SB 213 (Mitchell): Placement of Children: Criminal Records Check is a bill that prohibits the final approval for an adoption placement or the placement of a child in the home of a relative, nonrelative extended family member, prospective guardian, or another person who is not a licensed or certified foster parent or an approved resource family, and the licensure of a foster care provider applicant and approval of a resource family applicant, if an adult living in the home has been convicted of a violent felony.
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Introduced: |
02/01/2017 |
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Last Amend: |
03/22/2017 |
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Disposition: |
Pending |
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Location: |
Senate Judiciary Committee |
The text of the bill can be found here: http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB213
2017 CA S 213: Bill Analysis - 03/31/2017 - Senate Hum Srvcs Committee, Hearing Date 04/04/2017
SENATE COMMITTEE ON HUMAN SERVICES
Senator Wiener, Chair
2017 - 2018 Regular
Bill No: SB 213
Author: Mitchell
Version: March 22, 2017 Hearing Date: April 4, 2017
Urgency: No Fiscal: Yes
Consultant: Mareva Brown
Subject: Placement of children: criminal records check
SUMMARY
This bill alters the background check process for prospective foster and adoptive parents by establishing a list of non-exemptible crimes, a list of crimes for which an exemption may be granted and a list of presumptively exemptible crimes. It permits placement of a child into a relative's home pending the granting of a required exemption, as specified. This bill additionally requires the California Department of Social Services (CDSS) to establish a workgroup to recommend ways to streamline the criminal exemption process for prospective employees in children's residential settings who have lived experiences that may benefit foster youth in care.
ABSTRACT
Existing law:
1) Enacts the Community Care Facilities Act, which provides for the licensure and oversight of out of home placements of abused and neglected children by CDSS. (HSC 1500 et seq.)
2) Requires CDSS to license group care facilities, private Foster Family Agencies (FFAs) and foster family homes for the placement of children who are in the child welfare system and requires, prior to licensure, a licensed foster home provider to be undergo a criminal background check, as specified. (HSC 1502 and 1522)
3) Requires each person who files an application for adoption to be fingerprinted, and for the CDSS, the county adoption agency or licensed adoption agency to secure any criminal record of that person, including a Federal Bureau of Investigation background check using fingerprints. (FAM 8712)
4) Prohibits CDSS, or an adoption agency from giving final approval for an adoptive placement in any home in which the prospective adoptive parent or any adult living in the home has either of the following: A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. Defines a crime involving violence to include child pornography, torture, mayhem, child abuse under conditions likely to produce great bodily harm or death, kidnapping, and others. (FAM 8712 (c)); (HSC 1522 (g))
5) Permits CDSS to grant an exemption to a criminal conviction exclusion, except as specified, if the director has substantial and convincing evidence to support a reasonable belief that the person convicted of the crime is of good character in order to justify granting the exemption. (HSC 1522 (g))
6) Permits a county to issue a criminal records exemption only if that county has been granted permission by the Director of CDSS to issue criminal records exemptions, as specified, and prohibits a county from placing a child in the home of a person who is ineligible for an exemption under that provision. (WIC 361.4(d)(3))
7) Prohibits an exemption from being granted for specified crimes identified in PEN 667.5, and permits exemptions for other specified crimes. (HSC 1522 (g))
8) For the purpose of defining sentencing enhancements for prison terms, defines "violent felony" to include the following crimes and notes that the Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence against the person:
a.a) Murder or voluntary manslaughter,
a.b) Mayhem,
a.c) Rape, as defined,
a.d) Sodomy, as defined,
a.e) Oral copulation, as defined,
a.f) Lewd or lascivious act, as defined,
a.g) Any felony punishable by death or imprisonment in the state prison system for life.
a.h) Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice, as defined, or in which the defendant uses a firearm, as defined.
