BILL ANALYSIS Ó
SB 316
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
316 (Mitchell) - As Amended June 14, 2016
As Proposed to be Amended
SENATE VOTE: Not Relevant
SUBJECT: Placement of children: criminal BACKGROUND checkS
KEY ISSUE: SHOULD THE CRIMINAL BACKGROUND REVIEW PROCESS FOR
PLACEMENT OF FOSTER CHILDREN BE CLARIFIED AND MADE MORE
CONSISTENT WITH FEDERAL LAW BY LIMITING NON-EXEMPTIBLE CRIMES TO
FEDERAL REQUIREMENTS AND BETTER TARGETING THE EXEMPTIBLE LIST
AND IMPROVING THE EXEMPTION PROCESS, TO HELP ENSURE THAT
CHILDREN ARE PROTECTED FROM HARM AND THAT THE PROCESS WORKS
FAIRLY AND TIMELY?
SYNOPSIS
This bill, co-sponsored by Alliance for Children's Rights,
Children's Advocacy Institute, Children's Law Center of
California and Public Counsel, seeks to streamline criminal
background checks for placement of foster children. California
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has long had a criminal background check process for child care
licensing and foster care placement. With the enactment of the
federal Adam Walsh Child Protection and Safety Act of 2006, all
states were required to comply with specified criminal
background checks and restrictions for foster care placements.
Instead of harmonizing the federal requirements with
California's existing background check procedures, the new
federal rules were simply overlaid on top of the state statutes
(AB 2651 (Aghazarian), Chap. 701, Stats. 2008), creating a
complex set of overlapping and unduly restrictive rules and
exemptions. According to the author, this has caused
unnecessary delays in relative placements and has limited the
relatives who are available for placement, while leaving foster
children with limited and potentially poor placement options.
This bill seeks to better harmonize and streamline the
background check process by eliminating overly complex exemption
processes and aligning the list of non-exemptible crimes with
those mandated by federal law. This should, according to the
bill's sponsors, speed placement of foster children with
relatives and expand the number of households available to
provide loving supportive families to foster children, all
without harming these children. In particular, this bill
prohibits a child from being placed in the home of a relative,
nonrelative extended family member, foster, or resource family
if the person has a felony conviction for specified crimes,
including a crime against a child, or a crime involving
violence, as defined. If the criminal records check indicates
that the person has been convicted of certain other, less
serious crimes -- known as exemptible crimes -- this bill
requires that specified factors be considered in determining
whether to grant an exemption, including the nature of the
crime, how much time has passed since the commission of the
crime, the likelihood of future crime and activities since the
conviction. Finally, for remaining crimes, the county social
worker and the court are required to consider the criminal
history in determining whether the placement is in the best
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interests of the child, as specified. These revised rules are
designed to speed the review process and increase the pool of
relatives available for foster care placement. There is no
reported opposition to this bill.
SUMMARY: Revises rules for exemptible and non-exemptible crimes
for those seeking placement of foster children. Specifically,
this bill:
1)Conforms, with federal law, the list of non-exemptible crimes,
the commission of which by a prospective adoptive parent,
foster care applicant, resource family applicant, relative or
nonrelative extended family members (NREFM), or any adult in
the home, will prohibit the placement of a child. Clarifies
that non-exemptible crimes are:
a) A felony conviction for child abuse or neglect, spousal
abuse, crimes against a child, including child pornography,
or any crime involving violence, including rape, sexual
assault or homicide or any violent felony, as provided, but
not including other physical assault and battery.
b) A felony conviction, in the last five years, for
physical assault, battery or a drug- or alcohol-related
offense.
2)Specifies that the following crimes are exemptible, unless
included in the above non-exemptible list, and a child may be
placed in a home if the child welfare agency and/or court
grants an exemption:
a) A felony or misdemeanor conviction for willful harm or
injury to a child, as specified, elder abuse, as specified,
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sexual abuse or exploitation, as specified, and any offense
involving child sexual abuse, assault or exploitation, as
defined, or any offense that requires registration as a sex
offender.
b) Any misdemeanor conviction within the last five years.
c) Any felony conviction within the last seven years.
