Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of the childs parents or guardian, and requires the court to order the social worker to provide designated child welfare services, including family reunification services, as prescribed. Existing law provides that reunification services do not need to be provided to a parent or guardian when the court finds, by clear and convincing evidence, certain circumstances exist, including that the parent or guardian of the child has been convicted of a violent felony, as defined.

This bill would instead provide that reunification services do not need to be provided to a parent or guardian when the court finds that the parent or guardian of the child has been convicted of a violent felony against a child. By expanding the scope of individuals requiring reunification services, the bill would impose additional duties on county child welfare departments, thereby imposing 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.

ASSEMBLY THIRD READING

ATR Bill Id:AB 2282

Author:(McKinnor)

As Introduced Ver:February 8, 2024

Majority vote

SUMMARY

Makes more parents and guardians whose children are in the foster care system eligible for services that could allow them to reunify with their child.

Major Provisions

Removes the presumption in current law that a parent or guardian who has been convicted of a violent felony is ineligible for services to reunify with their child, so long as the parent or guardian is not convicted of a violent felony against a child.

COMMENTS

Many parents in the foster care system have also been involved in the criminal justice system. Both of these systems have a disparate impact on communities of color. In fact, 11.4% of Black children and 3.5% of Latino children have an incarcerated parent (as opposed to 1.8% of white children). It is not uncommon for parents in the juvenile dependency court to have a prior conviction for a felony offense, including an offense that meets the definition of a "violent felony." Current law makes a parent or guardian who has been convicted of a "violent felony" presumptively ineligible for services designed for them to reunify with their child in the foster care system.

This bill, co-sponsored by Los Angeles Dependency Lawyers and Dependency Legal Services, modifies state law so that more parents and guardians whose children are in the foster care system would qualify for services that could allow them to reunify with their children. Specifically, it would modify existing law so that a parent or guardian who has been convicted of violent felony would be eligible for reunification services, so long as their conviction were not for a violent felony against a child. This change in the law would align California with the vast majority of other states and effectively allow more parents with past felony convictions to have the opportunity to reunify with their children in the foster care system.

Reunification services. When it is necessary for a child to be removed from the home of their parent or guardian, the primary objective of the child welfare system is to safely reunify the child with those caregivers. To support this objective, in most cases the juvenile court orders reunification services, such as counseling for the family and parenting classes and drug or alcohol treatment for the child's parents. If the child is under the age of three, these reunification services are only offered for a period of six months. If the child is over the age of three, the services are offered for twelve months. In some circumstances, the time period for reunification services can be extended up to 24 months.

During dependency proceedings, a court must hold periodical review hearings at least every six months, including at six and 12 months after the dispositional hearing. (Welfare & Institutions Code (WIC) Section 366.21(e)(1).) At each hearing, except for the permanency and permanency review hearings, the court must find by clear and convincing evidence that the parent was adequately provided reunification services. At a permanency hearing, a judge must find, also by clear and convincing evidence, that reunification services were provided. (WIC Section 366.26.)

Barriers to Parents with Criminal Convictions Reunifying with their Children. Reunification services must be provided to most parents. In a number of exceptional cases, however, reunification services "need not" be provided if the court finds, by clear and convincing evidence, that one of the following specified conditions exist:

1. The parent is suffering from a mental disability that renders the parent incapable of using the reunification services;
2. The parent has caused the death of another child through abuse or neglect;
3. The child or a sibling of the child has on more than one occasion been adjudicated a dependent as a result of physical or sexual abuse and removed from the custody of the parent or guardian because of such abuse;
4. The parent has been convicted of a violent felony; or
5. The parent has a history of drug or alcohol abuse and has failed to comply with treatment programs as provided. (WIC Section 361.5(b).)

Under current law, a parent who previously was convicted of a violent felony is presumed to be ineligible for the services necessary to reunify with their child, even when the underlying conviction occurred decades in the past and/or long before they became a parent. While a court may order that reunification services to be provided to the parent, such an order can only be made when the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (WIC Section 361.5(c)(2) - (4).) The restriction in current law, making all parents and guardians who have been convicted of a "violent felony" presumptively ineligible to reunify with their children, arguably is a vestige of outmoded generalizations about -- and prejudice against -- parents who have prior involvement with the prison system.

Comparison to the law in other states. California's restriction on parental eligibility for reunification services appears to be far more restrictive than the vast majority of other states. According to background provided to the Committee by the author, two states – Montana and New Mexico – have no restriction whatsoever on the provision of reunification services to parents based upon their past criminal history. On the other extreme, California and Illinois are the only two states that deny reunification services to a parent who has been convicted of a violent felony. Virtually all other states have restrictions that are somewhere in between these two extremes. If California were to modify its law in the manner proposed by this bill, it would join 32 other states that restrict reunification services to parents based upon their prior conviction for a crime only when the conviction was for a violent felony involving a child.

No restriction related to a criminal conviction: Montana, New Mexico

Restrictions for violent crimes involving a child: Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Iowa, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Wisconsin, Wyoming

Restrictions for violent crimes involving the other parent or child: Alabama, Alaska, Florida, Massachusetts, Nebraska, New Hampshire, South Carolina, Utah, Virginia, Washington, West Virginia

Restrictions for murder or manslaughter: Idaho, Nevada

Restrictions for any murder, manslaughter, or felony battery: Kansas

Restrictions for any violent felony: California and Illinois

This bill only makes a parent eligible for reunification services, like the vast majority of parents. A parent who is provided with reunification services is not guaranteed to be reunified with their child. Rather, should they participate in such services and make progress in their parenting skills and relationship with their child by means of those services, they will have the opportunity – by the end of the period when those services are required to be provided – to be reunified. A juvenile court would continue to review the parent's progress toward reunification with their child at hearings every six months.

As the author points out, "[P]eople should not have their past held against them and violent felony convictions do not dictate how well of a parent someone will be. These people have served their time and should be given a chance to reunite with their children. Also when people are released from prison, one way to reduce recidivism is to reunite them with their family and especially their children."

According to the Author

AB 2282 seeks to help reunite families by allowing people with a past violent felony conviction the opportunity to be reunited with their children. This would benefit children by increasing the likelihood that they can return safely to their family, therefore reducing the need for foster placements. Furthermore this would help formerly incarcerated parents retain the positive family relationships that reduce recidivism.

Arguments in Support

Dependency Advocacy Center writes the following to explain why the bill is an important measure for equity, as well as child safety:

At Dependency Advocacy Center, through the work we have done supporting parents on probation and with criminal justice system involvement, it is apparent that the reasons for criminal justice system involvement are nuanced and multifaceted. Many of the parents we work with have criminal convictions that predate them becoming parents, or where their conviction is predicated on a theory of accomplice liability where they were not the violent actor or the result of a plea bargain where the potential collateral child welfare consequences of that criminal conviction were not thoroughly explained. We have countless success stories of parents with violent criminal convictions changing the trajectory of their lives and not only being safe parents for their children but role models for children, for other parents, and for the community.

By narrowing the circumstances in which a parent with a criminal history can be denied an opportunity to reunify with their child, this bill will benefit children by increasing the likelihood that they can return safely to their families and thus reduce the need for children to remain in foster care. Furthermore, by protecting and promoting family relationships between formerly incarcerated parents and their children, this bill incidentally helps to support recidivism as well.

