BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 1909
A
AUTHOR: Ammiano
B
VERSION: June 13, 2012
HEARING DATE: July 2, 2012
1
FISCAL: No
9
0
CONSULTANT: Sara Rogers
9
SUBJECT
Foster children: Notifications for pending suspension and
expulsion
SUMMARY
Requires that the attorney and county social worker of a
foster child be notified of pending expulsion or extended
suspensions proceedings and be permitted to attend
specified meetings related to the proceedings.
ABSTRACT
Existing law
1.Permits a child to be taken into temporary custody by a
peace officer or a social worker of a county child
welfare department, as specified, and provides for the
adjudication of dependency through juvenile courts as
specified.
2.Requires a juvenile dependency court to appoint legal
counsel for a child not otherwise represented.
Continued---
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3.Provides that a child's appointed legal counsel shall be
charged, in general, with the representation of the
child's interests and that the primary responsibility of
the appointed counsel is to advocate for the protection,
safety and physical and emotional well-being of the
child.
4.Requires counsel to represent the child at the detention
hearing and at all subsequent proceedings before the
juvenile court.
5.Provides that the caseload for legal counsel shall be
determined by the Judicial Council and that caseload
shall ensure adequate protection of the child.
6.Requires a local education agency to designate a staff
person as the educational liason for children placed in
out-of-home care for the purposes of assisting and
facilitating educational placements, enrollment and
school transfers for foster children.
7.Provides that a pupil may be suspended from school or
recommended for expulsion for specified offenses and
requires a principal or superintendent of schools to
recommend expulsion for specified offenses.
8.Permits a pupil to be suspended by a principal for up to
five consecutive school and requires a school employee to
make a reasonable effort to contact the pupil's parent of
guardian in person or by telephone and to notify them in
writing.
9.Permits a pupil to be suspended by the governing body of
a school for up to 20 days, except longer as specified,
and permits the governing body to hold a closed session
meeting to consider the suspension following notification
of the pupil and the parent or guardian via registered or
STAFF ANALYSIS OF SENATE BILL AB 1909 (Ammiano) Page
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certified mail or by personal service.
10.Permits a suspension to be extended for the balance of
the semester by the district superintendent of schools
following a meeting to which the pupil and the pupil's
parent or guardian are invited to participate and at
which it has been determined that the presence of the
pupil would cause a danger to persons or property or
threat of disrupting the educational process.
11.Provides that a pupil shall be entitled to a hearing
prior to expulsion, that the hearing be held within 30
school days after the offense was committed, except as
specified.
12.Requires the pupil or the pupil's parent or guardian be
notified of their right to appear in person at an
expulsion hearing or be represented by legal counsel and
to question all evidence presented.
13.Defines "individual with exceptional needs" as a child
who has been identified by an individualized education
program team to have a disability requiring instruction
and services that cannot be provided with modification of
the regular school program.
14.Permits an individual with exceptional needs to be
expelled from school following a manifestation
determination made by an individualized education program
team meeting, in accordance with federal law.
This bill
1.Requires a designated educational liaison to notify a
foster child's attorney and the appropriate
representative of the county child welfare agency of
pending expulsion proceedings, pending proceedings to
extend a suspension, or pending manifestation
STAFF ANALYSIS OF SENATE BILL AB 1909 (Ammiano) Page
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determinations for foster children who are individuals
with exceptional needs.
2.Requires that a foster child's attorney and the
appropriate representative of the county child welfare
agency be invited to participate in meetings regarding
suspension extensions.
3.Requires, when a foster child with exceptional health
care needs is subject to a manifestation determination,
as specified, that the child's attorney and the
appropriate representative of the county child welfare
agency be invited to participate in the individualized
education program meeting.
4.Requires a governing board of a school district, when
making a discretionary expulsion recommendation of a
foster child, to provide written notice of the expulsion
hearing to the foster child's attorney and the
appropriate representative of the county child welfare
agency at least 10 calendar days before the date of the
hearing.