3)Requires the court and the child welfare agency, in
considering whether to grant a criminal records exemption to
consider any exemptible crime in the context of all relevant
circumstances, including:
a) The nature of the crime;
b) The period of time since the crime was committed;
c) The number of offenses;
d) Circumstances surrounding the commission of the crime
indicating the likelihood of future criminal activity;
e) Activities since conviction, including employment,
participation in therapy, education, or treatment;
f) Whether the person convicted has successfully completed
probation or parole, obtained a certificate of
rehabilitation, or been granted a pardon by the Governor;
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g) Any character references or other evidence submitted by
the applicant; and
h) Whether the person convicted demonstrated honesty and
truthfulness concerning the crime during the application
and approval process and made reasonable efforts to help
obtain documents concerning the crime.
4)Provides that if a foster care provider applicant, resource
family applicant or any other person in the home has been
convicted of a crime that is neither non-exemptible nor
exemptible, the criminal history must be considered as part of
the licensing process.
5)Provides that if a relative or NREFM, or any other person in
the home, has been convicted of a crime that is neither
non-exemptible nor exemptible, the social worker and the court
must consider the criminal history in determining whether
placement is in the child's best interest.
6)Allows a child, who has been temporarily placed in foster
care, to be temporarily placed with a relative or NREFM
pending a criminal records exemption if all parties agree that
placement is in the child's best interest. If the child is
placed in that home, requires that fact to be taken into
consideration when determining whether to grant a criminal
records exemption.
7)Allows a child to be placed with a relative or a NREFM pending
a criminal records exemption if all parties agree that
placement is in the child's best interest. If the child is
placed in that home, requires that fact to be taken into
consideration when determining whether to grant a criminal
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records exemption.
EXISTING LAW:
1)Provides that a minor may be removed from the physical custody
of his or her parents and become a dependent of the juvenile
court as the result of abuse or neglect, as specified.
(Welfare & Institutions Code Section 300. Unless stated
otherwise, all further statutory references are to that code.)
2)Requires, at the detention hearing, that the court take
certain steps to evaluate the case, determine whether the
child can be returned home safely, and, if not, to ensure the
child is placed in an appropriate placement, with priority
consideration for family members and NREFMs. (Section 319.)
3)Establishes criteria for approving a home for the placement of
a child, including a home visit and the submission of
fingerprints for a state and federal criminal background
check, and requires the county to prohibit placement with
anyone who has an arrest or conviction for a serious or
violent felony, as specified. (Section 361.4.)
4)Prohibits placement of the child in a home where an adult in
the home has a criminal history until an exemption is granted
by the county. (Section 361.4 (d).)
5)Prohibits placement in a home if the person has been convicted
of a crime for which the Director of Social Services cannot
grant an exemption, and requires, for exemptible crimes, that
the exemption has actually been granted by the county based on
substantial and convincing evidence to support a reasonable
belief that the person with the criminal conviction is of such
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good character as to justify the placement and not present a
risk of harm to the child. Authorizes a county to issue a
criminal record exemption only if that county has been granted
permission by the Director of Social Services, as specified,
and requires a county to adhere to specified exemption
criteria. (Sections 309 (d)(4) and 361.4 (d).)
6)Requires the Department of Social Services (DSS) to license
group care facilities, private Foster Family Agencies, and
foster family homes for the placement of children who are in
the child welfare system, and requires, prior to licensure, a
licensed foster home provider to undergo a criminal background
check, as specified. (Health & Safety Code Sections 1502 and
1522.)
7)Requires each person who files an application for adoption to
be fingerprinted, and for the DSS, the county adoption agency
or licensed adoption agency to secure any criminal record of
that person, including a Federal Bureau of Investigation
background check using fingerprints. (Family Code Section
8712.)
8)Prohibits DSS, or an adoption agency, or licensed adoption
agency from giving final approval for an adoptive placement in
any home in which the prospective adoptive parent or any adult
living in the prospective adoptive home has either of the
following: (1) a felony conviction for child abuse or neglect,
spousal abuse, crimes against a child, including child
pornography; or (2) for a crime involving violence, including
rape, sexual assault, or homicide, but not including other
physical assault and battery. (Family Code Section 8712 (c);
Health & Safety Code Section 1522 (g).)
