BILL NUMBER: AB 1909 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Ammiano
FEBRUARY 22, 2012
An act to amend Sections 48852, 48853.5, 48911, 48915.5, and 48918
of the Education Code, and to amend Sections 317 and 16010 of the
Welfare and Institutions Code, relating to foster children.
LEGISLATIVE COUNSEL'S DIGEST
AB 1909, as introduced, Ammiano. Foster children: placement:
suspension and expulsion: notifications.
(1) Existing law requires every agency that places a child in a
licensed children's institution to notify the local educational
agency at the time a pupil is placed in a licensed children's
institution. Existing law also requires the notice made by the
placing agency to include any available information on immediate past
educational placements to facilitate prompt transfer of records and
appropriate educational placement.
This bill would instead require every agency that places a child
in a licensed children's institution or other out-of-home placement
to notify the educational liaison of the child's local educational
agency at the time of that placement. The bill would also require the
notice made by the placing agency to include the name and contact
information for a representative of the placing agency who can
communicate with the child's local educational agency about
educational matters, the person holding the right to make educational
decisions for the child, and the child's attorney. By imposing
additional duties on a placing agency, the bill would impose a
state-mandated local program.
(2) Existing law requires each local educational agency to
designate a staff person as the educational liaison for foster
children, as defined. Existing law requires the educational liaison
to ensure and facilitate the proper educational placement, enrollment
in school, and checkout from school of foster children, and to
assist foster children when transferring from one school to another
school or from one school district to another school district in
ensuring the proper transfer of credit, records, and grades.
This bill would require the educational liaison, if designated by
the superintendent of the local educational agency, to notify the
foster child's attorney, the person holding the right to make
educational decisions for the foster child, and the appropriate
representative of the county child welfare agency of pending
expulsion proceedings, pending proceedings to extend a suspension
until an expulsion decision is rendered, or pending manifestation
determinations.
(3) Existing law authorizes the district superintendent of schools
or other person designated by the district superintendent of schools
in writing to extend the suspension of a pupil until the governing
board of the school district has rendered a decision in a case where
expulsion from any school or suspension from the balance of the
semester from continuation school is being processed by the governing
board of the school district. Existing law requires that before such
an extension is granted that the district superintendent of schools
or the district superintendent's designee determine, following a
meeting in which the pupil and the pupil's parent or guardian are
invited to participate, that the presence of the pupil at the school
or in an alternative school placement would cause a danger to persons
or property or a threat of disrupting the instructional process.
This bill would require, if the pupil is a foster child, as
defined, that the district superintendent of schools or the district
superintendent's designee invite the pupil's attorney, the person
holding the right to make educational decisions for the pupil, and
the appropriate representative of the county child welfare agency to
that meeting.
(4) Existing law authorizes the suspension or expulsion of an
individual with exceptional needs in accordance with specified
provisions.
This bill would require, if the individual with exceptional needs
is a foster child, as defined, that the attorney for the individual
with exceptional needs, the person holding the right to make
educational decisions for the individual with exceptional needs, and
the appropriate representative of the county child welfare agency be
invited to participate in the individualized education program team
meeting that makes a manifestation determination.
(5) Existing law requires the governing board of a school district
to establish rules and regulations governing procedures for the
expulsion of pupils. Existing law requires these procedures to
include, but not necessarily be limited to, a hearing to determine
whether the pupil should be expelled, and a written notice of the
hearing forwarded to the pupil at least 10 calendar days prior to the
date of the hearing.
This bill would require, if the pupil is a foster child, as
defined, that notice of the hearing also be provided to the pupil's
attorney, the person holding the right to make educational decisions
for the pupil, and the appropriate representative of the county child
welfare agency. By requiring school districts to provide additional
notices, the bill would impose a state-mandated local program.
(6) Existing law requires a juvenile court to hold a detention
hearing to determine whether a minor should be further detained when
a minor has been taken into custody pursuant to specified provisions.
Existing law also requires a court to appoint counsel for the child
if the child is not represented by counsel, unless the court finds
that the child would not benefit from the appointment of counsel.
Existing law requires counsel appointed for the child to be charged
in general with the representation of the child's interests.
This bill would require that counsel appointed for the child
provide his or her contact information to the educational liaison of
the child's local educational agency, if, for a child 12 years of age
or older, the child consents to the disclosure, or, if, for a child
under 12 years of age, counsel determines the disclosure is in the
child's best interest.
(7) Existing law requires, when a child is placed in foster care,
that the case plan for each child include a summary of the health and
education information or records of the child. Existing law requires
that the health and education summary include, but not be limited
to, among other things, the names and addresses of the child's
health, dental, and education providers.
This bill would require that the health and education summary also
include the name and address of the educational liaison of the child'
s local educational agency. By requiring the child protective agency
to include additional information in the health and education
summary, the bill would impose a state-mandated local program.
(8) This bill would also make various nonsubstantive changes to
the above provisions.
