BILL ANALYSIS Ó
SB 1336
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Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Susan Bonilla, Chair
SB
1336 (Jackson) - As Amended April 14, 2016
SENATE VOTE: 38-1
SUBJECT: Dependent children: placement with relatives
SUMMARY: Requires the juvenile court to make a determination as
to whether or not a social worker exercised due diligence in
conducting an investigation to identify, locate, and notify
relatives of a child placed in the child welfare system, and
requires a county welfare agency to evaluate relatives who come
forward as a placement option for a child receiving
reunification services.
Specifically, this bill:
1)States Legislative intent to clarify that, when a child is
receiving reunification services and a relative identifies
himself or herself to a county welfare agency, the relative be
evaluated by the county, and the county make a recommendation
to the court as to whether or not the relative should be
considered as a placement option.
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2)Requires that, when a child is removed from his or her
parent's or guardian's custody, the court make a finding as to
whether or not the social worker has exercised due diligence
in identifying, locating, and notifying the maternal and
paternal relatives of the child, as specified.
3)Authorizes the court to consider a number of actions as
examples of due diligence on behalf of the social worker,
including any of the following:
a) Conducting a mandated investigation in order to locate
relatives, as specified;
b) Asking the child, in an age-appropriate manner and
consistent with the child's best interest, about his or her
relatives;
c) Obtaining information regarding the location of the
child's relatives;
d) Reviewing the child's case file for any information
regarding the child's relatives;
e) Telephoning, emailing, or visiting all identified
relatives;
f) Asking located relatives for the names and locations of
other relatives; and
g) Using internet search tools to locate relatives
identified as supports.
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4)Deletes the requirement that a county welfare agency consider
a relative as a placement option whenever a new placement is
made, and instead clarifies that a county welfare agency must
give consideration for placement whenever a relative
identifies himself or herself to the county and is not found
to be unsuitable and who will fulfill the child's
reunification or permanent plan requirements.
EXISTING LAW:
1)Establishes a state and local system of child welfare
services, including foster care, for children who have been
adjudged by the court to be at risk or have been abused or
neglected, as specified. (WIC 202)
2)States that the purpose of foster care law is to provide
maximum safety and protection for children who are currently
being physically, sexually, emotionally abused, neglected, or
exploited, and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of harm.
(WIC 300.2)
3)States the intent of the Legislature to preserve and
strengthen a child's family ties whenever possible and to
reunify a foster youth with his or her biological family
whenever possible, or to provide a permanent placement
alternative, such as adoption or guardianship. (WIC 16000)
4)Requires a county to file a petition to the court requesting a
detention hearing within 48 hours of placing a child under
temporary custody to determine whether a child should remain
in custody and whether any specific court permissions are
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necessary to provide for the health and safety of the child.
(WIC 313 and 319)
5)Requires a "detention hearing" to be held within 24 hours of
the next court day whenever a detention petition is filed with
the court. (WIC 315)
6)Requires a juvenile court to hold a "jurisdictional hearing"
within 15 judicial days of the petition filed to take the
child into temporary custody to determine whether the court
has jurisdiction to adjudicate the child. (WIC 334)
7)Requires a juvenile court to hold a "dispositional hearing"
within 60 days of the detention hearing to determine the
appropriate placement for the youth if he or she is
adjudicated to be a dependent of the court. (WIC 352(b))
8)Requires a social worker, within 30 days of taking a child
into temporary custody or whenever appropriate to identify and
locate all adults who are related to the child by blood,
adoption, or affinity within the fifth degree of kinship and
provide for the purposes of informing them of their right to
participate in the care and placement of the child, as
specified. (WIC 309(e))
9)Requires preferential consideration be given to a request by a
relative to have the child placed with the relative if the
child has been removed from the physical custody of the
child's parent(s). (WIC 361.3(a))
FISCAL EFFECT: As it is currently in print, this bill is keyed
non-fiscal.