9)Allows DSS to grant an exemption to the criminal conviction
exclusion for certain crimes if the director has substantial
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and convincing evidence to support a reasonable belief that
the person convicted of the crime is of good character in
order to justify granting the exemption, and prohibits an
exemption for violent felonies including:
a) Murder or voluntary manslaughter, mayhem, attempted
murder;
b) Rape, sodomy, and oral copulation, as defined;
c) Lewd or lascivious acts, as defined;
d) Any felony punishable by death or imprisonment in the
state prison for life;
e) Any felony in which the defendant inflicts great bodily
injury on any person other than an accomplice, as defined,
or in which the defendant uses a firearm, as defined;
f) Robbery, arson, carjacking, and extortion, as defined;
g) Kidnapping and continuous sexual abuse of a child;
h) Threats to victims or witnesses, as defined;
i) Any burglary of the first degree, as defined; and
j) Other crimes, as specified. (Health & Safety Code
Section 1522 (g); Penal Code Section 667.5.)
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FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: When an abused or neglected child is taken from the
custody of his or her parents, social workers are required to
release a child temporarily to a responsible parent, guardian,
or relative, unless it is not safe to do so. Social workers may
also release a child into the custody of a relative, a NREFM
(defined as any adult caregiver who has established a familial
or mentoring relationship with the child) or place the child in
a licensed foster or group home. Prior to placing a child in
the home, the social worker must visit the home to ascertain the
appropriateness of the placement and run a criminal records
check on all persons over 18 years of age living in the home, or
any other person who may have significant contact with the
child, including those with a familial or intimate relationship
with any person living in the home. If the criminal records
check shows that a person has been convicted of certain crimes,
mostly violent felonies, the child may not be placed in the
home. If the person has been convicted of a crime for which
there is a criminal records exemption, the child cannot be
placed in the home unless the county does in fact grant an
exemption.
California has long had a criminal background check process for
childcare licensing and foster care placement. With the
enactment of the federal Adam Walsh Child Protection and Safety
Act of 2006, all states were required to comply with specified
criminal background checks and restrictions. With regard to
foster care, the federal Act eliminated a federal provision that
allowed states to apply their own law concerning restrictions on
placement of foster children with caregivers who have a criminal
record. (42 U.S.C. section 671 (a)(20).) However, instead of
harmonizing the federal requirements with California's existing
background check procedures, the new federal rules were simply
overlaid on top of the state rules, creating a complex set of
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overlapping and unduly restrictive rules and exemptions. (AB
2651 (Aghazarian), Chap. 701, Stats. 2008.) According to the
author, this has caused unnecessary delays in relative
placements and has limited the relatives who are available for
placement. Seeking to simplify the exemption process, this bill
revises the original state law, which was largely rendered
redundant by the federal rules, to make it work better with the
federal requirements, and simplifies and streamlines both the
exemptible crimes and the process to seek those exemptions.
The sponsors succinctly explain the problem with existing law
and the bill's proposed solution:
Too many children in foster care are lingering in shelters.
These children could be placed with loving and familiar
relatives or wonderful potential foster parents who, under
California's current laws, may be disqualified for a crime
such as petty theft that happened decades ago. The laws
related to the criminal history of a prospective foster or
kinship caregiver are overly broad and unduly restrictive.
There is currently a burdensome and convoluted exemption
process that has a very detrimental impact on children who
have been removed from their patents' homes.
[This bill] can fix this problem and provide children in
foster care with a viable home placement. With changes that
do not compromise child safety, [this bill] will eliminate the
complex exemption process and will align the list of
non-exemptible crimes with those required by federal law.
California law will continue to prohibit -- without discretion
to make exemptions -- placement with any person with a serious
or violent felony conviction (no matter how long ago), or with
an assault, battery or drug-related felony conviction within
the past 5 years. [This bill] addresses the needless
impediments to appropriate relative and foster care
placements.