a.i) Any robbery,
a.j) Arson, as defined,
a.k) Attempted murder,
a.l) Kidnapping,
a.m) Continuous sexual abuse of a child,
a.n) Carjacking, as defined,
a.o) Extortion, as defined,
a.p) Threats to victims or witnesses, as defined,
a.q) Any burglary of the first degree, as defined,
a.r) Other crimes, as specified. (PEN 667.5)
9) Defines the priority and steps a county must take in placing a child who has been removed from his or her home, including immediate investigation of the circumstances and the facts surrounding the child being taken into custody and attempt to keep the child with the child's family through the provision of services. (WIC 309 (a))
10) Requires the county welfare department to assess an able and willing relative, or nonrelative extended family member (NREFM), as defined, who is available and requests temporary placement of the child pending the detention hearing, or after the detention hearing and pending the dispositional hearing. Requires an in-home inspection to assess the safety of the home and the ability of the relative or NREFM to care for the child's needs, and a consideration of the results of a criminal records check, as specified. (WIC 309 (d))
11) Prohibits placement in the home if the person has been convicted of a crime for which the CDSS cannot grant an exemption under HSC 1522. If the person has been convicted of a crime that is exemptible under HSC 1522, 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. (WIC 309 (d)(3))
12) Requires a county to visit the home of a relative or any prospective guardian or any other person who is not a licensed or certified foster parent in order to ascertain the appropriateness of the placement prior to placing a child in the home. (WIC 361.4. (a))
13) Prohibits placement in the home of a relative or prospective guardian if the person has been convicted of a non-exemptible crime under HSC 1522, or until an exemption has been granted, per HSC 1522, if a conviction is exemptible. (WIC 361.4 (d))
14) Permits a county to issue a criminal record exemption only if that county has been granted permission by CDSS. To be granted permission, a county may file a request with CDSS seeking permission to establish a procedure to evaluate and grant appropriate individual criminal records exemptions, as defined. Requires a county to adhere to the exemption criteria in HSC 1522 and for CDSS to monitor county implementation of the county's exemption process and to conduct reviews of random samples of county exemptions. (WIC 361.4 (d) (2))
15) Requires CDSS, or a county in specified circumstances, to evaluate a request from an Indian tribe to exempt an exemptible crime under HSC 1522 and to allow placement into an Indian home the tribe has designated for placement. (WIC 361.4 (d)(4))
16) Establishes a resource family approval process in lieu of multiple processes to license foster homes, approve foster, relative and nonrelative families, and approve adoptive families. Requires those families be subject to background clearance and exemption processes established in WIC 1522. (WIC 16519.5 and WIC 16519.5 (d)(1))
This bill:
Restructures the background check approval process for foster, adoptive and resource families:
1) Adds families screened under the newly implemented resource family approval process to statutory requirements for background checks and exemptions.
2) Maintains the prohibition against placing a foster child in the home of a foster parent, resource family parent, relative, non-relative or other caregiver if any adult in the home has a felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, or other specified violent felonies.
3) Adds a felony conviction for elder abuse to the list of non-exemptible crimes.
4) Requires that CDSS determine whether to grant an exemption to a foster care or resource family applicant if the applicant or anyone in the applicant's home has been convicted of any of the following:
a. Any felony or misdemeanor conviction for willful harm or injury to a child, as specified, sexual abuse or exploitation by a licensed professional, as specified, any offense involving child sexual abuse, assault, or exploitation, as defined, a misdemeanor offense of elder abuse, or any sex offense for which registration is required, as specified
b. Any misdemeanor conviction within the last five years.
c. Any felony conviction within the last seven years.
5) Requires CDSS, in determining whether to grant an exemption, consider the following:
a. The nature of the crime or crimes.
b. The period of time since the crime was committed.
c. The number of offenses.
d. Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
e. Activities since conviction, including employment, participation in therapy, education, or treatment.
f. Whether the person convicted has successfully completed probation or parole, obtained a certificate of rehabilitation, or been granted a pardon by the Governor.
g. Any character references or other evidence submitted by the applicant.
h. Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
6) Creates a new category of presumptive exemptions, and requires CDSS to promptly request and obtain a statement from the person convicted of the crime regarding the circumstances surrounding the commission of the crime and to presumptively grant an exemption unless the department is in possession of substantial and convincing evidence to support a reasonable belief that the person convicted of the crime does not have the good character necessary to justify the issuance of an exemption.
7) Requires that presumptive exemptions be granted for any crime not falling into the specified non-exemptible or exemptible lists.
8) Exempts caregivers who already have obtained criminal exemptions from this process.
Requires a social worker, in considering placement of a detained child, to take the following actions:
9) Prohibits placement of a child in a home where someone has a non-exemptible crime.
10) Prohibits placement of a child in a home where someone has an exemptible crime until an exemption has been granted, with one exception.
