BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1201 (Mitchell) - Placement of children: criminal records check ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 31, 2016 |Policy Vote: HUMAN S. 4 - 0, | | | JUD. 7 - 0 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 23, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 1201 would revise and recast the provisions related to approval of foster care provider applicants and the placement of children in the home of a relative, nonrelative extended family member (NREFM), foster, or resource family, as follows: Prohibits the Department of Social Services (DSS) from granting an exemption to a foster care provider applicant, or person in the applicant's home, who has a felony conviction for specified crimes, including a "crime involving violence" as redefined to specify a narrower classification of crimes. Prohibits a child from being placed in the home of a person who has a felony conviction for specified crimes, including a "crime involving violence," as redefined to specify a narrower classification of crimes. If the criminal records check indicates that the person has been convicted of any other crime, requires the county social worker and the court to SB 1201 (Mitchell) Page 1 of ? consider the person's criminal history in determining whether the placement is in the best interests of the child, as specified. Revises the home environment assessment standards under the Resource Family Approval (RFA) process, requires criminal history to be considered when conducting psychosocial assessments, and requires county staff at the supervisory or administrative level to review home approvals in light of specified criminal history. Fiscal Impact: Redefined/expanded list of exemptible crimes : Unknown; to the extent the revised list of offenses redefined as "crimes involving violence" pursuant to this bill does not comply with requirements under federal law, the State could potentially be out of compliance with Title IV-E of the Social Security Act, which provides annual federal funding of over $1 billion. Federal law defines "serious violent felony" to include the attempt to commit numerous crimes, including but not limited to aggravated sexual abuse (rape) (18 USC 3559(c)(2)(F)(i)). It does not appear that "crimes involving violence" as redefined in this bill would similarly include such crimes. Additionally, numerous offenses requiring sex offender registration under State law (PC § 290(c)) are considered serious violent felonies under federal law but do not appear to be classified as "crimes involving violence" for purposes of this bill. Social worker activities : Potentially major increase in ongoing workload in the millions of dollars (General Fund*) annually to collaborate with the courts to investigate and consider criminal history for an expanded list of exemptible crimes to determine whether a placement is in the best interests of the child. The number of criminal histories to be considered annually under this bill is unknown, but estimated to be in the thousands of cases annually. DSS : One-time costs potentially in excess of $150,000 (General Fund) to revise regulations and provide notification and instructions to counties on the revised exemption and SB 1201 (Mitchell) Page 2 of ? placement approval process, including the update to the RFA home environment assessment standards. RFA process : Potentially major ongoing increase in costs in the millions to tens of millions of dollars (General Fund*) annually to investigate, review, and determine whether to approve homes under the revised home approval standards, including county supervisory approval, and to consider criminal history in a more intensive and investigative manner when conducting psychosocial assessments. These additional costs would be offset, likely in part, by a reduction in workload costs to DSS (which retains responsibility for granting exemptions for 20 of 58 counties) to investigate, review, and determine exemptions under the existing process. Retroactivity : To the extent the deletion of the grandfather clause for the blanket exemption of foster care provider applicants approved prior to the addition of provisions related to federal compliance with the Adam Walsh Act requires additional review and reconsideration of the applicable previously exempted foster care providers, the DSS could incur significant additional workload costs (General Fund). Proposition 30* : Exempts the State from mandate reimbursement for realigned responsibilities for "public safety services" including the provision of child welfare services, however, legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for public safety services applies to local agencies only to the extent that the State provides annual funding for the cost increase. 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. (WIC § 309(a).) Social workers may also release a child into the custody of a NREFM or place the child in a licensed foster or group home. (WIC § 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 NREFMs. (WIC § 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 SB 1201 (Mitchell) Page 3 of ? 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 numerous offenses, as specified. This system has developed largely around federal law, including the Adam Walsh Child Protection and Safety Act of 2006 (Act). 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 cross- references to lists of offenses found in different code sections. Proposed Law: This bill would prohibit a child from being placed in the home of a relative, NREFM, foster, or resource family if the person has a felony conviction for a revised listing of specified crimes, including a crime against a child, or a "crime involving violence," as redefined. Specifically, this bill: Prohibits a foster care provider applicant from being granted an exemption by DSS if the applicant, or any other person in the applicant's home, has a felony conviction for any of the following crimes: o Child abuse or neglect, spousal abuse, crimes 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. Specifies for purpose of the subparagraph, a crime involving violence means an offense described in paragraph (1) of PC § 667.5(c). Staff notes paragraph (1) is limited to murder or SB 1201 (Mitchell) Page 4 of ? manslaughter. o Within the last five years, for physical assault, battery, or a drug- or alcohol-related offense. Requires, in considering