BILL ANALYSIS �
AB 2391
Page A
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
AB 2391 (Ian Calderon) - As Introduced: February 21, 2014
SUBJECT : Dependent children: placement.
SUMMARY : Clarifies that, after the dispositional hearing for a
child in foster care, but while family reunification services
are being provided, preferential consideration shall be given to
a relative of a child in foster care for purposes of placement
of the child.
EXISTING LAW
1)States that the purpose of foster care law is to provide
maximum safety and protection for children who are currently
being physically, sexually, emotionally abused, neglected, or
exploited, and to ensure the safety, protection, and physical
and emotional well-being of children who are at risk of harm.
(Welfare and Institutions (W&I) Code 300.2)
2)States the intent of the Legislature to preserve and
strengthen a child's family ties whenever possible and to
reunify a foster youth with his or her biological family
whenever possible, or to provide a permanent placement
alternative, such as adoption or guardianship. (W&I Code
16000)
3)Requires a county to file a petition to the court requesting a
detention hearing within 48 hours of placing a child under
temporary custody to determine whether a child should remain
in custody and whether any specific court permissions are
necessary to provide for the health and safety of the child.
(W&I Code 313 and 319)
4)Requires a social worker, within 30 days of taking a child
into temporary custody or whenever appropriate, to identify
and locate all adults who are related to the child by blood,
adoption, or affinity within the fifth degree of kinship and
provide for the purposes of informing them of their right to
participate in the care and placement of the child, as
specified. (W&I Code 309(e))
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5)Requires preferential consideration be given to a request by a
relative to have the child placed with the relative if the
child has been removed from the physical custody of the
child's parent(s). (WIC 361.3(a))
6)Requires a "detention hearing" to be held within 24 hours of
the next court day whenever a detention petition is filed with
the court. (W&I Code 315)
7)Requires a juvenile court to hold a "jurisdictional hearing"
within 15 judicial days of the petition filed to take the
child into temporary custody to determine whether the court
has jurisdiction to adjudicate the child. (W&I Code 334)
8)Requires a juvenile court to hold a "dispositional hearing"
within 60 days of the detention hearing to determine the
appropriate placement for the youth if he or she is
adjudicated to be a dependent of the court. (W&I Code 352(b))
9)For children under the age of three who are placed into foster
care, permits the juvenile court to order family reunification
services, to be provided by a county welfare agency (CWA), for
a period of six months but no longer than 12 months after the
child entered foster care. (WIC 361.5(a)(1)(B))
10)For children over the age of three who are placed into foster
care, permits the juvenile court to order family reunification
services, to be provided by a CWA, for a period of 12 months
after the child entered foster care. (WIC 361.5(a)(1)(A))
11)Permits the juvenile court to extend the provision of family
reunification services beyond 12 months, but no longer than 18
months based upon specified circumstances. (WIC 361.5(a)(3))
FISCAL EFFECT : Unknown.
COMMENTS :
Maintaining the Family : Historically, it has been the stated
policy of California that when a child is removed from the home,
first preference should be given to placing the child with
another parent, or with his or her relatives whenever possible
and appropriate. This has helped to preserve and strengthen the
social bedrock of our society, by keeping families together and
reducing society's reliance on its social welfare system.
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Child Welfare Services : The purpose of California's Child
Welfare Services (CWS) system is to provide for the protection
and the health and safety of children. Within this purpose, the
desired outcome is to reunite children with their biological
parents, when appropriate, to help preserve and strengthen
families. However, if reunification with the biological family
is not appropriate, children are placed in the best environment
possible, whether that is with a relative, through adoption, or
with a guardian, such as a nonrelated extended family member, as
specified. In the case of children who are at risk of abuse,
neglect or abandonment, county juvenile courts hold legal
jurisdiction and children are served by the CWS system through
the appointment of a social worker. Through this system, there
are multiple stages where the custody of the child or his or her
placement are evaluated, reviewed and determined by the judicial
system, in consultation with the child's social worker to help
provide the best possible services to the child.
At the time a child is identified as needing child welfare
services and is in the temporary custody of a social worker, the
social worker is required to identify whether there is a
relative or guardian to whom a child may be released, unless the
social worker believes that the child would be at risk of abuse,
neglect or abandonment if placed with that relative or
guardian.<1> The W&I Code also lays out the conditions under
which a court may deem a child a dependent or ward of the court,
including when the parent has been incarcerated or
institutionalized and is unable to arrange for care for the
child, such as placement with a known relative or nonrelative
extended family member (NREFM). If the child is deemed a
dependent or ward of the court, the court may maintain the child
in his or her home, remove the child from the home but with the
goal of reunifying the child with his or her family, or identify
another form of permanent placement. Unless the child is unable
to be placed with the parent, the court is required to give
preference to a relative of the child in order to preserve the
child's association with his or her family. Associated with the
placement, the assigned social worker shall develop a case plan
for the child, which outlines the placement for the child, sets
forth services necessary for the child, and outlines the
provision of reunification services, if necessary and
appropriate.
