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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