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COMMENTS:
Child Welfare Services: The purpose of California's Child
Welfare Services (CWS) system is to protect children from abuse
and neglect and provide for their health and safety. When
children are identified as being at risk of abuse, neglect or
abandonment, county juvenile courts hold legal jurisdiction and
children are served by the CWS system through the appointment of
a social worker. Through this system, there are multiple
opportunities for the custody of the child, or his or her
placement outside of the home, to be evaluated, reviewed and
determined by the judicial system, in consultation with the
child's social worker, to help provide the best possible
services to the child. The CWS system seeks to help children
who have been removed from their homes reunify with their
parents or guardians, whenever appropriate, or unite them with
other individuals they consider to be family. There are
currently over 62,000 children and youth in California's child
welfare system.
Relative placement: Historically it has been the policy of
California that when a child is removed from his or her parents'
custody, preserving familial ties is of the utmost importance.
As such, social works and county welfare agencies are often
tasked with finding appropriate placements with relative
caregivers, including another parent, grandparents, siblings or
non-relative extended family members (NREFM). Recent policy
changes through Continuum of Care Reform (CCR) have recognized
the importance of relative caregivers and placement with
relatives when a child is placed in the child welfare system and
steps have been taken to ensure that the unique needs of
relative caregivers are addressed.
Reunification services: When a child is removed from his or her
parents' custody and it is determined by the courts and in
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speaking with the child's social worker that the child would
ultimately benefit from being returned to the family, the court
may order reunification services in order to address the
underlying issues or needs of the family that led to the child's
removal in the first place. Reunification services include but
are not limited to: family therapy, parenting classes, drug and
alcohol abuse treatment, respite care, parent support groups,
home visiting programs, and services deemed necessary in order
to foster a child's reunification with his or her parents.
Current law states that for children under three years of age,
reunification services are offered for six months and for twelve
months for children over the age of three. Extensions of
services are available if the court determines that there is
substantial probability that a child will return to his or her
parents' custody within the extended time period.
Dependency Court procedure: When a child is removed from the
custody of his or her parent(s) they are temporarily placed
within the jurisdiction of the child welfare system until a
determination about the child's welfare is made. Within 48
hours after a child is taken into temporary custody, the county
social worker must file a petition with the court requesting
that a detention hearing take place in order to determine that
further detention of the child is necessary. If a petition to
declare the child a dependent of the court is filed by the
county social worker then the detention hearing must be held
within 48 hours of the petition being filed. At the detention
hearing, the social worker outlines the allegations of abuse or
neglect made against the parent and why it is necessary to
remove the child from the custody of his or her parent(s). If
the court determines that removing the child from his or her
parents' custody is in the best interests of the child, the
child is then removed from his or her parents' custody.
Permanent placement of the child is determined at a later date.
Once a child has been removed from the custody of his or her
parents, a jurisdictional hearing must take place within 15
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days. It is at the jurisdictional hearing that the court
determines whether the allegations outlined in the social
worker's petition are true. If the allegations are deemed to be
true, then the child is determined to be within the jurisdiction
of the juvenile court and a dispositional hearing must be held
within 60 days of the initial detention hearing in order to
determine the permanent placement of the child. At the
dispositional hearing the court determines the parameters of the
family reunification plan, which includes where and with whom
the child will live, be it with relatives or in a foster family
home.
Precedential case law: Recent case law from the Second and
Fourth Appellate Districts (which include Los Angeles, San
Diego, Riverside and San Bernardino Counties) has stated that
relative priority placement applies throughout the reunification
period regardless of whether or not a new placement is required:
"At 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).)
