BILL ANALYSIS �
SENATE HUMAN
SERVICES COMMITTEE
Senator Carol Liu, Chair
BILL NO: AB 493
A
AUTHOR: Perea
B
VERSION: May 17, 2012
HEARING DATE: June 12, 2012
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FISCAL: Yes
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CONSULTANT: Sara Rogers
SUBJECT
Registered Sex Offenders and Community Care Facilities
SUMMARY
Prohibits registrants pursuant to the Sex Offender
Registration Act from residing, working or volunteering,
expect as specified, in a foster home or community care
facility licensed or certified to serve children. Requires
local law enforcement agencies that register a person
pursuant to the Sex Offender Registration Act to determine
whether the registered residence or place of employment is
prohibited under current law, to notify the registrant and
the county child welfare agency and to take appropriate law
enforcement action or notify an appropriate law enforcement
entity with jurisdiction if the address is prohibited.
Requires the Department of Social Services to provide local
law enforcement with the addresses of all licensed or
certified homes and facilities that serve children under
the age of 18 years of age.
ABSTRACT
Current law
Continued---
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1.Enacts the Sex Offender Registration Act requiring
persons convicted of certain sex offenses to permanently
register with local law enforcement within 5 working days
of coming into or changing her or her residence, place of
employment or enrollment in an institution of higher
education and to update registration annually. Defines
employment to include volunteer activities.
2.Prohibits registrants from residing within 2,000 feet of
any public or private school, or park where children
regularly gather.
3.Requires the Department of Justice (DOJ) to identify the
dwelling type of a registered sex offender, to include
that information in the sex offender database, and to
make that information available to the Department of
Social Services (DSS) and other state agencies.
4.Prohibits registrants whose crime was against a victim
under age 16 from working with minors as an employee or
volunteer, under specified circumstances. Provides that
if the registrant's crime was not against a victim under
age 16, the registrant must notify the employer or
volunteer organization of his status as a registrant.
5.Requires DSS to secure a California and Federal Bureau of
Investigation (FBI) criminal record clearance for
applicants seeking licensure or certification, as well as
for all supervisors, employees, volunteers, adult
residents, specified service providers, non-client
residents and any other person who comes into contact
with a client within a licensed facility or foster home.
6.Requires licensees to prohibit the employment, residence
or initial presence of any person required to obtain
criminal record clearances who has not yet done so.
Applies civil penalties for failure to comply with this
requirement.
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7.Requires, subsequent to initial licensure or
certification, any non-exempt person to obtain a
California and FBI criminal record clearance prior to
employment, residence, or initial presence in a foster
family home, certified home or child care facility.
8.Requires DSS to deny an application for licensure if a
person required to submit a criminal record check has
been convicted of a crime other than a minor traffic
violation as specified, including sex offenses pursuant
to PC Section 290.
9.Requires county child welfare agencies to perform
criminal background checks in accordance with standards
set forth for foster homes, prior to placing a child in
the home of a relative or non-relative extended family
member, and prohibits the county from making the
placement if the criminal background check indicates that
the person has been convicted of a crime for which DSS is
unable to grant an exemption.
10.Establishes the conditions under which DSS may grant an
exemption to individuals who have been convicted of
specified criminal offenses and establishes the
conditions under which no exemption may be granted.
11.Requires DSS to notify the licensee if a person required
to obtain a criminal record check has subsequently been
determined to have been convicted of or awaiting trial
for specified criminal offenses.
12.Whenever an individual is excluded from a licensed
family day care home, requires DSS to provide an addendum
to parental notification forms clearly identifying the
name of the excluded individuals and the reason, and
requires the licensee to obtain the signature of the
parent or guardian indicating they received the addendum.
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13.Provides that willful or repeated violations of
community care licensing statute and regulation shall be
punishable as a misdemeanor.
This bill
1.Requires a county sheriff, a chief of police of a city or
campus of higher education, or any other person who
registers a person pursuant to the Sex Offender
Registration Act to determine whether the registered
residence or place of employment is prohibited based on a
match with DSS facility and foster home database
information and if so, to notify the registrant, to take
appropriate law enforcement action and to report the
registration to the local county child welfare agency.
2.Prohibits registrants pursuant to the Sex Offender
Registration Act from residing, working or volunteering,
expect as specified, in a foster home or facility
licensed or certified to serve children under the age of
18 or a home or facility that receives a placement of a
dependent child of the juvenile court. Provides that a
violation would be a misdemeanor.
3.Provides that a court may waive the prohibition if the
residence is that of a non-custodial parent, a relative,
or a nonrelative extended family member who receives
placement of a child who is, or may become, a dependent
child of the juvenile court or if the court finds that
the placement is in the best interests of the child.