(9) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 48852 of the Education Code is amended to read:
48852. Every An agency that places
a child in a licensed children's institution or other
out-of-home placement shall notify the educational liaison
of the child's local educational agency at the time a
the pupil is placed in a licensed children's
institution or other out-of-home placement . As part of
that notification, the placing agency shall provide any available
information on immediate past educational placements to facilitate
prompt transfer of records and appropriate educational placement
, and the name and contact information for a representative of the
placing agency who can communicate with the child's local educational
agency about educational matters, the person holding the right to
make educational decisions for the child, and the child's attorney
. Nothing in this section shall be construed to prohibit prompt
educational placement prior to before
notification.
SEC. 2. Section 48853.5 of the Education Code is amended to read:
48853.5. (a) This section applies to a child who has been removed
from his or her home pursuant to Section 309 of the Welfare and
Institutions Code, is the subject of a petition filed under Section
300 or 602 of the Welfare and Institutions Code, or has been removed
from his or her home and is the subject of a petition filed under
Section 300 or 602 of the Welfare and Institutions Code (hereafter
"foster child").
(b) Each local educational agency shall designate a staff person
as the educational liaison for foster children. In a school district
that operates a foster children services program pursuant to Chapter
11.3 (commencing with Section 42920) of Part 24, the educational
liaison shall be affiliated with the local foster children services
program. The educational liaison shall do all of the
following:
(1) Ensure and facilitate the proper educational placement,
enrollment in school, and checkout from school of foster children.
(2) Assist foster children when transferring from one school to
another school or from one school district to another
school district in ensuring proper transfer of credits,
records, and grades.
(c) If so designated by the superintendent of the local
educational agency, the educational liaison shall notify a foster
child's attorney, the person holding the right to make educational
decisions for the foster child, and the appropriate representative of
the county child welfare agency, of pending expulsion proceedings,
pending proceedings to extend a suspension until an expulsion
decision is rendered, or, if the foster child is an individual with
exceptional needs, pending manifestation determinations pursuant to
Section 1415(k) of Title 20 of the United States Code.
(c)
(d) This section does not grant authority to the
educational liaison that supersedes the authority granted under state
and federal law to a parent or guardian retaining educational
rights, a responsible adult appointed by the court to represent the
child pursuant to Section 361 or 726 of the Welfare and Institutions
Code, a surrogate parent, or a foster parent exercising the authority
granted under Section 56055. The role of the educational liaison is
advisory with respect to placement decisions and determination of
school of origin.
(d)
(e) (1) At the initial detention or placement, or any
subsequent change in placement of a foster child, the local
educational agency serving the foster child shall allow the foster
child to continue his or her education in the school of origin for
the duration of the jurisdiction of the court.
(2) If the jurisdiction of the court is terminated prior
to before the end of an academic year, the
foster child shall be allowed to continue his or her education in the
school of origin through the duration of the academic school year.
(3) To ensure that the foster child has the benefit of
matriculating with his or her peers in accordance with the
established feeder patterns of school districts, if the foster child
is transitioning between school grade levels, the local educational
agency shall allow the foster child to continue in the school
district of origin in the same attendance area, or, if the foster
child is transitioning to a middle school or high school, and the
school designated for matriculation is in another school district, to
the school designated for matriculation in that school district.
(4) Paragraphs (2) and (3) shall not be construed to require a
school district to provide transportation services to allow a foster
child to attend a school or school district, unless otherwise
required under federal law, nor shall this paragraph be construed to
prohibit a school district from, at its discretion, providing
transportation services to allow a foster child to attend a school or
school district.
(5) The educational liaison, in consultation with and
with the agreement of the foster child and the person holding the
right to make educational decisions for the foster child, may, in
accordance with the foster child's best interests, recommend that the
foster child's right to attend the school of origin be waived and
the foster child be enrolled in any a
public school that pupils living in the attendance area in which the
foster child resides are eligible to attend.
(6) Prior to Before making
any a recommendation to move a foster child from
his or her school of origin, the educational liaison
shall provide the foster child and the person holding the right to
make educational decisions for the foster child with a written
explanation stating the basis for the recommendation and how this
recommendation serves the foster child's best interest.
(7) (A) If the educational liaison in consultation with
the foster child and the person holding the right to make
educational decisions for the foster child agree that the best
interests of the foster child would best be served by his or her
transfer to a school other than the school of origin, the foster
child shall immediately be enrolled in the new school.
(B) The new school shall immediately enroll the foster child even
if the foster child has outstanding fees, fines, textbooks, or other
items or moneys due to the school last attended or is unable to
produce clothing or records normally required for enrollment, such as
previous academic records, medical records, including, but not
limited to, records or other proof of immunization history pursuant
to Chapter 1 (commencing with Section 120325) of Part 2 of Division
105 of the Health and Safety Code, proof of residency, other
documentation, or school uniforms.
(C) The educational liaison for the new school shall,
within two business days of the foster child's request for
enrollment, contact the school last attended by the foster child to
obtain all academic and other records. All required records shall be
provided to the new school regardless of any outstanding fees, fines,
textbooks, or other items or moneys owed to the school last
attended. The school educational
liaison for the school last attended shall provide all records to the
new school within two business days of receiving the request.
