Senate Bill No. 942

Introduced by Senator Liu

February 3, 2016

An act to amend Sections 319 and 361.4 of the Welfare and Institutions Code, relating to dependency proceedings.

LEGISLATIVE COUNSEL’S DIGEST

SB 942, as introduced, Liu. Dependency proceedings: relative caregivers.

Existing law establishes the jurisdiction of the juvenile court, which may adjudge a child to be a dependent of the court under certain circumstances, including when the child suffered, or there is a substantial risk that the child will suffer, serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of his or her parents or guardian, and establishes procedures to determine placement of a dependent child. Existing law prescribes various hearings, including specified review hearings, and other procedures for these purposes. Existing law requires a social worker to conduct specified assessments for purposes of placement.

This bill would establish additional procedures for the temporary placement of a child with an able and willing relative under circumstances in which the child has not yet been placed with a relative prior to his or her initial hearing. The bill would require a social worker to conduct an assessment under those provisions, and establish procedures to hold a hearing for the consideration of that assessment and temporary placement.

Existing law requires, whenever a child may be placed in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, the court or social worker placing the child to cause a state-level criminal records check to be conducted by an appropriate government agency through the California Law Enforcement Telecommunications System.

This bill would require that criminal records check to be conducted within a specified timeframe. The bill would require various hearings if the county fails to meet those timeframes, and would authorize placement under circumstances in which the county is found to have abused its discretion, as specified.

Existing law authorizes a county to issue a criminal records exemption from those criminal records check requirements only if that county has been granted permission by the Director of Social Services to issue criminal records exemptions.

In a county that has issued a criminal records exemption, this bill would require the county to actively assist a person in locating and obtaining any documents required for the criminal records exemption.

By imposing additional duties on county welfare agencies pursuant to various provisions of this bill, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares that placement
with able and willing relatives at the earliest point in time is in the
best interest of a child in the dependency system. Along those
lines, research has shown that a child in the dependency system
tends to be more emotionally well off when placed with his or her
relatives, and reunification with his or her parents is routinely
enhanced by placement with those relatives.

SEC. 2.  

Section 319 of the Welfare and Institutions Code is
amended to read:

319.  

(a) At the initial petition hearing, the court shall examine
the child’s parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child’s
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section
350.

(b) The social worker shall report to the court on the reasons
why the child has been removed from the parent’s physical custody,
the need, if any, for continued detention, the available services
and the referral methods to those services that could facilitate the
return of the child to the custody of the child’s parents or guardians,
and whether there are any relatives who are able and willing to
take temporary physical custody of the child. The court shall order
the release of the child from custody unless a prima facie showing
has been made that the child comes within Section 300, the court
finds that continuance in the parent’s or guardian’s home is
contrary to the child’s welfare, and any of the following
circumstances exist:

(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child’s physical or emotional
health may be protected without removing the child from the
parent’s or guardian’s physical custody.

(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the court.

(3) The child has left a placement in which he or she was placed
by the juvenile court.

(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing
in the home.

(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent’s or guardian’s home is contrary to the child’s welfare
at the initial petition hearing or order the release of the child from
custody.

(d) (1) The court shall also make a determination on the record,
referencing the social worker’s report or other evidence relied
upon, as to whether reasonable efforts were made to prevent or
eliminate the need for removal of the child from his or her home,
pursuant to subdivision (b) of Section 306, and whether there are
available services that would prevent the need for further detention.
Services to be considered for purposes of making this determination
are case management, counseling, emergency shelter care,
emergency in-home caretakers, out-of-home respite care, teaching
and demonstrating homemakers, parenting training, transportation,
and any other child welfare services authorized by the State
Department of Social Services pursuant to Chapter 5 (commencing
with Section 16500) of Part 4 of Division 9. The court shall also
review whether the social worker has considered whether a referral
to public assistance services pursuant to Chapter 2 (commencing
with Section 11200) and Chapter 7 (commencing with Section
14000) of Part 3, Chapter 1 (commencing with Section 17000) of
Part 5, and Chapter 10 (commencing with Section 18900) of Part
6 of Division 9 would have eliminated the need to take temporary
custody of the child or would prevent the need for further detention.

