BILL ANALYSIS Ó
SENATE HUMAN
SERVICES COMMITTEE
Senator Leland Y. Yee, Chair
BILL NO: AB 545
A
AUTHOR: Mitchell
B
VERSION: May 13, 2013
HEARING DATE: June 11, 2013
5
FISCAL: No
4
5
CONSULTANT: Sara Rogers
SUBJECT
Placements for Dependent Children: Nonrelative extended
family member
SUMMARY
This bill expands the definition of a nonrelative extended
family member to include an adult who has an established
familial relationship with a relative, as defined, of the
child.
ABSTRACT
Existing law:
1.Establishes the criteria by which a child who has
suffered, or is at risk of suffering, significant abuse
or harm shall fall within the jurisdiction of the
juvenile court which may adjudge that person to be a
dependent child of the court. (WIC 300)
Continued---
STAFF ANALYSIS OF ASSEMBLY BILL 545 (Mitchell)
PageB
2.Permits the juvenile court to remove a child from the
physical custody of his or her parents or guardian upon
clear and convincing evidence there is substantial danger
to the health, safety, protection, or physical or
emotional well-being of the minor, the parent or guardian
is unwilling to have physical custody, the minor is
suffering severe emotional damage, the minor or a sibling
has been sexually abused, or the minor has been left
without any provision for his or her support. (WIC 361
(c))
3.Following a court order to remove a child from parental
custody, requires the court to order the care, custody,
control and conduct of the child to be under the
supervision of the social worker and permits a social
worker to place the child in any of the following (WIC
361.2):
The home of a noncustodial parent.
The approved home of a relative, as defined.
The approved home of a nonrelative extended
family member, as defined.
A foster home in which the child has been
previously placed, if it is in the best interest of
the child and space is available.
A suitable licensed community care facility.
With a foster family agency to be placed in a
licensed foster family home or certified family
home.
A home or facility in accordance with the
Indian Child Welfare Act.
1.Defines "nonrelative extended family member" as an adult
caregiver who has an established familial or mentoring
relationship with the child, as verified by the county
welfare department through interviews. (WIC 362.7)
2.Defines "relative" as an adult who is related to the
child by blood, adoption, or affinity within the fifth
degree of kinship, including step relatives, relatives
whose status is preceded with "great," "great-great" or
STAFF ANALYSIS OF ASSEMBLY BILL 545 (Mitchell)
PageC
"grand" or the spouse of any of these persons. Provides
that only grandparents, aunts, uncles or siblings shall
be eligible for preferential consideration for placement.
(WIC 361.3)
3.Permits a social worker to immediately release a child to
the custody of a relative, except as specified, and
permits a child to be placed with a relative or
nonrelative extended family member upon the assessment of
the home's suitability, a criminal background check, and
a check of child abuse records of all adults in the home.
Additionally, provides that the standards used to
determine suitability shall be the same standards used
for foster family homes, except as specified. (WIC 309
(d))
4.Provides that the focus of the juvenile dependency system
is the preservation of the family as well as the safety,
protection, and physical and emotional well-being of the
child. States that, if removal from the home is
determined to be necessary by the court, reunification of
the minor with his or her family shall be a primary
objective. (WIC 202 and WIC 300.2)
5.Provides that a case worker shall maintain full
consideration for the proximity of the natural parents to
a placement so as to facilitate visitation and family
reunification and requires the court, before placement in
long-term foster care, to make diligent efforts to locate
an appropriate relative. (FAM 7950)
FISCAL IMPACT
This bill has not been designated as a fiscal bill and has
not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill
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The author states that existing law, which defines
nonrelative extended family member (NREFM) as any adult
caregiver with a familial or mentoring relationship with
the child, has been interpreted in some instances to mean
that young non-verbal children are incapable of having such
a NREFM since they cannot establish such relationships.
The sponsor, Children's Law Center of California writes
that the NREFM category permits children to be placed in
homes of people that are close to the family in a timely
manner without having to go through the lengthy licensure
or certification process required to become a foster
parent.
According to the sponsor, the current definition of NREFM
is unreasonably narrow and prevents the timely placement of
foster children with nonrelated adult caregivers who have a
relationship with family members of the child. The sponsor
cites an example of a 15-year-old child whose mother
recently passed away, leaving the child with no close
relatives. The sponsor states that a longtime friend of the
mother, who lived out of town and wished to provide a home
for the child, moved to the area to establish a
relationship with the child. However, that friend refused
an assessment as a potential NREFM because she had no prior
relationship with the child. As a result, the child is
residing in shelter care while awaiting a foster home
placement.
Placement Decisions within the Child Welfare System
The child welfare system is designed to ensure safety and
protection for children who are, or are at risk of being,
abused, neglected, or exploited, while at the same time
maintaining a focus on family reunification and family
continuity for the child.
Existing law permits a social worker to take a minor into
"temporary custody" if it is suspected that a child is
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being, or is at risk of being, abused or neglected but the
abuse has not yet been validated, the child has not yet
been adjudged to be a dependent of the court, and parental
rights have not been formally limited. The authority for
the juvenile dependency system to limit parental authority
over children is subject to a series of rigorous and
lengthy hearings and extensive court oversight designed to
ensure that parental rights are only limited to the extent
necessary to protect the children and to promote the
possibility of family reunification, or if reunification is
not possible, family continuity for the child. (WIC 300 et
seq.)
