BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1201 (Mitchell)
Version: March 31, 2016
Hearing Date: April 19, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Placement of children: criminal records check
DESCRIPTION
This bill would prohibit 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 any other crime,
this bill would require the county social worker and the court
to consider the person's criminal history in determining whether
the placement is in the best interests of the child, as
specified.
This bill would also prohibit the California Department of
Social Services (CDSS), county adoption agency, or licensed
adoption agency from giving final approval for an adoptive
placement in a home in which the prospective adoptive parent or
an adult living in the home has been convicted of a crime that
is classified as a violent felony for purposes of various
provisions of the Penal Code.
BACKGROUND
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 a specified condition exists. (Welf. & Inst.
Code Sec. 309(a).) Social workers may also release a child into
the custody of a nonrelative extended family member (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. (Welf. & Inst. Code Sec.
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361.2(e).) 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. (Welf. & Inst. Code Sec. 361.4.) If a criminal
records check shows that a person has been convicted of a crime
for which there is an exemption, the child cannot be placed in
the home unless the county does in fact grant that exemption.
However, an exemption cannot be granted if the individual has
been convicted of a non-exemptible crime, which generally
includes violent felonies. This system has developed largely
around federal law, including the Adam Walsh Child Protection
and Safety Act of 2006 (Act).
The Act was named after Adam Walsh, an American boy who was
abducted from a Florida shopping mall and later found murdered.
With regard to foster care, the 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. As a result of that federal law, as of
2008, California can no longer approve any placement in which a
"prospective foster or adoptive parent" has a "felony conviction
for child abuse or neglect, for spousal abuse, for a crime
against children (including child pornography), or for a crime
involving violence, including rape, sexual assault, or homicide,
but not including other physical assault or battery." (42
U.S.C. section 671(a)(20).) The state also cannot approve any
placement in which a prospective foster or adoptive parent has a
"felony conviction for physical assault, battery, or a
drug-related offense" committed within the past five years.
These federal rules were added to the Health & Safety Code,
without repealing existing state-law provisions on criminal
history restrictions and exemptions, thus creating a confusing
system of lists found in different codes. Seeking to simplify
the exemption process, this bill would repeal the pre-2008 state
law, which was largely rendered redundant by the federal rules.
CHANGES TO EXISTING LAW
Existing law provides that a minor may be removed from the
physical custody of his or her parents and become a dependent of
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the juvenile court for serious abuse or neglect, or risk of
serious abuse or neglect, as specified. (Welf. & Inst. Code Sec.
300.)
Existing law requires the social worker to immediately release a
child in temporary custody to the child's parent, guardian,
responsible relative, unless specified conditions exist. (Welf.
& Inst. Code Sec. 309.)
Existing law 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 nonrelative extended family
members (NREFM). (Welf. & Inst. Code Sec. 319.)
Existing law 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. (Welf. & Inst. Code Sec. 361.4.)
Existing law 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. (Welf. & Inst. Code Sec. 361.4 (d).)
Existing law 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 good character as to justify the placement and not
present a risk of harm to the child. (Welf. & Inst. Code Secs.
309 (d)(4) and 361.4(d).)
Existing law 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. (Welf. & Inst. Code
Sec. 361.4 (d)(2).)
Existing law requires the California Department of Social
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Services (CDSS) to license group care facilities, private Foster
Family Agencies (FFAs), 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 &
Saf. Code Secs. 1502 and 1522.)
Existing law requires each person who files an application for
adoption to be fingerprinted, and for the CDSS, 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. (Fam. Code
Sec. 8712.)
Existing law prohibits CDSS, 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. (Fam. Code Sec. 8712(c) and Health
& Saf. Code Sec. 1522 (g).)
Existing law allows CDSS to grant an exemption to the criminal
conviction exclusion for certain crimes if the director has
substantial 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:
murder or voluntary manslaughter, mayhem, attempted
murder,
rape, sodomy, and oral copulation, as defined;
lewd or lascivious acts, as defined,
any felony punishable by death or imprisonment in the
state prison for life;
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;
robbery, arson, carjacking, and extortion, as defined;
kidnapping, continuous sexual abuse of a child;
threats to victims or witnesses, as defined;
any burglary of the first degree, as defined; and
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other crimes, as specified. (Health & Saf. Code Sec.
