SB 316: Placement of children: criminal records check.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2016-06-22
Existing law requires the State Department of Social Services, before issuing a license or special permit to any person to operate or manage a community care facility, including a foster family home, to secure from an appropriate law enforcement agency a criminal record regarding the applicant, as specified. Existing law requires the department to deny an application if the applicant has been convicted of any crime other than a minor traffic violation unless the applicant has been granted an exemption. Existing law prohibits the department from granting criminal records exemptions if a person has been convicted of certain crimes. Existing law also requires the department to implement a resource family approval process, as specified, that includes a criminal records clearance of all adults residing in, or regularly present in, the home. Existing law makes the criminal records exemption criteria applicable to foster care provider applicants applicable to resource family applicants.
This bill would authorize the department, or, in the case of a resource family applicant, an early implementation county, to grant a criminal records exemption for a foster care provider applicant or resource family applicant for certain crimes previously ineligible for exemption. The bill would also require, if a foster care provider applicant or resource family applicant has been convicted of an offense that is not specifically eligible or ineligible for exemption, the criminal history to be considered as part of the foster care provider licensing process or resource family approval process. The bill would require the department to consider all reasonably available information when determining whether to grant criminal records exemptions for any community care facility applicant.
Existing law requires the county welfare department, prior to temporarily placing a child with a relative or nonrelative extended family member, to consider the results of a criminal records check, as specified. Existing law also requires the county social worker, prior to placing a child in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, to consider the results of a criminal records check, as specified. Existing law prohibits these placements if the person has been convicted of any crime other than a minor traffic violation, unless an exemption has been granted, as specified.
This bill would authorize placement, or temporary placement, as applicable, of the child pending approval of a criminal records exemption if all parties agree that the placement is in the best interests of the child. The bill would also require, if the person has been convicted of an offense that is not specifically eligible or ineligible for exemption, the criminal history to be considered in determining if the placement is in the best interest of the child.
By imposing a higher level of service on county employees, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law requires the State Department of Social Services, before issuing a license or special permit to any person to operate or manage a community care facility, including a foster family home, to secure from an appropriate law enforcement agency a criminal record regarding the applicant, as specified. Existing law requires the department to deny an application if the applicant has been convicted of any crime other than a minor traffic violation unless the applicant has been granted an exemption. Existing law prohibits the department from granting criminal records exemptions if a person has been convicted of certain crimes. Existing law also requires the department to implement a resource family approval process, as specified, that includes a criminal records clearance of all adults residing in, or regularly present in, the home. Existing law makes the criminal records exemption criteria applicable to foster care provider applicants applicable to resource family applicants.
This bill would authorize the department, or, in the case of a resource family applicant, an early implementation county, to grant a criminal records exemption for a foster care provider applicant or resource family applicant for certain crimes previously ineligible for exemption. The bill would also require, if a foster care provider applicant or resource family applicant has been convicted of an offense that is not specifically eligible or ineligible for exemption, the criminal history to be considered as part of the foster care provider licensing process or resource family approval process. The bill would require the department to consider all reasonably available information when determining whether to grant criminal records exemptions for any community care facility applicant.
Existing law requires the county welfare department, prior to temporarily placing a child with a relative or nonrelative extended family member, to consider the results of a criminal records check, as specified. Existing law also requires the county social worker, prior to placing a child in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, to consider the results of a criminal records check, as specified. Existing law prohibits these placements if the person has been convicted of any crime other than a minor traffic violation, unless an exemption has been granted, as specified.
This bill would authorize placement, or temporary placement, as applicable, of the child pending approval of a criminal records exemption if all parties agree that the placement is in the best interests of the child. The bill would also require, if the person has been convicted of an offense that is not specifically eligible or ineligible for exemption, the criminal history to be considered in determining if the placement is in the best interest of the child.
By imposing a higher level of service on county employees, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law requires the juvenile court to appoint counsel for a child or nonminor dependent in dependency proceedings if he or she is not represented by counsel, unless the court determines that there would be no benefit from the appointment of counsel. Existing law authorizes counsel to be a district attorney, public defender, or other member of the bar who satisfies certain conditions. Existing law authorizes the court to fix the compensation for the services of appointed counsel. Existing law requires the Judicial Council to promulgate rules of court to establish caseload standards, training requirements, and guidelines for appointed counsel.
This bill would prohibit counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds a certain number of clients, as specified. The bill would delete the requirement that the Judicial Council promulgate rules of court to establish caseload standards.
Existing law requires the juvenile court to appoint counsel for a child or nonminor dependent in dependency proceedings if he or she is not represented by counsel, unless the court determines that there would be no benefit from the appointment of counsel. Existing law authorizes counsel to be a district attorney, public defender, or other member of the bar who satisfies certain conditions. Existing law authorizes the court to fix the compensation for the services of appointed counsel. Existing law requires the Judicial Council to promulgate rules of court to establish caseload standards, training requirements, and guidelines for appointed counsel.
This bill would prohibit counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds a certain number of clients, as specified. The bill would delete the requirement that the Judicial Council promulgate rules of court to establish caseload standards.
(a)The department, county adoption agency, or licensed adoption agency shall require each person who files an application for adoption to be fingerprinted and shall secure from an appropriate law enforcement agency any criminal record of that person to determine whether the person has ever been convicted of a crime other than a minor traffic violation. The department, county adoption agency, or licensed adoption agency may also secure the persons full criminal record, if any, with the exception of any convictions for which relief has been granted pursuant to Section 1203.49 of the Penal Code. A federal-level criminal offender record request to the Department of Justice shall be submitted with fingerprint images and related information required by the Department of Justice for the purposes of obtaining information as to the existence and content of a record of an out-of-state or federal conviction or arrest of a person or information regarding any out-of-state or federal crimes or arrests for which the Department of Justice establishes that the person is free on bail, or on his or her own recognizance pending trial or appeal. The Department of Justice shall forward to the Federal Bureau of Investigation any requests for federal summary criminal history information received pursuant to this section. The Department of Justice shall review the information returned from the Federal Bureau of Investigation and shall compile and disseminate a response to the department, county adoption agency, or licensed adoption agency.
(b)Notwithstanding subdivision (c), the criminal record, if any, shall be taken into consideration when evaluating the prospective adoptive parent, and an assessment of the effects of any criminal history on the ability of the prospective adoptive parent to provide adequate and proper care and guidance to the child shall be included in the report to the court.
(c)The department, county adoption agency, or licensed adoption agency shall not give final approval for an adoptive placement in any home in which the prospective adoptive parent or any adult living in the prospective adoptive home has been convicted of an offense for which an exemption cannot be granted pursuant to subparagraph (C) (A) of paragraph (1) (2) of subdivision (g) of Section 1522 of the Health and Safety Code.
(d)Any fee charged by a law enforcement agency for fingerprinting or for checking or obtaining the criminal record of the applicant shall be paid by the applicant. The department, county adoption agency, or licensed adoption agency may defer, waive, or reduce the fee when its payment would cause economic hardship to prospective adoptive parents detrimental to the welfare of the adopted child, when the child has been in the foster care of the prospective adoptive parents for at least one year, or if necessary for the placement of a special-needs child.
SEC. 2.Section 1522 of the Health and Safety Code is amended to read:1522.The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a community care facility, foster family home, or a certified family home of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified in the long-range plan of the Department of Justice for fully automating the processing of fingerprints and other data by the year 1999, otherwise known as the California Crime Information Intelligence System (CAL-CII), to be used for applicant fingerprints. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person or persons to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, subdivision (b) of Section 273a of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)Except during the 200304 to the 201617 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or less children or for obtaining a criminal record of the applicant pursuant to this section.
(4)The following shall apply to the criminal record information:
(A)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (g).
(B)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record information has been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)If the State Department of Social Services finds after licensure that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (g).
(E)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction, as prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5.
(F)The State Department of Social Services shall develop procedures to provide the individuals state and federal criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. Receipt of the criminal history information shall be optional on the part of the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.
(G)Notwithstanding any other law, the department is authorized to provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request. The department shall retain a copy of the individuals written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility or certified family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or certified family home. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional as defined in department regulations who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility and are in the facility at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the licensed or certified foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the licensee or certified parent are not left alone with the foster children. However, the licensee or certified parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, licensed or certified foster parent, or both are also present. However, the licensee or certified parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by any licensed or certified foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following applies:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)Nothing in this subdivision shall prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in subdivision (a). If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprints, notify the licensee that the fingerprints were illegible, the Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also notify the licensee by mail, within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal history recorded. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility; or (B) seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption from disqualification pursuant to this paragraph.
(5)Concurrently with notifying the licensee pursuant to paragraph (3), the department shall notify the affected individual of his or her right to seek an exemption from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home or certified family home as described in Section 1506, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home or certified family home applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home or a certified family home, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving agency.
(D)To the same extent required for federal funding, an applicant for a foster family home license or for certification as a family home, and any other person specified in subdivision (b) who is not exempt from fingerprinting, shall submit a set of fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure or certification, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family or certified family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. A violation of the regulation adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the director grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds after licensure or the granting of the certificate of approval that the licensee, certified foster parent, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked by the department or the foster family agency, whichever is applicable, unless the director grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, or terminate any application, license, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a, of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services is authorized to obtain any arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that the State Department of Social Services is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this section or any other provision of this chapter, the arrest disposition report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court as if the criminal offense was committed in this state.
(g)(1)Except as otherwise provided in this subdivision with respect to a foster care provider applicant or resource family applicant, after review of the record, the director may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption shall not be granted pursuant to this subdivision if the conviction was for either of the following offenses:
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)Notwithstanding clause (i), the director may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employees county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall not apply to foster care providers, including relative caregivers, nonrelated extended family members, or any other person specified in subdivision (b), in those homes where the individual has been convicted of an offense described in paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.
(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any other person specified in subdivision (b) in the applicants home, has a felony conviction for either of the following offenses:
(i)A felony conviction for 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 any offense described in subdivision (c) of Section 667.5 of the Penal Code, but not including other physical assault and battery.
(ii)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(iii)This subparagraph shall not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) or (ii) prior to the enactment of this subparagraph.
(iv)This subparagraph shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)If a foster care provider applicant, resource family applicant, or any other person specified in subdivision (b) in the applicants home has been convicted of any of the following offenses, except when that offense is also described in subparagraph (A), the department shall determine whether to grant an exemption:
(i)Any felony or misdemeanor conviction for willful harm or injury to a child as defined in Section 273a of the Penal Code, elder abuse as defined by Section 368 of the Penal Code, sexual abuse or exploitation by a licensed professional as defined by Section 729 of the Business and Professions Code, any offense involving child sexual abuse, assault, or exploitation, as defined in Section 11165.1 of the Penal Code, or any offense for which registration is required pursuant to subdivision (c) of Section 290 of the Penal Code.
(ii)Any misdemeanor conviction within the last five years.
(iii)Any felony conviction within the last seven years.
(C)If a foster care provider applicant, resource family applicant, or any other person specified in subdivision (b) in the applicants home has been convicted of an offense not listed in subparagraph (A) or (B), the criminal history shall be considered as part of the foster care provider licensing process or resource family approval process.
(D)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction described in subparagraph (A) or (B) prior to the effective date of the act that added this subparagraph.
(3)In determining whether to grant an exemption, the department shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(4)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558.
(h)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the State Department of Social Services, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the State Department of Social Services shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.
(3)The following shall apply to a criminal record clearance or exemption from the department or a county office with department-delegated licensing authority:
(A)A county office with department-delegated licensing authority may accept a clearance or exemption from the department.
(B)The department may accept a clearance or exemption from any county office with department-delegated licensing authority.
(C)A county office with department-delegated licensing authority may accept a clearance or exemption from any other county office with department-delegated licensing authority.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by the department or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall process a request from the department or a county office with department-delegated licensing authority to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption authority, a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(5)(A)A county child welfare agency with authority to secure clearances pursuant to Section 16504.5 of the Welfare and Institutions Code and to grant exemptions pursuant to Section 361.4 of the Welfare and Institutions Code may accept a clearance or exemption from another county with criminal record and exemption authority pursuant to these sections.
(B)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by a county child welfare agency with criminal record clearance and exemption authority, the Department of Justice shall process a request from a county child welfare agency with criminal record and exemption authority to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii)The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain all prescribed data elements and format protocols pursuant to a written agreement between the State Department of Social Services and the Department of Justice.
(i)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any employee based on written notification from the state department that the employee has a prior criminal conviction or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
(l)Amendments to this section made in the 1999 portion of the 19992000 Regular Session shall be implemented commencing 60 days after the effective date of the act amending this section in the 1999 portion of the 19992000 Regular Session, except that those provisions for the submission of fingerprints for searching the records of the Federal Bureau of Investigation shall be implemented 90 days after the effective date of that act.
SEC. 3.Section 309 of the Welfare and Institutions Code is amended to read:309.(a)Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the childs being taken into custody and attempt to maintain the child with the childs family through the provision of services. The social worker shall immediately release the child to the custody of the childs parent, guardian, or responsible relative, regardless of the parents, guardians, or relatives immigration status, unless one or more of the following conditions exist:
(1)The child has no parent, guardian, or responsible relative; or the childs parent, guardian, or responsible relative is not willing to provide care for the child.
(2)Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative.
(3)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court.
(4)The child has left a placement in which he or she was placed by the juvenile court.
(5)The parent or other person having lawful custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code and did not reclaim the child within the 14-day period specified in subdivision (e) of that section.
(b)In any case in which there is reasonable cause for believing that a child who is under the care of a physician and surgeon or a hospital, clinic, or other medical facility and cannot be immediately moved and is a person described in Section 300, the child shall be deemed to have been taken into temporary custody and delivered to the social worker for the purposes of this chapter while the child is at the office of the physician and surgeon or the medical facility.
(c)If the child is not released to his or her parent or guardian, the child shall be deemed detained for purposes of this chapter.
(d)(1)If an able and willing relative, as defined in Section 319, or an able and willing nonrelative extended family member, as defined in Section 362.7, is available and requests temporary placement of the child pending the detention hearing, or after the detention hearing and pending the dispositional hearing conducted pursuant to Section 358, the county welfare department shall initiate an assessment of the relatives or nonrelative extended family members suitability, which shall include an in-home inspection to assess the safety of the home and the ability of the relative or nonrelative extended family member to care for the childs needs, and a consideration of the results of a criminal records check conducted pursuant to subdivision (a) of Section 16504.5 and a check of allegations of prior child abuse or neglect concerning the relative or nonrelative extended family member and other adults in the home. A relatives identification card from a foreign consulate or foreign passport shall be considered a valid form of identification for conducting a criminal records check and fingerprint clearance check under this subdivision. Upon completion of this assessment, the child may be placed in the assessed home. For purposes of this paragraph, and except for the criminal records check conducted pursuant to subdivision (a) of Section 16504.5, the standards used to determine suitability shall be the same standards set forth in the regulations for the licensing of foster family homes.
(2)Immediately following the placement of a child in the home of a relative or a nonrelative extended family member, the county welfare department shall evaluate and approve or deny the home for purposes of AFDC-FC eligibility pursuant to Section 11402. The standards used to evaluate and grant or deny approval of the home of the relative and of the home of a nonrelative extended family member, as described in Section 362.7, shall be the same standards set forth in regulations for the licensing of foster family homes which prescribe standards of safety and sanitation for the physical plant and standards for basic personal care, supervision, and services provided by the caregiver.
(3)To the extent allowed by federal law, as a condition of receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.), if a relative or nonrelative extended family member meets all other conditions for approval, except for the receipt of the Federal Bureau of Investigations criminal history information for the relative or nonrelative extended family member, and other adults in the home, as indicated, the county welfare department may approve the home and document that approval, if the relative or nonrelative extended family member, and each adult in the home, has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after the approval has been granted, the department determines that the relative or nonrelative extended family member or other adult in the home has a criminal record, the approval may be terminated.
(4)(A)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home.
(B)(i)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted under Section 1522 of the Health and Safety Code.
(ii)Notwithstanding clause (i), a child may be placed with a relative or nonrelative extended family member pending a criminal records exemption if all parties agree that the placement is in the best interests of the child. If a child has been residing in the home of a relative or nonrelative extended family member pursuant to this clause, that fact shall be taken into account when determining whether the to grant a criminal records exemption under Section 1522 of the Health and Safety Code.
(C)If the criminal records check indicates that the person has been convicted of any offense other than an offense described in subparagraph (A) or (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the county social worker and the court shall consider the criminal history in determining whether the placement is in the best interests of the child.
(D)If the criminal records check indicates that the person has been arrested for any offense described in paragraph (2) of subdivision (e) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home until the investigation required by paragraph (1) of subdivision (e) of Section 1522 of the Health and Safety Code has been completed and the county social worker and the court have considered the investigation results when determining whether the placement is in the best interests of the child.
(e)(1)If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, and other adult relatives of the child, as defined in paragraph (2) of subdivision (f) of Section 319, including any other adult relatives suggested by the parents. As used in this section, sibling means a person related to the identified child by blood, adoption, or affinity through a common legal or biological parent. The social worker shall provide to all adult relatives who are located, except when that relatives history of family or domestic violence makes notification inappropriate, within 30 days of removal of the child, written notification and shall also, whenever appropriate, provide oral notification, in person or by telephone, of all the following information:
(A)The child has been removed from the custody of his or her parent or parents, or his or her guardians.
(B)An explanation of the various options to participate in the care and placement of the child and support for the childs family, including any options that may be lost by failing to respond. The notice shall provide information about providing care for the child while the family receives reunification services with the goal of returning the child to the parent or guardian, how to become a foster family home or approved relative or nonrelative extended family member as defined in Section 362.7, and additional services and support that are available in out-of-home placements. The notice shall also include information regarding the Kin-GAP Program (Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3 of Division 9), the CalWORKs program for approved relative caregivers (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9), adoption, and adoption assistance (Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9), as well as other options for contact with the child, including, but not limited to, visitation. The State Department of Social Services, in consultation with the County Welfare Directors Association of California and other interested stakeholders, shall develop the written notice.