(8) If a dispute arises regarding the request of a foster child to
remain in the school of origin, the foster child has the right to
remain in the school of origin pending resolution of the dispute. The
dispute shall be resolved in accordance with the existing dispute
resolution process available to any a
pupil served by the local educational agency.
(9) The local educational agency and the county placing agency are
encouraged to collaborate to ensure maximum utilization of available
federal moneys, explore public-private partnerships, and access any
other funding sources to promote the well-being of foster children
through educational stability.
(10) It is the intent of the Legislature that this subdivision
shall not supersede or exceed other laws governing special education
services for eligible foster children.
(e)
(f) For purposes of this section, "school of origin"
means the school that the foster child attended when permanently
housed or the school in which the foster child was last enrolled. If
the school the foster child attended when permanently housed is
different from the school in which the foster child was last
enrolled, or if there is some other school that the foster child
attended with which the foster child is connected and that the foster
child attended within the immediately preceding 15 months, the
educational liaison, in consultation with and with the
agreement of the foster child and the person holding the right to
make educational decisions for the foster child, shall determine, in
the best interests of the foster child, the school that shall be
deemed the school of origin.
(f)
(g) This section does not supersede other law governing
the educational placements in juvenile court schools, as described
in Section 48645.1, by the juvenile court under Section 602 of the
Welfare and Institutions Code.
SEC. 3. Section 48911 of the Education Code is amended to read:
48911. (a) The principal of the school, the principal's designee,
or the district superintendent of schools may suspend a
pupil from the school for any of the reasons enumerated in Section
48900, and pursuant to Section 48900.5, for no more than five
consecutive schooldays.
(b) Suspension by the principal, the principal's designee, or the
district superintendent of schools shall be preceded by an
informal conference conducted by the principal or the principal's
designee or the district superintendent of schools between
the pupil and, whenever practicable, the teacher, supervisor, or
school employee who referred the pupil to the principal, the
principal's designee, or the district superintendent of
schools. At the conference, the pupil shall be informed of the reason
for the disciplinary action and the evidence against him or her and
shall be given the opportunity to present his or her version and
evidence in his or her defense.
(c) A principal, the principal's designee, or the district
superintendent of schools may suspend a pupil without affording
the pupil an opportunity for a conference only if the principal, the
principal's designee, or the district superintendent of
schools determines that an emergency situation exists. "Emergency
situation," as used in this article, means a situation determined by
the principal, the principal's designee, or the district
superintendent of schools to constitute a clear and present danger to
the life, safety, or health of pupils or school personnel. If a
pupil is suspended without a conference prior to
before suspension, both the parent and the pupil shall be
notified of the pupil's right to a conference and the pupil's right
to return to school for the purpose of a conference. The conference
shall be held within two schooldays, unless the pupil waives this
right or is physically unable to attend for any reason, including,
but not limited to, incarceration or hospitalization. The conference
shall then be held as soon as the pupil is physically able to return
to school for the conference.
(d) At the time of suspension, a school employee shall make a
reasonable effort to contact the pupil's parent or guardian in person
or by telephone. Whenever a pupil is suspended from school, the
parent or guardian shall be notified in writing of the suspension.
(e) A school employee shall report the suspension of the pupil,
including the cause therefor for the
suspension , to the governing board of the school district or
to the school district superintendent of
schools in accordance with the regulations of the governing
board of the school district .
(f) The parent or guardian of any a
pupil shall respond without delay to any a
request from school officials to attend a conference regarding
his or her child's behavior.
No penalties may be imposed on a pupil for failure of the pupil's
parent or guardian to attend a conference with school officials.
Reinstatement of the suspended pupil shall not be contingent upon
attendance by the pupil's parent or guardian at the conference.
(g) In a case where expulsion from any a
school or suspension for the balance of the semester from
continuation school is being processed by the governing board of
the school district , the school district
superintendent of schools or other person designated by
the district superintendent of schools in
writing may extend the suspension until the governing board of
the school district has rendered a decision in the action.
However, an extension may be granted only if the school
district superintendent of schools or the
district superintendent's designee has determined, following a
meeting in which the pupil and the pupil's parent or guardian are
invited to participate, that the presence of the pupil at the school
or in an alternative school placement would cause a danger to persons
or property or a threat of disrupting the instructional process.
If the pupil is a foster child, as defined in Section 48853.5,
the district superintendent of schools or the district
superintendent's designee, including, but not limited to, the
educational liaison for the school district, shall also invite the
pupil's attorney, the person holding the right to make educational
decisions for the pupil, and an appropriate representative of the
county child welfare agency to participate in the meeting. If
the pupil or the pupil's parent or guardian has requested a meeting
to challenge the original suspension pursuant to Section 48914, the
purpose of the meeting shall be to decide upon the extension of the
suspension order under this section and may be held in conjunction
with the initial meeting on the merits of the suspension.
(h) For the purposes of this section, a
"principal's designee" is any one or more
administrators at the schoolsite specifically designated by the
principal, in writing, to assist with disciplinary procedures.