1522 (g) and Pen. Code Sec. 667.5.)
This bill would, for the purposes of placing a prospective
adoptive child, revise the Family Law definition of "violent
crimes" to reference Pen. Code Sec. 667.5 instead of Health &
Saf. Code Sec. 1522.
This bill would streamline the list of exemptible and
non-exemptible crimes by omitting the reference to Health & Saf.
Code Sec. 1522, and referring directly to Pen. Code Sec. 667.5,
above.
This bill would require, in considering whether to grant an
exemption to a foster care provider applicant, the court and the
department consider any exemptible crime in the context of all
relevant circumstances, including:
the nature of the crime or crimes;
the period of time since the crime was committed;
the number of offenses;
circumstances surrounding the commission of the crime
indicating the likelihood of future criminal activity;
activities since conviction, including employment,
participation in therapy, education, or treatment;
whether the person convicted has successfully completed
probation or parole, obtained a certificate of
rehabilitation, or been granted a pardon by the Governor;
and
any character references or other evidence submitted by
the applicant.
This bill would require a social worker and court, when
considering whether to grant temporary placement pending the
initial disposition hearing, or the placement of a child with a
family member or NREFM a prohibition if the criminal records
check indicates that the person has been convicted of any of the
following crimes:
a felony conviction for child abuse or neglect, spousal
abuse, or a crime against a child, including child
pornography, or for a crime involving violence, including
rape, sexual assault, or homicide, but not including other
physical assault and battery. For purposes of this
subdivision, a "crime involving violence" means an offense
listed in subdivision (c) of Section 667.5 of the Penal
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Code; and
a felony conviction for physical assault, battery, or a
drug or alcohol-related offense within the last five years.
This bill would replace the requirement for a family member or
NREFM to obtain an exemption for a conviction of a lesser crime
when considering temporary placement or placement of a child,
with the requirement that the county social worker and the court
shall consider the criminal history in determining whether the
placement is in the best interests of the child as well as other
circumstances, using the list specified above, and whether the
person convicted demonstrated honesty and truthfulness
concerning the crime or crimes during the application and
approval process.
COMMENT
1.Stated need for the bill
According to the author:
California's current laws regarding criminal convictions that
do or do not disqualify an applicant from becoming a foster
parent are needlessly complex and inequitable. Some
non-exemptible crimes are less serious than crimes for which
an applicant can be granted an exemption.
2.Simplifying the criminal exemption process
By aligning California law directly with federal requirements,
this bill would simplify the exemption process with regard to
dependent child home placements. Accordingly, this bill would
maintain the status quo by ensuring that a child will never be
placed in a home where an adult resident has committed a
non-exemptible violent felony. These crimes, among others,
include a felony conviction for child abuse or neglect, spousal
abuse, or crimes against a child, or for a crime involving
violence. Instead of relying on a Health & Safety Code
provision, which in turn cross-references the Penal Code, this
bill would directly reference the Penal Code list of violent
felonies which include: rape, sexual assault, homicide, murder
or voluntary manslaughter, mayhem, attempted murder, rape, lewd
or lascivious acts, any felony punishable by death or life
imprisonment, robbery, arson, carjacking, extortion, kidnapping,
and continuous sexual abuse of a child. (See Pen. Code Sec.
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667.5(c).)
For any other crime, this bill would require 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; and (7) any character references or other evidence
submitted by the applicant. 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, would be eliminated.
While one of the stated goals of this bill is to simplify the
exemption process whereby homes may be approved for dependent
children despite criminal convictions of the adults in that
home, the system under this bill remains incredibly complex and
potentially inequitable in some cases. For example, while a
home may be approved for the placement of a dependent child
despite the presence of an adult who had a misdemeanor
conviction of child sexual abuse, a dependent child could not be
placed in a home with an adult who was convicted of extortion
regardless of the specific circumstances of the crime, including
the amount of time that has passed since the conviction. In
addition, some violent crimes that seem closely related to child
safety, such as elder abuse and animal abuse, are not expressly
included in this bill, despite the fact that they seem more
related to child-safety than some violent crimes like
car-jacking.