11) Permits placement of a child pending a criminal records exemption for a relative or NREFM if the social worker determines the placement is in the best interest of the child and a party to the case does not object.
12) Permits placement in a home where someone has a criminal background if the crime falls into the category of presumptive exemption, as long as the department has requested and obtained a statement from the person with the criminal history about the nature of the crime.
13) Prohibits placement into a home where a crime falls into the presumptive category if the department is in possession of substantial and convincing evidence to support a reasonable belief that the person convicted of the crime does not have the good character necessary to justify the issuance of an exemption.
14) Prohibits issuance of a criminal record clearance into the home of an individual with an arrest for willful harm or injury to a child, a sex offense requiring registration, assault with a deadly weapon, or other specified crimes until an investigation has been completed into the arrest, and the county social worker and the court have considered the investigation results when determining whether the placement is in the best interests of the child.
Requires a county social worker in conducting a background check as a part of the new resource family approval process to take the following steps:
15) Deny approval to an applicant if someone in that home has been convicted of a non-exemptible crime, and delay approval until an exemption is granted if someone in the home has been convicted of an exemptible crime.
16) Approve exemptions and grant presumptive exemptions, if the county has been granted approval by CDSS to authorize exemptions.
Makes other changes:
17) Removes contingency language for federal funding from the requirement to background check families seeking adoption.
18) Requires CDSS to convene a stakeholder group to develop and implement, to the extent permissible under existing law, recommendations for streamlining the criminal exemption process for prospective employees in children's residential settings who have lived experiences that may benefit foster youth in care.
FISCAL IMPACT
This bill has not been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
Purpose of the bill:
According to the author, California's current laws relating to the criminal history of a prospective foster or kinship caregiver are overly complex, unduly restrictive, and overlap with the 2008 enactment of the federal Adam Walsh Act. "This burdensome maze of regulations leaves foster youth to linger in shelters or foster homes awaiting placement," the author states. "Meanwhile, there are would-be foster parents who are disqualified due to a crime, such as a petty theft, that happened decades ago."
The bill maintains the list of crimes which automatically prohibit the placement of a child in a home, such as murder, rape, child abuse, and others, and adds elder abuse to the non-exemptible list. In considering whether a crime is exemptible, it relaxes the prohibition against placing a child in a home pending a criminal background exemption if the child is being placed with a relative or non-related extended family member, and the social worker determines the placement is in the best interest of the child, as long as a party to the case does not object.
Additionally, it creates a new category of crimes for which a presumptive exemption must be granted, unless the department is "in possession of substantial and convincing evidence to support a reasonable belief that the person convicted of the crime does not have the good character necessary to justify the issuance of an exemption." In granting a presumptive exemption, a social worker is required to obtain a statement from the person convicted of the crime regarding the circumstances surrounding the commission of the crime, and then issue the presumptive exemption, permitting placement of the child in the home. These crimes are generally older, and of a less serious nature than the non-exemptible and exemptible categories.
The bill additionally permits granting of exemptions for certain crimes, previously prohibited, if the conviction is for a misdemeanor crime.
Background:
State and federal[1] statutes require CDSS to perform background checks on applicants, licensees, adult residents, employees and some volunteers of community care facilities who have contact with clients. The Caregiver Background Check Bureau was established in 1992 to review criminal history information from state databases and the Federal Bureau of Investigation.
If someone has a criminal conviction or arrest for a crime that is exemptible on their RAP sheet, the Bureau must determine, based on circumstances surrounding the crime and more recent behavior, whether the person is of such character to be granted an exemption to the ban on criminal backgrounds. This process requires the state to get court files from those specific cases. Recent legislation grants counties the ability to investigate and issue foster care exemptions, upon receiving permission from the state.
In 2008, the Adam Walsh Act tied federal funding to the requirement to have procedures in place to conduct criminal background checks on prospective foster and adoptive parents. The Act, named after a 6-year-old Florida boy who was abducted from a mall and later found dead, requires states to include fingerprint-based checks of prospective foster and adoptive parents through a national crime information database before the prospective foster/adoptive parent may be finally approved for placement of a child.[2] It additionally creates a list of prohibited convictions, which substantially match California's existing list of prohibited crimes.
California Law
California's background check statute encompasses both the Adam Walsh Act requirements, and state prohibitions against placing individuals convicted of violent felonies into licensed caregiving situations, including foster care. The chart below identifies the categories of exemptions that are created by this bill. It should be noted that crimes in the non-exemptible category are consistent with existing statute.
