BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: SB 1201
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|Author: |Mitchell |
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|Version: |February 18, 2016 |Hearing |March 29, 2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Mareva Brown |
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Subject: Placement of children: criminal records check
SUMMARY
This bill prohibits a foster child from being placed in the home
of a relative, nonrelative, foster, or resource family if the
person has been convicted of specific violent felonies. It
deletes the state's exemption process for resource family home
approval and instead requires a county social worker and the
court to consider a person's criminal history in determining
whether the placement is in the best interests of the child if a
criminal records check indicates that the person has been
convicted of crime that does not preclude placement, as
specified. This bill prohibits 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 an adult has been convicted of a
violent felony, as defined by the Penal Code, rather than an
existing citation in Health and Safety Code.
ABSTRACT
Existing law:
1) Enacts the Community Care Facilities Act, which provides
for the licensure and oversight of out of home placements
of abused and neglected children by CDSS. (HSC 1500 et
seq.)
2) Requires CDSS to license group care facilities, private
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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 be undergo a criminal background check, as
specified. (HSC 1502 and 1522)
3) 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
8712)
4) 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: 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. Defines a
crime involving violence to include child pornography,
torture, mayhem, child abuse under conditions likely to
produce great bodily harm or death, kidnapping, and others.
(FAM 8712 (c)) (HSC 1522 (g))
5) Permits CDSS to grant an exemption to criminal
conviction exclusion, except as specified, 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. (HSC 1522 (g))
6) Prohibits an exemption from being granted for specified
crimes identified in PEN 667.5, and permits exemptions for
other specified crimes. (HSC 1522 (g))
7) For the purpose of defining sentencing enhancements for
prison terms, defines "violent felony" to include the
following crimes and notes that the Legislature finds and
declares that these specified crimes merit special
consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence:
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a) Murder or voluntary manslaughter,
b) Mayhem,
c) Rape, as defined,
d) Sodomy, as defined,
e) Oral copulation, as defined,
f) Lewd or lascivious act, as defined,
g) Any felony punishable by death or imprisonment in
the state prison for life.
h) 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.
i) Any robbery,
j) Arson, as defined,
aa) Attempted murder,
bb) Kidnapping,
cc) Continuous sexual abuse of a child,
dd) Carjacking, as defined,
ee) Extortion, as defined,
ff) Threats to victims or witnesses, as defined,
gg) Any burglary of the first degree, as defined,
hh) Other crimes, as specified. (PEN 667.5)
8) Defines the priority and steps a county must take in
placing a child who has been removed from his or her home,
including immediate investigation of the circumstances and
the facts surrounding the child's being taken into custody
and attempt to maintain the child with the child's family
through the provision of services. (WIC 309 (a))
9) Requires the county welfare department to assess an able
and willing relative, or nonrelative extended family member
(NREFM), as defined, who is available and requests
temporary placement of the child pending the detention
hearing, or after the detention hearing and pending the
dispositional hearing. Requires an in-home inspection to
assess the safety of the home and the ability of the
relative or NREFM to care for the child's needs, and a
consideration of the results of a criminal records check.
(WIC 309 (d))
10) Prohibits placement in the home if the person has been
convicted of a crime for which the Director of Social
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Services cannot grant an exemption under HSC 1522. If the
person - including a family member or NREFM - has been
convicted of a crime that is exemptible under HSC 1522, the
child shall not be placed in the home unless a criminal
records exemption has 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. (WIC 309 (d)(4), WIC
361.4(d))
11) Requires a county to visit the home of a relative or any
prospective guardian or any other person who is not a
licensed or certified foster parent in order to ascertain
the appropriateness of the placement prior to placing a
child in the home. (WIC 361.4. (a))
12) Permits a county to issue a criminal record exemption
only if that county has been granted permission by the
Director of Social Services. The county may file a request
with CDSS seeking permission to establish a procedure to
evaluate and grant appropriate individual criminal records
exemptions, as defined. Requires a county to adhere to the
exemption criteria in HSC 1522 and for CDSS to monitor
county implementation of the county's exemption process and
to conduct reviews of random samples of county exemptions.
(WIC 361.4 (d) (2))
13) Requires CDSS, or a county in specified circumstances,
to evaluate a request from an Indian tribe to exempt an
exemptible crime under HSC 1522 and to allow placement into
an Indian home the tribe has designated for placement. (HSC
361.4 (d)(4))
14) Establishes a resource family approval process in lieu
of multiple processes to license foster homes, approve
foster, relative and nonrelative families, and approving
adoptive families. Requires those families be subject to
background clearance and exemption processes established in
WIC 1522. (WIC 16519.5 and WIC 16519.5 (d)(1))
15) Establishes various training requirements for resource
families, including basic instruction on existing laws and
procedures regarding the safety of foster youth at school;
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and ensuring a harassment and violence free school
environment, as defined. (WIC 16519.5 (g)(13)(H))
This bill:
1) Replaces in Family Law the definition of "violent
crimes" that will result in a prohibition of placement of
an adoptive child to PEN 667.5 from HSC 1522.
