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)) Continued--- STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageB 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageC 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)) STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageD 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: STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageE 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageF 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageG 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageH 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageI STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageJ 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageK 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 STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageL 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) STAFF ANALYSIS OF SENATE BILL 977 (Liu) PageM POSITIONS Support: Children's Law Center of California Los Angeles Dependency Lawyers, Inc. Oppose: None received. -- END --