(2)The social worker shall also provide the adult relatives notified pursuant to paragraph (1) with a relative information form to provide information to the social worker and the court regarding the needs of the child. The form shall include a provision whereby the relative may request the permission of the court to address the court, if the relative so chooses. The Judicial Council, in consultation with the State Department of Social Services and the County Welfare Directors Association of California, shall develop the form.
(3)The social worker shall use due diligence in investigating the names and locations of the relatives pursuant to paragraph (1), including, but not limited to, asking the child in an age-appropriate manner about relatives important to the child, consistent with the childs best interest, and obtaining information regarding the location of the childs adult relatives. Each county welfare department shall create and make public a procedure by which relatives of a child who has been removed from his or her parents or guardians may identify themselves to the county welfare department and be provided with the notices required by paragraphs (1) and (2).
SEC. 4.Section 361.4 of the Welfare and Institutions Code is amended to read:361.4.(a)Prior to placing a child in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall visit the home to ascertain the appropriateness of the placement.
(b)(1)Whenever a child may be placed in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, the court or county social worker placing the child shall cause a state-level criminal records check to be conducted by an appropriate government agency through the California Law Enforcement Telecommunications System (CLETS) pursuant to Section 16504.5. The criminal records check shall be conducted with regard to all persons over 18 years of age living in the home, and on any other person over 18 years of age, other than professionals providing professional services to the child, known to the placing entity who may have significant contact with the child, including any person who has a familial or intimate relationship with any person living in the home. A criminal records check may be conducted pursuant to this section on any person over 14 years of age living in the home who the county social worker believes may have a criminal record. Within 10 calendar days following the criminal records check conducted through the California Law Enforcement Telecommunications System, the social worker shall ensure that a fingerprint clearance check of the relative and any other person whose criminal record was obtained pursuant to this subdivision is initiated through the Department of Justice to ensure the accuracy of the criminal records check conducted through the California Law Enforcement Telecommunications System and shall review the results of any criminal records check to assess the safety of the home. The Department of Justice shall forward fingerprint requests for federal-level criminal history information to the Federal Bureau of Investigation pursuant to this section.
(2)An identification card from a foreign consulate or foreign passport shall be considered a valid form of identification for conducting a criminal records check and fingerprint clearance check under this subdivision and under subdivision (c).
(c)Whenever a child may be placed in the home of a relative, or a prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall cause a check of the Child Abuse Central Index pursuant to subdivision (a) of Section 11170 of the Penal Code to be requested from the Department of Justice. The Child Abuse Central Index check shall be conducted on all persons over 18 years of age living in the home. For any application received on or after January 1, 2008, if any person in the household is 18 years of age or older and has lived in another state in the preceding five years, the county social worker shall check the other states child abuse and neglect registry to the extent required by federal law.
(d)(1)If the results of the California and federal criminal records check indicates that the person has no criminal record, the county social worker and court may consider the home of the relative, prospective guardian, or other person who is not a licensed or certified foster parent for placement of a child.
(2)(A)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home.
(B)(i)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted under Section 1522 of the Health and Safety Code.
(ii)Notwithstanding clause (i), a child may be placed with a relative or nonrelative extended family member pending a criminal records exemption if all parties agree that the placement is in the best interests of the child. If a child has been residing in the home of a relative or nonrelative extended family member pursuant to this clause, that fact shall be taken into account when determining whether the to grant a criminal records exemption under Section 1522 of the Health and Safety Code.
(C)If the criminal records check indicates that the person has been convicted of any offense other than an offense described in subparagraph (A) or (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the social worker and the court shall consider the criminal history in determining whether the placement is in the best interests of the child.
(D)If the criminal records check indicates that the person has been arrested for any offense described in paragraph (2) of subdivision (e) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home until the investigation required by paragraph (1) of subdivision (e) of Section 1522 of the Health and Safety Code has been completed and the county social worker and the court have considered the investigation results when determining whether the placement is in the best interests of the child.
(3)(A)A county may issue a criminal records exemption only if that county has been granted permission by the Director of Social Services to issue criminal records exemptions. The county may file a request with the Director of Social Services seeking permission for the county to establish a procedure to evaluate and grant appropriate individual criminal records exemptions for persons described in subdivision (b). The director shall grant or deny the countys request within 14 days of receipt. The county shall evaluate individual criminal records in accordance with the standards and limitations set forth in subdivision (g) of Section 1522 of the Health and Safety Code, and in no event shall the county place a child in the home of a person who is ineligible for an exemption under that provision.
(B)The department shall monitor county implementation of the authority to grant an exemption under this paragraph to ensure that the county evaluates individual criminal records and allows or disallows placements according to the standards set forth in subdivision (g) of Section 1522 of the Health and Safety Code.
(4)The department shall conduct an evaluation of the implementation of paragraph (3) through random sampling of county exemption decisions.
(5)The State Department of Social Services shall not evaluate or grant criminal records exemption requests for persons described in subdivision (b), unless the exemption request is made by an Indian tribe pursuant to subdivision (f).
(6)If a county has not requested, or has not been granted, permission by the State Department of Social Services to establish a procedure to evaluate and grant criminal records exemptions, the county shall not place a child into the home of a person described in subdivision (b) if any person residing in the home has been convicted of a crime other than a minor traffic violation, except as provided in subdivision (f).
(e)Nothing in this section shall preclude a county from conducting a criminal background check that the county is otherwise authorized to conduct using fingerprints.
(f)The State Department of Social Services shall evaluate a request from an Indian tribe to exempt a crime that is eligible for exemption under Section 1522 of the Health and Safety Code, if needed, to allow placement into an Indian home that the tribe has designated for placement under the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). However, if the county with jurisdiction over the child that is the subject of the tribes request has established an approved procedure pursuant to paragraph (3) of subdivision (d), the tribe may request that the county evaluate the exemption request. Once a tribe has elected to have the exemption request reviewed by either the State Department of Social Services or the county, the exemption decision may only be made by that entity. Nothing in this subdivision limits the duty of a county social worker to evaluate the home for placement or to gather information needed to evaluate an exemption request.
SEC. 5.Section 16519.5 of the Welfare and Institutions Code is amended to read:16519.5.(a)The State Department of Social Services, in consultation with county child welfare agencies, foster parent associations, and other interested community parties, shall implement a unified, family friendly, and child-centered resource family approval process to replace the existing multiple processes for licensing foster family homes, approving relatives and nonrelative extended family members as foster care providers, and approving adoptive families.
(b)(1)Counties shall be selected to participate on a voluntary basis as early implementation counties for the purpose of participating in the initial development of the approval process. Early implementation counties shall be selected according to criteria developed by the department in consultation with the County Welfare Directors Association. In selecting the five early implementation counties, the department shall promote diversity among the participating counties in terms of size and geographic location.
(2)Additional counties may participate in the early implementation of the program upon authorization by the department.
(c)(1)For the purposes of this chapter, resource family means an individual or couple that a participating county or foster family agency, as defined in subdivision (g) of Section 11400 of this code, and paragraph (4) of subdivision (a) of Section 1502 of the Health and Safety Code, determines to have successfully met both the home environment assessment standards and the permanency assessment criteria adopted pursuant to subdivision (d) necessary for providing care for a related or unrelated child who is under the jurisdiction of the juvenile court, or otherwise in the care of a county child welfare agency or probation department. A resource family shall demonstrate all of the following:
(A)An understanding of the safety, permanence, and well-being needs of children who have been victims of child abuse and neglect, and the capacity and willingness to meet those needs, including the need for protection, and the willingness to make use of support resources offered by the agency, or a support structure in place, or both.
(B)An understanding of childrens needs and development, effective parenting skills or knowledge about parenting, and the capacity to act as a reasonable, prudent parent in day-to-day decisionmaking.
(C)An understanding of his or her role as a resource family and the capacity to work cooperatively with the agency and other service providers in implementing the childs case plan.
(D)The financial ability within the household to ensure the stability and financial security of the family.
(E)An ability and willingness to provide a family setting that promotes normal childhood experiences that serves the needs of the child.
(2)Subsequent to meeting the criteria set forth in this subdivision and designation as a resource family, a resource family shall be considered eligible to provide foster care for related and unrelated children in out-of-home placement, shall be considered approved for adoption or guardianship, and shall not have to undergo any additional approval or licensure as long as the family lives in a county participating in the program.
(3)Resource family approval means that the applicant successfully meets the home environment assessment and permanency assessment standards. This approval is in lieu of the existing foster care license, relative or nonrelative extended family member approval, and the adoption home study approval.
(4)Approval of a resource family does not guarantee an initial or continued placement of a child with a resource family.
(5)Notwithstanding paragraphs (1) to (4), inclusive, the department or county may cease any further review of an application if the applicant has had a previous application denial within the preceding year, or if the applicant has had a previous rescission, revocation, or exemption denial or rescission by the department or county within the preceding two years. However, the department or county may continue to review an application if it has determined that the reasons for the previous denial, rescission, or revocation were due to circumstances and conditions that either have been corrected or are no longer in existence. If an individual was excluded from a resource family home or facility licensed by the department, the department or county shall cease review of the individuals application unless the excluded individual has been reinstated pursuant to Section 11522 of the Government Code. The cessation of review shall not constitute a denial of the application for purposes of this section or any other law.
(d)Prior to implementation of this program, the department shall adopt standards pertaining to the home environment and permanency assessments of a resource family.
(1)Resource family home environment assessment standards shall include, but not be limited to, all of the following:
(A)(i)(I)Criminal records clearance of all adults residing in, or regularly present in, the home, and not exempted from fingerprinting, as set forth in subdivision (b) of Section 1522 of the Health and Safety Code, pursuant to Section 8712 of the Family Code, utilizing a check of the Child Abuse Central Index (CACI), and receipt of a fingerprint-based state and federal criminal offender record information search response. The criminal history information shall include subsequent notifications pursuant to Section 11105.2 of the Penal Code.
(II)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, home approval shall be denied.
(III)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted under subclause (V).
(IV)If the criminal records check indicates that the person has been convicted of any crime other than a crime described in subclause (II) or (III), the criminal history shall be considered in the psychosocial assessment conducted pursuant to subparagraph (B) of paragraph (2) in determining whether to approve the home.
(V)Exemptions from the criminal records clearance requirements set forth in this section may be granted by the director or the early implementation county, if that county has been granted permission by the director to issue criminal records exemptions pursuant to Section 361.4, using the exemption criteria currently used for foster care licensing as specified in paragraph (3) of subdivision (g) of Section 1522 of the Health and Safety Code.
(ii)For public foster family agencies approving resource families, the criminal records clearance process set forth in clause (i) shall be utilized.
(iii)For private foster family agencies approving resource families, the criminal records clearance process set forth in clause (i) shall be utilized, but the Department of Justice shall disseminate a fitness determination resulting from the federal criminal offender record information search.
(B)Consideration of any substantiated allegations of child abuse or neglect against either the applicant or any other adult residing in the home.
(C)Buildings and grounds and storage requirements set forth in Sections 89387 and 89387.2 of Title 22 of the California Code of Regulations.
(D)In addition to the foregoing requirements, the resource family home environment assessment standards shall also require the following:
(i)That the applicant demonstrate an understanding about the rights of children in care and his or her responsibility to safeguard those rights.
(ii)That the total number of children residing in the home of a resource family shall be no more than the total number of children the resource family can properly care for, regardless of status, and shall not exceed six children, unless exceptional circumstances that are documented in the foster childs case file exist to permit a resource family to care for more children, including, but not limited to, the need to place siblings together.
(iii)That the applicant understands his or her responsibilities with respect to acting as a reasonable and prudent parent, and maintaining the least restrictive environment that serves the needs of the child.
(2)The resource family permanency assessment standards shall include, but not be limited to, all of the following:
(A)The applicant shall complete caregiver training.
(B)(i)The applicant shall complete a psychosocial assessment, which shall include the results of a risk assessment.
(ii)A caregiver risk assessment shall include, but shall not be limited to, physical and mental health, alcohol and other substance use and abuse, family and domestic violence, and the factors listed in subparagraphs (A) and (D) of paragraph (1) of subdivision (c).
(C)The applicant shall complete any other activities that relate to a resource familys ability to achieve permanency with the child.
(e)(1)A child may be placed with a resource family that has successfully completed the home environment assessment prior to completion of a permanency assessment only if a compelling reason for the placement exists based on the needs of the child.
(2)The permanency assessment shall be completed within 90 days of the childs placement in the home, unless good cause exists based upon the needs of the child.
(3)If additional time is needed to complete the permanency assessment, the county shall document the extenuating circumstances for the delay and generate a timeframe for the completion of the permanency assessment.
(4)The county shall report to the department on a quarterly basis the number of families with a child in an approved home whose permanency assessment goes beyond 90 days and summarize the reasons for these delays.
(5)A child may be placed with a relative, as defined in Section 319, or nonrelative extended family member, as defined in Section 362.7, prior to applying as a resource family only on an emergency basis if all of the following requirements are met:
(A)Consideration of the results of a criminal records check conducted pursuant to Section 16504.5 of the relative or nonrelative extended family member and of every other adult in the home.
(B)Consideration of the results of the Child Abuse Central Index (CACI) consistent with Section 1522.1 of the Health and Safety Code of the relative or nonrelative extended family member, and of every other adult in the home.
(C)The home and grounds are free of conditions that pose undue risk to the health and safety of the child.
(D)For any placement made pursuant to this paragraph, the county shall initiate the home environment assessment no later than five business days after the placement, which shall include a face-to-face interview with the resource family applicant and child.
(E)For any placement made pursuant to this paragraph, AFDC-FC funding shall not be available until approval of the resource family has been completed.
(F)Any child placed under this section shall be afforded all the rights set forth in Section 16001.9.
(f)The State Department of Social Services shall be responsible for all of the following:
(1)Selecting early implementation counties, based on criteria established by the department in consultation with the County Welfare Directors Association.
(2)Establishing timeframes for participating counties to submit an implementation plan, enter into terms and conditions for participation in the program, train appropriate staff, and accept applications from resource families.
(3)Entering into terms and conditions for participation in the program by counties.
(4)Administering the program through the issuance of written directives that shall have the same force and effect as regulations. Any directive affecting Article 1 (commencing with Section 700) of Chapter 7 of Title 11 of the California Code of Regulations shall be approved by the Department of Justice. The directives shall be exempt from 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.
(5)Approving and requiring the use of a single standard for resource family approval.
(6)Adopting and requiring the use of standardized documentation for the home environment and permanency assessments of resource families.
(7)Requiring counties to monitor resource families including, but not limited to, all of the following:
(A)Investigating complaints of resource families.
(B)Developing and monitoring resource family corrective action plans to correct identified deficiencies and to rescind resource family approval if compliance with corrective action plans is not achieved.
(8)Ongoing oversight and monitoring of county systems and operations including all of the following:
(A)Reviewing the countys implementation of the program.
(B)Reviewing an adequate number of approved resource families in each participating county to ensure that approval standards are being properly applied. The review shall include case file documentation, and may include onsite inspection of individual resource families. The review shall occur on an annual basis, and more frequently if the department becomes aware that a participating county is experiencing a disproportionate number of complaints against individual resource family homes.
(C)Reviewing county reports of serious complaints and incidents involving approved resource families, as determined necessary by the department. The department may conduct an independent review of the complaint or incident and change the findings depending on the results of its investigation.
(D)Investigating unresolved complaints against participating counties.
(E)Requiring corrective action of counties that are not in full compliance with the terms and conditions of the program.
(9)Updating the Legislature on the early implementation phase of the program, including the status of implementation, successes, and challenges during the early implementation phase, and relevant available data, including resource family satisfaction.
(10)Implementing due process procedures, including all of the following:
(A)Providing a statewide fair hearing process for denials, rescissions, or exclusion actions.
(B)Amending the departments applicable state hearing procedures and regulations or using the Administrative Procedure Act, when applicable, as necessary for the administration of the program.
(g)Counties participating in the program shall be responsible for all of the following:
(1)Submitting an implementation plan, entering into terms and conditions for participation in the program, consulting with the county probation department in the development of the implementation plan, training appropriate staff, and accepting applications from resource families within the timeframes established by the department.
(2)Complying with the written directives pursuant to paragraph (4) of subdivision (f).
(3)Implementing the requirements for resource family approval and utilizing standardized documentation established by the department.
(4)Ensuring staff have the education and experience necessary to complete the home environment and psychosocial assessments competently.
(5)(A)Taking the following actions, as applicable:
(i)Approving or denying resource family applications.
(ii)Rescinding approvals of resource families.
(iii)Excluding a resource family parent or other individual from presence in a resource family home, consistent with the established standard.
(iv)Issuing a temporary suspension order that suspends the resource family approval prior to a hearing when urgent action is needed to protect a child or nonminor dependent from physical or mental abuse, abandonment, or any other substantial threat to health or safety, consistent with the established standard.
(B)Providing a resource family parent, applicant, or excluded individual requesting review of that decision with due process pursuant to the departments statutes, regulations, and written directives.
(C)Notifying the department of any decisions denying a resource familys application or rescinding the approval of a resource family, excluding an individual, or taking other administrative action.
(D)Issuing a temporary suspension order that suspends the resource family approval prior to a hearing, when urgent action is needed to protect a child or nonminor dependent who is or may be placed in the home from physical or mental abuse, abandonment, or any other substantial threat to health or safety.
(6)Updating resource family approval annually.
(7)Monitoring resource families through all of the following:
(A)Ensuring that social workers who identify a condition in the home that may not meet the approval standards set forth in subdivision (d) while in the course of a routine visit to children placed with a resource family take appropriate action as needed.
(B)Requiring resource families to comply with corrective action plans as necessary to correct identified deficiencies. If corrective action is not completed as specified in the plan, the county may rescind the resource family approval.
(C)Requiring resource families to report to the county child welfare agency any incidents consistent with the reporting requirements for licensed foster family homes.
(8)Investigating all complaints against a resource family and taking action as necessary. This shall include investigating any incidents reported about a resource family indicating that the approval standard is not being maintained.
