BILL ANALYSIS Ó
SENATE COMMITTEE ON HUMAN SERVICES
Senator McGuire, Chair
2015 - 2016 Regular
Bill No: SB 1336
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|Author: |Jackson |
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|Version: |March 28, 2016 |Hearing | |
| | |Date: | |
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|Urgency: |No |Fiscal: |No |
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|Consultant|Mareva Brown |
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Subject: Foster care placement
SUMMARY
This bill requires the juvenile court to consider whether the
social worker exercised due diligence in conducting his or her
investigation to identify, locate, and notify a dependent
child's relatives. It requires the court to continue the
dispositional hearing if the social worker did not exercise due
diligence, and states Legislative intent to clarify that, if a
child is receiving reunification services and a relative
identifies himself or herself to a county child welfare agency,
that the relative be evaluated by the county child welfare
agency and a recommendation be made to the court as to whether
the relative should be considered for placement.
ABSTRACT
Existing law:
1) Under federal statute, vests responsibility for caring
for a child who has been removed from home and placed in
foster care with the state and any public agency which is
administering the foster care plan with the state. (42
U.S.C. 672 (a)(2)(B))
2) Under state statute, places the care of a child who has
been removed from his or her parents or guardian under the
jurisdiction of the juvenile court and defines abuse and
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neglect criteria for such removal. (WIC 300 et seq)
3) Defines the steps and timelines the county must take
after detaining a child, including creating a preference
for the child to be placed temporarily with an able and
willing relative or nonrelated extended family member
(NREFM), as defined. (WIC 309)
4) Requires at the initial detention hearing the court to
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 NREFM.
(WIC 319)
5) Requires a juvenile court to hear evidence prior to
making a finding on the disposition of a child's case and
permits the court to continue the hearing to a later date,
as specified, and according to statutory timelines, as
defined. (WIC 358 (a))
6) Requires the court to read and consider the social study
of the child made by the social worker, any study or
evaluation made by a child advocate appointed by the court,
and other relevant and material evidence as may be offered,
prior to deciding the disposition of the case. This may
include the willingness of the caregiver to provide legal
permanency for the child if reunification is unsuccessful.
(WIC 358 (b))
7) Requires that in any case in which a child is removed
from the physical custody of his or her parents,
preferential consideration must be given to a request by a
relative of the child for placement of the child with the
relative, regardless of the relative's immigration status.
In determining whether placement with a relative is
appropriate, the county social worker and court must
consider a variety of factors, as specified, including the
ability of the relative to provide a safe, secure and
stable environment for the child and protect the child from
his or her parents. (WIC 361.3. (a))
8) Requires that each relative be considered in any case in
which more than one appropriate relative requests
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preferential consideration, as specified. States that,
consistent with the legislative intent for children to be
placed immediately with a responsible relative, this
section does not limit the county social worker's ability
to place a child in the home of an appropriate relative or
a nonrelative extended family member pending the
consideration of other relatives who have requested
preferential consideration. (WIC 361.3(b))
9) Defines "relative" to mean an adult who is related to
the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and
all relatives whose status is preceded by the words
"great," "great-great," or "grand," or the spouse of any of
these persons even if the marriage was terminated by death
or dissolution. Establishes that the only relatives who
shall be given preferential consideration for the placement
of the child are an adult who is a grandparent, aunt,
uncle, or sibling. (WIC 361.3 (c)(2))
10) Requires that prior to placing a child in the home of a
relative, or the home of any prospective guardian or other
person who is not a licensed or certified foster parent,
the county social worker shall visit the home to ascertain
the appropriateness of the placement, as specified. (WIC
361.4)
11) Requires that when the sudden unavailability of a foster
caregiver requires a change in placement on an emergency
basis for a foster child, if an able and willing relative
or NREFM is available and requests temporary placement of
the child pending resolution of the emergency situation,
the county welfare department shall initiate an assessment
of the relative's or nonrelative extended family member's
suitability, as defined. Upon completion of this
assessment, the child may be placed in the home. (WIC
361.45.)
