BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1001 Hearing Date: June 14, 2016
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|Author: |Maienschein |
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|Version: |May 11, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|AA |
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Subject: Child Abuse: Reporting: Foster Family Agencies
HISTORY
Source: Children's Advocacy Institute at the University of San
Diego School of Law
Prior Legislation:None
Support: Board of Behavioral Sciences; California District
Attorneys Association; California Welfare Directors
Association of California; Child Abuse Prevention
Center; Crime Victims United of California
Opposition:None known
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to 1) require that if the California
Department of Social Services (CDSS), as a condition of
licensure, requires the specified officials of a foster family
agency to attend an orientation, then that orientation shall
include a description of policies, procedures, or practices that
violate state's mandated reporter statutes; 2) require CDSS to
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take reasonable action if a violation is found, as specified; 3)
add board members of a public or private organization whose
duties require direct contact and supervision of children as
mandated child abuse and neglect reporters; 4) add social
workers in foster family agencies to the existing county social
worker whistleblower program; and 5) require additional
legislative reporting, as specified.
Existing law establishes the California Community Care
Facilities Act to provide for the licensure and regulation of
community care facilities. (Health and Safety Code ("HSC") §
1500, et seq.)
Existing law defines a foster family agency to mean any public
agency or private organization engaged in the recruiting,
certifying, and training of, and providing professional support
to, foster parents, or in finding homes or other places for
placement of children for temporary or permanent care who
require that level of care. Requires private foster family
agencies to be organized and operated on a nonprofit basis. (HSC
§ 1502 (a)(4))
Existing law permits the California Department of Social
Services ("CDSS") to deny an application for, or suspend or
revoke, any license, or any special permit, certificate of
approval, or administrator certificate, for the violation of
rules or regulations governing Community Care Facilities, as
specified. (HSC § 1550)
Existing law permits CDSS to prohibit any person from being a
member of the board of directors, an executive director, or an
officer of a licensee, who has violated rules or regulations,
engaged in conduct that is inimical to health, morals, welfare
or safety of the clients or others, been denied an exemption to
work in the facility, or other violations. (HSC 1558)
This bill provides that if CDSS, as a condition of licensure,
requires the chief executive officer or other authorized member
of the board of directors and the administrator of a foster
family agency to attend an orientation given by the licensing
agency that outlines the applicable rules and regulations for
operation of a foster family agency, that orientation shall
include, but not be limited to, a description of policies,
procedures, or practices that violate the mandated child abuse
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and neglect reporting laws, as specified (Penal Code § 11166
(i)(1) or (2)).
This bill provides that if CDSS requires, as part of an
application for licensure for a foster family agency, a written
plan of operation, that plan of operation shall include a
written plan establishing policies, procedures, or practices to
ensure that the foster family agency does not violate the
mandated child abuse and neglect reporting laws, as specified
(Penal Code § 11166 (i)(1) or (2)).
This bill defines a foster family agency by cross-reference, as
specified.
This bill provides that CDSS "shall take reasonable action,
including, but not limited to, prohibiting a person from being a
member of the board of directors, an executive director, or an
officer of a licensee of a licensed facility or certified family
home, or denying an application for, or suspending or revoking,
a license, special permit, certificate of approval, or
administrator certificate, issued under this chapter, or denying
a transfer of a license pursuant to paragraph (2) of subdivision
(c) of Section 1524, upon a finding of a violation of
subdivision (i) of Section 11166 of the Penal Code, pertaining
to mandated child abuse and neglect reporting laws.
Existing law requires mandated reporters to make a report of
suspected abuse or neglect to a specified law enforcement agency
or county child welfare department, prohibits agencies that are
required to receive reports from refusing to accept a report and
requires the receiving agency to maintain a record of all
reports received. (Penal Code § 11165.9)
Existing law requires that a mandated reporter who in his or her
professional capacity knows or reasonably suspects a child has
been the victim of child abuse or neglect that the mandated
reporter must make an initial report by telephone to the agency
immediately or as soon as is practicably possible, and shall
prepare and send a written follow-up report within 36 hours of
receiving the information about the incident, as specified.
(Penal Code § 11166.)
Existing law establishes within the Child Abuse and Neglect
Reporting Act, the requirement for 44 specified categories of
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persons who work with children to report suspected abuse or
neglect, as well as other individuals whose professions or
volunteer work may include routine interactions with children.
(Penal Code § 11165.7)
This bill adds a board member of a public or private
organization whose duties require direct contact and supervision
of children, and clarifies that this includes a foster family
agency.