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations analysis, costs (local funds, General Fund) of an unknown but potentially significant amount to county child welfare agencies. This bill expands eligibility for reunification services to parents with specified criminal convictions, who are not currently eligible to receive such services. Actual costs will depend on the volume of court-ordered reunification services that must be provided to newly-eligible parents. Although these county costs are mandated by the state, they are not reimbursable, but instead must be paid by the state pursuant to Proposition 30 of 2012. Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment (including child welfare services and foster care) applies to local agencies only to the extent the state provides annual funding for the cost increase.

VOTES

ASM JUDICIARY: 8-0-4

YES: Kalra, Ting, Bryan, Connolly, Haney, McKinnor, Pacheco, Reyes

ABS, ABST OR NV: Dixon, Maienschein, Sanchez, Waldron

ASM HUMAN SERVICES: 5-1-1

YES: Lee, Calderon, Gipson, Jackson, Ortega

NO: Essayli

ABS, ABST OR NV: Mathis

ASM APPROPRIATIONS: 11-2-2

YES: Wicks, Arambula, Bryan, Calderon, Wendy Carrillo, Mike Fong, Grayson, Haney, Hart, Pellerin, Villapudua

NO: Sanchez, Jim Patterson

ABS, ABST OR NV: Dixon, Ta

UPDATED

VERSION: February 8, 2024

CONSULTANT: Alison Merrilees / JUD. / (916) 319-2334 FN: 0002992

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2282

Author:(McKinnor) – As Introduced Ver:February 8, 2024

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill permits provision of court-ordered reunification services to a parent or guardian who has been convicted of a violent felony, unless the violent felony was committed against a child.

FISCAL EFFECT:

Costs (local funds, General Fund) of an unknown but potentially significant amount to county child welfare agencies. This bill expands eligibility for reunification services to parents with specified criminal convictions, who are not currently eligible to receive such services. Actual costs will depend on the volume of court-ordered reunification services that must be provided to newly-eligible parents. Although these county costs are mandated by the state, they are not reimbursable, but instead must be paid by the state pursuant to Proposition 30 of 2012. Proposition 30 provides that legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by realignment (including child welfare services and foster care) applies to local agencies only to the extent the state provides annual funding for the cost increase.

COMMENTS:

1. Purpose. According to the author:

[This bill] seeks to help reunite families by allowing people with a past violent felony conviction the opportunity to be reunited with their children. This would benefit children by increasing the likelihood that they can return safely to their family, therefore reducing the need for foster placements. Furthermore this would help formerly incarcerated parents retain the positive family relationships that reduce recidivism.

1. Background. When a child is removed from their parent’s custody, decisions about the child’s welfare are made through court dependency proceedings. Generally, a social worker will provide the court with information about the parent’s abuse or neglect of the child and the court determines whether removing the child from their parent’s custody is in the child’s best interest. Once a child has been removed from their parent’s custody, the court initiates a reunification plan, which includes arrangements for the child’s care and steps the parent can take to remedy the situation and re-obtain custody of the child. For example, a court may order a parent to participate in reunification services like family therapy, substance abuse treatment, or parenting classes. However, existing law specifies a number of circumstances in which reunification services do not need to be provided to a parent, including if the court finds, by clear and convincing evidence, the parent is suffering from a mental disability that renders them incapable of utilizing the services, the parent has caused the death of another child through abuse or neglect, or the child was adjudicated a dependent as a result of severe sexual abuse. Currently, one of these provisions specifies a parent need not be provided services if the court finds they have been convicted of a violent felony, as defined in the Penal Code.

This bill narrows this violent felony exception and provides that a parent need not be provided services if the court finds they have been convicted of a violent felony against a child. In other words, the bill makes a parent with any other violent felony conviction (in which the victim was not a child) eligible for court-ordered reunification services. As detailed in the analyses of this bill by the Assembly Committees on Judiciary and Human Services, a number of other states have reunification services policies consistent with (or less restrictive than) this bill.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing: April 23, 2024

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Alex Lee, Chair

ABPCA Bill Id:AB 2282 (

Author:McKinnor) – As Introduced Ver:February 8, 2024

SUBJECT: Family reunification services

SUMMARY: Allows parents or guardians who have been convicted of a violent felony to be provided with family reunification services with their child as long as the violent felony was not against a child.

EXISTING LAW:

1. Establishes the juvenile court with jurisdiction over children who are subject to abuse or neglect. (Welfare and Institutions Code [WIC] § 300)
2. Establishes that the purpose of the juvenile court dependency system is the maximum safety and protection for children who are currently being abused, neglected, or exploited. Provides that the focus is on the preservation of the family, as well as the safety, protection, and physical and emotional well-being of the child. (WIC § 300.2.)
3. Requires that if, at the initial hearing, the juvenile court orders a child removed from their parent or guardian due to abuse or neglect, the court to order that child welfare reunification services be provided to the family as soon as possible in order to reunify the child with their family, if appropriate. (WIC § 319(e))
4. Requires the court, at the dispositional hearing, to order a social worker to provide child welfare services to a child who has been removed from their parents' custody and to the parents in order to support the goal of reunification, for a specified time period, except under certain circumstances. Provides that children and families in the child welfare system should typically receive a full six months of reunification services if the child is under three years of age, and twelve months if the child is over three years of age, but that may be extended up to 18 or 24 months, as provided. (WIC § 361.5(a))
5. Provides that reunification services under 4) above, need not be provided if the court finds, by clear and convincing evidence, that specified conditions exist, including:
   1. The parent is suffering from a mental disability that renders the parent incapable of using the reunification services;
   2. The parent has caused the death of another child through abuse or neglect;
   3. The child or a sibling of the child has on more than one occasion been adjudicated a dependent as a result of physical or sexual abuse and removed from the custody of the parent or guardian because of such abuse;
   4. The parent has been convicted of a violent felony; or,
   5. The parent has a history of drug or alcohol abuse and has failed to comply with treatment programs as provided. (WIC § 361.5(b))
6. Prevents a court from ordering reunification services for a parent in specified situations, including the situations set forth in 5) above, unless the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (WIC § 361.5(c))
7. Defines all of the following as “violent felonies”:
8. Murder or voluntary manslaughter;
9. Mayhem;
10. Rape;
11. Sodomy;
12. Oral copulation;
13. Lewd or lascivious act on a child under 14 years old, or with force;
14. Any felony punishable by death or imprisonment in the state prison for life;
15. Any felony in which the defendant inflicts great bodily injury on a person other than an accomplice, or any felony in which the defendant uses a firearm which use has been charged and proved;
16. Any robbery;
17. Arson that causes great bodily injury or causes an inhabited structure to burn;
18. Sexual penetration;
19. Attempted murder;
20. Exploding or igniting a destructive device or explosive;
21. Kidnapping;
22. Assault with the intent to commit b) – f)
23. Continuous sexual abuse of a child;
24. Carjacking;
25. Rape or sexual penetration, in concert;
26. Extortion that would constitute a felony;
27. Threats to victims or witnesses that would constitute a felony;
28. Any burglary of the first degree wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary;
29. Any crime that is subject to a sentence enhancement, as specified; and,
30. Using or employing a weapon of mass destruction. (Penal Code § 667.5(c))

FISCAL EFFECT: Unknown, this bill has not been analyzed by a fiscal committee.