(2) If the child can be returned to the custody of his or her parent
or guardian through the provision of those services, the court shall
place the child with his or her parent or guardian and order that
the services shall be provided. If the child cannot be returned to
the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to care
for the child, and has been assessed pursuant to paragraph (1) of
subdivision (d) of Section 309.

(3) In order to preserve the bond between the child and the
parent and to facilitate family reunification, the court shall consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility that allows a dependent child to reside with his
or her parent shall not be, for that reason alone, prima facie
evidence of substantial danger. The court shall specify the factual
basis for its conclusion that the return of the child to the custody
of his or her parent would pose a substantial danger or would not
pose a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the child.

(e) If a court orders a child detained, the court shall state the
facts on which the decision is based, specify why the initial removal
was necessary, reference the social worker’s report or other
evidence relied upon to make its determination whether
continuance in the home of the parent or legal guardian is contrary
to the child’s welfare, order temporary placement and care of the
child to be vested with the county child welfare department pending
the hearing held pursuant to Section 355 or further order of the
court, and order services to be provided as soon as possible to
reunify the child and his or her family if appropriate.

(f) (1) If the child is not released from custody, the court may
order that the child shall be placed in the assessed home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court,
or in the assessed home of a nonrelative extended family member
as defined in Section 362.7 for a period not to exceed 15 judicial
days. A runaway and homeless youth shelter licensed by the State
Department of Social Services pursuant to Section 1502.35 of the
Health and Safety Code shall not be a placement option pursuant
to this section.

(2) As used in this section, “relative” means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words “great,”
“great-great,” or “grand,” or the spouse of any of these persons,
even if the marriage was terminated by death or dissolution.
However, only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.

(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (d) of Section 309 of the relative’s home, including
the results of a criminal records check and prior child abuse
allegations, if any, prior to ordering that the child be placed with
a relative. The court shall order the parent to disclose to the social
worker the names, residences, and any known identifying
information of any maternal or paternal relatives of the child. The
social worker shall initiate the assessment pursuant to Section
361.3 of any relative to be considered for continuing placement.

begin insert

(4) If the child is not placed with a relative at the time of the
initial hearing and an able and willing relative is available and
requests temporary placement of the child, the court shall order
the social worker to conduct an assessment pursuant to paragraph
(1) of subdivision (d) of Section 309. Within seven calendar days,
the social worker shall provide the results of the assessment to the
court, the parent or guardian, the child’s attorney, and the child,
if the child is 10 years of age or older. The child or his or her
parent or guardian may request a hearing to consider the
recommendations of the social worker based on the assessment.
The court shall hold a hearing not later than 10 court days after
a request is made pursuant to this paragraph. Consistent with the
Legislature’s intent that a child be placed immediately with a
responsible relative, this paragraph shall not be construed to limit
the social worker’s authority to place a child in the home of an
appropriate relative or nonrelative extended family member
pending receipt of the results of the assessment or the hearing.

end insert

(g) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 5.520 of the California
Rules of Court or anytime thereafter up until the time that the
minor is adjudged a dependent child of the court or a finding is
made dismissing the petition, the court may temporarily limit the
right of the parent or guardian to make educational or
developmental services decisions for the child and temporarily
appoint a responsible adult to make educational or developmental
services decisions for the child if all of the following conditions
are found:

(A) The parent or guardian is unavailable, unable, or unwilling
to exercise educational or developmental services rights for the
child.

(B) The county placing agency has made diligent efforts to
locate and secure the participation of the parent or guardian in
educational or developmental services decisionmaking.

(C) The child’s educational and developmental services needs
cannot be met without the temporary appointment of a responsible
adult.

(2) If the court limits the parent’s educational rights under this
subdivision, the court shall determine whether there is a responsible
adult who is a relative, nonrelative extended family member, or
other adult known to the child and who is available and willing to
serve as the child’s educational representative before appointing
an educational representative or surrogate who is not known to the
child.

(3) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050
of the Education Code, is not warranted, the court may, with the
input of any interested person, make educational decisions for the
child. If the child is receiving services from a regional center, the
provision of any developmental services related to the court’s
decision shall be consistent with the child’s individual program
plan and pursuant to the provisions of the Lanterman
Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)). If the court cannot identify a
responsible adult to make developmental services decisions for
the child, the court may, with the input of any interested person,
make developmental services decisions for the child. If the court
makes educational or developmental services decisions for the
child, the court shall also issue appropriate orders to ensure that
every effort is made to identify a responsible adult to make future
educational or developmental services decisions for the child.

