BILL ANALYSIS                                                                                                                                                                                                    Ó






                                  SENATE HUMAN
                               SERVICES COMMITTEE
                            Senator Carol Liu, Chair


          BILL NO:       SB 977                                       
          S
          AUTHOR:        Liu                                          
          B
          VERSION:       March 17, 2014
          HEARING DATE:  April 22, 2014                               
          9
          FISCAL:        No                                           
          7
                                                                      
          7
          CONSULTANT:    Sara Rogers                                 
                                        

                                     SUBJECT
                                         
                          Juveniles: Dependency Court

                                     SUMMARY  

          This bill requires, in specified juvenile dependency court  
          hearings, that the court consider whether a child can be  
          returned to the custody of a parent who is enrolled in a  
          certified substance abuse treatment facility that allows a  
          dependent child to reside with the parent. Additionally,  
          this bill provides that a parent's enrollment in such a  
          facility shall not be, for that reason alone, prima facie  
          evidence of substantial danger.


                                     ABSTRACT  
           Existing Law:


           1.Provides that a child shall be within the jurisdiction of  
            the juvenile court when the child has suffered, or is of  
            substantial risk of suffering, serious physical harm or  
            illness as a result of the following: (WIC 300 (b))



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                     A failure or inability of the parent or  
                 guardian to adequately supervise or protect the  
                 minor;
                     A failure or inability of the parent or  
                 guardian to adequately supervise or protect the  
                 minor from the conduct of a custodian with whom the  
                 child has been left;
                     A willful or negligent failure of the parent or  
                 guardian to provide the minor with adequate food,  
                 clothing, shelter, or medical treatment;
                     The inability of the parent or guardian to  
                 provide regular care for the minor due to the  
                 parents or guardians mental illness developmental  
                 disability or substance abuse.


          1.Provides that, at the initial petition hearing, the court  
            shall make a determination based upon the social workers  
            report or other evidence, as to whether reasonable  
            efforts were made to prevent the removal of the child and  
            whether there are available services that would prevent  
            the need for further detention. Provides that services to  
            be considered include:


                     Case management
                     Counseling
                     Emergency shelter care
                     Emergency in-home caretakers
                     Out of home respite care
                     Teaching and demonstrating homemakers
                     Parenting training
                     Transportation
                     Family preservation services which include  
                 counseling, mental health treatment, substance abuse  
                 treatment services, parenting, respite, day  
                 treatment, transportation, homemaking and family  
                 support services.


          1.Provides that, in all cases in which a minor is adjudged  
            a dependent child of the court as specified, the court  
            may limit parental control over an adjudged dependent  
            child and requires the court to clearly and specifically  
            set forth those limitations. Provides that such  





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            limitations may not exceed those necessary to protect the  
            child. Additionally provides that a child shall not be  
            taken from the physical custody of the parent or guardian  
            unless the court finds clear and convincing evidence of a  
            substantial danger to the child, and there are no  
            reasonable means to protect the child. (WIC 361)


          2.Except as specified, requires the juvenile court to order  
            the county to provide child welfare services to the minor  
            and the minor's parents or guardians, and permits the  
            court to order the parent or guardian to participate in  
            counseling or other treatment services. (WIC 361.5) 


          3.Provides that the above services are not required to be  
            provided if the court finds that the parent or guardian  
            of the minor has a history of extensive abusive, and  
            chronic use of drugs and alcohol and has resisted prior  
            treatment for this problem during the prior three-year  
            period or has failed or refused to comply with a program  
            of drug or alcohol treatment described in the case plan  
            on at least two prior occasions, even though the programs  
            were available and accessible. (WIC 361.5)


          4.Provides that when a court orders the removal of a child  
            pursuant to the above dispositional hearing, the court  
            shall determine whether there is a parent of the child,  
            with whom the child was not residing, who desires custody  
            and requires the court to place the child with that  
            parent unless such placement would be detrimental to the  
            safety, protection or physical and emotional wellbeing of  
            the child. (WIC 361.2)


          5.Provides that, at the review hearing held six months  
            after the initial dispositional hearing, but no later  
            than 12 months after the child entered foster care, the  
            court shall order the return of the child to the parent  
            or guardian unless the court finds clear and convincing  
            evidence of a substantial risk of detriment to the child  
            as established by the social worker. Requires the court  
            to consider the criminal history of the parent, as  
            specified. (WIC 361.21 (e))





