BILL ANALYSIS Ó
SB 1336
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1336 (Jackson) - As Amended April 14, 2016
SENATE VOTE: 38-1
SUBJECT: Dependent children: placement with relatives
KEY ISSUE: IN ORDER TO IMPROVE THE LIVES OF FOSTER CHILDREN AND
ENHANCE FAMILY REUNIFICATION, SHOULD THE LAW BE CLARIFIED,
CONSISTENT WITH RECENT CASE LAW, TO REQUIRE THAT RELATIVES BE
CONSIDERED FOR PLACEMENT OF A FOSTER CHILD, regardless of
whether a new placement is necessary?
SYNOPSIS
Abused and neglected children who have been removed from their
homes fall under the jurisdiction of the child welfare system.
If a child cannot be safely returned to his or her parents,
there is a strong legislative preference that the child be
placed with willing and able relatives, since there are
significant benefits for the child and for the family if the
child is placed with relatives. To help achieve that goal when
possible, this bill does two things. First, it requires the
juvenile court to make sure that social workers have exercised
due diligence in conducting their investigation to identify,
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locate and notify a child's relatives when the child is removed
from his or her parents. Second it clarifies, consistent with
recent case law (see In re Isabella G. (2016) 246 Cal. App. 4th
708), that a relative may be considered for placement even when
the child is not in need of a new placement. This does not
require that the child be moved. Obviously whether a child is
moved or not will be based on a number of statutory factors,
most important of which is the child's best interest. Rather,
this bill just requires that the relative be adequately
considered.
This bill is supported by children's advocates, including the
Alliance for Children's Rights, the Children's Advocacy
Institute and the Children's Law Center of California, and the
Juvenile Court Judges of California, who state that placement
with relatives greatly increases a child's chance of
reunification with his or her parents and increases chances of
permanency even if the child cannot be reunified. They believe
that this bill is good for children by helping ensure that
relatives are appropriately considered for placement. This bill
is opposed unless amended by the county welfare directors and
labor organizations who are concerned that having to assess
relatives when no new placement is required could result in a
child being moved even when it is not in the child's best
interest to do so and is a waste of scare resources. The bill
is also opposed, for similar reasons, by particular counties and
Advokids. The author is continuing to work with the opposition
to see if a compromise is possible, but thus far no consensus
has been reached.
SUMMARY: Clarifies when relatives must be considered for
placement of foster children. Specifically, this bill:
1)Requires the court, whenever a child is removed from his or
her parent's custody and made a dependent of the juvenile
court, to make a specified finding as to whether the social
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worker exercised due diligence in conducting the required
investigation to identify, locate and notify a child's
relatives of the detention, and allows the court to consider
specified factors in making this finding.
2)Deletes the requirement that, subsequent to the disposition
hearing, consideration for relative placement be given only
when a new placement must be made, and instead clarifies that
consideration for relative placement shall be given to
relatives who have not been found to be unsuitable.
3)States that the intent of the Legislature in amending Welfare
& Institutions Code Section 361.3 is to clarify that if a
child is receiving reunification services and a relative
identifies himself or herself to a county child welfare
agency, then that relative is to be evaluated by the county
child welfare agency and a recommendation be made to the court
as to whether the relative should or should not be considered
for placement.
EXISTING LAW:
1)Provides that a minor may be removed from the physical custody
of his or her parents and become a dependent of the juvenile
court as the result of abuse or neglect, as specified.
(Welfare & Institutions Code Section 300. Unless stated
otherwise, all further statutory references are to that code.)
2)Requires a social worker to immediately release a child in
temporary custody to the child's parent or guardian. Defines
the steps and timelines a county must take after detaining a
child, including specific steps and timelines to search for
relatives. Requires assessment of relatives or nonrelated
extended family members (NREFMs) who seek placement of the
child. (Section 309; Cal. Rule Ct. 5.695 (f), (g).)
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3)Requires the court, at the detention hearing, 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 relatives, as specified. (Section 319.)
4)Requires that prior to determining the appropriate
disposition, the court shall receive in evidence the report of
the child made by the social worker. (Section 358.)
5)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. 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. (Section 361.3.)
6)Requires, when the sudden unavailability of a foster caregiver
requires a change in placement, that the county welfare agency
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.
(Section 361.45.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: Abused and neglected children who have been removed
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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 services, 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. If that cannot be done,
the social worker is required to seek out relatives and find
another placement for the child, and throughout the child
welfare process, there is a strong preference that the child be
placed with relatives. This bill seeks to clarify the child
welfare agency's duty to find relatives willing to take a foster
child in and assess, where appropriate, whether to place the
child with loving relatives.
