BILL ANALYSIS Ó 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) AB 545 (Mitchell) Page 2 of ? 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, AB 545 (Mitchell) Page 3 of ? 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 AB 545 (Mitchell) Page 4 of ? [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 AB 545 (Mitchell) Page 5 of ? 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 AB 545 (Mitchell) Page 6 of ? 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 AB 545 (Mitchell) Page 7 of ? 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. AB 545 (Mitchell) Page 8 of ? 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 AB 545 (Mitchell) Page 9 of ? 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 AB 545 (Mitchell) Page 10 of ? 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) **************