BILL ANALYSIS Ó
AB 506
Page 1
ASSEMBLY THIRD READING
AB 506 (Mitchell)
As Amended May 1, 2013
Majority vote
HUMAN SERVICES 5-0 JUDICIARY 10-0
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|Ayes:|Stone, Maienschein, Ian |Ayes:|Wieckowski, Wagner, |
| |Calderon, Garcia, Hall | |Alejo, Chau, Dickinson, |
| | | |Garcia, Gorell, |
| | | |Maienschein, Muratsuchi, |
| | | |Stone |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Provides social workers with additional authority to
consent to medical assessments for infants who have been placed
into temporary custody or have been ruled a dependent of the
court. Specifically, this bill :
1)Amends Health and Safety (H&S) Code Section 121020 to allow a
social worker to provide written consent, without notification
to the child's parent, attorney or the court, to an
intravenous Human Immunodeficiency Virus (HIV) test for an
infant who is less than 12 months of age who is in temporary
custody or is a dependent of the court.
2)Prior to consenting to an HIV test, all of the following must
occur:
a) A physician or surgeon must determine and document that
an HIV test is necessary.
b) The social worker must provide known information that
the infant has been at risk of exposure to HIV.
c) For purposes of an infant whose parent or guardian
retains medical decision making authority, the social
worker must document that he or she has made a reasonable
effort to contact the parent or guardian.
d) For purposes of an infant whose parent or guardian has
had their medical decision making authority terminated, the
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social worker must document that he or she has made a
reasonable effort to contact the person authorized by the
court to make medical decisions for the child, which may
include the court itself.
3)Requires the attending physician or surgeon and the social
worker to comply with all applicable state and federal
confidentiality laws.
EXISTING LAW :
1)States that the purpose of foster care law is to provide
maximum safety and protection for children who are currently
being physically, sexually, emotionally abused, neglected, or
exploited, and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of harm.
2)States the intent of the Legislature to preserve and
strengthen a child's family ties whenever possible and to
reunify a foster youth with his or her biological family
whenever possible, or to provide a permanent placement
alternative, such as adoption or guardianship.
3)Permits a peace officer or social worker to take a minor into
temporary custody if he or she is believed to be or is a
victim of abuse or neglect at the hands of their parent or
legal guardian, including whether the parent or guardian
willfully or negligently fails to provide the child with
adequate medical treatment. (Welfare and Institutions (W&I)
Code Section 305)
4)Provides a process by which a peace officer may transfer a
child in temporary custody to a social worker, who may then
consider whether the child can remain safely in his or her
home and be released to his or her parents, or whether the
child should be retained in an out-of-home placement. (W&I
Code Sections 306 and 309)
5)Deems a child taken into temporary custody by a social worker
when he or she is in a medical facility and the child is under
medical care and cannot be immediately moved. (W&I Code
Section 309(b))
6)Requires a county to file a petition to the court requesting a
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detention hearing within 48 hours of placing a child under
temporary custody to determine whether the child should remain
in custody and whether any specific court permissions are
necessary to provide for the health and safety of the child.
(W&I Code Sections 313 and 319)
7)Requires a "detention hearing" to be held within 24 hours of
the next court day whenever a detention petition is filed with
the court. (W&I Code Section 315)
8)Requires a court to appoint counsel for a child taken in to
temporary custody who shall advocate for the protection,
safety, and physical and emotional well-being of the child.
(W&I Code Section 317(c))
9)Requires a juvenile court to hold a "jurisdictional hearing"
within 15 judicial days of the petition filed to take the
child into temporary custody to determine whether the court
has jurisdiction to adjudicate the child. (W&I Code Section
334)
10)Requires a juvenile court to hold a "dispositional hearing"
within 60 days of the detention hearing to determine the
appropriate placement for the youth if he or she is
adjudicated to be a dependent of the court. (W&I Code Section
352(b))
11)Allows the county to communicate with the court at any time
while the child is either in temporary custody or dependency,
which may include requesting permission from the judge to
conduct an HIV test on an infant. (California Rules of Court,
Title 5 Family and Juvenile Rules, Rule 5.151)
12)Requires a child to undergo a "physical exam" within 72 hours
of being taken into temporary custody if there are allegations
of, or the child is suspected of being a victim of, physical
or sexual abuse. (W&I Code Section 324.5)
13)Requires a social worker to acquire the consent of a parent
or permission from the court to authorize medical, surgical,
dental or other remedial care to a child who is in temporary
custody. (W&I Code Sections 369(a) and 369(b))
14)Requires a social worker to acquire permission from the court
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to authorize medical, surgical, dental or other remedial care
to a child who is a dependent of the court if there is no
parent or guardian who is capable of or willing to provide
consent. (W&I Code Section 369(c))
15)Permits, under specified emergency conditions, a licensed
physician to provide emergency medical, surgical, or other
remedial care to a child in temporary custody without the
consent of the parent or permission from the court. (W&I Code
Section 369(d))
16)Permits a court, in ordering the provision of medical,
surgical, dental or other remedial care, to release the
information of the ordered care to a social worker, parole
officer or other qualified individual or agency that is under
court order to provide for the child's welfare. (W&I Code
Section 369(e))
17)Requires permission from the court to conduct an HIV test on
a child if he or she is under the age of 12 and is an
adjudicated dependent of the juvenile court. (H&S Code
Section 121020(b))
18)Prohibits a person from being compelled to disclose the
results of a person's HIV test, and prohibits a person from
negligently disclosing the results, as specified. (H&S Code
Section 121020(c))
FISCAL EFFECT : None
COMMENTS :
BACKGROUND :
Maintaining the Family . Historically, it has been the stated
policy of California that when a child is removed from the home,
first preference should be given to placing the child with
another parent, or with his or her relatives whenever possible
and appropriate. This has helped to preserve and strengthen the
social bedrock of our society, by keeping families together and
reducing society's reliance on its social welfare system.