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          6.Provides that the permanency hearing shall be held no  
            later than 12 months after the date the child entered  
            foster care, as defined. Requires the court to determine  
            the permanent plan for the child, and requires the court  
            to order the return of the child to the parent or  
            guardian unless the court finds unless the court finds  
            clear and convincing evidence of a substantial risk of  
            detriment to the child as established by the social  
            worker. Requires the court to consider the criminal  
            history of the parent, as specified, and to consider  
            whether reasonable services were provided or offered to  
            the parent or guardian. (WIC 361.21 (f))


          7.Permits the court to continue a case for the permanency  
            hearing for up to six months if there is a substantial  
            probability that the child will be returned to the  
            physical custody of the parent or legal guardian within  
            the extended time. (WIC 361.21 (g))


          8.Permits the court to continue a case at the permanency  
            hearing for up to six months if the court determines by  
            clear and convincing evidence that the best interests of  
            the child would be met through additional reunification  
            services to a parent or guardian making substantial  
            progress in a court-ordered residential substance abuse  
            treatment program, or a parent recently discharged from  
            incarceration, institutionalization or the custody of  
            homeland security. (WIC 366.22 (b))


          9.Requires county child welfare services to notify the  
            court when a legal guardianship that led to the dismissal  
            of dependency is subsequently revoked or terminated and  
            requires that the child's parents be notified and  
            permitted to participate in the new permanency hearing  
            unless parental rights have been terminated. (WIC 366.3)


           This bill:







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              1.   Requires, at a detention hearing pursuant to WIC  
               319, the following:


                           The court to consider whether a child can  
                    be returned to the custody of a parent who is  
                    enrolled in a certified substance abuse treatment  
                    facility that allows a dependent child to reside  
                    with the parent.


                           The fact that a parent is enrolled in a  
                    certified substance abuse treatment facility that  
                    that allows a dependent child to reside with the  
                    parent shall not be, for that reason alone, prima  
                    facie evidence of substantial danger.


                           The court to specify the factual basis  
                    for its conclusion.


             1.   Requires, at the dispositional hearing pursuant to  
               WIC 361, the court to consider whether a child can be  
               returned to the custody of a parent who is enrolled in  
               a certified substance abuse treatment facility that  
               allows a dependent child to reside with the parent, as  
               a reasonable means to protect the minor.


             2.   Provides that if a non-custodial parent seeks  
               custody of a dependent child pursuant to WIC 361.2,  
               the fact that a parent is enrolled in a certified  
               substance abuse treatment facility that that allows a  
               dependent child to reside with the parent shall not  
               by, for that reason alone, prima facie evidence of  
               substantial danger.


             3.   Provides that at the six month review hearing and  
               the 12 month, 18 month and (if applicable) 24 month  
               permanency hearings the court shall consider whether a  
               child can be returned to the custody of a parent who  
               is enrolled in a certified substance abuse treatment  
               facility that allows a dependent child to reside with  





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               the parent. Additionally, provides that the fact that  
               a parent is enrolled in a certified substance abuse  
               treatment facility that that allows a dependent child  
               to reside with the parent shall not be, for that  
               reason alone, prima facie evidence of substantial  
               danger.


             4.   Provides that when a legal guardianship that led to  
               the dismissal of dependency is subsequently revoked or  
               terminated and the parents are considered as  
               custodians, the court shall consider whether a child  
               can be returned to the custody of a parent who is  
               enrolled in a certified substance abuse treatment  
               facility that allows a dependent child to reside with  
               the parent.


                                  FISCAL IMPACT
          
          This bill has not been analyzed by a fiscal committee. 

                            BACKGROUND AND DISCUSSION  

          According to the author, when parents commit a crime and  
          are sentenced to substance abuse treatment for drugs and  
          alcohol Juvenile Dependency Courts often have to place  
          children out of home, separating the parent from the child  
          and making reunification more difficult. The author and  
          sponsor state that a growing number of Residential  
          Substance Abuse Treatment Facilities (RSATFs) offer  
          residential beds for the children of clients, however  
          courts frequently do not consider whether a dependent child  
          can be safely returned to the custody of a parent who  
          resides in such a facility. The author states that this  
          bill would specify that the fact that a parent is enrolled  
          in a certified substance abuse treatment facility that  
          allows a dependent child to reside with the parent is not,  
          for that reason alone, prima facie evidence of detriment or  
          substantial danger.