5.Permits a governing board of a school district, when
making a non-discretionary expulsion recommendation of a
foster child, to provide written notice of the expulsion
hearing to the foster child's attorney and the
appropriate representative of the county child welfare
agency at least 10 calendar days before the date of the
hearing.
6.Requires legal counsel of a foster child, or their firm
or organization, to provide his or her contact
information to the educational liaison of each local
education agency serving counsel's foster child clients
in the county of jurisdiction, at least once every year.
7.Encourages legal counsel of a foster child, or their firm
or organization, to provide his or her contact
STAFF ANALYSIS OF SENATE BILL AB 1909 (Ammiano) Page
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information to the educational liaison of each local
education agency serving counsel's foster child clients
in a county other than the county of jurisdiction, at
least once every year.
8.Permits a foster child's case plan to include the name
and contact information for the educational liaison of
the child's local educational agency.
FISCAL IMPACT
Assembly Appropriations Committee states that costs
associated with this legislation would be minor and
absorbable within existing resources.
BACKGROUND AND DISCUSSION
The author states that, because foster youth often change
homes and the adult responsible for their education also
shifts, it is sometimes difficult for a school to identify
the appropriate adult to contact if discipline problems
arise. The author states that the lack of notification to
parties responsible for the foster youth's welfare creates
a missed opportunity to address the root causes of that
youth's behavioral issues and lead to an unnecessary
disruption in the foster youth's education.
According to the author, foster youth are more likely to
exhibit emotional and behavioral problems than their
non-foster peers, which often impact their school behavior.
The author cites a 2009 San Mateo County study, which
determined that foster youth were ten times more likely
than their non-foster counterparts to be expelled and 2.5
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times more likely to be suspended. A study conducted on
foster youth in several states showed that two-thirds (67%)
of youth in out-of-home care had been suspended from school
at least once compared to 28% in a national sample of
general population youth. About one-sixth (17%) of the
foster youth had been expelled compared with 5% of the
general population sample.
School Discipline
Current law requires a school district to prove that a
student has committed one out of a specified list of
offenses prior to suspending or expelling the student
including:
Causing, attempting to cause, or threatening to cause
physical injury to another person; or willfully using
force or violence upon another person, except in
self-defense;
Possessing, selling, or otherwise furnishing a firearm,
knife, explosive, or other dangerous object;
Unlawfully possessing, using, selling or otherwise
furnishing a controlled substance;
Committing or attempting to commit robbery or extortion;
Causing or attempting to cause damage to school property
or private property;
Stealing or attempting to steal school property or
private property;
Possessing or using tobacco, or products containing
tobacco or nicotine products;
Committing an obscene act or engaging in habitual
profanity or vulgarity;
Disrupting school activities or otherwise willfully
defying the authority of supervisors, teachers,
administrators, school officials or other school
personnel engaged in the performance of their duties;
Possessing an imitation firearm;
Committing or attempting to commit a sexual assault or
sexual battery;
Engaging in or attempting to engage in hazing;
Engaging in the act of bullying, including, but not
limited to, bullying committed by means of an electronic
act;
Committing sexual harassment within grades 4 through 12;
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Causing or attempting to cause, threatening to cause, or
participating in an act of hate violence within grades 4
through 12;
Making a terroristic threat against school officials or
school property, or both.
A principal may suspend a student for any of the above
stated reasons for up to five consecutive days, for a total
of 20 days in the year, and must make a reasonable effort
to contact the parent of guardian of the student at the
time of suspension.
Additionally, a student who has been recommended for
expulsion may be suspended until the governing board of the
district has made a determination. In this instance, the
school district is required to hold a meeting to which the
student and the student's parent or guardian has been
invited and in which it has been determined that the
student's presence would cause a danger to persons or
property or a threat of disrupting the instructional
process. This bill would additionally require that a
foster child's social worker and legal counsel be invited
to such a meeting.