(A)The childs social worker shall not conduct the formal investigation into the complaint received concerning a family providing services under the standards required by subdivision (d). To the extent that adequate resources are available, complaints shall be investigated by a worker who did not initially conduct the home environment or psychosocial assessments.
(B)Upon conclusion of the complaint investigation, the final disposition shall be reviewed and approved by a supervising staff member.
(C)The department shall be notified of any serious incidents or serious complaints or any incident that falls within the definition of Section 11165.5 of the Penal Code. If those incidents or complaints result in an investigation, the department shall also be notified as to the status and disposition of that investigation.
(9)Performing corrective action as required by the department.
(10)Assessing county performance in related areas of the California Child and Family Services Review System, and remedying problems identified.
(11)Submitting information and data that the department determines is necessary to study, monitor, and prepare the report specified in paragraph (9) of subdivision (f).
(12)Ensuring resource family applicants and resource families have the necessary knowledge, skills, and abilities to support children in foster care by completing caregiver training. The training should include a curriculum that supports the role of a resource family in parenting vulnerable children and should be ongoing in order to provide resource families with information on trauma-informed practices and requirements and other topics within the foster care system.
(13)Ensuring that a resource family applicant completes a minimum of 12 hours of preapproval training. The training shall include, but not be limited to, all of the following courses:
(A)An overview of the child protective and probation systems.
(B)The effects of trauma, including grief and loss, and child abuse and neglect, on child development and behavior, and methods to behaviorally support children impacted by that trauma or child abuse and neglect.
(C)Positive discipline and the importance of self-esteem.
(D)Health issues in foster care.
(E)Accessing services and supports to address education needs, physical, mental, and behavioral health, and substance use disorders, including culturally relevant services.
(F)The rights of a child in foster care, and the resource familys responsibility to safeguard those rights, including the right to have fair and equal access to all available services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status.
(G)Cultural needs of children, including instruction on cultural competency and sensitivity, and related best practices for providing adequate care for children or youth across diverse ethnic and racial backgrounds, as well as children or youth identifying as lesbian, gay, bisexual, or transgender.
(H)Basic instruction on existing laws and procedures regarding the safety of foster youth at school; and ensuring a harassment and violence free school environment pursuant to Article 3.6 (commencing with Section 32228) of Chapter 2 of Part 19 of Division 1 of Title 1 of the Education Code.
(I)Permanence, well-being, and education needs of children.
(J)Child and adolescent development, including sexual orientation, gender identity, and expression.
(K)The role of resource families, including working cooperatively with the child welfare or probation agency, the childs family, and other service providers implementing the case plan.
(L)The role of a resource family on the child and family team as defined in paragraph (4) of subdivision (a) of Section 16501.
(M)A resource familys responsibility to act as a reasonable and prudent parent, and to provide a family setting that promotes normal childhood experiences and that serves the needs of the child.
(N)An overview of the specialized training identified in subdivision (h).
(14)Ensuring approved resource families complete a minimum of eight training hours annually, a portion of which shall be from one or more of the topics listed in paragraph (13).
(h)In addition to any training required by this section, a resource family may be required to receive specialized training, as relevant, for the purpose of preparing the resource family to meet the needs of a particular child in care. This training may include, but is not limited to, the following:
(1)Understanding how to use best practices for providing care and supervision to commercially sexually exploited children.
(2)Understanding how to use best practices for providing care and supervision to lesbian, gay, bisexual, and transgender children.
(3)Understanding the requirements and best practices regarding psychotropic medications, including, but not limited to, court authorization, benefits, uses, side effects, interactions, assistance with self-administration, misuse, documentation, storage, and metabolic monitoring of children prescribed psychotropic medications.
(4)Understanding the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), its historical significance, the rights of children covered by the act, and the best interests of Indian children, including the role of the caregiver in supporting culturally appropriate, child-centered practices that respect Native American history, culture, retention of tribal membership and connection to the tribal community and traditions.
(5)Understanding how to use best practices for providing care and supervision to nonminor dependents.
(6)Understanding how to use best practices for providing care and supervision to children with special health care needs.
(7)Understanding the different permanency options and the services and benefits associated with the options.
(i)Nothing in this section shall preclude a county or a foster family agency from requiring resource family training in excess of the requirements in this section.
(j)(1)Approved relatives and nonrelative extended family members, licensed foster family homes, or approved adoptive homes that have completed the license or approval process prior to full implementation of the program shall not be considered part of the program. The otherwise applicable assessment and oversight processes shall continue to be administered for families and facilities not included in the program.
(2)Upon implementation of the program in a county, that county may not accept new applications for the licensure of foster family homes, the approval of relative and nonrelative extended family members, or the approval of prospective adoptive homes.
(k)The department may waive regulations that pose a barrier to implementation and operation of this program. The waiver of any regulations by the department pursuant to this section shall apply to only those counties or foster family agencies participating in the program and only for the duration of the program.
(l)Resource families approved under initial implementation of the program, who move within an early implementation county or who move to another early implementation county, shall retain their resource family status if the new building and grounds, outdoor activity areas, and storage areas meet home environment standards. The State Department of Social Services or early implementation county may allow a program-affiliated individual to transfer his or her subsequent arrest notification if the individual moves from one early implementation county to another early implementation county, as specified in subdivision (g) of Section 1522 of the Health and Safety Code.
(m)(1)The approval of a resource family who moves to a nonparticipating county remains in full force and effect pending a determination by the county approval agency or the department, as appropriate, whether the new building and grounds and storage areas meet applicable standards, and whether all adults residing in the home have a criminal records clearance or exemptions granted, using the exemption criteria used for foster care licensing, as specified in subdivision (g) of Section 1522 of the Health and Safety Code. Upon this determination, the nonparticipating county shall either approve the family as a relative or nonrelative extended family member, as applicable, or the department shall license the family as a foster family home.
(2)Subject to the requirements in paragraph (1), the family shall continue to be approved for guardianship and adoption. Nothing in this subdivision shall limit a county or adoption agency from determining that the family is not approved for guardianship or adoption based on changes in the familys circumstances or psychosocial assessment.
(3)A program-affiliated individual who moves to a nonparticipating county may not transfer his or her subsequent arrest notification from a participating county to the nonparticipating county.
(n)Implementation of the program shall be contingent upon the continued availability of federal Social Security Act Title IV-E (42 U.S.C. Sec. 670) funds for costs associated with placement of children with resource families assessed and approved under the program.
(o)A child placed with a resource family shall be eligible for AFDC-FC payments. A resource family, or a foster family agency pursuant to subdivisions (s) and (t), shall be paid an AFDC-FC rate pursuant to Sections 11460, 11461, and 11463. Sharing ratios for nonfederal expenditures for all costs associated with activities related to the approval of relatives and nonrelative extended family members shall be in accordance with Section 10101.
(p)The Department of Justice shall charge fees sufficient to cover the cost of initial or subsequent criminal offender record information and Child Abuse Central Index searches, processing, or responses, as specified in this section.
(q)Except as provided, approved resource families under this program shall be exempt from all of the following:
(1)Licensure requirements set forth under the California Community Care Facilities Act (Chapter 3 (commencing with Section 1500) of Division 2 of the Health and Safety Code), and all regulations promulgated thereto.
(2)Relative and nonrelative extended family member approval requirements set forth under Sections 309, 361.4, and 362.7, and all regulations promulgated thereto.
(3)Adoptions approval and reporting requirements set forth under Section 8712 of the Family Code, and all regulations promulgated thereto.
(r)(1)Early implementation counties shall be authorized to continue through December 31, 2016. The program shall be implemented by each county on or before January 1, 2017.
(2)No later than July 1, 2017, each county shall provide the following information to all licensed foster family homes and all approved relatives and nonrelative extended family members:
(A)A detailed description of the resource family approval program.
(B)Notification that, in order to care for a foster child, resource family approval is required by December 31, 2019.
(C)Notification that a foster family home license and an approval of a relative or nonrelative extended family member shall be forfeited by operation of law as provided for in paragraph (4).
(3)By no later than January 1, 2018, the following shall apply to all licensed foster family homes and approved relative and nonrelative extended family members:
(A)A licensed foster family home, and an approved relative or nonrelative extended family member with an approved adoptive home study completed prior to January 1, 2018, shall be deemed to be an approved resource family.
(B)A licensed foster family home, and an approved relative or nonrelative extended family member who had a child in placement at any time, for any length of time, between January 1, 2017, and December 31, 2017, inclusive, may be approved as a resource family on the date of successful completion of a psychosocial assessment pursuant to subparagraph (B) of paragraph (2) of subdivision (d).
(C)A county may provide supportive services to all licensed foster family home providers, relatives, and nonrelative extended family members with a child in placement to assist with the resource family transition and to minimize placement disruptions.
(4)All foster family licenses and approvals of a relative or nonrelative extended family member shall be forfeited by operation of law on December 31, 2019, except as provided in this paragraph:
(A)All licensed foster family homes that did not have a child in placement at any time, for any length of time, between January 1, 2017, and December 31, 2017, inclusive, shall forfeit the license by operation of law on January 1, 2018.
(B)For foster family home licensees and approved relatives or nonrelative extended family members who have a pending resource family application on December 31, 2019, the foster family home license or relative and nonrelative extended family member approval shall be forfeited by operation of law on the date of approval as a resource family. If approval is denied, forfeiture by operation of law shall occur on the date of completion of any proceedings required by law to ensure due process.
(s)On and after January 1, 2017, all licensed foster family agencies shall approve resource families in lieu of certifying foster homes. A foster family agency or a short-term residential treatment center pursuant to subdivision (b) of Section 11462 shall require applicants and resource families to meet the resource family approval standards and requirements set forth in this chapter and in the written directives adopted pursuant to this chapter prior to approval and in order to maintain approval.
(t)The department may establish participation conditions, and select and authorize foster family agencies that voluntarily submit implementation plans and revised plans of operation in accordance with requirements established by the department, to approve resource families in lieu of certifying foster homes.
(1)Notwithstanding any other law, a participating foster family agency shall require resource families to meet and maintain the resource family approval standards and requirements set forth in this chapter and in the written directives adopted hereto prior to approval and in order to maintain approval.
(2)A participating foster family agency shall implement the resource family approval program pursuant to Section 1517 of the Health and Safety Code.
(3)Nothing in this section shall be construed to limit the authority of the department to inspect, evaluate, or investigate a complaint or incident, or initiate a disciplinary action against a foster family agency pursuant to Article 5 (commencing with Section 1550) of Chapter 3 of Division 2 of the Health and Safety Code, or to take any action it may deem necessary for the health and safety of children placed with the foster family agency.
(4)The department may adjust the foster family agency AFDC-FC rate pursuant to Section 11463 for implementation of this subdivision.
SEC. 6.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state nor otherwise be subject to Section 6 of Article XIIIB of the California Constitution.
(a)The department, county adoption agency, or licensed adoption agency shall require each person who files an application for adoption to be fingerprinted and shall secure from an appropriate law enforcement agency any criminal record of that person to determine whether the person has ever been convicted of a crime other than a minor traffic violation. The department, county adoption agency, or licensed adoption agency may also secure the persons full criminal record, if any, with the exception of any convictions for which relief has been granted pursuant to Section 1203.49 of the Penal Code. Any A federal-level criminal offender record requests request to the Department of Justice shall be submitted with fingerprint images and related information required by the Department of Justice for the purposes of obtaining information as to the existence and content of a record of an out-of-state or federal conviction or arrest of a person or information regarding any out-of-state or federal crimes or arrests for which the Department of Justice establishes that the person is free on bail, or on his or her own recognizance pending trial or appeal. The Department of Justice shall forward to the Federal Bureau of Investigation any requests for federal summary criminal history information received pursuant to this section. The Department of Justice shall review the information returned from the Federal Bureau of Investigation and shall compile and disseminate a response to the department, county adoption agency, or licensed adoption agency.
(b)Notwithstanding subdivision (c), the criminal record, if any, shall be taken into consideration when evaluating the prospective adoptive parent, and an assessment of the effects of any criminal history on the ability of the prospective adoptive parent to provide adequate and proper care and guidance to the child shall be included in the report to the court.
(c)(1)The department, county adoption agency, or licensed adoption agency shall not give final approval for an adoptive placement in any home in which the prospective adoptive parent or any adult living in the prospective adoptive home has either of the following: been convicted of an offense for which an exemption cannot be granted pursuant to subparagraph (C) of paragraph (1) of subdivision (g) of Section 1522 of the Health and Safety Code.
(A)A felony conviction for 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, but not including other physical assault and battery. For purposes of this subdivision, crimes involving violence means those violent crimes contained in clause (i) of subparagraph (A), and subparagraph (B), of paragraph (1) of subdivision (g) of Section 1522 of the Health and Safety Code.
(B)A felony conviction that occurred within the last five years for physical assault, battery, or a drug- or alcohol-related offense.
(2)This subdivision shall become operative on October 1, 2008, and shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition of receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(d)Any fee charged by a law enforcement agency for fingerprinting or for checking or obtaining the criminal record of the applicant shall be paid by the applicant. The department, county adoption agency, or licensed adoption agency may defer, waive, or reduce the fee when its payment would cause economic hardship to prospective adoptive parents detrimental to the welfare of the adopted child, when the child has been in the foster care of the prospective adoptive parents for at least one year, or if necessary for the placement of a special-needs child.
SEC. 2.Section 1522 of the Health and Safety Code is amended to read:1522.The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a community care facility, foster family home, or a certified family home of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified in the long-range plan of the Department of Justice for fully automating the processing of fingerprints and other data by the year 1999, otherwise known as the California Crime Information Intelligence System (CAL-CII), to be used for applicant fingerprints. It is the intent of the Legislature in enacting this section to require the fingerprints of those individuals whose contact with community care clients may pose a risk to the clients health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before his or her initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to any person or persons to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, subdivision (b) of Section 273a of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)Except during the 200304 to the 201617 fiscal years, inclusive, neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license or special permit to operate a facility providing nonmedical board, room, and care for six or less children or for obtaining a criminal record of the applicant pursuant to this section.
(4)The following shall apply to the criminal record information:
(A)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the director grants an exemption pursuant to subdivision (g).
(B)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record information has been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)If the State Department of Social Services finds after licensure that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the director grants an exemption pursuant to subdivision (g).
(E)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigations criminal offender record information search response for the applicant or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in subdivision (b) has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction, as prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing pursuant to Section 1550.5.
(F)The State Department of Social Services shall develop procedures to provide the individuals state and federal criminal history information with the written notification of his or her exemption denial or revocation based on the criminal record. Receipt of the criminal history information shall be optional on the part of the individual, as set forth in the agencys procedures. The procedure shall protect the confidentiality and privacy of the individuals record, and the criminal history information shall not be made available to the employer.
(G)Notwithstanding any other law, the department is authorized to provide an individual with a copy of his or her state or federal level criminal offender record information search response as provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in his or her written request. The department shall retain a copy of the individuals written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any person, other than a client, residing in the facility or certified family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under this exemption shall provide one copy of his or her current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or certified family home. Nothing in this paragraph restricts the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(F)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the persons capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical professional as defined in department regulations who holds a valid license or certification from the persons governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the persons governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the persons scope of practice.
(iv)The person is not a community care facility licensee or an employee of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility and are in the facility at the request of that client or residents legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the departments regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the licensed or certified foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the licensee or certified parent are not left alone with the foster children. However, the licensee or certified parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow his or her adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster childs friend when the foster child is visiting the friends home and the friend, licensed or certified foster parent, or both are also present. However, the licensee or certified parent, acting as a reasonable and prudent parent, may allow the parent of the foster childs friend to act as an appropriate short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by any licensed or certified foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the clients individualized program plan (IPP) or needs and service plan, a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following applies:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the clients individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)Nothing in this subdivision shall prevent a licensee from requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior criminal convictions. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints, and shall be submitted to the Department of Justice by the licensee. A licensees failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify receipt of the fingerprints.
(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided for in subdivision (a). If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. Documentation of the individuals clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprints, notify the licensee that the fingerprints were illegible, the Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also notify the licensee by mail, within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal history recorded. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation, the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the persons employment, remove the person from the community care facility, or bar the person from entering the community care facility; or (B) seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section 1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the persons criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption from disqualification pursuant to this paragraph.
(5)Concurrently with notifying the licensee pursuant to paragraph (3), the department shall notify the affected individual of his or her right to seek an exemption from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the persons employment or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home or certified family home as described in Section 1506, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home or certified family home applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicants home unfit as a foster family home or a certified family home, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving agency.
(D)To the same extent required for federal funding, an applicant for a foster family home license or for certification as a family home, and any other person specified in subdivision (b) who is not exempt from fingerprinting, shall submit a set of fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure or certification, a person specified in subdivision (b) who is not exempt from fingerprinting shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family or certified family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (h). A foster family home licensees or a foster family agencys failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. A violation of the regulation adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the director grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority finds after licensure or the granting of the certificate of approval that the licensee, certified foster parent, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked by the department or the foster family agency, whichever is applicable, unless the director grants an exemption from disqualification pursuant to subdivision (g). A licensees failure to comply with the departments prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a record of arrest to deny, revoke, or terminate any application, license, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a, of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g), prior to the departments completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services is authorized to obtain any arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and individuals associated with a community care facility.
(f)(1)For purposes of this section or any other provision of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that the State Department of Social Services is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this section or any other provision of this chapter, the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this section or any other provision of this chapter, the arrest disposition report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this section or any other provision of this chapter, the department shall consider criminal convictions from another state or federal court as if the criminal offense was committed in this state.
(g)(1)After Except as otherwise provided in this subdivision with respect to a foster care provider applicant or resource family applicant, after review of the record, the director may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the director has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an exemption shall not be granted pursuant to this subdivision if the conviction was for any either of the following offenses:
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)Notwithstanding clause (i), the director may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employees county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. This clause shall not apply to foster care providers, including relative caregivers, nonrelated extended family members, or any other person specified in subdivision (b), in those homes where the individual has been convicted of an offense described in paragraph (1) of subdivision (c) of Section 667.5 of the Penal Code.
