BILL ANALYSIS
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 595
A
AUTHOR: Adams
B
VERSION: As introduced
HEARING DATE: June 23, 2009
5
FISCAL: To Public Safety and Appropriations, urgency
clause 9
(2/3rds vote needed)
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CONSULTANT:
Hailey
SUBJECT
Placement of children: criminal background checks
SUMMARY
Conforms state law to federal law by requiring background
checks and by prohibiting persons convicted of specified
offenses from becoming foster or adoptive parents.
ABSTRACT
Current federal law
1)Withholds approval of the state plan for foster care,
unless it complies with federal law.
2)Requires as a condition of receipt of federal Title IV-E
funding, that child abuse and neglect registries 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 set of
offenses:
Continued---
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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.
b) Physical assault, battery, or a drug-related
offense, within the last 5 years. [Adam Walsh Child
Protection and Safety Act of 2006 (Public Law
109-248)]
Current state 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 the director of the
Department of Social Services (DSS) grants an exemption.
3)Provides safeguards for children placed with a relative
caregiver or other guardian who is not licensed or
certified, including requiring a criminal background
check.
This bill
1)Prohibits 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
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five years.
3)Provides that the prohibition on exemptions described
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)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.
FISCAL IMPACT
According to the Assembly Appropriations Committee, the
2009-2010 budget contains $658,000 ($295,000 General Fund)
for the activities required for the state to conform to the
federal Adam Walsh Child Protection and Safety Act of 2006.
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. The 2009-10 budget
contains $21 million ($9.2 million General Fund) for the
relative approval process scheduled to sunset on January 1,
2010.
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BACKGROUND AND DISCUSSION
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 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
chaptered out amendments to the same section made by AB
2651.
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."
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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 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. DSS believes that it is vital that
all of these child safety safeguards remain in place, and
that California 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
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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, "if 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 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."
Assembly votes
Floor 79-0
Appropriations17-0
Human Services 7-0
POSITIONS
Support: Department of Social Services (sponsor)
County Welfare Directors Association of
California
Junior Leagues of California, State Public
Affairs Committee
Oppose: Legal Services for Prisoners with Children
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