BILL NUMBER: SB 717 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Walters
FEBRUARY 18, 2011
An act to amend Sections 368 and 868.5 of the Penal Code, and to
amend Sections 4689.2, 15660, and 16501 of the Welfare and
Institutions Code, relating to crimes.
LEGISLATIVE COUNSEL'S DIGEST
SB 717, as introduced, Walters. Elder or dependent abuse.
Existing law makes it a crime for a person who knows or reasonably
should know that a person is an elder or dependant adult, under
circumstances likely to produce great bodily harm or death, to
willfully cause or permit any elder or dependent adult to suffer, or
inflict unjustifiable physical pain or mental suffering thereon, or
to cause or permit the elder or dependent adult to be placed in a
situation in which his or her person or health is endangered, as
specified. Existing law punishes a violation of this provision by
imprisonment in a county jail not exceeding one year, or by a fine
not to exceed $6,000, or by both that fine and imprisonment, or by
imprisonment in the state prison for 2, 3, or 4 years.
Under existing law, a person who knows or reasonably should know
that a person is an elder or dependent adult and who, under
circumstances or conditions other than those likely to produce great
bodily harm or death, willfully causes an elder or dependent adult to
suffer, or inflicts unjustifiable physical pain or mental suffering
thereon, or permits the health of the elder or dependent adult to be
endangered is guilty of a misdemeanor. Existing law punishes a 2nd or
subsequent violation of that provision by a fine not to exceed
$2,000 or by imprisonment in a county jail not to exceed one year, or
by both that fine and imprisonment.
The bill would instead provide that a violation of the above
provisions shall be punished by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed $6,000, or by both
that fine and imprisonment, or by imprisonment in the state prison
for 2, 3, or 4 years, without regard to whether or not the violation
occurred under circumstances likely to produce great bodily harm or
death. This bill would accordingly delete the provisions regarding
elder or dependent adult abuse under circumstances or conditions
other than those likely to produce great bodily harm or death.
This bill would make other conforming changes.
By increasing the punishment for a crime, this bill would create a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 368 of the Penal Code is amended to read:
368. (a) The Legislature finds and declares that crimes
against elders and dependent adults are deserving of
special consideration and protection, not unlike the special
protections provided for minor children and victims of domestic
violence , because elders and dependent adults may be confused,
on various medications, mentally or physically impaired, or
incompetent, and therefore less able to protect themselves, to
understand or report criminal conduct, or to testify in court
proceedings on their own behalf. Elder and dependent adults are
often financially dependent upon their abuser
and feel that there is no alternative but to stay with the abuser. In
addition, because much elder and dependent abuse is committed by
family members, the victims often love the abuser and do not want the
abuser to be prosecuted, which continues the cycle of abuse.
(b) (1) Any person who knows
or reasonably should know that a person is an elder or dependent
adult and who , under circumstances or conditions likely to
produce great bodily harm or death, willfully causes or
permits any elder or dependent adult to suffer, or inflicts thereon
unjustifiable physical pain or mental suffering, or having the care
or custody of any elder or dependent adult, willfully causes or
permits the person or health of the elder or dependent adult to be
injured, or willfully causes or permits the elder or dependent adult
to be placed in a situation in which his or her person or health is
endangered, is punishable by imprisonment in a county jail not
exceeding one year, or by a fine not to exceed six thousand dollars
($6,000), or by both that fine and imprisonment, or by imprisonment
in the state prison for two, three, or four years.
(2)
(c) (1 ) If in the
commission of an offense described in paragraph (1)
subdivision (b) , the victim suffers great
bodily injury, as defined in Section 12022.7, the defendant shall
receive an additional term in the state prison as follows:
(A) Three years if the victim is under 70 years of age.
(B) Five years if the victim is 70 years of age or older.
(3)
(2) If in the commission of an offense described in
paragraph (1) subdivision (b) , the
defendant proximately causes the death of the victim, the defendant
shall receive an additional term in the state prison as follows:
(A) Five years if the victim is under 70 years of age.
