BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 909 (Pavley)
As Amended April 10, 2014
Hearing Date: May 6, 2014
Fiscal: No
Urgency: No
NR
SUBJECT
Dependent children: health screenings
DESCRIPTION
Under existing law, a social worker is required to either get
the consent of a parent or permission from the court to
authorize medical, surgical, dental, or other remedial care for
a child who is in temporary custody.
This bill would allow a social worker to authorize a noninvasive
initial medical, dental, and mental health screening of a child
in temporary custody, without parental consent or a court order.
The bill would also add mental health treatment, as defined, to
the medical and dental care that may be authorized for a child
who is a dependent of the juvenile court, is in temporary
custody, or for whom a dependency petition has been filed.
BACKGROUND
The juvenile dependency system is designed to protect children
from abuse and neglect, while also preserving the rights of
parents and families. (In re Alexander, 152 Cal.App.2d 458).
Thus, any control the dependency system exercises over a child
is subject to a series of hearings and judicial oversight
designed to ensure that parental rights are only limited to the
extent necessary to protect the child.
When a child is suspected to be a victim of abuse or neglect, a
county welfare social worker is required to immediately
investigate the complaint. If the complaint is valid, the child
is removed from a parent's physical custody and may be placed in
(more)
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the temporary custody of the social worker, a responsible
relative, or guardian. The social worker is required to
immediately file a petition with the juvenile court, and the
court then holds a detention hearing to determine whether the
child should be further detained. This hearing must be within
three judicial days of the petition being filed which gives the
child welfare agency and court a short amount of time to
investigate whether the child should remain in custody and be
ruled a dependent of the state, or be returned to his or her
parent. (Welf. & Inst. Code Secs. 311, 313, 315.) If the child
is further detained, the court must hold a dispositional hearing
to ascertain whether there are child welfare services that would
permit the child to return home, and, if appropriate, order
services to reunify the child and family.
Temporary loss of custody of a child does not eliminate all
rights of a parent. Generally, until a parent's rights have been
limited or terminated by the court, parental consent is
necessary for medical treatment. A parent's rights will not be
altered until the court has ruled on the allegations of abuse,
and determined that a child does in fact come within the
jurisdiction of the dependency court.
In situations where a parent cannot be located or is unwilling
to provide consent, the social worker may seek authorization
from the court to provide medical treatment. In emergency
situations, where immediate medical attention is required, the
social worker is permitted to provide consent to treatment after
he or she makes reasonable efforts to obtain consent from the
parent. (Welf. & Inst. Code Sec. 369.) Often, parents are
difficult to locate or refuse to give consent, therefore some
counties have issued standing court orders which authorize a
social worker to consent to necessary health care for the child
under specified circumstances. For example, until this year,
Los Angeles County had a blanket order giving social workers the
right to consent to health care for children in temporary care
if the parent is unavailable. (See Los Angeles County Juvenile
Court Rule 7.4.)
The Los Angeles County Superior Court recently revoked that
blanket order, thus requiring social workers to seek the
authorization of the court for medical treatment when a child's
parent is unavailable or otherwise refused to provide consent
for medical treatment. This bill, sponsored by Los Angeles
County, would instead allow a social worker to authorize an
initial medical, dental, or health screening of a child who has
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been temporarily removed from the custody of his or her parents
for abuse or neglect, but has not yet been adjudged a dependent
of the court. This bill would also add "mental health care" to
the services a social worker or court is allowed to authorize
under existing law.
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 abuse or neglect, or risk of abuse or
neglect. (Welf. & Inst. Code Sec. 300.)
Existing law provides that unless certain exceptions apply, as
specified, 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. (Welf. & Inst.
Code Secs. 202, 300.2, 361.5.)
Existing law authorizes the court to direct any orders to the
parent or guardian of a minor who is subject to any juvenile
court proceedings as the court deems necessary and proper for
the best interests of the minor, including orders related to the
care, supervision, custody, conduct, maintenance, education, and
medical treatment of the minor. (Welf. & Inst. Code Sec.
245.5.)
Existing law authorizes the court to limit parental control over
a dependent child, to the extent necessary to protect the child,
and requires the court to clearly and specifically set forth
those limitations. (Welf. & Inst. Code Sec. 361.)
Existing law authorizes the court to make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of a dependent child, including medical treatment,
subject to further order of the court. (Welf. & Inst. Code Sec.
362.)
Existing law allows a social worker to authorize the performance
of medical, surgical, dental, or other remedial care for a child
in temporary custody upon the recommendation of the attending
physician or surgeon. Existing law requires the social worker,
before the care is provided, to notify the parent or guardian,
and if the parent or guardian objects, provides that care shall
be given only upon order of the court. (Welf. & Inst. Code Sec.
