BILL ANALYSIS �
AB 2023
Page A
Date of Hearing: April 24, 2012
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Jim Beall Jr., Chair
AB 2023 (Jones) - As Amended: March 29, 2012
SUBJECT : Foster care placement: rights of children
SUMMARY : Provides that the right of children in foster care to
not be locked in a room, building, or facility premises, unless
placed in a community treatment facility, does not apply to
privately funded residential facilities that treat individuals
under 18 years of age for substance or alcohol abuse.
EXISTING LAW
1)Through the State Department of Social Services (DSS) and
county welfare departments, establishes a system of child
welfare services, including foster care, for children who have
been or are at risk of being abused or neglected.
2)Provides for the licensure and regulation of group homes by
the Community Care Licensing Division of DSS under the
Community Care Facilities Act. Health & Safety (H&S) Code �
1500 et seq.
3)Defines "group home," in part, as "a facility which provides
24-hour care and supervision to children, provides services
specified ? to a specific client group, and maintains a
structured environment, with such services provided at least
in part by staff employed by the licensee." Title 22
California Code of Regulations (CCR) � 84001(g)(1).
4)Establishes requirements for the use of protective separation
rooms in group homes, including prohibiting the use of locking
or jamming devices to prevent exiting from the room. 22 CCR �
84322.1(a)(8).
5)Specifies rights of children in foster care, including the
right to not be locked in a room, building, or facility
premises, unless placed in a community treatment facility.
Welfare & Institutions (W&I) Code � 16001.9.
6)Specifies, in regulation, 22 CCR � 84072(c), rights of
children residing in group homes, including the right to not
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be locked in any room, building, or facility premises at any
time, subject to the following (22 CCR � 84072(c)(24)):
a) The licensee shall not be prohibited from locking
exterior doors and windows or from establishing house rules
for the protection of clients provided the clients are able
to exit the facility.
b) The licensee shall be permitted to utilize means other
than those specified in a) above for securing exterior
doors and windows only provided the clients are able to
exit the facility and with the prior approval of the
licensing agency.
7)Defines "community treatment facility" to mean a residential
facility that provides mental health treatment services to
children in a group setting and that has the capacity to
provide secure containment. H&S Code � 1502(a)(8).
8)Requires the State Department of Mental Health (DMH) to
establish, by regulation, specified program standards for any
facility licensed as a community treatment facility. H&S Code
� 1502(a)(8); Title 9 California Code of Regulations (CCR) �
1900 et. seq.
FISCAL EFFECT : Unknown
COMMENTS :
Background
Rights of children in group homes : The regulatory rights of
children in foster care were consolidated and codified by AB 899
(Liu), Chapter 683, Statutes of 2001. W&I Code � 16001.9.
Legislative policy committee analyses at the time noted that the
supporters of AB 899 pointed out that abuses often perpetrated
by foster care providers on children and youth in care
exacerbate the many problems the children encountered that
resulted in their being in foster care in the first place. The
sponsor of AB 899 further asserted that reporting of these
abuses must be encouraged in order for the foster care system to
be more responsive to foster children and thus improve the
system. Currently, the statute delineates 24 distinct rights of
children in foster care.
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The rights of foster children and youth who live in group homes
extend to all group home residents. E.g., 22 CCR � 84072(c).
As the Youth Law Center (YLC) points out in its opposition,
however, while this bill amends the statute delineating the
rights of children in foster care it does not change state law
with respect to group home licensing standards or placement of
foster children, nor does it change comparable protections that
exist elsewhere in law. Changing the rights in this section of
the Welfare and Institutions Code, YLC notes, "could cause
confusion if �W&I Code � 16001.9] is inconsistent with these
other provisions."
Among the listed rights of children in foster care is the right:
"To not be locked in a room, building, or facility premises,
unless placed in a community treatment facility �CTF]." W&I
Code � 16001.9(a)(12). The same right extends to all children
in group homes. 22 CCR � 84072(c)(24). This bill provides
that, in addition to the CTF exception, at least for children in
foster care, this right also would not apply to children who are
placed in privately funded residential facilities that treat
individuals under 18 years of age for substance or alcohol
abuse.
