Amended
IN
Senate
March 25, 2021 |
Introduced by Senator Skinner |
February 09, 2021 |
Existing law subjects foster care provider applicants and resource family applicants to a criminal records check and prohibits licensure or approval of an applicant who has been convicted of certain felonies. However, existing law authorizes the State Department of Social Services or other approving entity to grant an exemption if the person has been convicted of one of certain specified crimes and has been granted an exemption based on all reasonably available information and if the department or other approving entity has substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character, as specified. Existing law also requires the department or other approving entity to grant an exemption for a person convicted of any other crime, if the person’s state and federal
criminal history information, as specified, independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, is of present good character necessary to justify the granting of an exemption, or under other specified criteria that the department or other approving entity may use as necessary to protect the health and safety of a child.
This bill would also authorize, in certain circumstances, a relative who is seeking approval as a resource family to provide care to a specific relative child or children to seek expedited review, as specified, of a criminal records exemption request or denial.
Existing law authorizes, in certain circumstances, a child who has been removed from their parent or guardian to be placed on an emergency basis with a relative or nonrelative extended family member. Existing law requires, prior to placing a child pursuant to those provisions, the county to conduct a background check on the relative or nonrelative extended family member and, if the relative or nonrelative extended family has been convicted of certain crimes, authorizes emergency placement of the child pending a criminal records exemption decision.
This
bill would authorize a relative who has requested emergency placement of a child pursuant to those provisions, if the criminal records exemption has been denied or is still pending 90 days after the relative requested placement, to petition the court to order the department or county to grant the exemption from disqualification or to order that the child be placed with the relative on an emergency basis pending further review of the request for an exemption from disqualification. The bill would authorize the court to order the emergency placement if it is in the best interests of the child.
Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances. Existing law establishes the grounds for removal of a dependent child from the custody of the child’s parents or guardian and generally requires the court to order the social worker to provide designated child welfare services,
including family reunification services, to the removed child and the child’s mother and statutorily presumed father or guardians. Under existing law, reunification services do not need to be provided if the court finds, by clear and convincing evidence, that, among other things, the parent or guardian of the child has been convicted of a violent felony.
This bill would delete that exemption from the required provision of reunification services.
By increasing the duties of counties relating to the provision of child welfare services, this bill would impose a state-mandated local program.
The Legislature recognizes the need to generate timely and accurate positive fingerprint identification of applicants as a condition of issuing licenses, permits, or certificates of approval for persons to operate or provide direct care services in a community care facility, foster family home, or a certified family home or resource family of a licensed foster family agency. Therefore, the Legislature supports the use of the fingerprint live-scan technology, as identified in the long-range plan of the Department of Justice for fully automating the processing of fingerprints and other data by the year 1999, otherwise known as the California Crime Information Intelligence System (CAL-CII), to be used for applicant fingerprints. It is the intent of the Legislature in
enacting this section to require the fingerprints of those individuals whose contact with community care clients may pose a risk to the clients’ health and safety. An individual shall be required to obtain either a criminal record clearance or a criminal record exemption from the State Department of Social Services before the individual’s initial presence in a community care facility or certified family home.
(a)(1)Before and, as applicable, subsequent to issuing a license or special permit to a person to operate or manage a community care facility, the State Department of Social Services shall secure from an appropriate law enforcement agency a criminal record to determine whether the applicant or any other person specified in subdivision (b) has been convicted of a crime other than a minor traffic violation or
arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5 of the Penal Code, subdivision (b) of Section 273a of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons, and subsequent arrest information pursuant to Section 11105.2 of the Penal Code.
(3)The following shall apply to the criminal record information:
(A)If the State Department of Social Services finds that the applicant, or any other person
specified in subdivision (b), has been convicted of a crime other than a minor traffic violation, the application shall be denied, unless the department grants an exemption pursuant to subdivision (g).
(B)If the State Department of Social Services finds that the applicant, or any other person specified in subdivision (b), is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services may cease processing the criminal record information until the conclusion of the trial.
(C)If no criminal record information has been recorded, the Department of Justice shall provide the applicant and the State Department of Social Services with a statement of that fact.
(D)If the State Department
of Social Services finds, after licensure, that the licensee, or any other person specified in paragraph (1) of subdivision (b), has been convicted of a crime other than a minor traffic violation, the license may be revoked, unless the department grants an exemption pursuant to subdivision (g).
(E)An applicant and any other person specified in subdivision (b) shall submit fingerprint images and related information to the Department of Justice for the purpose of searching the criminal records of the Federal Bureau of Investigation, in addition to the criminal records search required by this subdivision. If an applicant and all other persons described in subdivision (b) meet all of the conditions for licensure, except receipt of the Federal Bureau of Investigation’s criminal offender record information search response for the applicant
or any of the persons described in subdivision (b), the department may issue a license if the applicant and each person described in subdivision (b) has signed and submitted a statement that the person has never been convicted of a crime in the United States, other than a traffic infraction, as prescribed in paragraph (1) of subdivision (a) of Section 42001 of the Vehicle Code. If, after licensure, or the issuance of a certificate of approval of a certified family home by a foster family agency, the department determines that the licensee or any other person specified in subdivision (b) has a criminal record, the department may revoke the license, or require a foster family agency to revoke the certificate of approval, pursuant to Section 1550. The department may also suspend the license or require a foster family agency to suspend the certificate of approval pending an administrative hearing
pursuant to Section 1550.5.
(F)The State Department of Social Services shall develop procedures to provide the individual’s state and federal criminal history information with the written notification of the individual’s exemption denial or revocation based on the criminal record. Receipt of the criminal history information shall be optional on the part of the individual, as set forth in the agency’s procedures. The procedure shall protect the confidentiality and privacy of the individual’s record, and the criminal history information shall not be made available to the employer.
(G)Notwithstanding any other law, the department is authorized to provide an individual with a copy of the individual’s state or federal level criminal offender record information search response as
provided to that department by the Department of Justice if the department has denied a criminal background clearance based on this information and the individual makes a written request to the department for a copy specifying an address to which it is to be sent. The state or federal level criminal offender record information search response shall not be modified or altered from its form or content as provided by the Department of Justice and shall be provided to the address specified by the individual in the individual’s written request. The department shall retain a copy of the individual’s written request and the response and date provided.
(b)(1)In addition to the applicant, this section shall be applicable to criminal record clearances and exemptions for the following persons:
(A)Adults responsible for administration or direct supervision of staff.
(B)Any adult, other than a client, residing in the facility, certified family home, or resource family home.
(C)Any person who provides client assistance in dressing, grooming, bathing, or personal hygiene. Any nurse assistant or home health aide meeting the requirements of Section 1338.5 or 1736.6, respectively, who is not employed, retained, or contracted by the licensee, and who has been certified or recertified on or after July 1, 1998, shall be deemed to meet the criminal record clearance requirements of this section. A certified nurse assistant and certified home health aide who will be providing client assistance and who falls under
this exemption shall provide one copy of their current certification, prior to providing care, to the community care facility. The facility shall maintain the copy of the certification on file as long as care is being provided by the certified nurse assistant or certified home health aide at the facility or in a certified family home or resource family home of a foster family agency. This paragraph does not restrict the right of the department to exclude a certified nurse assistant or certified home health aide from a licensed community care facility or certified family home or resource family home of a foster family agency pursuant to Section 1558.
(D)Any staff person, volunteer, or employee who has contact with the clients.