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<1> Welfare and Institutions Code Sections 306 and 309
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Custody and out-home-placement of children in foster care : When
it is suspected that a child is a victim of physical, sexual, or
emotional abuse, or neglect or exploitation, any person may
report that abuse or neglect to child protective services.
Additionally certain individuals, such as physicians and
teachers, are mandated under state and federal law to
immediately report any suspicion or identification of child
abuse or neglect to child protective services. After the report
of abuse or neglect is made, a county welfare agency's (CWA)
child protective services social worker is required to
immediately investigate the complaint to determine its validity.
If the complaint is found to be valid, the social worker may
remove the child from the family and place the child into
temporary custody.
This allows for the immediate removal of the child from harm,
while the CWA and the court investigate whether the child should
remain in temporary custody or be ruled a dependent of the
state. Temporary custody does not eliminate all rights of the
parent; rather removal of parental rights depends on what "care,
custody and control" rights the parent(s) may retain, as
determined by the court on a case by case basis. Typically, the
parent retains educational and health rights over the child,
which, again, depends on the ruling of the court.
The timelines and requirements to address custody and the
placement of the child in an out-of-home placement, such as with
the home of a relative, a foster parent or a group home are laid
out in the W&I Code and provide an adjudicatory process that
must be conducted expeditiously to limit, to the extent
possible, any harm to the child. This includes limiting undue
harm due to the removal of the child from the family for health
and safety purposes, as well as avoiding emotional harm to the
child due to separation from his or her parent(s).
As intended by law to limit undue harm and increase the chances
of reunification of the child with his or her parent(s), the
Family and the W&I Code lay out specific preferential placement
considerations for relatives of the child. Specifically, current
law requires a social worker to, within 30 days of the child's
removal from the home, locate any known adults who are related
to the child by blood, adoption, or affinity within the fifth
degree of kinship<2> and notify them that the child has been
removed from his or her parent's custody. Once identified or as
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<2> Welfare and Institutions Code 319(f)(2)
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relatives come forward, the priority is to place the child in
the home of a relative, unless it is not deemed to be in the
best interest of the child.<3> If no other parent is available
or exists, direct blood relatives are considered, such as the
aunt, uncle, or grandparents. Beyond that, extended relatives
and then nonrelated extended family members (NREFM) are
considered. NREFMs are persons who have an established familial
or mentoring relationship with a child, and can be considered an
individual with whom a child in foster care may be placed. They
can be a godmother or godfather, a coach, a close friend of the
family, or anyone who has an established relationship with the
child or the family. If no adult who is related by blood or
affinity is identified or comes forward then foster family homes
or group homes are considered for placement.
In cases where a child's relative does not initially come
forward, but identifies him or herself to the social worker or
the court after an initial placement of the child is made, the
social worker is required to conduct an assessment as to the
fitness of the relative and notify and recommend to the court
whether the child should be placed with the relative. However,
this can raise questions as to whether it is in the child's best
interest to remove him or her from an out-of-home placement,
perhaps one that is stable and beneficial to the child, in order
to place him or her with a relative, simply because child
welfare law states that a relative should be provided
preferential consideration for placement. Such scenarios are
considered on a case-by-case basis, which includes an evaluation
by the social worker and the court, and as such encompasses all
parties involved, in order to ensure the best outcome for the
child. This includes an assessment by the social worker, a
correlating notification of the minor's counsel, parent's
counsel, and involvement of the court, with the ultimate
decision being made by the juvenile court judge.
Although a relative may come forward and be approved as an
appropriate placement by the social worker, the court, upon
consideration of all parties involved, could ultimately decide
not to remove the child from a stable non-relative foster care
placement so as not to disrupt the stability of the child. The
converse could also happen. A court could remove a child from a
stable foster care placement, as permitted under law, place him
or her with a relative that could be a less stable placement,
but is reflective of the intent of the state's child welfare law
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<3> Family Code 7950
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that preferential consideration be given to known relatives of
the child.
Reunification services : When children are removed from the
home, but the court determines, in consultation with a child's
social worker, that the child would ultimately benefit from
being returned to the family, the court may order reunification
services for the parents. Reunification services are generally
developed on a case-by-case basis to accommodate and respond to
the needs of the child and the parents to better facilitate the
child's reunification with his or her parent(s).