12) Establishes in California Rules of Court the examples of
due diligence for judges to consider in determining if the
social worker has exercised due diligence in family
finding. These include:
a. Asked the child, in an age-appropriate manner
and consistent with the child's best interest, about
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his or her relatives;
b. Obtained information regarding the location
of the child's relatives;
c. Reviewed the child's case file for any
information regarding relatives;
d. Telephoned, e-mailed, or visited all
identified relatives;
e. Asked located relatives for the names and
locations of other relatives;
f. Used Internet search tools to locate
relatives identified as supports; or
g. Developed tools, including a genogram, family
tree, family map, or other diagram of family
relationships, to help the child or parents to
identify relatives. (Rule 5.695 (g))
This bill:
1) States uncodified Legislative intent to clarify that if
a child is receiving reunification services and a relative
identifies himself or herself to a county child welfare
agency, that the relative be evaluated and a recommendation
be made to the court as to whether the relative should be
considered for placement.
2) Requires that, in making a decision in a dispositional
hearing, the court must consider whether the social worker
has exercised due diligence in conducting the investigation
to identify, locate, and notify the child's relatives.
3) Permits the court to consider whether the social worker
took the following actions in determining whether due
diligence was used:
a. Asked the child, in an age-appropriate manner
and consistent with the child's best interest, about
his or her relatives.
b. Obtained information regarding the location of
the child's relatives.
c. Reviewed the child's case file for any
information regarding the child's relatives.
d. Telephoned, emailed, or visited all identified
relatives.
e. Asked located relatives for the names and
locations of other relatives.
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f. Used Internet search tools to locate relatives
identified as supports.
4) Requires the court to continue the disposition hearing
if the court finds that the social worker has failed to
exercise due diligence in finding the child's relatives to
allow time for due diligence to be exercised.
5) Removes the requirement that a county consider placing
the child with suitable relatives, as specified, only at
the time that a new placement of the child must be made, so
that a county is required to consider placement with
suitable relatives before or at any point after the child's
dispositional hearing.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, despite state preference to place
foster children with relatives or nonrelative extended family
members and research that demonstrates improved outcomes for
foster children who are placed with relatives, there remain
hurdles to relative placement for some foster children, even if
a relative is identified. In order to ensure that relatives are
considered, current law requires a social worker to, within 30
days of the child's removal from the home, locate any known
adults who are related to the child and notify them that the
child has been removed from his or her parent's custody.
Practice varies county to county, the author states, and
dependency court judges apply differing levels of scrutiny when
determining whether the social worker exercised "due diligence"
in the search for relatives. Without some level of uniformity of
what is considered due diligence, the author argues
identification and recruitment of relatives will vary widely by
county.
The author states that one particular provision of law is
especially problematic: Statute requires that a relative who
comes forward after the child's dispositional hearing be
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considered for placement whenever a new placement of the child
must be made and that the judge consider whether the relative
has established and maintained a relationship with the child.
The language "whenever a new placement of the child must be
made," has been interpreted by some counties to mean that a
relative may not be considered until a new placement is made for
the child, according to the author. The author states that this
has allowed some counties to deny children their right to have
their relative considered as a placement solely because a
particular hearing has passed and a 'new' placement is not being
made. This bill strikes that language.
Child Welfare System
California's county-based child welfare system protects children
at risk of child abuse and neglect or exploitation by providing
intensive services to families to allow children to remain in
their homes, or by arranging temporary or permanent placement of
the child in the safest and least restrictive environment
possible. It is the legal "parent" for children in the foster
care system. As of October 1, 2015, Approximately 62,600
children were in the custody of the child welfare system in
California.<1>
Court process
The process for determining the path through a child welfare
case is prescribed by a series of dependency court hearings.
When a child is first detained, the judge reviews the facts and
decides whether to remove the child from his or her parents or
to return the child home, typically with instructions that
parents participate in services. At this hearing, the court will
also try to identify any suitable relatives who may be able to
care for the child while the case is pending. The second hearing
is a "jurisdictional hearing," in which the merits of the case
are decided, this may include a trial on the facts. If the court
finds the allegations are true, there will be a subsequent
dispositional hearing, possibly the same day, in which the judge
will decide whether to return the child home or to remove the
child from parental custody. Subsequent hearings evaluate the
status of the parents' attempts to reunify with the child and
the child's well-being.