(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(C)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster
(2)(A)For a foster care provider applicant or a resource family applicant, an exemption shall not be granted if that applicant, or any other person specified in subdivision (b) in those homes, the applicants home, has a felony conviction for either of the following offenses:
(i)A felony conviction for 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 any offense described in subdivision (c) of Section 667.5 of the Penal Code, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or subparagraph (B).
(ii)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(iii)This subparagraph shall not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal conviction described in clause (i) or (ii) prior to the enactment of this subparagraph.
(iv)This subparagraph shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)If a foster care provider applicant, resource family applicant, or any other person specified in subdivision (b) in the applicants home has been convicted of any of the following offenses, except when that offense is also described in subparagraph (A), the department shall determine whether to grant an exemption:
(i)Any felony or misdemeanor conviction for willful harm or injury to a child as defined in Section 273a of the Penal Code, elder abuse as defined by Section 368 of the Penal Code, sexual abuse or exploitation by a licensed professional as defined by Section 729 of the Business and Professions Code, any offense involving child sexual abuse, assault, or exploitation, as defined in Section 11165.1 of the Penal Code, or any offense for which registration is required pursuant to subdivision (c) of Section 290 of the Penal Code.
(ii)Any misdemeanor conviction within the last five years.
(iii)Any felony conviction within the last seven years.
(C)If a foster care provider applicant, resource family applicant, or any other person specified in subdivision (b) in the applicants home has been convicted of an offense not listed in subparagraph (A) or (B), the criminal history shall be considered as part of the foster care provider licensing process or resource family approval process.
(D)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction described in subparagraph (A) prior to the effective date of the act that added this subparagraph.
(3)In determining whether to grant an exemption, the department shall consider all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(2)
(4)The department shall not prohibit a person from being employed or having contact with clients in a facility on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558.
(h)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the State Department of Social Services, and shall include a copy of the persons drivers license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the State Department of Social Services shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.
(3)The following shall apply to a criminal record clearance or exemption from the department or a county office with department-delegated licensing authority:
(A)A county office with department-delegated licensing authority may accept a clearance or exemption from the department.
(B)The department may accept a clearance or exemption from any county office with department-delegated licensing authority.
(C)A county office with department-delegated licensing authority may accept a clearance or exemption from any other county office with department-delegated licensing authority.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by the department or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall process a request from the department or a county office with department-delegated licensing authority to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a countys delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption authority, a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(5)(A)A county child welfare agency with authority to secure clearances pursuant to Section 16504.5 of the Welfare and Institutions Code and to grant exemptions pursuant to Section 361.4 of the Welfare and Institutions Code may accept a clearance or exemption from another county with criminal record and exemption authority pursuant to these sections.
(B)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code concerning an individual whose criminal record clearance was originally processed by a county child welfare agency with criminal record clearance and exemption authority, the Department of Justice shall process a request from a county child welfare agency with criminal record and exemption authority to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii)The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain all prescribed data elements and format protocols pursuant to a written agreement between the State Department of Social Services and the Department of Justice.
(i)The full criminal record obtained for purposes of this section may be used by the department or by a licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any employee based on written notification from the state department that the employee has a prior criminal conviction or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a fee for the costs of processing electronic fingerprint images and related information.
(l)Amendments to this section made in the 1999 portion of the 19992000 Regular Session shall be implemented commencing 60 days after the effective date of the act amending this section in the 1999 portion of the 19992000 Regular Session, except that those provisions for the submission of fingerprints for searching the records of the Federal Bureau of Investigation shall be implemented 90 days after the effective date of that act.
SEC. 3.Section 309 of the Welfare and Institutions Code is amended to read:309.(a)Upon delivery to the social worker of a child who has been taken into temporary custody under this article, the social worker shall immediately investigate the circumstances of the child and the facts surrounding the childs being taken into custody and attempt to maintain the child with the childs family through the provision of services. The social worker shall immediately release the child to the custody of the childs parent, guardian, or responsible relative, regardless of the parents, guardians, or relatives immigration status, unless one or more of the following conditions exist:
(1)The child has no parent, guardian, or responsible relative; or the childs parent, guardian, or responsible relative is not willing to provide care for the child.
(2)Continued detention of the child is a matter of immediate and urgent necessity for the protection of the child and there are no reasonable means by which the child can be protected in his or her home or the home of a responsible relative.
(3)There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court.
(4)The child has left a placement in which he or she was placed by the juvenile court.
(5)The parent or other person having lawful custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code and did not reclaim the child within the 14-day period specified in subdivision (e) of that section.
(b)In any case in which there is reasonable cause for believing that a child who is under the care of a physician and surgeon or a hospital, clinic, or other medical facility and cannot be immediately moved and is a person described in Section 300, the child shall be deemed to have been taken into temporary custody and delivered to the social worker for the purposes of this chapter while the child is at the office of the physician and surgeon or the medical facility.
(c)If the child is not released to his or her parent or guardian, the child shall be deemed detained for purposes of this chapter.
(d)(1)If an able and willing relative, as defined in Section 319, or an able and willing nonrelative extended family member, as defined in Section 362.7, is available and requests temporary placement of the child pending the detention hearing, or after the detention hearing and pending the dispositional hearing conducted pursuant to Section 358, the county welfare department shall initiate an assessment of the relatives or nonrelative extended family members suitability, which shall include an in-home inspection to assess the safety of the home and the ability of the relative or nonrelative extended family member to care for the childs needs, and a consideration of the results of a criminal records check conducted pursuant to subdivision (a) of Section 16504.5 and a check of allegations of prior child abuse or neglect concerning the relative or nonrelative extended family member and other adults in the home. A relatives identification card from a foreign consulate or foreign passport shall be considered a valid form of identification for conducting a criminal records check and fingerprint clearance check under this subdivision. Upon completion of this assessment, the child may be placed in the assessed home. For purposes of this paragraph, and except for the criminal records check conducted pursuant to subdivision (a) of Section 16504.5, the standards used to determine suitability shall be the same standards set forth in the regulations for the licensing of foster family homes.
(2)Immediately following the placement of a child in the home of a relative or a nonrelative extended family member, the county welfare department shall evaluate and approve or deny the home for purposes of AFDC-FC eligibility pursuant to Section 11402. The standards used to evaluate and grant or deny approval of the home of the relative and of the home of a nonrelative extended family member, as described in Section 362.7, shall be the same standards set forth in regulations for the licensing of foster family homes which prescribe standards of safety and sanitation for the physical plant and standards for basic personal care, supervision, and services provided by the caregiver.
(3)To the extent allowed by federal law, as a condition of receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.), if a relative or nonrelative extended family member meets all other conditions for approval, except for the receipt of the Federal Bureau of Investigations criminal history information for the relative or nonrelative extended family member, and other adults in the home, as indicated, the county welfare department may approve the home and document that approval, if the relative or nonrelative extended family member, and each adult in the home, has signed and submitted a statement that he or she has never been convicted of a crime in the United States, other than a traffic infraction as defined in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after the approval has been granted, the department determines that the relative or nonrelative extended family member or other adult in the home has a criminal record, the approval may be terminated.
(4)(A)If the criminal records check indicates that the person has been convicted of a crime for which the Director of Social Services cannot grant an exemption under Section 1522 of the Health and Safety Code, the child shall not be placed in the home. If the criminal records check indicates that the person has been convicted of a crime for which the Director of Social Services may grant an exemption under Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted by the county based on substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child. an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home.
(B)(i)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted under Section 1522 of the Health and Safety Code.
(ii)Notwithstanding clause (i), a child may be placed with a relative or nonrelative extended family member pending a criminal records exemption if all parties agree that the placement is in the best interests of the child. If a child has been residing in the home of a relative or nonrelative extended family member pursuant to this clause, that fact shall be taken into account when determining whether the grant a criminal records exemption under Section 1522 of the Health and Safety Code.
(C)If the criminal records check indicates that the person has been convicted of any offense other than an offense described in subparagraph (A) or (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the county social worker and the court shall consider the criminal history in determining whether the placement is in the best interests of the child.
(D)If the criminal records check indicates that the person has been arrested for any offense described in paragraph (2) of subdivision (e) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home until the investigation required by paragraph (1) of subdivision (e) of Section 1522 of the Health and Safety Code has been completed and the county social worker and the court have considered the investigation results when determining whether the placement is in the best interests of the child.
(e)(1)If the child is removed, the social worker shall conduct, within 30 days, an investigation in order to identify and locate all grandparents, parents of a sibling of the child, if the parent has legal custody of the sibling, adult siblings, and other adult relatives of the child, as defined in paragraph (2) of subdivision (f) of Section 319, including any other adult relatives suggested by the parents. As used in this section, sibling means a person related to the identified child by blood, adoption, or affinity through a common legal or biological parent. The social worker shall provide to all adult relatives who are located, except when that relatives history of family or domestic violence makes notification inappropriate, within 30 days of removal of the child, written notification and shall also, whenever appropriate, provide oral notification, in person or by telephone, of all the following information:
(A)The child has been removed from the custody of his or her parent or parents, or his or her guardians.
(B)An explanation of the various options to participate in the care and placement of the child and support for the childs family, including any options that may be lost by failing to respond. The notice shall provide information about providing care for the child while the family receives reunification services with the goal of returning the child to the parent or guardian, how to become a foster family home or approved relative or nonrelative extended family member as defined in Section 362.7, and additional services and support that are available in out-of-home placements. The notice shall also include information regarding the Kin-GAP Program (Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3 of Division 9), the CalWORKs program for approved relative caregivers (Chapter 2 (commencing with Section 11200) of Part 3 of Division 9), adoption, and adoption assistance (Chapter 2.1 (commencing with Section 16115) of Part 4 of Division 9), as well as other options for contact with the child, including, but not limited to, visitation. The State Department of Social Services, in consultation with the County Welfare Directors Association of California and other interested stakeholders, shall develop the written notice.
(2)The social worker shall also provide the adult relatives notified pursuant to paragraph (1) with a relative information form to provide information to the social worker and the court regarding the needs of the child. The form shall include a provision whereby the relative may request the permission of the court to address the court, if the relative so chooses. The Judicial Council, in consultation with the State Department of Social Services and the County Welfare Directors Association of California, shall develop the form.
(3)The social worker shall use due diligence in investigating the names and locations of the relatives pursuant to paragraph (1), including, but not limited to, asking the child in an age-appropriate manner about relatives important to the child, consistent with the childs best interest, and obtaining information regarding the location of the childs adult relatives. Each county welfare department shall create and make public a procedure by which relatives of a child who has been removed from his or her parents or guardians may identify themselves to the county welfare department and be provided with the notices required by paragraphs (1) and (2).
SEC. 4.Section 361.4 of the Welfare and Institutions Code is amended to read:361.4.(a)Prior to placing a child in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall visit the home to ascertain the appropriateness of the placement.
(b)(1)Whenever a child may be placed in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, the court or county social worker placing the child shall cause a state-level criminal records check to be conducted by an appropriate government agency through the California Law Enforcement Telecommunications System (CLETS) pursuant to Section 16504.5. The criminal records check shall be conducted with regard to all persons over 18 years of age living in the home, and on any other person over 18 years of age, other than professionals providing professional services to the child, known to the placing entity who may have significant contact with the child, including any person who has a familial or intimate relationship with any person living in the home. A criminal records check may be conducted pursuant to this section on any person over 14 years of age living in the home who the county social worker believes may have a criminal record. Within 10 calendar days following the criminal records check conducted through the California Law Enforcement Telecommunications System, the social worker shall ensure that a fingerprint clearance check of the relative and any other person whose criminal record was obtained pursuant to this subdivision is initiated through the Department of Justice to ensure the accuracy of the criminal records check conducted through the California Law Enforcement Telecommunications System and shall review the results of any criminal records check to assess the safety of the home. The Department of Justice shall forward fingerprint requests for federal-level criminal history information to the Federal Bureau of Investigation pursuant to this section.
(2)An identification card from a foreign consulate or foreign passport shall be considered a valid form of identification for conducting a criminal records check and fingerprint clearance check under this subdivision and under subdivision (c).
(c)Whenever a child may be placed in the home of a relative, or a prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall cause a check of the Child Abuse Central Index pursuant to subdivision (a) of Section 11170 of the Penal Code to be requested from the Department of Justice. The Child Abuse Central Index check shall be conducted on all persons over 18 years of age living in the home. For any application received on or after January 1, 2008, if any person in the household is 18 years of age or older and has lived in another state in the preceding five years, the county social worker shall check the other states child abuse and neglect registry to the extent required by federal law.
(d)(1)If the results of the California and federal criminal records check indicates that the person has no criminal record, the county social worker and court may consider the home of the relative, prospective guardian, or other person who is not a licensed or certified foster parent for placement of a child.
(2)(A)If the criminal records check indicates that the person has been convicted of a crime that the Director of Social Services cannot grant an exemption for under Section 1522 of the Health and Safety Code, the child shall not be placed in the home. If the criminal records check indicates that the person has been convicted of a crime that the Director of Social Services may grant an exemption for under Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted by the county, based on substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child pursuant to paragraph (3). an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home.
(B)(i)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted under Section 1522 of the Health and Safety Code.
(ii)Notwithstanding clause (i), a child may be placed with a relative or nonrelative extended family member pending a criminal records exemption if all parties agree that the placement is in the best interests of the child. If a child has been residing in the home of a relative or nonrelative extended family member pursuant to this clause, that fact shall be taken into account when determining whether the grant a criminal records exemption under Section 1522 of the Health and Safety Code.
(C)If the criminal records check indicates that the person has been convicted of any offense other than an offense described in subparagraph (A) or (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the social worker and the court shall consider the criminal history in determining whether the placement is in the best interests of the child.
(D)If the criminal records check indicates that the person has been arrested for any offense described in paragraph (2) of subdivision (e) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home until the investigation required by paragraph (1) of subdivision (e) of Section 1522 of the Health and Safety Code has been completed and the county social worker and the court have considered the investigation results when determining whether the placement is in the best interests of the child.
(3)(A)A county may issue a criminal records exemption only if that county has been granted permission by the Director of Social Services to issue criminal records exemptions. The county may file a request with the Director of Social Services seeking permission for the county to establish a procedure to evaluate and grant appropriate individual criminal records exemptions for persons described in subdivision (b). The director shall grant or deny the countys request within 14 days of receipt. The county shall evaluate individual criminal records in accordance with the standards and limitations set forth in paragraph (1) of subdivision (g) of Section 1522 of the Health and Safety Code, and in no event shall the county place a child in the home of a person who is ineligible for an exemption under that provision.
(B)The department shall monitor county implementation of the authority to grant an exemption under this paragraph to ensure that the county evaluates individual criminal records and allows or disallows placements according to the standards set forth in paragraph (1) of subdivision (g) of Section 1522 of the Health and Safety Code.
(4)The department shall conduct an evaluation of the implementation of paragraph (3) through random sampling of county exemption decisions.
(5)The State Department of Social Services shall not evaluate or grant criminal records exemption requests for persons described in subdivision (b), unless the exemption request is made by an Indian tribe pursuant to subdivision (f).
(6)If a county has not requested, or has not been granted, permission by the State Department of Social Services to establish a procedure to evaluate and grant criminal records exemptions, the county shall not place a child into the home of a person described in subdivision (b) if any person residing in the home has been convicted of a crime other than a minor traffic violation, except as provided in subdivision (f).
(e)Nothing in this section shall preclude a county from conducting a criminal background check that the county is otherwise authorized to conduct using fingerprints.
(f)The State Department of Social Services shall evaluate a request from an Indian tribe to exempt a crime that is exemptible eligible for exemption under Section 1522 of the Health and Safety Code, if needed, to allow placement into an Indian home that the tribe has designated for placement under the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). However, if the county with jurisdiction over the child that is the subject of the tribes request has established an approved procedure pursuant to paragraph (3) of subdivision (d), the tribe may request that the county evaluate the exemption request. Once a tribe has elected to have the exemption request reviewed by either the State Department of Social Services or the county, the exemption decision may only be made by that entity. Nothing in this subdivision limits the duty of a county social worker to evaluate the home for placement or to gather information needed to evaluate an exemption request.
SEC. 5.Section 16519.5 of the Welfare and Institutions Code is amended to read:16519.5.(a)The State Department of Social Services, in consultation with county child welfare agencies, foster parent associations, and other interested community parties, shall implement a unified, family friendly, and child-centered resource family approval process to replace the existing multiple processes for licensing foster family homes, approving relatives and nonrelative extended family members as foster care providers, and approving adoptive families.
(b)(1)Counties shall be selected to participate on a voluntary basis as early implementation counties for the purpose of participating in the initial development of the approval process. Early implementation counties shall be selected according to criteria developed by the department in consultation with the County Welfare Directors Association. In selecting the five early implementation counties, the department shall promote diversity among the participating counties in terms of size and geographic location.
(2)Additional counties may participate in the early implementation of the program upon authorization by the department.
(c)(1)For the purposes of this chapter, resource family means an individual or couple that a participating county or foster family agency, as defined in subdivision (g) of Section 11400 of this code, and paragraph (4) of subdivision (a) of Section 1502 of the Health and Safety Code, determines to have successfully met both the home environment assessment standards and the permanency assessment criteria adopted pursuant to subdivision (d) necessary for providing care for a related or unrelated child who is under the jurisdiction of the juvenile court, or otherwise in the care of a county child welfare agency or probation department. A resource family shall demonstrate all of the following:
(A)An understanding of the safety, permanence, and well-being needs of children who have been victims of child abuse and neglect, and the capacity and willingness to meet those needs, including the need for protection, and the willingness to make use of support resources offered by the agency, or a support structure in place, or both.
(B)An understanding of childrens needs and development, effective parenting skills or knowledge about parenting, and the capacity to act as a reasonable, prudent parent in day-to-day decisionmaking.
(C)An understanding of his or her role as a resource family and the capacity to work cooperatively with the agency and other service providers in implementing the childs case plan.
(D)The financial ability within the household to ensure the stability and financial security of the family.
