BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 1201 (Mitchell) - Placement of children: criminal records
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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.
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