Community treatment facilities (CTFs) : CTFs were first
authorized in 1985 by SB 874, Chapter 1473, Statutes of 1985.
CTFs are DSS-licensed, DMH-regulated, residential facilities
that provides mental health treatment services to seriously
emotionally disturbed children in a group setting for whom other
less restrictive mental health interventions are not
appropriate, and who may require periods of secure containment.
W&I Code � 4094.5(a). CTFs serving children in foster care
must be incorporated as a nonprofit organization. Secure
containment means that all or part of a facility may be locked
or secure. W&I Code � 4094.5(b). The CTF statutes and
regulations contemplate that they would include both secure and
non-secure portions. E.g., 9 CCR �� 1901(u) and (ee). Clearly
in recognition of the highly restrictive nature of CTFs, they
are limited to 400 beds statewide. W&I Code � 4094.7.
According to March 2012 DSS statistics, only three CTFs
currently exist statewide, with a capacity for 86 children.
Need for this bill
The author points out that privately funded residential alcohol
and substance abuse facilities for individuals under the age of
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18 are licensed by DSS as group homes. As such, the residents
are entitled to the same rights as other children and youth in
group homes, including individuals placed through the foster
care system. These rights include the right to not be locked in
a room, building or facility premises unless placement is in a
CTF.
The author cites to research indicating that substance abuse is
a leading cause of youth suicide and asserts that "permitting a
minor to check themselves out of a treatment facility is a
reckless policy that could ultimately be perilous to their
health and safety." According to the author,
It is a sad reality that families are literally forced
to go out of state in order to place their alcohol or
drug addicted child in a secured treatment facility.
As such, this is an issue that is in desperate need of
further dialogue. Determining what laws govern the
treatment/placement of such minors in a safe and
secure environment was challenging to nail down, as it
appears that regulating agencies were also unclear as
to why a child could leave a facility within minutes
of being admitted for drug/alcohol treatment by a
parent or guardian.
It is unclear on what basis the author claims that a minor can
simply leave or check out of a group home. To the contrary,
children are placed in group homes on the authority of a parent,
guardian, or other individual or entity with legal authority.
The group home has responsibility under statute and regulation,
as well as the admissions agreement, to provide the child with
"24-hour care and supervision."
Group home licensees are to use a "reasonable and prudent parent
standard" when determining whether to allow a child in care to
participate in extracurricular, enrichment and social
activities. 22 CCR � 84001(r)(1). Licensees must develop and
maintain a written "runaway plan" that describes how the
facility will respond to runaway<1> children and children
outside of the facility property without permission, but within
view of the facility personnel. 22 CCR � 84322.2. For children
with a history of running away from placement, the facility
---------------------------
<1> "Runaway" means a child who absents himself or herself from
the facility without permission from facility personnel. 22 CCR
� 84001(r)(2).
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social work personnel and the child's authorized representative
must develop an individualized plan for that particular child.
22 CCR � 84322.2(e). Thus, if a child runs away from a group
home, the group home staff would be remiss if they failed to
take appropriate steps to seek the child's safe return,
including calling the police. While children in group homes
have to be able to exit the facility, that does not mean they
can do so without permission, or in a manner that is contrary to
reasonable house rules or that would place them in danger.
Lack of statutory and regulatory safeguards and requirements
under this bill
The foster care rights statute, and other provisions concerning
the rights of children in group homes, prohibit placing children
in a locked room, building, or facility premises, except in the
case of a CTF. Because they are locked or secure facilities,
CTFs are highly regulated and are subject to explicit admission
and retention criteria, due process procedures and safeguards,
and program standards. Determinations of the need for secure
placement must be based on a child's case plan and safety, not
simply the fact that they are seriously emotionally disturbed
and receiving mental health treatment. Following are some of
the requirements that apply to CTFs:
Any minor admitted to a CTF shall have the same due
process rights afforded to a minor who may be admitted to a
state hospital, including, for children age 14 through 17,
the notice and preadmission hearing rights recognized by
the California Supreme Court in In re Roger S. (1977) 19
Cal.3d 921. W&I Code � 4094(h); 9 CCR � 1923.
