BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2209 (Hueso)
As Amended April 23, 2012
Hearing Date: June 12, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Juveniles: Dependent Children: Placement
DESCRIPTION
This bill would prohibit the placement of a dependent child with
any person, other than the child's parent, outside of the
country, unless the party requesting the placement shows by
clear and convincing evidence that such placement is in the best
interest of the child.
This bill would require, that a court consider the following
factors, in determining whether it is in a child's best interest
to place him or her outside the country: (1) placement with a
relative; (2) placement of siblings in the same home; (3) amount
and nature of contact between parent and potential caretaker;
(4) physical and medical needs of child; (5) social, cultural,
and educational needs of dependent child; and (6) specific
desires of children over 12 years of age.
BACKGROUND
Approximately ten percent of this country's children live in
California, yet the state is home to nearly 20 percent of the
country's foster-care population. According to the Judicial
Council, on any given day in 2007, nearly 80,000 children were
in foster care in California. (Judicial Council, Facts about
Foster Care, Ýas of June 5,
2012].) The juvenile dependency system seeks to ensure
children's safety and protection, and where possible, preserve
and strengthen families. When children are taken from the
custody of their parents, typically for abuse or neglect, social
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workers are required to release a child temporarily to a
responsible relative, unless a specified condition exists.
(Welf. & Inst. Code Sec. 309(a).) Social workers may also
release a child into the custody of a nonrelative family member,
defined as "any adult caregiver who has established a familial
or mentoring relationship with the child." Children are also
placed in foster homes, and a handful of dependent minors are
placed in homes outside the country. These placements, at least
initially, are temporary, while the social worker develops a
case plan according to the following priorities: maintain the
child within his or her home; remove the child but with the goal
of reuniting the parent and child; or find a permanent placement
for the child. Reunification services may take a year or more,
during which time the child would remain in the temporary
placement. The court must review the status of the dependent
child every six months.
However, when a child is placed outside of the country,
practically speaking, courts lose the ability to review the
decision and further protect the child. Thus, after a child is
placed outside of this country, social workers have a very
difficult time monitoring the home placement. If it is later
discovered that the placement may not be in the child's best
interest, it can be nearly impossible for the court to remove
the child from the home.
This bill seeks to remedy this problem by attempting to assure
that children are only placed in homes where their best
interests will be protected. Specifically, this bill seeks to
ensure that the court will have adequate information to make a
determination by placing a heightened evidentiary burden on the
party requesting the out-of-country placement.
CHANGES TO EXISTING LAW
Existing law provides that a child may become a dependent of the
juvenile court and removed from his or her parents or guardian
on the basis of abuse or neglect. (Welf. & Inst. Code Sec.
300.)
Existing law provides that when a court orders removal of a
dependent child from his or her home, the court must order a
social worker to supervise the care, custody, control, and
conduct of the child. (Welf. & Inst. Code Sec. 361.2.)
Existing law allows the social worker to place the child in,
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among other places, the home of the noncustodial parent or the
approved home of a relative or a nonrelative extended family
member, as defined. (Welf. & Inst. Code Secs. 309(a), 361.2,
361.3, 362.7.)
Existing law requires the court and county social worker to
consider, when placing a dependent child with a relative, the
best interest of the child, including:
the special physical, psychological, educational, medical, or
emotional needs of the child;
the wishes of the parent, the relative, and child, if
appropriate;
placement of siblings and half siblings in the same home, as
specified;
the good moral character of the relative and any other adult
living in the home, as specified;
the nature and duration of the relationship between the child
and the relative, and the relative's desire to care for, and
to provide legal permanency for, the child if reunification is
unsuccessful; and
the ability of the relative to provide a safe, secure and
stable environment for the child. (Welf. & Inst. Code Sec.
361.3.)
Existing law provides that nonrelative extended family members
being considered for placement of a child shall have their home
evaluated pursuant to the same standards set forth in the
regulations for the licensing of foster family homes. (Welf. &
Inst. Code Sec. 362.7.)
Existing law requires the status of every dependent child to be
reviewed by the court every six months. (Welf. & Inst. Code
Sec. 366.)
Existing law requires the entity that places a dependent child
to notify the child's attorney of the placement. (Welf. & Inst.
Code Sec. 16010.6.)
This bill would prohibit a social worker from placing a
dependent child with any person, other than the child's parent,
outside of the country, unless it is shown by clear and
convincing evidence that such placement is in the best interest
of the child. This bill would require any party or agency that
recommends placement outside the United States to carry the
burden of proof.
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This bill would require the court to consider the following
factors when determining the child's best interest in placing
the child outside of the United States:
placement with a relative;
placement of a sibling in the same home;
the amount and nature of any contact between the child and the
potential caregiver;
the physical and medical needs of the child;
the psychological and emotional needs of the child;
the social, cultural, and educational needs of the child; and
the specific desires of any dependent child who is 12 years of
age or older.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
Social service and welfare agencies often make
recommendations to the court to place a dependent child for
long-term care or adoption outside of the country. This is
particularly true in cities near border areas. Currently,
the law does not expressly allow nor prohibit the placement
of a child out of the country, yet it is occurring.
