BILL ANALYSIS Ķ
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1336 (Jackson)
Version: April 14, 2016
Hearing Date: May 3, 2016
Fiscal: No
Urgency: No
NR
SUBJECT
Dependent children: placement with relatives
DESCRIPTION
This bill would require that consideration be granted to a
relative who has not been found to be unsuitable and who will
fulfill the child's reunification or permanent plan
requirements, and would require the court to make a finding as
to whether the social worker exercised due diligence in
conducting his or her investigation to identify, locate, and
notify the child's relatives.
BACKGROUND
Abused and neglected children who have been removed from their
homes fall under the jurisdiction of the child welfare system.
This system seeks to ensure the safety and protection of these
children, and where possible, preserve and strengthen families
through visitation and family reunification. After a 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.
(Welf. & Inst. Code Sec. 309(a).) Social workers may also
release a child into the custody of a nonrelative extended
family member (NREFM), defined as an "adult caregiver who has an
established familial relationship with a relative of the child,
or a familial or mentoring relationship with the child," or
place the child in a licensed foster or group home. (Welf. &
Inst. Code Secs. 362.7, 361.2(e).) A social worker must then
petition the court to declare the child a dependent of the
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court, and within a relatively short period of time, the court
determines whether it needs to assert jurisdiction over the
child, and limit or deny parental rights.
These placements, at least initially, are temporary while the
social worker develops a case plan to present to the court
according to the following priorities: (1) maintain the child
within his or her home; (2) remove the child but with the goal
of reuniting the parent and child; or (3) find a permanent
placement for the child. Following the initial placement of a
child in a temporary home, a child is not eligible for adoption
until the court has formally terminated parental rights and
ended family reunification services. Thus, it is imperative
that the temporary placement, whether with a foster home,
relative, or NREFM, assist in the facilitation of court-ordered
family reunification services. This bill seeks to clarify how
a social worker exercises due diligence in locating family to
release a child to, and would also clarify how relatives who
come forward later in the process are evaluated for placement.
CHANGES TO EXISTING LAW
1.Existing law provides that a minor may be removed from the
physical custody of his or her parents and become a dependent
of the juvenile court for serious abuse or neglect, or risk of
serious abuse or neglect, as specified. (Welf. & Inst. Code
Sec. 300.)
Existing law requires the social worker to immediately release
a child in temporary custody to the child's parent, guardian,
responsible relative, unless specified conditions exist.
(Welf. & Inst. Code Sec. 309.)
Existing law requires at the detention hearing, that the court
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 nonrelative extended
family members (NREFM). (Welf. & Inst. Code Sec. 319.)
2.Existing law requires that prior to determining the
appropriate disposition, the court shall receive in evidence
the social study of the child made by the social worker.
(Welf. & Inst. Code Sec. 358.)
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Existing law creates preferential consideration for a request
by a relative of a child for placement, and requires, in
determining whether the placement is appropriate, the county
social worker and the court to consider a number of factors
including the best interests of the child, the wishes of the
parent, placement of siblings, and the nature of the
relationship between the child and the relative. (Welf. &
Inst. Code Sec. 361.3.)
Existing law requires that whenever a new placement of the
child must be made, consideration for placement shall again be
to relatives who have not been found to be unsuitable and who
will fulfill the child's reunification or permanent plan
requirements.
This bill would delete the requirement for relative
consideration when a new placement is being made, and would
instead require that consideration for relatives shall be
given to relatives who have not been found to be unsuitable.
3.Existing law requires, when the sudden unavailability of a
foster caregiver requires a change in placement, that the
county welfare department assess any able and willing relative
or NREFM that requests temporary placement of the child, and
allows the child to be placed in the home upon completion of
the assessment. (Welf. & Inst. Code Sec. 361.45.)
