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.
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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