2) Deletes statutory language that conditions the
evaluation of a potential adoptive family's criminal
background on receipt of federal Title IV-E child welfare
funding, thus requiring background checks regardless of
funding.
3) Streamlines the reference in the Health and Safety Code
Section 1522, which dictates the background check and
exemption process and references a list of violent crimes
that preclude placement of a foster child in Penal Code
667.5 and instead directly references PEN 667.5.
4) Requires that in considering whether to grant an
exemption to a foster care provider applicant who has been
convicted of a lesser crime, the department consider any
crime in the context of all relevant circumstances,
including:
a. The nature of the crime or crimes.
b. The period of time since the crime was
committed.
c. The number of offenses.
d. Circumstances surrounding the commission of
the crime indicating the likelihood of future criminal
activity.
e. Activities since conviction, including
employment, participation in therapy, education, or
treatment.
f. Whether the person convicted has successfully
completed probation or parole, obtained a certificate
of rehabilitation, or been granted a pardon by the
Governor.
g. Any character references or other evidence
submitted by the applicant.
5) Requires a social worker when considering whether to
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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. 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 Code.
b. A felony conviction for physical assault,
battery, or a drug- or alcohol-related offense within
the last five years.
6) 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 in #4 above, and whether the person convicted
demonstrated honesty and truthfulness concerning the crime
or crimes during the application and approval process.
7) Deletes the requirement for CDSS or a county to consider
a request from an Indian tribe to exempt an adult for an
exemptible crime to allow placement of a child in an Indian
home that has been designated for placement under the
federal Indian Child Welfare Act.
8) Deletes reference to individuals not required to be
fingerprinted in a resource family home.
9) In mandating resource family standards for a home
environment, deletes the reference to HSC 1522 and instead
prohibits the placement of a child in a home with a
specified list of crimes, including violent crimes as
defined in PEN 667.5, and to consider lesser crimes in
light of all relevant circumstances, as defined. This
language is identical to changes made for placement of a
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child with family members or NREFM.
10) Requires in a resource family approval process 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.
11) Requires in the resource family approval process the
county to consider any substantiated allegations of child
abuse or neglect against either the applicant or any adult
in the home, and defines processes for public and private
foster homes, as specified.
12) Deletes from the requirement that resource families
receive training on existing laws regarding safety of
foster youth at school the requirement that families
receiving training about ensuring a harassment and
violence-free school environment, as defined.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
This bill seeks to streamline the state's background clearance
and exemption process for placing youth in the foster care
system. 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 nonexemptible crimes are less serious than
crimes for which an applicant can be granted an exemption, the
author states. Also, the author notes that recent legislation
requires statewide implementation of a new "resource family
approval" process, including consideration of all factors in an
applicant's background, which will make a separate criminal
history exemption process redundant.
Background:
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State and federal<1> statutes require CDSS to perform background
checks on applicants, licensees, adult residents, employees and
some volunteers of community care facilities who have contact
with clients. Included in the definition of community care
facilities are foster homes, both public and private, group
homes and homes that serve individuals who are elderly or have
developmental disabilities. The Caregiver Background Check
Bureau was established in 1992 to review criminal history
information obtained from state criminal databases as well as
the Federal Bureau of Investigation. It also performs background
checks for foster children who are placed with relatives or
nonrelative extended family members.
Individuals must submit their fingerprints, through a LiveScan
machine, for criminal background clearance. If a criminal
record check shows a conviction of any crime other than a minor
traffic violation, the person is not permitted to work or be
present in any community care facility unless they receive a
written criminal record exemption from CDSS. Recent legislation
grants counties the ability to issue foster care exemptions,
upon receiving permission from the state. If the individual has
been convicted of a non-exemptible crime, such as rape, a sex
offense, murder, or fiscal malfeasance, then a criminal
background clearance cannot be provided. In cases where an
applicant has been convicted of an exemptible crime, DSS is
required to process an exemption only if requested by the
applicant, by conducting a thorough review of the records of the
original crime.
Backlog and controversy
The Community Care Licensing Bureau has been subject to
criticism for many years over its processing of criminal
exemptions. In 2003, a Bureau of State Audits report noted
inconsistencies in background checks and specifically reported
that investigators had not looked into self-disclosed crimes to
evaluate whether a criminal pattern existed. Meanwhile, the
number of cases continued to mount. In 2009, CDSS requested more
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<1> The Adam Walsh Act (P.L. 109-248)
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funding to provide additional investigators to clear a growing
backlog of cases.<2> The LAO noted that over the previous three
years, there had been a 17 percent increase in the overall
number of criminal arrest records submitted to the bureau for
review. The number of subsequent crime arrest records that
warrant investigation by the bureau increased by 60 percent, the
LAO reported. As a result of this increase in workload, CCL
estimated there was existing backlog of about 1,400 individuals
who require review, investigation, and/or analysis by the
bureau. Pending such investigation, these individuals, if not
incarcerated, are generally allowed to work in community care
facilities, the LAO stated.
