BILL ANALYSIS �
AB 2391
Page 1
Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2391 (Calderon) - As Amended: April 23, 2014
SUBJECT : Dependent children: placement WITH RELATIVES
KEY ISSUE : IN ORDER TO ENSURE STATEWIDE COMPLIANCE WITH THE
REQUIRED PREFERENCE THAT FOSTER CHILDREN BE PLACED WITH
RELATIVES, SHOULD THE JUDICIAL COUNCIL BE DIRECTED TO DEVELOP A
RULE OF COURT REGARDING HOW TO PROPERLY IMPLEMENT THAT
PREFERENCE, AND SHOULD THE LAW BE CLARIFIED TO ENSURE THERE IS
COURT REVIEW OF ANY PROPOSED PLACEMENT CHANGE BASED ON RELATIVE
PREFERENCE?
SYNOPSIS
This bill seeks to clarify that there is a preference for
relative placement for a foster child who has been removed from
his or her parents because of abuse or neglect. This preference
does not, in any way, mean that the child will be placed with a
relative. Before placing or moving a child, the social worker
and the court must consider a host of factors, first and
foremost being the best interest of the child. Beyond
clarifying the law, this bill requires the Judicial Council to
develop a rule of court to help better implement how the
preferential consideration actually works across the state.
This bill is supported by the Children's Advocacy Institute and
other groups that advocate on behalf of children in foster care.
These groups note that all factors being equal, the preferred
placement is likely with relatives: "Such placements promote
stability, family unity and support, and minimize the trauma of
being removed from parental custody."
The bill is opposed by Advokids and Southern California Foster
Family & Adoption Agency who are concerned that the bill, as
drafted, will permit foster youth to be pulled from stable,
secure foster care placements when a relative comes forward,
without the necessary consideration of the special needs of each
foster child and without a judicial review. However, as
recently amended, the bill makes clear that both the social
worker and the court must consider the required factors,
including the best interest of the child, before any placement
is made.
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SUMMARY : Clarifies how relatives may be considered for possible
placement after a foster child's initial placement has been
made. Specifically, this bill :
1)Clarifies that when a social worker or the court, in
determining whether it is appropriate to place a foster child
with a relative, considers specified factors, those factors
must be considered on a case-by-case basis.
2)Clarifies that, after the dispositional hearing for a child in
foster care, preferential consideration shall be given to a
relative of a child in foster care for purposes of placement
of the child and that the social worker and the court must
consider specified factors before deciding on the placement.
3)Requires the Judicial Council, by January 1, 2016, to adopt a
rule of court that implements #2), above.
EXISTING LAW :
1)Provides that children may become dependent children of the
juvenile court and be removed from their 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)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. (Section
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.
(Sections 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
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provide for the purposes of informing them of their right to
participate in the care and placement of the child, as
specified. (Section 309(e).)
5)Requires preferential consideration be given to a request by a
relative to have a foster child placed with the relative if
the child has been removed from the physical custody of the
child's parents. (Section 361.3(a).)
6)Requires the social worker to provide to the court, in advance
of the disposition hearing, a social study or evaluation of
the child, which shall include, among other things,
information about the child's siblings and the appropriateness
of any relative placement. (Section 358.1.)
7)Requires a "detention hearing" to be held within 24 hours of
the next court day whenever a detention petition is filed with
the court. (Section 315.)
8)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. (Section 334.)
9)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. (Section 352 and
358.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill seeks to clarify that there is a preference
for relative placement for a foster child who has been removed
from his or her parents because of abuse or neglect. This
preference does not, in any way, mean that the child will be
placed with a relative. Before placing or moving a child, the
social worker and the court must consider a host of factors,
first and foremost being the best interest of the child.
In support of 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
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relationships by placing children with family members when
appropriate. Section 361.3 of the WIC [Welfare &
Institutions Code] 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.
Supporters, including the Children's Advocacy Institute, add:
Courts and social services throughout the State rightly
acknowledge that when children are removed from their
parents, placement with a relative or extended family
member is, all factors being equal, likely the preferred
placement. Such placements promote stability, family unity
and support, and minimize the trauma of being removed from
parental custody. The Welfare & Institutions Code
correctly provides for this and established and explains
the standards by which relative placements are to be
approved?.