In support of the bill, the author 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 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 [but] 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
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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...".
Although contrary to case law, some counties have interpreted
this clause to mean that a relative may not be considered
until a new placement is made for the child. 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 decision could ultimately delay successful reunification
with the child's biological parents or permanent ties to the
child's relatives.
Court Dependency 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 six-month hearings evaluate the status of the
parents' attempts to reunify with the child and the child's
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well-being. If the child cannot be reunited with his or her
parents, the goal is to find a new, permanent family for the
child.
Outcomes of Children in Foster Care and Preference for Placement
with Relatives. 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.
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.
Studies have demonstrated significant benefit to children in the
child welfare system who are placed with relatives rather than
with strangers in foster homes or in group care. 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 relatives:
Children in relative care tend to be just as safe as, or
safer than, children placed in foster care.
Relative placements provide more stability than
placement with foster families, and if the child has to
move, it is likely he or she will move from the home of one
relative to another.
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Siblings more often remain together in relative care,
and are more likely to visit one another even if they
reside in separate relative homes.
Relative caregivers are more likely to continue the ties
with the child's birth family.
Children in relative care are more likely to remain
connected to their community, including their school.
Relative caretakers facilitate parent-child visitation
more easily since the caregivers will likely favor
reunification and will be less likely than foster parents
to compete with the parents for permanent custody of the
child.
Relatives are more likely to invest time and care for a
child who shares a blood tie. This includes a willingness
to care for the child for as long as needed.
Placement with relatives will generally be less
traumatic than placement in an unfamiliar home because the
children will be living with someone they know and trust,
particularly if the non-relative differs racially or
ethnically from the child.
Placement with relatives supports the transmission of a
child's family identity, culture, and ethnicity.
Placement with relatives eliminates the unfortunate
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stigma that many foster children experience.
Children fare better in relative care than in foster
care along numerous axes.
The child placed with relatives knows his or her own
family, sees family resemblances, and understands how he or
she fits into it. (Judge Len Edwards, Examining the
Benefits and Challenges of Placing Children with Relatives
(CASA Nov. 2011).)
But, Judge Edwards noted, there are barriers to placing children
with relatives:
Relative preference may be the law today, but significant
challenges remain. . . .We must also identify, locate and
engage 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. All of these group
decision-making processes have spread throughout the United
States and have been recognized as best practices in the
resolution of the difficult issues presented in child
protection cases.
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
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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.
Relative placement is good social and legal policy. However,
effective implementation of relative preference requires early
identification and engagement. It requires effective judicial
oversight of social worker actions regarding locating and
engaging fathers and relatives. It also requires
opportunities for relatives to participate in decision making,
preferably through group decision-making processes. Engaging
relatives is a best practice, one that will serve the best
interests of children separated from their parents.
(Examining the Benefits and Challenges of Placing Children
with Relatives, supra.)
This bill seeks to help children, when appropriate and in their
best interest, be placed with relatives by requiring court
oversight of the relative finding process, so that relatives can
be found early and children placed with them timely, and
requiring that social workers and courts consider a later
relative placement if it is in the best interest of the child.
Ensuring that social workers look diligently for relatives.
Given the significant benefits of relative placement for foster
children, if a child is removed from his or her family, current
state and federal law requires the child's social worker, within
30 days, to conduct an investigation to identify and locate the
child's adult relatives and to use due diligence in
investigating the names and locations of the relatives,
including asking the child. If a relative is located, the
social worker is required to provide the relative with a
notification explaining that the child has been removed from his
or her parents and the various options available to participate
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in the care and placement of the child and support to the
child's family.
To ensure that the social worker diligently and timely seeks out
relatives for possible placement, this bill requires the court
to make a finding as to whether the social worker has exercised
due diligence in conducting the required investigation to
identify, locate and notify the child's relatives, including
both maternal and paternal relatives. This bill allows the
court, in making its determination, to consider specified
examples of due diligence, including whether the social worker
asked the child about his or her relatives, reviewed the child's
case file, telephoned, emailed or visited all identified
relatives, and used Internet search tools to locate identified
relatives. These requirements are identical to the requirements
already set out in California Rules of Court, Rule 5.695 (f),
(g). If these due diligence standards are properly complied
with, barriers to placing children with relatives, as identified
by Judge Edwards above, should be significantly reduced.