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Preference for Placement with Relatives. Studies have
demonstrated significant benefit to children in the child
welfare system who are placed with relatives rather than with
strangers in foster homes or in group care. Writing in the
National Journal for the Court Appointed Special Advocates for
Children (CASA), retired Santa Clara Juvenile Court Judge Len
Edwards underscored the benefits of placing children with
relatives:
Children in relative care tend to be just as safe as, or
safer than, children placed in foster care.
Relative placements provide more stability than
placement with foster families, and if the child has to
move, it is likely he or she will move from the home of one
relative to another.
Siblings more often remain together in relative care,
and are more likely to visit one another even if they
reside in separate relative homes.
Relative caregivers are more likely to continue the ties
with the child's birth family.
Children in relative care are more likely to remain
connected to their community, including their school.
Relative caretakers facilitate parent-child visitation
more easily since the caregivers will likely favor
reunification and will be less likely than foster parents
to compete with the parents for permanent custody of the
child.
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Relatives are more likely to invest time and care for a
child who shares a blood tie. This includes a willingness
to care for the child for as long as needed.
Placement with relatives will generally be less
traumatic than placement in an unfamiliar home because the
children will be living with someone they know and trust,
particularly if the non-relative differs racially or
ethnically from the child.
Placement with relatives supports the transmission of a
child's family identity, culture, and ethnicity.
Placement with relatives eliminates the unfortunate
stigma that many foster children experience.
Children fare better in relative care than in foster
care along numerous axes.
The child placed with relatives knows his or her own
family, sees family resemblances, and understands how he or
she fits into it. (Judge Len Edwards, Examining the
Benefits and Challenges of Placing Children with Relatives
(CASA Nov. 2011).)
But, Judge Edwards noted, there are barriers to placing children
with relatives:
Relative preference may be the law today, but significant
challenges remain. . . . We must also identify, locate and
engage relatives. Relative preference statutes mean little
without rigorous social work immediately following removal of
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the child from parental care. The social worker must learn
from the parents who the child's relatives are, contact them,
and encourage them to become involved in the child protection
case. The sooner this is accomplished, the more likely that
the relatives will become engaged. The law now gives relatives
the right to appear before the court and speak on behalf of
the child. Just as importantly, relatives have the ability to
participate in group decision-making processes such as family
group conferences, team decision making, family team meetings,
and court-based mediation. All of these group decision-making
processes have spread throughout the United States and have
been recognized as best practices in the resolution of the
difficult issues presented in child protection cases.
Delay in relative engagement often means that they will not be
selected as placement for the child. The child protection
system is notoriously slow. Fact finding hearings may take
months to complete. Placement issues may take over a year.
Yet in the meantime the child will be living with a family and
will naturally become strongly connected to that family. The
late-arriving relative often finds that the foster family will
be preferred because of the connection between the child and
that family.
Relative placement is good social and legal policy. However,
effective implementation of relative preference requires early
identification and engagement. It requires effective judicial
oversight of social worker actions regarding locating and
engaging fathers and relatives. It also requires
opportunities for relatives to participate in decision making,
preferably through group decision-making processes. Engaging
relatives is a best practice, one that will serve the best
interests of children separated from their parents.
(Examining the Benefits and Challenges of Placing Children
with Relatives, supra.)
Safety is paramount when placing foster children, but delays in
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placement harm children too. Obviously, when children are
removed from their parents due to abuse or neglect, providing
them a safe and secure place to live is paramount. That
includes making sure that the residents of the placement home do
not pose a danger to the children. California does so, in part,
through required criminal background checks for household
members. But the current overlapping and confusing statutory
scheme for the crimes that are now non-exemptible and exemptible
and the process for clearing exemptible crimes can be, the
author notes, unnecessarily difficult and time consuming without
adding additional protections for children. And placing
children in group homes or other stranger foster care
placements, either while awaiting relative background checks and
clearances or permanently if relatives cannot be cleared,
because, for example, a 20-year old financial abuse conviction
cannot be exempted, can harm children already suffering from the
underlying abuse or neglect and from being pulled from their
homes, their friends and their families.
