BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 726 S
Senator Florez B
As Amended May 3, 2005
Hearing Date: May 10, 2005
Welfare and Institutions Code 7
MJM/GMO:cjt 2
6
SUBJECT
Dependent Children
DESCRIPTION
This bill would impose additional requirements upon
noncustodial parents seeking to gain placement or custody
of their children who have been removed from the care of
the other parent. This bill would also create additional
administrative requirements to be completed before and
after a child is reunified with his or her parents or legal
guardian.
BACKGROUND
A child may become a dependent of the juvenile court if the
child is determined to be at risk of abuse or neglect.
[Welfare and Institutions Code Section 300.] The purpose
of the juvenile court regarding children who are determined
to be dependents of the court is to preserve and strengthen
the child's family ties whenever possible, removing the
child from the custody of her parents only when necessary
for the child's welfare. When removal is necessary,
reunification of the child with his family shall be a
primary objective. The juvenile court is required to
consider the best interests of the child in all its
deliberations. [Welfare and Institutions Code Section
202.]
CHANGES TO EXISTING LAW
(more)
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1. Existing law provides that a child may become a dependent
of the juvenile court if the child is at risk of abuse or
neglect. [Welfare and Institutions Code Section 300.]
Existing law provides that a court must place a child
with a parent who desires the child if it is determined
that this parent was not with the child when the abuse or
neglect occurred and that placing the child with this
parent would not be detrimental to the safety or
well-being of the child. [Welfare and Institutions Code
Section 361.2.]
Existing law requires that a background check and home
visit be performed on any prospective guardian, including
a child's relative, whenever a dependent child is placed
with a person who is not a licensed or certified foster
parent. [Welfare and Institutions Code Section 361.4.]
This bill would require the same background check and
home visit be conducted on a noncustodial parent before
the child could be placed with the noncustodial parent.
2. Existing law provides that while a child is in foster
care, social workers must submit periodic reports to the
court including their recommendations to the court and
the factual basis for their recommendations. [Welfare
and Institutions Code Sections 366.1, 366.21, and
366.22.]
Existing law provides that at a hearing in which the
court is considering returning a child to his or her
parents, the court must consider any report filed by
foster parents regarding their recommendation for
placement of the child. [Welfare and Institutions Code
Section 361.21.]
This bill would prohibit the court from returning a child
to his or her parents until the social worker had
interviewed the foster parents regarding the needs of the
child and filed a report based on this interview with the
court.
3. Existing law provides that a court may retain
jurisdiction over children after they have been returned
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to the care of their parents if the court determines it
is in the best interests of the child. [Welfare and
Institutions Code Section 361.2.]
This bill would require that the court maintain
jurisdiction after reunification until a social worker
completes a post-reunification home visit and files a
timely report with the court indicating the home is safe
and adequate to ensure the safety and protection of the
child.
4. Existing law provides that a court may order
post-reunification services as it deems appropriate in
the individual case. [Welfare and Institutions Code
Section 16506.]
This bill would require the court to order parents to
attend a parenting class post-reunification.
COMMENT
1. Stated need for the bill
According to the author:
In November 2003 a tragic incident took place in
Bakersfield. A 4-month-old baby boy named Adam was
awarded to his biological father, who was unable to
properly care for him. The father was unemployed and
lived in a small home with several other people. Adam
subsequently died of multiple traumatic injuries due
to force trauma at the hands of his biological father,
just weeks after the child was taken from his foster
parents and returned to his father.
Under current law, when a child is removed from a
biological parent, a "noncustodial" parent may raise
claim to the child without adhering to the same
regulations as a relative who may want to become the
custodial guardian of the removed child. In Adam's
case, he was removed from an unstable single mother to
be cared for by a loving and caring foster family only
to be yanked away and given to a dangerous father who
did not undergo the same background checks that any of
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Adam's relatives would have undergone to ensure his
safety. This legislation as put forth will protect
our children and prevent an absent, "noncustodial"
parent the opportunity to harm a child.
2. Opponents contend that the bill is unnecessary
Those who oppose the bill, though, point out that most of
the procedural safeguards provided in this bill already
exist in current law. The Bay Area Dependency Chapter of
the California Appellate Defense Counsel (BADC) contends
that any current shortcomings in the dependency system
are better approached "by looking at the overall picture
rather than enacting piecemeal bills like this one." The
County Welfare Directors Association of California (CWDA)
asserts that any failure of the dependency system in
Adam's case cannot be attributed to a statutory gap or
lack of procedural protections for children, but rather
is a result of inadequate resources, high caseloads, and
inflexible federal and state funding structures. While
applauding the author's sincere interest in improving the
lives of abused and neglected children, all of those in
opposition contend that the requirements of this bill
would divert already inadequate resources into
unnecessary and redundant new mandates.