(E)Any adult who works in a community care facility
that is eligible to accept placement of a dependent child.
(F)If the applicant is a firm, partnership, association, or corporation, the chief executive officer or other person serving in like capacity.
(G)Additional officers of the governing body of the applicant, or other persons with a financial interest in the applicant, as determined necessary by the department by regulation. The criteria used in the development of these regulations shall be based on the person’s capability to exercise substantial influence over the operation of the facility.
(2)The following persons are exempt from the requirements applicable under paragraph (1):
(A)A medical
professional, as defined in department regulations, who holds a valid license or certification from the person’s governing California medical care regulatory entity and who is not employed, retained, or contracted by the licensee if all of the following apply:
(i)The criminal record of the person has been cleared as a condition of licensure or certification by the person’s governing California medical care regulatory entity.
(ii)The person is providing time-limited specialized clinical care or services.
(iii)The person is providing care or services within the person’s scope of practice.
(iv)The person is not a community care facility licensee or an employee
of the facility.
(B)A third-party repair person or similar retained contractor if all of the following apply:
(i)The person is hired for a defined, time-limited job.
(ii)The person is not left alone with clients.
(iii)When clients are present in the room in which the repair person or contractor is working, a staff person who has a criminal record clearance or exemption is also present.
(C)Employees of a licensed home health agency and other members of licensed hospice interdisciplinary teams who have a contract with a client or resident of the facility, certified family home, or resource family home
and are in the facility, certified family home, or resource family home at the request of that client or resident’s legal decisionmaker. The exemption does not apply to a person who is a community care facility licensee or an employee of the facility.
(D)Clergy and other spiritual caregivers who are performing services in common areas of the community care facility, certified family home, or resource family home or who are advising an individual client at the request of, or with the permission of, the client or legal decisionmaker, are exempt from fingerprint and criminal background check requirements imposed by community care licensing. This exemption does not apply to a person who is a community care licensee or employee of the facility.
(E)Members of fraternal, service, or
similar organizations who conduct group activities for clients if all of the following apply:
(i)Members are not left alone with clients.
(ii)Members do not transport clients off the facility, certified family home, or resource family home premises.
(iii)The same organization does not conduct group activities for clients more often than defined by the department’s regulations.
(3)In addition to the exemptions in paragraph (2), the following persons in foster family homes, resource family homes, certified family homes, and small family homes are exempt from the requirements applicable under paragraph (1):
(A)Adult friends and family of the foster parent, who come into the home to visit for a length of time no longer than defined by the department in regulations, provided that the adult friends and family of the foster parent are not left alone with the foster children. However, the foster parent, acting as a reasonable and prudent parent, as defined in paragraph (2) of subdivision (a) of Section 362.04 of the Welfare and Institutions Code, may allow adult friends and family to provide short-term care to the foster child and act as an appropriate occasional short-term babysitter for the child.
(B)Parents of a foster child’s friend when the foster child is visiting the friend’s home and the friend, foster parent, or both are also present. However, the foster parent, acting as a reasonable and prudent parent, may allow the parent
of the foster child’s friend to act as an appropriate, occasional short-term babysitter for the child without the friend being present.
(C)Individuals who are engaged by a foster parent to provide short-term care to the child for periods not to exceed 24 hours. Caregivers shall use a reasonable and prudent parent standard in selecting appropriate individuals to act as appropriate occasional short-term babysitters.
(4)In addition to the exemptions specified in paragraph (2), the following persons in adult day care and adult day support centers are exempt from the requirements applicable under paragraph (1):
(A)Unless contraindicated by the client’s individualized program plan (IPP) or needs and service plan, a spouse,
significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to the client.
(B)A volunteer if all of the following apply:
(i)The volunteer is supervised by the licensee or a facility employee with a criminal record clearance or exemption.
(ii)The volunteer is never left alone with clients.
(iii)The volunteer does not provide any client assistance with dressing, grooming, bathing, or personal
hygiene other than washing of hands.
(5)(A)In addition to the exemptions specified in paragraph (2), the following persons in adult residential and social rehabilitation facilities, unless contraindicated by the client’s individualized program plan (IPP) or needs and services plan, are exempt from the requirements applicable under paragraph (1): a spouse, significant other, relative, or close friend of a client, or an attendant or a facilitator for a client with a developmental disability if the attendant or facilitator is not employed, retained, or contracted by the licensee. This exemption applies only if the person is visiting the client or providing direct care and supervision to that client.
(B)This subdivision does not prevent a licensee from
requiring a criminal record clearance of any individual exempt from the requirements of this section, provided that the individual has client contact.
(6)Any person similar to those described in this subdivision, as defined by the department in regulations.
(c)(1)Subsequent to initial licensure, a person specified in subdivision (b) who is not exempted from fingerprinting shall obtain either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g) from the State Department of Social Services prior to employment, residence, or initial presence in the facility. A person specified in subdivision (b) who is not exempt from fingerprinting shall be fingerprinted and shall sign a declaration under penalty of perjury regarding any prior
criminal convictions. The licensee shall submit fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or comply with paragraph (1) of subdivision (h). These fingerprint images and related information shall be sent by electronic transmission in a manner approved by the State Department of Social Services and the Department of Justice for the purpose of obtaining a permanent set of fingerprints, and shall be submitted to the Department of Justice by the licensee. A licensee’s failure to prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to
subdivision (g) or to comply with paragraph (1) of subdivision (h), as required in this section, shall result in the citation of a deficiency and the immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted by Section 1548. The fingerprint images and related information shall then be submitted to the Department of Justice for processing. Upon request of the licensee, who shall enclose a self-addressed stamped postcard for this purpose, the Department of Justice shall verify
receipt of the fingerprints.
(2)Within 14 calendar days of the receipt of the fingerprint images, the Department of Justice shall notify the State Department of Social Services of the criminal record information, as provided in subdivision (a). If no criminal record information has been recorded, the Department of Justice shall provide the licensee and the State Department of Social Services with a statement of that fact within 14 calendar days of receipt of the fingerprint images. Documentation of the individual’s clearance or exemption from disqualification shall be maintained by the licensee and be available for inspection. If new fingerprint images are required for processing, the Department of Justice shall, within 14 calendar days from the date of receipt of the fingerprints, notify the licensee that the fingerprints were illegible, the
Department of Justice shall notify the State Department of Social Services, as required by Section 1522.04, and shall also notify the licensee by mail, within 14 days of electronic transmission of the fingerprints to the Department of Justice, if the person has no criminal history recorded. A violation of the regulations adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. The department may assess civil penalties for continued violations as permitted
by Section 1548.
(3)Except for persons specified in subdivision (b) who are exempt from fingerprinting, the licensee shall endeavor to ascertain the previous employment history of persons required to be fingerprinted. If it is determined by the State Department of Social
Services, on the basis of the fingerprint images and related information submitted to the Department of Justice, that subsequent to obtaining a criminal record clearance or exemption from disqualification pursuant to subdivision (g), the person has been convicted of, or is awaiting trial for, a sex offense against a minor, or has been convicted for an offense specified in Section 243.4, 273a, 273ab, 273d, 273g, or 368 of the Penal Code, or a felony, the State Department of Social Services shall notify the licensee to act immediately to terminate the person’s employment, remove the person from the community care facility, or bar the person from entering the community care facility. The State Department of Social Services may subsequently grant an exemption from disqualification pursuant to subdivision (g). If the conviction or arrest was for another crime, except a minor traffic violation,
the licensee shall, upon notification by the State Department of Social Services, act immediately to either (A) terminate the person’s employment, remove the person from the community care facility, or bar the person from entering the community care facility; or (B) seek an exemption from disqualification pursuant to subdivision (g). The State Department of Social Services shall determine if the person shall be allowed to remain in the facility until a decision on the exemption from disqualification is rendered. A licensee’s failure to comply with the department’s prohibition of employment, contact with clients, or presence in the facility as required by this paragraph shall result in a citation of deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day and shall be grounds for disciplining the licensee pursuant to Section
1550.
