BILL ANALYSIS �
AB 2209
Page 1
Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2209 (Hueso) - As Amended: March 27, 2012
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : DEPENDENT CHILDREN: OUT-OF-COUNTRY PLACEMENT
KEY ISSUE : SHOULD A COURT ONLY PLACE A U.S. CITIZEN FOSTER
CHILD, WHO IS NOT BEING PLACED WITH ONE OF THE CHILD'S PARENTS,
IN A RESIDENCE OUTSIDE OF THE COUNTRY IF THE COURT FIRST FINDS
THAT SUCH A PLACEMENT IS IN THE CHILD'S BEST INTEREST?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill, supported by the Children's
Advocacy Institute, the Dependency Legal Group of San Diego and
the Family Law Section of the State Bar, limits when a dependent
child, who is a citizen of the U.S and is not being placed in
his or her parent's custody, may be placed outside of the
country. While the bill does not prevent placement outside of
the country, it sets a standard for determining if such a
placement is in the child's best interest. The bill provides
factors that a court must first consider and, if after
considering the factors, the court finds by clear and convincing
evidence that placement of the child outside the country is in
the child's best interest, the court may then issue an order
authorizing the social worker to place the child outside the
U.S. The author comments that because the court and the child
welfare agency cannot fully supervise a placement outside the
U.S., this bill is necessary to ensure that a placement outside
the country is indeed the best place for the child to live.
SUMMARY : Limits when a dependent child who is a United States
citizen may be placed outside the country. Specifically, this
bill :
1)Provides that a dependent child who is a citizen of the United
States may not be placed by a social worker or placing agency
outside the United States prior to a judicial finding that the
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placement is in the best interest of the child. Provides that
any party or agency that recommends placement outside the
United States carries the burden of proof and must show, by
clear and convincing evidence, that placement outside the
country is in the child's best interest. Allows the court, if
it finds by clear and convincing evidence that placement of
the child outside the United States is in the child's best
interest, to issue an order authorizing the social worker or
placing agency to place the child outside the United States.
Provides that the child may not leave the country prior to
issuance of such an order.
2)Provides that #1, above, does not apply if the child will be
placed with a parent.
3)Requires the court to consider, when determining the child's
best interest pursuant to #1, above, the following factors:
a) The placement with a relative;
b) The placement of a sibling in the same home;
c) The amount and nature of any contact between the child
and the potential caregiver;
d) The physical and medical needs of the child;
e) The psychological and emotional needs of the child;
f) The social, cultural, and educational needs of the
child; and
g) The specific desires of any dependent child who is 12
years of age or older.
EXISTING LAW :
1)Provides that a child may become a dependent of the juvenile
court and removed from his or her parents or guardian on the
basis of abuse or neglect. (Welfare and Institutions Code
Section 300. Unless otherwise stated, all further statutory
references are to that code.)
2)Provides that when a court orders removal of a dependent child
from his or her home, the court must order the care, custody,
control, and conduct of the child to be under the supervision
of a social worker. Allows the social worker to place the
child in, among other places, the home of the noncustodial
parent or the approved home of a relative or a nonrelative
extended family member, as defined. (Section 361.2.)
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3)Requires the status of every dependent child to be reviewed by
the court every six months. (Section 366.)
4)Requires the entity that places a dependent child to notify
the child's attorney of the placement. (Section 16010.6.)
COMMENTS : This non-controversial bill limits when a dependent
child, who is a citizen of the U.S and is not being placed in
his or her parent's custody, may be placed outside of the
country. In support of the bill, the author writes:
Social service and welfare agencies often make
recommendations to the court to place a dependent child,
who is a United States citizen, for long-term care or
adoption outside of the country. This is particularly true
in cities near border areas. Once a child is placed out of
the country, the court and law enforcement lose their
ability to protect the child if he/she needs assistance. A
child who is a dependent of the State should not be placed
outside of the United States unless doing so is in the
child's best interest.
