BILL ANALYSIS
AB 938
Page 1
Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 938 (Committee on Judiciary) - As Amended: March 27, 2009
As Proposed to be Amended
SUBJECT : DEPENDENCY HEARINGS: RELATIVE NOTIFICATION AND PARTY
PARTICIPATION
KEY ISSUES :
1)IN ORDER TO COMPLY WITH FEDERAL LAW AND HELP INCREASE THE
LIKELIHOOD THAT FOSTER CHILDREN WILL BE CARED FOR BY LOVING
RELATIVES, SHOULD RELATIVES BE TIMELY NOTIFIED WHEN CHILDREN
ARE REMOVED FROM THEIR PARENTS AND PLACED IN FOSTER CARE?
2)IN ORDER TO ENSURE ADEQUATE REPRESENTATION AND ASSIST THE
COURT in making the best decisions for children, SHOULD
PARTIES TO DEPENDENCY ACTIONS -- PARENTS AND CHILDREN -- BE
PROVIDED WITH THE OPPORTUNITY TO REVIEW REPORTS AND CONFER
WITH tHEIR COUNSEL BEFORE HEARINGS?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
This Committee bill, sponsored by the Judicial Council, seeks
to ensure better outcomes for children in foster care by
implementing one of the requirements of the federal Fostering
Connections to Success and Increasing Adoptions Act (the
Fostering Connections Act, HR 6893, Pub. L. 110-351, 2008) and
one of the key recommendations of the California Blue Ribbon
Commission on Children in Foster Care (the Commission). First,
the bill implements the federal mandate that child welfare
agencies provide notice to all adult relatives within 30 days
of a child's removal from his or her parents and placement in
foster care. Second, the bill implements the Commission's
recommendation that parents and children have the opportunity
to review reports and meet with their attorneys before
life-changing dependency hearings.
Taken together, these two provisions seek to ensure that
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children who have been removed from their parents due to abuse
or neglect can still be cared for by loving relatives and that
courts can make better decisions, with better outcomes for
children, by helping promote the active participation of
parents and children in their dependency cases. This bill is
supported by, among others, the Youth Law Center, the
Children's Law Center of Los Angeles and the County Welfare
Directors Association. There is no known opposition.
SUMMARY : Provides relatives of children in foster care with
information on how to assist these children and provides
parties to dependency hearings a greater opportunity to
participate in their hearings. Specifically, this bill :
1)Requires that, when a child is removed from his or her
parents and placed in foster care, the child's social worker
must immediately begin conducting an investigation to
identify and locate the child's grandparents and other adult
relatives, as defined. Requires the social worker to use due
diligence in investigating the names and locations of the
relatives, including asking the child and using the
California Parent Locator Service, in accordance with federal
requirements.
2)For all relatives who are located pursuant to #1, above,
requires the social worker to immediately provide specified
written notification and, when appropriate, oral
notification, except where the relative's history of domestic
violence makes such notification inappropriate. Requires
that the notification explain that the child has been removed
from his or her parents and the various options available to
participate in the care and placement of the child and
support of the child's family. Requires the State Department
of Social Services (DSS) to develop the required notice.
3)Requires the social worker, on or after January 1, 2011, to
provide relatives, notified pursuant to #1, above, with a
relative information form to provide the social worker and
the court with information about the child's needs. Allows
the relative to request to address the court. Requires
Judicial Council to develop the required form by January 1,
2011.
4)Requires the court, at the initial petition hearing, to
inquire as to the efforts made by the social worker to
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identify and locate the child's relatives. Requires the
social worker to provide the court and the parties with any
completed relative information forms that have been received.
5)Requires the social worker, as part of any report to the
court in advance of the disposition hearing, to report on the
activities undertaken to identify and locate relatives and
the results of those activities.
6)Requires the court, at each dependency hearing, to inquire as
to whether parties were able to review reports and confer
with their attorneys before the hearing. Requires the court
to continue the hearing if a party did not receive proper
notice, did not receive reports, or was not able to confer
with his or her attorney prior to the hearing, provided the
party requests a continuance in order to do so, unless the
court finds that it is not in the best interest of the minor
or would prejudice the rights of a party to continue the
hearing. States that the court shall continue the hearing
only for the period of time necessary to review reports or
confer with the attorney, which can be later that same day.
EXISTING LAW :
1)Provides that children may become dependent children of the
juvenile court and removed from their parents or guardian on
the basis of abuse or neglect. (Welfare and Institutions
Code Section 300. Unless otherwise stated, all further
statutory references are to that code.)