In the event that there is not an administrator in addition to the
principal at the schoolsite, a certificated person at the schoolsite
may be specifically designated by the principal, in writing, as a
"principal's designee," to assist with disciplinary procedures. The
principal may designate only one person at a time as the principal's
primary designee for the school year.
An additional person meeting the requirements of this subdivision
may be designated by the principal, in writing, to act for the
purposes of this article when both the principal and the principal's
primary designee are absent from the schoolsite. The name of the
person, and the names of any person or persons designated as
"principal's designee," shall be on file in the principal's office.
This section is not an exception to, nor does it place any
limitation on, Section 48903.
SEC. 4. Section 48915.5 of the Education Code is amended to read:
48915.5. (a) An individual with exceptional needs, as defined in
Section 56026, may be suspended or expelled from school in accordance
with Section 1415(k) of Title 20 of the United States Code, the
discipline provisions contained in Sections 300.530 to 300.537,
inclusive, of Title 34 of the Code of Federal Regulations, and other
provisions of this part that do not conflict with federal law and
regulations.
(b) A free appropriate public education for individuals with
exceptional needs suspended or expelled from school shall be in
accordance with Section 1412(a)(1) of Title 20 of the United States
Code and Section 300.530(d) of Title 34 of the Code of Federal
Regulations.
(c) If an individual with exceptional needs is excluded from
schoolbus transportation, the pupil is entitled to be provided with
an alternative form of transportation at no cost to the pupil or
parent or guardian provided that transportation is specified in the
pupil's individualized education program.
(d) If the individual with exceptional needs is a foster child, as
defined in Section 48853.5, the attorney for the individual with
exceptional needs, the person holding the right to make educational
decisions for the individual with exceptional needs, and an
appropriate representative of the county child welfare agency shall
be invited to participate in the individualized education program
team meeting that makes a manifestation determination pursuant to
Section 1415(k) of Title 20 of the United States Code.
SEC. 5. Section 48918 of the Education Code is amended to read:
48918. The governing board of each a
school district shall establish rules and regulations governing
procedures for the expulsion of pupils. These procedures shall
include, but are not necessarily limited to, all of the following:
(a) The pupil shall be entitled to a hearing to determine whether
the pupil should be expelled. An expulsion hearing shall be held
within 30 schooldays after the date the principal or the
district superintendent of schools determines that the pupil
has committed any of the acts enumerated in Section 48900, unless the
pupil requests, in writing, that the hearing be postponed. The
adopted rules and regulations shall specify that the pupil is
entitled to at least one postponement of an expulsion hearing, for a
period of not more than 30 calendar days. Any additional postponement
may be granted at the discretion of the governing board of the
school district .
Within 10 schooldays after the conclusion of the hearing, the
governing board of the school district shall decide
whether to expel the pupil, unless the pupil requests in writing that
the decision be postponed. If the hearing is held by a hearing
officer or an administrative panel, or if the district
governing board of the school district does not
meet on a weekly basis, the governing board of the school
district shall decide whether to expel the pupil within 40
schooldays after the date of the pupil's removal from his or her
school of attendance for the incident for which the recommendation
for expulsion is made by the principal or the district
superintendent of schools , unless the pupil requests in
writing that the decision be postponed.
If compliance by the governing board of the school district
with the time requirements for the conducting of an expulsion
hearing under this subdivision is impracticable during the regular
school year, the district superintendent of schools or the
district superintendent's designee may, for good cause,
extend the time period for the holding of the expulsion hearing for
an additional five schooldays. If compliance by the governing board
of the school district with the time requirements for the
conducting of an expulsion hearing under this subdivision is
impractical due to a summer recess of governing board
meetings of the governing board of the school district
of more than two weeks, the days during the recess period
shall not be counted as schooldays in meeting the time requirements.
The days not counted as schooldays in meeting the time requirements
for an expulsion hearing because of a summer recess of
governing board meetings of the governing boar
d of the school district shall not exceed 20 schooldays,
as defined in subdivision (c) of Section 48925, and unless the pupil
requests in writing that the expulsion hearing be postponed, the
hearing shall be held not later than 20 calendar days prior
to before the first day of school for the school
year. Reasons for the extension of the time for the hearing shall be
included as a part of the record at the time the expulsion hearing
is conducted. Upon the commencement of the hearing, all matters shall
be pursued and conducted with reasonable diligence and shall be
concluded without any unnecessary delay.
(b) Written notice of the hearing shall be forwarded to the pupil
at least 10 calendar days prior to before
the date of the hearing. If the pupil is a foster child,
as defined in Section 48853.5, notice of the hearing shall
also be provided to the pupil's attorney, the person holding the
right to make educational decisions for the foster child, and an
appropriate representative of the county child welfare agency, at
least 10 calendar days before the date of the hearing. The
notice shall include all of the following:
(1) The date and place of the hearing.
(2) A statement of the specific facts and charges upon which the
proposed expulsion is based.
(3) A copy of the disciplinary rules of the school
district that relate to the alleged violation.
(4) A notice of the parent, guardian, or pupil's obligation
pursuant to subdivision (b) of Section 48915.1.
