BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 545 (Mitchell)
As Amended June 13, 2013
Hearing Date: June 25, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Dependent children: placement: nonrelative extended family
member
DESCRIPTION
Existing law allows a dependent child who has been removed from
the custody of his or her parent to be placed in the home of a
nonrelative extended family member (NREFM) and defines a NREFM
as any adult caregiver who has an established familial or
mentoring relationship with a child. This bill would extend
that definition to include those adults who have a relationship
with a relative of the child, as specified.
BACKGROUND
Abused and neglected children who have been removed from their
homes fall under the jurisdiction of the child welfare system.
This system seeks to ensure the safety and protection of these
children, and where possible, preserve and strengthen families
through visitation and family reunification.
When abused or neglected children are taken from the custody of
their parents, social workers are required to release a child
temporarily to a responsible parent, guardian, or 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 extended family member (NREFM), defined
as "any adult caregiver who has established a familial or
mentoring relationship with the child," or place the child in a
licensed foster or group home. (Welf. & Inst. Code Sec.
361.2(e).) A social worker must then petition the court to
(more)
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declare the child a dependent of the court, and within a
relatively short period of time, the court determines whether it
needs to assert jurisdiction over the child, and limit or deny
parental rights.
These placements, at least initially, are temporary while the
social worker develops a case plan to present to the court
according to the following priorities: (1) maintain the child
within his or her home; (2) remove the child but with the goal
of reuniting the parent and child; or (3) find a permanent
placement for the child. Following the initial placement of a
child in a temporary home, a child is not eligible for adoption
until the court has formally terminated parental rights and
ended family reunification services. Thus, it is imperative
that the temporary placement, whether with a foster home,
relative, or NREFM, assist in the facilitation of court-ordered
family reunification services.
It has been reported that some county agencies have interpreted
the definition of NREFM so narrowly, as to preclude an infant or
young nonverbal child from being able to form the requisite
familial or mentoring relationship with a nonrelative, thereby
excluding many potential placements with adults who have close
relationships with a sibling, parent, or other family member of
the infant. Accordingly, this bill would expand the definition
of NREFM to include persons who have an established familial
relationship with a relative of the child.
CHANGES TO EXISTING LAW
Existing law provides that a minor may be removed from the
physical custody of his or her parents and become a dependent of
the juvenile court for serious abuse or neglect, or risk of
serious abuse or neglect, as specified. (Welf. & Inst. Code Sec.
300.)
Existing law requires the social worker to immediately release a
child in temporary custody to the child's parent, guardian, or
responsible relative, unless specified conditions exist. (Welf.
& Inst. Code Sec. 309 (a).)
Existing law provides that unless certain exceptions apply, the
primary objective of the juvenile dependency system is
reunification of the minor with his or her family, and the court
must order the social worker to provide services to reunify
children legally removed from a parent. (Fam. Code Sec. 7950,
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Welf. & Inst. Code Secs. 202, 300.2, 361.5.)
Existing law provides that when a court orders removal of a
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 a dependent child
in the home of a relative or a nonrelative extended family
member (NREFM), or a licensed foster care facility. (Welf. &
Inst. Code Secs. 309 (a), 361.2, 361.3, 362.7.)
Existing law provides that a caseworker must consider the
proximity of the natural parents when placing a child in
out-of-home care in order to facilitate visitation and family
reunification, and requires, prior to placement in long-term
foster care, the county to make diligent efforts to locate an
appropriate relative. (Fam. Code Sec. 7950.)
Existing law 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 "grand," or
the spouse of any of these persons. Existing law further
provides that only grandparents, aunts, uncles, or siblings
shall be eligible for preferential consideration for placement.
(Welf. & Inst. Code Secs. 319 (f), 361.3.)
Existing law defines NREFM as an adult caregiver who has an
established familial or mentoring relationship with the child,
and 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.)
This bill would define "nonrelative extended family member" as
an adult caregiver who has an established familial relationship
with a relative of the child, or a familial or mentoring
relationship with the child.