Family Code Section 7950 establishes preferences for the
placement of dependent children in foster care, based on
the overarching goal to facilitate visitation and family
reunification. As a result, first priority for placement is
in the home of a relative, unless the placement would not
be in the best interests of the child. Caseworkers are
required to make diligent efforts to locate the home of a
relative, and if a relative is not immediately found, a
child may be placed in a licensed or certified foster home.
This statute is silent with regard to NREFMs.
Following a child's initial placement, until a court has
terminated parental rights and ended family reunification
services, a child is not formally eligible for adoption and
the focus of the system is to seek to preserve family
continuity. As such, an important responsibility of a
foster family at this stage of the process is to assist in
the facilitation of court-ordered reunification efforts and
to facilitate visitation with the child's other relatives
in the interest of maintaining continuity of familial
relationships for the child. This means that, following
placement of a child in a licensed or certified foster
family home, the subsequent availability of a relative or
NREFM as a suitable placement may lead to the removal of
the child from the licensed home, to be placed in the home
of the relative or NREFM.
Existing law requires a permanency hearing to be held six
months from the date a child who is younger than 3 years of
STAFF ANALYSIS OF ASSEMBLY BILL 545 (Mitchell)
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age is removed from the home, or 12 months from the date a
child aged 3 or older is removed, although a court may
extend this time period if it is found there is a
substantial possibility that the child will be returned to
the physical custody of his or her parent or guardian.<1>
Family reunification may be continued up to a maximum of 24
months if it can be shown that the permanent plan for the
child is to be returned and safely maintained in the home,
and if it is in the best interests of the child.
Relative and Nonrelative Extended Family Members
AB 1695 (Chapter 653, 2001), which clarified state law to
conform with the Federal Adoptions and Safe Families Act of
1997, established "nonrelative extended family members" as
an approved placement for children in foster care and
clarified that both relative and NERFM placements are
subject to being "approved" while all foster family homes
are licensed as a Community Care Facility. Under both state
and federal law, relative and NREFM caregivers are required
to be approved by the caseworker using the same standards
as licensed homes as defined in HSC 1505 (I)(2), WIC 362.7,
309(d), 727, and 11400. The law also clarifies that
granting of an approved status does not entitle the
caregiver to placement of a specific child; instead
placement is based on each individual child's needs and
best interests. Thus, approval enables a NREFM to be
considered for placement (without undergoing formal
licensure), but existing law does not provide a guarantee,
or a preference, over any other approved or licensed
provider for placement.
As currently defined under WIC 362.7, nonrelative extended
family member is "any adult caregiver that has an
established familial or mentoring relationship with a
child. This prior relationship shall be verified by
interviews with the parent and child or with one or more
third parties."
-------------------------
<1> Welfare and Institutions Code Section 361.5 (a)
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Anecdotally, it has been reported that some county agencies
have interpreted this so narrowly that a young, nonverbal
child is unable to have such a familial or mentoring
relationship with any nonrelative. Additionally, the
sponsor has argued that the current definition of NREFM
excludes many potential placements that would be willing
and able to care for the child, while maintaining
continuity of biological family relationships.
This bill would expand the definition of NREFM to include
adult caregivers that have an established familial
relationship with a "relative" of the child. Relative, in
this context, is defined as an adult who is related to the
child by blood, adoption, or affinity within the fifth
degree of kinship, including step relatives, relatives
whose status is preceded with "great," "great-great" or
"grand or the spouse of any of these persons. Through
regulation, 5th degree of kinship is interpreted as
follows:<2>
1st degree = parent
2nd degree = grandparent, sibling
3rd degree = great grandparent, uncle or aunt, and niece or
nephew
4th degree = great-great grandparent, great-uncle or aunt,
and first cousin
5th degree = great-great-great grandparent, great-great
uncle or aunt, and first cousin once removed (i.e. the
first cousin of a parent)
Such a designation does not qualify a NREFM for
preferential consideration for placement, as such priority
is granted only to grandparents, aunts, uncles or siblings.
Additionally, as has been mentioned, such homes must
conform to the same health and safety standards as licensed
foster family homes. Thus, the primary advantage of
approval over licensure is the speed with which a child may
be placed.
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<2> Errata to ACL 05-13 February 15, 2006
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Determinations of the Best Interests of a Child
Existing law, under WIC 361.2 (k) provides that when an
agency has placed a child with a relative caregiver, a
NREFM, a licensed foster family home, or a group home,
the agency shall ensure placement in the home that best
meets the day-to-day needs of the child. This standard
is defined as:
The child's caregiver is able to meet the
day-to-day health, safety, and well-being needs of
the child.
The child's caregiver is permitted to maintain
the least restrictive and most family-like
environment that serves the day-to-day needs of
the child.
The child is permitted to engage in reasonable,
age-appropriate day-to-day activities that promote
the most family-like environment for the foster
child.
