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  
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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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