COMMENTS:

Background: Child Welfare Services. California’s child welfare services system was established with the goal of protecting youth from abuse and neglect and is designed to provide safety, health, and overall well-being of children. When a child is identified as being at risk of abuse or neglect, reports can be made to either law enforcement or a county child welfare agency. Often, these reports are submitted by mandated reporters who are legally required to report suspicion of child abuse or neglect due to their profession, such as a teacher or healthcare provider. When a mandated reporter submits a report to either law enforcement or the county child welfare agency, a social worker determines whether the allegation is of suspected abuse, neglect, or exploitation, and creates a case plan which includes the provision of relevant services. The child's social worker and the court collaborate to evaluate and review the circumstances of each case, seeking either reunification or placement outside of the home as a way for the child to achieve permanency.

The court will then determine whether the allegations are true and if the child can remain at home. If the court orders a child to be placed outside of the home, the parent usually receives court-ordered family reunification services. Upon completion of the services, in addition to making any changes or improvements described in the case plan, the court may dismiss the child’s court case and the county welfare department case will also be closed. If a parent does not participate in the services set forth in the reunification plan, the court can terminate the services, and therefore change the reunification goal to one of finding a permanent home with a caring adult.

California's child welfare services programs are administered by the 58 individual counties with each county organizing and operating its own program of child protection based on local needs while adhering to state and federal regulations. When a child welfare case is open, counties are the primary governmental entity interacting with children and families when addressing issues of child abuse and neglect and are responsible, either directly or through providers, for obtaining or providing the interventions and relevant services to protect children and assist families with issues related to child abuse and neglect.

The California Department of Social Services (CDSS) secures federal funding to support child welfare services programs, provides statewide best practices training for social workers, and conducts program regulatory oversight and administration, and is responsible for the development of policy while also providing direct services such as adoption placements.

As of January 1, 2024, there are 43,633 youth between birth and 20 years of age in foster care in California.

Dependency Court Procedure. When a child is removed from the custody of their parent, they are temporarily placed within the jurisdiction of the child welfare system until a determination about the child’s welfare is made. Within 48 hours after a child is taken into temporary custody, the county social worker must file a petition with the court requesting that a detention hearing take place in order to determine if further detention of the child is necessary. If a petition to declare the child a dependent of the court is filed by the county social worker, then the detention hearing must be held within 48 hours of the petition being filed. At the detention hearing, the social worker outlines the allegations of abuse or neglect made against the parent and why it is necessary to remove the child from the custody of their parent. If the court determines that removing the child from their parents’ custody is in the best interests of the child, the child is then removed. The permanent placement of the child is determined at a later date.

Once a child has been removed from the custody of their parents, a jurisdictional hearing must take place within 15 days. It is at the jurisdictional hearing that the court determines whether the allegations outlined in the social worker’s petition are true. If the allegations are deemed to be true, then the child is determined to be within the jurisdiction of the juvenile court and a dispositional hearing must be held within 60 days of the initial detention hearing in order to determine the permanent placement of the child.

At the dispositional hearing, the court determines the parameters of the family reunification plan, which includes where and with whom the child will live, be it with relatives or in a foster family home. The reunification plan also can entail recommendations for parents such as parenting classes, anger management, counseling, substance abuse counseling and testing, sexual abuse counseling, parenting training, and anger management.

Except for limited circumstances, if the child is not returned to the parent’s custody at the 18-month permanency reviewing hearing, the juvenile court is required to terminate reunification services and set a hearing to terminate parental rights. The court then determines whether reasonable services have been offered or provided to the parent or legal guardian, but the court’s authority to set the hearing to terminate parental rights is not conditioned on whether reasonable services were provided.

Reunification Services. When a child is removed from their parents’ custody and it is determined by the courts and in speaking with the child’s social worker that the child would ultimately benefit from being returned or reunited with the family, the court may order reunification services in order to address the underlying issues or needs of the family that led to the child’s removal in the first place.

Reunification services include, but are not limited to: family therapy, parenting classes, substance use disorder treatment, respite care, parent support groups, home visiting programs, and services deemed necessary in order to facilitate a child’s reunification with their parents. For children under three years of age, current law allows six months of reunification services; and for children over three years of age, twelve months of reunification services are to be offered. Extensions of services are available if the court determines that there is substantial probability that a child will return to their parents’ custody within the extended time period.

In an effort to balance the best interests of the child with the parent’s ability to address the issues that brought them into the child welfare services system and actively participate in reunification efforts, courts are permitted to bypass reunification services for some parents. In California, the bypassing of reunification services can occur under specific circumstances if the parents meet certain criteria:

• History of substance abuse: If a parent has an extensive, abusive, and chronic history of drug or alcohol use, the court may decide to bypass reunification services.
• Conviction of a violent felony.
• The parent has caused the death of another child through abuse or neglect or the child or a sibling of the child has on more than one occasion been adjudicated a dependent as a result of physical or sexual abuse and removed from the custody of the parent or guardian because of such abuse.
• Resistance to Prior Treatment: The parent must have resisted court-ordered treatment for substance abuse during the three years immediately before the filing of the petition.
• Unknown Whereabouts or Mental Disability: Reunification services need not be provided if the court finds, by clear and convincing evidence: the whereabouts of the parent are unknown; the parent is suffering from a mental disability that renders them incapable of utilizing reunification services.

This bill would allow reunification services to be provided to a parent who was convicted of a violent felony as long as that felony was not against a child.

Other States: New York: The court considers the best interests of the child when determining whether to provide reunification services. While a felony conviction does not automatically disqualify a parent, the court assesses the parent’s ability to provide a safe and stable environment for the child. If the felony conviction directly impacts the child’s well-being, reunification services may be limited or denied.

Texas: Allows for the termination of parental rights if a parent has been convicted of certain felonies, including violent offenses. However, the court still evaluates the specific circumstances and considers the child’s safety and welfare. Reunification services may be provided if the parent demonstrates rehabilitation and poses no risk to the child.

Florida: Also considers the child’s best interests. A parent’s felony conviction does not automatically preclude reunification services. Instead, the court examines factors such as the nature of the offense, the parent’s efforts toward rehabilitation, and the child’s safety. If reunification is deemed beneficial for the child, services may be offered.

Illinois: A parent’s felony conviction does not automatically disqualify them from reunification services. The court evaluates the circumstances, including the nature of the offense, the parent’s rehabilitation efforts, and the child’s well-being. If reunification is in the child’s best interest, services may be provided.

Ohio: Considers the child’s safety and well-being. A parent’s felony conviction is not an absolute barrier to reunification services. The court assesses the parent’s efforts toward rehabilitation, the nature of the offense, and the child’s needs. If reunification benefits the child, services may be offered.