Similarly, in early 2016, and in the case of Isabella G (In re
Isabella G. ((2016) 246 Cal. App. 4th 708), the Fourth Appellate
District once again reiterated the preferential consideration as
a placement option for relatives. In the case of Isabella G.,
the county welfare agency refused to properly consider the
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grandmother of a child who had been instrumental in the child's
upbringing and with whom the child had previously lived while in
her parents' custody. The grandmother, after repeatedly asking
for placement, finally had to bring her own motion before the
court in order to obtain a change of placement. The court first
agreed with the opinion in Joseph T. by holding that even if a
no new placement is required, relative placement preference
still applies after the dispositional hearing. The appellate
court further held that a relative does not need to bring his or
her own action for placement before the court in order to be
assessed for placement by a county welfare agency. Rather, the
court held that "the obligation to assess a relative's home is
triggered by the relative's request for placement of the child."
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
for placement, including an assessment of whether placement with
a relative is in the child's best interest."
Legislative Counsel opinion: In May 2016, this bill's author
received an opinion from Legislative Counsel in which was posed
the question of whether or not 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 a new placement is not otherwise
required, as is written in current law. In their opinion,
Legislative Counsel stated that with regards to Welfare &
Institutions Code 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 a new placement is not otherwise required as
described in subdivision (d) of that section."
Need for this bill: According to the author's office,
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"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...'.
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
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child's relatives.
[This] is a bill with the goal of improving efforts to
identify and prioritize relatives for placement of children in
foster care; with the intent to reduce the time they spend in
foster care and to help improve their chances of being
reunified with their parents, or reach permanency with a
relative. This bill does this in two important ways. First,
it would codify the family finding rule of court, which
requires a dependency court judge to make a ruling of whether
a county child welfare agency has exercised its due diligence
in searching for known relatives when a child is removed from
the custody of his or her family due to abuse or neglect.
Secondly, it would clarify how and when preferential
consideration of relatives is considered by a dependency court
in order to ensure that children in foster care are provided
every opportunity of being placed with a relative caregiver
when it is in their best interest."
Arguments in support: According to the Alliance for Children's
Rights,
"By clarifying how and when preferential treatment of
relatives is considered [this bill] will help to ensure that a
relative is considered for placement whenever he or she
identifies him or herself to a county child welfare agency.
It would also provide dependency court judges additional
statutory tools to help ensure that appropriate and effective
steps are being made to find and recruit relatives early in
the dependency proceeding to improve reunification with the
child's parents and permanent ties to the child's relatives."
Additional concerns: The County Welfare Directors Association,
which has taken a position of opposed unless amended, contends
that:
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"This bill would strike references to the consideration
occurring at the next placement change, thus requiring
counties to assess and consider for placement any relative who
comes forward during the tie a child is in family
reunification, even if a placement change is not otherwise
being considered. This new mandate raises both policy and
workload concerns. From a policy perspective, it does not
make sense to require an assessment and placement
consideration for every relative who steps forward after the
initial placement has been made, without considering whether
it is in the best interest of the child to do so, or taking
into account whether a placement change was being contemplated
at that point.
We understand that the author believes that case law is
settled on this issue and that the county practice should
already be consistent with Isabella, thus the bill is (a)
purely a clarification of current understanding, and (b)
cost-free because counties should already be following this
interpretation. We disagree. Both In Re Lauren R. (148
Cal.App. 4th) and in In Re Cesar V. (91 Cal.App.4th) are
generally cited in cases that disagree with the interpretation
in Isabella, and in In Re R.T. (232 Cal.App.4th) specifically
addresses the differing interpretations of Welfare and
Institutions Code 361.3 (d) in its discussions and findings.
Other published and unpublished cases including very recent
cases (see for example In Re David F., Court of Appeals of
California, Fifth District and In Re J.J., Court of Appeals of
California, Second District, Division Two) cite the above and
other cases as indicated that this question of law is not
settled. Whle unpublished cases may not be used as
precedent-setting from a court perspective, they do govern
these individual cases and almost certainly influence local
practice and interpretation of the Welfare and Institutions
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Code. We need not conclude which interpretation of the statute
is correct; the important point here is that case law on WIC
361.3 is not settled."