(B) Seven years if the victim is 70 years of age or older.
(c) Any person who knows or reasonably should know that a person
is an elder or dependent adult and who, under circumstances or
conditions other than those likely to produce great bodily harm or
death, willfully causes or permits any elder or dependent adult to
suffer, or inflicts thereon unjustifiable physical pain or mental
suffering, or having the care or custody of any elder or dependent
adult, willfully causes or permits the person or health of the elder
or dependent adult to be injured or willfully causes or permits the
elder or dependent adult to be placed in a situation in which his or
her person or health may be endangered, is guilty of a misdemeanor. A
second or subsequent violation of this subdivision is punishable by
a fine not to exceed two thousand dollars ($2,000), or by
imprisonment in a county jail not to exceed one year, or by both that
fine and imprisonment.
(d) Any person who is not a caretaker who violates any provision
of law proscribing theft, embezzlement, forgery, or fraud, or who
violates Section 530.5 proscribing identity theft, with respect to
the property or personal identifying information of an elder or a
dependent adult, and who knows or reasonably should know that the
victim is an elder or a dependent adult, is punishable by
as follows:
(1) B y imprisonment
in a county jail not exceeding one year, or in the state prison for
two, three, or four years, when the moneys, labor, goods, services,
or real or personal property taken or obtained is of a value
exceeding nine hundred fifty dollars ($950); and by
($950).
(2) B y a fine not
exceeding one thousand dollars ($1,000), by imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment,
when the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value not exceeding nine hundred fifty
dollars ($950).
(e) Any caretaker of an elder or a dependent adult who violates
any provision of law proscribing theft, embezzlement, forgery, or
fraud, or who violates Section 530.5 proscribing identity theft, with
respect to the property or personal identifying information of that
elder or dependent adult, is punishable by as
follows:
(1) B y imprisonment
in a county jail not exceeding one year, or in the state prison for
two, three, or four years when the moneys, labor, goods, services, or
real or personal property taken or obtained is of a value exceeding
nine hundred fifty dollars ($950), and by
($950).
(2) B y a fine not
exceeding one thousand dollars ($1,000), by imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment,
when the moneys, labor, goods, services, or real or personal property
taken or obtained is of a value not exceeding nine hundred fifty
dollars ($950).
(f) Any person who commits the false imprisonment of an elder or a
dependent adult by the use of violence, menace, fraud, or deceit is
punishable by imprisonment in the state prison for two, three, or
four years.
(g) As used in this section, "elder" means any person who is 65
years of age or older.
(h) As used in this section, "dependent adult" means any person
who is between the ages of 18 and 64, who has physical or mental
limitations which restrict his or her ability to carry out normal
activities or to protect his or her rights, including, but not
limited to, persons who have physical or developmental disabilities
or whose physical or mental abilities have diminished because of age.
"Dependent adult" includes any person between the ages of 18 and 64
who is admitted as an inpatient to a 24-hour health facility, as
defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety
Code.
(i) As used in this section, "caretaker" means any person who has
the care, custody, or control of, or who stands in a position of
trust with, an elder or a dependent adult.
(j) Nothing in this section shall preclude prosecution under both
this section and Section 187 or 12022.7 or any other provision of
law. However, a person shall not receive an additional term of
imprisonment under both paragraphs (2) and (3) of subdivision (b) for
any single offense, nor shall a person receive an additional term of
imprisonment under both Section 12022.7 and paragraph (2) or (3) of
subdivision (b) for any single offense.
(k) In any case in which a person is convicted of violating these
provisions, the court may require him or her to receive appropriate
counseling as a condition of probation. Any defendant ordered to be
placed in a counseling program shall be responsible for paying the
expense of his or her participation in the counseling program as
determined by the court. The court shall take into consideration the
ability of the defendant to pay, and no defendant shall be denied
probation because of his or her inability to pay.