Reunifications services can include family therapy, parenting
classes, drug and alcohol abuse treatment, respite care, parent
support groups, home visiting programs, and other coordinated
and tailored services necessary to assist the child and the
family with reunification. Under current law, for children under
the age of three, reunification services are offered for six
months and 12 months for children over the age of three. A
six-month extension may be made if the court finds there is
substantial probability that the child will be returned to the
physical custody of his or her parent(s) within the extended
time period or that reasonable services have not been provided
to the parent(s).<4>
Need for this bill : Stating the need for the bill, the author
writes:
"In the event that foster children are removed from their
parent's custody and are placed in the foster care system,
it is the intent of the courts to preserve familial
relationships by placing children with family members when
appropriate. Section 361.3 of the WIC provides for the
type of preferential consideration given to family members
when a child is placed in the foster care system. It is
generally recognized that the preferential consideration is
given to family members throughout the reunification
process. However, despite the intent of the WIC, the
language of section 361.3(d) limits the application of this
preference to "whenever a new placement of the child must
be made?This is contrary to the intent of the law and
prevents family members from receiving preferential
consideration as placement options.
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<4> Welfare and Institutions Code 361.5
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"[This bill] would amend section 361.3(d) of the WIC by
changing language to read "and throughout the reunification
process," such that the language accurately reflects the
intent of the law."
Writing in support of the bill, the Children's Advocacy
Institute, argues that although current law provides specific
requirements on how and when a relative may be considered for
placement of a child in foster care, some courts are ruling that
a placement with a relative may be considered "only when the
child has to be moved from one placement to another during the
reunification time period." The Institute goes on to write
that:
"This is contrary to legislative intent and practice in
most counties throughout California because it is simply
not in the best interests of the child.
"Relatives are often not notified of the child's situation
in a timely manner, if at all. In some counties, these
relatives are being told by the court and agency that since
the children are in a stable foster home, they will not be
moved to be with family and the family has no right to ask
for placement."
Staff comments : As currently proposed, the intent of this
measure is to clarify that after a child is rendered a dependent
of the court, any relatives who have not been identified by the
social worker who come forward "throughout the reunification
period" are provided preferential consideration for placement
rather than "whenever a new placement of the child must be
made."
It is unclear whether this clarification may be helpful or is
needed in clarifying that a relative who comes forward or is
discovered by the court may be considered for placement of the
child at any time while the child is receiving family
reunification services. Specifically, it seeks to amend W&I
Code Section 361.3(d) governing how relatives are considered if
and when a new foster care placement is needed for the child.
However, current law is quite clear. Specifically, W&I Code
361.3(a), which is the parent subdivision of Section 361.3(d),
states that "in any case in which a child a child is removed
from the physical custody of his or her parents pursuant to
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Section 361, preferential consideration shall be given to a
request by a relative of the child for placement of the child
with the relative." It goes on to provide a number of criteria
the social worker and the court are required to follow,
including an assessment of whether the relative is "of good
moral character," whether placement with the relative is in the
"best interest of the child," whether there is an existing
relationship between the relative and the child, and whether the
relative can be a permanent placement should reunification be
unsuccessful.
Additionally, if a relative comes forward, and in circumstances
where a social worker denies the relative the right to be
considered for placement, as required by law as noted above, the
relative also has the right to petition the court to be heard.
Further, if, as argued, a relative is not considered, W&I Code
361.3(e) requires the court to "state for the record the reasons
the placement with that relative was denied." This further
demonstrates the court has the final decision regarding whether
a child should be placed with a relative.
Lastly, this measure seeks only to clarify how a relative
requesting placement is considered during the reunification
period, not whether, how and when they should be considered
after reunification has been terminated. If the concern is that
relatives of children in foster care are not being given fair
acknowledgement and consideration by social workers and the
court, there should not be a reference to reunification so there
is no distinction as to what occurs before or after
reunification is terminated.
RECOMMENDED AMENDMENTS :
If ambiguity exists as to whether a relative has to wait until a
new placement is needed for a child in foster care in order to
be considered for placement, and existing law clearly provides
for the preferential consideration of a relative,<5> then the
existing language creating the perceived ambiguity should be
deleted.
Also, to further provide clarity and guidance on how the court
and social workers are taking into account the coming forward or
discovery of a relative who requests placement of a child in
foster care, the bill should be amended to require the Judicial
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<5> Welfare and Institutions Code 361.3(a)
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Counsel to amend Title 5 of the California Rules of Court (CRC)
governing Family and Juvenile Rules on how relatives are
considered for placement. This would further clarify how,
rather than whether, a relative is considered by the court,
since the CRC governs court process and proceedings.
Specifically, committee staff recommends the following
amendments:
Amendment #1 - On page 4, lines 22 to 23, delete "358 and
throughout the reunification period"
Amendment #2 - On page 5, line 17 insert:
(g) The Judicial Council shall adopt a rule of court,
effective January 1, 2016, that complies with this section
regarding when and how a relative who comes to the
knowledge of the social worker or the court may be
considered for placement of a child in foster care.
DOUBLE REFERRAL . This bill has been double-referred. Should
this bill pass out of this committee, it will be referred to the
Assembly Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Children's Advocacy Institute
Dependency Legal Services
Juvenile Dependency Counselors
Opposition
None on file.
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089