Existing law , the California Rules of Court, provides examples
for judges to consider in determining if the social worker has
exercised due diligence in family finding, including whether
the social worker:
asked the child, in an age-appropriate manner and
consistent with the child's best interest, about his or
her relatives;
obtained information regarding the location of the
child's relatives;
reviewed the child's case file for any information
regarding relatives;
telephoned, emailed, or visited all identified
relatives;
asked known relatives for the names and locations
of other relatives; or
used Internet search tools to locate relatives
identified as supports. (Cal. Rule Ct. 5.695 (g))
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This bill would require the court to make a finding as to
whether the social worker exercised due diligence in
conducting the required investigation to identify, locate, and
notify a child's relatives, and would allow the court to
consider the factors above in making this finding.
COMMENT
1.Stated need for the bill
According to the author:
It has long been the policy and practice of the state that
when a child is removed from the custody of his or her parents
due to neglect or abuse, placement with a relative is the
preferred option. Research and practice has regularly
demonstrated that when children in foster care are placed with
relatives, it greatly increases a child's chances of being
reunified with his or her parents or remaining in a stable
placement if reunification is unsuccessful.
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, this is not always done.
Practice varies county to county 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 identification and recruitment
of relatives will vary widely by county.
Further, even when a relative comes forward, some counties are
not considering his or her request for placement because of a
clause in current law, which states that "whenever a new
placement of the child must be made, consideration for
placement shall again be given? to relatives who have not been
found to be unsuitable...".
2.Requiring the court to make a finding as to whether the social
worker exercised due diligence in locating relatives
Existing law requires that a social worker immediately release a
child in temporary custody to the child's parent, guardian, or a
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responsible relative, and creates a preference for relative
placement. Existing law also requires that the court take a
social worker's report into evidence when determining the
appropriate disposition (i.e., placement) of a child. This bill
would additionally require that the court make a finding as to
whether the social worker has exercised due diligence in
conducting the required investigation to identify, locate, and
notify relatives. When making this finding, this bill would
import examples of what constitutes "due diligence" from the
California Rules of Court including: asking the child about his
or her relatives; reviewing the child's case file for any
information regarding relatives; contacting identified
relatives; and asking known relatives for the names and
locations of other relatives.
The Children's Advocacy Institute explains that "it has long
been the policy and practice of the state that when a child is
removed from the custody of his or her parents due to neglect or
abuse, placement with a relative is the preferred option. This
policy and practice is based on sound research. The American
Academy of Pediatrics Committee on Early Childhood, Adoption and
Dependent Care has stated that placement with a relative has
psychological advantages for a child because they become more
intimately familiar with their biological roots and family
identity. Further, a study has shown placement with relatives
has a causal relationship with significantly reducing the time a
child spends in foster care and providing a greater likelihood a
child will remain in the same home for the entire time they are
in foster care."
In support, the Juvenile Court Judges of California write, "in
order to ensure that relatives are considered, current law
requires a social worker to locate any known adults who are
related to the child to determine whether they are willing to
temporarily care for the child. However, this is not always
done. Practice varies county to county. Without some level of
uniformity of what is considered "due diligence",' including
actual engagement of relatives where possible, the
identification and recruitment of relatives will vary widely by
county.
Staff notes that this bill is silent on what additional action
the court may take, if any, if it finds that the social worker
did not exercise due diligence in identifying, locating, and
notifying relatives of a child in the dependency system.
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3.Consistent with case law
Existing law provides that whenever a new placement for a child
must be made, consideration for placement shall again be given
relatives who have not been found to be unsuitable. This bill
would strike "whenever a new placement of the child must be
made," thereby requiring that relatives who seek placement after
the dispositional hearing must be assessed by the county and
considered by the court for placement. Dependency Legal
Services, in support, writes "it has long been the policy and
practice of the state that when a child is removed from the
custody of his or her parents due to neglect or abuse, placement
with a relative is the preferred option. Research and practice
has regularly demonstrated that when children in foster care are
placed with relatives, it greatly increases a child's chances of
being reunified with his or her parents, or increases his or her
chances for permanency with a relative if reunification is
unsuccessful."
The County Welfare Directors Association of California (CWDA)
notes that this bill raises both workload and policy concerns.
