BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2380


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          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.









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          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  








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          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."








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          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  








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            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  








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            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  








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            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.








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          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









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          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