Background Check Bill: Proposed Exemption Categories
Category A: Non- Category B: Exemptible Category C: Presumptive
Exemptible Upon
Defined in Section 1522 Review Defined in Exemption
of the Section 1522
Health and Safety Code, of the Health and Defined in Section 1522
(g)(2)(A) Safety Code, (g) of the
Offenses in Category A (2)(B) Health and Safety Code,
may not be (g)(2)
granted an exemption. Offenses listed in (C)
Category B that
Felony convictions for: are not otherwise Offenses not covered by
nonexemptible
* Child abuse or under Category A may categories A or B may
neglect be
* Spousal abuse be granted an presumed exemptible.
exemption.
* Elder abuse Misdemeanor conviction
for:
* Crimes against a * Willful harm or
child injury to a
(including child child
pornography) * Sexual abuse or
* A crime involving exploitation by a
violence licensed
(including rape, sexual professional
assault, homicide) * Any offense involving
* Offenses described in child sexual abuse,
subdivision (c) of Sec assault, or
exploitation
667.5 of the Penal Code * Elder Abuse
but not including other Any conviction for:
physical assault and * Any offense for which
sex
battery offender registration
is
* Physical assault, required
battery,
or drug- or alcohol- * A misdemeanor within
related
offenses in the last the last five years
five
years. * A felony within the
last
five years
Backlog and controversy
The Community Care Licensing Division at CDSS has struggled for many years to process criminal exemptions in a timely manner. The process of obtaining court documents on old cases and from distant jurisdictions or other states can be slow, as can the process of identifying and obtaining information on self-disclosed crimes, or crime which are incompletely reported in the state's criminal databases.
In 2003, a Bureau of State Audits report noted inconsistencies in background checks and specifically reported that investigators had not looked into self-disclosed crimes to evaluate whether a criminal pattern existed. Meanwhile, a backlog was growing. In 2009, CDSS requested funding to provide additional investigators to clear a growing backlog of cases.[3] The Legislative Analyst's Office (LAO) noted that over the previous three years, there had been a 17 percent increase in the overall number of criminal arrest records submitted to the Caregiver Background Check Bureau for review. The number of subsequent crime arrest records that warrant investigation by the bureau increased by 60 percent, the LAO reported. As a result of this increase in workload, CDSS estimated there was existing backlog of about 1,400 individuals who required review, investigation, or analysis by the bureau.
In 2011, in response to a threatened lawsuit over the backlog, CDSS changed policy to enable providers to allow applicants to begin work before the criminal clearance process was completed. But after news reports and legislative criticism over that practice, it was reversed in 2014, with CDSS pledging to find other ways to expedite the process.
CDSS receives about 300,000 fingerprint submissions annually for all licensing applications. Approximately 270,000 of those applicants have no criminal background and are cleared for licensure. Approximately 30,000 applicants have criminal history that prohibits them from being present in a licensed facility. Of those, about 40 percent are granted exemptions, the rest are denied exemption or the case is closed. About 55 percent of those exemptions are granted using a simplified exemption process, which permits CDSS to grant the exemption without reviewing original case file documents in cases where there is only one misdemeanor conviction for a nonviolent crime.
Bureau of State Audits report
On March 14, the state Auditor released a report, "California Department of Social Services: Its Caregiver Background Check Bureau Lacks Criminal History Information It Needs to Protect Vulnerable Populations in Licensed Care Facilities." The report found, among other things, that CDSS and the Department of Justice (DOJ) had significant delays in processing information required to complete the exemption processes. The Auditor's findings included:
* CDSS policies inappropriately direct staff to ignore convictions for relatively minor crimes known as infractions and assume that, if CDSS does not have an individual's criminal history self-disclosure form, then the individual does not have any convictions.
* DOJ does not always provide Social Services with criminal history information within the 14-day time frame required by state law. Further, DOJ has incomplete criminal history information because it is not receiving all arrest and conviction information from the courts and law enforcement agencies. As a result, the CDSS background checks can be delayed or may not consider an individual's complete criminal history.
