BILL ANALYSIS
AB 938
Page 1
Date of Hearing: April 28, 2009
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall, Jr., Chair
AB 938 (Committee on Judiciary) - As Amended: April 20, 2009
SUBJECT : Dependent children: relative caregivers and foster
parents
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 number 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 number 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 the
Judicial Council to develop the required form.
4)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. Requires the
social worker to provide the court and the parties with any
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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
(WIC) Section 300.)
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. (WIC 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. (WIC Section 319.)
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,
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information about the child's siblings and the appropriateness
of any relative placement. (WIC 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. (WIC Sections 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. (WIC 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.
(WIC 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. (WIC Section
349.)
FISCAL EFFECT : Unknown
COMMENTS : In October 2008, Congress passed and President Bush
signed the Fostering Connections to Success and Increasing
Adoptions Act (Fostering Connections Act; H.R. 6893, Pub.L
110-351), which will significantly improve the lives of hundreds
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of thousands of children and youth in foster care by promoting
permanent families for them through relative guardianship and
adoption and improving education and health care. The act
requires state agencies to exercise due diligence to identify
and provide notice to all grandparents and other adult relatives
of a child within 30 days after the child is removed from his or
her home. It will help grandparents and other relatives get
involved in children's care early on. The act also allows child
welfare agencies to obtain state and federal child support data,
including information to help locate children's parents and
other relatives.
This bill is an Assembly Judiciary Committee bill, sponsored by
the Judicial Council. It is one of several bills introduced
this legislative session to implement components of the
Fostering Connections Act.
Notice to relatives : Too 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. 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 grandparents and other adult
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 would implement the federal mandate by requiring that,
immediately after a child has been removed from his or her
parents due to abuse or neglect, social workers attempt to
locate grandparents and other adult relatives (provided these
relatives are not involved with family or domestic violence) and
inform them of the removal and of options to be involved in the
child's life, including kinship care and visitation. As
required by federal law, this 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.
The bill would also allow 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
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well-being are met.
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, to provide the social worker and the court with the
best information about the child on which to base critical,
life-changing decisions, this 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.
To ensure proper court oversight over this important relative
notification process, this 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.
The County Welfare Directors Association, in support of this
bill, notes that "[w]hile county child welfare workers do search
for and contact relatives under current law, the new statute
sets forth tighter timeframes for doing so as well as additional
details on what is to be done when relatives are identified."
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The California Blue Ribbon Commission on Children in Foster Care
(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. (California Blue Ribbon Commission on Children in
Foster Care, Final Recommendations: The Role of the Courts in
Improving the Lives of Children and Families (August 15, 2008).)
Effective participation in dependency proceeding : When children
are removed from their parents and placed in foster care,
dependency courts step into the role of parent and make
life-changing decisions for these children--such as where they
will live and with whom, and whether they can see their family
again. To ensure that these critical court decisions are well
informed, both the children and their parents are generally
provided with attorneys to represent them.
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
bill, 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." And when attorneys do not have adequate
information about the child's life and needs, neither does the
court. As a result, the Commission recommended 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 recommended that all parties to dependency
proceedings have the opportunity to review reports and confer
with their counsel before all hearings.
The provisions of this bill pertaining to effective
participation in dependency proceedings are not included to
conform state law to the Fostering Connections Act; rather,
these provisions implement the Blue Ribbon Commission's
recommendation that parents and children have the opportunity to
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review reports and meet with their attorneys before these
critical hearings. In an effort to ensure competent
representation for all parties in dependency cases, this 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 intends 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 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
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.
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
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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, this bill states 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.
SECOND COMMITTEE OF REFERENCE . This bill was previously heard
in the Assembly Judiciary Committee on April 14th, and was
approved on a 9 - 0 vote.
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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 (CWDA)
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 : Eric Gelber / HUM. S. / (916) 319-2089