In support, the Juvenile Court Judges of California writes: "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." (Footnote omitted.) The juvenile court judges note
that this bill provides them with "additional tools to help
ensure that appropriate and effective steps are being made to
both identify and engage relatives early in the dependency
process."
Case law, recognizing the importance of relative placement, is
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consistent with this legislation. Precedential case law from
the Second and Fourth Appellate Districts (which include Los
Angeles, San Diego, Riverside and San Bernardino Counties) has
been quite clear that the statutory relative placement priority
applies at least through the reunification period (and even
beyond) and regardless of whether a new placement is required:
"[A]t least through the reunification period, when a relative
voluntarily comes forward at a time when a new placement is not
required, the relative is entitled to the preference and the
court and the social worker are obligated to evaluate the
relative. . . . Appellate court decisions have consistently held
that the relative placement preference applies at least through
the family reunification period. During the reunification
period, the preference applies regardless of whether a new
placement is required or is otherwise being considered by the
dependency court." (In re Joseph T. (2008) 163 Cal. App. 4th
787, 794-95 (citations omitted).)
Very recently, an appeals court in the Fourth Appellate District
reiterated the relative placement preference in a case where the
child welfare agency refused to consider properly a grandmother
who had helped raise the foster child and had repeatedly asked
for placement, placing the child instead with a nonrelative
extended family member and refusing to move the child. In re
Isabella G. (2016) 246 Cal. App. 4th 708. The grandmother
finally had to bring her own motion for change of placement,
which requires proof of a change of circumstances. The court
first agreed with Joseph T., holding that the relative placement
preference applies after the dispositional hearing even if no
new placement is required. The appellate court went on to hold
that a relative does not need to bring his or her own action for
placement in order to get assessed for placement. Rather, the
"obligation to assess a relative's home is triggered by the
relative's request for placement of the child." (Id. at 722.)
The court concluded that the relative placement preference
applied even after the reunification period and even when no new
placement is necessary. The court is still required "to give
preferential consideration to a request by the child's relative
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for placement, including an assessment of whether placement with
a relative is in the child's best interest." (Id. at 723
(emphasis in original).)
A Legislative Counsel opinion to this bill's author affirms that
the relative placement preference applies even when no new
placement is needed: "It is our opinion that under Welfare &
Institutions Code section 361.3, a social worker is required to
assess each relative who requests placement of a child in foster
care after the dispositional hearing through the family
reunification period, even if an new placement is not otherwise
required . . ." (Legislative Counsel, Dependent Children:
Placement with Relatives, No. 1613338 (May 20, 2016).)
This bill clarifies state law, consistent with those court
decisions and the Legislative Counsel opinion, by deleting the
phrase "whenever a new placement of the child must be made,"
from the provision requiring assessment of willing relatives
post the disposition hearing. The bill also states the intent
of the Legislature 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 or should not be
considered for placement.
Opponents argue that case law is not settled in this area, and
that this bill creates a new mandate, as well as both policy and
workload concerns. Opponents, the County Welfare Directors of
California (CWDA), Urban Counties of California and LIUNA Locals
& 792, argue, however, that the law with respect to relative
consideration when a new placement is not required is not fully
settled and that therefore this bill imposes new mandates on
counties. In support of this contention, CWDA states that both
"In re Lauren R. (148 Cal.App.4th) and In re Cesar V. (91
Cal.App.4th) are generally cited in cases that disagree with the
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interpretation in Isabella and In re R.T. (232 Cal.App.4th)
specifically addresses the differing interpretations of [the
relevant Welfare & Institutions Code section] in its discussion
and findings."
However, none of these cases limit the requirement to assess
relatives even when no new placement is needed. In re Lauren R.
(2007) 148 Cal. App. 4th 841 involved whether the relative
placement preference applies at the time of adoption proceedings
(well after the time period addressed by this bill) when the
child wanted to remain with her caregiver. (It does not.)
Ceser V. v. Superior Court (2001) 91 Cal. App. 4th 1023 was
based on a post-reunification case when a new placement was
necessary. The court held that even post-reunification (but
before parental rights are terminated) the relative preference
applies when a new placement is necessary. That case did not
address what is required if a new placement is not necessary.