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<1>http://cssr.berkeley.edu/ucb_childwelfare
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Outcomes of Children in Foster Care
Numerous national studies have documented the poor outcomes of
children and youth who are removed from their homes into the
child welfare system. Children have increased rates of chronic
health problems, developmental delays and disabilities, mental
health needs, and substance abuse problems.<2> Many youth have
experienced traumatic events that lead to symptoms such as
depression, behavior problems, hypersensitivity, and emotional
difficulties. Twenty-five percent of youth who age-out of care
experience Post-Traumatic Stress Disorder-double the rate of
U.S. war veterans. Studies have shown that being removed from
one's home is, in itself, a traumatic event, leading to the
separation from family, friends, and neighbors.
Placement with relatives
State and federal statutes include a preference to place
children in out-of-home care with relatives. State law provides
an expedited approval process for family members and nonrelative
extended family members (NREFM) who step forward when the child
is detained in order to quickly place the child in a familiar
home.
Studies have demonstrated significant benefit to children in the
child welfare system that are placed with relatives rather than
with strangers in foster homes or in group care. A 2008 study in
the Archives of Pediatric and Adolescent Medicine found that
children placed into kinship care had fewer behavioral problems
three years after placement than children who were placed into
foster care. The same study noted that a large body of research
acknowledges the evidence that children in kinship care are less
likely to change placements, benefiting from increased placement
stability and better outcomes. Researchers also found that
children placed with relatives were more likely to remain in
their same neighborhood, be placed with siblings, and have
consistent contact with their birth parents than children in
foster care.<3>
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<2>
http://www.childrensaidsociety.org/files/upload-docs/report_final
_April_2.pdf
<3> Arch Pediatr Adolesc Med. 2008;162(6):550-556.
doi:10.1001/archpedi.162.6.550.
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Writing in the national journal for the Court Appointed Special
Advocates for Children (CASA), retired Santa Clara juvenile
court Judge Len Edwards - now the judge in residence for the
Center for Families, Children and the Courts at the California
Administrative Office of the Courts -- underscored the benefits
of placing children with other relatives. But, he noted, there
are barriers to placing children with relatives:
"Relative preference statutes mean little without
rigorous social work immediately following removal of
the child from parental care. The social worker must
learn from the parents who the child's relatives are,
contact them, and encourage them to become involved in
the child protection case. The sooner this is
accomplished, the more likely that the relatives will
become engaged. The law now gives relatives the right
to appear before the court and speak on behalf of the
child. Just as importantly, relatives have the ability
to participate in group decision-making processes such
as family group conferences, team decision making,
family team meetings, and court-based mediation. ...
Delay in relative engagement often means that they will
not be selected as placement for the child. The child
protection system is notoriously slow. Fact finding
hearings may take months to complete. Placement issues
may take over a year. Yet in the meantime the child
will be living with a family and will naturally become
strongly connected to that family. The late-arriving
relative often finds that the foster family will be
preferred because of the connection between the child
and that family."<4>
Recent efforts to encourage relatives to care for children in
the foster care system have resulted in several initiatives. The
Resource Family Approval Program (WIC 16519.5) was established
in 2012 as a five-county pilot project and designed to be a
unified, family friendly, child centered single process to
approve foster family homes, relative homes for foster care and
to approve families for legal guardianship or adoption. It
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<4>
http://www.casaforchildren.org/site/c.mtJSJ7MPIsE/b.7792495/k.8FF
1/JP_1_Edwards.htm
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replaces multiple processes for licensing and approving homes of
relative and nonrelative caregivers. The 2015 passage of the
Continuum of Care Reform package, AB 403 (Stone, Chapter 773,
Statutes of 2015), made the pilot statewide.