whether to grant an exemption to a foster care provider applicant, the DSS to consider any exemptible crime in the context of all relevant circumstances, including: o The nature of the crime(s); o The period of time since the crime was committed; o The number of offenses; o The circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity; o The activities since conviction, including employment, participation in therapy, education, or treatment; o Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor; o Any character references or other evidence submitted by the applicant. Deletes the existing provision of law that grandfathered in foster care provider licenses and applicant approvals wherein a caregiver was granted an exemption to a criminal conviction described above prior to the enactment of the subparagraph. Requires 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: o 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 the subdivision, a "crime involving SB 1201 (Mitchell) Page 5 of ? violence" means an offense listed in PC § 667.5(c); o A felony conviction for physical assault, battery, or a drug- or alcohol-related offense within the last five years. Replaces 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. Revises the RFA home environment assessment standards, as specified, and requires criminal history to be considered in the psychosocial assessment conducted in determining whether to approve a home. Requires the determination whether to approve the home to be reviewed by county staff at the supervisory or administrative level. For the purposes of placing a prospective adoptive child, revises the Family Law definition of "crimes involving violence" to reference PC § 667.5(c), which enumerates offenses classified as violent felonies instead of HSC § 1522. Related Legislation: SB 942 (Liu) 2016 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 conducted within a specified timeframe, and would authorize the court to conduct a hearing if the assessment process is not complete, as specified. SB 942 is pending on the Suspense File of this Committee. SB 1336 (Jackson) 2016 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. This bill has been referred to the Senate Floor. SB 1201 (Mitchell) Page 6 of ? Prior Legislation: AB 2651 (Aghazarian) Chapter 701/2008, among its provisions, added conformity and clarifying language to comply with the Adam Walsh Child Protection and Safety Act of 2006. AB 2651 provided its changes to take effect on October 1, 2008, and that the bill's provisions not apply to exemptions granted prior to October 1, 2008, and remain in effect only to the extent required by federal law as a condition of receipt of federal funding under Title IV-E of the Social Security Act. Staff Comments: This bill proposes to amend the list of non-exemptible criminal convictions for prospective adoptive parents, foster care providers, and resource families. The federal Adam Walsh Act specifies that no final approval to any prospective foster or adoptive parent should be granted for placement of a child in order to be eligible for federal payments, in a case in which a records check reveals a "felony conviction for child abuse or neglect, spousal abuse, crimes 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."By redefining "crimes involving violence" to only include those crimes listed in PC § 667.5(c), it is unclear whether the State would remain in compliance with the provisions of federal law noted above. For example, with regard to the felony crime of rape, this bill would only appear to include two of the five definitions of rape under PC § 261(a) as "crimes involving violence," as the list of violent felonies pursuant to PC § 667.5 only includes rape under PC § 261 as defined in PC § 261(a)(2) or (a)(6) - rape by force, violence, duress, menace, fear, or threat. In contrast, PC § 290(c) - crimes subject to sex offender registration - includes five types of rape pursuant to PC § 261(a). In addition to the two specific offenses noted above, PC §261(a)(1), (a)(3), and (a)(4) specify the felony crimes of rape of a person incapable of giving consent because of a mental disorder or developmental or physical disability; rape by means of an intoxicating substance or controlled substance; and rape of an unconscious victim. As a result, some adult felony sexual SB 1201 (Mitchell) Page 7 of ? offenses which were previously non-exemptible because of the cross reference to PC § 290(c) would become exemptible offenses under the provisions of this bill. Staff additionally notes that federal law defines "serious violent felony" to include the attempt to commit numerous felonies, including but not limited to aggravated sexual abuse. However, it does not appear that "crimes involving violence" as redefined in this bill similarly includes these crimes (with the exception of attempted murder pursuant to PC § 667.5(c)(12)). This bill replaces the requirement for a relative or NREFM to obtain an exemption for a conviction for a crime when considering placement or temporary placement of a child, with the requirement that the county social worker and the court consider the criminal history in determining whether the placement is in the best interests of the child. This requirement could result in significant additional workload for the social worker to request, review, and investigate criminal history information. This bill additionally requires the RFA process to include a county review at the supervisory or administrative level when considering whether to place a child in a home with an adult convicted of a lesser crime, as defined, and requires as part of the RFA process, the county to consider any substantiated allegations of child abuse or neglect against either the applicant or any adult in the home. By incorporating and shifting the background clearance process into the RFA process, this bill will potentially result in significant additional workload to counties to investigate, review, and determine whether to approve homes under the revised home approval standards and to consider criminal history in a more intensive and investigative manner when conducting psychosocial assessments. These additional costs would be offset, likely in part, by the existing workload costs of the DSS which continues to have responsibility for investigating, reviewing, and granting exemptions for 20 of 58 counties under the existing process. -- END -- SB 1201 (Mitchell) Page 8 of ?