Alignment with Recent Policy: SB 354 (Skinner), Chapter 687, Statutes of 2021, sought to remove barriers to placement with relatives by expanding eligibility for criminal record exemption requests allowing for more child-specific resource family approvals (RFAs) among other provisions. SB 354 added an additional background check criteria that when applicable, allows for child-specific approval for relatives only. In addition to the revised list of non-exemptible crimes and the expanded simplified exemption criteria which applies to all resource family applicants and associated individuals, SB 354 provided additional discretion to consider granting criminal record exemptions specifically when an RFA applicant is a relative. Effective January 1, 2022, existing law authorizes the review of criminal record exemption requests from relative RFA applicants, and adults residing in the relative applicant’s home, provided the approval is to care for a specific child and the applicant/resident does not have a felony conviction within the last five years for any of the following crimes: Child abuse or neglect; spousal abuse; rape; sexual assault; homicide; or any other crime against a child, including child pornography.

This bill aligns with the perspective that a criminal conviction alone does not preclude a person from being an appropriate caregiver to a child, and would simply allow parents to have the opportunity to be provided with reunification services, as long as their violent felony was not against a child.

Additionally, in re S.D. (2002) 99 Cal. App. 4th 1068, the California Court of Appeal held that parents should not lose their children simply due to their incarceration if they can arrange for their child's care. However, the Author and Sponsors claim that existing law conflicts with this principle. Although an incarcerated parent cannot be denied custody due to their incarceration alone, current law denies a parent, incarcerated or free, the right to regain custody of a child if there is a past conviction for a violent felony. The Sponsors contend that this statute unfairly shifts the burden to the parent to prove, by a high standard, that reunification is in the child's best interest.

Author’s Statement: According to the Author, “[This bill] seeks to help reunite families by allowing people with a past violent felony conviction the opportunity to be reunited with their children. This would benefit children by increasing the likelihood that they can return safely to their family, therefore reducing the need for foster placements. Furthermore this would help formerly incarcerated parents retain the positive family relationships that reduce recidivism.”

Equity Implications: It is not uncommon for parents in dependency court to have a conviction for offenses defined as a violent felony, which includes offenses such as robbery and carjacking. However, a parent's criminal history does not necessarily have a bearing on a child’s safety, particularly if the offense happened long before they became a parent.

Data show that many parents with involvement with the child welfare system have been incarcerated. Statistics show that 11.4% of Black children and 3.5% of Latino children have an incarcerated parent (as opposed to 1.8% of white children). While the majority of states bar reunification efforts for parents with a conviction related to the harm of a child, California law provides no exception for those convictions unrelated to any harm to a child. In fact, according to the Sponsors, California presents the most rigid barriers to reunification, with the broadest list of applicable convictions and no requirement that a child safety risk be shown. This bill would limit criminal convictions used to deny reunification services to families with child welfare involvement and would only permit reunification services to be denied to the most serious and violent felons who have endangered children.

Double referral: This bill was previously heard in the Assembly Judiciary Committee on April 9, 2024, and was approved on an 8-0 vote.

RELATED AND PRIOR LEGISLATION:

AB 937 (McKinnor), Chapter 458, Statutes of 2023, required a juvenile court to order, except in specified very limited circumstances, six additional months of reunification services to a parent or guardian when the court finds at a permanency review hearing that reasonable reunification services have not been provided to the parent or guardian.

AB 954 (Bryan), Chapter 552, Statutes of 2023, clarified that a parent or guardian shall not be considered to be non-compliant with the court-ordered case plan when there is evidence that the parent or guardian is unable to pay for a court-ordered service, or when payment for a service would create an undue financial hardship to the parent or guardian.

AB 1134 (McKinnor) of 2023, would have allowed reunification services to be provided to the parent of a child who had been convicted of a violent felony, unless the victim of the violent felony was a child under the custody of the parent or guardian. AB 1134 died in the Assembly Judiciary Committee after the hearing was postponed by the committee.

SB 1085 (Kamlager), Chapter 832, Statutes of 2022, prohibited a child from being found to be a dependent of the juvenile court solely due to: homelessness; indigence or other conditions of financial difficulty, including, but not limited to, poverty or the inability to provide or obtain clothing, home or property repair, or childcare. SB 1085 also stated legislative intent that families not be subject to the jurisdiction of the juvenile court nor should children be separated from their parents based on conditions of financial difficulty, including but not limited to a lack of food, clothing, shelter, or childcare.

AB 788 (Calderon), Chapter 201, Statutes of 2021, clarified the meaning of "resisted" within current provisions that enable a juvenile dependency court to deny reunification services for a parent with a history of drug or alcohol abuse.

SB 354 (Skinner), Chapter 687, Statutes of 2021, adopted changes to the criminal background check process during the RFA process for relatives of children placed in the child welfare system; permitted the court to authorize placement of children with relatives in certain circumstances, regardless of the status of any criminal exemption or RFA; and, required, no later than January 1, 2024, CDSS to submit a report to the Legislature related to criminal record exemptions.

REGISTERED SUPPORT / OPPOSITION:

Support

Dependency Legal Services (Co-Sponsor)

Los Angeles Dependency Lawyers, INC. (Co-Sponsor)

A New Way of Life Reentry Project

California Public Defenders Association

Dependency Advocacy Center

Ella Baker Center for Human Rights

Families Inspiring Reentry & Reunification 4 Everyone

Public Counsel

Root & Rebound

Opposition

None on file.

Analysis Prepared by: Jessica Langtry / HUM. S. / (916) 319-2089

Date of Hearing: April 9, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 2282

Author:(McKinnor) – As Introduced Ver:February 8, 2024

SUBJECT: Family reunification services

KEY ISSUE: SHOULD CALIFORNIA REMAIN AN OUTLIER AMONG OTHER STATES BY PREVENTING A PARENT WHO HAS BEEN CONVICTED OF A VIOLENT FELONY FROM ATTEMPTING TO REUNIFY WITH THEIR CHILD IN THE FOSTER CARE SYSTEM, OR SHOULD IT MODIFY ITS LAW TO ALIGN WITH MOST OTHER STATES IN THE NATION AND ALLOW SUCH PARENTS THE OPPORTUNITY TO REUNIFY, SO LONG AS THEY ARE NOT CONVICTED OF A VIOLENT FELONY AGAINST A CHILD?

SYNOPSIS

Many parents in the foster care system have also been involved in the criminal justice system. Both of these systems have a disparate impact on communities of color. In fact, 11.4% of Black children and 3.5% of Latino children have an incarcerated parent (as opposed to 1.8% of white children). It is not uncommon for parents in the juvenile dependency court to have a prior conviction for a felony offense, including an offense that meets the definition of a “violent felony.” Current law makes a parent or guardian who has been convicted of a “violent felony” presumptively ineligible for services designed for them to reunify with their child in the foster care system.

This bill, co-sponsored by Los Angeles Dependency Lawyers and Dependency Legal Services, modifies state law so that more parents and guardians whose children are in the foster care system would qualify for services that could allow them to reunify with their children. Specifically, it would modify existing law so that a parent or guardian who has been convicted of a violent felony would be eligible for reunification services, so long as their conviction were not for a violent felony against a child. This change in the law would align California with the vast majority of other states and effectively allow more parents with past felony convictions to have the opportunity to reunify with their children in the foster care system. The bill also is supported by a number of youth, legal, and criminal justice reform advocates and has no opposition on file. Should this bill be approved by this Committee, it would be referred to the Assembly Committee on Human Services.