(E)An ability and willingness to provide a family setting that promotes normal childhood experiences that serves the needs of the child.
(2)Subsequent to meeting the criteria set forth in this subdivision and designation as a resource family, a resource family shall be considered eligible to provide foster care for related and unrelated children in out-of-home placement, shall be considered approved for adoption or guardianship, and shall not have to undergo any additional approval or licensure as long as the family lives in a county participating in the program.
(3)Resource family approval means that the applicant successfully meets the home environment assessment and permanency assessment standards. This approval is in lieu of the existing foster care license, relative or nonrelative extended family member approval, and the adoption home study approval.
(4)Approval of a resource family does not guarantee an initial or continued placement of a child with a resource family.
(5)Notwithstanding paragraphs (1) to (4), inclusive, the department or county may cease any further review of an application if the applicant has had a previous application denial within the preceding year, or if the applicant has had a previous rescission, revocation, or exemption denial or rescission by the department or county within the preceding two years. However, the department or county may continue to review an application if it has determined that the reasons for the previous denial, rescission, or revocation were due to circumstances and conditions that either have been corrected or are no longer in existence. If an individual was excluded from a resource family home or facility licensed by the department, the department or county shall cease review of the individuals application unless the excluded individual has been reinstated pursuant to Section 11522 of the Government Code. The cessation of review shall not constitute a denial of the application for purposes of this section or any other law.
(d)Prior to implementation of this program, the department shall adopt standards pertaining to the home environment and permanency assessments of a resource family.
(1)Resource family home environment assessment standards shall include, but not be limited to, all of the following:
(A)(i)(I)Criminal records clearance of all adults residing in, or regularly present in, the home, and not exempted from fingerprinting, as set forth in subdivision (b) of Section 1522 of the Health and Safety Code, pursuant to Section 8712 of the Family Code, utilizing a check of the Child Abuse Central Index (CACI), and receipt of a fingerprint-based state and federal criminal offender record information search response. The criminal history information shall include subsequent notifications pursuant to Section 11105.2 of the Penal Code.
(ii)Consideration of any substantiated allegations of child abuse or neglect against either the applicant or any other adult residing in the home. An approval may not be granted to applicants whose criminal record indicates a conviction for any of the offenses specified in subdivision (g) of Section 1522 of the Health and Safety Code.
(iii)If the resource family parent, applicant, or any other person specified in subdivision (b) of Section 1522 of the Health and Safety Code has been convicted of a crime other than a minor traffic violation, except for the civil penalty language, the criminal background check provisions specified in subdivisions (d) through (f) of Section 1522 of the Health and Safety Code shall apply. Exemptions from the criminal records clearance requirements set forth in this section may be granted by the director or the early implementation county, if that county has been granted permission by the director to issue criminal records exemptions pursuant to Section 361.4, using the exemption criteria currently used for foster care licensing as specified in subdivision (g) of Section 1522 of the Health and Safety Code.
(II)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, home approval shall be denied.
(III)If the criminal records check indicates that the person has been convicted of an offense described in subparagraph (B) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the child shall not be placed in the home unless a criminal records exemption has been granted under subclause (V).
(IV)If the criminal records check indicates that the person has been convicted of any crime other than a crime described in subclause (II) or (III), the criminal history shall be considered in the psychosocial assessment conducted pursuant to subparagraph (B) of paragraph (2) in determining whether to approve the home.
(V)Exemptions from the criminal records clearance requirements set forth in this section may be granted by the director or the early implementation county, if that county has been granted permission by the director to issue criminal records exemptions pursuant to Section 361.4, using the exemption criteria currently used for foster care licensing as specified in subdivision (g) of Section 1522 of the Health and Safety Code.
(iv)
(ii)For public foster family agencies approving resource families, the criminal records clearance process set forth in clause (i) shall be utilized.
(v)
(iii)For private foster family agencies approving resource families, the criminal records clearance process set forth in clause (i) shall be utilized, but the Department of Justice shall disseminate a fitness determination resulting from the federal criminal offender record information search.
(B)Consideration of any substantiated allegations of child abuse or neglect against either the applicant or any other adult residing in the home.
(B)
(C)Buildings and grounds and storage requirements set forth in Sections 89387 and 89387.2 of Title 22 of the California Code of Regulations.
(C)
(D)In addition to the foregoing requirements, the resource family home environment assessment standards shall also require the following:
(i)That the applicant demonstrate an understanding about the rights of children in care and his or her responsibility to safeguard those rights.
(ii)That the total number of children residing in the home of a resource family shall be no more than the total number of children the resource family can properly care for, regardless of status, and shall not exceed six children, unless exceptional circumstances that are documented in the foster childs case file exist to permit a resource family to care for more children, including, but not limited to, the need to place siblings together.
(iii)That the applicant understands his or her responsibilities with respect to acting as a reasonable and prudent parent, and maintaining the least restrictive environment that serves the needs of the child.
(2)The resource family permanency assessment standards shall include, but not be limited to, all of the following:
(A)The applicant shall complete caregiver training.
(B)(i)The applicant shall complete a psychosocial assessment, which shall include the results of a risk assessment.
(ii)A caregiver risk assessment shall include, but shall not be limited to, physical and mental health, alcohol and other substance use and abuse, family and domestic violence, and the factors listed in subparagraphs (A) and (D) of paragraph (1) of subdivision (c).
(C)The applicant shall complete any other activities that relate to a resource familys ability to achieve permanency with the child.
(e)(1)A child may be placed with a resource family that has successfully completed the home environment assessment prior to completion of a permanency assessment only if a compelling reason for the placement exists based on the needs of the child.
(2)The permanency assessment shall be completed within 90 days of the childs placement in the home, unless good cause exists based upon the needs of the child.
(3)If additional time is needed to complete the permanency assessment, the county shall document the extenuating circumstances for the delay and generate a timeframe for the completion of the permanency assessment.
(4)The county shall report to the department on a quarterly basis the number of families with a child in an approved home whose permanency assessment goes beyond 90 days and summarize the reasons for these delays.
(5)A child may be placed with a relative, as defined in Section 319, or nonrelative extended family member, as defined in Section 362.7, prior to applying as a resource family only on an emergency basis if all of the following requirements are met:
(A)Consideration of the results of a criminal records check conducted pursuant to Section 16504.5 of the relative or nonrelative extended family member and of every other adult in the home.
(B)Consideration of the results of the Child Abuse Central Index (CACI) consistent with Section 1522.1 of the Health and Safety Code of the relative or nonrelative extended family member, and of every other adult in the home.
(C)The home and grounds are free of conditions that pose undue risk to the health and safety of the child.
(D)For any placement made pursuant to this paragraph, the county shall initiate the home environment assessment no later than five business days after the placement, which shall include a face-to-face interview with the resource family applicant and child.
(E)For any placement made pursuant to this paragraph, AFDC-FC funding shall not be available until approval of the resource family has been completed.
(F)Any child placed under this section shall be afforded all the rights set forth in Section 16001.9.
(f)The State Department of Social Services shall be responsible for all of the following:
(1)Selecting early implementation counties, based on criteria established by the department in consultation with the County Welfare Directors Association.
(2)Establishing timeframes for participating counties to submit an implementation plan, enter into terms and conditions for participation in the program, train appropriate staff, and accept applications from resource families.
(3)Entering into terms and conditions for participation in the program by counties.
(4)Administering the program through the issuance of written directives that shall have the same force and effect as regulations. Any directive affecting Article 1 (commencing with Section 700) of Chapter 7 of Title 11 of the California Code of Regulations shall be approved by the Department of Justice. The directives shall be exempt from 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.
(5)Approving and requiring the use of a single standard for resource family approval.
(6)Adopting and requiring the use of standardized documentation for the home environment and permanency assessments of resource families.
(7)Requiring counties to monitor resource families including, but not limited to, all of the following:
(A)Investigating complaints of resource families.
(B)Developing and monitoring resource family corrective action plans to correct identified deficiencies and to rescind resource family approval if compliance with corrective action plans is not achieved.
(8)Ongoing oversight and monitoring of county systems and operations including all of the following:
(A)Reviewing the countys implementation of the program.
(B)Reviewing an adequate number of approved resource families in each participating county to ensure that approval standards are being properly applied. The review shall include case file documentation, and may include onsite inspection of individual resource families. The review shall occur on an annual basis, and more frequently if the department becomes aware that a participating county is experiencing a disproportionate number of complaints against individual resource family homes.
(C)Reviewing county reports of serious complaints and incidents involving approved resource families, as determined necessary by the department. The department may conduct an independent review of the complaint or incident and change the findings depending on the results of its investigation.
(D)Investigating unresolved complaints against participating counties.
(E)Requiring corrective action of counties that are not in full compliance with the terms and conditions of the program.
(9)Updating the Legislature on the early implementation phase of the program, including the status of implementation, successes, and challenges during the early implementation phase, and relevant available data, including resource family satisfaction.
(10)Implementing due process procedures, including all of the following:
(A)Providing a statewide fair hearing process for denials, rescissions, or exclusion actions.
(B)Amending the departments applicable state hearing procedures and regulations or using the Administrative Procedure Act, when applicable, as necessary for the administration of the program.
(g)Counties participating in the program shall be responsible for all of the following:
(1)Submitting an implementation plan, entering into terms and conditions for participation in the program, consulting with the county probation department in the development of the implementation plan, training appropriate staff, and accepting applications from resource families within the timeframes established by the department.
(2)Complying with the written directives pursuant to paragraph (4) of subdivision (f).
(3)Implementing the requirements for resource family approval and utilizing standardized documentation established by the department.
(4)Ensuring staff have the education and experience necessary to complete the home environment and psychosocial assessments competently.
(5)(A)Taking the following actions, as applicable:
(i)Approving or denying resource family applications.
(ii)Rescinding approvals of resource families.
(iii)Excluding a resource family parent or other individual from presence in a resource family home, consistent with the established standard.
(iv)Issuing a temporary suspension order that suspends the resource family approval prior to a hearing when urgent action is needed to protect a child or nonminor dependent from physical or mental abuse, abandonment, or any other substantial threat to health or safety, consistent with the established standard.
(B)Providing a resource family parent, applicant, or excluded individual requesting review of that decision with due process pursuant to the departments statutes, regulations, and written directives.
(C)Notifying the department of any decisions denying a resource familys application or rescinding the approval of a resource family, excluding an individual, or taking other administrative action.
(D)Issuing a temporary suspension order that suspends the resource family approval prior to a hearing, when urgent action is needed to protect a child or nonminor dependent who is or may be placed in the home from physical or mental abuse, abandonment, or any other substantial threat to health or safety.
(6)Updating resource family approval annually.
(7)Monitoring resource families through all of the following:
(A)Ensuring that social workers who identify a condition in the home that may not meet the approval standards set forth in subdivision (d) while in the course of a routine visit to children placed with a resource family take appropriate action as needed.
(B)Requiring resource families to comply with corrective action plans as necessary to correct identified deficiencies. If corrective action is not completed as specified in the plan, the county may rescind the resource family approval.
(C)Requiring resource families to report to the county child welfare agency any incidents consistent with the reporting requirements for licensed foster family homes.
(8)Investigating all complaints against a resource family and taking action as necessary. This shall include investigating any incidents reported about a resource family indicating that the approval standard is not being maintained.
(A)The childs social worker shall not conduct the formal investigation into the complaint received concerning a family providing services under the standards required by subdivision (d). To the extent that adequate resources are available, complaints shall be investigated by a worker who did not initially conduct the home environment or psychosocial assessments.
(B)Upon conclusion of the complaint investigation, the final disposition shall be reviewed and approved by a supervising staff member.
(C)The department shall be notified of any serious incidents or serious complaints or any incident that falls within the definition of Section 11165.5 of the Penal Code. If those incidents or complaints result in an investigation, the department shall also be notified as to the status and disposition of that investigation.
(9)Performing corrective action as required by the department.
(10)Assessing county performance in related areas of the California Child and Family Services Review System, and remedying problems identified.
(11)Submitting information and data that the department determines is necessary to study, monitor, and prepare the report specified in paragraph (9) of subdivision (f).
(12)Ensuring resource family applicants and resource families have the necessary knowledge, skills, and abilities to support children in foster care by completing caregiver training. The training should include a curriculum that supports the role of a resource family in parenting vulnerable children and should be ongoing in order to provide resource families with information on trauma-informed practices and requirements and other topics within the foster care system.
(13)Ensuring that a resource family applicant completes a minimum of 12 hours of preapproval training. The training shall include, but not be limited to, all of the following courses:
(A)An overview of the child protective and probation systems.
(B)The effects of trauma, including grief and loss, and child abuse and neglect, on child development and behavior, and methods to behaviorally support children impacted by that trauma or child abuse and neglect.
(C)Positive discipline and the importance of self-esteem.
(D)Health issues in foster care.
(E)Accessing services and supports to address education needs, physical, mental, and behavioral health, and substance use disorders, including culturally relevant services.
(F)The rights of a child in foster care, and the resource familys responsibility to safeguard those rights, including the right to have fair and equal access to all available services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity, mental or physical disability, or HIV status.
(G)Cultural needs of children, including instruction on cultural competency and sensitivity, and related best practices for providing adequate care for children or youth across diverse ethnic and racial backgrounds, as well as children or youth identifying as lesbian, gay, bisexual, or transgender.
(H)Basic instruction on existing laws and procedures regarding the safety of foster youth at school; and ensuring a harassment and violence free school environment pursuant to Article 3.6 (commencing with Section 32228) of Chapter 2 of Part 19 of Division 1 of Title 1 of the Education Code.
(I)Permanence, well-being, and education needs of children.
(J)Child and adolescent development, including sexual orientation, gender identity, and expression.
(K)The role of resource families, including working cooperatively with the child welfare or probation agency, the childs family, and other service providers implementing the case plan.
(L)The role of a resource family on the child and family team as defined in paragraph (4) of subdivision (a) of Section 16501.
(M)A resource familys responsibility to act as a reasonable and prudent parent, and to provide a family setting that promotes normal childhood experiences and that serves the needs of the child.
(N)An overview of the specialized training identified in subdivision (h).
(14)Ensuring approved resource families complete a minimum of eight training hours annually, a portion of which shall be from one or more of the topics listed in paragraph (13).
(h)In addition to any training required by this section, a resource family may be required to receive specialized training, as relevant, for the purpose of preparing the resource family to meet the needs of a particular child in care. This training may include, but is not limited to, the following:
(1)Understanding how to use best practices for providing care and supervision to commercially sexually exploited children.
(2)Understanding how to use best practices for providing care and supervision to lesbian, gay, bisexual, and transgender children.
(3)Understanding the requirements and best practices regarding psychotropic medications, including, but not limited to, court authorization, benefits, uses, side effects, interactions, assistance with self-administration, misuse, documentation, storage, and metabolic monitoring of children prescribed psychotropic medications.
(4)Understanding the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), its historical significance, the rights of children covered by the act, and the best interests of Indian children, including the role of the caregiver in supporting culturally appropriate, child-centered practices that respect Native American history, culture, retention of tribal membership and connection to the tribal community and traditions.
(5)Understanding how to use best practices for providing care and supervision to nonminor dependents.
(6)Understanding how to use best practices for providing care and supervision to children with special health care needs.
(7)Understanding the different permanency options and the services and benefits associated with the options.
(i)Nothing in this section shall preclude a county or a foster family agency from requiring resource family training in excess of the requirements in this section.
(j)(1)Approved relatives and nonrelative extended family members, licensed foster family homes, or approved adoptive homes that have completed the license or approval process prior to full implementation of the program shall not be considered part of the program. The otherwise applicable assessment and oversight processes shall continue to be administered for families and facilities not included in the program.
(2) Upon implementation of the program in a county, that county may not accept new applications for the licensure of foster family homes, the approval of relative and nonrelative extended family members, or the approval of prospective adoptive homes.
(k)The department may waive regulations that pose a barrier to implementation and operation of this program. The waiver of any regulations by the department pursuant to this section shall apply to only those counties or foster family agencies participating in the program and only for the duration of the program.
(l)Resource families approved under initial implementation of the program, who move within an early implementation county or who move to another early implementation county, shall retain their resource family status if the new building and grounds, outdoor activity areas, and storage areas meet home environment standards. The State Department of Social Services or early implementation county may allow a program-affiliated individual to transfer his or her subsequent arrest notification if the individual moves from one early implementation county to another early implementation county, as specified in subdivision (g) of Section 1522 of the Health and Safety Code.
(m)(1)The approval of a resource family who moves to a nonparticipating county remains in full force and effect pending a determination by the county approval agency or the department, as appropriate, whether the new building and grounds and storage areas meet applicable standards, and whether all adults residing in the home have a criminal records clearance or exemptions granted, using the exemption criteria used for foster care licensing, as specified in subdivision (g) of Section 1522 of the Health and Safety Code. Upon this determination, the nonparticipating county shall either approve the family as a relative or nonrelative extended family member, as applicable, or the department shall license the family as a foster family home.
(2)Subject to the requirements in paragraph (1), the family shall continue to be approved for guardianship and adoption. Nothing in this subdivision shall limit a county or adoption agency from determining that the family is not approved for guardianship or adoption based on changes in the familys circumstances or psychosocial assessment.
(3)A program-affiliated individual who moves to a nonparticipating county may not transfer his or her subsequent arrest notification from a participating county to the nonparticipating county.
(n)Implementation of the program shall be contingent upon the continued availability of federal Social Security Act Title IV-E (42 U.S.C. Sec. 670) funds for costs associated with placement of children with resource families assessed and approved under the program.
(o)A child placed with a resource family shall be eligible for AFDC-FC payments. A resource family, or a foster family agency pursuant to subdivisions (s) and (t), shall be paid an AFDC-FC rate pursuant to Sections 11460, 11461, and 11463. Sharing ratios for nonfederal expenditures for all costs associated with activities related to the approval of relatives and nonrelative extended family members shall be in accordance with Section 10101.
(p)The Department of Justice shall charge fees sufficient to cover the cost of initial or subsequent criminal offender record information and Child Abuse Central Index searches, processing, or responses, as specified in this section.