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. Further, this creates confusion in cases
regarding out-of-state relatives given the length of time
it takes to complete the process to move a child
out-of-state.
Your bill would make it clear that preference for family
member placement during the reunification process is not
based upon the fortuity of the relatives finding out about
the child's situation prior to the child being placed with
a non-relative or is triggered only whenever the child is
moved from their non-relative placement.
Brief Overview of the Dependency Process : California's child
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welfare system is designed 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, and 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.
The dependency process begins when child abuse or neglect is
reported to the local child welfare agency. A social worker
with the child welfare agency investigates the allegation to
determine if the child requires protection in order to ensure
his or her safety. If so, the child welfare agency files a
petition with the dependency court to make the child a dependent
of the court. If the child is removed from his or her parents,
then an initial "detention" hearing is held either on the same
day that the petition is filed or on the next court day to
determine whether the minor shall be further detained.
Within 15 days of the dependency court's decision to detain the
child, the court must hold a jurisdictional hearing to decide,
based on a preponderance of the evidence, whether the child
falls within the dependency court's jurisdiction. If the child
continues to be detained, a dispositional hearing is held no
later than ten days after the jurisdictional hearing. Often,
the jurisdictional hearing and the dispositional hearing are
held at the same time. Before that hearing, the social worker
provides the court with a detailed report about the child. At
the dispositional hearing, the court decides what will happen
with the child. The court can dismiss the case, order informal
services for the family or make the child a dependent of the
court.
If the child is made a dependent of the court, the court must
decide where the child should live. The court may allow the
child to live with a parent on "family maintenance" where the
court and a social worker monitor the child. If the court
determines that the child should be removed from his or her
parents, it must first try to place the child with relatives,
but if no appropriate relative placement is found, the child is
typically placed in foster care. During this period, "family
reunification" services may be offered to the parents. However,
if the parents' history indicates that family reunification is
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not possible, a permanency hearing will be held to determine
what will happen to the child.
The court must review the case of each child who has been
removed from his or her parents every six months. At this
review hearing, the court assesses the parents' progress towards
possible reunification. The court can reunify the family and
dismiss the case, reunify the family and continue to monitor the
family through family maintenance services, or maintain the case
without, at that point, reunification.
Within 12 months after the child is removed from his or her
parents (or less for children under three years of age at
removal), the court must determine whether the child should be
returned home or whether efforts to reunite the family should be
terminated. If the child is not returned home, efforts could
still continue to reunify the family. If reunification efforts
end, the court must determine a different permanency plan for
the child. Possibilities include adoption, legal guardianship
or some other permanent arrangement.
Benefits of Contact with Relatives : Often, when children are
removed from their parents because of abuse or neglect, they are
removed from their families and their communities, even when
loving relatives could step in and care for them. The benefits
of having foster children cared for by relatives cannot be
underestimated:
Studies show that children who are placed with relatives
experience greater success and stability than youth placed
with strangers. According to an Urban Institute report,
foster children raised by kin have fewer behavioral and
academic difficulties and better physical and mental health
outcomes than children raised by caregivers with who they
have no prior relationship.
Research also shows that foster children with caregivers
who are relatives are more likely to live close to their
original home, enabling them to maintain critical school
stability and remain more closely connected to their
cultural heritage. They have greater contact with their
birth families and are more likely to be placed with
siblings.
(Miriam Aroni Krinsky, Put Foster Kids with Relatives, Not
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Strangers, When Possible, Los Angeles Daily Journal (June 6,
2004).)
In addition, locating relatives early in the process may help
identify family members who can provide sufficient support to
the parents to allow the child to safely remain in his or her
home. Finally, early identification and location of relatives
not only increases the likelihood that a child will be placed
with family, but also decreases the likelihood that a previously
unknown relative will be located late in the process,
potentially disrupting a stable placement with a non-relative.
