BILL ANALYSIS Ó SB 1336 Page 1 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, SB 1336 Page 2 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 SB 1336 Page 3 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).) SB 1336 Page 4 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 SB 1336 Page 5 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 SB 1336 Page 6 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 SB 1336 Page 7 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. SB 1336 Page 8 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 SB 1336 Page 9 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 SB 1336 Page 10 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 SB 1336 Page 11 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 SB 1336 Page 12 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 SB 1336 Page 13 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 SB 1336 Page 14 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 SB 1336 Page 15 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 SB 1336 Page 16 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: SB 1336 Page 17 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. SB 1336 Page 18 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 SB 1336 Page 19 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 SB 1336 Page 20