(q)Except as provided, approved resource families under this program shall be exempt from all of the following:
(1)Licensure requirements set forth under the California Community Care Facilities Act, commencing with Section 1500 Act (Chapter 3 (commencing with Section 1500) of Division 2 of the Health and Safety Code, Code), and all regulations promulgated thereto.
(2)Relative and nonrelative extended family member approval requirements set forth under Sections 309, 361.4, and 362.7, and all regulations promulgated thereto.
(3)Adoptions approval and reporting requirements set forth under Section 8712 of the Family Code, and all regulations promulgated thereto.
(r)(1)Early implementation counties shall be authorized to continue through December 31, 2016. The program shall be implemented by each county on or before January 1, 2017.
(2)No later than July 1, 2017, each county shall provide the following information to all licensed foster family homes and all approved relatives and nonrelative extended family members:
(A)A detailed description of the resource family approval program.
(B)Notification that, in order to care for a foster child, resource family approval is required by December 31, 2019.
(C)Notification that a foster family home license and an approval of a relative or nonrelative extended family member shall be forfeited by operation of law as provided for in paragraph (4).
(3)By no later than January 1, 2018, the following shall apply to all licensed foster family homes and approved relative and nonrelative extended family members:
(A)A licensed foster family home, and an approved relative or nonrelative extended family member with an approved adoptive home study completed prior to January 1, 2018, shall be deemed to be an approved resource family.
(B)A licensed foster family home, and an approved relative or nonrelative extended family member who had a child in placement at any time, for any length of time, between January 1, 2017, and December 31, 2017, inclusive, may be approved as a resource family on the date of successful completion of a psychosocial assessment pursuant to subparagraph (B) of paragraph (2) of subdivision (d).
(C)A county may provide supportive services to all licensed foster family home providers, relatives, and nonrelative extended family members with a child in placement to assist with the resource family transition and to minimize placement disruptions.
(4)All foster family licenses and approvals of a relative or nonrelative extended family member shall be forfeited by operation of law on December 31, 2019, except as provided in this paragraph:
(A)All licensed foster family homes that did not have a child in placement at any time, for any length of time, between January 1, 2017, and December 31, 2017, inclusive, shall forfeit the license by operation of law on January 1, 2018.
(B)For foster family home licensees and approved relatives or nonrelative extended family members who have a pending resource family application on December 31, 2019, the foster family home license or relative and nonrelative extended family member approval shall be forfeited by operation of law on the date of approval as a resource family. If approval is denied, forfeiture by operation of law shall occur on the date of completion of any proceedings required by law to ensure due process.
(s)On and after January 1, 2017, all licensed foster family agencies shall approve resource families in lieu of certifying foster homes. A foster family agency or a short-term residential treatment center pursuant to subdivision (b) of Section 11462 shall require applicants and resource families to meet the resource family approval standards and requirements set forth in this chapter and in the written directives adopted pursuant to this chapter prior to approval and in order to maintain approval.
(t)Commencing January 1, 2016, the The department may establish participation conditions, and select and authorize foster family agencies that voluntarily submit implementation plans and revised plans of operation in accordance with requirements established by the department, to approve resource families in lieu of certifying foster homes.
(1)Notwithstanding any other law, a participating foster family agency shall require resource families to meet and maintain the resource family approval standards and requirements set forth in this chapter and in the written directives adopted hereto prior to approval and in order to maintain approval.
(2)A participating foster family agency shall implement the resource family approval program pursuant to Section 1517 of the Health and Safety Code.
(3)Nothing in this section shall be construed to limit the authority of the department to inspect, evaluate, or investigate a complaint or incident, or initiate a disciplinary action against a foster family agency pursuant to Article 5 (commencing with Section 1550) of Chapter 3 of Division 2 of the Health and Safety Code, or to take any action it may deem necessary for the health and safety of children placed with the foster family agency.
(4)The department may adjust the foster family agency AFDC-FC rate pursuant to Section 11463 for implementation of this subdivision.
SEC. 6.To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state nor otherwise be subject to Section 6 of Article XIII B of the California Constitution.
SECTION 1.Section 317 of the Welfare and Institutions Code is amended to read:317.(a)(1)If appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section.
(2)If appears to the court that a parent or Indian custodian in an Indian child custody proceeding desires counsel but is presently unable to afford and cannot for that reason employ counsel, the provisions of Section 1912(b) of Title 25 of the United States Code and Section 23.13 of Title 25 of the Code of Federal Regulations shall apply.
(b)If it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent or guardian, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.
(c)If a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding. A primary responsibility of counsel appointed to represent a child or nonminor dependent pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent. Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does not represent another party or county agency whose interests conflict with the childs or nonminor dependents interests. The fact that the district attorney represents the child or nonminor dependent in a proceeding pursuant to Section 300 as well as conducts a criminal investigation or files a criminal complaint or information arising from the same or reasonably related set of facts as the proceeding pursuant to Section 300 is not in and of itself a conflict of interest. The court may fix the compensation for the services of appointed counsel. The appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent. Counsel representing a child or nonminor dependent shall not have a caseload that exceeds 77 child or nonminor dependent clients, unless the counsel has the assistance of, at a minimum, a social worker or investigator who is employed on a half-time or greater than half-time basis, in which case the caseload shall not exceed 188 child or nonminor dependent clients. The Judicial Council shall promulgate rules of court that establish training requirements and guidelines for appointed counsel for children and shall adopt rules as required by Section 326.5 no later than July 1, 2001. Those training requirements shall include instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care.
(d)Counsel shall represent the parent, guardian, child, or nonminor dependent at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, child, or nonminor dependent unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent, guardian, or the child in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship. On and after January 1, 2012, in the case of a nonminor dependent, as described in subdivision (v) of Section 11400, no representation by counsel shall be provided for a parent, unless the parent is receiving court-ordered family reunification services.
(e)(1)Counsel shall be charged in general with the representation of the childs interests. To that end, counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. Counsel may also introduce and examine his or her own witnesses, make recommendations to the court concerning the childs welfare, and participate further in the proceedings to the degree necessary to adequately represent the child. When counsel is appointed to represent a nonminor dependent, counsel is charged with representing the wishes of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent. If the court finds that a nonminor dependent is not competent to direct counsel, the court shall appoint a guardian ad litem for the nonminor dependent.
(2)If the child is four years of age or older, counsel shall interview the child to determine the childs wishes and assess the childs well-being, and shall advise the court of the childs wishes. Counsel shall not advocate for the return of the child if, to the best of his or her knowledge, return of the child conflicts with the protection and safety of the child.
(3)Counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding, and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings. Counsel representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker, and is not expected to provide nonlegal services to the child.
(4)(A)At least once every year, if the list of educational liaisons is available on the Internet Web site for the State Department of Education, both of the following shall apply:
(i)Counsel shall provide his or her contact information to the educational liaison, as described in subdivision (b) of Section 48853.5 of the Education Code, of each local educational agency serving counsels foster child clients in the county of jurisdiction.
(ii)If counsel is part of a firm or organization representing foster children, the firm or organization may provide its contact information in lieu of contact information for the individual counsel. The firm or organization may designate a person or persons within the firm or organization to receive communications from educational liaisons.
(B)The childs caregiver or other person holding the right to make educational decisions for the child may provide the contact information of the childs attorney to the childs local educational agency.
(C)Counsel for the child and counsels agent may, but are not required to, disclose to an individual who is being assessed for the possibility of placement pursuant to Section 361.3 the fact that the child is in custody, the alleged reasons that the child is in custody, and the projected likely date for the childs return home, placement for adoption, or legal guardianship. Nothing in this paragraph shall be construed to prohibit counsel from making other disclosures pursuant to this subdivision, as appropriate.
(5)Nothing in this subdivision shall be construed to permit counsel to violate a childs attorney-client privilege.
(6)The changes made to this subdivision during the 201112 Regular Session of the Legislature by the act adding subparagraph (C) of paragraph (4) and paragraph (5) are declaratory of existing law.
(7)The court shall take whatever appropriate action is necessary to fully protect the interests of the child.
(f)Either the child or counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to consent, which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age, may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege. If the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be the holder of these privileges if the child is found by the court not to be of sufficient age and maturity to consent. For the sole purpose of fulfilling his or her obligation to provide legal representation of the child, counsel shall have access to all records with regard to the child maintained by a health care facility, as defined in Section 1545 of the Penal Code, health care providers, as defined in Section 6146 of the Business and Professions Code, a physician and surgeon or other health practitioner, as defined in former Section 11165.8 of the Penal Code, as that section read on January 1, 2000, or a child care custodian, as defined in former Section 11165.7 of the Penal Code, as that section read on January 1, 2000. Notwithstanding any other law, counsel shall be given access to all records relevant to the case that are maintained by state or local public agencies. All information requested from a child protective agency regarding a child who is in protective custody, or from a childs guardian ad litem, shall be provided to the childs counsel within 30 days of the request.
(g)In a county of the third class, if counsel is to be provided to a child at the countys expense other than by counsel for the agency, the court shall first use the services of the public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the public defender after making a finding of good cause and stating the reasons therefor on the record.
(h)In a county of the third class, if counsel is to be appointed to provide legal counsel for a parent or guardian at the countys expense, the court shall first use the services of the alternate public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the alternate public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the alternate public defender after making a finding of good cause and stating the reasons therefor on the record.
(a)(1)When it If appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section.
(2)When it If appears to the court that a parent or Indian custodian in an Indian child custody proceeding desires counsel but is presently unable to afford and cannot for that reason employ counsel, the provisions of Section 1912(b) of Title 25 of the United States Code and Section 23.13 of Title 25 of the Code of Federal Regulations shall apply.
(b)When If it appears to the court that a parent or guardian of the child is presently financially unable to afford and cannot for that reason employ counsel, and the child has been placed in out-of-home care, or the petitioning agency is recommending that the child be placed in out-of-home care, the court shall appoint counsel for the parent or guardian, unless the court finds that the parent or guardian has made a knowing and intelligent waiver of counsel as provided in this section.
(c)If a child or nonminor dependent is not represented by counsel, the court shall appoint counsel for the child or nonminor dependent, unless the court finds that the child or nonminor dependent would not benefit from the appointment of counsel. The court shall state on the record its reasons for that finding. A primary responsibility of counsel appointed to represent a child or nonminor dependent pursuant to this section shall be to advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent. Counsel may be a district attorney, public defender, or other member of the bar, provided that he or she does not represent another party or county agency whose interests conflict with the childs or nonminor dependents interests. The fact that the district attorney represents the child or nonminor dependent in a proceeding pursuant to Section 300 as well as conducts a criminal investigation or files a criminal complaint or information arising from the same or reasonably related set of facts as the proceeding pursuant to Section 300 is not in and of itself a conflict of interest. The court may fix the compensation for the services of appointed counsel. The appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent. Counsel representing a child or nonminor dependent shall not have a caseload that exceeds 77 child or nonminor dependent clients, unless the counsel has the assistance of, at a minimum, a social worker or investigator who is employed on a half-time or greater than half-time basis, in which case the caseload shall not exceed 188 child or nonminor dependent clients. The Judicial Council shall promulgate rules of court that establish caseload standards, training requirements, requirements and guidelines for appointed counsel for children and shall adopt rules as required by Section 326.5 no later than July 1, 2001. Those training requirements shall include instruction on cultural competency and sensitivity relating to, and best practices for, providing adequate care to lesbian, gay, bisexual, and transgender youth in out-of-home care.
(d)Counsel shall represent the parent, guardian, child, or nonminor dependent at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent, guardian, child, or nonminor dependent unless relieved by the court upon the substitution of other counsel or for cause. The representation shall include representing the parent, guardian, or the child in termination proceedings and in those proceedings relating to the institution or setting aside of a legal guardianship. On and after January 1, 2012, in the case of a nonminor dependent, as described in subdivision (v) of Section 11400, no representation by counsel shall be provided for a parent, unless the parent is receiving court-ordered family reunification services.
(e)(1)Counsel shall be charged in general with the representation of the childs interests. To that end, counsel shall make or cause to have made any further investigations that he or she deems in good faith to be reasonably necessary to ascertain the facts, including the interviewing of witnesses, and shall examine and cross-examine witnesses in both the adjudicatory and dispositional hearings. Counsel may also introduce and examine his or her own witnesses, make recommendations to the court concerning the childs welfare, and participate further in the proceedings to the degree necessary to adequately represent the child. When counsel is appointed to represent a nonminor dependent, counsel is charged with representing the wishes of the nonminor dependent except when advocating for those wishes conflicts with the protection or safety of the nonminor dependent. If the court finds that a nonminor dependent is not competent to direct counsel, the court shall appoint a guardian ad litem for the nonminor dependent.
(2)If the child is four years of age or older, counsel shall interview the child to determine the childs wishes and assess the childs well-being, and shall advise the court of the childs wishes. Counsel shall not advocate for the return of the child if, to the best of his or her knowledge, return of the child conflicts with the protection and safety of the child.
(3)Counsel shall investigate the interests of the child beyond the scope of the juvenile proceeding, and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings. Counsel representing a child in a dependency proceeding is not required to assume the responsibilities of a social worker, and is not expected to provide nonlegal services to the child.
(4)(A)At least once every year, if the list of educational liaisons is available on the Internet Web site for the State Department of Education, both of the following shall apply:
(i)Counsel shall provide his or her contact information to the educational liaison, as described in subdivision (b) of Section 48853.5 of the Education Code, of each local educational agency serving counsels foster child clients in the county of jurisdiction.
(ii)If counsel is part of a firm or organization representing foster children, the firm or organization may provide its contact information in lieu of contact information for the individual counsel. The firm or organization may designate a person or persons within the firm or organization to receive communications from educational liaisons.
(B)The childs caregiver or other person holding the right to make educational decisions for the child may provide the contact information of the childs attorney to the childs local educational agency.
(C)Counsel for the child and counsels agent may, but are not required to, disclose to an individual who is being assessed for the possibility of placement pursuant to Section 361.3 the fact that the child is in custody, the alleged reasons that the child is in custody, and the projected likely date for the childs return home, placement for adoption, or legal guardianship. Nothing in this paragraph shall be construed to prohibit counsel from making other disclosures pursuant to this subdivision, as appropriate.
(5)Nothing in this subdivision shall be construed to permit counsel to violate a childs attorney-client privilege.
(6)The changes made to this subdivision during the 201112 Regular Session of the Legislature by the act adding subparagraph (C) of paragraph (4) and paragraph (5) are declaratory of existing law.
(7)The court shall take whatever appropriate action is necessary to fully protect the interests of the child.
(f)Either the child or counsel for the child, with the informed consent of the child if the child is found by the court to be of sufficient age and maturity to consent, which shall be presumed, subject to rebuttal by clear and convincing evidence, if the child is over 12 years of age, may invoke the psychotherapist-client privilege, physician-patient privilege, and clergyman-penitent privilege. If the child invokes the privilege, counsel may not waive it, but if counsel invokes the privilege, the child may waive it. Counsel shall be the holder of these privileges if the child is found by the court not to be of sufficient age and maturity to consent. For the sole purpose of fulfilling his or her obligation to provide legal representation of the child, counsel shall have access to all records with regard to the child maintained by a health care facility, as defined in Section 1545 of the Penal Code, health care providers, as defined in Section 6146 of the Business and Professions Code, a physician and surgeon or other health practitioner, as defined in former Section 11165.8 of the Penal Code, as that section read on January 1, 2000, or a child care custodian, as defined in former Section 11165.7 of the Penal Code, as that section read on January 1, 2000. Notwithstanding any other law, counsel shall be given access to all records relevant to the case that are maintained by state or local public agencies. All information requested from a child protective agency regarding a child who is in protective custody, or from a childs guardian ad litem, shall be provided to the childs counsel within 30 days of the request.
(g)In a county of the third class, if counsel is to be provided to a child at the countys expense other than by counsel for the agency, the court shall first use the services of the public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the public defender after making a finding of good cause and stating the reasons therefor on the record.
(h)In a county of the third class, if counsel is to be appointed to provide legal counsel for a parent or guardian at the countys expense, the court shall first use the services of the alternate public defender before appointing private counsel. Nothing in this subdivision shall be construed to require the appointment of the alternate public defender in any case in which the public defender has a conflict of interest. In the interest of justice, a court may depart from that portion of the procedure requiring appointment of the alternate public defender after making a finding of good cause and stating the reasons therefor on the record.