A locked or secure program in a facility shall not be
used for disciplinary purposes. W&I Code � 4094.5(b).
The use of the secure facility program shall be for as
short a period as possible, consistent with the child's
case plan and safety. Id.
Authorizes CTFs to secure or lock all or part of a
facility, including its perimeter, but not a room alone.
Id.
Children admitted or eligible for admission to a CTF
have the rights provided under the Lanterman-Petris-Short
Act (W&I Code �� 5325.1, 5325.2, 5326), which include the
right to treatment provided in ways that are least
restrictive of the personal liberty of the individual (W&I
Code � 4094.6), and a right to a hearing by writ of habeas
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corpus. Id.
Admission requires a written statement signed by an
appropriate licensed mental health professional certifying
that the child requires periods of containment to
participate in and benefit from treatment.
Physical restraint and seclusion shall be used only when
alternative methods are not sufficient to protect the child
or others from immediate injury; shall not be used as a
substitute for more effective programming, or for the
convenience of staff; and shall be used with a written
order designed to lead to a less restrictive way of
managing, and ultimately eliminating, the behavior for
which the restraint or seclusion is applied. 9 CCR � 1929.
This bill, on the other hand, would give blanket authority to
residential facilities to lock residents in a room, building, or
the facility, without any of the statutory or regulatory
safeguards, standards, or individualized determinations required
in CTFs, on the sole basis that the placement is privately
funded and the facility provides substance or alcohol abuse
treatment for individuals in foster care under the age of 18.
Slippery slope
Children with alcohol or substance abuse problems are, of
course, not the only vulnerable groups who live in group homes.
Group homes also provide care and supervision for abused and
neglected children, juvenile offenders, and children who are
seriously emotionally disturbed or have significant cognitive
and intellectual disabilities. Many if not most of these
children would also be endangered if they ran away from or left
a group home unsupervised. Whatever justification there is for
authorizing locked facilities for group homes providing alcohol
and substance abuse treatment to minors would also reasonably
apply to group homes serving these other populations.
Arguments in opposition
In opposing this bill, YLC says that the prohibition on locking
up children and other vulnerable individuals is a longstanding
health and safety standard. "It helps to prevent death or
serious injury in the event of fire, earthquake, or other
hazards; avert suicide and self-injuring behavior; ensure that
residents are not isolated from the community; and promote
accountability for the conditions in which these individuals
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live and the services they receive." Exceptions are rare, YLC
notes. "They exist only when no less restrictive alternative is
available to protect the safety of residents or other
individuals and when accompanied by protections to afford proper
oversight and ensure that residents are safe." (See discussion
of CTFs, above.)
YLC asserts that the definition of facilities "that treat
individual under 18 years of age for substance or alcohol abuse"
is unclear. For example, YLC asks, does it mean only
single-purpose facilities, or does it refer to any group home
that accepts individuals with substance or alcohol abuse
problems that may require treatment?
YLC also points out that the term "privately funded" is not
defined. It could be read to exclude facilities that receive
any public funds, such as Medicaid; foster care funding; or
local, state or federal substance abuse treatment funds. YLC
says that reference to "privately funded" facilities in the
statutory provision delineating the rights of children in foster
care is inapt, moreover, because placements for most children in
foster care are paid for with public funds AFDC-FC (foster care
benefits) and Medicaid. In any event, YLC, argues,
"�p]rotections afforded to children in community care facilities
should not be dependent on the source of payment for their
care."
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
Youth Law Center (YLC)
Analysis Prepared by : Eric Gelber / HUM. S. / (916) 319-2089