Currently, the law does not expressly allow nor prohibit
the placement of a child out of the country, yet it is
occurring. This bill establishes a legal burden of proof
for placing agencies to meet, with a list of factors they
must consider, before making such a recommendation to the
court. AB 2209 will set a uniform standard statewide that
will ensure consideration is given to important factors,
such as whether the health or educational needs of the
child will be met in the country in which the agency is
considering placing the child.
AB 2209 will put children first and ensure that the country
in which the child will be placed is, in fact, the best
place for the child to live.
This bill does not prevent the placement of a U.S. citizen
foster child outside of the country. Rather, the bill sets a
standard for determining if such a placement is in the child's
best interest. First the bill requires that the entity
requesting the placement - whether the social worker, the
placing agency or a party - must provide evidence to the court
that placement outside the U.S. is in the child's best interest.
Putting the burden on the party or agency requesting the
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out-of-country placement makes sense since they are the ones who
best know the reasons why such placement is in the child's best
interest. The bill then requires the court, in making its best
interest determination, to consider specific factors. These
factors include whether the child will be placed with a
relative, whether the child's other siblings will be in the
home, whether the child know the potential caregiver, as well as
the needs of the child. The court is also required to consider
the specific desires of any child who is 12 years old or older.
If, after considering the factors, the court finds by clear and
convincing evidence that placement outside the country is in the
child's best interest, the court may then issue an order
authorizing the social worker or agency to place the child
outside the U.S. The child cannot be placed outside of the U.S.
before the court issues such an order.
It is important to note that the requirements of the bill do not
apply if the child is to be placed with a parent.
Proposed Amendments : As in print, the bill puts the burden on
the social worker, even if the social worker is not the one
requesting the placement. The Family Law Section of the State
Bar suggests amending the bill to provide that whoever asks to
have the child placed outside the country - whether a parent or
guardian or social worker or placing agency - should carry the
burden of proving that the placement is in the best interest of
the child. The author has rightly agreed to that change, and
the following amendments accomplish this objective:
Amend page 5, lines 8-10 as follows:
(2) The social worker Any party or agency requesting placement
of the child outside the United States shall carry the burden of
proof and must show, by clear and convincing evidence, that
placement outside the United States is in the best interest of
the child.
Amend page 10, lines 35-38 as follows:
(2) The social worker or placing agency Any party or agency
requesting placement of the child outside the United States
shall carry the burden of proof and must show, by clear and
convincing evidence, that a placement outside the United States
is in the best interest of the child.
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ARGUMENTS IN SUPPORT : In support, the Dependency Legal Group of
San Diego writes:
We are very concerned about dependent minors of the court
who are placed with individuals, who are not their parents,
outside of the United States under the existing process.
Currently our courts have little to no oversight on these
placement decisions. The only way that a Judge can even
review the decision is if a showing can be made that the
placing Agency has abused their discretion; a standard that
is nearly impossible to meet when all of the evidence is in
another country. Even where a showing can be made, this
always happens after the child has already been moved.
Once a child has been moved our social workers are unable
to visit because they are not licensed to practice social
work outside of the country - we are left with trying to
get reports from local agencies, if they even exist, and
telephone contact with caretakers who often have limited or
inconsistent access to telephone service. Our courts,
attorneys, and social workers are left unable to obtain
consistent reliable information about the health and
well-being of the minors in many cases. AB 2209 is an
important step in rectifying this problem for our dependent
children.
Adds the Children's Advocacy Institute: "This heightened
standard is important because placement outside of the country
deprives courts of the power to monitor these children, the care
they receive, and their overall well-being. A child's safety
and well-being are paramount. As the acting parent of foster
youth, California must do everything it can to protect children.
The Children's Advocacy Institute supports AB 2209 because it
supplies the courts with appropriate standards to protect the
best interests of children placed outside of the country."
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Advocacy Institute
Family Law Section of the State Bar
Dependency Legal Group of San Diego
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Opposition
None on file
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334