Once a child is placed out of the country, the court and law
enforcement lose their ability to protect the child if he/she
needs assistance. A child who is a dependent of the State
should not be placed outside of the United States unless
doing so is in the child's best interest.
This bill establishes a legal burden of proof for placing
agencies to meet, with a list of factors they must consider,
before making such a recommendation to the court. ? AB 2209
will put children first and ensure that the country in which
the child will be placed is, in fact, the best place for the
child to live.
2.Party requesting out-of-country placement must show best
interest of child
This bill would prohibit the placement of a dependent child with
any person, other than the child's parent, outside of the
country, unless the court finds, by clear and convincing
evidence that such placement is in the best interest of the
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child. This bill would require the proponent of the
out-of-country placement to carry the burden of proof.
Under existing law, when a court places a child in a home,
social workers and the court are required to monitor the child
and ensure his or her best interests are being served. The
ability to monitor a child however, is seriously impaired when
the child is placed in a home outside the United States.
Regarding this problem, and in support of this bill, the
Dependency Legal Group of San Diego writes:
Once a child has been moved our social workers are unable to
visit because they are not licensed to practice social work
outside of the country - we are left with trying to get
reports from local agencies, if they even exist, and
telephone contact with caretakers who often have limited or
inconsistent access to telephone service. Our courts,
attorneys, and social workers are left unable to obtain
consistent and reliable information about the health and
well-being of the minor in many cases? AB 2209 is an
important step in rectifying this problem for our dependent
children.
Because monitoring a child who has been placed out of the
country is difficult, to protect the child's well-being, the
court should exercise more oversight before the child is moved.
Under this bill, the party requesting the out-of-country
placement must show by clear and convincing evidence that the
placement is in the child's best interest. A clear and
convincing evidence standard requires a showing that is more
than a mere preponderance of evidence, but something less than a
conclusive showing, which is closer to the "beyond a reasonable
doubt" burden used in criminal cases. Absent this showing,
courts may not have adequate information to make a
fully-informed decision when the placement, and the family to be
placed with, are not available for hearing or inspection because
they reside out of the country. Arguably, this is an
evidentiary standard that requires a fair amount of effort to
establish. However, because the party requesting the out of
country placement is the person most likely to know why the
placement is in the best interest of the child, placing this
requirement on the proponent is not an overly onerous burden,
and promotes judicial efficiency.
This bill would not prevent courts from authorizing the
placement of foster children outside of the country. Instead,
this bill creates a standard for determining whether the
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placement is in the child's best interest. The requirements
under this bill will arguably ensure that the court has more
information to determine whether placing a child in a home that
is out of the country would benefit the child and protect his or
her well-being.
3.Specific best interest factors for out of country placement
When a child is initially taken from the custody of a parent,
social workers are required to contact relatives regarding
placement. In placing a child with a relative the court must
take into consideration the best interest of the child, as
specified by a number of factors. A child is also eligible for
placement in the home of a nonrelative family member (see
Background) if the home is approved pursuant to the standards
set forth for the licensing of foster family homes.
This bill would require the court to look to specified factors
in determining whether placing a child in an out-of-country home
is in the best interest of the child. These specified factors
are similar to those required for placement of a child in a
relative's home, but are tailored to arguably address the
potential lack of oversight the court and social workers will be
able to exercise after a child is placed in a home outside of
this country. Specifically, under this bill the court must
consider: placement with a relative; placement of a sibling in
the same home; the amount and nature of any contact between the
child and the potential caregiver; the physical and medical
needs of the child; the psychological and emotional needs of the
child; the social, cultural, and educational needs of the child;
and the specific desires of any dependent child who is 12 years
of age or older. However, the truly significant difference
between these factors and the factors existing under current law
is the requirement of proof by clear and convincing evidence of
a child's best interest, as discussed above.
In support of this bill, the Executive Committee of the Family
Law Section of the State Bar (FLEXCOM) argues that, "Ýp]lacement
of a dependent child outside of the country is one of the most
significant decisions possibly made by the juvenile court. The
inclusion of factors for the court to consider provides
additional clarity in the decision making process." Arguably,
requiring a court to consider these factors, and find clear and
convincing evidence that the placement is in the best interest
of the child, creates a uniform standard for courts to follow
when placing a dependent child in a home outside of this
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country.
Support : Children's Advocacy Institute; Dependency Legal Group
of San Diego; Executive Committee of the Family Law Section of
the State Bar (FLEXCOM)
Opposition : None Known
HISTORY
Source : An Individual
Related Pending Legislation : None Known
Prior Legislation :
SB 726 (Florez, Chapter 632, Statutes of 2005) imposed
additional requirements upon noncustodial parents seeking to
gain placement or custody of their children who have been
removed from the care of the other parent.
AB 1987 (Steinberg, Chapter 909, Statutes of 2000) required the
court to consider the existence and nature of sibling
relationships in all placement, visitation, and permanency
hearings.
Prior Vote :
Assembly Floor (Ayes 73, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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