SEC. 2. Section 868.5 of the Penal Code is amended to read:
868.5. (a) Notwithstanding any other law, a prosecuting witness
in a case involving a violation of Section 187, 203, 205, 207, 211,
215, 220, 240, 242, 243.4, 245, 261, 262, 273a, 273d, 273.5, 273.6,
278, 278.5, 285, 286, 288, 288a, 288.5, 289, or 647.6, former Section
277 or 647a, subdivision (1) of Section 314, or subdivision (b),
(c), (d), or (e) of Section 368 when the prosecuting
witness is the elder or dependent adult, shall be entitled, for
support, to the attendance of up to two persons of his or her own
choosing, one of whom may be a witness, at the preliminary hearing
and at the trial, or at a juvenile court proceeding, during the
testimony of the prosecuting witness. Only one of those support
persons may accompany the witness to the witness stand, although the
other may remain in the courtroom during the witness' testimony. The
person or persons so chosen shall not be a person described in
Section 1070 of the Evidence Code unless the person or persons are
related to the prosecuting witness as a parent, guardian, or sibling
and do not make notes during the hearing or proceeding.
(b) If the person or persons so chosen are also witnesses, the
prosecution shall present evidence that the person's attendance is
both desired by the prosecuting witness for support and will be
helpful to the prosecuting witness. Upon that showing, the court
shall grant the request unless information presented by the defendant
or noticed by the court establishes that the support person's
attendance during the testimony of the prosecuting witness would pose
a substantial risk of influencing or affecting the content of that
testimony. In the case of a juvenile court proceeding, the judge
shall inform the support person or persons that juvenile court
proceedings are confidential and may not be discussed with anyone not
in attendance at the proceedings. In all cases, the judge shall
admonish the support person or persons to not prompt, sway, or
influence the witness in any way. Nothing in this section shall
preclude a court from exercising its discretion to remove a person
from the courtroom whom it believes is prompting, swaying, or
influencing the witness.
(c) The testimony of the person or persons so chosen who are also
witnesses shall be presented before the testimony of the prosecuting
witness. The prosecuting witness shall be excluded from the courtroom
during that testimony. Whenever the evidence given by that person or
those persons would be subject to exclusion because it has been
given before the corpus delicti has been established, the evidence
shall be admitted subject to the court's or the defendant's motion to
strike that evidence from the record if the corpus delicti is not
later established by the testimony of the prosecuting witness.
SEC. 3. Section 4689.2 of the Welfare and Institutions Code is
amended to read:
4689.2. (a) It is the intent of the Legislature in enacting this
section to require the filing of fingerprints of those individuals
whose contact with consumers receiving services and supports from
family home agencies, as defined in subdivision (d) of
Section 4689.1, and family homes, as defined in subdivision (b) of
Section 4689.1, may pose a risk to the consumers' health and safety.
(b) As part of the vendor approval process for family home
agencies and family homes, the State Department of Developmental
Services shall secure from the Department of Justice and, if
applicable, the Federal Bureau of Investigation, a full criminal
history to determine whether the applicant or any other person
specified in subdivision (c) has ever been convicted of, or arrested
for, a crime other than a minor traffic violation. If it is found
that the applicant, or any other person specified in subdivision (c),
has been convicted of, or is awaiting trial for, a crime other than
a minor traffic violation, the vendor application shall be denied,
unless the director grants an exemption pursuant to subdivision (f).
If no criminal record information has been recorded, the Department
of Justice shall provide the applicant and the State Department of
Developmental Services with a statement of that fact.
(c) In addition to the applicant, this section shall be applicable
to criminal convictions of the following persons:
(1) Adults responsible for administration or direct supervision of
staff.
(2) Any adult other than a consumer residing in the family home.
(3) Any adult who provides assistance to the consumer in dressing,
grooming, bathing, or personal hygiene.