4.Requires DSS to provide local law enforcement with the
addresses of each community care facility, certified
foster home, child day care facility, day care center,
family day care home, or similar home or facility that
serves children under 18 years of age that is licensed or
certified, or a home or facility that receives placement
of a dependent child of the juvenile court.
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5.Requires DSS to quarterly compare the residence and
employment address of sex offender registrants against
the addresses of these facilities and when matches are
found to take appropriate action pursuant to current law.
6.Requires DSS to notify the appropriate child welfare
agency of the match for the purpose of evaluating the
best interests of the child.
FISCAL IMPACT
The current provisions of this bill have not been analyzed
by a fiscal committee.
BACKGROUND AND DISCUSSION
According to the author, this legislation responds to a
2011 report submitted by the Bureau of State Audits
entitled, "Child Welfare Services: California Can and Must
Provide Better Protection and Support for Abused and
Neglected Children," which compared addresses registered
under the Sex Offender Registry with the addresses of
Social Services' and county's license facilities, as well
as the addresses of CWS placements.
According to the report, the audit matched more than 1,000
addresses, nearly 600 of which were deemed high risk and in
need of immediate investigation. In response to the audit,
DSS indicated they investigated all address matches and
began legal action against 8 licensees and issued 36
immediate exclusion orders. Additionally, DSS reports that
it has begun regular database comparisons on an ongoing
basis.
The author additionally highlights a 2011 U.S. Government
Accountability Office report which provided an overview of
federal and state laws addressing the employment of sex
offenders at child care facilities and examined cases where
individuals convicted of serious sexual offenses were
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employed or present at child care facilities. The report
anecdotally cited several instances where registered sex
offenders gained access to child care facilities and
through this access committed offenses against children.
Both reports note an absence of legal ramifications for
registrants who improperly reside, work, or are present at
facilities and for a licensee who fails to prevent it. In
its response to the BSA report, DSS stated that existing
laws already prohibit a registered sex offender from
residing or working in licensed facilities or foster homes
and that any person in contact with residents must be
fingerprint cleared in advance. The auditor disagreed with
the departments' assertion that existing law provides a
clear prohibition against a registered sex offender
residing in community care facilities or child welfare
services placements.
According to the author, this bill addresses the issues
raised in the audit by prohibiting sex offenders from
living or working in a home or facility servicing children
under the age of 18, by requiring law enforcement officials
overseeing sex offenders to ensure that registered
addresses do not match licensed facilities or homes serving
children, requiring DSS to make license addresses
available, and requiring DSS to perform ongoing address
comparisons to ensure that registered sex offenders are not
living at a licensed facility.
Child Welfare System
DSS supervises a 58 county-administered Child Welfare
Services (CWS) system which investigated approximately
476,000 allegations of child maltreatment in 2011, which
led to nearly 30,000 children entering foster care. Of
these allegations, nearly 41,000 cases were due to reported
sexual abuse; 4,400 of which were substantiated and 4,200
were classified as "inconclusive".
As of January 1, 2012 there were 55,000 children in foster
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care placement, with approximately one in three residing in
Los Angeles County. Over the course of the 2011 year,
87,350 children were in care of California's foster care
system - the majority due to child maltreatment. Of those,
317 children were subsequent victims of substantiated child
maltreatment by their foster parents or a facility staff
member. The number of allegations of child maltreatment by
foster parents or facility staff members is unknown as is
the number of instances where child maltreatment may have
occurred by other individuals subject to criminal record
clearances within a facility.
Community Care Licensing
DSS is responsible to license, or ensure licensure for, a
variety of nonmedical residential and day care facilities
serving children, seniors and persons with disabilities
including foster family homes, foster family agencies
(which in turn certify some foster homes), small family
homes, community treatment facilities, residential
community care facilities, crisis nurseries, adult day
programs, adoption agencies, and child day care facilities.
Current licensing statute and regulations seek to protect
child safety by requiring licensees, as a condition of
licensure, to obtain criminal record clearance of all
non-exempt persons prior to their presence in a community
care facility, foster home or child care facility.
Additionally, current licensing statute requires all
non-exempt persons to undergo a criminal record clearance
prior to their presence in a facility. These provisions
are largely enforced through civil penalties, removal of
the child, or the loss of licensure.
The BSA report additionally notes that subsequent to this
and previous audit reports, that DSS has implemented
policies promoting the use of the Megan's Law database
prior o placing a child in a home. However, according to
the report, the Megan's Law database is incomplete as it
does not provide the work addresses of registered sex
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offenders, does not include all registrants, and does not
include the full addresses of more than half of all
registrants. Therefore, a cross reference of the DOJ Sex
Offender Registry is recommended in addition to standard
use of the Megan's Law site by social workers.
Comments
1.In their response to the BSA report, DSS states that
existing law prohibits registered sex offenders from
being present in facilities and foster homes, however
there is no explicit law which assigns broad criminal
liability to the registrant or to a licensee for
improperly residing or working at a CWS placement or
licensed facility.
