BILL ANALYSIS �
SB 1136
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Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Mark Stone, Chair
SB 1136 (Huff and Mitchell) - As Amended: June 11, 2014
SENATE VOTE : 37-0
SUBJECT : Foster Care Providers: Criminal Records
SUMMARY : Permits county child welfare agencies (CWA) to receive
additional criminal history and licensing information for
certified and licensed foster care providers and provides that
county CWAs may conduct additional criminal background checks on
foster care givers subsequent to being licensed by the
Department of Social Services (DSS). Specifically, this bill :
1)Adds to the reasons why a criminal background check is needed
"to assess the appropriateness of placing specific children in
foster care placements."
2)Permits the DSS to share "summary information related to a
criminal record clearance or exemption" with a county CWA for
the purposes of enabling the county CWA to consider the
reasons for the exemption as a factor in the placement of a
child in a licensed or certified foster home.
3)Permits DSS and county CWAs to share information regarding
applicants, licensees, certificates, or individuals who have
been subject to any administrative action resulting in the
denial, suspension, probation, or revocation of a license,
permit, or certificate, or in the exclusion of any person from
a facility who is subject to a background check, as specified.
4)Expands existing law that allows a county CWA to conduct
criminal background checks for prospective licensed foster
caregivers, upon approval by DSS, to conduct a secondary
criminal background check for already exempted and licensed or
certified foster care providers without DSS approval, as
specified.
EXISTING LAW
1)Establishes the California Community Care Facilities Act
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(CCFA) to provide a comprehensive statewide service system of
quality community care for people who have a mental illness, a
developmental or physical disability, and children and adults
who require care or services by a facility or organization.
(H&S Code 1500 and 1501)
2)Under the CCFA, requires DSS to license group care facilities
and foster family homes for the placement of children who are
in foster care and requires, prior to licensure a licensed
foster home provider to be undergo a criminal background
check, as specified. (H&S Code 1502 and 1522)
3)Under the CCFA, requires DSS to license foster family
agencies, which contract with county CWAs to provide foster
care services, including but not limited to group homes and
foster family homes, and certifies that these placements meet
state licensing requirements in lieu of being licensed
directly by DSS. (H&S Code 1506)
4)Requires foster caregivers, as a condition of being certified
by a foster family agency, to undergo a criminal background
check. (H&S Codes 1506 and 1522)
5)Prohibits a criminal background exemption from being provided
to any person, or a person who resides with the applicant, who
has been convicted of child abuse or neglect, spousal abuse,
crimes against a child, including child pornography, or for a
crime involving violence, including rape, sexual assault, or
homicide, or has been convicted, within the last five years,
of felony physical assault, battery, or for a drug- or
alcohol-related offense. (H&S Code 1522(g))
6)Permits county CWAs to conduct criminal background checks in
order to conduct an investigation of child abuse or neglect,
to assess the appropriateness of placement of a child in
foster care with a relative or nonrelated extended family
member (NREFM), as defined, to locate a parent or guardian of
a child in foster care, and for a nonminor dependent (NMD) who
has petitioned to re-enter foster care. (W&I Code 16504.5)
7)Requires county CWAs to request and receive approval from DSS
to have the authority to conduct criminal background checks
for relative or NREFM foster care placements and grant
exemptions for relatives or NREFMs who have been convicted of
exemptible crimes if the county determines that the person is
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of good character, based on substantial and convincing
evidence, and does not present a risk of harm to the child, as
specified. (W&I Code 361.4)
8)Defines "state summary criminal history information" as the
master record of information compiled by the Attorney General
pertaining to the identification and criminal history of any
person, such as name, date of birth, physical description,
fingerprints, photographs, dates of arrests, arresting
agencies and booking numbers, charges, dispositions, and
similar data about the person. (PC 11105)
9)Provides that state summary criminal history information does
not refer to records and data compiled by criminal justice
agencies other than the Attorney General, nor does it refer to
records of complaints to or investigations conducted by, or
records of intelligence information or security procedures of,
the office of the Attorney General and the Department of
Justice. (PC 11105)
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)Annual costs to the Department of Justice (DOJ) of less than
$100,000 (Fingerprint Fees Account and Sexual Habitual
Offender Fund Account), to be recovered through fees, to
process additional fingerprint submissions and CACI requests
from county agencies.
2)Minor, absorbable costs to the DSS to provide county child
welfare agencies with a list of individuals who have been
granted criminal records exemptions.
3)Unknown, potentially significant costs (General Fund) to the
DSS to provide county child welfare agencies with all
additional information used to make the determination to grant
exemptions.
4)Potentially significant non-reimbursable costs (Local) to
county child welfare agencies to submit fingerprint images to
the DOJ for criminal history information.