Finally, in In re R.T. (2015) 232 Cal. App. 4th 1284, 1300, the
appellate court reversed a lower court for not requiring that a
relative be considered for placement. While that court does
state, in dicta, that it is "presently unsettled whether a
relative is entitled to preference when requested late in the
proceeding, when the child is in a stable placement following
the dispositional hearing and termination of reunification
services," (emphasis added) the cases the court cites to,
including Lauren R., do not support the uncertainty in law that
the statement suggests. Thus, the cases provided by CWDA do not
provide precedential support for the contention that a relative
is not entitled to preferential consideration even when a new
placement is not necessary. In fact, the only precedential
cases on point require that the relatives be assessed, even when
no new placement is necessary. And the counties that are
covered by those decisions - including Los Angeles, San Diego,
Riverside and San Bernardino Counties - represent over 60
percent of the state's child welfare caseload.
Opponents argue that, regardless of case law, the bill raises
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workload and policy concerns. Regardless of whether case law
mandates a relative review when requested, but when no new
placement is required, opponents argue that if it is not in the
best interest of the child to change placements, relatives
should not have to be considered. Writes LIUNA Locals 777 &
792:
From a policy perspective, the state should prioritize the
best interest of the child. While family placement preference
is often in the child's best interest, continual disruption
and upheaval is not. The requirements contemplated in this
bill would render placement decisions precarious at best, and
would no doubt have a deleterious effect on children in foster
care. From a workload perspective, requiring child welfare
staff to consider and assess family placement preference, each
time a new family member comes forward, may result [in] child
welfare staff expending limited time and resources on tasks
which may result in no change, let alone no positive change,
for the children in their charge.
CWDA and LIUNA Locals 777 & 792 oppose the bill unless amended
to allow social workers to only have to do the assessment if
they determine it is in the child's best interest. However, it
is not clear how the social worker will be able to determine if
it is in the child's best interest to assess the relative
without at least doing a partial assessment of the relative.
Otherwise, even if the child is in a stable placement, the child
might lose the opportunity to be in a better placement, say with
a loving and supportive grandmother who just moved to town in
order to take custody of the child.
The Author's office is continuing to work with opponents to
attempt to reach consensus. There are ongoing talks between
some of the opponents and the author and supporters in an
attempt to create, as a compromise, a pre-assessment review that
social workers would be required to perform when a willing and
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able relative seeks placement, after the disposition hearing and
before termination of reunification services, of a foster child
in an existing placement. The pre-assessment review would
consider the child's best interest and whether the relative
could enhance the child's life. No agreement has yet been
reached, and as of the writing of this analysis, it is not clear
if the parties will be able to find consensus.
If the bill passes out of this Committee, it will be sent to the
Human Services Committee, giving the author and opponents some
additional time in which to attempt to resolve concerns.
ARGUMENTS IN SUPPORT: Child advocate supporters, including the
Children's Advocacy Institute, write:
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.
ARGUMENTS IN OPPOSITION: Opponents, including several counties,
are concerned that having to assess a relative even when making
a move may not be in a child's best interest "may not be the
best use of resources for already overburdened social workers."
Advokids, writing in opposition, adds:
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Currently 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 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,
60 days into a child's stay in foster care.
It is worth noting that this bill does not in any way limit
judicial review of foster care placements and in fact the
section that the bill is modifying - Welfare & Institutions Code
Section 361.3 - requires the court to review certain factors in
potential relative placement and to state its reasons if the
relative placement is denied, thus presuming that the court must
be involved in any move. Moreover, the existing statute does
indeed specifically require that the factors set forth in
Welfare & Institutions Code Section 361.3 (a) be considered as
part of any consideration of relative placement.
Related Pending Legislation: This bill works in collaboration
with two other bills being considered by this Committee today.
SB 316 (Mitchell) clarifies and simplifies rules for criminal
background checks for foster care placements and makes the rules
consistent with federal law.
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SB 942 (Liu) establishes additional procedures for the temporary
placement of a child with an able and willing relative, requires
that a criminal records check be conducted within a specified
timeframe, and authorizes the court to conduct a hearing if the
assessment process is not complete, as specified.
Prior Legislation: AB 1761 (Hall, Ch. 765, Stats. 2014)
clarified that the placement priority for relatives and NREFM
applies both prior to the detention hearing and also 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.
REGISTERED SUPPORT / OPPOSITION:
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
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Juvenile Court Judges of California
National Association of Social Workers
Opposition
Advokids
County Welfare Directors Association of California (unless
amended)
LUINA Locals 777 & 792 (unless amended)
Northern California Association of Counsel for Children
San Diego County
Urban Counties of California
Ventura County Board of Supervisors
Analysis Prepared by:Leora Gershenzon / JUD. / (916) 319-2334
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