2)When a child has been removed from his or her parents or
guardian because of abuse or neglect and taken into temporary
custody, requires the social worker to immediately
investigate the circumstances of the child and the facts
surrounding the child being taken into custody. Provides a
process whereby able and willing relatives may seek placement
of the child pending the detention hearing. (Section 309.)
3)Requires the court to examine the parents, guardian or other
individuals with relevant knowledge of the child at the
initial petition hearing. Requires the court to order the
parent to disclose to the social worker the names and address
of any maternal or paternal relatives. (Section 319.)
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4)Requires the social worker to provide to the court, in
advance of the disposition hearing, a social study or
evaluation of the child, which shall include, among other
things, information about the child's siblings and the
appropriateness of any relative placement. (Section 358.1.)
5)Permits the court to appoint counsel in a dependency case for
a parent or guardian of a dependent child when it appears to
the court that the parent or guardian wants counsel but is
currently unable to afford counsel. Requires the court to
appoint counsel when the child is or may be placed in
out-of-home care, except as specified. (Section 317(a),
(b).)
6)Requires the court to appoint counsel for an unrepresented
child in a dependency case, unless the court finds that the
child would not benefit from the appointment of counsel.
Requires appointed counsel to have a caseload and training
that assures adequate representation of the child. Requires
the Judicial Council, by July 1, 2001, to promulgate rules of
court that establish caseload standards, training
requirements and guidelines for appointment of counsel.
(Section 317(c); Rule of Court 5.660.)
7)Provides that all parties who are represented by counsel at
dependency proceedings are entitled to competent counsel.
(Section 317.5.)
8)Requires the court in a juvenile court hearing, where the
child who is the subject of the hearing is 10 years of age or
older and is not present at the hearing, to determine whether
the minor, not only was properly notified, but also was given
an opportunity to attend. Requires the court, if the child
was not properly notified or, if he/she wished to be present
and was not given an opportunity to be present, to continue
the hearing to allow the child to be present, unless the
court finds that it is in the best interest of the child not
to continue the hearing. Requires the court to continue the
hearing only for that period of time necessary to provide
notice and secure the presence of the child. (Section 349.)
COMMENTS : This Committee bill, sponsored by the Judicial
Council, seeks to ensure better outcomes for children in foster
care by implementing one of the requirements of the Fostering
Connections Act and one of the key recommendations of the
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Commission. Taken together, these two provisions seek to
ensure that children who have been removed from their parents
due to abuse or neglect can still be cared for by loving
relatives and that courts can make better decisions, with
better outcomes for children, by helping promote the active
participation of parents and children in their dependency
cases.
Benefits of Early Contact with Relatives : Often, when children
are removed from their parents because of abuse or neglect,
they are removed from their families and their communities,
even when loving relatives could step in and care for them.
The benefits of having foster children cared for by relatives
cannot be underestimated:
Studies show that children who are placed with
relatives experience greater success and stability
than youth placed with strangers. According to an
Urban Institute report, foster children raised by kin
have fewer behavioral and academic difficulties and
better physical and mental health outcomes than
children raised by caregivers with who they have no
prior relationship.
Research also shows that foster children with
caregivers who are relatives are more likely to live
close to their original home, enabling them to
maintain critical school stability and remain more
closely connected to their cultural heritage. They
have greater contact with their birth families and are
more likely to be placed with siblings.
(Miriam Aroni Krinsky, Put Foster Kids with Relatives, Not
Strangers, When Possible, Los Angeles Daily Journal (June 6,
2004).)
In addition, locating relatives early in the process may help
identify family members who can provide sufficient support to
the parents to allow the child to safely remain in his or her
home. Finally, early identification and location of relatives
not only increases the likelihood that a child will be placed
with family, but also decreases the likelihood that a
previously unknown relative will be located late in the
process, potentially disrupting a stable placement with a
non-relative.
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Federal Legislation : Last year, the Fostering Connections Act
was enacted with bipartisan support. That Act seeks to improve
the lives of children in foster care, provide greater
assistance to relative caregivers and improve incentives for
adoption. Key provisions of the legislation allow for kinship
guardianship assistance, similar to California's Kin-Gap
program, and extension of assistance to foster children up to
age 21. Of particular relevance to this bill and in response
to studies showing the benefits of having foster children cared
for by loving relatives, the federal legislation requires that
child welfare agencies provide notice to all adult grandparents
and other relatives within 30 days of a child's removal from
the parents and placement in foster care. (42 U.S.C. Section
671(a).) California must implement this requirement by January
1, 2010 or risk loss of significant federal foster care funds.
