to comply puts the entire
federal allocation at risk and greatly compromises California's
foster care system." The sponsor, DSS, points out that
"California should have been in compliance by October 1, 2008
and the federal government is anticipating action by the State
to address this conformity issue."
Conformity to federal law : This bill amends existing criminal
background check provisions to ensure that California's criminal
record clearance process for prospective foster and adoptive
parents meets federal requirements. This bill will prohibit the
placement of a child in the home of a person who has been
convicted of a crime for which the director of DSS or other
granting authority (e.g., counties) cannot grant an exemption
under the Adam Walsh Act. While the federal policy itself may
be subject to criticism as being overly broad and proscriptive,
California must comply to remain eligible for federal foster
care funds.
Elimination of January 1, 2010 sunset : Currently, in lieu of a
foster care license, a county social worker must visit and
approve 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. The social worker must also initiate a
state and federal criminal record check, and if the results
indicate the person has no criminal record, the court and county
social worker may consider the home of the relative or
prospective guardian as a placement option for the child.
Current law also allows the director of DSS to delegate his/her
authority on a county-by-county basis, to allow a county welfare
office to grant criminal records exemptions to relatives and
prospective guardians. To do so, the county must evaluate
individual criminal records in accordance with state and federal
law. Current law allows Indian tribes to request the DSS or a
county to evaluate criminal background exemption requests to
allow placement of an Indian child into an Indian home that the
tribe has designated, pursuant to the federal Indian Child
Welfare Act.
Under current law, all of these provisions will sunset on
January 1, 2010. If these provisions sunset, child safety
safeguards in statute will lapse, Indian tribes will lose
flexibility in placement options for children within their
tribes, and all relative caregivers would need to be licensed by
the State. It is vital that all of these child safety
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safeguards remain in place, and that the State continues to have
the statutory authority to approve relatives and to delegate the
responsibility of criminal background checks for relatives to
counties. This ensures that children can be placed with
relatives during all hours of the day by county social workers
rather than in a stranger's home or a shelter. It also allows
the State to share the cost of the program with counties.
According to the author, "[i]f this provision sunsets, there
would be no authority for the counties to assess the safety of
relative homes for quick placement. The only alternative would
be to go through the Foster Family Home licensing process, which
takes much longer and not all counties do. The requirement to
be licensed will reduce the number of relative placement
options, contrary to California's public policy to place
children with related or known caregivers."
REGISTERED SUPPORT / OPPOSITION :
Support
Department of Social Services (sponsor)
County Welfare Directors Association of CA (CWDA)
Junior Leagues of CA State Public Affairs Comm.
Opposition
None on file.
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089