(4) Any staff person, employee, consultant, or volunteer who has
frequent and routine contact with the consumer. In determining who
has frequent contact, any consultant or volunteer shall be exempt
unless the volunteer is used to replace or supplement staff or family
home personnel in providing services or supports, or both, to
consumers. In determining who has routine contact, staff and
employees under direct onsite supervision of the family home agency
and who are not providing direct services and supports or who have
only occasional or intermittent contact with consumers shall be
exempt.
(5) The executive director of the entity applying for
vendorization or other person serving in like capacity.
(6) Officers of the governing body of the applicant, or other
persons with a financial interest in the applicant, as determined
necessary by the department by regulation. The criteria used in the
development of these regulations shall be based on the person's
capability to exercise substantial influence over the operation of
the family home agency or family home.
(d) (1) Subsequent to vendorization, any person specified in
subdivision (c) and not exempted from fingerprinting shall, as a
condition to employment, residence, or presence in a family home
agency or a family home, be fingerprinted and sign a declaration
under penalty of perjury regarding any prior criminal convictions.
The vendor shall submit these fingerprints to the Department of
Justice not later than four calendar days following employment,
residence, or initial presence in the family home agency or family
home. These fingerprints shall be on a card provided by the State
Department of Developmental Services for the purpose of obtaining a
permanent set of fingerprints. If fingerprints are not submitted to
the Department of Justice, as required in this section, that failure
shall result in a sanction and the fingerprints shall then be
submitted to the State Department of Developmental Services for
processing. Upon request of the vendor, who shall enclose a
self-addressed stamped postcard for this purpose, the Department of
Justice shall verify receipt of the fingerprints.
(2) Within 30 calendar days of the receipt of the fingerprints,
the Department of Justice shall notify the State Department of
Developmental Services of the criminal record information, as
provided in subdivision (b). If no criminal record information has
been recorded, the Department of Justice shall provide the vendor and
the State Department of Developmental Services with a statement of
that fact within 15 calendar days of receipt of the fingerprints. If
new fingerprints are required for processing, the Department of
Justice shall, within 15 calendar days from the date of receipt of
the fingerprints, notify the vendor that the fingerprints were
illegible.
(3) (A) Except for persons specified in paragraph (2) of
subdivision (c), the vendor shall endeavor to ascertain the previous
employment history of persons required to be fingerprinted under this
subdivision. If it is determined by the State Department of
Developmental Services, on the basis of the fingerprints submitted to
the Department of Justice, that the person has been convicted of, or
is awaiting trial for, a sex offense against a minor, or has been
convicted for an offense specified in Section 243.4, 273a, 273d, or
subdivision (b) or (c) of Section 368 of the Penal Code, or has been
convicted of a felony, the State Department of Developmental Services
shall notify the vendor to act immediately to terminate the person's
employment, remove the person from the family home, or bar the
person from entering the family home. The State Department of
Developmental Services may subsequently grant an exemption pursuant
to subdivision (f).
(B) If the conviction or arrest was for another crime, except a
minor traffic violation, the vendor shall, upon notification by the
State Department of Developmental Services, act immediately to do
either of the following:
(i) Terminate the person's employment, remove the person from the
family home, or bar the person from entering the family home.
(ii) Seek an exemption pursuant to subdivision (f). The State
Department of Developmental Services shall determine if the person
shall be permitted to remain in the family home until a decision on
the exemption is rendered.