This bill helps foster children be placed with loving relatives
whenever possible . AB 938 implements the federal mandate by
requiring that, when a child is removed from his or her parents
due to abuse or neglect and placed in foster care, the child's
social worker must immediately begin conducting an
investigation to identify and locate all grandparents, adult
siblings and other adult relatives of the child. As required
by federal law, the bill mandates that the social worker use
due diligence in investigating the names and locations of the
relatives, including asking the child in an age appropriate
manner about relatives important to that child and using child
support locate tools, available through California Parent
Locator Service, in accordance with federal requirements.
When relatives are located, the social worker must, except when
issues of family or domestic violence make notification
inappropriate, immediately provide them with specified written
notification. In addition, the social worker must also provide
the relative with oral notification, through a visit or a phone
call, whenever appropriate. The notification must explain that
the child has been removed from his or her parents and explain
the various options to participate in the care and placement of
the child and support of the child's family, including Kin-GAP
and CalWORKs. DSS, in consultation with the County Welfare
Directors Association (CWDA), is required to develop the form
notice.
In addition, in order to provide the social worker and the
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court with the best information about the child on which to
base critical, life-changing decisions, the bill requires the
social worker, beginning January 1, 2011, to provide all
notified relatives with a relative information form to provide
the social worker and the court with information about the
child's needs. Any returned relative forms must be provided to
the court and the parties. The form also allows the relative
to request to address the court. Judicial Council, in
consultation with DSS and CWDA, must develop the required form
by January 1, 2011. This allows loving relatives to provide
the court with information about the child's needs, thus
helping increase the likelihood that the child's rights to
safety, permanency and well-being will be met.
In order to ensure proper court oversight over this important
relative notification process, the bill requires the court, at
the initial petition hearing, to inquire as to the efforts made
by the social worker to identify and locate the child's
relatives. In addition, the social worker must report to the
court, as part of its report for the disposition hearing, on
the activities undertaken by the social worker to identify and
locate relatives and the results of those activities.
Blue Ribbon Commission Report : The Commission was appointed by
Chief Justice Ronald George in 2006 to develop recommendations
on how courts and their partner entities could improve child
welfare and fairness outcomes of children in foster care. The
Commission is chaired by Associate Justice Carlos Moreno and
includes Assemblymember Bass and Senator Steinberg as members.
The Commission issued its final recommendations in August,
2008, and, in December, 2008, the Judicial Council made
implementation of those recommendations a priority. The
Commission found that:
The courts and child welfare agencies share "parental"
responsibility for the nearly 80,000 children in
foster care in California, more than any other state
in the nation. Fifty percent of these children are in
care for two years or more, 17 percent of them for
more than three years. These children too often find
themselves in foster-care limbo, shifted from
placement to placement, separated from siblings,
friends, and schools.
To many, the courts are the unseen partners in the
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lives of foster children, yet every child and parent
in the system knows it is in the courts where
life-changing decisions are made-where a child will
live and with whom, when and if a family can be
reunited.
(California Blue Ribbon Commission on Children in Foster Care,
Final Recommendations: The Role of the Courts in Improving the
Lives of Children and Families 1 (August 15, 2008).)
Even though dependency hearings affect just about every
critical aspect of a child's life, parents and children may not
always be able to review reports by social workers and confer
with their attorneys before key hearings. Of particular
relevance to this legislation, the Commission found that
"[c]hildren and parents sometimes do not meet their attorneys
until moments before their hearings, which not only limits
their opportunity to speak in court, but means attorneys often
have inadequate information about a child's life." (Id.) And
when attorneys do not have adequate information about the
child's life and needs, neither does the court. As a result,
the Commission recommends that, among other things, courts
should ensure that all participants in dependency proceedings,
including children and parents, have an opportunity to be
present and heard in court. In addition the Commission
recommends that all parties to dependency proceedings have the
opportunity to review reports and confer with their counsel
before all hearings.
This bill seeks to ensure that parents and children can
effectively participate in their dependency cases . AB 938
implements the Commission's recommendation that parents and
children have the opportunity to review reports and meet with
their attorneys before these critical hearings. In particular,
this bill requires the court, at each dependency hearing, to
inquire as to whether parties were able to review reports and
confer with their attorneys before the hearing. Unless the
court finds that it is not in the best interest of the minor or
would prejudice the rights of a party to continue the hearing,
the court must continue the hearing if a party did not receive
proper notice, did not receive reports, or was not able to
confer with his or her attorney prior to the hearing, and , as a
result, the party requests a continuance in order to do so.
