BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1201 (Mitchell) - Placement of children:  criminal records  
          check
          
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          |Version: March 31, 2016         |Policy Vote: HUMAN S. 4 - 0,    |
          |                                |          JUD. 7 - 0            |
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          |Urgency: No                     |Mandate: Yes                    |
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          |Hearing Date: May 23, 2016      |Consultant: Jolie Onodera       |
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          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  







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            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  








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            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  








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          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  








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                    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  








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                    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.









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          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  








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          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 --

          











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