Existing law provides that failure of a mandated reporter to
report an incident of known or reasonably suspected child abuse
or neglect is guilty of a misdemeanor punishable by up to six
months confinement in a county jail or by a fine of one thousand
dollars ($1,000) or by both that imprisonment and fine. (Penal
Code 11166 (c))
Existing law specifies that mandated reporting duties are
individual, and prohibits any supervisor or administrator from
impeding or inhibiting the reporting duties, and provides that
no person making a report shall be subject to any sanction for
making the report, but permits internal procedures to facilitate
reporting and apprise supervisors and administrators of reports
to be established. (Penal Code § 11166 (i))
This bill provides that an "internal policy shall not direct an
employee to allow his or her supervisor to file or process a
mandated report under any circumstances."
Existing law requires CDSS to establish a process to receive
voluntary disclosures from social workers who believe that a
policy, procedure, or practice by a county child welfare agency
endangers the health or well-being of a child or children, and
is contrary to existing statute or to public policy, as
specified. Current law further requires a whistleblower report
be provided to the Legislature by January 1, 2018 with the
number of disclosures received, a summary of issues raised and
departmental actions. (Welfare and Institutions Code § 10605.5.)
This bill provides that effective January 1, 2018, all of the
duties imposed on CDSS pertaining to the voluntary disclosures
described about "shall apply with respect to the receipt of
voluntary disclosures from social workers employed at a foster
family agency, as defined in Section 1502 of the Health and
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Safety Code, including, but not limited to, disclosures from
social workers who have reasonable cause to believe that a
policy, procedure, or practice violates paragraph (1) or (2) of
subdivision (i) of Section 11166 of the Penal Code."
This bill would require that no later than July 1, 2019, CDSS
shall report to the Legislature only the following information:
1) The total number of relevant disclosures received from
social workers employed at foster family agencies, including
the month and year the disclosure was received.
2) A summary description of both of the following:
a) The issues raised in the disclosures received from a social
worker.
b) The actions taken by the department in response to the
disclosures.
This bill would require that no later than July 1, 2019, the
department shall post on its Internet Web site the information
described above.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
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141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
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COMMENTS
1.Stated Need for This Bill
The author states:
The problem is that FFAs must recruit families to care
for foster children. FFAs also depend on county
contracts and counties won't like to see if FFAs are
recruiting foster parents that commit abuse or
neglect. So in order for FFAs to keep their contracts
with the counties, supervisors HAVE REFUSED TO PERMIT
SOCIAL WORKERS IN THEIR EMPLOY TO FILE MANDATED
REPORTS ON FFA FOSTER PARENTS OR FRUSTRATED SUCH
EFFORTS KNOWING THAT THE LIKELIHOOD OF THIS LACK OF
REPORTING BECOMING A CRIMINAL MATTER IS EXTREMELY
REMOTE. THERE MUST BE AN ADDITIONAL CIVIL REMEDY AND
FFAS MUST BE MADE AWARE OF IT.
2.Background
This bill was first heard in the Senate by the Senate Human
Services Committee, which passed the bill (5-0) on May 10, 2016.
As that Committee's analysis explained, nationally, an
estimated 1,520 children died from abuse and neglect in 2013,
according to data from the National Child Abuse and Neglect Data
System (NCANDS). The US Administration on Children and Families
translates this to a rate of 2.04 children per 100,000 children
in the general population and an average of four children dying
every day from abuse or neglect. NCANDS defines "child fatality"
as the death of a child caused by an injury resulting from abuse
or neglect or where abuse or neglect was a contributing factor.
In FFY 2013, an estimated 679,000 children were victims of abuse
and neglect, or a rate of 9.1 victims per 1,000 children in the
population, and or 1,860 victims per day. More than one-quarter
of the victims were younger than 3 years and one in five were
between 3 and 5 years old. The federal government's has
established as its standard that states no more than 0.32
percent of children in foster care should be abused. California
met or surpassed that standard in the five years reported,
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between 2009 and 2013.
California's county-based child welfare system is designed to
protect children at risk of child abuse and neglect or
exploitation by providing intensive services to families to
allow children to remain in their homes, or by arranging
temporary or permanent placement of the child in the safest and
least restrictive environment possible. It is the legal
"parent" for children in the foster care system. Approximately
62,000 children were under the custody of the child welfare
system as of October 2015, according to the state's child
welfare case management system. About 45,000 children were in
out-of-home placements in 2016, according to data released by
CDSS with the governor's budget. Of those, approximately 14,000
are placed with Foster Family Agencies.
The state licenses a variety of foster home options for children
who are determined to need out-of-home care. A foster family
home is typically a private home licensed by a county to provide
care. Children with more intensive needs may be instead
referred to a foster family agency, which is a licensed,
private, nonprofit organization that recruits and trains foster
parents. Foster parents in an FFA are certified by the FFA
rather than being licensed by the county. FFAs are responsible
for providing professional support and case management to the
foster parents and children, including regular monitoring and
oversight of the FFA's certified families to ensure they are
meeting the needs of the children who are placed with them. As
of June 2015, there were 242 FFAs statewide with 11,034
FFA-certified homes.
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