Comments 4, 5, and 6 discuss some of the perhaps
unintended consequences of the bill. Comment 8 offers a
narrower alternative.
3. Restrictions on the placement of a child with a
noncustodial parent create constitutional concerns and
contradict mandates of the juvenile court
Current law provides that relatives or other people
seeking to have a dependent child placed with them must
meet several requirements. First, a social worker must
visit the person's home to ascertain the appropriateness
of the placement. Then a background check must be
conducted to determine if the person, or anyone over age
18 living in the person's home, has a criminal record or
a history of child abuse. If no one in the house has a
criminal record, then the court may consider the person
as a placement option for the child. However, if the
person or any other adult in the house has a criminal
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conviction for any crime other than a minor traffic
violation; the person cannot be considered for placement
of the child unless he or she obtains a criminal records
exemption. This exemption must be based on substantial
and convincing evidence to support a reasonable belief
that the person is of such good character as to justify
the placement and not present a risk of harm to the
child. It can take weeks or months for a person
convicted of any crime other than a minor traffic
violation to obtain the exemption necessary to have the
child placed with him or her.
This bill seeks to impose these same requirements on a
noncustodial parent who seeks placement of his or her
child when the child is removed from the other parent's
custody.
is it appropriate to uniformly treat noncustodial parents
the same as strangers or other more distant relatives?
a. SB 726 would violate noncustodial parents'
constitutional right to parent
The relationship between parent and child is protected
by the Fourteenth Amendment. [Quilloin v. Walcott
(1978) 434 U.S. 246.] "'It is cardinal with us that
the custody, care and nurture of the child reside
first in the parents, whose primary function and
freedom include preparation for obligations the state
can neither supply nor hinder.'" [Id. citing Prince
v. Massachusetts, (1944) 321 U.S. 158.]
"The fundamental liberty interest of natural parents
in the care, custody, and management of their child
does not evaporate simply because they have not been
model parents or have lost temporary custody of their
child to the State." [Santosky v. Kramer (1982) 455
U.S. 745.] When State intervention poses the
potential to destroy already weakened family bonds, it
must provide the parents with fundamentally fair
procedures. [Id.] Foster parents and other relatives
do not enjoy this similar fundamental right to the
custody and care of someone else's child. [Smith v.
Organization of Foster Families for Equality & Reform
(1977) 431 U.S. 816.]
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Because this bill seeks to limit the ability of a
noncustodial parent, who has not neglected or abused
the child, to gain custody of his or her child, it
implicates the noncustodial parent's fundamental right
to the care and custody of his or her child. "We have
little doubt the Due Process Clause would be offended
'if a State were to attempt to force the breakup of a
natural family, over the objections of the parents and
their children, without some showing of unfitness and
for the sole reason that to do so was thought to be in
the children's best interest.'" [Id.]
States are prohibited from infringing on fundamental
liberty interests unless the infringement is narrowly
tailored to serve a compelling state interest.
[Lawrence v. Texas (2003) 539 U.S. 558.] While the
state's interest in protecting abused or neglected
children would likely qualify as "compelling," this
bill's prohibition on placing a child with a
noncustodial parent unless the noncustodial parent
meets the same requirements as a licensed foster
parent is not narrowly tailored to achieve the state's
interest of protecting children. This bill would
prevent a child from being placed with a parent who is
not responsible for the abuse or neglect that brought
the child into the dependency system in the first
place if that parent has been convicted of any crime
other than a minor traffic violation. This
prohibition is clearly not narrowly tailored. This
bill, then, likely creates unconstitutional
restrictions on a parent's right to the care and
custody of his or her child.
SHOULD THIS PROVISION BE STRICKEN FROM THE BILL?
b. This bill's presumption of unfitness would violate
noncustodial parents' constitutional right to due
process
Current law provides that the objective of the
juvenile court in dependency proceedings is to
"preserve and strengthen the minor's family ties
whenever possible, removing the minor from the custody
of his or her parents only when necessary for his or
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her welfare." Additionally, the juvenile court is
required, unless it would be detrimental to the child,
to place a dependent child with a noncustodial parent
who was not residing with the child when the abuse or
neglect occurred which led to the child becoming a
dependent of the court. Opponents maintain that these
provisions of current law are not only appropriate but
required by the Constitution.