(4) A temporary appointment of a responsible adult and
temporary limitation on the right of the parent or guardian to make
educational or developmental services decisions for the child shall
be specifically addressed in the court order. An order made under
this section shall expire at the conclusion of the hearing held
pursuant to Section 361 or upon dismissal of the petition. Upon
the entering of disposition orders, additional needed limitation on
the parent’s or guardian’s educational or developmental services
rights shall be addressed pursuant to Section 361.

(5) This section does not remove the obligation to appoint
surrogate parents for students with disabilities who are without
parental representation in special education procedures as required
by state and federal law, including Section 1415(b)(2) of Title 20
of the United States Code, Section 56050 of the Education Code,
Section 7579.5 of the Government Code, and Rule 5.650 of the
California Rules of Court.

(6) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to access
the child’s information and records pursuant to subdivision (u) of
Section 4514 and subdivision (y) of Section 5328, and to act on
the child’s behalf for the purposes of the individual program plan
process pursuant to Sections 4646, 4646.5, and 4648 and the fair
hearing process pursuant to Chapter 7 (commencing with Section
4700), and as set forth in the court order.

SEC. 3.  

Section 361.4 of the Welfare and Institutions Code is
amended to read:

361.4.  

(a) Prior to placing a child in the home of a relative, or
the home of any prospective guardian or other person who is not
a licensed or certified foster parent, the county social worker shall
visit the home to ascertain the appropriateness of the placement.

(b) (1) Whenever a child may be placed in the home of a
relative, or the home of any prospective guardian or other person
who is not a licensed or certified foster parent, the court or county
social worker placing the child shall cause a state-level criminal
records check to be conducted by an appropriate government
agency through the California Law Enforcement
Telecommunications System (CLETS) pursuant to Section 16504.5.
The criminal records check shall be conducted with regard to all
persons over 18 years of age living in the home, and on any other
person over 18 years of age, other than professionals providing
professional services to the child, known to the placing entity who
may have significant contact with the child, including any person
who has a familial or intimate relationship with any person living
in the home. A criminal records check may be conducted pursuant
to this section on any person over 14 years of age living in the
home who the county social worker believes may have a criminal
record. Within 10 calendar days following the criminal records
check conducted through the California Law Enforcement
Telecommunications System, the social worker shall ensure that
a fingerprint clearance check of the relative and any other person
whose criminal record was obtained pursuant to this subdivision
is initiated through the Department of Justice to ensure the accuracy
of the criminal records check conducted through the California
Law Enforcement Telecommunications System and shall review
the results of any criminal records check to assess the safety of the
home. The Department of Justice shall forward fingerprint requests
for federal-level criminal history information to the Federal Bureau
of Investigation pursuant to this section.

(2) An identification card from a foreign consulate or foreign
passport shall be considered a valid form of identification for
conducting a criminal records check and fingerprint clearance
check under this subdivision and under subdivision (c).

(c) Whenever a child may be placed in the home of a relative,
or a prospective guardian or other person who is not a licensed or
certified foster parent, the county social worker shall cause a check
of the Child Abuse Central Index pursuant to subdivision (a) of
Section 11170 of the Penal Code to be requested from the
Department of Justice. The Child Abuse Central Index check shall
be conducted on all persons over 18 years of age living in the
home. For any application received on or after January 1, 2008, if
any person in the household is 18 years of age or older and has
lived in another state in the preceding five years, the county social
worker shall check the other state’s child abuse and neglect registry
to the extent required by federal law.

(d) (1) If the results of the California and federal criminal
records check indicates that the person has no criminal record, the
county social worker and court may consider the home of the
relative, prospective guardian, or other person who is not a licensed
or certified foster parent for placement of a child.

(2) If the criminal records check indicates that the person has
been convicted of a crime that the Director of Social Services
cannot grant an exemption for under Section 1522 of the Health
and Safety Code, the child shall not be placed in the home. If the
criminal records check indicates that the person has been convicted
of a crime that the Director of Social Services may grant an
exemption for under Section 1522 of the Health and Safety Code,
the child shall not be placed in the home unless a criminal records
exemption has 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 good character as
to justify the placement and not present a risk of harm to the child
pursuant to paragraph (3).