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COMMENTS :
DSS Caregiver Background Check Bureau (CBCB) : Under current
law, DSS is required to conduct a criminal background check of
all community care facility licensees and staff applicants. In
order to fulfill this requirement, DSS has established the CBCB
within its Community Care Licensing Division (CCLD). The CBCB
is a unit made up of approximately 80 analysts whose
responsibility is to receive, evaluate, and process criminal
background clearances, exemptions, rejections, or revocations
for all community care facilities required to be licensed under
the CCFA. This includes residential care facilities for the
elderly (RCFE), adult residential facilities (ARF), emergency
homeless youth shelters, child care facilities, including small
and large family child care homes, and foster care placements,
which include foster family homes, group care facilities, and
transitional housing placements for older foster youth.
Consideration of convictions and arrests : Under current law, a
person who wishes to be a foster home caregiver or be employed
by a foster care facility, including a foster family agency,
must undergo a state and federal criminal background check.
This requires applicants to submit their fingerprints to the DOJ
to discover whether they have any convictions that may preclude
them from working in care facilities, which serve some of
California's most vulnerable populations, such as foster youth,
the elderly, and the disabled. If the applicant has no arrests
or convictions, the DOJ provides DSS with a "clearance notice,"
which allows DSS to continue its licensing and certification
review of the applicant.
However, if it is discovered that a person has been convicted of
a crime, other than a minor traffic violation, the applicant
cannot receive a criminal background clearance until a further
investigation is conducted. If, through this additional
evaluation, it is discovered that an individual has been
convicted of a non-exemptible crime, such as rape, a sex
offense, murder, or fiscal malfeasance, then a criminal
background clearance cannot be provided.
Additionally, a person's arrest record is permitted to be taken
into account. However, current law specifically forbids an
arrest record from being used to deny or terminate a prospective
or current employee or licensee. Still, DSS may use an
incidence of arrest as reason to conduct a further investigation
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into the applicant's background to determine whether the
individual may pose a threat to the health and safety of clients
or residents of a care facility. In conducting the
investigation, DSS is required to obtain information relating to
the nature and cause of the arrest and any other information or
evidence that may be used in an administrative hearing to make
the determination that the individual does or does not pose a
threat. This results in DSS having to acquire arrest record
information from the responsible law enforcement agency.
In cases where an applicant has been convicted of an exemptible
crime, DSS, through its CBCB, is required to process an
exemption only if requested by the applicant. If requested, the
CBCB is required, by both federal and state laws and
regulations, to conduct a thorough investigation and evaluation
of the applicant, including:<1>
1)The nature of the crime including, but not limited to, whether
it involved violence or a threat of violence to others;
2)The applicant's age at the time the crime(s) was committed and
how much time has passed since the commission of the crime(s);
3)The circumstances surrounding the commission of the crime that
would demonstrate the unlikelihood of repetition;
4)Activities since conviction, including whether the applicant
is on probation, is employed or participating therapy or
education, that would indicate changed behavior;
5)Whether the Governor granted a full and unconditional pardon;
6)Character references, including evidence of honesty and
truthfulness as provided by the applicant and reflected in his
or her criminal record statement;
7)Whether a certificate of rehabilitation was awarded by the
court; and
8)The type of facility for which the applicant wants to be
employed.
---------------------------
<1> � 80019.1. Criminal Record Exemption. Title 22. California
Code of Regulation.
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It should also be noted that the CBCB may deny an exemption if
the applicant fails to comply with any portion of the
application process, fails to respond to any requests of DSS
relating to additional information or clarification, and if it
is determined that the applicant is not of such good character
as to justify issuance of an exemption.
Role of counties in the evaluation and selection of foster
family homes : Current licensing law is complicated, but
specific as to whether licensing functions may be administered
at the state or county level on a county-by-county basis. The
purpose is to allow county CWAs, through a contract with the
state, to conduct their own licensing functions in order to make
appropriate foster care placements. Currently, CDSS has
established contracts with 39 counties to perform licensing
activities for 69% of the state's foster family homes.
Contracting counties are required under statute and contract to
follow most of the state's statutory and regulatory requirements
for licensure of these facilities.
State law also permits county CWAs to contract with foster
family agencies (FFA), which are licensed through the state, to
recruit and retain foster family homes and group care
facilities. Under these arrangements, county CWAs provide
oversight of FFAs, which are permitted under state law to
certify that foster family homes and group care facilities
comply with state law, including licensing requirements. As a
result, foster family homes and group care facilities operated
by FFAs are not licensed by DSS, rather, they are certified to
be in compliance with state licensing laws by the FFA and
therefore deemed to be equivalent to a license.