In 2011, in response to a threatened lawsuit over the backlog,
CDSS changed policy to enable providers to allow applicants to
begin working in facilities before the criminal clearance
process was completed. But after news reports over that
practice, it was reversed in 2014, with CDSS pledging to find
other ways to expedite the process.
Continuum of Care Reform Efforts
CDSS led a three-year stakeholder effort in response to SB 1013
(Committee on Budget and Fiscal Review, Chapter 35, Statutes of
2012), which called for the department to establish a working
group to develop recommended revisions to the current
rate-setting system, services, and programs serving children and
families in the continuum of foster care settings. The resulting
report, "California's Child Welfare Continuum of Care Reform."
outlined a comprehensive approach to improving California's
child welfare system by reforming the system of placements and
services directed at youth in foster care. The report envisions
new models of care for foster youth, including providing needed
treatment and services in homes rather than in group care, and a
significant decrease in reliance on group homes. As a result,
CDSS the county welfare directors and advocates say there is a
significantly increased need for foster families to care for
these children.
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<2> "Workload Increase in Subsequent Criminal Arrest
Investigations," Legislative Analyst's Office, 2009-10
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Resource family approval program
According to CDSS, the Resource Family Approval (RFA) program is
a new family-friendly and child-centered caregiver approval
process that combines elements of the current foster parent
licensing, relative approval, and approvals for adoption and
guardianship processes and replaces those processes. RFA was
enacted by legislation sponsored by CWDA in 2007, expanded
through SB 1013 (Budget and Fiscal Review, Chapter 35, Statutes
of 2012), and made statewide by passage of AB 403 (Stone,
Chapter 773, Statutes of 2015) the continuum of care reform
bill.
The RFA Program replaces the existing processes for licensing
foster family homes, certifying homes of licensed foster family
agencies, approving relatives and NREFMs as caregivers, and
approving legal guardians and adoptive families by combining key
elements of all the processes into a single approval standard.
The process is streamlined and unifies approval standards for
all caregivers regardless of the child's case plan, thereby
eliminating the duplication of existing processes such as
background checks, such as when a foster family seeks to become
an adoptive family. Components of the process include a review
of the home environment, background checks of adults in the
home, training topics and a new psychosocial assessment of the
family, which is designed to provide the caseworker and court
with a broad picture of that family's life. As with existing
law, an expedited process is considered for family members and
NREFMs who step forward to take a child, but a background
clearance is still required prior to placement.
Related legislation:
SB 942 (Liu, 2016) requires that criminal records checks be
conducted within a specified timeframe, and requires various
hearings if the county fails to meet those timeframes. It
authorizes placement of a child in a home in which an exemption
is pending under circumstances in which the county is found to
have abused its discretion, as specified.
AB 403 (Stone, Chapter 773, Statutes of 2015) enacted the
continuum of care reform and expanded resource family homes
statewide.
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SB 1013 (Committee on Budget and Fiscal Review, Chapter 35,
Statutes of 2012) called for the department to establish a
working group to develop recommended revisions to the current
rate-setting system, services, and programs serving children and
families in the continuum of foster care settings.
AB 106 (Committee on Budget and Fiscal Review, Chapter 32,
Statutes of 2011) established as a pilot project in five
counties the resource family home as a means to streamline and
expedite placement of children into suitable families.
COMMENTS
This bill recasts the criminal history exemption as a factor for
social workers to consider under the psychosocial assessment
piece of the resource family approval process and codifies what
is common practice in determining whether an exemption is
appropriate. In response to comments from stakeholders, the
author proposes several amendments, including:
1.Inclusion of crimes identified in WIC 11165.1 that involve
sexual abuse, exploitation or assault against children but are
not always classified as felonies, and therefore would not be
included on the list of crimes prompting an automatic denial.
These crimes include, but are not limited to intentional
touching of genitals or intimate parts, as defined, sexual
exploitation such as coercing a child to engage in a live
performance or pose for a photograph depicting obscene sexual
conduct, and other crimes.
To WIC 309 (d)(5), WIC 361.4 (d) (3), WIC 16519.5 (d)(1)(A)(iii)
Add: If the criminal record check indicates that the person has
been convicted of a felony or misdemeanor conviction for any
crime involving child sexual abuse, assault or exploitation as
defined in section 11165.1 of the Penal Code, the child shall
not be placed in the home until the county agency and the court
have considered the factors described in subdivision (d) of
Section 361.4 and determined that the placement is in the best
interests of the child.