Under current law, a principal has authority to recommend a
student for expulsion, however the governing board of a
school district is the entity authorized to expel the
student. Additionally, current law establishes a narrow
list of offenses for which a principal is required to
recommend suspension, also known as zero-tolerance
offenses.
Prior to being expelled, a student has a right to a hearing
within 30 days, in which the student, their parent or
guardian, and if desired, their legal representative, may
attend and examine all evidence and question the witnesses
which have been presented against the student. This bill
would additionally require that a foster child's social
worker and legal counsel be notified of this hearing at
least 10 days prior to the hearing, unless the student has
committed a zero tolerance offence in which case the school
district is permitted, but not required, to provide such
notice.
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Educational Liaison for Foster Youth
Assembly Bill 490 (Statutes of 2003) required each school
district and county office of education to designate an
educational liaison for foster youth to facilitate the
student's educational placements, enrollment and school
transfers. This bill requires the educational liaison to
notify a foster child's social worker and legal counsel of
any pending expulsion or suspension extension proceedings.
Additionally this bill requires legal counsel of a foster
child, or their firm or organization, to provide his or her
contact information to the educational liaison of each
local education agency serving counsel's foster child
clients in the county of jurisdiction, at least once every
year. If the foster child is placed in a county other than
the county of jurisdiction, this bill encourages legal
counsel of a foster child, or their firm or organization,
to provide his or her contact information to the
educational liaison of each local education agency serving
counsel's foster child clients, at least once every year.
Manifestation Determinations
Current law provides that local education agencies (LEA),
generally a public school district, shall actively and
systematically seek out individuals with exceptional needs
who may be entitled to special education services.
Additionally, current law requires an LEA to provide for
the identification and assessment of the exceptional needs
of an individual, and the planning of an instructional
program to meet the assessed needs, as specified.
Eligibility for special education services is determined
through an individualized education program (IEP), which is
developed by an IEP team. Current law provides that a
student who qualifies for an IEP may be suspended; however
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this determination must be preceded by a "manifestation
determination" review conducted by the student's IEP team.
A manifestation determination review is to determine
whether the behavior that led to the decision to expel was
caused by or was directly and substantially related to the
child's disability, or was a direct result of the school's
failure to implement the IEP. This bill requires a foster
child's social worker and legal counsel to be invited to
the IEP meeting making a manifestation determination and
additionally requires the student's educational liaison to
notify a foster child's social worker and legal counsel of
a pending manifestation determination.
Comments
1.The Association of California School Administrators
expresses a support if amended position and requests the
bill clarify that the legal educational rights holder,
who may be someone other than the foster parent, also has
the right to be informed of any suspension or expulsion
proceedings. Current law, under Welfare and
Institutions Code Section 361, provides that a legal
educational rights holder, to the extent ordered by the
court, holds the right to represent a child in all
educational matters. However, existing law under the
Education Code may be confusing in practice since the
educational rights holder is specifically mentioned in
some areas of the Education Code, but is not mentioned in
other areas. This general inconsistency in the Education
Code is a broader issue than is appropriate to address in
this bill, however staff recommends adding an intent
section as follows:
Amendment 1
It is the intent of the Legislature that for purposes of
implementing this act, the notification of and invitation
to a parent or guardian for meetings and hearings related
to the discipline of the pupil also be provided to a person
holding the right to make educational decisions for a
foster child pursuant to Sections 361 or 726 of the Welfare
STAFF ANALYSIS OF SENATE BILL AB 1909 (Ammiano) Page
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and Institutions Code if the rights to make educational
decisions by the parent or guardian have been limited or
terminated.
2.The Children's Law Center of California (CLC), which
serves as appointed counsel for foster youth in Los
Angeles and Sacramento counties, expressed concern with
provisions of this bill that require counsel to provide
contact information to the educational liaison for a
school district.