This bill would limit a noncustodial parent's ability
to gain placement of his or her child. This,
according to the Children's Law Center of Los Angeles
(CLC) would turn our entire statutory and
constitutional presumption of parental fitness on its
head. "[A]t every stage of the dependency proceeding,
up until the termination of reunification services,
the burden is, as it should be, on the State to show
that the parent is unfit. Under this proposed change
in the law, the court would be required to presume
that the parent is not fit and the parent would then
have to prove their fitness."
c. Other protections already exist; this bill would
remove the juvenile court's discretion
CLC contends that while currently the court has the
discretion not to place the child with a noncustodial
parent if it would be detrimental to the child, other
protections also exist under current law. For
example, the court has the discretion to maintain
jurisdiction over the child after the child is placed
with a noncustodial parent. This requires further
reports to be made regarding the placement of this
child. [Welfare and Institutions Code Section
361.2(b).] Additionally, at any time a social worker
believes a child is at risk of abuse or neglect, the
child may be removed immediately from the home.
[Welfare and Institutions Code Section 305.]
Current law empowers a child protective services
agency, concerned about a parent's ability to parent
or believing that the child may be at risk in the
parent's care, to file a petition and initiate an
investigation that can include a background check.
"It is routine practice throughout the State to run
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criminal background checks on parents. The results
and the relevance of any convictions impact case
plans, the level of service provided and placement
decisions," Children's Advocacy Institute (CAI)
explains.
In sum, this bill would not only subject noncustodial
parents to unconstitutional restrictions on their
fundamental rights to the care and custody of their
children, but would also take away the court's
discretion to waive those restrictions in situations
where the noncustodial parent's suitability is evident
and deprive the child and the parent of that
relationship during the weeks or months while the
background checks are completed.
SHOULD THESE VERY RESTRICTIVE RULES IN RESPONSE TO A
TRAGIC EVENT BE IMPOSED ON ALL DEPENDENCY PROCEEDINGS?
4. Provision requiring additional report by social worker
incorporating foster parent interview is unnecessary
This bill would provide that before a court may order a
child returned to the physical care of his or her parents
or legal guardian, the court must order the social worker
to interview the foster parents regarding the child's
needs and any additional information regarding the child
including the foster parents' observations of the
interactions of the parent or legal guardian and the
child. This interview would be required to be conducted
in a "timely manner." This bill would prohibit a court
from returning a child to his or her parent until this
report is filed.
Opponents maintain that it is unnecessary to require a
social worker to file yet another report, when the social
worker is already required to file various reports
throughout the proceedings. These reports include the
social worker's recommendations to the court as well as
the factual basis supporting those recommendations.
Opponents contend that any valuable information received
from the foster parents will likely be included in the
reports. While foster parents often have critical
information on these subjects and their input is
certainly valuable, opponents contend that this input can
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be provided to the court through the reports already
required to be filed. They contend requiring an
additional report constitutes a waste of precious
resources and time.
Opponents argue it would be unfair and often detrimental
to the child to delay a child's return to his or her
parent until this additional report is filed. Although
the bill would require the report be filed in a "timely"
manner, this is not defined. A child, then is left to
wait in foster care while an already overscheduled social
worker schedules and conducts an interview with the
foster parents, writes a report and files it with the
court in some undefined "timely" manner.
Los Angeles Affiliate of the National Association of
Counsel for Children (LA NACC) argues that this
additional report is unnecessary because foster parents
who want to provide input to the court already have the
ability to do so. Current law requires that in any
hearing in which the court is considering returning a
child to the physical custody of his or her parent, the
court must consider any report filed by foster parents
regarding their recommendation regarding placement of the
child. [Welfare and Institutions Code Section
361.21(d).] In fact, Judicial Council has created a
"Caregiver Information Form" for just this purpose.
Current law allows foster parents to voice their opinions
when they have opinions they want to voice, but does not
require additional paperwork and time and resources be
devoted when the foster parents do not disagree with the
recommendations of the social worker when deciding to
return a child to his or her parent.
LA NACC also points out that this bill would prohibit the
court from returning a child to a parent not based on
evidence of risk, but rather solely because a social
worker has not filed an additional report. This
conflicts with existing law that the court "shall" return
a child to his or parent unless the social worker
establishes by a preponderance of the evidence that
return would place the child at substantial risk of
detriment to the child's safety, protection, or physical
or emotional well-being. [Welfare and Institutions Code
Section 366.21(e).]
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5. Requirement that second home visit be conducted
eliminates judicial discretion and wastes resources
This bill would require the court to maintain
jurisdiction over a dependent child after the child has
been returned to the care of his or her parents until a
second home visit has been conducted by a social worker.
This second home visit must be conducted within a
reasonable time after the child's return to his or her
parent and must contain the conclusion by the social
worker that the home is "safe and adequate" to ensure the
continued safety of the child. If these two requirements
are not met, this bill would require the court to remove
the child from the home.
Opponents point to several flaws with this provision of
the bill. First, the report required by this provision
requires the social worker to make a finding that the
home is "safe and adequate" for the continued safety of
the child. LA NACC argues that this is inconsistent with
existing law and is inappropriate because findings
requiring the removal of a child should be made by the
court, not a social worker. Additionally, Judicial
Council notes that this standard of "safe and adequate"
is too broad and doesn't comport with current law
regarding removal of a child from a home. Removal of a
child must currently be justified by clear and convincing
evidence of risk to a child.