(e) For purposes of this section or any other provision of this
chapter, a conviction means a plea or verdict of guilty or a
conviction following a plea of nolo contendere. Any action that the
State Department of Developmental Services is permitted to take
following the establishment of a conviction may be taken when the
time for appeal has elapsed, or the judgment of conviction has been
affirmed on appeal or when an order granting probation is made
suspending the imposition of sentence, notwithstanding a subsequent
order pursuant to Sections 1203.4 and 1203.4a of the Penal Code
permitting the person to withdraw his or her plea of guilty, or
dismissing the accusation, information, or indictment. For purposes
of this section or any other provision of this chapter, the record of
a conviction, or a copy thereof certified by the clerk of the court
or by a judge of the court in which the conviction occurred, shall be
conclusive evidence of the conviction. For purposes of this section
or any other provision of this chapter, the arrest disposition report
certified by the Department of Justice and, if applicable, the
Federal Bureau of Investigation, or documents admissible in a
criminal action pursuant to Section 969b of the Penal Code, shall be
prima facie evidence of the conviction, notwithstanding any other
provision of law prohibiting the admission of these documents in a
civil or administrative action.
(f) After review of the record, the Director of Developmental
Services may grant an exemption from denial of vendor approval
pursuant to subdivision (b), or for employment in a family home
agency or family home of residence or presence in a family home as
specified in subdivision (c), if the director has substantial and
convincing evidence to support a reasonable belief that the applicant
and the person convicted of the crime, if other than the applicant,
are of such good character as to justify vendor approval or granting
an exemption for purposes of subdivision (c). Except as otherwise
provided in this subdivision, no exemption shall be granted if the
conviction was for an offense specified in Section 220, 243.4, 264.1,
subdivision (a) of Section 273a, Section 273d, 288, 289, or
subdivision (a) or (b) (b) or (c) of
Section 368 of the Penal Code, or for another crime against an
individual specified in subdivision (c) of Section 667.5 of the Penal
Code. The director may grant an exemption if the employee,
prospective employee, or other person identified in subdivision (c)
who was convicted of a crime against an individual in paragraph (1),
(2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal
Code, has been rehabilitated as provided in Section 4852.03 of the
Penal Code and has maintained the conduct required in Section 4852.05
of the Penal Code for at least 10 years and has the recommendation
of the district attorney representing the employee's county of
residence, or if the employee, prospective employee, or other persons
identified in subdivision (c) has received a certificate of
rehabilitation pursuant to Chapter 3.5 (commencing with Section
4852.01) of Title 6 of Part 3 of the Penal Code.
(g) For purposes of compliance with this section, the department
may permit an individual to transfer a current criminal record
clearance, as described in subdivision (b), from one family home
agency or family home to another, as long as the criminal record
clearance has been processed through the State Department of
Developmental Services.
(h) If a family home agency or a family home is required by law to
deny employment or to terminate employment of any employee based on
written notification from the state department pursuant to
subdivision (c) the family home agency or the family home shall not
incur civil liability or unemployment insurance liability as a result
of that denial or termination.
SEC. 4. Section 15660 of the Welfare and Institutions Code is
amended to read:
15660. (a) The Department of Justice shall secure any criminal
record of a person to determine whether the person has ever been
convicted of a violation or attempted violation of Section 243.4 of
the Penal Code, a sex offense against a minor, or of any felony that
requires registration pursuant to Section 290 of the Penal Code, or
whether the person has been convicted or incarcerated within the last
10 years as the result of committing a violation or attempted
violation of Section 273a or 273d, or subdivision (a) or (b)
(b) or (c) of Section 368, of the Penal Code,
or as the result of committing a theft, robbery, burglary, or any
felony, and shall provide a subsequent arrest notification pursuant
to Section 11105.2 of the Penal Code, if both of the following
conditions are met:
(1) An employer of the person requests the determination and
submits fingerprints of the person to the Department of Justice. For
purposes of this paragraph, "employer" includes, but is not limited
to, an in-home supportive services recipient, as defined by Section
12302.2, an aged or disabled adult who is ineligible for benefits
under Chapter 3 (commencing with Section 12000), who receives care by
a person as described in paragraph (2), any recipient of personal
care services under the Medi-Cal program pursuant to Sections
14132.95 to 14132.97, inclusive, and any public authority or
nonprofit consortium, as described in subdivision (a) of Section
12301.6.
(2) The person is unlicensed and provides nonmedical domestic or
personal care to an aged or disabled adult in the adult's own home.