(5) Notice of the opportunity for the pupil or the pupil's parent
or guardian to appear in person or to be represented by legal counsel
or by a nonattorney adviser, to inspect and obtain copies of all
documents to be used at the hearing, to confront and question all
witnesses who testify at the hearing, to question all other evidence
presented, and to present oral and documentary evidence on the pupil'
s behalf, including witnesses. In a hearing in which a pupil is
alleged to have committed or attempted to commit a sexual assault as
specified in subdivision (n) of Section 48900 or committing a sexual
battery as defined in subdivision (n) of Section 48900, a complaining
witness shall be given five days' notice before being called to
testify, and shall be entitled to have up to two adult support
persons, including, but not limited to, a parent, guardian, or legal
counsel, present during their testimony. Before a complaining witness
testifies, support persons shall be admonished that the hearing is
confidential. Nothing in this subdivision shall preclude the person
presiding over an expulsion hearing from removing a support person
whom the presiding person finds is disrupting the hearing. If one or
both of the support persons is also a witness, the provisions of
Section 868.5 of the Penal Code shall be followed for the hearing.
This section does not require a pupil or the pupil's parent or
guardian to be represented by legal counsel or by a nonattorney
adviser at the hearing.
(A) For purposes of this section, "legal counsel" means an
attorney or lawyer who is admitted to the practice of law in
California and is an active member of the State Bar of California.
(B) For purposes of this section, "nonattorney advisor" means an
individual who is not an attorney or lawyer, but who is familiar with
the facts of the case, and has been selected by the pupil or pupil's
parent or guardian to provide assistance at the hearing.
(c) Notwithstanding Section 54593 54953
of the Government Code and Section 35145, the governing board
of the school district shall conduct a hearing to consider
the expulsion of a pupil in a session closed to the public, unless
the pupil requests, in writing, at least five days before the date of
the hearing, that the hearing be conducted at a public meeting.
Regardless of whether the expulsion hearing is conducted in a closed
or public session, the governing board of the school district
may meet in closed session for the purpose of deliberating and
determining whether the pupil should be expelled.
If the governing board of the school district or the
hearing officer or administrative panel appointed under subdivision
(d) to conduct the hearing admits any other person to a closed
deliberation session, the parent or guardian of the pupil, the pupil,
and the counsel of the pupil also shall be allowed to attend the
closed deliberations.
If the hearing is to be conducted at a public meeting, and there
is a charge of committing or attempting to commit a sexual assault as
defined in subdivision (n) of Section 48900 or committing a sexual
battery as defined in subdivision (n) of Section 48900, a complaining
witness shall have the right to have his or her testimony heard in a
session closed to the public when testifying at a public meeting
would threaten serious psychological harm to the complaining witness
and there are no alternative procedures to avoid the threatened harm,
including, but not limited to, videotaped deposition or
contemporaneous examination in another place communicated to the
hearing room by means of closed-circuit television.
(d) Instead of conducting an expulsion hearing itself, the
governing board of a school district may contract with the
county hearing officer, or with the Office of Administrative
Hearings of the State of California pursuant to Chapter 14
(commencing with Section 27720) of Part 3 of Division 2 of Title 3 of
the Government Code and Section 35207, for a hearing officer to
conduct the hearing. The governing board of a school district
may also appoint an impartial administrative panel of three or
more certificated persons, none of whom is a member of the
governing board of the school district or employed
on the staff of the school in which the pupil is enrolled. The
hearing shall be conducted in accordance with all of the procedures
established under this section.
(e) Within three schooldays after the hearing, the hearing officer
or administrative panel shall determine whether to recommend the
expulsion of the pupil to the governing board of the school
district . If the hearing officer or administrative panel
decides not to recommend expulsion, the expulsion proceedings shall
be terminated and the pupil immediately shall be reinstated and
permitted to return to a classroom instructional program, any other
instructional program, a rehabilitation program, or any combination
of these programs. Placement in one or more of these programs shall
be made by the district superintendent of schools or the
district superintendent's designee after consultation with
school district personnel, including the pupil's teachers, and the
pupil's parent or guardian. The decision not to recommend expulsion
shall be final.
(f) If the hearing officer or administrative panel recommends
expulsion, findings of fact in support of the recommendation shall be
prepared and submitted to the governing board of the school
district . All findings of fact and recommendations
shall be based solely on the
evidence adduced at the hearing. If the governing board of the
school district accepts the recommendation calling for
expulsion, acceptance shall be based either upon a review of the
findings of fact and recommendations submitted by the hearing officer
or panel or upon the results of any supplementary hearing conducted
pursuant to this section that the governing board of the school
district may order.
The decision of the governing board of a school district
to expel a pupil shall be based upon substantial evidence
relevant to the charges adduced at the expulsion hearing or hearings.
Except as provided in this section, no evidence to expel shall be
based solely upon hearsay evidence. The governing board of the
school district or the hearing officer or administrative panel
may, upon a finding that good cause exists, determine that the
disclosure of either the identity of a witness or the testimony of
that witness at the hearing, or both, would subject the witness to an
unreasonable risk of psychological or physical harm. Upon this
determination, the testimony of the witness may be presented at the
hearing in the form of sworn declarations which shall be examined
only by the governing board of the school district or the
hearing officer or administrative panel. Copies of these sworn
declarations, edited to delete the name and identity of the witness,
shall be made available to the pupil.