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369(a).)
Existing law authorizes the court to allow a social worker to
authorize the medical, surgical, dental or other remedial care
for a dependent child that has been placed by the court under
the custody or supervision of a social worker, if it appears
there is no parent or guardian capable of authorizing or willing
to authorize medical, surgical, dental or other remedial care.
(Welf. & Inst. Code Sec. 369(c).)
Existing law allows a social worker to authorize emergency
medical, surgical, or other remedial care, as defined, for a
child in temporary custody, a dependent child, or a child for
whom a petition has been filed, in an emergency situation.
Existing law requires the social worker to make reasonable
efforts to obtain the consent of, or to notify, the parent or
guardian. (Welf. & Inst. Code Sec. 369(d).)
Existing law authorizes a minor who is 12 years of age or older
to consent to mental health treatment or counseling services if,
in the opinion of the attending professional person, the minor
is mature enough to participate intelligently in the mental
health treatment or counseling services. (Health & Saf. Code
Sec. 124260(b).)
This bill would make various uncodified findings and
declarations stating that the state has a compelling interest in
ensuring the physical and mental health of children in the child
welfare system and would reference the American Academy of
Pediatrics recommendations for initial health screenings for
foster children.
This bill would allow a social worker to authorize a noninvasive
initial medical, dental, and mental health screening for a child
in temporary custody, prior to the detention hearing, for any of
the following reasons:
to determine whether the child has an urgent medical, dental,
or mental health need that requires immediate attention;
to determine whether the child poses a health risk to other
persons; or
to determine an appropriate placement to meet the child's
medical and mental health care needs identified in the initial
health screening.
This bill would add "mental health care" to the list of health
care services that may be authorized by the court or a social
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worker when unable to obtain parental consent, as specified.
This bill would clarify that it does not authorize a child to
receive psychotropic medication without the consent of the
child's parent or guardian, or the court pursuant to existing
law.
This bill would define "mental health care" as the provision of
mental health services, including assessment, treatment, or
counseling, on an outpatient basis.
This bill would define "mental health provider" as a physician
and surgeon specializing in the practice of psychiatry, a
psychologist, a psychological assistant, intern, or trainee, a
licensed marriage and family therapist, a registered marriage
and family therapist, intern, or trainee, a licensed educational
psychologist, a credentialed school psychologist, a licensed
clinical social worker, an associate clinical social worker, a
licensed professional clinical counselor, a registered clinical
counselor, intern, or trainee, or any other person designated as
a mental health professional under California law or regulation.
This bill would make other clarifying and technical changes.
COMMENT
1.Stated need for the bill
According to the author:
Existing law does not provide clear authority for a social
worker to provide consent for the health care provider to
conduct initial medical, dental and mental health assessments
and/or screenings during the 72 hours prior to a detention
hearing. Without clear authority for conducting initial
health care assessments and screening for newly detained
children, many counties have relied on a variety of local
rules and blanket orders from the juvenile court, to provide
the authority to conduct such assessments. Each local rule and
blanket order uses its own criteria for what the screening
includes. This has resulted in a great deal of inconsistency
statewide and the need for statutory language to specifically
authorize initial medical dental and mental health assessments
and screenings.
2.Recent State Auditor's report calls into question the quality
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and accuracy of counties' safety and risk assessments
This bill would allow social workers to authorize a medical,
dental, or mental health screening for any child in temporary
custody to determine (1) if the child has an urgent need that
requires immediate attention, (2) if the child poses a health
risk to other persons, or (3) to determine an appropriate
placement to meet the child's needs. Under existing law the
social worker would need to obtain the consent of a parent or
the court before authorizing such an action, unless immediate
care was warranted by a medical, surgical, or dental emergency.
It should be noted that the authorization for medical care
discussed in this section takes place within three to five days
of the child being removed from the custody of the parent,
before a parent has been found by a court to have actually
abused or neglected a child, based on a risk assessment created
by a social worker.
A few weeks ago, on April 8, 2014, the State Auditor released a
report which examined the policies and practices of three
child-protective agencies in California. The audit was initiated
by the Legislature after a number of incidents involving child
protective services last year, one of which led to the death of
a child in Los Angeles County. (Christopher Simmons, California
Child Protective Services Audit Uncovers Disturbing Flaws in
Agency Performance, California Newswire, April 8, 2014, found at
<
http://californianewswire.com/2014/04/08/CNW19195_165140.php/cali
f-child-protective-services-audit-uncovers-disturbing-flaws-agenc
y-performance/> as of April 28, 2014.)