"From a policy perspective, it does not make sense to require an
assessment and placement consideration for any relative who
steps forward after the initial placement has been made,
regardless of whether it is in the best interest of the child to
do so, and whether any placement change was being contemplated
at that point in time. This would appear to render placement
decisions into a constant state of flux. [?] Even if it is
contemplated that placement changes would rarely occur under the
bill, it would seem to require a significant degree of work on
the part of county child welfare workers. There are many, at
time competing, requirements that child welfare staff must
follow to the best of their ability, and more work in a day that
the majority of staff have time to complete. Adding this new
workload, to little end, raises the question of whether the
funds for this are best used to serve foster children in
different ways."
Advokids, in opposition, writes:
Currently [Welf. & Inst. Sec.] 361.3 (d) limits consideration
of relatives for placement post disposition hearing to when "a
new placement must be made," when a child must be moved
because of a failed placement, a necessary move that cannot be
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prevented. SB 1336 opens up this option for a relative
placement when the move is not necessary and fails to include
any language that requires the county social worker and the
court to consider the thoughtful and measured factors included
in Welf. & Inst. Sec. 361.3 (a), factors required to be
considered early on at the disposition hearing when a relative
is considered. This bill needs further amendments and
clarification to require the county and the social worker to
consider all of the 361.3(a) factors when they seek to remove
a child from a placement where a child has lived for many
months and sometimes years in a home that has been identified
as a concurrent home with caregivers willing to provide legal
permanency. These delayed relative placements require as much
judicial scrutiny if not more than the placements considered
early on at disposition, 6o days into a child's stay in foster
care.
On this point, a recent appellate case clarified the preference
for relative placement within the foster system. "At least
through the reunification period, when a relative voluntarily
comes forward at the time with a new placement is not required,
the relative is entitled to the preference and the court and the
social worker are obligated to evaluate that relative." The
court further held that Welfare and Institutions Code "section
361.3 requires the court to give preferential consideration to a
request by the child's relative for placement, including an
assessment of whether placement with a relative is in the
child's best interest." (In re Isabella G. D068718 (2016).)
Accordingly, this bill which strikes the statutory language that
implied relative consideration need only happen when a new
placement is being made, arguably codifies case law.
Support : Alliance for Children's Rights; Children's Advocacy
Institute; Children's Law Center of California; Dependency Legal
Services; East Bay Children's Law Offices; Families NOW;
Juvenile Court Judges of California; National Association of
Social Workers
Opposition : Advokids
HISTORY
Source : Author
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Related Pending Legislation :
SB 942 (Liu) 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 1201 (Mitchell, 2016) moves consideration of an exemption for
specified crimes into the resource family approval process in
the context of other elements, such as the psychosocial
assessment, among other changes.
Prior Legislation :
AB 403 (Stone, Ch. 773, Stats. 2015) enacted the continuum of
care reform.
AB 1761 (Hall, Ch. 765, Stats. 2014) expanded the placement
preference language for relatives and NREFM from being a
priority prior to the detention hearing to also being a priority
after the detention hearing and prior to the dispositional
hearing.
AB 2391 (Calderon, 2014) would have required the county social
worker and the court, when determining whether placement with a
relative is appropriate, to consider specified factors, and
would have required that consideration for placement with a
relative subsequent to a disposition hearing be given again
without regard to whether a new placement of a child must be
made.
AB 545 (Mitchell, Chapter 294, Statutes of 2013) expanded the
definition of a nonrelative extended family member to include an
adult caregiver who has an established familial relationship
with a relative of the child.
AB 914 (Saldaņa, 2007) would have extended the evaluation and
approval requirements for nonrelative extended family caregivers
to nonrelative community support system caregivers, as defined.
This bill died in the Assembly Human Services Committee.
AB 1695 (Aroner, Chapter 653, Statutes of 2001) conformed state
law with recent federal law relating to the placement of foster
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children in licensed or approved homes of non-relatives and
relatives. Created a new category of "nonrelative, extended
family members," who are subject to the same approval process
as relatives and licensed caregivers.
Prior Vote : Senate Human Services Committee (Ayes 4, Noes 0)
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