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Date
|
Status
|
|---|---|
| May 28, 2015 | Read second time. Ordered to third reading. |
| Jun 23, 2016 | Re-referred to Com. on RLS. pursuant to Assembly Rule 96. |
| Jun 22, 2016 | Read second time and amended. Re-referred to Com. on HUM. S. |
| Jun 21, 2016 | From committee: Do pass as amended and re-refer to Com. on HUM. S. (Ayes 10. Noes 0.) (June 21). |
| Jun 14, 2016 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on JUD. |
| Jul 14, 2015 | July 14 set for first hearing canceled at the request of author. |
| Jun 15, 2015 | Referred to Com. on JUD. |
| Jun 2, 2015 | In Assembly. Read first time. Held at Desk. |
| Jun 1, 2015 | Read third time. Passed. (Ayes 39. Noes 0.) Ordered to the Assembly. |
| Jun 1, 2015 | Read third time. Passed. (Ayes 39. Noes 0. Page 1200.) Ordered to the Assembly. |
| Feb 23, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| May 28, 2015 | From committee: Do pass. (Ayes 7. Noes 0.) (May 28). |
| May 28, 2015 | From committee: Do pass. (Ayes 7. Noes 0. Page 1151.) (May 28). |
| May 23, 2015 | Set for hearing May 28. |
| Apr 27, 2015 | April 27 hearing: Placed on APPR. suspense file. |
| Apr 17, 2015 | Set for hearing April 27. |
| Apr 15, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 6. Noes 0. Page 619.) (April 14). Re-referred to Com. on APPR. |
| Apr 2, 2015 | Set for hearing April 14. |
| Mar 5, 2015 | Referred to Com. on JUD. |
| Feb 24, 2015 | From printer. May be acted upon on or after March 26. |
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Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jun 21, 2016 | Do pass as amended and be re-referred to the Committee on [Human Services] | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 1, 2015 | Senate 3rd Reading SB316 Mitchell | Senate Floor |
Passed |
|
| May 28, 2015 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 27, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 14, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Alliance for Children's Rights | * Support | Jun 21, 2016 |
| California Alliance Of Child And Family Services | ** Support | Jun 1, 2015 |
| California Youth Connection | * Support | Jun 21, 2016 |
| Children's Advocacy Institute | ** Support | Jun 21, 2016 |
| Children'S Law Center Of California | ** Support | Jun 21, 2016 |
| Legal Advocates for Children & Youth | ** Support | Jun 1, 2015 |
| Legal Services for Prisoners with Children | ** Support | Jun 1, 2015 |
| Los Angeles Dependency Lawyers | ** Against | Jun 1, 2015 |
| National Association Of Social Workers, California Chapter | * Support | Jun 21, 2016 |
| National Center for Youth Law | ** Support | Jun 1, 2015 |
| Public Council | * Support | Jun 21, 2016 |
| Public Counsel | * Support | Jun 21, 2016 |
Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SBPCA Bill Id:SB 316
Author:(Mitchell) – As Amended Ver:June 14, 2016
As Proposed to be Amended
SENATE VOTE: Not Relevant
SUBJECT: Placement of children: criminal BACKGROUND checkS
KEY ISSUE: SHOULD THE CRIMINAL BACKGROUND REVIEW PROCESS FOR PLACEMENT OF FOSTER CHILDREN BE CLARIFIED AND MADE MORE CONSISTENT WITH FEDERAL LAW BY LIMITING NON-EXEMPTIBLE CRIMES TO FEDERAL REQUIREMENTS AND BETTER TARGETING THE EXEMPTIBLE LIST AND IMPROVING THE EXEMPTION PROCESS, TO HELP ENSURE THAT CHILDREN ARE PROTECTED FROM HARM AND THAT THE PROCESS WORKS FAIRLY AND TIMELY?
SYNOPSIS
This bill, co-sponsored by Alliance for Children’s Rights, Children’s Advocacy Institute, Children’s Law Center of California and Public Counsel, seeks to streamline criminal background checks for placement of foster children. California has long had a criminal background check process for child care licensing and foster care placement. With the enactment of the federal Adam Walsh Child Protection and Safety Act of 2006, all states were required to comply with specified criminal background checks and restrictions for foster care placements. Instead of harmonizing the federal requirements with California's existing background check procedures, the new federal rules were simply overlaid on top of the state statutes (AB 2651 (Aghazarian), Chap. 701, Stats. 2008), creating a complex set of overlapping and unduly restrictive rules and exemptions. According to the author, this has caused unnecessary delays in relative placements and has limited the relatives who are available for placement, while leaving foster children with limited and potentially poor placement options.
This bill seeks to better harmonize and streamline the background check process by eliminating overly complex exemption processes and aligning the list of non-exemptible crimes with those mandated by federal law. This should, according to the bill's sponsors, speed placement of foster children with relatives and expand the number of households available to provide loving supportive families to foster children, all without harming these children. In particular, this bill prohibits a child from being placed in the home of a relative, nonrelative extended family member, foster, or resource family if the person has a felony conviction for specified crimes, including a crime against a child, or a crime involving violence, as defined. If the criminal records check indicates that the person has been convicted of certain other, less serious crimes -- known as exemptible crimes -- this bill requires that specified factors be considered in determining whether to grant an exemption, including the nature of the crime, how much time has passed since the commission of the crime, the likelihood of future crime and activities since the conviction. Finally, for remaining crimes, the county social worker and the court are required to consider the criminal history in determining whether the placement is in the best interests of the child, as specified. These revised rules are designed to speed the review process and increase the pool of relatives available for foster care placement. There is no reported opposition to this bill.
SUMMARY: Revises rules for exemptible and non-exemptible crimes for those seeking placement of foster children. Specifically, this bill:
- Conforms, with federal law, the list of non-exemptible crimes, the commission of which by a prospective adoptive parent, foster care applicant, resource family applicant, relative or nonrelative extended family members (NREFM), or any adult in the home, will prohibit the placement of a child. Clarifies that non-exemptible crimes are:
- A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or any crime involving violence, including rape, sexual assault or homicide or any violent felony, as provided, but not including other physical assault and battery.
- A felony conviction, in the last five years, for physical assault, battery or a drug- or alcohol-related offense.
- Specifies that the following crimes are exemptible, unless included in the above non-exemptible list, and a child may be placed in a home if the child welfare agency and/or court grants an exemption:
- A felony or misdemeanor conviction for willful harm or injury to a child, as specified, elder abuse, as specified, sexual abuse or exploitation, as specified, and any offense involving child sexual abuse, assault or exploitation, as defined, or any offense that requires registration as a sex offender.
- Any misdemeanor conviction within the last five years.
- Any felony conviction within the last seven years.
- Requires the court and the child welfare agency, in considering whether to grant a criminal records exemption to consider any exemptible crime in the context of all relevant circumstances, including:
- The nature of the crime;
- The period of time since the crime was committed;
- The number of offenses;
- Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity;
- Activities since conviction, including employment, participation in therapy, education, or treatment;
- Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor;
- Any character references or other evidence submitted by the applicant; and
- Whether the person convicted demonstrated honesty and truthfulness concerning the crime during the application and approval process and made reasonable efforts to help obtain documents concerning the crime.
- Provides that if a foster care provider applicant, resource family applicant or any other person in the home has been convicted of a crime that is neither non-exemptible nor exemptible, the criminal history must be considered as part of the licensing process.
- Provides that if a relative or NREFM, or any other person in the home, has been convicted of a crime that is neither non-exemptible nor exemptible, the social worker and the court must consider the criminal history in determining whether placement is in the child's best interest.
- Allows a child, who has been temporarily placed in foster care, to be temporarily placed with a relative or NREFM pending a criminal records exemption if all parties agree that placement is in the child's best interest. If the child is placed in that home, requires that fact to be taken into consideration when determining whether to grant a criminal records exemption.
- Allows a child to be placed with a relative or a NREFM pending a criminal records exemption if all parties agree that placement is in the child's best interest. If the child is placed in that home, requires that fact to be taken into consideration when determining whether to grant a criminal records exemption.
EXISTING LAW:
- Provides that a minor may be removed from the physical custody of his or her parents and become a dependent of the juvenile court as the result of abuse or neglect, as specified. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to that code.)
- Requires, at the detention hearing, that the court take certain steps to evaluate the case, determine whether the child can be returned home safely, and, if not, to ensure the child is placed in an appropriate placement, with priority consideration for family members and NREFMs. (Section 319.)
- Establishes criteria for approving a home for the placement of a child, including a home visit and the submission of fingerprints for a state and federal criminal background check, and requires the county to prohibit placement with anyone who has an arrest or conviction for a serious or violent felony, as specified. (Section 361.4.)
- Prohibits placement of the child in a home where an adult in the home has a criminal history until an exemption is granted by the county. (Section 361.4 (d).)
- Prohibits placement in a home if the person has been convicted of a crime for which the Director of Social Services cannot grant an exemption, and requires, for exemptible crimes, that the exemption has actually been granted by the county based on substantial and convincing evidence to support a reasonable belief that the person with the criminal conviction is of such good character as to justify the placement and not present a risk of harm to the child. Authorizes a county to issue a criminal record exemption only if that county has been granted permission by the Director of Social Services, as specified, and requires a county to adhere to specified exemption criteria. (Sections 309 (d)(4) and 361.4 (d).)
- Requires the Department of Social Services (DSS) to license group care facilities, private Foster Family Agencies, and foster family homes for the placement of children who are in the child welfare system, and requires, prior to licensure, a licensed foster home provider to undergo a criminal background check, as specified. (Health & Safety Code Sections 1502 and 1522.)
- Requires each person who files an application for adoption to be fingerprinted, and for the DSS, the county adoption agency or licensed adoption agency to secure any criminal record of that person, including a Federal Bureau of Investigation background check using fingerprints. (Family Code Section 8712.)
- Prohibits DSS, or an adoption agency, or licensed adoption agency from giving final approval for an adoptive placement in any home in which the prospective adoptive parent or any adult living in the prospective adoptive home has either of the following: (1) a felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography; or (2) for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. (Family Code Section 8712 (c); Health & Safety Code Section 1522 (g).)
- Allows DSS to grant an exemption to the criminal conviction exclusion for certain crimes if the director has substantial and convincing evidence to support a reasonable belief that the person convicted of the crime is of good character in order to justify granting the exemption, and prohibits an exemption for violent felonies including:
- Murder or voluntary manslaughter, mayhem, attempted murder;
- Rape, sodomy, and oral copulation, as defined;
- Lewd or lascivious acts, as defined;
- Any felony punishable by death or imprisonment in the state prison for life;
- Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, as defined, or in which the defendant uses a firearm, as defined;
- Robbery, arson, carjacking, and extortion, as defined;
- Kidnapping and continuous sexual abuse of a child;
- Threats to victims or witnesses, as defined;
- Any burglary of the first degree, as defined; and
- Other crimes, as specified. (Health & Safety Code Section 1522 (g); Penal Code Section 667.5.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: When an abused or neglected child is taken from the custody of his or her parents, social workers are required to release a child temporarily to a responsible parent, guardian, or relative, unless it is not safe to do so. Social workers may also release a child into the custody of a relative, a NREFM (defined as any adult caregiver who has established a familial or mentoring relationship with the child) or place the child in a licensed foster or group home. Prior to placing a child in the home, the social worker must visit the home to ascertain the appropriateness of the placement and run a criminal records check on all persons over 18 years of age living in the home, or any other person who may have significant contact with the child, including those with a familial or intimate relationship with any person living in the home. If the criminal records check shows that a person has been convicted of certain crimes, mostly violent felonies, the child may not be placed in the home. If the person has been convicted of a crime for which there is a criminal records exemption, the child cannot be placed in the home unless the county does in fact grant an exemption.
California has long had a criminal background check process for childcare licensing and foster care placement. With the enactment of the federal Adam Walsh Child Protection and Safety Act of 2006, all states were required to comply with specified criminal background checks and restrictions. With regard to foster care, the federal Act eliminated a federal provision that allowed states to apply their own law concerning restrictions on placement of foster children with caregivers who have a criminal record. (42 U.S.C. section 671 (a)(20).) However, instead of harmonizing the federal requirements with California's existing background check procedures, the new federal rules were simply overlaid on top of the state rules, creating a complex set of overlapping and unduly restrictive rules and exemptions. (AB 2651 (Aghazarian), Chap. 701, Stats. 2008.) According to the author, this has caused unnecessary delays in relative placements and has limited the relatives who are available for placement. Seeking to simplify the exemption process, this bill revises the original state law, which was largely rendered redundant by the federal rules, to make it work better with the federal requirements, and simplifies and streamlines both the exemptible crimes and the process to seek those exemptions.
The sponsors succinctly explain the problem with existing law and the bill's proposed solution:
Too many children in foster care are lingering in shelters. These children could be placed with loving and familiar relatives or wonderful potential foster parents who, under California's current laws, may be disqualified for a crime such as petty theft that happened decades ago. The laws related to the criminal history of a prospective foster or kinship caregiver are overly broad and unduly restrictive. There is currently a burdensome and convoluted exemption process that has a very detrimental impact on children who have been removed from their patents' homes.
[This bill] can fix this problem and provide children in foster care with a viable home placement. With changes that do not compromise child safety, [this bill] will eliminate the complex exemption process and will align the list of non-exemptible crimes with those required by federal law. California law will continue to prohibit -- without discretion to make exemptions -- placement with any person with a serious or violent felony conviction (no matter how long ago), or with an assault, battery or drug-related felony conviction within the past 5 years. [This bill] addresses the needless impediments to appropriate relative and foster care placements.
Preference for Placement with Relatives. Studies have demonstrated significant benefit to children in the child welfare system who are placed with relatives rather than with strangers in foster homes or in group care. Writing in the National Journal for the Court Appointed Special Advocates for Children (CASA), retired Santa Clara Juvenile Court Judge Len Edwards underscored the benefits of placing children with relatives:
- Children in relative care tend to be just as safe as, or safer than, children placed in foster care.
- Relative placements provide more stability than placement with foster families, and if the child has to move, it is likely he or she will move from the home of one relative to another.
- Siblings more often remain together in relative care, and are more likely to visit one another even if they reside in separate relative homes.
- Relative caregivers are more likely to continue the ties with the child’s birth family.
- Children in relative care are more likely to remain connected to their community, including their school.
- Relative caretakers facilitate parent-child visitation more easily since the caregivers will likely favor reunification and will be less likely than foster parents to compete with the parents for permanent custody of the child.
- Relatives are more likely to invest time and care for a child who shares a blood tie. This includes a willingness to care for the child for as long as needed.
- Placement with relatives will generally be less traumatic than placement in an unfamiliar home because the children will be living with someone they know and trust, particularly if the non-relative differs racially or ethnically from the child.
- Placement with relatives supports the transmission of a child’s family identity, culture, and ethnicity.
- Placement with relatives eliminates the unfortunate stigma that many foster children experience.
- Children fare better in relative care than in foster care along numerous axes.
- The child placed with relatives knows his or her own family, sees family resemblances, and understands how he or she fits into it. (Judge Len Edwards, Examining the Benefits and Challenges of Placing Children with Relatives (CASA Nov. 2011).)
But, Judge Edwards noted, there are barriers to placing children with relatives:
Relative preference may be the law today, but significant challenges remain. . . . We must also identify, locate and engage relatives. Relative preference statutes mean little without rigorous social work immediately following removal of the child from parental care. The social worker must learn from the parents who the child’s relatives are, contact them, and encourage them to become involved in the child protection case. The sooner this is accomplished, the more likely that the relatives will become engaged. The law now gives relatives the right to appear before the court and speak on behalf of the child. Just as importantly, relatives have the ability to participate in group decision-making processes such as family group conferences, team decision making, family team meetings, and court-based mediation. All of these group decision-making processes have spread throughout the United States and have been recognized as best practices in the resolution of the difficult issues presented in child protection cases.
Delay in relative engagement often means that they will not be selected as placement for the child. The child protection system is notoriously slow. Fact finding hearings may take months to complete. Placement issues may take over a year. Yet in the meantime the child will be living with a family and will naturally become strongly connected to that family. The late-arriving relative often finds that the foster family will be preferred because of the connection between the child and that family.
Relative placement is good social and legal policy. However, effective implementation of relative preference requires early identification and engagement. It requires effective judicial oversight of social worker actions regarding locating and engaging fathers and relatives. It also requires opportunities for relatives to participate in decision making, preferably through group decision-making processes. Engaging relatives is a best practice, one that will serve the best interests of children separated from their parents. (Examining the Benefits and Challenges of Placing Children with Relatives, supra.)
Safety is paramount when placing foster children, but delays in placement harm children too. Obviously, when children are removed from their parents due to abuse or neglect, providing them a safe and secure place to live is paramount. That includes making sure that the residents of the placement home do not pose a danger to the children. California does so, in part, through required criminal background checks for household members. But the current overlapping and confusing statutory scheme for the crimes that are now non-exemptible and exemptible and the process for clearing exemptible crimes can be, the author notes, unnecessarily difficult and time consuming without adding additional protections for children. And placing children in group homes or other stranger foster care placements, either while awaiting relative background checks and clearances or permanently if relatives cannot be cleared, because, for example, a 20-year old financial abuse conviction cannot be exempted, can harm children already suffering from the underlying abuse or neglect and from being pulled from their homes, their friends and their families.
This bill seeks to eliminate the confusing morass of criminal records check laws and simplify the criminal exemption process. By aligning California law directly with federal requirements, this bill simplifies the exemption process with regard to foster care home placements. Accordingly, this bill maintains the federally required status quo by ensuring that a child will never be placed in a home where a resident has committed a non-exemptible crime. These crimes, include a felony conviction for child abuse or neglect, spousal abuse, or crimes against a child, or other violent felonies, which include rape, sexual assault, homicide, murder or voluntary manslaughter, mayhem, attempted murder, lewd or lascivious acts, any felony punishable by death or life imprisonment, robbery, arson, carjacking, extortion and kidnapping. No child can ever be placed in a home where someone has been convicted of these non-exemptible crimes.
This bill then clarifies which crimes are exemptible and streamlines the exemption process. Exemptible crimes include most of the sex and abuse crimes that are not already non-exemptible, as well as recent felonies (within seven years) and misdemeanors (within five years). For these exemptible crimes, the bill requires the county and/or the court to consider all relevant circumstances when determining whether to approve a home for placement, including: (1) the nature of the crime or crimes; (2) the period of time since the crime was committed; (3) the number of offenses; (4) circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity; (5) activities since conviction, including employment, participation in therapy, education, or treatment; (6) whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor; (7) any character references or other evidence submitted by the applicant; and (8) whether the person convicted demonstrated honesty and truthfulness concerning the crime during the application and approval process and made reasonable efforts to help obtain documents about the crime. The sponsor argues that by allowing the court and/or county to look at a person’s exemptible criminal history on a case-by-case basis, the child’s best interests will be better protected, and some of the arbitrariness of the old system, whereby many of the non-exemptible crimes seemed less related to child safety than some exemptible crimes, will be eliminated.
All other criminal convictions not specifically either non-exemptible or exemptible must still be considered by the county and the court in determining whether placing a child into the home of a relative or NREFM is in the child's best interest.
This bill is very similar to SB 1201, which was held in Senate Appropriations Committee. This bill is similar, though not identical, to the author's SB 1201, which was held on suspense in the Senate Appropriations Committee. The author states that the differences between this bill and SB 1201 address the concerns that resulted in that bill remaining on the suspense file.
Related Pending Legislation: This bill works in collaboration with two other bills being considered by this Committee today that also seek to keep foster children with family. SB 942 (Liu) establishes additional procedures for the temporary placement of a child with an able and willing relative, requires that the criminal records check be conducted within a specified timeframe, and authorizes the court to conduct a hearing if the assessment process is not complete, as specified.