(b) (1) If it is found that the person has ever been convicted of
a violation or attempted violation of Section 243.4 of the Penal
Code, a sex offense against a minor, or of any felony which requires
registration pursuant to Section 290 of the Penal Code, or that the
person has been convicted or incarcerated within the last 10 years as
the result of committing a violation or attempted violation of
Section 273a or 273d, or subdivision (b) or (c) of Section 368, of
the Penal Code, or as the result of committing a theft, robbery,
burglary, or any felony, the Department of Justice shall notify the
employer of that fact. If no criminal record information has been
recorded, the Department of Justice shall provide the employer with a
statement of that fact.
(2) Any employer may deny employment to any person who is the
subject of a report under paragraph (1) when the report indicates
that the person has committed any of the crimes identified in
paragraph (1).
(3) Nothing in this section shall be construed to require any
employer to hire any person who is the subject of a report under
paragraph (1) when the report indicates that the person has not
committed any of the crimes indicated in paragraph (1).
(c) (1) Fingerprints shall be on a card provided by the Department
of Justice for the purpose of obtaining a set of fingerprints. The
employer shall submit the fingerprints to the Department of Justice.
Within 30 calendar days of the receipt of the fingerprints, the
Department of Justice shall notify the employer of the criminal
record information, as provided in this subdivision. If no criminal
record information has been recorded, the Department of Justice shall
provide the employer with a statement of that fact as soon as
possible, but not later than 30 calendar days from the date of
receipt of the fingerprints. If new fingerprints are required for
processing, the Department of Justice shall, as soon as possible, but
not later than 30 calendar days from the date of receipt of the
fingerprints, notify the employer that the fingerprints were
illegible.
(2) Fingerprints may be taken by any local law enforcement officer
or agency for purposes of paragraph (1).
(3) Counties shall notify any recipient of, or applicant for,
in-home supportive services or personal care services under the
Medi-Cal program, upon his or her application for in-home supportive
services or personal care services or during his or her annual
redetermination, or upon the recipient's changing providers, that a
criminal record check is available, and that the check can be
performed by the Department of Justice.
(d) (1) The Department of Justice shall charge a fee to the
employer to cover the costs of administering this section.
(2) (A) If the employer is an in-home supportive services
recipient, as defined in Section 123202.2, a recipient of personal
care services under the Medi-Cal program pursuant to Sections
14132.95 to 14132.97, inclusive, or any public authority or nonprofit
consortium as described in subdivision (a) of Section 12301.6, the
fee shall be shared by the county and the state in the same ratio as
described in Section 12306.
(B) (i) Notwithstanding any other provision of law, and except as
provided in clause (ii), the department shall, no later than January
1, 2009, implement subparagraph (A) through an all-county letter from
the director.
(ii) No later than July 1, 2009, the department shall adopt
regulations to implement the provisions listed in subparagraph (A).
(e) It is the intent of the Legislature that the Department of
Justice charge a fee to cover its cost in providing services in
accordance with this section to comply with the 30-calendar-day
requirement for provision to the department of the criminal record
information, as contained in subdivision (c).
SEC. 5. Section 16501 of the Welfare and Institutions Code is
amended to read:
16501. (a) As used in this chapter, "child welfare services"
means public social services which are directed toward the
accomplishment of any or all of the following purposes: protecting
and promoting the welfare of all children, including handicapped,
homeless, dependent, or neglected children; preventing or remedying,
or assisting in the solution of problems which may result in, the
neglect, abuse, exploitation, or delinquency of children; preventing
the unnecessary separation of children from their families by
identifying family problems, assisting families in resolving their
problems, and preventing breakup of the family where the prevention
of child removal is desirable and possible;
restoring to their families children who have
been removed, by the provision of services to the child and the
families; identifying children to be placed in suitable adoptive
homes, in cases where restoration to the biological family is not
possible or appropriate; and ensuring adequate care of children away
from their homes, in cases where the child cannot be returned home or
cannot be placed for adoption.