COMMENT
1.Stated need for the bill
According to the author
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[The] Welfare & Institutions Code currently defines a 'non
related extended family member' (NREFM) as 'any adult
caregiver who has an established familial or mentoring
relationship with the child.' Unfortunately, some judges and
hearing officers have recently interpreted this to mean that a
person close to the family who is interested in caring for a
young, nonverbal child (instead of that child going into a
foster home) is precluded from doing so because it is
impossible to establish a relationship with a child who is not
yet able to communicate. The law? requires clarification to
ensure that potential NREFM caregivers are not turned away.
2.Redefining nonrelative extended family member facilitates
speedy placement with adults who have a relationship with a
foster child's family
The established policy in California is to place dependent
children first with relative caregivers in order to strengthen
family bonds and facilitate reunification. (See Fam. Code Sec.
7950; Welf & Inst. Code Secs. 202, 300.2, 361.5.) As a result,
social workers are required to first seek relatives with whom
they may place a dependent child, prior to placing a child in
any other out-of-home care. NREFMs are not sought out by social
workers, but are instead adults who volunteer to provide a home
for a particular child because of a close, preexisting
relationship with the child. Under current law a person is a
NREFM only if he or she has an existing relationship with the
child. This bill would expand that definition to include persons
who have an established familial relationship with a relative of
the child. In support of this bill, the Executive Committee of
the Family Law Section of the State Bar (FLEXCOM) writes:
FLEXCOM supports an expanded definition of the nonrelated
extended family member placement option. When placement
outside the care of a parent is required, the statutory scheme
of dependency favors the maintenance of family and cultural
ties. Thus, the hierarchy of placements a court can consider
ranks relatives and family friends above the use of foster
care. In many instances, a family friend can promote
maintenance of these ties, even if that person does not know
the child.
This expansion of the definition of NREFM is particularly
important in cases with infants or very young children who may
not have had an opportunity to develop bonds with family
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friends, or potential NREFMs. To this end the National
Association of Social Workers writes in support, "it is
important that children are given the chance to be placed as
quickly as possible. In certain situations, such as with a
pre-verbal child, the definition of a nonrelative extended
family member should be extended to include situations where the
person has a relationship with the family, since the child is
not developmentally able to have a relationship with the
caregiver. This bill ensures that pre-verbal children are able
to find appropriate placements quickly."
a. Approval of relatives and NREFMs; Background checks and
home visits
AB 1695 (Aroner, Chapter 653, Statutes of 2001) authorized
NREFMs as a placement for children in foster care and
clarified that both relative and NREFM placements are subject
to being "approved," unlike foster families which are required
to be licensed as a Community Care Facility. Supporters of
that bill argued that "part of the justification for not
licensing relatives, and for creating the new category of
'nonrelative, extended family members' who are also not
licensed, is that the lengthy process required by licensing
does not lend itself to emergency placements of children, of
which there are many." (Sen. Hum. Servs. Com. Analysis of
Assem. Bill No. 1695 (2001-2002 Reg. Sess.) Aug. 22, 2001, p.
6.)
In response to the expansion of the definition of NREFM under
this bill, the opposition has expressed concerns that NREFMs
are not subject to adequate background checks, and children
may be placed in dangerous homes. In response, the County
Welfare Directors Association (CWDA) writes that, "all NREFMs
go through background checks and other procedures to ensure
they meet the same health and safety standards as a licensed
foster parent."
For example, existing law clearly requires that each NREFM
placement include a home evaluation to determine whether the
home meets the same "standards of safety and sanitation for
the physical plant and standards for basic personal care,
supervision, and services provided by the caregiver" as
required for a licensed family home. (Welf. & Inst. Code Secs.
361.4(a), 362.7.) In addition, prior to placing the child in a
home, the county welfare department is required to evaluate
the results of a criminal records check, and any allegations
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of prior child abuse or neglect concerning the NREFM, other
adults in the home, and other adults who may have significant
contact with the child including any person who has a familial
or intimate relationship with any person living in the home.