Staff notes that much of the apparent inequities are a result of
existing law, and not this bill. In addition, the requirement
to include federal standards further complicates the process.
Insomuch as this bill would allow for more case-by-case
evaluation by the county and the court, it will arguably address
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many of the inequities of the current system. In addition, the
author has committed to working with the Committee and
stakeholders as this bill moves through the process to further
address the issues related to the need for clarity and equity in
the exemption process.
3.This bill would expedite the court's ability to safely place
foster youth in the homes of relatives and nonrelative
extended family members
Existing law requires that any person with whom a dependent
child may be placed undergo a criminal background check. If the
person has a criminal record including any drug, alcohol,
battery, or assault convictions within the past five years, or
any prior convictions for violent felonies, the child cannot be
placed in that home. For all other crimes, if there is an
exemption that exists, the county must grant the exemption
before the home may be approved for placement.
For relatives and nonrelative extended family members (NREFM)
identified as potential placements for a specific child or
children, this bill would continue to prohibit placement in a
home with adults who have convictions for non-exemptible crimes.
However, for all other crimes, this bill would no longer
require that an "exemption" be granted by the county. Instead,
the court and county would have to conduct a "best interests of
the child" analysis, taking into account specified factors noted
in the Comment above, including the nature of the crime, the
period of time since the crime was committed, and the
circumstances surrounding the commission of the crime indicating
the likelihood of future criminal activity. With regard to the
different treatment of traditional foster family applicants (who
require an exemption from the county) and relative/NREFMs (who
require a best interests analysis by the county and/or court) in
statute, the sponsor asserts that the end result is effectively
the same. As stated by the sponsor, existing law "only allows
the court to place a child in the 'approved' home of a relative
- which implies that the county child welfare agency has already
done the background check and granted an exemption if needed; so
even though there is no statute that explicitly says that
relatives need to go through the exemption process, that is the
result." Accordingly, the author may wish to consider whether
expressly requiring the same approval process for foster parent
applicants and relatives/NREFMs would better protect dependent
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children, or if there is a good public policy justification to
allow for different approval paths.
The National Association of Social Workers, in support, writes:
California's current laws relating to the criminal history of
a prospective foster or kinship caregiver are overly broad and
unduly restrictive. Several lists of crimes have been deemed
"non-exemptible." For all other crimes in which any household
member has been convicted - no matter how minor, how long ago,
or how unrelated to child safety - an exemption must be
granted to approve the home for placement. The burdensome and
convoluted exemption process has a very detrimental impact on
children. Too many foster youth linger in shelters or foster
homes awaiting placement with loving and familiar relatives.
This bill will address needless impediments to appropriate
relative and foster care placements by conforming state law to
federal requirements regarding caregiver criminal history
reviews. Specifically, it will eliminate the complex
exemption process and will align the list of non-exemptible
crimes with those required by federal law. This ensures that
child safety is not compromised, while also providing children
an opportunity for a better future through stable placement
with relatives.
Support : Advokids; Alliance for Children's Rights; California
State Parents Teachers Association; Children's Advocacy
Institute; Children's Law Center of California; John Burton
Foundation for Children Without Homes; National Association of
Social Workers
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation :
SB 942 (Liu) would establish additional procedures for the
temporary placement of a child with an able and willing
relative, would also require that a criminal records check be
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conducted within a specified timeframe, and would authorize the
court to conduct a hearing if the assessment process is not
complete, as specified.
SB 1336 (Jackson) would require the juvenile court to consider
whether the social worker exercised due diligence in conducting
his or her investigation to identify, locate, and notify the
child's relatives.
Prior Legislation :
AB 403 (Stone, Ch. 773, Stats. 2015) enacted the continuum of
care reform.
AB 1761 (Hall, Ch. 765, Stats. 2014) expanded the placement
preference language for relatives and NREFM from being a
priority prior to the detention hearing to also being a priority
after the detention hearing and prior to the dispositional
hearing.
Prior Vote : Senate Human Services Committee (Ayes 4, Noes 0)
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