County CWAs are permitted to conduct criminal background checks
on specified individuals for the following reasons:
1) To conduct an investigation involving alleged abuse or
neglect against a child;
2) To assess the appropriateness of placement of a child
with a relative or NREFM;
3) To attempt to locate a parent or guardian of a child who
is the subject of a dependency petition; and
4) To assess the appropriate placement for the re-entry of
a nonminor into extended foster care.
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Under this permission, relative and NREFM caregivers are treated
differently due to the stated policy preference of state and
federal child welfare law that blood relatives and NREFMs are
prioritized for consideration of placement for the child.
Through this authority, relative and NREFM placements are
required to undergo a criminal background check, on an emergency
basis. As a matter of state policy, this allows county CWAs to
conduct an immediate criminal background check for relatives and
NREFMS only in order to immediately place a child who has been
removed from his or her family in a timely manner.
Need for the bill : Stating the need for the bill, the author
writes:
When the state removes children from their homes for their
personal safety, the state and county assume an obligation
to keep these vulnerable children from greater abuse or
neglect a second time. Yet state law prohibits the sharing
of vital applicant criminal waiver information with county
welfare agencies, responsible for the placement of at-risk
and special needs children.
Foster Family Agencies (FFAs) are privately operated,
nonprofit agencies, licensed to recruit, certify, train and
support foster parents for children needing placements for
more intensive care - as an alternate to group homes.
Private agencies now care for 15,000 children statewide,
yet county child welfare workers are legally barred from
knowing the facts involving criminal exemptions given to
potential foster parents.
Even though child safety is a top priority for all child
welfare workers, county welfare agencies are required to
place children in "safe homes" with limited information.
Recent accounts of abuse and 4 child deaths within private
foster family agencies tragically demonstrate with urgency,
the need to change current law.
Writing as the sponsor of this measure, the County of Los
Angeles states:
The Department of Child and Family Services strongly
believes that the background of the criminal history
exemption is critical information to ensure that a thorough
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evaluation is completed to deem the placement is
appropriate prior to placing a child in the FFA home. This
background is also necessary to continue monitoring the
child's stability in the FFA home and in other placements.
[This bill] would permit county child welfare agencies to
secure the necessary criminal history information and to
ensure a safe and secure placement.
Writing in opposition to the bill, the American Civil Liberties
Union of California writes:
[This bill] creates a duplicative process for the state and
local agencies. Under this bill DSS would send criminal
history information to local child welfare agencies. This
is criminal history information that the DSS has already
carefully considered about foster parents whom the DSS has
already decided to grant a license. This exemption process
is a thorough vetting process that affords the person a
fair chance to correct and respond to any information about
them that the agency considers; [this bill] affords no
similar process.
If there is a legitimate concern about DSS's exemption
process, then we suggest that it be dealt head on by
evaluating DSS's process and determining what needs to be
addressed. A second layer of scrutiny by county official
does not seem appropriate.
Moreover, local agencies will have to put in place
resource-intensive processes to ensure a fair and lawful
process in their review of and reliance on criminal
information that provides limited information. The
information to be shared will be outdated by the time the
local agencies receive it, and this bill violates important
privacy provisions under California law because disclosure
of arrest-only information (where there person was arrested
by never convicted of a crime) violates current law.
Essentially, [this bill] would allow dissemination of
information that is not dispositive of someone's fitness to
be a foster parent.
This overbroad sharing of criminal history information and
welfare workers' consideration of it is duplicative and
unnecessary. DSS would not have granted the foster parent a
license unless they met the criteria for fitness to be a
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foster parent. No data or reports show that there are
elevated risks to foster children living with foster
parents licensed by DSS through the exemption process, and
there is a real risk that this bill may have the effect of
diverting time and attention away from the placements where
foster children face threats.
Staff comments : Currently, 39 of the state's 58 counties
contract with DSS to perform its own licensing of foster care
placements in those counties. Prior to 1990, the County of Los
Angeles contracted with DSS to conduct its own licensing,
however, that authority was relinquished in 1990. This has
resulted in the county only being authorized to receive criminal
background information for relative and NREFM caregivers, but
not other forms of foster care placements, such as licensed
foster family homes and group care facilities.
It should be noted that although this information would prove
beneficial to a Child Protective Services (CPS) social worker,
when determining placement of a child in foster care, it is not
and should not be the only factor taken into account. Rather,
current law and practice provide social workers wide latitude in
taking a number of objective and subjective criteria into
account when determining the appropriate placement of children
in foster care. Additionally, just because an individual has
been licensed to provide foster care, it does not entitle the
individual to the placement of a child in foster care in his or
her home.