(Welf. & Inst. Code Secs. 309(d)(1), 361.4 (b)(1), 361.4 (c),
361.45 (a).) The county welfare department may also run a
criminal record check for any person over 14 years of age
living in the home of the NREFM.
b. Judicial review of placement decisions made by county
welfare agency
Concerns were also raised by the opposition that the county's
placement of children is not subject to any judicial
oversight. While it is true that the county is authorized to
make initial or emergency placements prior to review by the
court, the county must provide information about each
placement decision to the court and parties before each
hearing.
In support and offering clarification regarding the concerns
voiced by the opposition, CWDA writes that "the court provides
oversight of placement decisions made by the county welfare
agency. Counties include information about placement
decisions in each report to the court, which are made at the
beginning of the court process and at each subsequent hearing.
All parties to proceedings receive copies of these reports."
1.Nonrelative extended family members considered as placements
for limited time
When abused or neglected children are taken from the custody of
their parents, social workers are required to release a child
temporarily to a responsible parent, guardian, or relative,
unless a specified condition exists. (Welf. & Inst. Code Sec.
309(a).) A social worker must then petition the court to
declare the child a dependent of the court. Within a short
period of time (one day if the child is taken into custody, or
15 days if child is released to a parent) the matter will be set
for hearing. This is known as the "detention hearing" where the
court determines whether the child may be under the jurisdiction
of the dependency court, and whether immediate danger to the
child requires that he or she should be detained pending the
"jurisdictional" hearing, which will take place within 15 to 30
days, as specified. (Welf. & Inst. Code Sec. 319.) After the
detention hearing, social workers may also release a child into
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the custody of an approved nonrelative extended family member
(NREFM), defined as "any adult caregiver who has established a
familial or mentoring relationship with the child," or place the
child in a licensed foster or group home. (Welf. & Inst. Code
Sec. 361.2(e).)
The jurisdictional hearing offers parents the opportunity to
dispute allegations in the petition filed by the social worker,
and will ultimately determine whether the child comes under the
jurisdiction of the dependency court. The "dispositional
hearing," must be held within 10 days of the jurisdictional
hearing, absent special circumstances, but is often held
immediately after the jurisdictional hearing. (Welf. & Inst.
Code Sec. 352 (b); D.E. v. Superior Court (2003) 111 CA4th 502.)
This hearing is often considered the "meat and potatoes" of
dependency law because it is when the family's future is
charted. It is during this hearing that the court may order
family reunification services, children can go into a
guardianship (with an approved or licensed out-of-home
caregiver), or may be relinquished for adoption. Existing law
requires a county to approve a NREFM for potential placement
until 30 days prior to the dispositional hearing.
Advokids, in opposition to this bill, argues that NREFM
placements should only be considered by the court if the NREFM
comes forward within 30 days of a child being detained.
Advokids writes, "expanding the pool of potential caregivers who
must be assessed by county agencies must not allow for ongoing
assessments throughout the post-dispositional period as it often
leads to devastating placement disruptions for young children
who require continuity of care to achieve healthy brain function
and development."
Staff notes that an approved NREFM does not receive placement
preference over a foster family home. Thus, even if a NREFM is
approved after a child is placed with a foster family, that
approval would not warrant a change in placement. Accordingly,
if young children are being removed from existing placements and
placed with NREFMs, those changes are a result of a preference
or mandate under existing law, which this bill does not seek to
alter. Further, Advokid's suggestion of limiting the amount of
time in which NREFMs may come forward to request that a child be
placed in his or her home is far more restrictive than existing
law, and would seriously undermine the number of placements a
county is able to consider.