(4)The department may issue an exemption from disqualification on its own motion pursuant to subdivision (g) if the person’s criminal history indicates that the person is of good character based on the age, seriousness, and frequency of the conviction or convictions. The department, in consultation with interested parties, shall develop regulations to establish the criteria to grant an exemption from disqualification pursuant to this paragraph.
(5)Concurrently with notifying the licensee pursuant to paragraph (3), the department shall notify the affected individual of the right to seek an exemption from disqualification pursuant to subdivision (g). The individual may seek an exemption from disqualification only if the licensee terminates the person’s employment
or removes the person from the facility after receiving notice from the department pursuant to paragraph (3).
(d)(1)Before and, as applicable, subsequent to issuing a license or certificate of approval to any person or persons to operate a foster family home, certified family home as described in Section 1506, or resource family pursuant to Section 1517 of this code or Section 16519.5 of the Welfare and Institutions Code, the State Department of Social Services or other approving authority shall secure California and Federal Bureau of Investigation criminal history information to determine whether the applicant or any person specified in subdivision (b) who is not exempt from fingerprinting has ever been convicted of a crime other than a minor traffic violation or arrested for any crime specified in subdivision (c) of
Section 290 of the Penal Code, for violating Section 245, 273ab, or 273.5, subdivision (b) of Section 273a, or, prior to January 1, 1994, paragraph (2) of Section 273a, of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record exemption pursuant to subdivision (g). The State Department of Social Services or other approving authority shall not issue a license or certificate of approval to any foster family home, certified family home, or resource family applicant who has not obtained both a California and Federal Bureau of Investigation criminal record clearance or exemption from disqualification pursuant to subdivision (g).
(2)The criminal history information shall include the full criminal record, if any, of those persons.
(3)Neither the Department of Justice nor the State Department of Social Services may charge a fee for the fingerprinting of an applicant for a license, special permit, or certificate of approval described in this subdivision. The record, if any, shall be taken into consideration when evaluating a prospective applicant.
(4)The following shall apply to the criminal record information:
(A)If the applicant or other persons specified in subdivision (b) who are not exempt from fingerprinting have convictions that would make the applicant’s home unfit as a foster family home, a certified family home, or resource family, the license, special permit, certificate of approval, or presence shall be denied.
(B)If the State
Department of Social Services finds that the applicant, or any person specified in subdivision (b) who is not exempt from fingerprinting is awaiting trial for a crime other than a minor traffic violation, the State Department of Social Services or other approving authority may cease processing the criminal record information until the conclusion of the trial.
(C)For purposes of this subdivision, a criminal record clearance provided under Section 8712 of the Family Code may be used by the department or other approving authority.
(D)To the same extent required for federal funding, a person specified in subdivision (b) who is not exempt from fingerprinting shall submit a set of fingerprint images and related information to the Department of Justice and the Federal Bureau of Investigation,
through the Department of Justice, for a state and federal level criminal offender record information search, in addition to the criminal records search required by subdivision (a).
(5)Any person specified in this subdivision shall, as a part of the application, be fingerprinted and sign a declaration under penalty of perjury regarding any prior criminal convictions or arrests for any crime against a child, spousal or cohabitant abuse, or any crime for which the department cannot grant an exemption if the person was convicted and shall submit these fingerprints to the licensing agency or other approving authority.
(6)(A)Subsequent to initial licensure, certification, or approval, a person specified in subdivision (b) who is not exempt from fingerprinting
shall obtain both a California and Federal Bureau of Investigation criminal record clearance, or an exemption from disqualification pursuant to subdivision (g), prior to employment, residence, or initial presence in the foster family home, certified family home, or resource family home. A foster family home licensee or foster family agency shall submit fingerprint images and related information of persons specified in subdivision (b) who are not exempt from fingerprinting to the Department of Justice and the Federal Bureau of Investigation, through the Department of Justice, for a state and federal level criminal offender record information search, or to comply with paragraph (1) of subdivision (h). A foster family home licensee’s or a foster family agency’s failure to either prohibit the employment, residence, or initial presence of a person specified in subdivision (b) who is not exempt from
fingerprinting and who has not received either a criminal record clearance or an exemption from disqualification pursuant to subdivision (g), or comply with paragraph (1) of subdivision (h), as required in this section, shall result in a citation of a deficiency, and the immediate civil penalties of one hundred dollars ($100) per violation per day for a maximum of five days, unless the violation is a second or subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the licensee pursuant to Section 1550. A violation of the regulation adopted pursuant to Section 1522.04 shall result in the citation of a deficiency and an immediate assessment of civil penalties in the amount of one hundred dollars ($100) per violation per day for a maximum of five
days, unless the violation is a second or
subsequent violation within a 12-month period in which case the civil penalties shall be in the amount of one hundred dollars ($100) per violation for a maximum of 30 days, and shall be grounds for disciplining the foster family home licensee or the foster family agency pursuant to Section 1550. The State Department of Social Services may assess penalties for continued violations, as permitted by Section 1548. The fingerprint images shall then be submitted to the Department of Justice for processing.
(B)Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the Department of Justice shall verify receipt of the fingerprints. Within five working days of the receipt of the criminal record or information regarding criminal convictions from the Department of Justice, the department shall
notify the applicant of any criminal arrests or convictions. If no arrests or convictions are recorded, the Department of Justice shall provide the foster family home licensee or the foster family agency with a statement of that fact concurrent with providing the information to the State Department of Social Services.
(7)If the State Department of Social Services or other approving authority finds that the applicant, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the application or presence shall be denied, unless the department grants an exemption from disqualification pursuant to subdivision (g).
(8)If the State Department of Social Services or other approving authority
finds, after licensure or the granting of the certificate of approval, that the licensee, certified foster parent, resource family, or any other person specified in subdivision (b) who is not exempt from fingerprinting, has been convicted of a crime other than a minor traffic violation, the license or certificate of approval may be revoked or rescinded by the department or the foster family agency, whichever is applicable, unless the department grants an exemption from disqualification pursuant to subdivision (g). A licensee’s failure to comply with the department’s prohibition of employment, contact with clients, or presence in the facility as required by paragraph (3) of subdivision (c) shall be grounds for disciplining the licensee pursuant to Section 1550.
(e)(1)The State Department of Social Services shall not use a
record of arrest to deny, revoke, rescind, or terminate any application, license, certificate of approval, employment, or residence unless the department investigates the incident and secures evidence, whether or not related to the incident of arrest, that is admissible in an administrative hearing to establish conduct by the person that may pose a risk to the health and safety of any person who is or may become a client.