          The sponsor, Los Angeles Dependency Lawyers, state that  
          this bill would ensure that courts make a specific  
          determination about whether a child can safely remain with  





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          a parent who is a resident of a certified substance abuse  
          treatment facility that allows a dependent child to reside  
          with the parent, whereas currently many courts do not even  
          consider such a placement. Additionally, the sponsor states  
          that the Affordable Care Act provides additional coverage  
          for such placements, increasing accessibility for parents  
          who have lost custody of their children due to drug or  
          alcohol abuse. Additionally, the sponsor notes that staff  
          working in such facilities are mandated reporters and that  
          the facility is specifically licensed to provide residence  
          to the children of clients so that children residing with  
          their parents in such facilities are in a potentially safer  
          environment than out-of-home foster care placements. 


          The sponsor cites a National Survey of RSTAFs which states  
          that approximately 14 percent of RSATFs provide beds for  
          client's children and that such facilities were more likely  
          than those that did not to provide an array of specialized  
          services shown to help individuals become more  
          self-sufficient and in control of their lives. The survey  
          states that the provision of these additional services to  
          the parent "increases the likelihood that the children's  
          essential needs will be met."  


            





          Juvenile Dependency Process - Limitations on Parental  
          Rights


           The juvenile dependency process is designed to provide  
          maximum safety and protection for children who currently  
          are, or are at risk of being physically, sexually, or  
          emotionally abused, being neglected, or being exploited,  
          while at the same time maintaining a focus on the  
          preservation of the family. (WIC 300.2) 


          The court has broad authority to direct orders to the  





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          parent, parents, or guardian of a minor who is subject to a  
          dependency proceeding as the court deems necessary and  
          proper for the best interests of?the minor. These orders  
          may concern the care, supervision, custody, conduct,  
          maintenance, and support of the minor, including education  
          and medical treatment."


          Existing law permits a social worker to take a minor into  
          "temporary custody" if it is suspected that a child is  
          being, or is at risk of being abused or neglected, however  
          in such cases the abuse has not yet been validated, the  
          child has not yet been adjudged to be a dependent of the  
          court, and parental rights have not been formally limited.  
          The authority for the juvenile dependency system to limit  
          parental authority over children is subject to a series of  
          rigorous and lengthy hearings and extensive court oversight  
          designed to ensure that parental rights are only limited to  
          the extent necessary to protect the children. (WIC 300 et  
          seq.) 


          At the initial detention hearing and at subsequent  
          hearings, the court is required to consider whether  
          reasonable efforts have been made to prevent or eliminate  
          the need for removal of or out of home placement for the  
          child. The list of services includes mental health and  
          substance abuse treatment for the parents. 


          Following the detention hearing, the court is required to  
          hold a "jurisdictional hearing" to determine whether the  
          minor has been or is at risk of abuse or neglect. If a  
          minor is detained in custody, the hearing must be held  
          within 15 days after the detention hearing.<1> A  
          "disposition hearing" must be held within 60 days after the  
          detention hearing to determine whether the child is a  
          dependent child of the court, to potentially limit parental  
          rights, establish a guardian, determine an appropriate  
          placement, or to order the provision of services to the  
          -------------------------

          -------------------------
          <1> WIC 334 and WIC 355






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          child or family.<2> Following these hearings, the court is  
          required to hold a series of permanency hearings to  
          determine the permanent plan for the dependent child,  
          including determining whether the child will be returned to  
          the parent, and if so, when.<3>


           Substance Abuse Treatment Facilities


           The California Department of Health Care Services licenses  
          residential facilities that provide non-medical services to  
          adults who are working to overcome their addiction to  
          alcohol and/or other drugs. Services include education,  
          group, or individual sessions; recovery or treatment  
          planning; and detoxification services. Additionally, a  
          facility may offer individualized services such as  
          vocational and employment search training, community  
          volunteer opportunities, new skills training, peer support,  
          social and recreational activities. Adult facilities may  
          also serve a limited number of adolescents (14 and older)  
          on a waiver basis and some facilities allow dependent  
          children to reside with their parents.<4>