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2.Maintains status quo with regards to preferences for home
placements
The opposition has raised concerns regarding potential
preferential placement with NREFMs. However, this bill does not
change existing preferences, but maintains existing preferences
under law for placement with grandparents, aunts, uncles, or
siblings. (Welf. & Inst. Code Sec. 319 (f).) Existing law
further requires that a case worker maintain consideration for
the proximity of the natural parents so as to facilitate
visitation and family reunification, and requires, that unless
the child is placed with a relative eligible for preferential
consideration, the child shall be placed in the county of
residence of the child's parent. (Welf. & Inst. Code Sec. 361.2
(g)(1), Fam. Code Sec. 7950.)
Accordingly, approval of a NREFM does not entitle that 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, but
existing law does not provide a guarantee, or a preference, over
any other approved or licensed provider for placement.
Staff notes that by clarifying the definition of NREFM, other
preferences may be affected. For example, there is a preference
that children are placed in the same home as a sibling.
Therefore, if one sibling is with a foster parent, and another
sibling is placed with a caregiver who is a NREFM under the
expanded definition of this bill, one sibling may be taken out
of one home and placed in the other with his or her sibling.
The law does not however, create a preference for a NREFM over a
foster parent. Thus, whether the county decides to place the
children with the foster family or NREFM will depend entirely on
the best interests of the children. Accordingly, by expanding
the definition of NREFM, this bill would create more eligible
placements for foster youth, which could tangentially affect
placements based on the existing priority scheme.
The Juvenile Court Judges of California write that they support
this bill "because it clarifies and expands further those
parties who may be considered appropriate for placement."
3.Opposition's remaining concerns
Advokids requests one additional amendment to ensure that the
considerations that are applied to relative caregivers for
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placement currently will also apply to placements NREFMs.
Specifically, Advokids requests that Welf. & Inst. Code Sec. 361
(3)(a) is amended to read:
In any case in which a child is removed from the physical
custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a
relative of the child for placement of the child with the
relative, regardless of the relative's immigration status. In
determining whether placement with a relative or nonrelative
extended family member is appropriate, the county social
worker and the court shall consider, but shall not be limited
to, consideration of all of the following factors?
Staff notes that because the above provision provides how to
determine preferential placement when there are multiple
relatives who are available and willing to take a dependent
child into their homes, extending the considerations to NREFMs
would arguably create confusion.
Further, existing law requires the county to ensure that a
placement in any home (other than a parent's) will best meet the
day-to-day needs of the child. This standard is defined by the
following considerations:
the caregiver's ability to meet the day-to-day health, safety,
and well-being needs of the child;
the caregiver's ability to maintain the least restrictive and
most family-like environment that serves the day-to-day needs
of the child; and
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. (Welf. & Inst.
Code Sec. 361.2(k).)
Support : Children Now; County Welfare Directors Association;
Children Now; East Bay Children's Law Offices; Executive
Committee, Family Law Section of the State Bar (FLEXCOM); Home
Start; Junior Leagues of California; Juvenile Court Judges of
California; Los Angeles Dependency Court Lawyers; National
Association of Social Workers; Women's Foundation of California
Opposition : A Home Within; Advokids; Association for Counsel of
Children (late); Children's Plus Foster Family Agency; Napa
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Court Appointed Special Advocates; Koinonia Family Services;
Serenity Infant Care Homes, Inc.; There is Home, Inc.
HISTORY
Source : Children's Law Center of California;
Related Pending Legislation : None Known
Prior Legislation : AB 914 (Saldana, 2007) would have extended
the evaluation and approval requirements for nonrelative
extended family caregivers to nonrelative community support
system caregivers, as defined. This bill died in the Assembly
Human Services Committee.
AB 1695 (Aroner, Chapter 653, Statutes of 2001) conformed state
law with recent federal law relating to the placement of foster
children in licensed or approved homes of non-relatives and
relatives. Created a new category of "nonrelative, extended
family members," who are subject to the same approval process
as relatives and licensed caregivers.
Prior Vote :
Senate Health Committee (Ayes 6, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
Assembly Human Services Committee (Ayes 7, Noes 0)
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