The audit examined three counties, and found that all three need
to provide better protection for abused and neglected children.
Elaine Howle, the State Auditor, writes, "Although all three
agencies require the use of standardized safety and risk
assessments, the agencies' social workers frequently did not
prepare these assessments in a timely manner or at all, and the
information in these assessments was often inaccurate." The
report indicated that:
Although these assessments are the principal mechanism by
which these agencies document critical decisions regarding the
child's safety, we found that some assessments were not
prepared in a timely manner or were not prepared at all. We
also found that the information used in these assessments was
often incomplete and inconsistent. At times, this led to
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flawed evaluations of safety, risk, and needed services.
(State Auditor, Child Welfare Services: The County Child
Welfare Services Agencies We Reviewed Must Provide Better
Protection for Abused and Neglected Children; Report 2013-110,
April 8, 2014)
The report ultimately included the recommendation that "Social
Services should encourage each county Child Welfare Services
(CWS) agency to designate personnel to regularly update policies
and procedures and perform quality assurance reviews. Further,
Social Services should monitor the status of each county CWS
agency's efforts." In response, the California Department of
Social Services has agreed to implement, in all 58 counties, the
recommended supervisory review and quality assurance processes
outlined in the audit.
Safety and risk assessments are the very basis on which a social
worker may remove a child temporarily from the custody of his or
her parent. Accurate assessments are necessary to protect
children who are indeed the victim of abuse, but also to ensure
that unsubstantiated claims of child neglect or abuse do not
result in a parent losing custody of his or her child. Given
that the State Auditor found high rates of inaccuracy thus
resulting in flawed assessments, it is arguably inappropriate to
remove existing requirements for parental consent and/or
judicial protections related to medical, dental, and mental
health care before the Department of Social Services has been
able to implement the quality assurance processes it has agreed
to.
In opposition to this bill, the National Center for Youth Law
writes:
Senate Bill 909 would remove important protections and
oversight mechanisms that currently exist to ensure
appropriate delivery of mental health services to dependent
youth in the temporary custody of child welfare. It would
also remove the parents' right to be involved in some
decisions about their child's health care even in situations
in which they have not been found to be abusive or neglectful.
3.Bill is broader in scope than the former standing court order
it seeks to replace
In 1993, the presiding judge of the Juvenile Court of Los
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Angeles County issued a blanket order authorizing Department of
Child and Family Services social workers to consent to medical
treatment for children covered by Welfare and Institutions Code
Section 369(a). (See Los Angeles County Juvenile Court Rule
7.4.) Welfare and Institutions Code Section 369(a) allows a
social worker to authorize medical care, but requires a social
worker to notify the parent(s). If a parent objects to medical
treatment, then the social worker must seek approval from the
court.
By allowing social workers to authorize medical, dental, or
mental health screening for a child in temporary care without
first seeking to notify the child's parent or obtain his or her
consent, this bill is arguably broader than what was allowed
under Los Angeles County's former blanket order, which required,
at the very least, parental notification. In addition, staff
notes this bill would seemingly allow a social worker to
authorize an initial screening of a child, even if a parent
objected.
In response to concerns that "screening" was too vague of a
term, this bill was amended in the Senate Human Services
Committee to authorize only "noninvasive" initial screenings.
This amendment does little to clarify what a screening will
actually entail. Merriam-Webster defines noninvasive as
something "done without cutting the body or putting something
into the body." In seeking to ensure children receive a
medical, dental, and mental health screening, the author and
sponsor rely on recommendations from the American Academy of
Pediatrics (AAP) Official Manual which calls for the following
in an initial screen:
a review of available medical, developmental and mental health
history;
review of symptoms;
vital signs, height, weight, body mass index;
if indicated, a physical examination by a physician or nurse
practitioner;
an unclothed external body inspection for signs of acute
illness, signs of abuse, or rash suggestive of contagious or
infectious disease, range of motion joint inspection;
external genitalia inspection;
assessment of chronic conditions; and
developmental and mental health screen for significant delay,
major depression, suicidal thoughts or violent behavior.
These AAP-recommended parameters for an initial medical screen
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are significantly more intrusive than would be permitted under
existing law without parental consent. Although the sponsor
states it is not their intent for the AAP screen to guide the
medical screen authorized under this bill, the content of the
bill largely rests on recommendations made by the AAP. The
author instead suggests the following parameters for medical
screen.
Noninvasive initial medical, dental, and mental health
screening "may include a review of available health and
developmental history, a standard review of systems (standard
medical review), a measurement of the child's height, weight
and head circumference with percentiles, a taking of vital
signs, a physical examination by a physician or pediatric
nurse practitioner to identify signs of acute and chronic
illness, the completion of a standard screening tool to assess
the child's developmental and mental health needs."