This ensures that hearings will not be delayed if they will
harm the child or any other party to the action. Even if a
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continuance is ordered, the bill requires the court to continue
the hearing only for the period of time necessary to review
reports or confer with the attorney, which could even be later
that same day. In fact, it is anticipated that in most cases,
a party can review reports and confer with his or her attorney
and be back in court later that same day, which would not delay
the proceedings.
In an effort to ensure competent representation for all parties
in dependency cases, the bill also states the intent of the
Legislature that all parties to juvenile court hearings have a
meaningful opportunity to participate in these hearings. This
includes attorneys counseling their clients concerning the
subject matter of the litigation, the client's rights, the
court system, the proceedings, the attorney's role, and what to
expect in the legal process. This bill makes clear the intent
of the Legislature that dependency attorneys investigate the
factual and legal issues in the case and identify the services
needed by the client. In addition, the Legislature intents
that attorneys review all reports to the court and any other
relevant information with the client including child clients
who are four years of age and older, and explain the substance
of those reports to their clients.
This bill also provides that it is the intent of the
Legislature that the attorney for a party in a dependency case
must have sufficient contact with that party to establish and
maintain an adequate and professional attorney-client
relationship. Attorneys in dependency cases are expected to
meet regularly with clients, including clients who are
children, regardless of the child's age or ability to
communicate. The attorney's communication with the child,
including counseling the child concerning the subject matter of
the litigation, the client's rights, the court system, the
attorney's role, and what to expect in the legal process,
should be conducted in a manner consistent with the child's age
and developmental level. In order to assess the child's
well-being, the attorney may utilize investigators or social
workers to meet with or visit child clients. Finally, the bill
state the intent of the Legislature that the attorney contact
social workers and other professionals associated with the
client's case, and work professionally with other counsel and
the court to resolve disputed aspects of a case.
Technical Amendment : In order to ensure compliance with the
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federal mandate that, effective January 1, 2008, the state must
provide notice to relatives when children have been placed in
foster care, the bill will be amended to ensure that, DSS, in
consultation with the County Welfare Directors Association
(CWDA), develops the required notice timely. To that end, the
following will be deleted from page 7, line 22: "before
January 1, 2011".
ARGUMENTS IN SUPPORT : In support of the bill, the Public
Counsel Law Center reports that they routinely receive "calls
from relatives who have just learned that their grandson,
granddaughter, niece or nephew has just been removed from a
parent's home. They are deeply concerned and want to help, but
they do not know what to do or who to contact. Sometimes their
call to [Public Counsel] comes too late. When they finally
reach the child welfare agency and locate the child, they are
told that they can't help care for the child because too much
time has passed. Other times, even though they would be
fantastic and loving caregivers, they are hesitant to help out
because they are unaware of the resources available to them as
kinship caregivers. By providing for effective implementation
of the federal mandate in Foster Connections, AB 938 will
ensure that more children are timely placed in permanent
placements with loving family members . . ."
Echoing the importance of early notification of relatives, the
Youth Law Center writes: "The early search for and
notification of relatives can help child protective service
workers identify resources for the child, including
alternatives to removal, relatives who are willing to provide a
placement, and other support for the child and the family.
Early identification of relatives can also head off problems,
such as custody disputes and changes in placement, that can
arise when relatives who are willing and able [to] care for a
child are identified after the child has been placed with
unrelated foster parents."
In support of the bill's provisions to increase party
participation in their dependency cases, the Judicial Council
writes: "The critical decisions made by juvenile courts each
day are dependent upon the information that they receive
regarding the children and families before them. Ensuring that
these parties to the case have adequate representation and can
meaningfully participate in these proceedings will improve the
quality of the information that [the] court has to consider and
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thereby improve the quality of its decisions."
Pending Related Legislation : Several other bills also seek to
implement other parts of the Fostering Connections Act. These
include AB 12 (Beall and Bass), which would re-enact
California's existing Kin-GAP program to align it with the new
requirements under the Fostering Connections Act and provide
transitional support to qualifying foster youth until age 21,
and SB 597 (Liu), which would, among other things, require DSS
to apply for a federal matching grant, known as a family
connection grant, for the purpose of helping foster children or
those at risk of entering the foster care system, connect with
relatives.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council (sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
Children's Law Center of Los Angeles
County Welfare Directors Association of California
Family Law Section of the State Bar
Legal Aid Association of California
Legal Services for Prisoners with Children
Public Counsel Law Center
Youth Law Center
Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334