SUMMARY: Makes more parents and guardians whose children are in the foster care system eligible for services that could allow them to reunify with their child. Specifically, this bill removes the presumption in current law that a parent or guardian who has been convicted of a violent felony is ineligible for services to reunify with their child, so long as the parent or guardian is not convicted of a violent felony against a child.

EXISTING LAW:

1. Establishes the juvenile court with jurisdiction over children who are subject to abuse or neglect. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to the Welfare & Institutions Code.)
2. Establishes that the purpose of the juvenile court dependency system is the maximum safety and protection for children who are currently being abused, neglected, or exploited. Provides that the focus is on the preservation of the family, as well as the safety, protection, and physical and emotional well-being of the child. (Section 300.2.)
3. Requires that if, at the initial hearing, the juvenile court orders a child removed from their parent or guardian due to abuse or neglect, the court to order that child welfare reunification services be provided to the family as soon as possible in order to reunify the child with their family, if appropriate. (Section 319 (e).)
4. Requires the court, at the dispositional hearing, to order a social worker to provide child welfare services to a child who has been removed from their parents' custody and to the parents in order to support the goal of reunification, for a specified time period, except under certain circumstances. Provides that children and families in the child welfare system should typically receive a full six months of reunification services if the child is under three years of age, and twelve months if the child is over three years of age, but that may be extended up to 18 or 24 months, as provided. (Section 361.5 (a).)
5. Provides that reunification services under 4) above, need not be provided if the court finds, by clear and convincing evidence, that specified conditions exist, including:
   1. The parent is suffering from a mental disability that renders the parent incapable of using the reunification services;
   2. The parent has caused the death of another child through abuse or neglect;
   3. The child or a sibling of the child has on more than one occasion been adjudicated a dependent as a result of physical or sexual abuse and removed from the custody of the parent or guardian because of such abuse;
   4. The parent has been convicted of a violent felony; or
   5. The parent has a history of drug or alcohol abuse and has failed to comply with treatment programs as provided. (Section 361.5 (b).)
6. Prevents a court from ordering reunification services for a parent in specified situations, including the situations set forth in 5) above, unless the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (Section 361.5 (c)(2) - (4).)
7. Defines all of the following as “violent felonies.”
8. Murder or voluntary manslaughter.
9. Mayhem.
10. Rape.
11. Sodomy.
12. Oral copulation.
13. Lewd or lascivious act on a child under 14 years old, or with force.
14. Any felony punishable by death or imprisonment in the state prison for life.
15. Any felony in which the defendant inflicts great bodily injury on a person other than an accomplice, or any felony in which the defendant uses a firearm which use has been charged and proved.
16. Any robbery.
17. Arson that causes great bodily injury or causes an inhabited structure to burn.
18. Sexual penetration.
19. Attempted murder.
20. Exploding or igniting a destructive device or explosive.
21. Kidnapping.
22. Assault with the intent to commit b) – f)
23. Continuous sexual abuse of a child.
24. Carjacking.
25. Rape or sexual penetration, in concert.
26. Extortion that would constitute a felony.
27. Threats to victims or witnesses that would constitute a felony.
28. Any burglary of the first degree wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
29. Any crime that is subject to a sentence enhancement under Penal Code Section 12022.53.
30. Using or employing a weapon of mass destruction. (Penal Code Section 667.5 (c).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Many parents in the foster care system have also been involved in the criminal justice system. Both of these systems have a disparate impact on communities of color. In fact, 11.4% of Black children and 3.5% of Latino children have an incarcerated parent (as opposed to 1.8% of white children). It is not uncommon for parents in the juvenile dependency court to have a prior conviction for a felony offense, including an offense that meets the definition of a “violent felony.” Current law makes a parent or guardian who has been convicted of a “violent felony” presumptively ineligible for services designed for them to reunify with their child in the foster care system.

This bill, co-sponsored by Los Angeles Dependency Lawyers and Dependency Legal Services, modifies state law so that more parents and guardians whose children are in the foster care system would qualify for services that could allow them to reunify with their children. Specifically, it would modify existing law so that a parent or guardian who has been convicted of violent felony would be eligible for reunification services, so long as their conviction were not for a violent felony against a child. This change in the law would align California with the vast majority of other states and effectively allow more parents with past felony convictions to have the opportunity to reunify with their children in the foster care system. According to the author:

AB 2282 seeks to help reunite families by allowing people with a past violent felony conviction the opportunity to be reunited with their children. This would benefit children by increasing the likelihood that they can return safely to their family, therefore reducing the need for foster placements. Furthermore this would help formerly incarcerated parents retain the positive family relationships that reduce recidivism.

Overview of child welfare services and juvenile dependency court: Children who are at risk of abuse, neglect, or abandonment may be deemed dependents of the juvenile court and provided with services, supports and interventions aimed at protecting them and their health and safety. The system aims to preserve and strengthen families by maintaining or reuniting children with their parents whenever appropriate. The dependency process begins when child abuse, neglect, or abandonment is reported to the local child welfare agency. A social worker with the child welfare agency investigates the allegation to determine if the child requires protection in order to ensure their safety. If so, the child welfare agency files a petition with the juvenile court to make the child a dependent of the court. If necessary, the social worker will remove the child from their home and take the child into protective custody.

At the subsequent court hearing, the court may elect to keep the child in, or return the child to, their home or remove the child from the home. Removal may either result in eventual reunification with the family, or the court may determine that an alternate permanent placement –including the options of guardianship or adoption – is more fitting. When reunification is not possible or appropriate, children are placed in the setting deemed least restrictive and most suitable; the court must give preference to potential placements with relatives or nonrelative extended family members. Throughout this system, there are multiple court hearings – including the detention hearing, the jurisdictional hearing and the dispositional hearing, followed by ongoing review hearings and the permanency hearing – where the custody of a child or their placement is evaluated, reviewed, and determined by the court, in consultation with the child’s social worker appointed by the county and the child's attorney, to help provide the best possible support and services to the child.

As of October 1, 2022, more than 74,500 children were receiving services from county child welfare agencies in California. As of that date (the most recent available), 11,512 children were placed in foster homes. (California Child Welfare Indicators Project, Pont in Time/In Care, available at https://ccwip.berkeley.edu/childwelfare/index/r.)

Reunification services. When it is necessary for a child to be removed from the home of their parent or guardian, the primary objective of the child welfare system is to safely reunify the child with those caregivers. To support this objective, in most cases the juvenile court orders reunification services, such as counseling for the family and parenting classes and drug or alcohol treatment for the child’s parents. If the child is under the age of three, these reunification services are only offered for a period of six months. If the child is over the age of three, the services are offered for twelve months. In some circumstances, the time period for reunification services can be extended up to 24 months.

During dependency proceedings, a court must hold periodical review hearings at least every six months, including at six and 12 months after the dispositional hearing. (Section 366.21(e)(1).) At each hearing, except for the permanency and permanency review hearings, the court must find by clear and convincing evidence that the parent was adequately provided reunification services. At a permanency hearing, a judge must find, also by clear and convincing evidence, that reunification services were provided. (Section 366.26.)