The American Civil Liberties Union writes in opposition that,
"we are not convinced that [this bill] is necessary to ensure
the health and safety of children who are not yet part of the
child welfare system. Even accepting that it may be necessary
in limited cases, we believe that the subsection should include
notice and an opportunity for parents to consent or object, and
that the term 'screening' should be defined and limited. ? To
highlight why this matters, we use the term 'mental health
screen' as an example. A mental health screen may be something
as simple as a series of questions that may or may not lead to a
full mental health referral, but it also could be an exam that
results in a permanent diagnosis. We believe the first 72 hours
after removal from parental custody is not the appropriate time
for full-fledged mental health examinations and permanent
diagnoses."
In response to the above concerns, the author may wish to
consider the following amendment which would better define the
parameters of an initial health screening to ensure that it is
in fact non-invasive.
Amendment:
On page 2, after line 30 insert "For the purposes of this
subdivision, a noninvasive initial medical, dental, or mental
health screening includes a review of available health and
developmental history, a standard review of systems (standard
medical review), a measurement of the child's height, weight
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and head circumference with percentiles, a taking of vital
signs, and a physical examination by a physician or pediatric
nurse practitioner to identify signs of acute and chronic
illness. Physical examinations of children over two years of
age shall not require the removal of the child's undergarments
and the child shall be provided with a dressing gown if the
physical examination reasonably requires the removal of the
child's outer clothing."
1.Would erode protections in all cases to create solution in a
minority of cases
The author argues that this bill is necessary because "under
existing law, a social worker is only authorized to consent to
emergency medical treatment for minors if the parent or legal
guardian cannot be found. Approximately 15 percent of detained
dependents in Los Angeles County have parents who cannot be
reached for purposes of medical consent."
Thus, social workers in Los Angeles County have been able to
obtain consent for medical treatment in roughly 85 percent of
cases. However, under this bill social workers would not be
required to seek consent for medical screenings at all, nor
would this bill require notification. In support, First 5 LA
writes, "children entering temporary custody can sometimes have
a number of medical conditions, including communicable diseases,
chronic health conditions requiring medical attention, and
mental health issues. Some of these health conditions and
illnesses are not immediately evident to a social worker, but
could be detected through an initial health screening. This is
especially relevant in cases of infants and pre-verbal toddlers
who are unable to communicate problems such as urinary tract
discomfort."
Indeed, many children awaiting an initial detention hearing are
arguably in need of medical attention. However, it appears as
though in the vast majority of cases social workers are able to
obtain parental consent for screening or medical care, or
otherwise authorize such care in emergency situations. Thus,
existing law, which requires court approval in the absence of
parental consent, arguably strikes a balance between protecting
the due process rights of parents and protecting children from
abuse.
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2.Author's amendments
In response to the concerns discussed above, the author commits
to continuing to work on further defining the parameters of the
mental health screen, and offers the following amendments which
would require parental notification for initial medical, dental,
or mental screenings of a child in temporary custody, and
require a court order in the event the parent objects.
Author's amendments:
Page 2, before line 31, insert "(b) Notwithstanding
subdivision (a), the social worker must first make reasonable
attempts to notify the parent that the child taken into
temporary custody will be undergoing a noninvasive initial
medical, dental, and mental health screening. The parent
shall be provided a reasonable opportunity to object to this
screening. In the event that the parent objects, the social
worker must obtain a court order authorizing this screening."
Support : California Optometric Association; California
Federation of Teachers; California State Association of
Counties; California State PTA; County Welfare Directors
Association of California; Glendale City Employees Association;
Juvenile Court Judges of California; National Association of
Social Workers-California Chapter; Child Abuse Prevention
Center; Urban Counties Caucus; Ventura County Board of
Supervisors
Opposition : American Civil Liberties Union of California;
American Family Rights Association; Citizens Commission on Human
Rights; National Center for Youth Law
HISTORY
Source : Los Angeles County Board of Supervisors
Related Pending Legislation : None Known
Prior Legislation :
AB 506 (Mitchell, Chapter 153, Statutes of 2013) authorized a
social worker to consent to HIV testing for infants less than 12
months of age if in temporary custody of the juvenile court or
if the subject of a dependency petition filed with the court.
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SB 913 (Pavely, Chapter 256, Statutes of 2011) permitted a chief
probation officer to provide consent to medical examinations and
non-emergency medical care for youth detained in county juvenile
facilities
Prior Vote :
Senate Human Services Committee (Ayes 5, Noes 0)
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