2.The bill as drafted is inconsistent with the current
exemption process established under HSC Section 1522 and
may be more permissive in permitting exemptions for
registered sex offenders than is granted under current
law. Existing law establishes the conditions under which
DSS may grant an exemption to individuals seeking
presence in a foster home or facility who fail to pass a
criminal records check and it specifically prohibits the
granting of an exemption for certain violations
regardless of a familial relationship with the child.
Family Code permits children to be placed with a parent
or guardian despite criminal convictions, as specified,
however county child welfare agencies are prohibited from
placing a child in the home of a relative or non-relative
extended family member if convicted of an offense for
which DSS is unable to grant an exemption. This bill
would permits courts to provide an exemption to
noncustodial parents, relatives or non-relative extended
family members, as specified.
In practice, courts have deviated from the statutorily
mandated exemption process and in some instances placed
children with a noncustodial parent, a relative, or a
nonrelative extended family member if it determines that
it is in the best interest of the child. Section 3 of
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this bill reflects this practical reality rather than
existing law. This bill would place this alternative
exemption standard in statute without reference to the
existing exemption process established under HSC Section
1522. Staff recommends the author consider this issue
further in Public Safety Committee to ensure it is
consistent with Family Code statutes addressing custody
of minors as well as the existing exemption process
established under HSC Section 1522 and WIC Section 309.
3.Existing law prohibits registered sex offenders from
residing, being employed at, or being present at any
community care facility, including those serving seniors
and persons with disabilities. In particular, recent
oversight hearings held by this committee demonstrate
that vulnerable adult populations such as developmentally
disabled adults may also be at significant risk of
maltreatment. The department maintains a comprehensive
facility database which includes all licensed facilities
serving adults or children. There does not appear to be
increased workload associated with the inclusion of all
facilities serving vulnerable populations. In fact,
there could be additional workload in requiring the
department to establish a separate database excluding
facilities serving adults. Thus, staff recommends
amending the bill as follows:
Section 3003.6 is added to the Penal Code, to read:
(a) A person required to register under the Sex Offender
Registration Act (Sections 290 to 290.023, inclusive)
shall not reside, except as a client, and shall not work
or volunteer, in any of the following, unless a juvenile
court has waived the prohibition in accordance with
Section 361.35 of the Welfare and Institutions Code:
(1) A foster home or facility that serves children under
18 years of age and that is licensed by the State
Department of Social Services or a county child welfare
services agency. as a foster family home, a small family
home, a community care facility, a residential facility,
a child day care facility, a day care center, a family
day care home, or a similar home or facility.
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(2) A certified home of a foster family agency.
(3) A home or facility that receives a placement of a
child who has been, or may be, declared a dependent child
of the juvenile court pursuant to Section 300 of the
Welfare and Institutions Code.
(b) A person who violates subdivision (a) is guilty of a
misdemeanor.
Section 10613.3 is added to the Welfare and Institutions
Code, to read:
The State Department of Social Services shall provide to
each county sheriff, each chief of police of a city or a
campus of the University of California, the California
State University, or community college, and every other
person or entity that registers a person required to
register under the Sex Offender Registration Act
(Sections 290 to 290.023, inclusive, of the Penal Code)
the addresses of all of the following within the
jurisdiction of the sheriff, chief of police, or other
person or entity:
(a) Each foster home or community care facility , child
day care facility, day care center, family day care home,
or similar home or facility that serves children under 18
years of age and that is licensed by the State Department
of Social Services or a county child welfare agency.
(b) Each home certified by a foster family agency.
(c) Each home or facility whose address is not otherwise
provided under subdivision (a) or (b) that has been
approved to receive a placement of a child who has been,
or may be, declared a dependent child of the juvenile
court under Section 300.
Section 10613.4 is added to the Welfare and Institutions
Code, to read:
(a) Peace officers from the State Department of Social
Services shall, no less frequently than each calendar
quarter, compare the residence and employment addresses
of persons required to register under the Sex Offender
Registration Act (Sections 290 to 290.023, inclusive, of
the Penal Code) against the addresses of all of the
following:
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(1) Each foster home or community care facility , child
day care facility, day care center, family day care home,
or similar home or facility that serves children under 18
years of age and that is licensed by the department or a
county child welfare agency.
(2) Each home certified by a foster family agency.
(3) Each home or facility that has been approved to
receive a placement of a child who has been, or may be,
declared a dependent child of the juvenile court under
Section 300.
(b) If peace officers from the department determine that
an address specified in paragraphs (1) to (3), inclusive,
of subdivision (a) matches the residence or employment
address of a person required to register under the Sex
Offender Registration Act the department shall take
appropriate action as authorized by law to further the
purposes of Section 3003.6 of the Penal Code.