Barriers to Parents with Criminal Convictions Reunifying with their Children. Reunification services must be provided to most parents. In a number of exceptional cases, however, reunification services “need not” be provided if the court finds, by clear and convincing evidence, that one of the following specified conditions exist:

• • The parent is suffering from a mental disability that renders the parent incapable of using the reunification services;
  • The parent has caused the death of another child through abuse or neglect;
  • The child or a sibling of the child has on more than one occasion been adjudicated a dependent as a result of physical or sexual abuse and removed from the custody of the parent or guardian because of such abuse;
  • The parent has been convicted of a violent felony; or
  • The parent has a history of drug or alcohol abuse and has failed to comply with treatment programs as provided. (Section 361.5 (b).)

Penal Code Section 667.5 enumerates an extensive list of crimes that are defined as a “violent felony,” including crimes that do not require the infliction of violence against another person, such as arson (Penal Code Section 667.5 (c)(10) and extortion (Penal Code Section 667.5 (c)(19). Furthermore, the vast majority of the enumerated crimes have no connection whatsoever to children or parenting. As a result, there often is no connection between the fact that a person has been convicted of a felony listed in Penal Code Section 667.5 (c) and that person’s ability to provide a safe home for their child.

Under current law, a parent who previously was convicted of a violent felony is presumed to be ineligible for the services necessary to reunify with their child, even when the underlying conviction occurred decades in the past and/or long before they became a parent. While a court may order that reunification services to be provided to the parent, such an order can only be made when the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (Section 361.5 (c)(2) - (4).) Thus, a parent with a violent felony conviction would have the burden of providing evidence to the court – that is clear and convincing -- that services should be provided. If the parent were somehow able to do so, they would have the opportunity to attempt to reunify with their child (like the vast majority of other parents with children in the system). Clearly, this is a significant barrier for a parent with a past conviction for a violent felony.

The restriction in current law, making all parents and guardians who have been convicted of a “violent felony” presumptively ineligible to reunify with their children, arguably is a vestige of outmoded generalizations about -- and prejudice against -- parents who have prior involvement with the prison system.

Comparison to the law in other states. California’s restriction on parental eligibility for reunification services appears to be far more restrictive than the vast majority of other states. According to background provided to the Committee by the author, two states – Montana and New Mexico – have no restriction whatsoever on the provision of reunification services to parents based upon their past criminal history. On the other extreme, California and Illinois are the only two states that deny reunification services to a parent who has been convicted of a violent felony. Virtually all other states have restrictions that are somewhere in between these two extremes. If California were to modify its law in the manner proposed by this bill, it would join 32 other states that restrict reunification services to parents based upon their prior conviction for a crime only when the conviction was for a violent felony involving a child.

No restriction related to a criminal conviction: Montana, New Mexico

Restrictions for violent crimes involving a child: Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Iowa, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Wisconsin, Wyoming

Restrictions for violent crimes involving the other parent or child: Alabama, Alaska, Florida, Massachusetts, Nebraska, New Hampshire, South Carolina, Utah, Virgina, Washington, West Virgina

Restrictions for murder or manslaughter: Idaho, Nevada

Restrictions for any murder, manslaughter, or felony battery: Kansas

Restrictions for any violent felony: California and Illinois

This bill only makes a parent eligible for reunification services, like the vast majority of other parents. A parent who is provided with reunification services is not guaranteed to be reunified with their child. Rather, should they participate in such services and make progress in their parenting skills and relationship with their child by means of those services, they will have the opportunity – by the end of the period when those services are required to be provided – to be reunified. A juvenile court would continue to review the parent’s progress toward reunification with their child at hearings every six months. At the end of the reunification period, “within 18 months after the date the child was originally removed from the physical custody of his or her parent.” the court would be required to order the return of the child to the physical custody of their parent or legal guardian “unless the court finds, by a preponderance of the evidence, that the return of the child to their parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (Section 366.22 (a)(1).) While the presumption would be for the return of the child, that presumption could be overcome: if the parent failed to participate in services that were offered, or did something to endanger the welfare of the child, for example. But in that case, the court’s decision would be based upon the parent’s conduct in relation to the child. If a parent were never offered the opportunity to reunify because of the parent’s past criminal conviction alone, the court’s decision to deny reunification would be based only on the prior conviction (which may or may not have involved an act of violence) and would have nothing to do with their parenting skills or ability to provide their child with a safe home.

As the author points out, “[P]eople should not have their past held against them and violent felony convictions do not dictate how well of a parent someone will be. These people have served their time and should be given a chance to reunite with their children. Also when people are released from prison, one way to reduce recidivism is to reunite them with their family and especially their children.”

ARGUMENTS IN SUPPORT: Dependency Advocacy Center writes the following to explain why the bill is an important measure for equity, as well as child safety:

At Dependency Advocacy Center, through the work we have done supporting parents on probation and with criminal justice system involvement, it is apparent that the reasons for criminal justice system involvement are nuanced and multifaceted. Many of the parents we work with have criminal convictions that predate them becoming parents, or where their conviction is predicated on a theory of accomplice liability where they were not the violent actor or the result of a plea bargain where the potential collateral child welfare consequences of that criminal conviction were not thoroughly explained. We have countless success stories of parents with violent criminal convictions changing the trajectory of their lives and not only being safe parents for their children but role models for children, for other parents, and for the community.

By narrowing the circumstances in which a parent with a criminal history can be denied an opportunity to reunify with their child, this bill will benefit children by increasing the likelihood that they can return safely to their families and thus reduce the need for children to remain in foster care. Furthermore, by protecting and promoting family relationships between formerly incarcerated parents and their children, this bill incidentally helps to support recidivism as well.

REGISTERED SUPPORT / OPPOSITION:

Support

A New Way of Life Reentry Project

California Public Defenders Association

Dependency Advocacy Center

Dependency Legal Services

Ella Baker Center for Human Rights

Families Inspiring Reentry & Reunification 4 Everyone

Los Angeles Dependency Lawyers, INC.

Public Counsel

Root & Rebound

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334

Date of Hearing: March 19, 2024

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:AB 2282

Author:(McKinnor) – As Introduced Ver:February 8, 2024

SUBJECT: Family reunification services

KEY ISSUE: SHOULD CALIFORNIA REMAIN AN OUTLIER AMONG OTHER STATES BY PREVENTING A PARENT WHO HAS BEEN CONVICTED OF A VIOLENT FELONY FROM ATTEMPTING TO REUNIFY WITH THEIR CHILD IN THE FOSTER CARE SYSTEM, OR SHOULD IT MODIFY ITS LAW TO ALIGN WITH MOST OTHER STATES IN THE NATION AND ALLOW SUCH PARENTS THE OPPORTUNITY TO REUNIFY, SO LONG AS THEY ARE NOT CONVICTED OF A VIOLENT FELONY AGAINST A CHILD?