"Child welfare services" also means services provided on behalf of
children alleged to be the victims of child abuse, neglect, or
exploitation. The child welfare services provided on behalf of each
child represent a continuum of services, including emergency response
services, family preservation services, family maintenance services,
family reunification services, and permanent placement services,
including transitional independent living services. The individual
child's case plan is the guiding principle in the provision of these
services. The case plan shall be developed within a maximum of 60
days of the initial removal of the child or of the in-person response
required under subdivision (f) if the child has not been removed
from his or her home, or by the date of the dispositional hearing
pursuant to Section 358, whichever comes first.
(1) Child welfare services may include, but are not limited to, a
range of service-funded activities, including case management,
counseling, emergency shelter care, emergency in-home caretakers,
temporary in-home caretakers, respite care, therapeutic day services,
teaching and demonstrating homemakers, parenting training, substance
abuse testing, and transportation. These service-funded activities
shall be available to children and their families in all phases of
the child welfare program in accordance with the child's case plan
and departmental regulations. Funding for services is limited to the
amount appropriated in the annual Budget Act and other available
county funds.
(2) Service-funded activities to be provided may be determined by
each county, based upon individual child and family needs as
reflected in the service plan.
(3) As used in this chapter, "emergency shelter care" means
emergency shelter provided to children who have been removed pursuant
to Section 300 from their parent or parents or their guardian or
guardians. The department may establish, by regulation, the time
periods for which emergency shelter care shall be funded. For the
purposes of this paragraph, "emergency shelter care" may include
"transitional shelter care facilities" as defined in paragraph (11)
of subdivision (a) of Section 1502 of the Health and Safety Code.
(b) As used in this chapter, "respite care" means temporary care
for periods not to exceed 72 hours. This care may be provided to the
child's parents or guardians. This care shall not be limited by
regulation to care over 24 hours. These services shall not be
provided for the purpose of routine, ongoing child care.
(c) The county shall provide child welfare services as needed
pursuant to an approved service plan and in accordance with
regulations promulgated, in consultation with the counties, by the
department. Counties may contract for service-funded activities as
defined in paragraph (1) of subdivision (a). Each county shall use
available private child welfare resources prior to developing new
county-operated resources when the private child welfare resources
are of at least equal quality and lesser or equal cost as compared
with county-operated resources. Counties shall not contract for needs
assessment, client eligibility determination, or any other activity
as specified by regulations of the State Department of Social
Services, except as specifically authorized in Section 16100.
(d) Nothing in this chapter shall be construed to affect duties
which are delegated to probation officers pursuant to Sections 601
and 654.
(e) Any county may utilize volunteer individuals to supplement
professional child welfare services by providing ancillary support
services in accordance with regulations adopted by the State
Department of Social Services.
(f) As used in this chapter, emergency response services consist
of a response system providing in-person response, 24 hours a day,
seven days a week, to reports of abuse, neglect, or exploitation, as
required by Article 2.5 (commencing with Section 11164) of Chapter 2
of Title 1 of Part 4 of the Penal Code for the purpose of
investigation pursuant to Section 11166 of the Penal Code and to
determine the necessity for providing initial intake services and
crisis intervention to maintain the child safely in his or her own
home or to protect the safety of the child. County welfare
departments shall respond to any report of imminent danger to a child
immediately and all other reports within 10 calendar days. An
in-person response is not required when the county welfare
department, based upon an evaluation of risk, determines that an
in-person response is not appropriate. This evaluation includes
collateral, contacts, a review of previous referrals, and other
relevant information, as indicated.
(g) As used in this chapter, family maintenance services are
activities designed to provide in-home protective services to prevent
or remedy neglect, abuse, or exploitation, for the purposes of
preventing separation of children from their families.
