BILL ANALYSIS Ó AB 2380 Page 1 Date of Hearing: April 12, 2016 ASSEMBLY COMMITTEE ON HUMAN SERVICES Susan Bonilla, Chair AB 2380 (Alejo) - As Amended March 31, 2016 SUBJECT: Informal caregivers: background checks SUMMARY: Requires caregivers who have assumed responsibility for the children of incarcerated parents to obtain a criminal records clearance. Specifically, this bill: 1)Defines "informal caregiver" to mean a person who has assumed responsibility for the care and custody of a child, without the involvement of the court, child protective services agency, or other governmental agency. 2)Requires an informal caregiver who is not the adult sibling of a child and who began providing care for a child on or after January 1, 2017, and who has been designated as the caregiver by a parent who has been convicted of a felony and sentenced to imprisonment for a least one year, to obtain a criminal records clearance or exemption from the Department of Social Services (DSS) for each adult residing in, or regularly present in, the home, as specified. AB 2380 Page 2 3)Requires a child to be removed from the custody of the informal caregiver if he or she is found to have committed an offense for which DSS may not issue a criminal records clearance or exemption. 4)Requires the court, when it sentences an individual to a term of imprisonment of one year or more, to inform that individual that any informal caregiver he or she designates to care for his or her minor child may be subject to the requirement to obtain a criminal records clearance or exemption, as specified. EXISTING LAW: 1)Provides for criminal record check requirements, processes, and exemptions for applicants for community care facility licenses, and other specified individuals operating or providing direct care services at community care facilities. (HSC 1522) FISCAL EFFECT: Unknown. COMMENTS: Care options for children of incarcerated parents: Research indicates that parental incarceration can be more traumatic for children than a parent's death or divorce, and it can have damaging impacts on a child's education, health, and social relationships. For children who don't have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular AB 2380 Page 3 school. For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent's child(ren). These can include more informal arrangements, such as completing a Caregiver's Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent's rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family's particular needs and situation when deciding which, if any, option to pursue. Need for this bill: According to the author, "I authored this legislation in response to the recent tragic killing of two young children and the brutal torture of their sister from East Salinas who had been placed in the custody of their aunt after their only living parent was sent to prison. Ensuring the health and safety of our children is one of the most essential roles of government. Our system failed these children. This bill makes it law that when the only remaining parent of a child or children is incarcerated for a lengthy period, a simple background check of the person the parent has chosen to care for children will be required and other procedural safeguards are followed." AB 2380 Page 4 Writing in support of the bill, the Monterey County Office of the District Attorney states that, "this bill makes it law that when the only remaining parent of a child or children is incarcerated for a lengthy period, a simple background check of the person the parent has chosen to care for children will be required along with other procedural safeguards that may need to be followed." Opposition: Organizations writing in opposition to this bill question the constitutionality of the proposal at hand, and point to potential and widespread unintentional consequences for many children and families, particularly those of color. Questions are also raised about the ability to implement the bill as written. Children's Law Center of California writes: "We understand that the intention of [this bill] is to protect the safety of children, but we are concerned that the bill will have unintended negative consequences, and may also be unconstitutional. First, the bill creates significant costs and logistical challenges. Currently, the state Department of Social AB 2380 Page 5 Services conducts criminal background checks, and determines whether to grant exemptions to applicants with criminal history, for persons who apply to become licensed child care providers, foster parents, or adoptive parents. The criminal background check is conducted as part of an overall licensing evaluation process, and the necessary forms and procedures are provided and explained to applicants by the licensing agency. How would informal caregivers access this system? They are not licensure applicants, and are not connected to any local or state agency that could provide the necessary forms and guide them through the process. [This bill] would require the creation of a new and expensive infrastructure to provide access to criminal background checks for informal caregivers. Second, the bill provides that if an informal caregiver is found to have criminal history for which an exemption cannot be granted, the child "shall be removed" from the caregiver. Who would remove the child, and what would happen next? Implementing this provision would create a parallel child welfare system. This would be a substantial departure from current California law, which allows county child welfare agencies to intervene and remove a child only when there has been a substantiated report of parental abuse or neglect. A parent's choice of an informal caregiver who (perhaps unknown to the parent) has committed a serious crime many years ago, is not, by itself, child abuse or neglect. So, [this bill] would expand the scope of county child welfare agency intervention in a way that conflicts with current law. Moreover, [this bill] selectively requires background checks only for informal caregivers of children whose parents were AB 2380 Page 6 convicted of a felony, and not in any of the myriad other situations in which parents may allow a relative or family friend to care for their children --- such as a parent's illness or disability, military deployment, or a desire to give the child access to a better neighborhood or school. This raises both practical and constitutional problems?singling out incarcerated parents in creating restrictions on a parent's right to make decisions concerning where and with whom their children live, and lowering the threshold for child welfare agency intervention and removal of these children, raise serious constitutional questions." Youth Law Center writes: "We are concerned that the policy contained in this bill will disproportionately negatively impact Black and Latino children by disrupting families, interfering with parental autonomy and family integrity, and forcing massive numbers of children of color into an already overburdened foster care system. Allowing parents to immediately establish informal caregiving arrangements for their children when incarcerated provides a critical way of ensuring stability and familiarity for children without unnecessarily involving child welfare?This bill draws a blanket nexus between a conviction of any felony and the needed parental judgment to determine an informal kin caregiver's ability to be a good parent, when no such correlation exists. Additionally, there is no data to support that the criminal record clearance that would be required of informal caregivers would have any connection to whether children will be safer. It is well established that systemic racial, class and economic inequalities result in crime and AB 2380 Page 7 prison policy that disproportionately impacts Black and Latino families. Additionally, Black and Latino families heavily rely on informal kinship care arrangements to keep children out of foster care and the potential trauma of placement with strangers. Thus, this bill will have the greatest impact on children and families of color." Staff comments: This bill raises a number of policy and operational concerns. These include the following: 1) Potential infringement on parents' rights and questions of constitutionality. 2) Likelihood of disproportionate impact on communities of color. 3) Unsubstantiated correlations between: a) a parent being convicted of a crime and his or her inability to make good decisions about, and have access to, quality care for his or her child(ren), and b) one's criminal history and his or her inability to provide care that ensures the health and safety of a child. 4) Various implementation concerns, including, but not limited to: lack of clarity of administrative roles and responsibilities; unclear lines of communication, oversight, and enforcement; reference to background clearance language in State Code that does not apply to the proposed situation at hand; lack of direction as to how and by when background clearances should be obtained; and others. AB 2380 Page 8 Suggested amendments: To address the concerns raised above, committee staff recommends the following amendments: 1) Strike lines 1 through 22 on page 2, and pages 3 through 12 of the bill. 2) Add language to require the court, at the arraignment of a parent who is charged with a felony and who is the sole guardian of his or her child(ren), to provide that parent with information on options regarding the provision of care for his or her child(ren) in the parent's absence, including: ways in which to formalize the relationship with the person with whom he/she is entrusting the care of his/her child(ren) (such as appointing power of attorney), and the availability services to research a potential caretaker's background. DOUBLE REFERRAL . This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Committee on Public Safety. REGISTERED SUPPORT / OPPOSITION: Support AB 2380 Page 9 Monterey County District Attorney's Office Peace Officers Research Association of CA (PORAC) Opposition Children's Law Center of California (CLC) Legal Services for Prisoners with Children (LSPC) Youth Law Center Analysis Prepared by:Daphne Hunt / HUM. S. / (916) 319-2089