(g) A record of the hearing shall be made. The record may be
maintained by any means, including electronic recording, so long as a
reasonably accurate and complete written transcription of the
proceedings can be made.
(h) Technical rules of evidence shall not apply to the hearing,
but relevant evidence may be admitted and given probative effect only
if it is the kind of evidence upon which reasonable persons are
accustomed to rely in the conduct of serious affairs. A decision of
the governing board of the school district to expel shall
be supported by substantial evidence showing that the pupil committed
any of the acts enumerated in Section 48900.
In hearings which that include an
allegation of committing or attempting to commit a sexual assault as
defined in subdivision (n) of Section 48900 or committing a sexual
battery as defined in subdivision (n) of Section 48900, evidence of
specific instances, of a complaining witness' prior sexual conduct is
to be presumed inadmissible and shall not be heard absent a
determination by the person conducting the hearing that extraordinary
circumstances exist requiring the evidence be heard. Before the
person conducting the hearing makes the determination on whether
extraordinary circumstances exist requiring that specific instances
of a complaining witness' prior sexual conduct be heard, the
complaining witness shall be provided notice and an opportunity to
present opposition to the introduction of the evidence. In the
hearing on the admissibility of the evidence, the complaining witness
shall be entitled to be represented by a parent, guardian, legal
counsel, or other support person. Reputation or opinion evidence
regarding the sexual behavior of the complaining witness is not
admissible for any purpose.
(i) (1) Before the hearing has commenced, the governing board
of the school district may issue subpoenas at the request of
either the district superintendent of schools or the
district superintendent's designee or the pupil, for the
personal appearance of percipient witnesses at the hearing. After the
hearing has commenced, the governing board of the school
district or the hearing officer or administrative panel may,
upon request of either the county superintendent of schools or the
superintendent's designee or the pupil, issue subpoenas. All
subpoenas shall be issued in accordance with Sections 1985, 1985.1,
and 1985.2 of the Code of Civil Procedure. Enforcement of subpoenas
shall be done in accordance with Section 11455.20 of the Government
Code.
(2) Any An objection raised by the
district superintendent of schools or the district
superintendent's designee or the pupil to the issuance of
subpoenas may be considered by the governing board of the school
district in closed session, or in open session, if so
requested by the pupil before the meeting. Any
A decision by the governing board of the school
district in response to an objection to the issuance of
subpoenas shall be final and binding.
(3) If the governing board of the school district
, hearing officer, or administrative panel determines, in
accordance with subdivision (f), that a percipient witness would be
subject to an unreasonable risk of harm by testifying at the hearing,
a subpoena shall not be issued to compel the personal attendance of
that witness at the hearing. However, that witness may be compelled
to testify by means of a sworn declaration as provided for in
subdivision (f).
(4) Service of process shall be extended to all parts of the state
and shall be served in accordance with Section 1987 of the Code of
Civil Procedure. All witnesses appearing pursuant to subpoena, other
than the parties or officers or employees of the state or any
political subdivision thereof, shall receive fees, and all witnesses
appearing pursuant to subpoena, except the parties, shall receive
mileage in the same amount and under the same circumstances as
prescribed for witnesses in civil actions in a superior court. Fees
and mileage shall be paid by the party at whose request the witness
is subpoenaed.
(j) Whether an expulsion hearing is conducted by the governing
board of a school district or before a hearing officer or
administrative panel, final action to expel a pupil shall be taken
only by the governing board of a school district in a
public session. Written notice of any a
decision to expel or to suspend the enforcement of an expulsion
order during a period of probation shall be sent by the district
superintendent of schools or his or her designee to the pupil
or the pupil's parent or guardian and shall be accompanied by all of
the following:
(1) Notice of the right to appeal the expulsion to the county
board of education.
(2) Notice of the education alternative placement to be provided
to the pupil during the time of expulsion.
(3) Notice of the obligation of the parent, guardian, or pupil
under subdivision (b) of Section 48915.1, upon the pupil's enrollment
in a new school district, to inform that school district
of the pupil's expulsion.
(k) The governing board of the school district shall
maintain a record of each expulsion, including the cause
therefor causes for the expulsion . Records of
expulsions shall be a nonprivileged, disclosable public record.
The expulsion order and the causes therefor
for the expulsion shall be recorded in the pupil's
mandatory interim record and shall be forwarded to any
a school in which the pupil subsequently enrolls
upon receipt of a request from the admitting school for the pupil's
school records.
SEC. 6. Section 317 of the Welfare and Institutions Code is
amended to read:
317. (a) (1) When it appears to the court that a parent or
guardian of the child desires counsel but is presently financially
unable to afford and cannot for that reason employ counsel, the court
may appoint counsel as provided in this section.
(2) When it appears to the court that a parent or Indian custodian
in an Indian child custody proceeding desires counsel but is
presently unable to afford and cannot for that reason employ counsel,
the provisions of subsection (b) of Section 1912 of the
federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.)