CLC states that the requirement is not a substantial
burden within the county of jurisdiction, since a single
firm generally represents all foster children in a
particular school district, and the information can be
provided to the educational liaison via a generalized
letter which does not specifically name each child.
However, when a child is placed in a county other than
the county of jurisdiction, the workload associated with
drafting a separate letter for each child becomes
significant since a single attorney may be responsible
for as many as 300 foster children each year.
Staff recommends amending the bill to permit counsel,
when the child is placed outside the county of
jurisdiction, to request a caregiver to provide the
school district with the contact information for the
child's attorney, and to explicitly permit a caregiver to
provide such information. The proposed amendments are as
follows:
Amendment 2
Welfare and Institutions Code Section 16010.5 is amended to
read:
(a) When initially placing a child into foster care or
kinship care, and within 48 hours of any subsequent
placement of that child, the placing agency shall provide
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to the child's caretaker both of the following:
(1) Prescribed medications for the child that are in the
possession of the placing agency, with instructions for the
use of the medication.
(2) Information regarding any treatments that are known to
the placing agency and that are in effect for the child at
the time of the placement.
(b) As soon as possible after placing a child into foster
care or kinship care, and no later than 30 days after
placing the child, the placing agency shall provide to the
child's caregiver any available documentation or proof of
the child's age that may be required for enrollment in
school or activities that require proof of age.
(c) Within 30 days of receiving a copy of a child's birth
certificate or passport, a placing agency shall provide a
copy of that document to the child's caregiver.
(d) Nothing shall preclude the placing agency from
providing the name, mailing address, telephone number, and
facsimile number of the child's attorney and the child's
court-appointed special advocate, if any, to the child or
the child's caregiver upon their request.
(e) The foster child's caregiver or other person holding
the right to make education decisions for the child may
provide contact information for the child's attorney to the
child's school district in accordance with WIC Section 317
(e) (4).
Amendment 3
Welfare and Institutions Code Section 317 is amended to
read:
(e) (1) Counsel shall be charged in general with the
representation of the child's interests. To that end,
counsel shall make or cause to have made any further
investigations that he or she deems in good faith to be
reasonably necessary to ascertain the facts, including the
interviewing of witnesses, and shall examine and
cross-examine witnesses in both the adjudicatory and
dispositional hearings. Counsel may also introduce and
examine his or her own witnesses, make recommendations to
the court concerning the child's welfare, and participate
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further in the proceedings to the degree necessary to
adequately represent the child.
(2) If the child is four years of age or older, counsel
shall interview the child to determine the child's wishes
and assess the child's well-being, and shall advise the
court of the child's wishes. Counsel shall not advocate for
the return of the child if, to the best of his or her
knowledge, return of the child conflicts with the
protection and safety of the child.
(3) Counsel shall investigate the interests of the child
beyond the scope of the juvenile proceeding, and report to
the court other interests of the child that may need to be
protected by the institution of other administrative or
judicial proceedings. Counsel representing a child in a
dependency proceeding is not required to assume the
responsibilities of a social worker, and is not expected to
provide nonlegal services to the child.
(4) (A) At least once every year, if the list of
educational liaisons is available on the Internet Web site
for the State Department of Education:
(i) Counsel shall provide his or her contact information to
the educational liaison, as described in subdivision (b) of
Section 48853.5 of the Education Code, of each local
educational agency serving counsel's foster child clients
in the county of jurisdiction.
(ii) Counsel is encouraged to may request a caregiver to
provide his or her contact information for the child's
counsel to the educational liaison, as described in
subdivision (b) of Section 48853.5 of the Education Code,
of each local educational agency serving counsel's foster
child clients in a county other than the county of
jurisdiction.
(B) If counsel is part of a firm or organization
representing foster children, the firm or organization may
provide its contact information in lieu of contact
information for the individual counsel. The firm or
organization may designate a person or persons within the
firm or organization to receive communications from
educational liaisons.