          According to the Department of Health Care Services,  
          approximately 40 percent of clients receiving drug and  
          alcohol treatment are women and that 61 percent of those  
          women had minor children.<5>  Nearly one quarter of women  
          in treatment reside in residential substance abuse  
          treatment programs. 
          -------------------------


          <2> WIC 360 and WIC 361


          <3> WIC 366.21, 366.22, and 366.25


          <4>  
           http://www.dhcs.ca.gov/provgovpart/Documents/SUDCD_FAQs.pdf   



          <5> ibid






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          A research and policy review paper commissioned by the  
          California Department of Alcohol and Drug Programs (ADP)<6>  
          cites research that has shown that that women may fear that  
          they would jeopardize custody of their children if they  
          enter substance abuse treatment or may be reluctant to  
          admit to substance abuse problems in child welfare  
          assessments for that reason and this may complicate and  
          delay treatment efforts. Additionally, the report states  
          that "a body of research has demonstrated that women have  
          higher rates of treatment completion and better outcomes in  
          residential treatment programs [that] have live-in  
          accommodations for children."


          California receives federal funds through the Substance  
          Abuse Prevention and Treatment Block Grant (SAPT). The SAPT  
          is a federal formula grant awarded to the single state  
          agency in each state. Pursuant to federal law, at least  
          $15.5 million in SAPT Block Grant funds must be set aside  
          for pregnant women and women with dependent children. These  
          funds are dispersed to counties, which must spend their  
          fully allotted amount of funding for this purpose. 


           Drug and Alcohol Dependency in the Child Welfare System
           
          According to the procedural manual for Los Angeles County  
          "the mere fact that the parent is abusing drugs or alcohol  
          does not mean that a child should automatically be removed  
          from the home. A thorough assessment of the family must be  
          completed to assess if alcohol or drug use is impairing a  
          parent's judgment and ability to provide a sufficient and  
          safe minimal level of care to the child."<7>  This  
          assessment is required to include information on the nature  
          of the substance abuse, the accessibility of the drugs and  
          or alcohol to the children, the willingness of the parent  
          to address the substance abuse, the ability of the family  
          -------------------------
          <6>  
           http://www.adp.ca.gov/oara/pdf/SARC_white%20paper_ADP_Grella 
          .pdf  


          <7> Procedural Guide 0070-521.10




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          to acknowledge the risks posed, and the availability of  
          family or extended family support and their ability to  
          protect the children. Additionally, the procedural guide  
          calls on county social workers to determine the client's  
          ability and willingness to participate in treatment and to  
          evaluate any prior attempts at sobriety, the duration of  
          use, frequency, and type of substance(s) used.
          
           Comments:
           
             1.   Existing law clearly permits the court to place a  
               child with a parent who is receiving treatment for  
               drug and alcohol abuse, and in several instances  
               provides that the failure of a parent to participate  
               in treatment may be prima facie evidence that  
               conditions exist to prevent reunification.<8> Existing  
               law additionally provides that the social worker shall  
               make a recommendation to the court. Staff notes that  
               because the court relies in practice on the social  
               worker's recommendation, the author may wish to  
               consider amending the bill to ensure that the social  
               worker evaluations also consider this information in  
               their recommendation and in their court report.  
               Otherwise, this bill may require the court to consider  
               information that it may not have available.  
               Specifically, staff recommends the author consider  
               amending Sections 358.1, 366.1, and 16500 et seq of  
               the Welfare and Institutions Code.


             2.   Additionally, the author may wish to amend WIC16500  
               and/or subsequent code sections which describe the  
               policies and services to be used to reduce the  
               necessity of removing children from their homes and to  
               encourage speedy reunification through family  
               preservation and family reunification services. WIC  
               16500.5 (c) provides that family preservation services  
               may include mental health and substance abuse  
               treatment, however is silent regarding residential  
               treatment facilities that offer residential beds for  
               dependent children. 

          -------------------------
          <8> WIC 364 (c)






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                                    POSITIONS  

          Support:       Children's Law Center of California
                         Los Angeles Dependency Lawyers, Inc.

          Oppose:   None received.






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