Section 1912(b) of Title 25 of the United
States Code and Section 23.13 of Title 25 of the Code of
Federal Regulations are applicable.
(b) When it appears to the court that a parent or guardian of the
child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home
care, or the petitioning agency is recommending that the child be
placed in out-of-home care, the court shall appoint counsel for the
parent or guardian, unless the court finds that the parent or
guardian has made a knowing and intelligent waiver of counsel as
provided in this section.
(c) If a child is not represented by counsel, the court shall
appoint counsel for the child, unless the court finds that the child
would not benefit from the appointment of counsel. The court shall
state on the record its reasons for that finding. A primary
responsibility of counsel appointed to represent a child pursuant to
this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child. Counsel may be a
district attorney, public defender, or other member of the bar,
provided that he or she does not represent another party or county
agency whose interests conflict with the child's interests. The fact
that the district attorney represents the child in a proceeding
pursuant to Section 300 as well as conducts a criminal investigation
or files a criminal complaint or information arising from the same or
reasonably related set of facts as the proceeding pursuant to
Section 300 is not in and of itself a conflict of interest. The court
may fix the compensation for the services of appointed counsel. The
appointed counsel shall have a caseload and training that ensures
adequate representation of the child. The Judicial Council shall
promulgate rules of court that establish caseload standards, training
requirements, and guidelines for appointed counsel for children and
shall adopt rules as required by Section 326.5 no later than July 1,
2001.
(d) Counsel shall represent the parent, guardian, or child at the
detention hearing and at all subsequent proceedings before the
juvenile court. Counsel shall continue to represent the parent,
guardian, or child unless relieved by the court upon the substitution
of other counsel or for cause. The representation shall include
representing the parent, guardian, or the child in termination
proceedings and in those proceedings relating to the institution or
setting aside of a legal guardianship. On and after January 1, 2012,
in the case of a nonminor dependent, as described in subdivision (v)
of Section 11400, no representation by counsel shall be provided for
a parent.
(e) (1) Counsel shall be charged in general with the
representation of the child's interests. To that end, counsel shall
make or cause to have made any further investigations that he or she
deems in good faith to be reasonably necessary to ascertain the
facts, including the interviewing of witnesses, and shall examine and
cross-examine witnesses in both the adjudicatory and dispositional
hearings. Counsel may also introduce and examine his or her own
witnesses, make recommendations to the court concerning the child's
welfare, and participate further in the proceedings to the degree
necessary to adequately represent the child.
(2) If the child is four years of age or older, counsel shall
interview the child to determine the child's wishes and assess the
child's well-being, and shall advise the court of the child's wishes.
Counsel shall not advocate for the return of the child if, to the
best of his or her knowledge, return of the child conflicts with the
protection and safety of the child.
(3) Counsel shall investigate the interests of the child beyond
the scope of the juvenile proceeding, and report to the court other
interests of the child that may need to be protected by the
institution of other administrative or judicial proceedings.
Counsel shall provide his or her contact information to the
educational liaison, as described in subdivision (b) of Section
48853.5 of the Education Code, of the child's local educational
agency if, for a child 12 years of age or older, the child consents
to the disclosure, or, for a child under 12 years of age, counsel
determines that the disclosure is in the child's best interest.
Counsel representing a child in a dependency proceeding is not
required to assume the responsibilities of a social worker, and is
not expected to provide nonlegal services to the child.
(4) Counsel for the child and counsel's agent may, but are not
required to, disclose to an individual who is being assessed for the
possibility of placement pursuant to Section 361.3 the fact that the
child is in custody, the alleged reasons that the child is in
custody, and the projected likely date for the child's return home,
placement for adoption, or legal guardianship. Nothing in this
paragraph shall be construed to prohibit counsel from making other
disclosures pursuant to this subdivision, as appropriate.
(5) Nothing in this subdivision shall be construed to permit
counsel to violate a child's attorney-client privilege.
(6) The changes made to this subdivision during the 2011-12
Regular Session of the Legislature by the act adding paragraphs (4)
and (5) are declaratory of existing law.
(7) The court shall take whatever appropriate action is necessary
to fully protect the interests of the child.
(f) Either the child or counsel for the child, with the informed
consent of the child if the child is found by the court to be of
sufficient age and maturity to consent, which shall be presumed,
subject to rebuttal by clear and convincing evidence, if the child is
over 12 years of age, may invoke the psychotherapist-client
privilege, physician-patient privilege, and clergyman-penitent
privilege. If the child invokes the privilege, counsel may not waive
it, but if counsel invokes the privilege, the child may waive it.
Counsel shall be the holder of these privileges if the child is found
by the court not to be of sufficient age and maturity to consent.