(2)The department shall not issue a criminal record clearance to a person who has been arrested for any crime specified in Section 290 of the Penal Code, or for violating Section 245, 273ab, or 273.5, or subdivision (b) of Section 273a, of the Penal Code, or, prior to January 1, 1994, paragraph (2) of Section 273a of the Penal Code, or for any crime for which the department is prohibited from granting a criminal record
exemption pursuant to subdivision (g), prior to the completion of an investigation pursuant to paragraph (1).
(3)The State Department of Social Services is authorized to obtain any arrest or conviction records or reports from any law enforcement agency as necessary to the performance of its duties to inspect, license, and investigate community care facilities and
individuals associated with a community care facility.
(f)(1)For purposes of this chapter, a conviction means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action that the State Department of Social Services is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, when the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, notwithstanding a subsequent order pursuant to Sections 1203.4 and 1203.4a of the Penal Code permitting the person to withdraw a plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment. For purposes of this chapter,
the record of a conviction, or a copy thereof certified by the clerk of the court or by a judge of the court in which the conviction occurred, shall be conclusive evidence of the conviction. For purposes of this chapter, the arrest disposition report certified by the Department of Justice, or documents admissible in a criminal action pursuant to Section 969b of the Penal Code, shall be prima facie evidence of the conviction, notwithstanding any other law prohibiting the admission of these documents in a civil or administrative action.
(2)For purposes of this chapter, the department shall consider criminal convictions from another state or federal court as if the criminal offense was committed in this state.
(g)(1)Except as otherwise provided in this subdivision with respect
to a foster care provider applicant, including a relative caregiver, nonrelative extended family member, or resource family, after review of the record, the department may grant an exemption from disqualification for a license or special permit as specified in paragraph (4) of subdivision (a), or for a license, special permit, or certificate of approval as specified in paragraphs (4), (7), and (8) of subdivision (d), or for employment, residence, or presence in a community care facility as specified in paragraphs (3), (4), and (5) of subdivision (c), if the department has substantial and convincing evidence to support a reasonable belief that the applicant and the person convicted of the crime, if other than the applicant, are of good character as to justify issuance of the license or special permit or granting an exemption for purposes of subdivision (c). Except as otherwise provided in this subdivision, an
exemption shall not be granted pursuant to this subdivision if the conviction was for any of the following offenses:
(A)(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in subdivision (c) of Section 667.5 of the Penal Code.
(ii)Notwithstanding clause (i), the department may grant an exemption regarding the conviction for an offense described in paragraph (1), (2), (7), or (8) of subdivision (c) of Section 667.5 of the Penal Code, if the employee or prospective employee has been
rehabilitated as provided in Section 4852.03 of the Penal Code, has maintained the conduct required in Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of the district attorney representing the employee’s county of residence, or if the employee or prospective employee has received a certificate of rehabilitation pursuant to Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.
(B)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(C)(i)Notwithstanding clause (ii) of subparagraph (A), an exemption shall not be granted pursuant to this
subdivision to any applicant for licensure of a community care facility eligible to accept placement of a dependent child if either that applicant or any other person specified in subdivision (b) who is associated with the facility has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime
involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subclause, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A) or subparagraph (B).
(II)A felony conviction for physical assault, battery, or a drug- or alcohol-related offense that occurred within the last five years.
(ii)This subparagraph shall be operative to the extent that compliance with these provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(2)(A)For a foster care provider applicant, a resource family applicant,
or a prospective respite care provider, as described in Section 16501.01 of the Welfare and Institutions Code, an exemption shall not be granted if that applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant, resource family approval, or respite care provider standards, has a conviction for any of the following offenses:
(i)An offense specified in Section 220, 243.4, or 264.1, subdivision (a) of Section 273a, or, prior to January 1, 1994, paragraph (1) of Section 273a, Section 273ab, 273d, 288, or 289, subdivision (c) of Section 290, or Section 368, of the Penal Code, or was a conviction of another crime against an individual specified in
subdivision (c) of Section 667.5 of the Penal Code.
(ii)A felony offense specified in Section 729 of the Business and Professions Code or Section 206 or 215, subdivision (a) of Section 347, subdivision (b) of Section 417, or subdivision (a) of Section 451 of the Penal Code.
(iii)Under no circumstances shall an exemption be granted pursuant to this subdivision to any foster care provider applicant if that applicant, or any other person specified in subdivision (b) in those homes,
has a felony conviction for either of the following offenses:
(I)A felony conviction for child abuse or neglect, spousal abuse, crimes against a child, including child pornography, or for a crime involving violence, including rape, sexual assault, or homicide, but not including other physical assault and battery. For purposes of this subparagraph, a crime involving violence means a violent crime specified in clause (i) of subparagraph (A), or clause (ii) of this subparagraph.
(II)A felony conviction, within the last five years, for physical assault, battery, or a drug- or alcohol-related offense.
(III)This clause shall not apply to licenses or approvals wherein a caregiver was granted an exemption to a criminal
conviction described in clause (i) prior to the enactment of this clause.
(IV)This clause shall remain operative only to the extent that compliance with its provisions is required by federal law as a condition for receiving funding under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.).
(B)The department or other approving entity shall grant an exemption from disqualification to a foster care provider, resource family applicant, or any individual subject to the background check requirements of this section pursuant to foster care provider applicant, resource family approval, or respite care provider standards, if the department or other approving entity has substantial and convincing evidence to support a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant, does not pose a substantial risk of abuse or neglect to children in the person’s care and the conviction is for one of the following offenses:
(i)(I)Any misdemeanor conviction within the last three
years that is not otherwise prohibited by subparagraph (A).
(II)Notwithstanding subparagraph (A), a misdemeanor conviction for statutory rape, as defined in Section 261.5 of the Penal Code, a misdemeanor conviction for indecent exposure, as defined in Section 314 of the Penal Code, or a misdemeanor conviction for financial abuse against an elder, as defined in Section 368 of the Penal Code, shall be eligible for the consideration of an exemption as set forth in subparagraph (C).
(ii)Any felony conviction within the last five years that is not otherwise prohibited by subparagraph (A).
(C)When granting an exemption for a crime listed in subparagraph (B), the department or other approving entity shall consider
all reasonably available information, including, but not limited to, the following:
(i)The nature of the crime or crimes.
(ii)The period of time since the crime was committed.
(iii)The number of offenses.
(iv)Circumstances surrounding the commission of the crime indicating the likelihood of future criminal activity.
(v)Activities since conviction, including employment, participation in therapy, education, or treatment.
(vi)Whether the person convicted has successfully completed probation or
parole.
(vii)Any character references or other evidence submitted by the applicant.
(viii)Whether the person convicted demonstrated honesty and truthfulness concerning the crime or crimes during the application and approval process and made reasonable efforts to assist the department in obtaining records and documents concerning the crime or crimes.
(ix)The existence or absence of peer-reviewed evidence-based research showing that the conviction history demonstrates a proclivity to abuse or neglect children.
(x)Other evidence of the applicant’s or person’s willingness and ability to provide a loving, safe, and stable home for
children.
(xi)If the person is seeking approval as a resource family to provide care to a specific relative child or children, the department or other approving entity shall also consider the wishes of the child or children, the availability of other relative caregivers, and the strength of the existing bond between the person and the child or children.