* In 2016 DOJ stopped providing CDSS with sentencing information because state law does not explicitly require that it share this information. It also did not forward information about certain convictions because it believed it was not authorized to share that information. However, this information is valuable for CDSS in deciding whether to allow an individual with a criminal history to be present in a licensed facility,
Continuum of Care Reform Efforts
CDSS is in the process of implementing a substantial reform within the child welfare system. The Continuum of Care Reform effort, established in statute by AB 403 (Stone, Chapter 773, Statutes of 2015), envisions new models of care for foster youth, including more intensive services, providing needed treatment and services in homes rather than in group homes, and a significant decrease in reliance on group homes. As a result, CDSS the county welfare directors and advocates say there is a significantly increased need for foster families, relatives and NREFMs to care for children, as they leave group care.
Resource Family Approval (RFA) program
The RFA Program replaces existing processes for licensing or certifying foster family homes, approving relatives and NREFMs as caregivers, and approving legal guardians and adoptive families. It combines elements of each of these processes into a single approval standard, regardless of the child's case plan. The state hopes to eliminate the duplication of existing processes such as background checks and streamline the placement process for children.
Components of the new RFA process include a review of the home environment, background checks of adults in the home, training topics and a new psychosocial assessment of the family, which is designed to provide the caseworker and court with a broad picture of that family's life. As with existing law, an expedited process is considered for family members and NREFMs who step forward to take a child, but a background clearance is still required prior to placement.
RFA was enacted by legislation sponsored by the County Welfare Directors Association in 2007, expanded through SB 1013 (Budget and Fiscal Review, Chapter 35, Statutes of 2012), and made statewide by passage of AB 403 (Stone, Chapter 773, Statutes of 2015) the continuum of care reform bill. Counties began using the new RFA process January 1, 2017.
Related legislation:
SB 1201 (Mitchell, 2016) was substantially similar to this bill. It would have prohibited a child from being placed in the a home with a person who has been convicted of a felony conviction for specified crimes, and would have required the county social worker and the court to consider the criminal history in determining whether the placement is in the best interests of the child if the criminal records check indicates that the person has been convicted of any other crime, as specified. The bill was held in the Assembly Appropriations Committee.
SB 942 (Liu, 2016) would have required that criminal records checks be conducted within a specified timeframe, and would have required various hearings if the county fails to meet those timeframes. It authorized placement of a child in a home in which an exemption is pending under circumstances in which the county is found to have abused its discretion. It was held in the Assembly Appropriations Committee.
AB 1997 (Stone, Chapter 612, Statutes of 2016) was a substantial cleanup bill for the Continuum of Care Reform effort, including some modifications to the RFA process.
AB 403 (Stone, Chapter 773, Statutes of 2015) enacted the Continuum of Care Reform and expanded resource family homes statewide.
AB 1764 (Hall, Chapter 765, Statutes of 2014) expanded the preference to place a child with relatives or NREFM from the period of time immediately prior to the child's initial detention to hearing to include additional time after that hearing.
COMMENTS
While this bill generally seeks to streamline the beleaguered background check process, it specifically targets delays to relative placements for children in foster care. State and federal statute cite a priority for children to be placed with relatives whenever possible, yet those placements may be delayed weeks or months, or longer, if a relative has a criminal conviction, advocates say. This bill would permit placement into the homes of relatives pending that process.
For years, CDSS has struggled to provide timely and thorough background clearances for individuals requiring exemptions. Complicating the exemption process is the requirement to review original case files from historic crimes, which may mean obtaining old files from distant locations, including other states. The state then weighs the facts of those cases with more recent information about the applicant in determining whether an exemption is warranted. A recent state audit of the Caregiver Background Check Bureau at CDSS outlined shortcomings in information received from RAP sheets.
By placing consideration of the criminal exemption into the Resource Family Approval process, it gives the state or county social worker more flexibility to consider the criminal history in context of other factors.
POSITIONS
Support:
Alliance for Children's Rights (Co-Sponsor)
Children's Law Center (Co-Sponsor)
County Welfare Director's Association (Co-Sponsor)
American Civil Liberties Union of California
Children's Advocacy Institute
Oppose:
None.
[1] The Adam Walsh Act (P.L. 109-248)
[2] http://www.aphsa.org/content/dam/AAICPC/PDF%20DOC/Home%20page/Summary-Adam_Walsh_Act.pdf
[3] "Workload Increase in Subsequent Criminal Arrest Investigations," Legislative Analysts Office, 2009-10
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