2.Add the following to SECTION 2, HSC 1522(g)(1)(C)(ii) to
correct an inadvertent omission that is present in other
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places in the bill utilizing the same list:
(ii) If a foster care provider applicant or any other person
specified in subdivision (b) in the applicant's home has been
convicted of any crime other than those listed in subdivisions
(i) and (ii), the department shall determine whether to grant an
exemption, in light of all relevant circumstances including but
not limited to:
(A) The nature of the crime or crimes.
(B) The period of time since the crime was committed
(C) The number of offenses
(D) Circumstances surrounding the commission of the crime
indicating the likelihood of future criminal activity.
(E) Activities since conviction, including employment,
participation in therapy, education or treatment.
(F) Whether the person convicted has successfully completed
probation or parole, obtained a certificate of rehabilitation,
or been granted a pardon by the Governor.
(G) Any character references or other evidence submitted by the
applicant.
(H) Whether the person convicted demonstrated honesty and
truthfulness concerning the crime or crime during the
application and approval process.
3.Amend WIC 16519.5(d) to remove author's addition to this bill
and add clarifying language.
(d) Prior to implementation of this program, the department
shall adopt standards pertaining to home approval and permanency
assessment of a resource family.
(1) Resource family home approval standards shall include, but
not be limited to, all of the following:
(A) (i) Criminal records clearance of all adults residing in the
home, pursuant to Section 8712 of the Family Code, utilizing a
check of the Child Abuse Central Index (CACI), a check of the
Child Welfare Services/Case Management System (CWS/CMS), and
receipt of a fingerprint-based state and federal criminal
offender record information search response . The criminal
history information shall include subsequent state and federal
arrest and disposition notifications pursuant to Section 11105.2
of the Penal Code.
(B) If the criminal records check indicates that the person has
been convicted of any of the following crimes, home approval
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shall be denied:
(i) 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. For purposes of this subdivision, crimes involving
violence means those violent crimes that are contained in
subdivision (c) of Section 667.5 of the Penal Code.
(ii) A felony conviction that occurred within the last five
years for physical assault, battery, or a drug- or
alcohol-related offense.
(C) If the criminal records check indicates that the person has
been convicted of any other crime, the criminal history shall be
considered in the psychosocial assessment conducted pursuant to
subdivision (2) (B) in determining whether the placement is in
the best interests of the child , to approve the home , in light
of all relevant circumstances including but not limited to:
(i) The nature of the crime or crimes.
(ii) The period of time since the crime was committed
(iii) The number of offenses
(iv) Circumstances surrounding the commission of the crime
indicating the likelihood of future criminal activity.
(v) Activities since conviction, including employment,
participation in therapy, education or treatment.
(vi) Whether the person convicted has successfully completed
probation or parole, obtained a certificate of rehabilitation,
or been granted a pardon by the Governor.
(vii) Any character references or other evidence submitted by
the applicant.
(viii) Whether the person convicted demonstrated honesty and
truthfulness concerning the crime or crime during the
application and approval process.
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(m) (1) The approval of a resource family who moves to a
nonparticipating county remains in full force and effect pending
a determination by the county approval agency or the department,
as appropriate, whether the new building and grounds and storage
areas meet applicable standards, and whether all adults residing
in the home have a criminal records clearance, approval or
exemption pursuant to Section 8712 of the Family Code. pursuant
to subdivision (d) (1), or subdivision (g) (1) (C) of Section
1522 of the Health and Safety Code. Upon this determination, the
nonparticipating county shall either approve the family as a
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relative or nonrelative extended family member, as applicable,
or the department shall license the family as a foster family
home.
4.Reinstate the following language, as it exists in current law,
due to an inadvertent deletion:
361.4 (f) The State Department of Social Services shall
evaluate a request from an Indian tribe to exempt a crime that
is exemptible under Section 1522 of the Health and Safety
Code, if needed, to allow placement into an Indian home that
the tribe has designated for placement under the federal
Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
However, if the county with jurisdiction over the child that
is the subject of the tribe's request has established an
approved procedure pursuant to paragraph (3) of subdivision
(d), the tribe may request that the county evaluate the
exemption request. Once a tribe has elected to have the
exemption request reviewed by either the State Department of
Social Services or the county, the exemption decision may only
be made by that entity. Nothing in this subdivision limits the
duty of a county social worker to evaluate the home for
placement or to gather information needed to evaluate an
exemption request.
POSITIONS
Support:
Children's Law Center of California (Sponsor)
Advokids
Alliance for Children's Rights
Children's Advocacy Institute
John Burton Foundation for Children Without Homes
National Association of Social Workers
Oppose:
None received.
-- END --
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