The Approved Relative Caregiver funding program (SB 855, chapter
29, statutes of 2014) was established, initially as a county
option, to provide funding to family caregivers in an amount
equal to the basic foster care rate. The program, which was made
mandatory by the passage of AB 403, remedies a rate inequity
that left many low income relatives with support payments from
the CalWORKs program only, which are significant less than the
basic foster care rate.
Continuum of Care Reform
The California Department of Social Services (CDSS) is in the
midst of a significant reform effort focused on diminishing the
number of foster children in long-term congregate care, such as
group homes. A 2015 report, "California's Child Welfare
Continuum of Care Reform," outlines a comprehensive reform of
services including new models of care for foster youth, more
intensive services, and providing needed treatment and services
in homes rather than in group care. AB 403 began enacting these
reforms. As a result, CDSS, as well as the county welfare
directors and advocates say there is a significantly increased
need for family members and foster families to care for children
in the child welfare system.
Related legislation:
AB 2391 (Calderon, 2014) included an identical deletion to SB
1336, and would have required that consideration for placement
with a relative subsequent to the disposition hearing be given
again without regard to whether a new placement of a child must
be made. It also would have required the county social worker
and the court, when determining whether placement with a
relative is appropriate, to consider various factors on a
case-by-case basis. The bill was held in the Senate Judiciary
Committee.
AB 381 (Calderon, 2015) also deleted the provision that
consideration for placement with a relative after the
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disposition hearing be triggered by a new placement for the
foster child, similar to this current bill. It additionally
required the social worker to consider the length of time a
child was in placement and relationship with the non-relative
caregiver in deciding whether to move the child to a relative's
home. This bill was held in the Assembly Human Services
Committee.
COMMENTS
1. The author may want to work with stakeholders to align
the language of this bill, which includes examples of
family finding activities from the California Rules of
Court, with the language in WIC 309 (e), which is the
statute that defines family finding.
2. Language in the bill requires a judge to postpone a
dispositional hearing for a child in response to a social
worker's failure to exercise due diligence in finding the
child's relatives. This results in a delay of the case and
potentially longer time in out-of-home care for the child.
Staff recommends deleting that language and making the
following clarifying amendments:
WIC 358 (b) Before determining the appropriate disposition,
the court shall receive in evidence the social study of the
child made by the social worker, any study or evaluation
made by a child advocate appointed by the court, and other
relevant and material evidence as may be offered,
including, but not limited to, the willingness of the
caregiver to provide legal permanency for the child if
reunification is unsuccessful. In any judgment and order of
disposition, the court shall specifically state that the
social study made by the social worker and the study or
evaluation made by the child advocate appointed by the
court, if there be any, has been read and considered by the
court in arriving at its judgment and order of disposition.
Any social study or report submitted to the court by the
social worker shall include the individual child's case
plan developed pursuant to Section 16501.1.
(1) If the Whenever a child is removed from the a
parent's or guardian's custody, the court shall
consider whether make a finding as to whether the
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social worker has exercised due diligence in
conducting the investigation , as required in WIC 309
(e)(1), to identify, locate, and notify the child's
relatives, including both maternal and paternal
relatives.
(2) When making the determination required pursuant to
paragraph (1), the court may consider, among other
examples of due diligence, whether the extent to which
the social worker has complied with WIC 309 (e)(1), and
has done any of the following:
(A) Asked the child, in an age-appropriate manner
and consistent with the child's best interest, about
his or her relatives.
(B) Obtained information regarding the location of
the child's relatives.
(C) Reviewed the child's case files for any
information regarding the child's relatives.
(D) Telephoned, emailed, or visited all identified
relatives.
(E) Asked located relatives for the names and
locations of other relatives.
(F) Used Internet search tools to locate relatives
identified as supports.
(3) The court shall continue the disposition hearing if the
court finds that the social worker has failed to exercise
due diligence in finding the child's relatives to allow
time for due diligence to be exercised.
POSITIONS
Support:
Alliance for Children's Rights
Children's Law Center of California
Dependency Legal Services
East Bay Children's Law Offices
Families NOW
Oppose:
Advokids.
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