This bill seeks to eliminate the confusing morass of criminal
records check laws and simplify the criminal exemption process.
By aligning California law directly with federal requirements,
this bill simplifies the exemption process with regard to foster
care home placements. Accordingly, this bill maintains the
federally required status quo by ensuring that a child will
never be placed in a home where a resident has committed a
non-exemptible crime. These crimes, include a felony conviction
for child abuse or neglect, spousal abuse, or crimes against a
child, or other violent felonies, which include rape, sexual
assault, homicide, murder or voluntary manslaughter, mayhem,
attempted murder, lewd or lascivious acts, any felony punishable
by death or life imprisonment, robbery, arson, carjacking,
extortion and kidnapping. No child can ever be placed in a home
where someone has been convicted of these non-exemptible crimes.
This bill then clarifies which crimes are exemptible and
streamlines the exemption process. Exemptible crimes include
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most of the sex and abuse crimes that are not already
non-exemptible, as well as recent felonies (within seven years)
and misdemeanors (within five years). For these exemptible
crimes, the bill requires the county and/or the court to
consider all relevant circumstances when determining whether to
approve a home for placement, including: (1) the nature of the
crime or crimes; (2) the period of time since the crime was
committed; (3) the number of offenses; (4) circumstances
surrounding the commission of the crime indicating the
likelihood of future criminal activity; (5) activities since
conviction, including employment, participation in therapy,
education, or treatment; (6) whether the person convicted has
successfully completed probation or parole, obtained a
certificate of rehabilitation, or been granted a pardon by the
Governor; (7) any character references or other evidence
submitted by the applicant; and (8) whether the person convicted
demonstrated honesty and truthfulness concerning the crime
during the application and approval process and made reasonable
efforts to help obtain documents about the crime. The sponsor
argues that by allowing the court and/or county to look at a
person's exemptible criminal history on a case-by-case basis,
the child's best interests will be better protected, and some of
the arbitrariness of the old system, whereby many of the
non-exemptible crimes seemed less related to child safety than
some exemptible crimes, will be eliminated.
All other criminal convictions not specifically either
non-exemptible or exemptible must still be considered by the
county and the court in determining whether placing a child into
the home of a relative or NREFM is in the child's best interest.
This bill is very similar to SB 1201, which was held in Senate
Appropriations Committee. This bill is similar, though not
identical, to the author's SB 1201, which was held on suspense
in the Senate Appropriations Committee. The author states that
the differences between this bill and SB 1201 address the
concerns that resulted in that bill remaining on the suspense
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file.
Related Pending Legislation: This bill works in collaboration
with two other bills being considered by this Committee today
that also seek to keep foster children with family. SB 942
(Liu) establishes additional procedures for the temporary
placement of a child with an able and willing relative, requires
that the criminal records check be conducted within a specified
timeframe, and authorizes the court to conduct a hearing if the
assessment process is not complete, as specified.
SB 1336 (Jackson), consistent with case law, requires child
welfare agencies to consider willing relatives even when a new
foster care placement is not required and requires the court to
consider whether social workers have exercised due diligence in
conducting their investigation to identify, locate, and notify
the foster children's relatives.
Technical Amendments: The author has proposed several technical
amendments that ensure clear language and cross-references are
made and this bill is analyzed as proposed to be amended with
these changes. They proposed amendments are:
On page 4, line 19, delete "(C)" and insert: (A)
On page 4, line 20, delete "(1)" and insert: (2)
On page 20, line 32, after "(A)", insert: or (B)
On page 27, line 1, delete "the" and insert: to
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On page 30, line 39, delete "the" and insert: to
On page 36, line 4, after "in", insert: subparagraph (3) of
REGISTERED SUPPORT / OPPOSITION:
Support
Alliance for Children's Rights (co-sponsor)
Children's Advocacy Institute (co-sponsor)
Children's Law Center of California (co-sponsor)
Public Counsel (co-sponsor)
John Burton Foundation
Opposition
None on file
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
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