4.Staff recommends adding a provision ensuring that the
Department of Social Services is also notified of a
registration at a licensed home or facility as follows:
(d) Immediately, or as soon as practicably possible,
report in writing or by telephone, facsimile, or
electronic transmission to the county child welfare
agency and the Department of Social Services regarding
the registration of a person at a residence or place of
employment at which a child who has been, or may be,
declared a dependent of the court pursuant to Section 300
of the Welfare and Institutions Code resides. If a law
enforcement agency makes a report by telephone, the
agency shall mail, or send by facsimile or electronic
transmission, a written report within 36 hours of its
telephone report.
5.The existing DSS database available for this purpose
includes all facilities licensed by the DSS, however does
not include foster family homes or certified foster homes
which under HSC Section 1530.5 are considered "private
residences." DSS reports they are currently working with
law enforcement to develop IT solutions to enable the
sharing of information, however these solutions may not
rely on address based data. Staff recommends amending
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this bill, as follows, to ensure that it does not
conflict with the type of geographic coding solutions
that are underway in the department and provides the
Department with sufficient time to implement these
changes:
SEC. 4.
Section 10613.3 is added to the Welfare and Institutions
Code, to read:
10613.3.
The State Department of Social Services shall , no later
than January 2014 , provide to each county sheriff, each
chief of police of a city or a campus of the University
of California, the California State University, or
community college, and every other person or entity that
registers a person required to register under the Sex
Offender Registration Act (Sections 290 to 290.023,
inclusive, of the Penal Code) the addresses, or other
equivalent data, of all of the following within the
jurisdiction of the sheriff, chief of police, or other
person or entity:
6.Health and Safety Code Section 1596.86 establishes the
entities with which DSS may share information regarding
the addresses of facilities considered to be private
residences such as foster homes and child day care homes.
Staff recommends adding a section to this bill which
adds DOJ to the list of entities which DSS may share this
information as follows:
Section 1596.80 is amended to read:
1596.86.
(a) The director shall annually publish and make
available to interested persons a list or lists covering
all licensed child day care facilities, other than small
family day care homes, and the services for which each
facility has been licensed or issued a special permit.
The lists shall also specify the licensed capacity of the
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facility and whether it is licensed by the department or
by another public agency.
(b) To encourage the recruitment of small family day
care homes and protect their personal privacy, the
department shall prevent the use of lists containing
names, addresses and other identifying information of
facilities identified as small family day care homes,
except as necessary for administering the licensing
program, facilitating the placement of children in these
facilities, and providing the names and addresses to
resource and referral agencies funded by the State
Department of Education, food and nutrition programs
funded by the State Department of Education, alternative
payment programs funded by the State Department of
Education, county programs under the Greater Avenues for
Independence Act of 1985 (Article 3.2 (commencing with
Section 11320) of Chapter 2 of Part 3 of Division 9 of
the Welfare and Institutions Code), family day care
organizations, or specialized health care service plans
licensed under the Knox-Keene Health Care Service Plan
Act of 1975, as contained in Chapter 2.5 (commencing with
Section 1340), which provide employee assistance program
services that include child care referral services, or a
local law enforcement agency that registers a person
required to register pursuant to the Sex Offender
Registration Act (Sections 290 to 290.023, inclusive) .
Upon request, parents seeking local day care services may
receive the names and telephone numbers of local small
family day care providers.
(c) The department, in consultation with the Child
Development Division of the State Department of
Education, shall adopt regulations relating to the
confidentiality of information provided pursuant to
subdivision (b) on small family day care homes. These
regulations shall include procedures for updating lists
or other information on small family day care providers
to ensure referral only to licensed homes in good
standing with the department. Any person or entity
violating the regulations under this subdivision may be
denied access by the department to information on small
family day care homes and shall be reported by the
department to the appropriate funding or licensing
department.
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Prior/Related Legislation
SB 583 (Chapter 55, Statutes of 2009) - Required the
Department of Justice, when registering sex offenders, to
include a unique identifier classifying the dwelling type
of the registrant, as specified. Also required DOJ to
maintain those classifications within the database
maintained for sex offender registrations and to provide
that information to other state agencies, including the
State Department of Social Services.
AB 1240 (Chapter 653, Statutes of 2004) - Increased civil
penalties for failure to comply with licensing statutes
pertaining to criminal background clearances.
AB 488 (Chapter 745, Statutes of 2004) - Required the
Department of Justice to make specified information about
certain sex offenders available to the public via the
Internet Web site and to update that information on an
ongoing basis.
POSITIONS
Support: American Federation of State, County and
Municipal Employees
California Youth Connection
County Welfare Directors Association
First 5, Fresno County
Fresno Council on Child Abuse Prevention
Oppose: None received
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