(D)(i)The department or other approving entity shall grant an exemption from disqualification to a foster care provider applicant, resource family applicant, or any person subject to the background check requirements of this section pursuant to foster care provider applicant, resource family approval, or respite care provider standards, who has been convicted of an offense not listed in subparagraph (A) or
(B), or if the person has been convicted of an offense described in subparagraph (B) that was subsequently dismissed or for which the convicted person obtained a certificate of rehabilitation or pardon, if the individual’s state and federal criminal history information received from the Department of Justice independently supports a reasonable belief that the applicant or the person convicted of the crime, if other than the applicant,
does not pose a substantial risk of abuse or neglect to children in the person’s care.
(ii)Notwithstanding the fact that an individual meets the criteria described in clause (i), the department or other approving entity, at its discretion, as necessary to protect the health and safety of a child, may evaluate a person described in clause (i), for purposes of making an exemption decision, pursuant to the criteria described in subparagraphs (B) and (C).
(E)This paragraph shall not apply to licenses or approvals for which a caregiver was granted an exemption for a criminal conviction prior to January 1, 2018.
(3)The department shall not prohibit a person from being
employed or having contact with clients in a facility, certified family home, or resource family home on the basis of a denied criminal record exemption request or arrest information unless the department complies with the requirements of Section 1558 of this code or Section 16519.6 of the Welfare and Institutions Code, as applicable.
(h)(1)For purposes of compliance with this section, the department may permit an individual to transfer a current criminal record clearance, as defined in subdivision (a), from one facility to another, as long as the criminal record clearance has been processed through a state licensing district office, and is being transferred to another facility licensed by a state licensing district office. The request shall be in writing to the State Department of Social Services,
and shall include a copy of the person’s driver’s license or valid identification card issued by the Department of Motor Vehicles, or a valid photo identification issued by another state or the United States government if the person is not a California resident. Upon request of the licensee, who shall enclose a self-addressed envelope for this purpose, the State Department of Social Services shall verify whether the individual has a clearance that can be transferred.
(2)The State Department of Social Services shall hold criminal record clearances in its active files for a minimum of three years after an employee is no longer employed at a licensed facility in order for the criminal record clearance to be transferred.
(3)A criminal record clearance or exemption processed by the department,
a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority shall be accepted by the department or county upon notification of transfer.
(4)With respect to notifications issued by the Department of Justice pursuant to Section 11105.2 of the Penal Code and Section 1522.1 concerning an individual whose criminal record clearance was originally processed by the department, a county office with clearance and exemption authority pursuant to Section 16519.5 of the Welfare and Institutions Code, or a county office with department-delegated licensing authority, all of the following shall apply:
(A)The Department of Justice shall process a request from the department
or a county to receive the notice only if all of the following conditions are met:
(i)The request shall be submitted to the Department of Justice by the agency to be substituted to receive the notification.
(ii) The request shall be for the same applicant type as the type for which the original clearance was obtained.
(iii)The request shall contain all prescribed data elements and format protocols pursuant to a written agreement between the department and the Department of Justice.
(B)(i)On or before January 7, 2005, the department shall notify the Department of Justice of all county offices that have department-delegated licensing
authority.
(ii)The department shall notify the Department of Justice within 15 calendar days of the date on which a new county office receives department-delegated licensing authority or a county’s delegated licensing authority is rescinded.
(C)The Department of Justice shall charge the department, a county office with department-delegated licensing authority, or a county child welfare agency with criminal record clearance and exemption authority, a fee for each time a request to substitute the recipient agency is received for purposes of this paragraph. This fee shall not exceed the cost of providing the service.
(i)The full criminal record obtained for purposes of this section may be used by the department or by a
licensed adoption agency as a clearance required for adoption purposes.
(j)If a licensee or facility is required by law to deny employment or to terminate employment of any employee based on written notification from the department that the employee has a prior criminal conviction or is determined unsuitable for employment under Section 1558, the licensee or facility shall not incur civil
liability or unemployment insurance liability as a result of that denial or termination.
(k)The State Department of Social Services may charge a reasonable fee for the costs of processing electronic fingerprint images and related information.
(a)Except as provided in subdivision (b), or when the parent has voluntarily relinquished the child and the relinquishment has been filed with the State Department of Social Services, or upon the establishment of an order of guardianship pursuant to Section 360, or when a court adjudicates a petition under Section 329 to modify the court’s jurisdiction from delinquency jurisdiction to dependency jurisdiction pursuant to subparagraph (A) of paragraph (2) of subdivision (b) of Section 607.2 and the parents or guardian of the ward have had reunification services terminated under the delinquency jurisdiction, whenever a child is removed from a parent’s or guardian’s custody, the juvenile court shall order the social worker to provide child
welfare services to the child and the child’s mother and statutorily presumed father or guardians. Upon a finding and declaration of paternity by the juvenile court or proof of a prior declaration of paternity by any court of competent jurisdiction, the juvenile court may order services for the child and the biological father, if the court determines that the services will benefit the child.
(1)Family reunification services, when provided, shall be provided as follows:
(A)Except as otherwise provided in subparagraph (C), for a child who, on the date of initial removal from the physical custody of the child’s parent or guardian, was three years of age or older, court-ordered services shall be provided beginning with the dispositional hearing and ending 12 months after the date the
child entered foster care as provided in Section 361.49, unless the child is returned to the home of the parent or guardian.
(B)For a child who, on the date of initial removal from the physical custody of the child’s parent or guardian, was under three years of age, court-ordered services shall be provided for a period of 6 months from the dispositional hearing as provided in subdivision (e) of Section 366.21, but no longer than 12 months from the date the child entered foster care, as provided in Section 361.49, unless the child is returned to the home of the parent or guardian.
(C)For the purpose of placing and maintaining a sibling group together in a permanent home should reunification efforts fail, for a child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling group was under three years of age on the date of initial removal from the physical custody of the child’s parent or guardian, court-ordered services for some or all of the sibling group may be limited as set forth in subparagraph (B). For the purposes of this paragraph, “a sibling group” shall mean two or more children who are related to each other as full or half siblings.
(2)Any motion to terminate court-ordered reunification services prior to the hearing set pursuant to subdivision (f) of Section 366.21 for a child described by subparagraph (A) of paragraph (1), or prior to the hearing set pursuant to subdivision (e) of Section 366.21 for a child described by subparagraph (B) or (C) of paragraph (1), shall be made pursuant to the requirements set forth in subdivision
(c) of Section 388. A motion to terminate court-ordered reunification services shall not be required at the hearing set pursuant to subdivision (e) of Section 366.21 if the court finds by clear and convincing evidence one of the following:
(A)That the child was removed initially under subdivision (g) of Section 300 and the whereabouts of the parent are still unknown.
(B)That the parent has failed to contact and visit the child.
(C)That the parent has been convicted of a felony indicating parental unfitness.
