Bill Text: CA AB1283 | 2021-2022 | Regular Session | Amended


Bill Title: Resource families: hearings.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Engrossed) 2021-06-08 - From committee: Do pass and re-refer to Com. on JUD. with recommendation: To Consent Calendar. (Ayes 5. Noes 0.) (June 8). Re-referred to Com. on JUD. [AB1283 Detail]

Download: California-2021-AB1283-Amended.html

Amended  IN  Assembly  April 15, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1283


Introduced by Assembly Member Stone

February 19, 2021


An act to amend Section 11105.08 of the Penal Code, and to amend Sections 10553.12 and 16519.6 of the Welfare and Institutions Code, relating to foster care.


LEGISLATIVE COUNSEL'S DIGEST


AB 1283, as amended, Stone. Resource families: hearings.
Existing law provides for the implementation of the resource family approval process, which replaces the multiple processes for licensing foster family homes, certifying foster homes by foster family agencies, approving relatives and nonrelative extended family members as foster care providers, and approving guardians and adoptive families. Existing law requires the State Department of Social Services to provide a statewide fair hearing process for application denials, rescissions of approval, exclusion actions, or criminal record exemption denials or rescissions by a county or the department. Under existing law, a county’s action on an approval is final, or for matters set before the State Hearings Division, an action is subject to dismissal, if the resource family, applicant, excluded individual, or individual who is the subject of a criminal record exemption denial or rescission does not file a timely appeal.
This bill would remove the reference to the action before the State Hearings Division being dismissed, and instead, provide that in a matter before the State Hearings Division, an appeal shall be subject to dismissal if an appeal to the notice of action or exclusion order is not filed within the prescribed time. The bill would also make the county’s action final, and the appeal before the State Hearings Division subject to dismissal, if the resource family, applicant, excluded individual, or individual who is the subject of a criminal record exemption denial or rescission withdraws the appeal or fails to appear at the hearing without good cause. Under the bill, good cause for failure to appear at the hearing would be as defined by the department in specified written directives or regulation
Existing law authorizes the department to permanently exclude a resource family parent, applicant, or other individual from presence in any resource family home, from employment in, presence in, and contact with clients of, any facility licensed by the department or certified or approved by a licensed foster family agency, and from holding certain positions with a licensee of any licensed facility, for specified reasons.
This bill would require a temporary exclusion of an individual following a county’s denial of an application for resource family approval, rescission of approval, or denial or rescission of a criminal record exemption to only be imposed as set forth in certain written directives or regulations adopted by the department. To the extent the bill would impose new duties on counties, the bill would impose a state-mandated local program.
Existing law authorizes the department, upon a finding of noncompliance with the law governing resource families, to require a foster family agency to deny a resource family application, rescind the approval of a resource family, or take other action deemed necessary for the protection of a child who is or who may be placed with the resource family.
This bill would repeal those provisions.
This bill would authorize a county and the department to coordinate the filing of actions related to resource families, file consolidated pleadings, or file a motion to consolidate multiple actions if a matter involves both a county and department action.
Existing federal law, the Indian Child Welfare Act (ICWA), governs the proceedings for determining the placement of an Indian child when that child is removed from the custody of the child’s parent or guardian. Existing law requires counties to implement the resource family approval process and authorizes a federally recognized tribe to approve a home for the purpose of foster or adoptive placement of an Indian child pursuant to the ICWA. Existing law authorizes a tribal agency to request from the Department of Justice criminal history information when evaluating a tribal home for the placement of an Indian child into foster or adoptive care. Existing law requires that a tribal agency submit fingerprint images and related information for specified individuals for the purpose of obtaining information regarding the existence and contents of an individual’s state and federal criminal record, including arrests, convictions, and matters pending trial or appeal.
The bill would instead require a tribe or tribal organization, when licensing or approving a home for the purpose of foster or adoptive placement of an Indian child, to submit fingerprint images and related information to the department for the type and level of background check required for an adoption and would require the department to provide a state and federal level response to the tribe or tribal organization that includes background check information that is required for an adoption.
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   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 11105.08 of the Penal Code is amended to read:

11105.08.
 (a) Notwithstanding any other law, a tribal agency tribe or tribal organization may request from the Department of Justice state and federal level summary criminal history information for the purpose of licensing or approving a tribal home tribally approved home, as defined in subdivision (r) of Section 224.1 of the Welfare and Institutions Code, for the placement of an Indian child into foster or adoptive care.
(b) A tribal agency tribe or tribal organization shall submit to the Department of Justice fingerprint images and related information required by the Department of Justice of an individual applying with the tribal agency tribe or tribal organization as a prospective foster parent or adoptive parent, any adult who resides or is employed in the home of an applicant, any person who has a familial or intimate relationship with any person living in the home of an applicant, or employee of the child welfare agency who may have contact with a child, for the purposes of obtaining information as to the existence and content of a record of state or federal convictions and state or federal arrests and also information as to the existence and content of a record of state or federal arrests for which the Department of Justice establishes that the person is released on bail or on his or her own recognizance pending trial or appeal. the individual’s full criminal record pursuant to Section 8712 of the Family Code.
(c) Upon receipt of a tribe’s or tribal organization’s request for federal summary criminal history information received pursuant to this section, the Department of Justice shall forward transmit the request to the Federal Bureau of Investigation. The Department of Justice shall review the information returned from the Federal Bureau of Investigation and compile and disseminate a response to the requesting tribal child welfare agency. tribe or tribal organization.
(d) The Department of Justice shall provide a state and federal level response to a tribal child welfare agency pursuant to subdivision (m) of Section 11105 of the Penal Code. tribe or tribal organization pursuant to Section 8712 of the Family Code.
(e) A tribal agency tribe or tribal organization shall request from the Department of Justice subsequent notification service pursuant to Section 11105.2 for persons described in subdivision (b) of this section.
(f) The Department of Justice may charge a fee sufficient to cover the reasonable and appropriate costs of processing the request pursuant to this section.
(g) As used in this section a “tribal agency” organization” means an entity designated by a federally recognized tribe as authorized to approve a home consistent with Section 1915 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), 1915) for the purpose of placement of placing an Indian child into foster or adoptive care, including care. This includes the authority to conduct a criminal or child abuse background check of, and grant exemptions to, an individual who is a prospective foster or adoptive parent, an adult who resides or is employed in the home of an applicant for approval, any person who has a familial or intimate relationship with any person living in the home of an applicant, or an employee of a tribal child welfare agency who may have contact with a child.

SEC. 2.

 Section 10553.12 of the Welfare and Institutions Code is amended to read:

10553.12.
 (a) Notwithstanding any other law, a federally recognized tribe is authorized, but not required, to license or approve a home for the purpose of foster or adoptive placement of an Indian child pursuant to the federal Indian Child Welfare Act (25 U.S.C. Sec. 1915).
(b) An Indian child, as defined by subdivisions (a) and (b) of Section 224, that who has been removed pursuant to Section 361, from the custody of their parents or Indian custodian may be placed in a tribally approved home home, as defined at subdivision (r) of Section 224.1, pursuant to Section 1915 of the federal Indian Child Welfare Act.
(c) To facilitate the availability of tribally approved homes that have been fully approved in accord with federal law, including completion of required background checks, a tribal agency checks pursuant to Section 8712 of the Family Code, a tribe or tribal organization may request from the Department of Justice federal and state summary criminal history information and Child Abuse Central Index Information pursuant to paragraph (8) of subdivision (b) of Section 11170 of the Penal Code regarding a prospective foster parent or adoptive parent, an adult who resides or is employed in the home of an applicant, a person who has a familial or intimate relationship with a person living in the home of an applicant, or an employee of the child welfare agency who may have contact with children, in accord with subdivision (m) of Section 11105 of the Penal Code and Child Abuse Central Index Information pursuant to paragraph (8) of subdivision (b) of Section 11170 of the Penal Code. children.
(d) As used in this section, a “tribal agency” organization” means an entity designated by a federally recognized tribe as authorized to approve homes consistent with the federal Indian Child Welfare Act for the purpose of placement of Indian children, placing an Indian child into foster or adoptive care, including the authority to conduct criminal record and child abuse background checks of, and grant exemptions to, individuals who are prospective foster parents or adoptive parents, an adult who resides or is employed in the home of an applicant for approval, a person who has a familial or intimate relationship with a person living in the home of an applicant, or an employee of the tribal agency organization who may have contact with children.
(e) A county social worker may place an Indian child in a tribally approved home without having to conduct a separate background check, upon certification by the tribal agency tribe or tribal organization of the following:
(1) The tribal agency tribe or tribal organization has completed a criminal record background check in accord with the standards set forth in Section 1522 of the Health and Safety Code, and a Child Abuse Central Index Check pursuant to Section 1522.1 of the Health and Safety Code, with respect to each of the individuals described in subdivision (c).
(2) The tribal agency tribe or tribal organization has agreed to report to a county child welfare agency responsible for a child placed in the tribally approved home, within 24 hours of notification to the tribal agency tribe or tribal organization by the Department of Justice, of a any subsequent state or federal arrest or disposition notification provided pursuant to Section 11105.2 of the Penal Code involving an individual associated with the tribally approved home where an Indian child is placed.
(3) If the tribal agency tribe or tribal organization in its certification states that the individual was granted a criminal record exemption, the certification shall specify that the exemption was evaluated in accord with the standards and limitations set forth in paragraph (1) (2) of subdivision (g) of Section 1522 of the Health and Safety Code and was not granted to an individual ineligible for an exemption under that provision.
(f) Tribal home approvals conducted in compliance with this section are not subject to resource family approval requirements.

SECTION 1.SEC. 3.

 Section 16519.6 of the Welfare and Institutions Code is amended to read:

16519.6.
 (a) A hearing conducted pursuant to Section 16519.5 shall be conducted in accordance with the requirements of this section and the written directives or regulations adopted pursuant to Section 16519.5.
(b) For a resource family hearing held at the department’s State Hearings Division, the procedures set forth in Chapter 7 (commencing with Section 10950) of Part 2 shall apply, except as otherwise provided in this section.
(c) (1) For a resource family hearing held at the Office of Administrative Hearings, the procedures set forth in the Administrative Procedure Act (Chapter 4 (commencing with Section 11370) of Part 1 of Division 3 of Title 2 of the Government Code) shall apply, except as otherwise provided in this article.
(2) For purposes of the administrative action procedures set forth in this article, “agency” means a county or the department according to the authority to take action provided in subdivisions (f) and (g) of Section 16519.5, except that “agency” shall mean the department for purposes of a decision or a posthearing procedure, as provided in Sections 11517 to 11522, inclusive, of the Government Code.
(d) (1) Notwithstanding the time to appeal set forth in Section 10951 of this code and Section 1558 of the Health and Safety Code, an applicant for approval or for a criminal record exemption may file a written appeal within 90 days of service of a notice of action, and a resource family, excluded individual, or individual who is the subject of a criminal record exemption rescission may file a written appeal within 25 days of service of a notice of action or exclusion order.
(2) Pursuant to Section 1013 of the Code of Civil Procedure, if the notice of action or exclusion order is served by mail, the time to respond shall be extended five days.
(3) If different appeal timelines apply to a matter as a result of multiple actions filed against a respondent, the following shall apply:
(A) A county or the department, as applicable, shall accept an appeal to one action as an appeal to all of the actions against the same respondent, if requested to do so by the respondent.
(B) If an action for rescission of approval, criminal record exemption rescission, or exclusion includes an action for application denial, the applicable appeal timeline for a rescission of approval, criminal record exemption rescission, or exclusion specified in paragraph (1) shall also apply to the action for application denial.
(4) This section does not impede or extend jurisdiction as set forth in the Administrative Procedure Act (Chapter 4 (commencing with Section 11370) of Part 1 of Division 3 of Title 2 of the Government Code).
(e) (1) Notwithstanding Section 10951, and except as provided in subdivision (m), a county’s action shall be final, or for matters set before the State Hearings Division, an appeal shall be subject to dismissal, if the resource family, applicant, excluded individual, or individual who is the subject of a criminal record exemption denial or rescission does not file an appeal to the notice of action or exclusion order within the prescribed time, withdraws the appeal, or fails to appear at the hearing without good cause.
(2) Notwithstanding paragraph (1), a resource family, applicant, excluded individual, or individual who is the subject of a criminal record exemption denial or rescission shall be entitled to a hearing pursuant to Section 16519.5 if they file the appeal no more than 30 calendar days after the due date for the appeal, as specified in subdivision (d), and the person provides good cause for the late filing of the appeal. Good cause shall be determined by the department in an administrative review procedure set forth in the written directives or regulations adopted pursuant to Section 16519.5. The department shall not grant a late appeal for good cause if the appeal is filed more than 30 calendar days after the due date for the appeal, as specified in subdivision (d).
(3) For purposes of this subdivision, the following definitions apply:
(A) “Good cause” for the late filing of an appeal means a substantial and compelling reason beyond the party’s control, considering the length of the delay, the diligence of the party filing the appeal, and the potential prejudice to the other party.
(B) “Good cause” for failure to appear at the hearing shall be as defined by the department in the written directives or regulations adopted pursuant to Section 16519.5.
(C) The inability of a person to understand an adequate and language-compliant notice, in and of itself, does not constitute good cause.
(4) This section does not preclude the application of the principles of equity jurisdiction as otherwise provided by law.
(f) Except as provided in subdivisions (g) and (h), and notwithstanding Section 10952, a hearing under this section, notwithstanding any time waiver, shall be held within 90 days following the receipt of a timely appeal for matters to be set before the State Hearings Division or within 90 days following the receipt of a timely notice of defense for matters to be set before the Office of Administrative Hearings, unless a continuance or postponement of the hearing is granted for good cause.
(g) (1) The department may exclude a resource family parent, applicant, or other individual from presence in any resource family home, from employment in, presence in, and contact with clients - of, any facility licensed by the department or certified or approved by a licensed foster family agency, and from holding the position of member of the board of directors, executive director, or officer of the licensee of any facility licensed by the department, for any of the reasons set forth in Section 16519.61.
(2) The department may issue an exclusion order requiring the immediate removal of an individual if, in the opinion of the department, the action is necessary to protect a child from physical or mental abuse, abandonment, or any other substantial threat to the child’s health or safety. If the department has issued an immediate exclusion order, the timelines for the service of an accusation, conducting a hearing, and for a final determination set forth in Section 1558 of the Health and Safety Code shall apply, unless a continuance of the hearing is granted for good cause.
(3) A resource family’s failure to comply with the department’s exclusion order after being notified of the order shall be grounds for taking action against the resource family’s approval pursuant to Section 16519.61.
