BILL NUMBER: SB 942 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 1, 2016
AMENDED IN ASSEMBLY JUNE 15, 2016
AMENDED IN SENATE MAY 31, 2016
AMENDED IN SENATE APRIL 19, 2016
AMENDED IN SENATE MARCH 31, 2016
INTRODUCED BY Senator Liu
FEBRUARY 3, 2016
An act to amend Sections 319 and 361.4 of the Welfare and
Institutions Code, relating to dependency proceedings.
LEGISLATIVE COUNSEL'S DIGEST
SB 942, as amended, Liu. Dependency proceedings: relative
caregivers.
Existing law establishes the jurisdiction of the juvenile court,
which may adjudge a child to be a dependent 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 his or
her parents or guardian, and establishes procedures to determine
placement of a dependent child. Existing law prescribes various
hearings, including specified review hearings, and other procedures
for these purposes. Existing law requires a social worker to conduct
specified assessments for purposes of placement.
This bill would require the court to order the social worker to
immediately conduct an assessment, as specified, if the child is not
placed with a relative at the time of the initial hearing and an able
and willing relative is available and requests temporary placement
of the child.
Under existing law, if a child is proposed to 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
social worker placing the child is required to have
make an assessment of that person for placement
pursuant to specified criteria, including conducting a home visit and
having a state-level criminal records check conducted by an
appropriate government agency through the California Law Enforcement
Telecommunications System. Existing For
purposes of placement, existing law authorizes a county to
issue a criminal records exemption for a qualifying crime for which
the relative, prospective guardian, or other person has been
convicted only if that county has been granted permission by the
Director of Social Services to issue exemptions. Existing law
requires the State Department of Social Services to conduct an
evaluation of the implementation provisions relating to criminal
records exemptions, as specified.
This bill would require a county seeking to issue a criminal
records exemption under these provisions to assist the
relative, prospective guardian, or other person in locating and
obtaining any documents required for the criminal records exemption.
The
If the court orders the county to make an assessment under
these provisions, the bill would also require the county to
complete the assessment process, including any exemptions
and waivers, process within a specified
timeframe. The bill would authorize the court to conduct a hearing if
the assessment process is not complete, as
specified, or an exemption or waiver is denied, to
determine if the county has abused its discretion.
By imposing these additional duties on county
welfare agencies, this 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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares that placement with
able and willing relatives at the earliest point in time is in the
best interest of a child in the dependency system. Along those lines,
research has shown that a child in the dependency system tends to be
more emotionally well off when placed with his or her relatives, and
reunification with his or her parents is routinely enhanced by
placement with those relatives.
SEC. 2. Section 319 of the Welfare and Institutions Code is
amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody, the
need, if any, for continued detention, the available services and the
referral methods to those services that could facilitate the return
of the child to the custody of the child's parents or guardians, and
whether there are any relatives who are able and willing to take
temporary physical custody of the child. The court shall order the
release of the child from custody unless a prima facie showing has
been made that the child comes within Section 300, the court finds
that continuance in the parent's or guardian's home is contrary to
the child's welfare, and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(d) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (d) of Section 309.
(3) In order to preserve the bond between the child and the parent
and to facilitate family reunification, the court shall consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility that allows a dependent child to reside with his
or her parent shall not be, for that reason alone, prima facie
evidence of substantial danger. The court shall specify the factual
basis for its conclusion that the return of the child to the custody
of his or her parent would pose a substantial danger or would not
pose a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the child.
(e) If a court orders a child detained, the court shall state the
facts on which the decision is based, specify why the initial removal
was necessary, reference the social worker's report or other
evidence relied upon to make its determination whether continuance in
the home of the parent or legal guardian is contrary to the child's
welfare, order temporary placement and care of the child to be vested
with the county child welfare department pending the hearing held
pursuant to Section 355 or further order of the court, and order
services to be provided as soon as possible to reunify the child and
his or her family if appropriate.
(f) (1) If the child is not released from custody, the court may
order that the child shall be placed in the assessed home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court, or
in the assessed home of a nonrelative extended family member as
defined in Section 362.7 for a period not to exceed 15 judicial days.