(3)(A)Notwithstanding subparagraphs (A), (B), and (C) of paragraph (1), court-ordered services may be extended up to a maximum time period
not to exceed 18 months after the date the child was originally removed from physical custody of the child’s parent or guardian if it can be shown, at the hearing held pursuant to subdivision (f) of Section 366.21, that the permanent plan for the child is that the child will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that there is a substantial probability that the child will be returned to the physical custody of the child’s parent or guardian within the extended time period or that reasonable services have not been provided to the parent or guardian. In determining whether court-ordered services may be extended, the court shall consider the special circumstances of an incarcerated or institutionalized parent or parents, parent or parents court-ordered to a residential substance abuse treatment program, or
a parent who has been arrested and issued an immigration hold, detained by the United States Department of Homeland Security, or deported to the parent’s country of origin, including, but not limited to, barriers to the parent’s or guardian’s access to services and ability to maintain contact with their child. The court shall also consider, among other factors, good faith efforts that the parent or guardian has made to maintain contact with the child. If the court extends the time period, the court shall specify the factual basis for its conclusion that there is a substantial probability that the child will be returned to the physical custody of the child’s parent or guardian within the extended time period. The court also shall make findings pursuant to subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
(B)When
counseling or other treatment services are ordered, the parent or guardian shall be ordered to participate in those services, unless the parent’s or guardian’s participation is deemed by the court to be inappropriate or potentially detrimental to the child, or unless a parent or guardian is incarcerated or detained by the United States Department of Homeland Security and the corrections facility in which the parent or guardian is incarcerated does not provide access to the treatment services ordered by the court, or has been deported to their country of origin and services ordered by the court are not accessible in that country. Physical custody of the child by the parents or guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1) shall not serve to interrupt the running of the time period. If at the end of the applicable time period, a child cannot be safely
returned to the care and custody of a parent or guardian without court supervision, but the child clearly desires contact with the parent or guardian, the court shall take the child’s desire into account in devising a permanency plan.
(C)In cases where the child was under three years of age on the date of the initial removal from the physical custody of the child’s parent or guardian or is a member of a sibling group as described in subparagraph (C) of paragraph (1), the court shall inform the parent or guardian that the failure of the parent or guardian to participate regularly in any court-ordered treatment programs or to cooperate or avail themselves of services provided as part of the child welfare services case plan may result in a termination of efforts to reunify the family after six months. The court shall inform the parent or
guardian of the factors used in subdivision (e) of Section 366.21 to determine whether to limit services to six months for some or all members of a sibling group as described in subparagraph (C) of paragraph (1).
(4)(A)Notwithstanding paragraph (3), court-ordered services may be extended up to a maximum time period not to exceed 24 months after the date the child was originally removed from physical custody of the child’s parent or guardian if it is shown, at the hearing held pursuant to subdivision (b) of Section 366.22, that the permanent plan for the child is that the child will be returned and safely maintained in the home within the extended time period. The court shall extend the time period only if it finds that it is in the child’s best interest to have the time period extended and that there is a
substantial probability that the child will be returned to the physical custody of the child’s parent or guardian who is described in subdivision (b) of Section 366.22 within the extended time period, or that reasonable services have not been provided to the parent or guardian. If the court extends the time period, the court shall specify the factual basis for its conclusion that there is a substantial probability that the child will be returned to the physical custody of the child’s parent or guardian within the extended time period. The court also shall make findings pursuant to subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
(B)When counseling or other treatment services are ordered, the parent or guardian shall be ordered to participate in those services, in order for substantial probability to be found. Physical custody
of the child by the parents or guardians during the applicable time period under subparagraph (A), (B), or (C) of paragraph (1) shall not serve to interrupt the running of the time period. If at the end of the applicable time period, the child cannot be safely returned to the care and custody of a parent or guardian without court supervision, but the child clearly desires contact with the parent or guardian, the court shall take the child’s desire into account in devising a permanency plan.
(C)Except in cases where, pursuant to subdivision (b), the court does not order reunification services, the court shall inform the parent or parents of Section 366.26 and shall specify that the parent’s or parents’ parental rights may be terminated.
(b)Reunification services need not be provided to
a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following:
(1)That the whereabouts of the parent or guardian are unknown. A finding pursuant to this paragraph shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate the parent or guardian. The posting or publication of notices is not required in that search.
(2)That the parent or guardian is suffering from a mental disability that is described in Chapter 2 (commencing with Section 7820) of Part 4 of Division 12 of the Family Code and that renders the parent or guardian incapable of utilizing those services.
(3)That the child or a sibling of the child has
been previously adjudicated a dependent pursuant to any subdivision of Section 300 as a result of physical or sexual abuse, that following that adjudication the child had been removed from the custody of the child’s parent or guardian pursuant to Section 361, that the child has been returned to the custody of the parent or guardian from whom the child had been taken originally, and that the child is being removed pursuant to Section 361, due to additional physical or sexual abuse.
(4)That the parent or guardian of the child has caused the death of another child through abuse or neglect.
(5)That the child was brought within the jurisdiction of the court under subdivision (e) of Section 300 because of the conduct of that parent or guardian.
(6)(A)That the child has been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, as defined in this subdivision, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.
(B)A finding of severe sexual abuse, for the purposes of this subdivision, may be based on, but is not limited to, sexual intercourse, or stimulation involving genital-genital, oral-genital, anal-genital, or oral-anal contact, whether between the parent or guardian and the child or a sibling or half sibling of the child, or between the child or
a sibling or half sibling of the child and another person or animal with the actual or implied consent of the parent or guardian; or the penetration or manipulation of the child’s, sibling’s, or half sibling’s genital organs or rectum by any animate or inanimate object for the sexual gratification of the parent or guardian, or for the sexual gratification of another person with the actual or implied consent of the parent or guardian.
(C)A finding of the infliction of severe physical harm, for the purposes of this subdivision, may be based on, but is not limited to, deliberate and serious injury inflicted to or on a child’s body or the body of a sibling or half sibling of the child by an act or omission of the parent or guardian, or of another individual or animal with the consent of the parent or guardian; deliberate and torturous
confinement of the child, sibling, or half sibling in a closed space; or any other torturous act or omission that would be reasonably understood to cause serious emotional damage.
(7)That the parent is not receiving reunification services for a sibling or a half sibling of the child pursuant to paragraph (3), (5), or (6).
(8)That the child was conceived by means of the commission of an offense listed in Section 288 or 288.5 of the Penal Code, or by an act committed outside of this state that, if committed in this state, would constitute one of those offenses. This paragraph only applies to the parent who committed the offense or act.
(9)That the child has been found to be a child described in subdivision (g) of Section
300; that the parent or guardian of the child willfully abandoned the child, and the court finds that the abandonment itself constituted a serious danger to the child; or that the parent or other person having custody of the child voluntarily surrendered physical custody of the child pursuant to Section 1255.7 of the Health and Safety Code. For the purposes of this paragraph, “serious danger” means that without the intervention of another person or agency, the child would have sustained severe or permanent disability, injury, illness, or death. For purposes of this paragraph, “willful abandonment” shall not be construed as actions taken in good faith by the parent without the intent of placing the child in serious danger.
(10)That the court ordered termination of reunification services for any siblings or half siblings of the child because
the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.
(11)That the parental rights of a parent over any sibling or half sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling
or half sibling of that child from the parent.
(12)That the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court’s attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.
(13)(A)That the parent or guardian of the child has advised the court that the parent or guardian is not interested in receiving family maintenance or family reunification services or
having the child returned to or placed in the parent’s or guardian’s custody and does not wish to receive family maintenance or reunification services.
(B)The parent or guardian shall be represented by counsel and shall execute a waiver of services form to be adopted by the Judicial Council. The court shall advise the parent or guardian of any right to services and of the possible consequences of a waiver of services, including the termination of parental rights and placement of the child for adoption. The court shall not accept the waiver of services unless it states on the record its finding that the parent or guardian has knowingly and intelligently waived the right to services.
(14)That the parent or guardian has on one or more occasions willfully abducted the
child or child’s sibling or half sibling from their placement and refused to disclose the child’s or child’s sibling’s or half sibling’s whereabouts, refused to return physical custody of the child or child’s sibling or half sibling to their placement, or refused to return physical custody of the child or child’s sibling or half sibling to the social worker.