When this bill was heard by the Senate Human Services Committee,
DOJ provided technical assistance in response to concerns about
providing summary criminal background information to county CWAs
without adjoining language providing authority to counties to
receive such information. Under Penal Code 11105, summary
criminal history information is defined as the master record of
information, which is compiled by the Attorney General in
relation to the identification and criminal history of any
person. However, this is detailed and broad information that is
beyond the scope of intent of this measure. As stated by the
sponsor, this bill is intended to provide additional information
as to the reasons why a criminal history exemption was provided
so that a county CWA may take the reasons for the exemption into
consideration when weighing whether a particular foster care
placement is appropriate. This can be done through providing
information on the reasons why an applicant was provided an
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exemption, rather than inadvertently undermining the current
process of allowing the state to contract with county CWAs to
conduct their own criminal background checks for the purposes of
licensing foster family homes and group care facilities.
Additionally, this language allows county CWAs to conduct what
essentially would be a second criminal background check on
licensed foster care providers who have received an exemption
through the state's community care licensing process. This is
unnecessary, as it would create another layer of bureaucracy
that would be unlikely to uncover any additional information due
to the fact that the state already conducted a criminal
background check on the licensee. In response to concerns that
an already licensed, and thus cleared foster care provider could
have been convicted of a crime other than a traffic violation
while serving as a foster care placement, current law already
provides specific authority and requires that if such an
incident occurs, the state and county have to take immediate
action to evaluate the licensee and determine whether an
exemption should be provided or whether the license should be
revoked and the child(ren) immediately removed from the
licensee's care.
RECOMMENDED AMENDMENTS :
In order to fulfill the intent of this bill, as stated by the
author and sponsor, it should be amended to clarify that what is
meant by "summary information used in making the determination
to grant the exemption" is not "state summary criminal history
information" as currently defined in the Penal Code. It should
also be amended to remove amendments to Section 1522 of the
Health and Safety Code and to specified sections of the Penal
Code. The addition of Section 16504.7 to the Welfare and
Institutions Code achieves the author's goal. Therefore the
amendments to Section 1522 of the Health Safety Code are
unnecessary and could unnecessarily complicate its current
requirements.
Additionally, the amendments to Sections 11105.2 and 11170 of
the Penal Code are unnecessary as the intent of the measure is
not to provide county authority to obtain "state summary
criminal history information" beyond what is already permitted
current law, but rather general summary information related to
the reasons why DSS provided a criminal exemption.
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Specifically, committee staff recommends the following
amendments:
Amendment #1
Delete Sections one, three, four and five of the bill.
Amendment #2
Amend Section six of the bill to read:
16504.7. (a) Upon the request of a county child welfare
agency, the The department shall provide to a county child
welfare agency a list of each person who has received a
criminal records exemption pursuant to subdivision (g) of
Section 1522 of the Health and Safety Code related to a
licensed or certified foster home so that the county may
assess the appropriateness of placing a child who has been
detained or is a dependent of the court in the licensed or
certified foster home with which the individual is
associated.
(b) Except as otherwise limited by state or federal law,
the department shall make available to the county child
welfare agency, summary information used in making the
determination to grant the exemption. The department shall
consult with the Department of Justice, counties, and other
interested stakeholders to ensure that information is
shared expeditiously and in accordance with state and
federal law.
(c) For purposes of this section, "summary information" is
defined as information pertaining to the specific crimes
for which the exemption was requested and a summary of the
evidence the department used in making its determination to
grant the exemption. The information shall be limited to
one page for each crime exempted.
(d) In providing summary information pursuant to this
section, the department shall not disclose the names of
individuals who are not the subject of the exemption
request. County child welfare agencies shall not disclose
information related to the exemption beyond what is
necessary, as determined by the Department and in
accordance with state and federal law, to assess the
appropriateness of placing a child in a licensed or
certified foster home.
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(e) No later than March 1, 2015 and notwithstanding the
rulemaking provisions of the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code), the
Department shall issue an all-county letter specifying the
process as to how summary information may be requested by a
county, how it shall be issued by the Department and how it
may be used by counties in implementation of this section.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME)
Association of Community Human Service Agencies (ACHSA)
California Police Chiefs Associations
California Probation, Parole, and Correctional Association
(CPPCA)
California State Foster Parent Association
Children Now
County of San Diego
County Welfare Directors Association of CA (CWDA)
Los Angeles County Board of Supervisors (sponsor)
National Association of Social Workers, CA Chapter
Orange County Board of Supervisors
Opposition
ACLU of California
Clean State Reentry Legal Servicers Practice, East Bay Community
Law Center
Legal Services for Prisoners with Children
The Social Justice Law Project
Analysis Prepared by : Chris Reefe / HUM. S. / (916) 319-2089