BILL ANALYSIS
AB 595
Page 1
ASSEMBLY THIRD READING
AB 595 (Adams)
As Introduced February 25, 2009
2/3 vote. Urgency
HUMAN SERVICES 7-0 APPROPRIATIONS 17-0
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|Ayes:|Beall, Ammiano, Tom |Ayes:|De Leon, Nielsen, |
| |Berryhill, Hall, Logue, | |Ammiano, |
| |Portantino, Torres ' | |Charles Calderon, Davis, |
| | | |Duvall, Fuentes, Hall, |
| | | |Harkey, Miller, |
| | | |John A. Perez, Price, |
| | | |Skinner, Solorio, Audra |
| | | |Strickland, Torlakson, |
| | | |Krekorian |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Ensures 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.
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3)Provides that the prohibition on exemptions described in 2)
above 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.
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 FEDERAL LAW requires 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:
1)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; or,
2)Physical assault, battery, or a drug-related offense, within the
last five years.
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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)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 : According to the Assembly Appropriations
Committee:
1)The 2009-2010 Budget contains $658,000 [$295,000 General Fund
(GF)] for the activities required for the state to conform to
the federal Adam Walsh Child Protection and Safety Act of 2006.
2)Absent this bill (with the exception of the sunset extension),
the state risks losing almost $2 billion in Title IV-E federal
foster care funding.
3)The 2009-10 Budget contains $21 million ($9.2 million GF) for
the relative approval process that is scheduled to sunset on
January 1, 2010.
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,
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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, 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 Health and Safety Code Section 1522 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 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
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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 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."
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089
FN: 0001160