Federal and State Law Establishes a Preference to Place Children
with Relatives : In 2008, the federal Fostering Connections Act
sought to improve the lives of children in foster care, provide
greater assistance to relative caregivers and improve incentives
for adoption. Of particular relevance to this bill and in
response to studies showing the benefits of having foster
children cared for by loving relatives, the federal legislation
required that child welfare agencies provide notice to all adult
grandparents and other relatives within 30 days of a child's
removal from the parents and placement in foster care. (42
U.S.C. Section 671(a).)
AB 1938 (Judiciary), Chap. 261, Stats. 2009, implemented those
federal requirements by mandating that, when a child is removed
from his or her parents due to abuse or neglect and placed in
foster care, the child's social worker must immediately begin
conducting an investigation to identify and locate all
grandparents, adult siblings and other adult relatives of the
child. The social worker must use due diligence in
investigating the names and locations of the relatives,
including asking the child in an age appropriate manner about
relatives important to that child and using child support locate
tools, available through California Parent Locator Service, in
accordance with federal requirements.
When relatives are located, the social worker must, except when
issues of family or domestic violence make notification
inappropriate, immediately provide them with specified written
notification. In addition, the social worker must also provide
the relative with oral notification, through a visit or a phone
call, whenever appropriate. The notification must explain that
the child has been removed from his or her parents and explain
the various options to participate in the care and placement of
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the child and support of the child's family.
Once identified or as 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. 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. 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 could,
considering the interests of the foster child, 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
that preferential consideration be given to known relatives of
the child.
Existing law makes clear that "in any case in which a child is
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removed from the physical custody of his or her parents pursuant
to Section 361, preferential consideration shall be given to a
request by a relative of the child for placement of the child
with the relative." (Section 361.3.) The social worker and the
court are required to assess, among other things, 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, the relative also has the right to
petition the court to be heard. Further, if a relative is not
considered, the court is required to "state for the record the
reasons the placement with that relative was denied." Thus, the
court has the final decision regarding whether a child should be
placed with a relative.
This Bill Clarifies the Duty of the Social Workers and the
Courts to Consider Relative Placement, But Does Not Require Such
Placement : This bill seeks to make existing law clearer by
deleting language that limits preferential treatment for
relatives only when a new placement is made. Again, this is
consistent with existing law which requires that relatives be
considered for placement. The bill also directs the Judicial
Council to develop a rule of court that relatives be considered
for placement, but that such consideration is neither
automatically granted nor denied. The court and the social
worker must consider, among other things, the best interest of
the child, including the child's special physical,
psychological, educational, medical or emotional needs; the
wishes of the parent, relative and child, if appropriate; the
nature and duration of the relationship between the relative and
the child; and the ability of the relative to provide a safe,
secure and stable home for the child. Taken together, this
ensures relatives are considered, but gives the social worker
and the court broad discretion to make the right, case-by-case
decision that is in the best interest of each foster child.
Opponents Want to Make Sure That a Court Weighs in on Any
Placement, Considering All Relevant Factors : This bill is
opposed by Advokids and Southern California Foster Family &
Adoption Agency, who are concerned that the bill, as drafted,
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will permit foster youth to be pulled from stable, secure foster
care placements when a relative comes forward, without the
necessary consideration of the special needs of each foster
child. Advokids writes:
It is important that relatives not be foreclosed from
seeking placement of a child in foster care. However,
post-disposition, there must be judicial review to
determine that placement with the relative is in the best
interest of the child and to prevent harmful and
unnecessary placement disruptions. Advokids will oppose
the bill for so long as the bill does not require judicial
review of post-disposition placement decisions because the
risk of inappropriate placement decisions that cause harm
to vulnerable children who are already at-risk.
However, that is what should be required today and is further
clarified by this bill. If a relative comes forward, the social
worker would be required to investigate that relative for
possible placement. Before any change in placement could occur,
however, both the social worker and the court would be required
to consider all the existing factors, including the best
interest of the child, considering the child's special physical,
educational, medical, or emotional needs. In addition, they
must consider whether the relative has established and
maintained a relationship with the child.
REGISTERED SUPPORT / OPPOSITION :
Support
Child Abuse Prevention Center
Children's Advocacy Institute
Dependency Legal Services
Juvenile Dependency Counselors
Opposition
Advokids (unless amended)
Southern California Foster Family & Adoption Agency
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
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