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. SB 1201 (Mitchell) Page 2 of ? 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 SB 1201 (Mitchell) Page 3 of ? 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 SB 1201 (Mitchell) Page 4 of ? 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 SB 1201 (Mitchell) Page 5 of ? 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 SB 1201 (Mitchell) Page 6 of ? 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. SB 1201 (Mitchell) Page 7 of ? 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 SB 1201 (Mitchell) Page 8 of ? 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 SB 1201 (Mitchell) Page 9 of ? 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 SB 1201 (Mitchell) Page 10 of ? 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) **************