A runaway and homeless youth shelter licensed by the State
Department of Social Services pursuant to Section 1502.35 of the
Health and Safety Code shall not be a placement option pursuant to
this section.
(2) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of these persons,
even if the marriage was terminated by death or dissolution. However,
only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (d) of Section 309 of the relative's home, including the
results of a criminal records check and prior child abuse
allegations, if any, prior to ordering that the child be placed with
a relative. The court shall order the parent to disclose to the
social worker the names, residences, and any known identifying
information of any maternal or paternal relatives of the child. The
social worker shall initiate the assessment pursuant to Section 361.3
of any relative to be considered for continuing placement.
(4) If the child is not placed with a relative at the time of the
initial hearing and an able and willing relative is available and
requests temporary placement of the child, the court shall order the
social worker to immediately conduct an assessment pursuant to
paragraph (1) of subdivision (d) of Section 309.
(g) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 5.520 of the California Rules
of Court or anytime thereafter up until the time that the minor is
adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational or developmental services
decisions for the child and temporarily appoint a responsible adult
to make educational or developmental services decisions for the child
if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational or developmental services rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
or developmental services decisionmaking.
(C) The child's educational and developmental services needs
cannot be met without the temporary appointment of a responsible
adult.
(2) If the court limits the parent's educational rights under this
subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child and who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
(3) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050 of
the Education Code, is not warranted, the court may, with the input
of any interested person, make educational decisions for the child.
If the child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision shall be consistent with the child's individual program plan
and pursuant to the provisions of the Lanterman Developmental
Disabilities Services Act (Division 4.5 (commencing with Section
4500)). If the court cannot identify a responsible adult to make
developmental services decisions for the child, the court may, with
the input of any interested person, make developmental services
decisions for the child. If the court makes educational or
developmental services decisions for the child, the court shall also
issue appropriate orders to ensure that every effort is made to
identify a responsible adult to make future educational or
developmental services decisions for the child.
(4) A temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make educational
or developmental services decisions for the child shall be
specifically addressed in the court order. An order made under this
section shall expire at the conclusion of the hearing held pursuant
to Section 361 or upon dismissal of the petition. Upon the entering
of disposition orders, additional needed limitation on the parent's
or guardian's educational or developmental services rights shall be
addressed pursuant to Section 361.
(5) This section does not remove the obligation to appoint
surrogate parents for students with disabilities who are without
parental representation in special education procedures as required
by state and federal law, including Section 1415(b)(2) of Title 20 of
the United States Code, Section 56050 of the Education Code, Section
7579.5 of the Government Code, and Rule 5.650 of the California
Rules of Court.
(6) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's information and records pursuant to subdivision
(u) of Section 4514 and subdivision (y) of Section 5328, and to act
on the child's behalf for the purposes of the individual program plan
process pursuant to Sections 4646, 4646.5, and 4648 and the fair
hearing process pursuant to Chapter 7 (commencing with Section 4700)
of Division 4.5, and as set forth in the court order.
SEC. 3. 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 state's 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) 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).
(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 county's
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 shall not place a child in
the home of a person who is ineligible for an exemption under that
provision. The county shall, to the extent possible, assist the
person to locate and obtain any documents required for the criminal
records exemption, which may include having a social worker contact
any other government entity directly to obtain any required arrest
reports or court dispositions.
(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.
(C) If a court orders the county to assess a person described in
subdivision (a), the county shall complete the assessment
process, including any exemptions and waivers, process
described in this section and subdivision (a) of Section 361.3,
within 30 calendar days. If the process
assessment is not complete within 30 calendar days of the
court order, the court may set an order to show cause hearing. If the
assessment process is not complete, is not
complete within 60 calendar days, or an exemption or waiver is
denied, or any administrative process is not complete within
60 calendar days of the court ordering the county to conduct the
assessment, the court may conduct a hearing to determine if
the county has abused its discretion.
(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
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 tribe's 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. 4. 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.