SB 1336 (Jackson), consistent with case law, requires child welfare agencies to consider willing relatives even when a new foster care placement is not required and requires the court to consider whether social workers have exercised due diligence in conducting their investigation to identify, locate, and notify the foster children's relatives.
Technical Amendments: The author has proposed several technical amendments that ensure clear language and cross-references are made and this bill is analyzed as proposed to be amended with these changes. They proposed amendments are:
On page 4, line 19, delete "(C)" and insert: (A)
On page 4, line 20, delete "(1)" and insert: (2)
On page 20, line 32, after "(A)", insert: or (B)
On page 27, line 1, delete "the" and insert: to
On page 30, line 39, delete "the" and insert: to
On page 36, line 4, after "in", insert: subparagraph (3) of
REGISTERED SUPPORT / OPPOSITION:
Support
Alliance for Children’s Rights (co-sponsor)
Children’s Advocacy Institute (co-sponsor)
Children’s Law Center of California (co-sponsor)
Public Counsel (co-sponsor)
John Burton Foundation
Opposition
None on file
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334
SB 316
Page 4
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Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 316
Introduced: 2/23/15
SENATE JUDICIARY COMMITTEE: 6-0, 4/14/15
AYES: Jackson, Vidak, Anderson, Leno, Monning, Wieckowski
NO VOTE RECORDED: Hertzberg
SENATE APPROPRIATIONS COMMITTEE: 7-0, 5/28/15
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SUBJECT: Dependency proceedings: counsel
DIGEST: This bill prohibits counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds 77 clients, unless the counsel has the assistance of a social worker or investigator, as specified, in which case the caseload shall not exceed 188 clients. This bill additionally strikes a requirement that the Judicial Council promulgate rules of court to establish caseload standards.
Existing law:
Authorizes the juvenile court to adjudge minor children “dependents” of the court in response to allegations of abuse or neglect, as specified. (Welf. & Inst. Code Sec. 300 et seq.)
Requires the court to appoint counsel for children or nonminor dependents in dependency proceedings who are not represented by counsel, unless the court finds that the child would not benefit from that appointment. (Welf. & Inst. Code Sec. 317(c).)
Provides the appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent, and requires the Judicial Council to promulgate rules of court that establish caseload standards, training requirements, and guidelines for appointed counsel for children and nonminor dependents, as specified. (Welf. & Inst. Code Sec. 317(c).)
This bill:
Deletes the requirement that the Judicial Council promulgate rules of court to establish caseload standards.
Prohibits counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds 77 child or nonminor dependent clients, unless the counsel has the assistance of a social worker or investigator who is employed at least on a half-time basis, in which case the caseload shall not exceed 188 child or nonminor dependent clients.
Background
Every year, due to abuse or neglect, children are removed from their home and placed in the juvenile dependency system. The court is required to appoint minor’s counsel, unless the child would not benefit from counsel. In 2000, the Legislature enacted SB 2160 (Schiff, Chapter 450, Statutes of 2000) which presumed that children entering the dependency system would benefit from counsel and required appointed counsel to have caseloads and training that ensure adequate representation. Under that bill, the Judicial Council was required to promulgate rules establishing caseload standards. To that end, the Judicial Council conducted a study in 2002 and recommended “that a maximum caseload of 141 clients per full-time dependency attorney be the base-level standard of performance; a maximum caseload of 77 clients was identified as necessary for an optimal, or best practice, standard of performance.” (Judicial Council of Cal., Admin Off. of Cts., Dependency Counsel Caseload Standards: A Report to the California Legislature (Apr. 2008), p. 7.)
Subsequent studies modified that caseload standard to a maximum of 188 clients per attorney if the attorney had the assistance of a half-time social worker or investigator. (Id at 8.) The Judicial Council adopted the revised caseload standard in 2007, but noted that “although a caseload standard has been formally adopted, there is widespread recognition that there is not currently sufficient funding available to implement that standard.” (Id.)
This bill establishes, in statute, a caseload standard of 77 clients, or 188 clients if counsel has the assistance of a social worker or investigator, as specified, per minor’s counsel, and removes the requirement that the Judicial Council promulgate caseload standards.
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No
According to the Senate Appropriations Committee:
Major ongoing costs of between $33.1 million and $92.4 million (General Fund) per year for additional attorneys to meet the specified caseload standards ranging from the maximum of 188 clients per attorney to the optimal standard of 77 clients per attorney.
Unknown but potentially significant future cost savings in child welfare services and court operations to the extent additional dependency counsel results in more effective representation for children in dependency proceedings and more efficient court processes.
California Alliance of Child and Family Services
Children’s Advocacy Institute
Children’s Law Center
Legal Advocates for Children & Youth
Legal Services for Prisoners with Children
National Association of Social Workers – California Chapter
National Center for Youth Law
OPPOSITION: (Verified 5/29/15)
Los Angeles Dependency Lawyers
ARGUMENTS IN SUPPORT: The Children’s Law Center, a nonprofit legal services organization that represents over 32,000 foster children, writes in support, “Each of our attorneys represents, on average, 300 child clients. This is drastically higher than the caseload standard as recommended by a 2008 American Humane Society caseload study. That study concluded that the optimal caseload for a dependency attorney is 77 clients, while the maximum is 188 (when assisted by a social work investigator.) Currently, 32 counties throughout California are not sufficiently funded to meet even the maximum caseload standard. In 15 California counties, attorneys are so under-resources that caseloads are more than double that of the maximum standard.”
ARGUMENTS IN OPPOSITION: The Los Angeles Dependency Lawyers, who represent parents in dependency proceedings, argue that this bill, by imposing caseload limits on minors’ counsel but not parents’ counsel, creates a rift in the dependency system. The Los Angeles Dependency Lawyers write that this bill “only solve part of the plight of the underfunded and unconscionable high caseloads of child and parent dependency lawyers. In fact what is being proposed would significantly work to the detriment of California children and families. … Mandating smaller caseloads only for children’s counsel neglects the need for smaller caseloads for parents (and guardians’ counsel). This of course, sends a direct message to parents, parents’ and guardians’ counsel, other agencies and entities in the dependency system, and the judiciary that parents are not as important as children’s counsel.”
Prepared by: Nichole Rapier / JUD. / (916) 651-4113
5/30/15 10:32:50
**** END ****
SB 316 (Mitchell) Page 3 of 3
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 316 (Mitchell) - Dependency proceedings: counsel
|
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Version: February 23, 2015 |
Policy Vote: JUD. 6 - 0 |
Urgency: No |
Mandate: No |
Hearing Date: April 27, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 316 would prohibit counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds a specified number of clients. This bill would delete the requirement that the Judicial Council promulgate rules of court to establish caseload standards.
Fiscal Impact:
Major ongoing costs of between $33.1 million and $92.4 million (General Fund) per year for additional attorneys to meet the specified caseload standards ranging from the maximum of 188 clients per attorney to the optimal standard of 77 clients per attorney.
Unknown but potentially significant future cost savings in child welfare services and court operations to the extent additional dependency counsel results in more effective representation for children in dependency proceedings and more efficient court processes.
Background:
Existing law authorizes the juvenile court to adjudge minor children “dependents” of the court in response to allegations of abuse or neglect, as specified. (Welfare & Institutions Code (WIC) § 300 et seq.)
Under existing law, the court is required to appoint counsel for children or nonminor dependents that are not represented by counsel in dependency proceedings, unless the court finds that the child would not benefit from that appointment. (WIC § 317(c).)
SB 2160 (Schiff) Chapter 450/2000, required appointed counsel to have caseloads and training that ensure adequate representation. Under the provisions of the bill, the Judicial Council was required to promulgate rules establishing caseload standards. As a result, the Judicial Council conducted a study in 2002 and recommended, “that a maximum caseload of 141 clients per full-time dependency attorney be the base-level standard of performance; a maximum caseload of 77 clients was identified as necessary for an optimal, or best practice, standard of performance.” (Judicial Council of Cal., Admin Off. of Cts., Dependency Counsel Caseload Standards: A Report to the California Legislature (Apr. 2008), p. 7.)
The Judicial Council adopted a revised caseload standard in 2007, based on subsequent studies that modified the caseload standard to a maximum of 188 clients per attorney if the attorney had the assistance of a half-time social worker or investigator, but noted that there was not sufficient funding available to implement that standard.
In its March 26, 2015, hearing agenda, Subcommittee No. 5 of the Senate Budget and Fiscal Review, reported the following:
The Judicial Council currently allocates $103.7 million annually for dependency council. With court-appointed counsel providing representation to approximately 142,500 parents and children, the current level of funding is sufficient to provide representation at a rate of one attorney for approximately 250 clients. The Judicial Council does not collect the data necessary to determine the dependency counsel caseloads by county. However, they have provided an estimate, based on the number of child clients and the funding allocations. Below is a breakdown of the estimated caseloads for the largest counties in the state. (p.13)
Proposed Law:
This bill would make the following changes with respect to counsel in dependency proceedings:
Deletes the requirement that the Judicial Council promulgate rules of court to establish caseload standards.
Prohibits counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds 77 child or nonminor dependent clients, unless the counsel has the assistance of a social worker or investigator who is employed at least on a half-time basis, in which case the caseload shall not exceed 188 child or nonminor dependent clients.
Prior Legislation:
SB 2160 (Schiff) Chapter 450/2000 required the Judicial Council to adopt a rule of court by July 1, 2001, providing for the appointment of a guardian ad litem, and for caseload standards for appointed counsel. The bill authorized related rules of court regarding guidelines for appointment of an attorney rather than a special advocate to represent a child, and caseload standards for guardians ad litem.
Staff Comments:
According to the January 14, 2014, report of the Chief Justice, “A Three-Year Blueprint for a Fully Functioning Judicial Branch,” it would cost $33.1 million per year to adjust current dependency counsel caseloads of 250 clients per attorney to meet the caseload standard of 188 clients per attorney. Extrapolating from this estimate, reducing dependency counsel caseloads to 77 clients per attorney would cost $92.4 million annually.
To the extent additional dependency counsel results in more effective representation for children in dependency proceedings and more efficient court processes, the state could potentially realize significant future costs savings in child welfare services and court operations.
-- END --
SB 316 (Mitchell)
Page 5 of 5
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 316 (Mitchell)
Version: February 23, 2015
Hearing Date: April 14, 2015
Fiscal: Yes
Urgency: No
NR
SUBJECT
Dependency proceedings: counsel
DESCRIPTION
This bill would prohibit counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds 77 clients, unless the counsel has the assistance of a social worker or investigator, as specified, in which case the caseload shall not exceed 188 clients. This bill would additionally strike a requirement that the Judicial Council promulgate rules of court to establish caseload standards.
BACKGROUND
Every year, due to abuse or neglect, children are removed from their home and placed in the juvenile dependency system. The court is required to appoint minor’s counsel, unless the child would not benefit from counsel. In 2000, the Legislature enacted SB 2160 (Schiff, Ch. 450, Stats. 2000) which presumed that children entering the dependency system would benefit from counsel and required appointed counsel to have caseloads and training that ensure adequate representation. Under that bill, the Judicial Council was required to promulgate rules establishing caseload standards. To that end, the Judicial Council conducted a study in 2002 and recommended “that a maximum caseload of 141 clients per full-time dependency attorney be the base-level standard of performance; a maximum caseload of 77 clients was identified as necessary for an optimal, or best practice, standard of performance.” (Judicial Council of Cal., Admin Off. of Cts., Dependency Counsel Caseload Standards: A Report to the California Legislature (Apr. 2008), p. 7.)
Subsequent studies modified that caseload standard to a maximum of 188 clients per attorney if the attorney had the assistance of a half-time social worker or investigator. (Id at 8.) The Judicial Council adopted the revised caseload standard in 2007, but noted that “although a caseload standard has been formally adopted, there is widespread recognition that there is not currently sufficient funding available to implement that standard.” (Id.)
This bill would establish, in statute, a caseload standard of 77 clients, or 188 clients if counsel has the assistance of a social worker or investigator, as specified, per minor’s counsel, and remove the requirement that the Judicial Council promulgate caseload standards.
CHANGES TO EXISTING LAW
Existing law authorizes the juvenile court to adjudge minor children “dependents” of the court in response to allegations of abuse or neglect, as specified. (Welf. & Inst. Code Sec. 300 et seq.)
Existing law requires the court to appoint counsel for children or nonminor dependents in dependency proceedings who are not represented by counsel, unless the court finds that the child would not benefit from that appointment. (Welf. & Inst. Code Sec. 317(c).)
Existing law provides the appointed counsel shall have a caseload and training that ensures adequate representation of the child or nonminor dependent, and requires the Judicial Council to promulgate rules of court that establish caseload standards, training requirements, and guidelines for appointed counsel for children and nonminor dependents, as specified. (Welf. & Inst. Code Sec. 317(c).)
This bill would (1) delete the requirement that the Judicial Council promulgate rules of court to establish caseload standards and (2) would, instead, prohibit counsel representing a child or nonminor dependent in dependency proceedings from having a caseload that exceeds 77 child or nonminor dependent clients, unless the counsel has the assistance of a social worker or investigator who is employed at least on a half-time basis, in which case the caseload shall not exceed 188 child or nonminor dependent clients.
COMMENT
Stated need for the bill
According to the author:
Under current law, dependency counsel does not have a limit on caseloads, leading to counties having lawyers with caseloads exceeding 300 child or nonminor clients. This leads to counsel not being able to fully represent a child solely due to too many clients and not enough time. The State of California has a responsibility to ensure that every child or minor dependent in our foster care system is fully and adequately represented in dependency court as the child does not have a voice of their own.
Responsibilities of minor’s counsel compromised by large caseloads
In 2000, the Legislature enacted SB 2160, which expanded upon the duties a minor’s counsel owes to his or her clients. Prior to that bill, counsel was “charged in general with the representation of the child’s interests.” (Welf. & Inst. Code Sec. 317(e).) SB 2160 additionally provided that minor’s counsel is to “advocate for the protection, safety, and physical and emotional well-being of the child or nonminor dependent,” and required counsel to “investigate the interests of the child beyond the scope of the juvenile proceeding, and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings.” Counsel is further required to interview children over the age of four to determine the child’s wishes and assess the child’s well-being, and is prohibited from advocating for the return of the child if it would conflict with his or her protection and safety. SB 2160 also required the Judicial Council to promulgate rules of court that establish caseload standards by July, 2001. This Committee noted in its analysis of the bill that the question of caseload standards is directly related to the best interests of the child, and recommended that the Judicial Council look into appropriate standards:
Ultimately, it is the best interest of the child that appointment of counsel seeks to promote, under current law and under this bill. Many advocates who have watched dependency courts state that even in those states and counties that regularly appoint counsel for the dependent child, the best interest of the child may not be advanced because the attorney appointed is not qualified, or is undercompensated, or is so overloaded with cases they border on incompetence. (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2160 (1999-2000 Reg. Sess.) as amended March 30, 2000.)
Subsequent Judicial Council-sponsored studies established a maximum caseload of 77 clients per full-time dependency attorney, or 188 clients with the assistance of a social worker or investigator. (Judicial Council of Cal., Admin Off. of Cts., Dependency Counsel Caseload Standards: A Report to the California Legislature (Apr. 2008), p. 8.) This bill would implement those limits. The Children’s Law Center, a nonprofit legal services organization that represents over 32,000 foster children, writes in support:
Each of our attorneys represents, on average, 300 child clients. This is drastically higher than the caseload standard as recommended by a 2008 American Humane Society caseload study. That study concluded that the optimal caseload for a dependency attorney is 77 clients, while the maximum is 188 (when assisted by a social work investigator.) Currently, 32 counties throughout California are not sufficiently funded to meet even the maximum caseload standard. In 15 California counties, attorneys are so under-resources that caseloads are more than double that of the maximum standard.
The detrimental impact of these astounding caseloads cannot be overstated. For a foster child struggling to cope with the trauma of having been abused or neglected, meaningful access to a lawyer is critical. Without a reasonable caseload, even the most dedicated and highly skilled attorney cannot meet the demanding and complex needs of California’s most vulnerable children.
While, at the time of this writing, there is broad support for codifying caseload limits on minor’s counsel, many contend that the ceilings imposed under this bill are in fact too high and would like to see lower caseloads so that counsel may better represent dependent youth. The Children’s Advocacy Institute writes in support, “our moral and legal obligation to these children is entirely unique. Nothing compares to it. It is at the pinnacle of our duties. We remove them by force of law from their families and by doing so we incur the moral responsibility not to abuse them on purpose or because of other priorities. We are obligated not just to avoid further harming them. We are obligated to do right by them.”
Concerns raised by dependency lawyers representing parents and guardians
The Los Angeles Dependency Lawyers and the Dependency Legal Group of San Diego, who represent parents in dependency proceedings, argue that this bill would, by imposing caseload limits on minors’ counsel but not parents’ counsel, create a rift in the dependency system. The Los Angeles Dependency Lawyers write that this bill would “only solve part of the plight of the underfunded, and unconscionable high caseloads of child and parent dependency lawyers. In fact what is being proposed would significantly work to the detriment of California children and families. … Mandating smaller caseloads only for children’s counsel neglects the need for smaller caseloads for parents (and guardians’ counsel). This of course, sends a direct message to parents, parents’ and guardians’ counsel, other agencies and entities in the dependency system, and the judiciary that parents are not as important as children’s counsel.”
Support: California Alliance of Child and Family Services; Children’s Advocacy Institute; Children’s Law Center; Legal Advocates for Children & Youth; Legal Services for Prisoners with Children; National Association of Social Workers – California Chapter; National Center for Youth Law
Opposition: Los Angeles Dependency Lawyers
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: SB 2160 (Schiff, Chapter 450, Statutes of 2000) See Background.
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Discussed in Hearing
13MIN
Assembly Standing Committee on Judiciary
3MIN
Senate Floor
10MIN
Senate Standing Committee on Appropriations
14MIN
Senate Standing Committee on Judiciary
Bill Author