(3) (A) A county may issue a criminal records exemption only
if that county has been granted permission by the Director of Social
Services to issue criminal records exemptions. The county may
file a request with the Director of Social Services seeking
permission for the county to establish a procedure to evaluate and
grant appropriate individual criminal records exemptions for
persons described in subdivision (b). The director shall grant or
deny the county’s request within 14 days of receipt. The county
shall evaluate individual criminal records in accordance with the
standards and limitations set forth in paragraph (1) of subdivision
(g) of Section 1522 of the Health and Safety Code, and begin delete in no event end delete
shall begin delete the county end delete begin insert not end insert place a child in the home of a person who is
ineligible for an exemption under that provision. begin insert The county shall,
to the extent possible, actively assist the person to locate and obtain
any documents required for the criminal records exemption,
including having a social worker contact any other government
entity directly to obtain any required arrest reports or court
dispositions. end insert

(B) The department shall monitor county implementation of the
authority to grant an exemption under this paragraph to ensure that
the county evaluates individual criminal records and allows or
disallows placements according to the standards set forth in
paragraph (1) of subdivision (g) of Section 1522 of the Health and
Safety Code.

begin insert

(C) If a court orders the county to assess a person described in
subdivision (a), the county shall complete the assessment process,
including any exemptions and waivers, within 30 calendar days.
If the process is not complete within 30 calendar days of the court
order, the court may set an order to show cause hearing. The
denial of an exemption or waiver due to the failure of the county
to obtain necessary governmental documents shall not be
considered completion of the assessment process. Sixty calendar
days after the court order to assess the person, the court may
conduct a hearing to consider granting the exemption or waiver,
and the court may order the child to be placed with the person. If
an exemption or waiver is denied, and any administrative process
is not complete within 60 calendar days of the court ordering the
county to conduct the assessment, the court may conduct a hearing
to determine if the county has abused its discretion. At the end of
that hearing, the court may order the child to be placed with the
person if it finds that the county abused its discretion, the
placement is appropriate, and the placement is in the best interest
of the child.

end insert

(4) The department shall conduct an evaluation of the
implementation of paragraph (3) through random sampling of
county exemption decisions.

(5) The State Department of Social Services shall not evaluate
or grant criminal records exemption requests for persons described
in subdivision (b), unless the exemption request is made by an
Indian tribe pursuant to subdivision (f).

(6) If a county has not requested, or has not been granted,
permission by the State Department of Social Services to establish
a procedure to evaluate and grant criminal records exemptions,
the county shall not place a child into the home of a person
described in subdivision (b) if any person residing in the home has
been convicted of a crime other than a minor traffic violation,
except as provided in subdivision (f).

(e) Nothing in this section shall preclude a county from
conducting a criminal background check that the county is
otherwise authorized to conduct using fingerprints.

(f) The State Department of Social Services shall evaluate a
request from an Indian tribe to exempt a crime that is exemptible
under Section 1522 of the Health and Safety Code, if needed, to
allow placement into an Indian home that the tribe has designated
for placement under the federal Indian Child Welfare Act (25
U.S.C. Sec. 1901 et seq.). However, if the county with jurisdiction
over the child that is the subject of the tribe’s request has
established an approved procedure pursuant to paragraph (3) of
subdivision (d), the tribe may request that the county evaluate the
exemption request. Once a tribe has elected to have the exemption
request reviewed by either the State Department of Social Services
or the county, the exemption decision may only be made by that
entity. Nothing in this subdivision limits the duty of a county social
worker to evaluate the home for placement or to gather information
needed to evaluate an exemption request.

SEC. 4.  

To the extent that this act has an overall effect of
increasing the costs already borne by a local agency for programs
or levels of service mandated by the 2011 Realignment Legislation
within the meaning of Section 36 of Article XIII of the California
Constitution, it shall apply to local agencies only to the extent that
the state provides annual funding for the cost increase. Any new
program or higher level of service provided by a local agency
pursuant to this act above the level for which funding has been
provided shall not require a subvention of funds by the state nor
otherwise be subject to Section 6 of Article XIII B of the California
Constitution.