SYNOPSIS

Many parents in the foster care system have also been involved in the criminal justice system. Both of these systems have a disparate impact on communities of color. In fact, 11.4% of Black children and 3.5% of Latino children have an incarcerated parent (as opposed to 1.8% of white children). It is not uncommon for parents in the juvenile dependency court to have a prior conviction for a felony offense, including an offense that meets the definition of a “violent felony.” Current law makes a parent or guardian who has been convicted of a “violent felony” presumptively ineligible for services designed for them to reunify with their child in the foster care system.

This bill, co-sponsored by Los Angeles Dependency Lawyers and Dependency Legal Services, modifies state law so that more parents and guardians whose children are in the foster care system would qualify for services that could allow them to reunify with their children. Specifically, it would modify existing law so that a parent or guardian who has been convicted of a violent felony would be eligible for reunification services, so long as their conviction were not for a violent felony against a child. This change in the law would align California with the vast majority of other states and effectively allow more parents with past felony convictions to have the opportunity to reunify with their children in the foster care system. The bill also is supported by a number of youth, legal, and criminal justice reform advocates and has no opposition on file. Should this bill be approved by this Committee, it would be referred to the Assembly Committee on Human Services.

SUMMARY: Makes more parents and guardians whose children are in the foster care system eligible for services that could allow them to reunify with their child. Specifically, this bill removes the presumption in current law that a parent or guardian who has been convicted of a violent felony is ineligible for services to reunify with their child, so long as the parent or guardian is not convicted of a violent felony against a child.

EXISTING LAW:

1. Establishes the juvenile court with jurisdiction over children who are subject to abuse or neglect. (Welfare & Institutions Code Section 300. Unless stated otherwise, all further statutory references are to the Welfare & Institutions Code.)
2. Establishes that the purpose of the juvenile court dependency system is the maximum safety and protection for children who are currently being abused, neglected, or exploited. Provides that the focus is on the preservation of the family, as well as the safety, protection, and physical and emotional well-being of the child. (Section 300.2.)
3. Requires that if, at the initial hearing, the juvenile court orders a child removed from their parent or guardian due to abuse or neglect, the court to order that child welfare reunification services be provided to the family as soon as possible in order to reunify the child with their family, if appropriate. (Section 319 (e).)
4. Requires the court, at the dispositional hearing, to order a social worker to provide child welfare services to a child who has been removed from their parents' custody and to the parents in order to support the goal of reunification, for a specified time period, except under certain circumstances. Provides that children and families in the child welfare system should typically receive a full six months of reunification services if the child is under three years of age, and twelve months if the child is over three years of age, but that may be extended up to 18 or 24 months, as provided. (Section 361.5 (a).)
5. Provides that reunification services under 4) above, need not be provided if the court finds, by clear and convincing evidence, that specified conditions exist, including:
   1. The parent is suffering from a mental disability that renders the parent incapable of using the reunification services;
   2. The parent has caused the death of another child through abuse or neglect;
   3. The child or a sibling has been adjudicated a dependent as the result of several physical or sexual abuse;
   4. The parent has been convicted of a violent felony; or
   5. The parent has a history of drug or alcohol abuse and has failed to comply with treatment programs as provided. (Section 361.5 (b).)
6. Prevents a court from ordering reunification services for a parent in specified situations, including the situations set forth in 5) above, unless the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (Section 361.5 (c)(2) - (4).)
7. Defines all of the following as “violent felonies.”
8. Murder or voluntary manslaughter.
9. Mayhem.
10. Rape.
11. Sodomy.
12. Oral copulation.
13. Lewd or lascivious act on a child under 14 years old, or with force.
14. Any felony punishable by death or imprisonment in the state prison for life.
15. Any felony in which the defendant inflicts great bodily injury on a person other than an accomplice, or any felony in which the defendant uses a firearm which use has been charged and proved.
16. Any robbery.
17. Arson that causes great bodily injury or causes an inhabited structure to burn.
18. Sexual penetration.
19. Attempted murder.
20. Exploding or igniting a destructive device or explosive.
21. Kidnapping.
22. Assault with the intent to commit b) – f)
23. Continuous sexual abuse of a child.
24. Carjacking.
25. Rape or sexual penetration, in concert.
26. Extortion that would constitute a felony.
27. Threats to victims or witnesses that would constitute a felony.
28. Any burglary of the first degree wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
29. Any crime that is subject to a sentence enhancement under Penal Code Section 12022.53.
30. Using or employing a weapon of mass destruction. (Penal Code Section 667.5.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Many parents in the foster care system have also been involved in the criminal justice system. Both of these systems have a disparate impact on communities of color. In fact, 11.4% of Black children and 3.5% of Latino children have an incarcerated parent (as opposed to 1.8% of white children). It is not uncommon for parents in the juvenile dependency court to have a prior conviction for a felony offense, including an offense that meets the definition of a “violent felony.” Current law makes a parent or guardian who has been convicted of a “violent felony” presumptively ineligible for services designed for them to reunify with their child in the foster care system.

This bill, co-sponsored by Los Angeles Dependency Lawyers and Dependency Legal Services, modifies state law so that more parents and guardians whose children are in the foster care system would qualify for services that could allow them to reunify with their children. Specifically, it would modify existing law so that a parent or guardian who has been convicted of violent felony would be eligible for reunification services, so long as their conviction were not for a violent felony against a child. This change in the law would align California with the vast majority of other states and effectively allow more parents with past felony convictions to have the opportunity to reunify with their children in the foster care system. According to the author:

AB 2282 seeks to help reunite families by allowing people with a past violent felony conviction the opportunity to be reunited with their children. This would benefit children by increasing the likelihood that they can return safely to their family, therefore reducing the need for foster placements. Furthermore this would help formerly incarcerated parents retain the positive family relationships that reduce recidivism.

Overview of child welfare services and juvenile dependency court: Children who are at risk of abuse, neglect, or abandonment may be deemed dependents of the juvenile court and provided with services, supports and interventions aimed at protecting them and their health and safety. The system aims to preserve and strengthen families by maintaining or reuniting children with their parents whenever appropriate. The dependency process begins when child abuse, neglect, or abandonment is reported to the local child welfare agency. A social worker with the child welfare agency investigates the allegation to determine if the child requires protection in order to ensure their safety. If so, the child welfare agency files a petition with the juvenile court to make the child a dependent of the court. If necessary, the social worker will remove the child from their home and take the child into protective custody.

At the subsequent court hearing, the court may elect to keep the child in, or return the child to, their home or remove the child from the home. Removal may either result in eventual reunification with the family, or the court may determine that an alternate permanent placement –including the options of guardianship or adoption – is more fitting. When reunification is not possible or appropriate, children are placed in the setting deemed least restrictive and most suitable; the court must give preference to potential placements with relatives or nonrelative extended family members. Throughout this system, there are multiple court hearings – including the detention hearing, the jurisdictional hearing and the dispositional hearing, followed by ongoing review hearings and the permanency hearing – where the custody of a child or their placement is evaluated, reviewed, and determined by the court, in consultation with the child’s social worker appointed by the county and the child's attorney, to help provide the best possible support and services to the child.