Additionally, exiting law states that when the court
initially orders removal, unless the child is placed
with a relative eligible for preferential consideration
(limited to grandparents, siblings, aunts or uncles),
the child shall be placed in the county of residence of
the child's parent or guardian in order to facilitate
reunification of the family.(WIC 361.2 (g)(1))
In evaluating the appropriateness of a relative
receiving preferential consideration at the disposition
hearing, and subsequently, a caseworker is required to
consider the following factors:<3>
The best interest of the child, including special
-----------------------
<3> Welfare and Institutions Code Section 361.3
STAFF ANALYSIS OF ASSEMBLY BILL 545 (Mitchell)
PageI
physical, psychological, educational, medical, or
emotional needs.
The wishes of the parent, the relative and the
child, if appropriate.
The provisions FC 7950 regarding relative
placement.
Placement of siblings and half-siblings in the same
home, if that placement is found to be in the best
interest of each of the children as provided in WIC
16002.
The good moral character of the relative and any
other adult living in the home, including whether any
individual residing in the home has a prior history of
violent criminal acts or has been responsible for acts
of child abuse or neglect.
The nature and duration of the relationship between
the child and the relative, and the relative's desire
to care for the child.
The ability of the relative to do the following:
o Provide a safe, secure, and stable
environment for the child
o Exercise proper and effective care and
control of the child
o Provide a home and the necessities of
life for the child.
o Protect the child from his or her
parents.
o Facilitate court-ordered reunification
efforts with the parents
o Facilitate visitation with the child's
other relatives.
o Facilitate implementation of all elements
of the case plan.
o Provide legal permanence for the child if
reunification fails.
o Arrange for appropriate and safe
childcare, as necessary.
The safety of the relative's home, which must first
be approved per WIC 309 (d) which includes an
assessment of the ability of the relative to meet the
child's needs, a home inspection, and a criminal
record check. Additionally, the relative home shall
meet the same standards and regulations set forth for
the licensing of foster family homes.
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Opposition Concerns
Advokids, an organization providing legal advice and
resources for foster children and foster families, writes
that AB 545 is overly broad in that it seeks to include
potential caregivers in the definition of a NREFM who have
no established relationships with an infant and toddler in
foster care. The organization writes that infants and
toddlers in foster care have mental health needs that are
different from older children, and that once a child has
been placed in the home of a licensed foster family,
subsequent removal of a child into the home of the newly
expanded NREFM is potentially harmful to children in foster
care. Furthermore, Advokids states that requiring county
social workers to assess the newly expanded population of
NREFMs would be burdensome to county child welfare
departments that currently struggle to assess relative
homes in a timely manner.
Advokids seeks an amendment to this bill that would limit
NREFM to nonrelated caregivers who have a relationship to
either the child, or to the parent of the child.
Additionally, Advokids writes that an expansion of NREFM
should include a requirement for potential caregivers to
seek approval as an NREFM within 30 days that a child has
been removed from the home, rather than 30 days prior to
the dispositional hearing, which they state are often set
out months following the detention hearing (the time when a
child may have been placed with a foster family home upon
the absence of a suitable relative home at the time).
Comments
1.Staff notes that existing law does not provide for
preferential treatment of a NREFM over a foster family
home, but rather requires a county to approve a NREFM for
potential placement until 30 days prior to the
dispositional hearing. Following the dispositional
hearing, a county is no longer required to approve a
NREFM for consideration. However some courts have
interpreted existing law to require a county to approve a
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relative home for preferential consideration and
potential placement until family reunification services
have been terminated. In such a circumstance, only a
grandparent, sibling, aunt, or uncle qualifies for
preferential consideration, and a placement made only
when it is in the best interests of the child.<4>
Advokids states that children are being removed from
foster family homes long after initial placement into the
homes of NREFMs, without regard to the mental health and
other needs of a young child. Staff notes that such a
placement change would be in clear violation of multiple
statutes in existing law. The organization may wish to
consider future legislation to clarify or enforce the
existing responsibilities of courts and caseworkers to
ensure the health and wellbeing of foster children in
their care.
2.Staff recommends a clarifying amendment as follows:
Page 2, line 13, after "relative" insert "of the child."
The County Welfare Directors Association has also
submitted a letter requesting this amendment.
PRIOR VOTES
Assembly Floor: 77-0
Assembly Human Services: 7-0
POSITIONS
Support: Children's Law Center of California (sponsor)
Children Now
County Welfare Directors Association (if amended)
East Bay Children's Law Offices (if amended)
Exec. Committee, Family Law Section of the State
Bar (FLEXCOM)
Home Start
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<4> ACL 05-13 June 16, 2005 and re Joseph T. (2008) 163
Cal.App.4th 787
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Junior Leagues of California
Juvenile Court Judges of California
Los Angeles Dependency Court Lawyers (LADL)
National Association of Social Workers
Women's Foundation of California
1 individual
Oppose:A Home Within
Advokids
Children's Plus Foster Family Agency
Napa Court Appointed Special Advocates
Koinonia Family Services
Serenity Infant Care Homes, Inc.
There is Home, Inc.
13 individuals
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