For the sole purpose of fulfilling his or her obligation to provide
legal representation of the child, counsel shall have access to all
records with regard to the child maintained by a health care
facility, as defined in Section 1545 of the Penal Code, health care
providers, as defined in Section 6146 of the Business and Professions
Code, a physician and surgeon or other health practitioner, as
defined in former Section 11165.8 of the Penal Code, as that section
read on January 1, 2000, or a child care custodian, as defined in
former Section 11165.7 of the Penal Code, as that section read on
January 1, 2000. Notwithstanding any other law, counsel shall be
given access to all records relevant to the case that are maintained
by state or local public agencies. All information requested from a
child protective agency regarding a child who is in protective
custody, or from a child's guardian ad litem, shall be provided to
the child's counsel within 30 days of the request.
(g) In a county of the third class, if counsel is to be provided
to a child at the county's expense other than by counsel for the
agency, the court shall first utilize the services of the public
defender prior to appointing private counsel. Nothing in this
subdivision shall be construed to require the appointment of the
public defender in any case in which the public defender has a
conflict of interest. In the interest of justice, a court may depart
from that portion of the procedure requiring appointment of the
public defender after making a finding of good cause and stating the
reasons therefor on the record.
(h) In a county of the third class, if counsel is to be appointed
to provide legal counsel for a parent or guardian at the county's
expense, the court shall first utilize the services of the alternate
public defender prior to appointing private counsel. Nothing in this
subdivision shall be construed to require the appointment of the
alternate public defender in any case in which the public defender
has a conflict of interest. In the interest of justice, a court may
depart from that portion of the procedure requiring appointment of
the alternate public defender after making a finding of good cause
and stating the reasons therefor on the record.
SEC. 7. Section 16010 of the Welfare and Institutions Code is
amended to read:
16010. (a) When a child is placed in foster care, the case plan
for each child recommended pursuant to Section 358.1 shall include a
summary of the health and education information or records, including
mental health information or records, of the child. The summary may
be maintained in the form of a health and education passport, or a
comparable format designed by the child protective agency. The health
and education summary shall include, but not be limited to, the
names and addresses of the child's health, dental, and education
providers , and the educational liaison, as
described in subdivision (b) of Section 48853.5 of the Education
Code, of the child's local educational agency, the
child's grade level performance, the child's school record,
assurances that the child's placement in foster care takes into
account proximity to the school in which the child is enrolled at the
time of placement, the number of school transfers the child has
already experienced, the child's educational progress, as
demonstrated by factors, including, but not limited to, academic
proficiency scores, credits earned toward graduation, a record of the
child's immunizations and allergies, the child's known medical
problems, the child's current medications, past health problems and
hospitalizations, a record of the child's relevant mental health
history, the child's known mental health condition and medications,
and any other relevant mental health, dental, health, and education
information concerning the child determined to be appropriate by the
Director of Social Services. If any other law imposes more stringent
information requirements, then that section shall prevail.
(b) Additionally, a court report or assessment required pursuant
to subdivision (g) of Section 361.5, Section 366.1, subdivision (d)
of Section 366.21, or subdivision (b) (c)
of Section 366.22 shall include a copy of the current health
and education summary described in subdivision (a).
(c) As soon as possible, but not later than 30 days after initial
placement of a child into foster care, the child protective agency
shall provide the caretaker with the child's current health and
education summary as described in subdivision (a). For each
subsequent placement, the child protective agency shall provide the
caretaker with a current summary as described in subdivision (a)
within 48 hours of the placement.
(d) (1) Notwithstanding Section 827 or any other law, the child
protective agency may disclose any information described in this
section to a prospective caretaker or caretakers prior to placement
of a child if all of the following requirements are met:
(A) The child protective agency intends to place the child with
the prospective caretaker or caretakers.
(B) The prospective caretaker or caretakers are willing to become
the adoptive parent or parents of the child.
(C) The prospective caretaker or caretakers have an approved
adoption assessment or home study, a foster family home license,
certification by a licensed foster family agency, or approval
pursuant to the requirements in Sections 361.3 and 361.4.
(2) In addition to the information required to be provided under
this section, the child protective agency may disclose to the
prospective caretaker specified in paragraph (1), placement history
or underlying source documents that are provided to adoptive parents
pursuant to subdivisions (a) and (b) of Section 8706 of the Family
Code.
(e) The child's caretaker shall be responsible for obtaining and
maintaining accurate and thorough information from physicians and
educators for the child's summary as described in subdivision (a)
during the time that the child is in the care of the caretaker. On
each required visit, the child protective agency or its designee
family foster agency shall inquire of the caretaker whether there is
any new information that should be added to the child's summary as
described in subdivision (a). The child protective agency shall
update the summary with the information as appropriate, but not later
than the next court date or within 48 hours of a change in
placement. The child protective agency or its designee family foster
agency shall take all necessary steps to assist the caretaker in
obtaining relevant health and education information for the child's
health and education summary as described in subdivision (a).
(f) At the initial hearing, the court shall direct each parent to
provide to the child protective agency complete medical, dental,
mental health, and educational information, and medical background,
of the child and of the child's mother and the child's biological
father if known. The Judicial Council shall create a form for the
purpose of obtaining health and education information from the child'
s parents or guardians at the initial hearing. The court shall
determine at the hearing held pursuant to Section 358 whether the
medical, dental, mental health, and educational information has been
provided to the child protective agency.
SEC. 8. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.