Also with a position of opposed unless amended, the Laborers'
International Union of North America (LIUNA) Locals 777 & 792
states:
"We request that the author amend [this bill] to require child
welfare social workers to consider the best interest of the
child when making a determination as to whether to assess and
consider relative placement, when a relative comes forward
after the initial placement and a new placement is not
otherwise being considered. We believe this amendment strikes
an appropriate balance between the desire to ensure that
children may be placed with appropriate relative, and the need
to ensure that the best interests of those children are
adequately being taken into consideration."
Recommended amendments: This bill attempts to strike a balance
between having to fully assess every relative that comes
forward, regardless of the best interests of the child, and
determining whether to fully assess a particular relative based
first on a review of the relative's impact on the child's best
interest. In order to ensure that county welfare agencies have
discretion in deciding which relatives are assessed while
upholding current law and practice of relative preference,
committee staff recommends the following amendments:
1) Committee staff recommends the following amendments
starting on page 6 of the bill:
22
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(d)Subsequent to the hearing conducted pursuant to Section
23
358, whenever a new placement of the child must be made,
consideration for placement shall again be given as described in
24
this section to relatives who have not been found to be
unsuitable
25
and who will fulfill the child's reunification or permanent plan
26
requirements. In addition to the factors described in
subdivision
27
(a), the county social worker shall consider whether the
relative
28
has established and maintained a relationship with the child.
(2) Whenever a relative identifies himself or herself to the
county subsequent to the hearing conducted pursuant to Section
358 and during the provision of reunification services, and the
county is not otherwise considering a change of placement, the
county shall, within 14 calendar days, determine whether the
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relative may meet the best interests of the child and should
therefore assess the relative and consider him or her for
placement according to the factors described in subdivision (a)
and paragraph (1) of subdivision (b).
(3) Within three days of determining whether or not to assess
and consider the relative, the county shall inform the court,
relative and parties to the case, that a relative has been
identified and whether it has decided to assess and consider
that relative for placement, including reasoning for its
decision.
(4) If the county does not assess the relative for placement, at
the request of a party to the case or on its own motion, the
court shall set the matter for hearing and may order the agency
to assess the relative and recommend to the court whether the
child should be placed with the relative.
(5) If the county does not assess the relative for placement,
notwithstanding Section 388, at the request of the relative, the
court may set the matter for hearing and may order the agency to
assess the relative and recommend to the court whether the child
should be placed with the relative. If the court does not set
the matter for hearing, the court shall state for the record the
reasons the hearing was not set.
29
(e)If the court does not place the child with a relative who
has
30
been considered for placement pursuant to this section, the
court
31
shall state for the record the reasons placement with that
relative
32
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was denied.
33
(f)(1)With respect to a child who satisfies the criteria set
forth
34
in paragraph (2), the department and any licensed adoption
agency
35
may search for a relative and furnish identifying information
36
relating to the child to that relative if it is believed the
childs
37
welfare will be promoted thereby.
38
(2)Paragraph (1) shall apply if both of the following
conditions
39
are satisfied:
40
(A)The child was previously a dependent of the court.
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PRIOR AND RELATED LEGISLATION:
SB 316 (Mitchell), 2016, clarifies and simplifies rules for
criminal background checks for foster care placements and makes
the rules consistent with federal law. This bill has been
referred to the Senate Rules Committee.
SB 942 (Liu), 2016, 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. This bill is currently in the Assembly Human
Services Committee.
AB 1761 (Hall), Chapter 765, Statutes of 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. This bill was held in the Senate Judiciary Committee.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Judiciary Committee on June 21, 2016 and was
approved on a 8-0 vote.
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REGISTERED SUPPORT / OPPOSITION:
Support
Alliance for Children's Rights
Opposition
None on file.
Analysis Prepared by:Kelsy Castillo / HUM. S. / (916)
319-2089