(15)That the parent or guardian has been required by the court to be registered on a sex offender registry under the federal Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Sec. 16913(a)), as required in Section 106(b)(2)(B)(xvi)(VI) of the federal Child Abuse Prevention and Treatment Act (42 U.S.C. Sec. 5106a(2)(B)(xvi)(VI)).
(16)That the parent or guardian knowingly participated in, or permitted, the
sexual exploitation, as described in subdivision (c) or (d) of Section 11165.1 of, or subdivision (c) of Section 236.1 of, the Penal Code, of the child. This shall not include instances in which the parent or guardian demonstrated by a preponderance of the evidence that the parent or guardian was coerced into permitting, or participating in, the sexual exploitation of the child.
(c)(1)In deciding whether to order reunification in any case in which this section applies, the court shall hold a dispositional hearing. The social worker shall prepare a report that discusses whether reunification services shall be provided. When it is alleged, pursuant to paragraph (2) of subdivision (b), that the parent is incapable of utilizing services due to mental disability, the court shall order reunification services unless competent evidence
from mental health professionals establishes that, even with the provision of services, the parent is unlikely to be capable of adequately caring for the child within the time limits specified in subdivision (a).
(2)The court shall not order reunification for a parent or guardian described in paragraph (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), or (16) of subdivision (b) unless the court finds, by clear and convincing evidence, that reunification is in the best interest of the child.
(3)In addition, the court shall not order reunification in any situation described in paragraph (5) of subdivision (b) unless it finds that, based on competent evidence, those services are likely to prevent reabuse or continued neglect of the child or that failure to try
reunification will be detrimental to the child because the child is closely and positively attached to that parent. The social worker shall investigate the circumstances leading to the removal of the child and advise the court whether there are circumstances that indicate that reunification is likely to be successful or unsuccessful and whether failure to order reunification is likely to be detrimental to the child.
(4)The failure of the parent to respond to previous services, the fact that the child was abused while the parent was under the influence of drugs or alcohol, a past history of violent behavior, or testimony by a competent professional that the parent’s behavior is unlikely to be changed by services are among the factors indicating that reunification services are unlikely to be successful. The fact that a parent or guardian
is no longer living with an individual who severely abused the child may be considered in deciding that reunification services are likely to be successful, provided that the court shall consider any pattern of behavior on the part of the parent that has exposed the child to repeated abuse.
(d)If reunification services are not ordered pursuant to paragraph (1) of subdivision (b) and the whereabouts of a parent become known within six months of the out-of-home placement of the child, the court shall order the social worker to provide family reunification services in accordance with this subdivision.
(e)(1)If the parent or guardian is incarcerated, institutionalized, or detained by the United States Department of Homeland Security, or has been deported to the parent’s or
guardian’s country of origin, the court shall order reasonable services unless the court determines, by clear and convincing evidence, those services would be detrimental to the child. In determining detriment, the court shall consider the age of the child, the degree of parent-child bonding, the length of the sentence, the length and nature of the treatment, the nature of the crime or illness, the degree of detriment to the child if services are not offered and, for children 10 years of age or older, the child’s attitude toward the implementation of family reunification services, the likelihood of the parent’s discharge from incarceration, institutionalization, or detention within the reunification time limitations described in subdivision (a), and any other appropriate factors. In determining the content of reasonable services, the court shall consider the particular barriers to an incarcerated,
institutionalized, detained, or deported parent’s access to those court-mandated services and ability to maintain contact with the child, and shall document this information in the child’s case plan. Reunification services are subject to the applicable time limitations imposed in subdivision (a). Services may include, but shall not be limited to, all of the following:
(A)Maintaining contact between the parent and child through collect telephone calls.
(B)Transportation services, when appropriate.
(C)Visitation services, when appropriate.
(D)(i)Reasonable services to extended family members or foster parents providing care for
the child if the services are not detrimental to the child.
(ii)An incarcerated or detained parent may be required to attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided. The social worker shall document in the child’s case plan the particular barriers to an incarcerated, institutionalized, or detained parent’s access to those court-mandated services and ability to maintain contact with the child.
(E)Reasonable efforts to assist parents who have been deported to contact child welfare authorities in their country of origin, to identify any available services that would substantially comply with case plan requirements, to document the parents’ participation in those
services, and to accept reports from local child welfare authorities as to the parents’ living situation, progress, and participation in services.
(2)The presiding judge of the juvenile court of each county may convene representatives of the county welfare department, the sheriff’s department, and other appropriate entities for the purpose of developing and entering into protocols for ensuring the notification, transportation, and presence of an incarcerated or institutionalized parent at all court hearings involving proceedings affecting the child pursuant to Section 2625 of the Penal Code. The county welfare department shall utilize the prisoner locator system developed by the Department of Corrections and Rehabilitation to facilitate timely and effective notice of hearings for incarcerated parents.
(3)Notwithstanding any other law, if the incarcerated parent is a woman seeking to participate in the community treatment program operated by the Department of Corrections and Rehabilitation pursuant to Chapter 4.8 (commencing with Section 1174) of Title 7 of Part 2 of, Chapter 4 (commencing with Section 3410) of Title 2 of Part 3 of, the Penal Code, the court shall determine whether the parent’s participation in a program is in the child’s best interest and whether it is suitable to meet the needs of the parent and child.
(f)If the court, pursuant to paragraph (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), or (16) of subdivision (b) or paragraph (1) of subdivision (e), does not order reunification services, it shall, at the dispositional
hearing, that shall include a permanency hearing, determine if a hearing under Section 366.26 shall be set in order to determine whether adoption, guardianship, placement with a fit and willing relative, or another planned permanent living arrangement, or, in the case of an Indian child, in consultation with the child’s tribe, tribal customary adoption, is the most appropriate plan for the child, and shall consider in-state and out-of-state placement options. If the court so determines, it shall conduct the hearing pursuant to Section 366.26 within 120 days after the dispositional hearing. However, the court shall not schedule a hearing so long as the other parent is being provided reunification services pursuant to subdivision (a). The court may continue to permit the parent to visit the child unless it finds that visitation would be detrimental to the child.
(g)(1)Whenever a court orders that a hearing shall be held pursuant to Section 366.26, including, when, in consultation with the child’s tribe, tribal customary adoption is recommended, it shall direct the agency supervising the child and the county adoption agency, or the State Department of Social Services when it is acting as an adoption agency, to prepare an assessment that shall include:
(A)Current search efforts for an absent parent or parents and notification of a noncustodial parent in the manner provided for in Section 291.
(B)A review of the amount of and nature of any contact between the child and the child’s parents and other members of the child’s extended family since the time of placement. Although the extended family of each
child shall be reviewed on a case-by-case basis, “extended family” for the purpose of this subparagraph shall include, but not be limited to, the child’s siblings, grandparents, aunts, and uncles.
(C)(i)An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.
(ii)The evaluation pursuant to clause (i) shall include, but is not limited to, providing a copy of the complete health and education summary as required under Section 16010, including the name and contact information of the person or persons currently holding the right to make educational decisions for the child.
(iii)In instances where it is determined that disclosure pursuant to clause (ii) of
the contact information of the person or persons currently holding the right to make educational decisions for the child poses a threat to the health and safety of that individual or those individuals, that contact information shall be redacted or withheld from the evaluation.