As of October 1, 2022, more than 74,500 children were receiving services from county child welfare agencies in California. As of that date (the most recent available), 11,512 children were placed in foster homes. (California Child Welfare Indicators Project, Pont in Time/In Care, available at https://ccwip.berkeley.edu/childwelfare/index/r.)

Reunification services. When it is necessary for a child to be removed from the home of their parent or guardian, the primary objective of the child welfare system is to safely reunify the child with those caregivers. To support this objective, in most cases the juvenile court orders reunification services, such as counseling for the family and parenting classes and drug or alcohol treatment for the child’s parents. If the child is under the age of three, these reunification services are only offered for a period of six months. If the child is over the age of three, the services are offered for twelve months. In some circumstances, the time period for reunification services can be extended up to 24 months.

During dependency proceedings, a court must hold periodical review hearings at least every six months, including at six and 12 months after the dispositional hearing. (Section 366.21(e)(1).) At each hearing, except for the permanency and permanency review hearings, the court must find by clear and convincing evidence that the parent was adequately provided reunification services. At a permanency hearing, a judge must find, also by clear and convincing evidence, that reunification services were provided. (Section 366.26.)

Barriers to Parents with Criminal Convictions Reunifying with their Children. Reunification services must be provided to most parents. In a number of exceptional cases, however, reunification services “need not” be provided if the court finds, by clear and convincing evidence, that one of the following specified conditions exist:

• • The parent is suffering from a mental disability that renders the parent incapable of using the reunification services;
  • The parent has caused the death of another child through abuse or neglect;
  • The child or a sibling has been adjudicated a dependent as the result of several physical or sexual abuse;
  • The parent has been convicted of a violent felony; or
  • The parent has a history of drug or alcohol abuse and has failed to comply with treatment programs as provided. (Section 361.5 (b).)

Penal Code Section 667.5 enumerates an extensive list of crimes that are defined as a “violent felony,” including crimes that do not require the infliction of violence against another person, such as arson (Penal Code Section 667.5 (c)(10) and extortion (Penal Code Section 667.5 (c)(19). Furthermore, the vast majority of the enumerated crimes have no connection whatsoever to children or parenting. As a result, there often is no connection between the fact that a person has been convicted of a felony listed in Penal Code Section 667.5 (c) and that person’s ability to provide a safe home for their child.

Under current law, a parent who previously was convicted of a violent felony is presumed to be ineligible for the services necessary to reunify with their child, even when the underlying conviction occurred decades in the past and/or long before they became a parent. While a court may order that reunification services to be provided to the parent, such an order can only be made when the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (Section 361.5 (c)(2) - (4).) Thus, a parent with a violent felony conviction would have the burden of providing evidence to the court – that is clear and convincing -- that services should be provided. If the parent were somehow able to do so, they would have the opportunity to attempt to reunify with their child (like the vast majority of other parents with children in the system). Clearly, this is a significant barrier for a parent with a past conviction for a violent felony.

The restriction in current law, making all parents and guardians who have been convicted of a “violent felony” presumptively ineligible to reunify with their children, arguably is a vestige of outmoded generalizations about -- and prejudice against -- parents who have prior involvement with the prison system.

Comparison to the law in other states. California’s restriction on parental eligibility for reunification services appears to be far more restrictive than the vast majority of other states. According to background provided to the Committee by the author, two states – Montana and New Mexico – have no restriction whatsoever on the provision of reunification services to parents based upon their past criminal history. On the other extreme, California and Illinois are the only two states that deny reunification services to a parent who has been convicted of a violent felony. Virtually all other states have restrictions that are somewhere in between these two extremes. If California were to modify its law in the manner proposed by this bill, it would join 32 other states that restrict reunification services to parents based upon their prior conviction for a crime only when the conviction was for a violent felony involving a child.

No restriction related to a criminal conviction: Montana, New Mexico

Restrictions for violent crimes involving a child: Arizona, Arkansas, Colorado, Connecticut, Delaware, Georgia, Hawaii, Iowa, Indiana, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Wisconsin, Wyoming

Restrictions for violent crimes involving the other parent or child: Alabama, Alaska, Florida, Massachusetts, Nebraska, New Hampshire, South Carolina, Utah, Virgina, Washington, West Virgina

Restrictions for murder or manslaughter: Idaho, Nevada

Restrictions for any murder, manslaughter, or felony battery: Kansas

Restrictions for any violent felony: California and Illinois

This bill only makes a parent eligible for reunification services, like the vast majority of other parents. A parent who is provided with reunification services is not guaranteed to be reunified with their child. Rather, should they participate in such services and make progress in their parenting skills and relationship with their child by means of those services, they will have the opportunity – by the end of the period when those services are required to be provided – to be reunified. A juvenile court would continue to review the parent’s progress toward reunification with their child at hearings every six months. At the end of the reunification period, “within 18 months after the date the child was originally removed from the physical custody of his or her parent.” the court would be required to order the return of the child to the physical custody of their parent or legal guardian “unless the court finds, by a preponderance of the evidence, that the return of the child to their parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (Section 366.22 (a)(1).) While the presumption would be for the return of the child, that presumption could be overcome: if the parent failed to participate in services that were offered, or did something to endanger the welfare of the child, for example. But in that case, the court’s decision would be based upon the parent’s conduct in relation to the child. If a parent were never offered the opportunity to reunify because of the parent’s past criminal conviction alone, the court’s decision to deny reunification would be based only on the prior conviction (which may or may not have involved an act of violence) and would have nothing to do with their parenting skills or ability to provide their child with a safe home.

As the author points out, “[P]eople should not have their past held against them and violent felony convictions do not dictate how well of a parent someone will be. These people have served their time and should be given a chance to reunite with their children. Also when people are released from prison, one way to reduce recidivism is to reunite them with their family and especially their children.”

ARGUMENTS IN SUPPORT: Dependency Advocacy Center writes the following to explain why the bill is an important measure for equity, as well as child safety:

At Dependency Advocacy Center, through the work we have done supporting parents on probation and with criminal justice system involvement, it is apparent that the reasons for criminal justice system involvement are nuanced and multifaceted. Many of the parents we work with have criminal convictions that predate them becoming parents, or where their conviction is predicated on a theory of accomplice liability where they were not the violent actor or the result of a plea bargain where the potential collateral child welfare consequences of that criminal conviction were not thoroughly explained. We have countless success stories of parents with violent criminal convictions changing the trajectory of their lives and not only being safe parents for their children but role models for children, for other parents, and for the community.

By narrowing the circumstances in which a parent with a criminal history can be denied an opportunity to reunify with their child, this bill will benefit children by increasing the likelihood that they can return safely to their families and thus reduce the need for children to remain in foster care. Furthermore, by protecting and promoting family relationships between formerly incarcerated parents and their children, this bill incidentally helps to support recidivism as well.

REGISTERED SUPPORT / OPPOSITION:

Support

A New Way of Life Reentry Project

California Public Defenders Association

Dependency Advocacy Center

Dependency Legal Services

Ella Baker Center for Human Rights

Families Inspiring Reentry & Reunification 4 Everyone

Los Angeles Dependency Lawyers, INC.

Public Counsel

Root & Rebound

Opposition

None on file

Analysis Prepared by: Alison Merrilees / JUD. / (916) 319-2334