(h) As used in this chapter, family reunification services are
activities designed to provide time-limited foster care services to
prevent or remedy neglect, abuse, or exploitation, when the child
cannot safely remain at home, and needs temporary foster care, while
services are provided to reunite the family.
(i) As used in this chapter, permanent placement services are
activities designed to provide an alternate permanent family
structure for children who because of abuse, neglect, or exploitation
cannot safely remain at home and who are unlikely to ever return
home. These services shall be provided on behalf of children for whom
there has been a judicial determination of a permanent plan for
adoption, legal guardianship, or long-term foster care, and, as
needed, shall include transitional independent living services.
(j) As used in this chapter, family preservation services include
those services specified in Section 16500.5 to avoid or limit
out-of-home placement of children, and may include those services
specified in that section to place children in the least restrictive
environment possible.
(k) (1) (A) In any county electing to implement this subdivision,
all county welfare department employees who have frequent and routine
contact with children shall, by February 1, 1997, and all welfare
department employees who are expected to have frequent and routine
contact with children and who are hired on or after January 1, 1996,
and all such employees whose duties change after January 1, 1996, to
include frequent and routine contact with children, shall, if the
employees provide services to children who are alleged victims of
abuse, neglect, or exploitation, sign a declaration under penalty of
perjury regarding any prior criminal conviction, and shall provide a
set of fingerprints to the county welfare director.
(B) The county welfare director shall secure from the Department
of Justice a criminal record to determine whether the employee has
ever been convicted of a crime other than a minor traffic violation.
The Department of Justice shall deliver the criminal record to the
county welfare director.
(C) If it is found that the employee has been convicted of a
crime, other than a minor traffic violation, the county welfare
director shall determine whether there is substantial and convincing
evidence to support a reasonable belief that the employee is of good
character so as to justify frequent and routine contact with
children.
(D) No exemption shall be granted pursuant to subparagraph (C) if
the person has been convicted of a sex offense against a minor, or
has been convicted of an offense specified in Section 220, 243.4,
264.1, 273d, 288, or 289 of the Penal Code, or in paragraph (1) of
Section 273a of, or subdivision (a) or (b)
(b) or (c) of Section 368 of, the Penal Code, or has been
convicted of an offense specified in subdivision (c) of Section 667.5
of the Penal Code. The county welfare director shall suspend such a
person from any duties involving frequent and routine contact with
children.
(E) Notwithstanding subparagraph (D), the county welfare director
may grant an exemption if the employee or prospective employee, who
was convicted of a crime against an individual specified in paragraph
(1) or (7) of subdivision (c) of Section 667.5 of the Penal Code,
has been rehabilitated as provided in Section 4852.03 of the Penal
Code and has maintained the conduct required in Section 4852.05 of
the Penal Code for at least 10 years and has the recommendation of
the district attorney representing the employee's or prospective
employee's county of residence, or if the employee or prospective
employee has received a certificate of rehabilitation pursuant to
Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of
the Penal Code. In that case, the county welfare director may give
the employee or prospective employee an opportunity to explain the
conviction and shall consider that explanation in the evaluation of
the criminal conviction record.
(F) If no criminal record information has been recorded, the
county welfare director shall cause a statement of that fact to be
included in that person's personnel file.
(2) For purposes of this subdivision, a conviction means a plea or
verdict of guilty or a conviction following a plea of nolo
contendere. Any action which the county welfare director is permitted
to take following the establishment of a conviction may be taken
when the time for appeal has elapsed, or the judgment of conviction
has been affirmed on appeal or when an order granting probation is
made suspending the imposition of sentence, notwithstanding a
subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal
Code permitting the person to withdraw his or her plea of guilty and
to enter a plea of not guilty, or setting aside the verdict of
guilty, or dismissing the accusation, information, or indictment. For
purposes of this subdivision, the record of a conviction, or a copy
thereof certified by the clerk of the court or by a judge of the
court in which the conviction occurred, shall be conclusive evidence
of the conviction.
SEC. 6. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.