Child Welfare Services . The purpose of California's Child
Welfare Services (CWS) system is to provide for the protection
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and the health and safety of children. Within this purpose, the
desired outcome is to reunite children with their biological
parents, when appropriate, to help preserve and strengthen
families. However, if reunification with the biological family
is not appropriate, children are placed in the best environment
possible, whether that is with a relative, through adoption, or
with a guardian, such as a nonrelated extended family member, as
specified.
In the case of children who are at risk of abuse, neglect or
abandonment, county juvenile courts hold legal jurisdiction and
children are served by the CWS system through the appointment of
a social worker. Through this system, there are multiple stages
where the custody of the child or his or her placement are
evaluated, reviewed and determined by the judicial system, in
consultation with the child's social worker to help provide the
best possible services to the child.
The Welfare and Institutions Code also lays out the conditions
under which a court may deem a child a dependent or ward of the
court. Associated with the placement, the assigned social
worker shall develop a case plan for the child, which outlines
the placement for the child, sets forth services necessary for
the child, and outlines the provision of reunification services,
if necessary and appropriate.
Temporary Custody : When it is suspected that a child is a
victim of physical, sexual, or emotional abuse, or neglect or
exploitation, any person may report that abuse or neglect to
child protective services. After the report of abuse or neglect
is made, a county welfare agency's (CWA) child protective
services social worker is required to immediately investigate
the complaint to determine its validity. If the complaint is
found to be valid, the social worker may remove the child from
the family and place the child into temporary custody. This
allows for the immediate removal of the child from harm, while
the CWA and the court investigate whether the child should
remain in temporary custody or be ruled a dependent of the
state.
Temporary custody does not eliminate all rights of the parent;
rather removal of parental rights depends on what "care, custody
and control" rights the parent(s) may retain, as determined by
the court on a case by case basis. Typically, the parent
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retains educational and health rights over the child, which,
again, depends on the ruling of the court.
The timelines and requirements to address temporary custody are
laid out in the W&I Code and provide an adjudicatory process
that must be conducted expeditiously to limit, to the extent
possible, any harm to the child. This includes limiting undue
harm due to the removal of the child from the family for health
and safety purposes, as well as avoiding emotional harm to the
child due to separation from his or her parent(s).
The timeline guiding temporary custody and dependency is as
follows:
1)Detention Petition - Within 48 hours of removal of a child
from the custody of his or her parent(s), the CWA must file a
detention petition with the juvenile court. The detention
petition must include the reasons why the child was removed
from the home, and any request of the court necessary to
provide for the health and safety of the child, which includes
any needed medical or surgical procedures and treatment.
2)Detention Hearing - Within 24 hours of the filing of the
detention petition, the court must, at its next court day,
hold a detention hearing where it will consider whether the
child should remain in temporary custody. It is at this
hearing that the court can entertain any requests from the CWA
or the parent(s) as to the care of the child, which includes
any necessary permission to conduct medical care.
3)Jurisdictional Hearing - Within 15 days of the filing of the
detention petition, the court must hold a jurisdictional
hearing to determine whether it has the jurisdiction to
adjudicate the child.
4)Dispositional Hearing - Within 60 days of the filing of the
detention petition, the court must hold a dispositional
hearing, unless continued as permitted by the court, to rule
on whether the child will be reunited with his or her
parent(s) or become a dependent of the state.
It should be noted that the jurisdictional and dispositional
hearing can be held concurrently.
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Further, at any time after the detention hearing, the CWA, with
notification of the interested parties, may communicate with the
court to request any necessary permissions or authority to
provide for the welfare of the child. This can include requests
for permission to provide any type of medical care for the
child, such as an HIV test.