Second, opponents contend it is inappropriate to remove a
child from his or her home just because of the failure of
the social worker. This bill would require the child
removed if the report is not filed within a reasonable
time. Not only is this requirement unworkable and
arbitrary, it is utterly unfair to a child to remove him
because a social worker failed to do his job.
Finally, Judicial Council asserts that the court already
has the authority to maintain jurisdiction over children
who have been returned to the care of their parents when
it is appropriate to do so or when the court has concerns
about the child's well-being. Currently, if the court
maintains jurisdiction, then it must conduct review
proceedings no later than six months after the child is
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returned to his or her home. During that time, the child
welfare agency is responsible for the provision of
services to the family that will allow the child to
remain safely at home. "The existing procedure is
adequate to protect children who are being returned to
parents, and provides the court with the flexibility to
determine whether the family requires this level of
service and oversight."
6. Provision requiring post-reunification parenting classes
is unnecessary
This bill would require that if a child less than six
years old is returned to the physical custody of his or
her parent, the court shall order the parent or legal
guardian to complete one or more parenting classes after
reunification. This requirement would apply to all cases
in which a child is returned to a parent, not just cases
in which the court felt additional family maintenance and
continued jurisdiction was necessary.
CWDA argues that this provision is unnecessary because
current law already provides the court with the authority
to order parenting classes after reunification if the
court determines the classes are appropriate. Because a
court can currently maintain jurisdiction over a child
who has been returned to his parents, the court may also
continue to require additional family maintenance. CWDA
notes that not all families need or would benefit from
parenting classes after reunification. Current law,
then, provides the court with the discretion to order
classes that are in the child's best interests but does
not require the court do so when it is unnecessary.
LA NACC argues that this "one-size-fits-all" approach has
been avoided by the Legislature when addressing the needs
of families in the juvenile dependency system. Existing
law requires child welfare case plans to be tailored to
the specific needs of the individual family, and LA NACC
argues that whether additional parenting classes are
necessary is "best left to the discretion of the juvenile
court hearing officer who is familiar with the family's
unique problems, strengths, and needs."
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BADC contends that required post-reunification parenting
classes are unnecessary because in "virtually every case,
the parent will have been required to successfully
complete a parenting class before he or she is reunified
with his or her child."
SHOULD THIS ONE-SIZE-FITS-ALL REQUIREMENT SUPPLANT THE
COURT'S ABILITY TO ADDRESS THE SPECIFIC NEEDS OF
INDIVIDUAL FAMILIES?
7. Does the bill presume that foster care is always better
and safer for a child than the noncustodial parent's
home?
Opponents maintain that this bill is premised on the idea
that once a child has been removed from a parent, the
child will always be safer and happier in foster care
than at home. BADC asserts that the presumption that
foster care is a sanctuary from abuse is unfortunately
untrue. "Rates of abuse and neglect of a child in foster
care may be greater than those in the general
population?the incidence of child maltreatment in
California foster care is almost twice the national
average." [Austen L. Parrish, "Avoiding the Mistakes of
Terrell R." 15 Stanford Law and Policy Review 267
(2004).] CAI says, "Adam's case is certainly tragic.
However, keeping a child in foster care is not guaranteed
protection against tragedy. In the first eight months of
2004, 40 children died while in foster care in
California."
8. Is there a lesser alternative measure that might help to
address the problem?
Although opponents contend that existing laws are
adequate, the fact of the matter is that a baby died in
Bakersfield because of a failure in the current system.
While committee staff agrees that the existing system has
many features that could have prevented the tragedy, the
inescapable fact is that none of the facets worked, at
least in that case. Thus, some ameliorative changes
might be appropriate, if not the changes suggested by the
author.
One such alternative is to bolster the current optional
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use of the "Caregiver Information Form," which is now
available to foster parents to make comments to the
court. This alternative approach would instead require
the social worker to provide the form and ask the foster
parents to fill it out with particular detail to any
comments the foster parents may have with respect to the
noncustodial parent now seeking placement or custody.
This broader form then should be attached to the social
worker's report for the court's review and consideration.
Support: Junior Leagues of California, State Public
Affairs Committee; five individuals
Opposition: Judicial Council of California; County Welfare
Directors Association of California; National
Center for Youth Law; Children's Advocacy
Institute; Bay Area Dependency Chapter of the
California Appellate Defense Counsel; Los Angeles
Affiliate of the National Association of Counsel
for Children; Children's Law Center of Los
Angeles
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote: Senate Human Services Committee (5 Ayes, 0
Noes)
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