(D)A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, including a prospective tribal customary adoptive parent, particularly the caretaker, to include a social history, including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. If a proposed guardian is a relative of the minor, the assessment shall also consider, but need not be
limited to, all of the factors specified in subdivision (a) of Section 361.3 and in Section 361.4. As used in this subparagraph, “relative” means an adult who is related to the minor 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 those persons even if the marriage was terminated by death or dissolution. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, “relative” as used in this section has the same meaning as “relative” as defined in subdivision (c) of Section 11391.
(E)The
relationship of the child to any identified prospective adoptive parent or guardian, including a prospective tribal customary parent, the duration and character of the relationship, the degree of attachment of the child to the prospective relative guardian or adoptive parent, the relative’s or adoptive parent’s strong commitment to caring permanently for the child, the motivation for seeking adoption or guardianship, a statement from the child concerning placement and the adoption or guardianship, and whether the child over 12 years of age has been consulted about the proposed relative guardianship arrangements, unless the child’s age or physical, emotional, or other condition precludes the child’s meaningful response, and if so, a description of the condition.
(F)An analysis of the likelihood that the child will be adopted if
parental rights are terminated.
(G)In the case of an Indian child, in addition to subparagraphs (A) to (F), inclusive, an assessment of the likelihood that the child will be adopted, when, in consultation with the child’s tribe, a tribal customary adoption, as defined in Section 366.24, is recommended. If tribal customary adoption is recommended, the assessment shall include an analysis of both of the following:
(i)Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that conclusion.
(ii)Whether the Indian child cannot or should not be returned to the home of the Indian parent or Indian custodian and the reasons for reaching that conclusion.
(2)(A)A relative caregiver’s preference for legal guardianship over adoption, if it is due to circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, shall not constitute the sole basis for recommending removal of the child from the relative caregiver for purposes of adoptive placement.
(B)Regardless of a relative caregiver’s immigration status, a relative caregiver shall be given information
regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption. If the proposed permanent plan is guardianship with an approved relative caregiver for a minor eligible for aid under the Kin-GAP Program, as provided for in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9, the relative caregiver shall be informed about the terms and conditions of the negotiated agreement pursuant to Section 11387 and shall agree to its execution prior to the hearing held pursuant to Section 366.26. A copy of the executed negotiated agreement shall be attached to the assessment.
(h)If, at any hearing held pursuant to Section 366.26, a guardianship is established for the minor with an approved
relative caregiver and juvenile court dependency is subsequently dismissed, the minor shall be eligible for aid under the Kin-GAP Program as provided for in Article 4.5 (commencing with Section 11360) or Article 4.7 (commencing with Section 11385), as applicable, of Chapter 2 of Part 3 of Division 9.
(i)In determining whether reunification services will benefit the child pursuant to paragraph (6) or (7) of subdivision (b), the court shall consider any information it deems relevant, including the following factors:
(1)The specific act or omission comprising the severe sexual abuse or the severe physical harm inflicted on the child or the child’s sibling or half sibling.
(2)The circumstances under which the abuse
or harm was inflicted on the child or the child’s sibling or half sibling.
(3)The severity of the emotional trauma suffered by the child or the child’s sibling or half sibling.
(4)Any history of abuse of other children by the offending parent or guardian.
(5)The likelihood that the child may be safely returned to the care of the offending parent or guardian within 12 months with no continuing supervision.
(6)Whether or not the child desires to be reunified with the offending parent or guardian.
(j)When the court determines that reunification services will not be ordered, it shall order that
the child’s caregiver receive the child’s birth certificate in accordance with Sections 16010.4 and 16010.5. Additionally, when the court determines that reunification services will not be ordered, it shall order, when appropriate, that a child who is 16 years of age or older receive the child’s birth certificate.
(k)The court shall read into the record the basis for a finding of severe sexual abuse or the infliction of severe physical harm under paragraph (6) of subdivision (b), and shall also specify the factual findings used to determine that the provision of reunification services to the offending parent or guardian would not benefit the child.
A
(j)This section shall become operative on July 1, 2017.
(D)If a relative has requested that a child be placed with them on an emergency basis pursuant to Section 309, 361.45, or 727.05, but the child has not been placed with the relative because the relative has been convicted of an offense described in subparagraph (B) or (D) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code and the department or the county, as applicable, has either denied an exemption for disqualification or has not rendered a decision on the exemption from disqualification within 90 days after the relative requested the placement, the relative may petition the court to order the department or county to grant
the exemption from disqualification or to order that the child be placed with the relative on an emergency basis pending further review of the request for an exemption from disqualification. Notwithstanding subdivision (b) of Section 361.4 and subdivision (c) of Section 727.05, in order to further the statutory preference for relative placements, the court may order the emergency placement if it is in the best interests of the child.
(a)All hearings 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 resource family hearings 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 resource family hearings 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” shall mean 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)When 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)Nothing in this section shall be construed to 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, a county’s action shall be final, or for matters set before the State Hearings Division, an action
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.
(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 “good cause” 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. The inability of a person to understand an adequate and language-compliant notice, in and of itself, shall not constitute good cause.
(4)This section shall 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.
(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)Upon a finding of
noncompliance, the department may 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. The resource family or applicant shall be afforded the due process provided pursuant to this section.
(1)If the department requires a foster family agency to deny an application or rescind the approval of a resource family, the department shall serve an order of denial or rescission notifying the resource family, applicant, and foster family agency of the basis of the department’s action and of the right to a hearing.
(2)The department’s order of the application denial or rescission of the approval shall remain in
effect until the hearing is completed and the department has made a final determination on the merits.
(3)A foster family agency’s failure to comply with the department’s order to deny an application or rescind the approval of a resource family by placing or retaining a child in care shall be grounds for disciplining the foster family agency pursuant to Section 1550 of the Health and Safety Code.
(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 provided herein 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 action required herein falls on a holiday, then such 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, 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, 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.
(o)(1)If the person is seeking approval as a resource family to provide care to a specific relative child or children, whether or not the child or children have been placed with the applicant on an emergency basis, the person may seek expedited review of a criminal records exemption request or denial if all of the following are true:
(A)The applicant has requested an exemption and the exemption has been denied or no decision has been made on the application.
(B)Ninety days have passed since submission of a completed application requesting an exemption.
(C)Reunification services have not been provided or have been terminated for all parents who are parties to the action.
(2)Within five days of the date the court ordered that reunification services for all parents who are parties to the action not be provided or be terminated, the agency shall notify applicants who are seeking approval as a resource family to provide care to a specific relative child or children and who have pending or denied requests for criminal records exemptions of their right to an expedited appeal and court review pursuant to this subdivision.
(3)An applicant described in paragraph (1) who files an appeal within 10 days of notification under paragraph (2) shall receive an administrative hearing
within 30 days of the filing and the agency shall render a decision within 10 days of the hearing.
(4)If the applicant is not granted an exemption as a result of the administrative hearing described in paragraph (3), the applicant may petition the court for review of the exemption decision within five days of the date the administrative decision was due or issued, whichever is earlier. The court shall hold a hearing within 15 days of the petition being filed. The court may grant the exemption under the standards set forth in paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code. If the court does not grant a criminal records exemption, the applicant may file a petition for a writ of mandate within five days of being served with the court’s ruling and notification of the petition deadline. A decision on the
petition shall be issued at least five days before a scheduled permanency planning hearing to be held pursuant to Section 366.26.