Parental consent or court permission for medical, surgical,
dental or other remedial care : W&I Code Section 369 lays out
requirements under which consent to medical, surgical, dental or
other remedial care may be acquired for a child in temporary
custody.
In response to the requirements under W&I Code Section 369, some
counties have issued standing court orders, which authorizes a
social worker to consent to necessary health care for the child
under specified circumstances. For example, the Los Angeles
County Juvenile Court has issued Rule 7.4, which provides all
county social workers the right to consent to health care,
excluding an HIV test pursuant to court rule 7.6(c) in response
to H&S Code Section 121020, for minors in temporary custody when
the parent is unable to consent to care or objects to care.
NEED FOR THE BILL :
According to the author, this bill is needed to "comply with the
American Academy of Pediatrics (AAP) guidelines that all
children under the age of one year who are placed into the
foster care system to be tested for HIV."
Additionally, writing as the sponsor of the bill, the County of
Los Angeles states:
There are times when it is difficult to locate the
parents of infants who are placed into foster care.
If parental consent cannot be obtained, then approval
must be obtained from the Juvenile Dependency Court
which can take six months or longer because of heavy
court caseloads. Consequently, the health of the
infant may be severely compromised if medical consent
is not obtained in a timely manner.
Medical studies have shown that medications can be
administered to the HIV-exposed infant soon after
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birth, which can ultimately prevent HIV acquisition
and its adverse health consequences.
Need for authority ? Current law and existing judicial court
rules in certain counties, including Los Angeles, provide a
number of different avenues for a social worker to obtain prompt
and necessary consent to conduct an intravenous blood draw for
an HIV test upon any child who is in temporary custody. As
described earlier in this analysis, the first time a county
social worker has the opportunity to request consent is at two
integral opportunities, as provided by law:
1)Through parental consent, which can occur immediately when the
child is placed into temporary custody; and
2)Through the court at the detention hearing, which must be held
within 72 hours of the child being taken into temporary
custody.
Further, either through subsequent hearings before the court,
such as the jurisdictional or dispositional hearing, a social
worker may request any necessary consent he or she needs to have
an HIV test conducted. Additionally, at any time while the
child is under the temporary custody of the social worker, the
social worker may engage in "ex parte communication" with the
court, which allows, upon notification of all parties involved,
the social worker to request the court's permission for the test
outside of a court proceeding.
According to Los Angeles County, it can take up to six months to
acquire the permission of the court to have an HIV test
conducted. In cases involving an infant, the county argues that
any time lost waiting for the court's permission is time that
could otherwise be used to provide critical and necessary
medical care to the child to prevent HIV acquisition. However,
under state law, no child may be in temporary custody for more
than 60 days without a granted continuance of the child's
dispositional hearing by the court.
Caseloads for social workers, foster youth attorneys, and
juvenile court judges are high, however, there exists, under
current law, several statutorily required opportunities during
which a CWA may acquire parental consent or court permission for
an HIV test in a timely manner.
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Basis for consent authority . In its report "Health Care Needs
of Children in the Foster Care System," under which it
recommends that all infants placed into foster care be tested
for HIV, the AAP does not make specific recommendations as to
whether a social worker should be authorized to consent an HIV
test. Rather, it defers to the need for state welfare agencies
to produce regulations to specify how this should be
accomplished:
Child welfare agencies are responsible for ensuring
that children in their care and custody receive
services necessary to optimize their health and
development. However, most agencies have continued to
struggle with significant resource shortages in the
face of increasing case loads, and children's health
care has not been a priority for the child welfare
system. Both the Child Welfare League of America and
the American Academy of Pediatrics have provided
general guidelines for health care to children in
foster care, but these have not been widely
implemented. State agency regulations are needed to
specify how this should be accomplished . There is
clearly a need for creative and collaborative
initiatives between the child welfare and health care
systems to improve the health care of foster children.
Reasonable efforts . If the parent or person with medical
decision making responsibility refuses consent, the social
worker, pursuant to W&I Code Section 369, must acquire the
courts permission. However, under this measure, a social worker
must make "reasonable efforts" to contact the parent or person
responsible to make medical decisions for the child, which under
current law is the court. It is unclear what is considered to
be "reasonable efforts" on behalf of the social worker to
contact the parent or necessary authority to acquire medical
consent for the HIV test.
PREVIOUS LEGISLATION :
AB 1074 (Chu) from 2005. This measure would have added a foster
parent, relative caregiver, or assigned social worker for a
child who has been adjudged a dependent of the court to the list
of persons to whom disclosure of HIV test results may be made
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without consent. It would have also allowed a foster parent, a
relative caregiver, or the social worker of a child adjudged to
be a dependent of the court, the authority to consent to an HIV
test on the child's behalf.
This measure was not pursued and died pursuant to Article IV,
Section 10(c) of the Constitution in the Assembly Human Services
Committee.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089
FN: 0000362