(4) An exclusion order that was effective prior to the implementation of the resource family approval program and conversion of licensed foster family homes and certified family homes to resource families shall be deemed to exclude the individual from presence in any resource family home.
(5) (A) An exclusion shall be for the remainder of the excluded person’s life, unless otherwise ordered by the department, or as prescribed in Section 1558.1 of the Health and Safety Code.
(B) Pursuant to Section 11522 of the Government Code, the excluded individual may petition for reinstatement to the department after one year has elapsed from the effective date of an exclusion order that was not appealed or the effective date of a decision and order by the department upholding an exclusion order. The department shall provide the excluded person a copy of Section 11522 of the Government Code with the exclusion order and decision and order.
(C)  A temporary exclusion of an individual following a county’s denial of an application for resource family approval, rescission of approval, or denial or rescission of a criminal record exemption, shall only be imposed as set forth in the written directives or regulations adopted by the department pursuant to Section 16519.5.
(6) For purposes of this subdivision, a “facility licensed by the department” means a facility licensed pursuant to Chapter 3 (commencing with Section 1500) of, Chapter 3.01 (commencing with Section 1568.01) of, Chapter 3.2 (commencing with Section 1569) of, Chapter 3.3 (commencing with Section 1570) of, Chapter 3.4 (commencing with Section 1596.70) of, Chapter 3.5 (commencing with Section 1596.90) of, or Chapter 3.6 (commencing with Section 1597.30) of, Division 2 of the Health and Safety Code.
(h) If a county or the department has issued a temporary suspension order, the hearing shall be held within 30 days following the receipt of a timely appeal for matters to be set before the State Hearings Division, or within 30 days following the receipt of a timely notice of defense for matters to be set before the Office of Administrative Hearings. The temporary suspension order shall remain in effect until the time the hearing is completed and the department has made a final determination on the merits. However, the temporary suspension order shall be deemed vacated if the department fails to make a final determination on the merits within 30 days after receipt of the proposed decision by the county or department.
(i) A county and the department may coordinate the filing of actions, file consolidated pleadings, or file a motion to consolidate multiple actions if a matter involves both a county and department action.
(j) A resource family, applicant, excluded individual, or individual who is the subject of a criminal record exemption denial or rescission who files an appeal to a notice of action or exclusion order pursuant to this section shall, as part of the appeal, provide their current mailing address. The resource family, applicant, or individual who is the subject of a criminal record exemption denial or rescission shall subsequently notify the county, and the excluded individual shall notify the department, in writing of any change in mailing address, until the hearing process has been completed or terminated.
(k) Service by mail of a notice or other writing on a resource family, applicant, excluded individual, or individual who is the subject of a criminal record exemption denial or rescission in a procedure pursuant to this section is effective if served to the last mailing address on file with the county or department. Service of a notice of action shall be by personal service or by first-class mail, and service of an exclusion order shall be by personal service or registered mail. If the last day for performance of any required action falls on a holiday, then the period shall be extended to the next day which is not a holiday.
(l) In all proceedings conducted in accordance with this section, the burden of proof on the department or county shall be by a preponderance of the evidence.
(m) (1) A county or the department may institute or continue an administrative proceeding against a resource family, applicant, or individual who is the subject of a criminal record exemption denial or rescission upon any ground provided by this section or Section 16519.61, enter an order denying an application or rescinding the approval of a resource family, exclude an individual, issue a temporary suspension order, or otherwise take disciplinary action against a resource family, applicant, or individual who is the subject of a criminal record exemption denial or rescission notwithstanding any resignation, withdrawal, forfeiture, surrender of approval, or denial or rescission of the approval by a foster family agency.
(2) The department may institute or continue an administrative proceeding against an excluded individual upon any ground provided by this section or Section 16519.61, enter an order to exclude an individual, or otherwise take disciplinary action against an excluded individual, notwithstanding any resignation, withdrawal, forfeiture, surrender of approval, or denial or rescission of the approval by a foster family agency.
(n) (1) Notwithstanding Sections 11425.10 and 11425.20 of the Government Code, a proceeding conducted pursuant to this section shall be confidential and not open to the public in order to preserve the confidential information of a child or resource family consistent with the confidentiality requirements in Sections 827, 10850, and 16519.55 of this code, Section 1536 of the Health and Safety Code, and Section 11167.5 of the Penal Code. Notwithstanding this requirement, an administrative law judge may admit persons deemed to have a direct and legitimate interest in the particular case or the work of the court on a case-by-case basis and with any admonishments, limitations, and protective orders as may be necessary to preserve the confidential nature of the proceedings.
(2) Except as otherwise required by law, in any writ of mandate proceeding related to an issue arising out of this article, the name, identifying information, or confidential information of a child as described in Sections 827, 10850, and 16519.55, and Section 11167.5 of the Penal Code, shall not be disclosed in a public document and a protective order shall be issued by the court in order to protect the confidential information of a child.

SEC. 2.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 or otherwise be subject to Section 6 of Article XIII B of the California Constitution.
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