(4) (C) Counsel for the child and counsel's agent may, but
are not required to, disclose to an individual who is being
assessed for the possibility of placement pursuant to
Section 361.3 the fact that the child is in custody, the
alleged reasons that the child is in custody, and the
projected likely date for the child's return home,
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placement for adoption, or legal guardianship. Nothing in
this paragraph shall be construed to prohibit counsel from
making other disclosures pursuant to this subdivision, as
appropriate.
(5) Nothing in this subdivision shall be construed to
permit counsel to violate a child's attorney-client
privilege.
3.This bill requires legal counsel and the social worker to
be notified of an expulsion hearing if the offense is not
a zero tolerance offense, however this bill provides that
legal counsel and the social worker provides that legal
counsel and the social worker may be notified if the
offense is a zero tolerance offense. One purpose of the
hearing is to provide the student with an opportunity to
question the evidence and confront witnesses against
them. A student accused of a zero tolerance offense may
wish to question evidence in order to proclaim their
innocence, and in that regard assistance from the child's
legal counsel or social worker may be of considerable
value.
Related Legislation
AB 1729 (Ammiano, 2012) Requires other means of correction
to be used and documented prior to the suspension or
expulsion of any student, and revises the steps taken for
suspensions and expulsions of students with exceptional
needs. This bill failed passaged in Senate Education and
was granted reconsideration.
AB 2242 (Dickinson, 2012) - Imposes in-school suspension
and prohibits off-campus suspension or extended suspension,
or expulsion, due to disruption of school activities or
willful defiance of school officials. This bill failed
passaged in Senate Education and was granted
reconsideration.
AB 2537 (V. Manuel Perez) - Limits the acts committed by
pupils that result in mandatory expulsion; authorizes,
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rather than requires, a school district to expel a student
for committing specified acts; and authorizes, rather than
requires, a principal to notify appropriate law enforcement
authorities of specified acts committed by pupils. This
bill failed passaged in Senate Education and was granted
reconsideration.
SB 1353 (Wright, Chapter 557, Statutes of 2010) Requires
consideration of educational stability as a part of the
best interests for foster youth and provided that a foster
youth's health and education summary also include the
number of school transfers the child has experienced.
AB 490 (Steinberg, Chapter 862, Statutes of 2003) Requires
LEAs to identify and appoint an educational liaison for
foster youth. Requires local educational agencies serving
the foster child, at the initial detention or placement, to
allow the foster child to continue his or her education in
the school the child is currently attending for the
duration of the school year.
PRIOR VOTES
Senate Education: 9 - 0
Assembly Floor: 77 - 0
Assembly Appropriations: 17 - 0
Assembly Education: 10 - 0
Assembly Judiciary 10 - 0
POSITIONS
Support: Legal Advocates for Children and Youth
(Co-Sponsor)
Association of California School
Administrators (if amended)
Alameda County Foster Youth Alliance
Alliance for Children's Rights
American Civil Liberties Union of California
Aspiranet
California Alliance of Child and Family
Services
California Communities United Institute
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California Probation, Parole and
Correctional Association
California State PTA
California Teachers Association
California Youth Connection
Center on Juvenile & Criminal Justice
Chief Probation Officers of California
Children's Advocacy Institute
Children's Defense Fund
Coleman Advocates for Children and Youth
Disability Rights Legal Center
Elk Grove Unified School District Foster
Youth Services
Fight Crime: Invest in Kids California
Lambda Legal
Legal Services for Children
Mexican American Legal Defense and
Educational Fund
National Association of Social Workers -
California Chapter
National Center for Youth Law
New America Foundation
PolicyLink
Public Counsel Law Center (Co-sponsor)
Restorative School Visions Project
San Francisco Unified School District
San Mateo Foster Youth Services
Youth and Education Law Project, Mills Legal
Clinic
Youth Justice Coalition
Oppose: None received
-- END --