Bill Text

PDF |Add To My Favorites |Track Bill | print page

AB-175 Foster care: rights.(2019-2020)

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 09/11/2019 04:00 AM
AB175:v93#DOCUMENT

Enrolled  September 10, 2019
Passed  IN  Senate  September 04, 2019
Passed  IN  Assembly  September 09, 2019
Amended  IN  Senate  August 30, 2019
Amended  IN  Senate  June 28, 2019
Amended  IN  Senate  June 26, 2019
Amended  IN  Senate  June 03, 2019
Amended  IN  Assembly  February 04, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 175


Introduced by Assembly Member Gipson
(Coauthors: Assembly Members Boerner Horvath, Cristina Garcia, and Rodriguez)
(Coauthor: Senator Wiener)

January 08, 2019


An act to amend Section 1530.91 of the Health and Safety Code, and to amend Section 16164 of, and to repeal and add Section 16001.9 of, the Welfare and Institutions Code, relating to foster care.


LEGISLATIVE COUNSEL'S DIGEST


AB 175, Gipson. Foster care: rights.
Existing law provides for the out-of-home placement, including foster care placement, of children who are unable to remain in the custody and care of their parents, and imposes various requirements on the county child welfare agency in regard to arranging and overseeing the foster care placement. Existing law provides that it is the policy of the state that all minors and nonminors in foster care have specified rights, including, among others, the right to receive medical, dental, vision, and mental health services, the right to be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed in their court or child welfare records, the right to review their own case plan and plan for permanent placement if the child is 12 years of age or older and in a permanent placement, and the right to attend Independent Living Program classes and activities if the child meets applicable age requirements.
This bill would instead require all children and nonminor dependents in foster care to have these rights and would revise various rights, including providing the right to review their own case plan and plan for permanent placement to children 10 years of age or older regardless of whether they are in a permanent placement and the right to not be prevented from attending Independent Living Program classes by the caregiver as a punishment. The bill would include additional rights, including, among others, the right to be referred to by the child’s preferred name and gender pronoun, the right to maintain the privacy of the child’s sexual orientation and gender identity and expression, except as provided, and the right to have reasonable access to computer technology and the internet. To the extent that the bill would impose additional duties on counties, this bill would impose a state-mandated local program.
Existing law establishes the Office of the State Foster Care Ombudsperson within the State Department of Social Services and sets forth the duties of the office, including disseminating information on the services provided by the office and rights of children and youth in foster care, developing standardized information explaining those rights, and compiling and making available to the Legislature all data collected by the office, including specified data regarding complaints made to the office and investigations conducted by the office.
This bill would additionally require the office to provide training and technical assistance to foster youth, social workers, and child welfare organizations, among others, on the rights of children and youth in foster care, reasonable and prudent parent standards, and services provided by the office. The bill would require the office to review amendments to laws applicable to foster youth at the end of every two-year legislative session and determine whether updates to the foster care rights should be recommended in the compilation of data prepared by the office and made available to the Legislature.
Existing law, the California Community Care Facilities Act, provides for the licensing and regulation of community care facilities, including foster family homes and group homes, by the State Department of Social Services. Existing law requires certain community care facilities that provide care to foster children to either provide each schooolage child and the child’s authorized representative with an orientation that includes an explanation of the rights of the child or post a listing of the above-described rights.
This bill would require the department to ensure that those facilities accord children and nonminor dependents in foster care with their personal rights, including the above-described rights. The bill would require the department to adopt regulations to implement these provisions, and would authorize the department to implement these provisions by written directives until regulations are adopted.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 1530.91 of the Health and Safety Code is amended to read:

1530.91.
 (a) Except as provided in subdivision (b), a care provider that provides foster care for children pursuant to this chapter shall provide each schoolage child and the child’s authorized representative, as defined in regulations adopted by the department, who is placed in foster care, with an age and developmentally appropriate orientation that includes an explanation of the rights of the child, as specified in Section 16001.9 of the Welfare and Institutions Code, and addresses the child’s questions and concerns.
(b) Any facility licensed to provide foster care for six or more children pursuant to this chapter shall post a listing of a foster child’s rights specified in Section 16001.9 of the Welfare and Institutions Code, as developed by the Office of the State Foster Care Ombudsperson pursuant to Section 16164 of the Welfare and Institutions Code. The Office of the State Foster Care Ombudsperson shall provide the posters it has designed pursuant to Section 16164 of the Welfare and Institutions Code to each facility subject to this subdivision. The posters shall include the telephone number of the Office of the State Foster Care Ombudsperson.
(c) The department shall ensure that a facility licensed, and a home certified or approved by a foster family agency to provide foster care, pursuant to this chapter shall accord children and nonminor dependents in foster care their personal rights, including, but not limited to, the rights specified in Section 16001.9 of the Welfare and Institutions Code, as applicable. The department shall adopt regulations to implement and enforce this subdivision. Notwithstanding the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), the department may implement and enforce this subdivision by written directives until regulations are adopted.

SEC. 2.

 Section 16001.9 of the Welfare and Institutions Code is repealed.

SEC. 3.

 Section 16001.9 is added to the Welfare and Institutions Code, to read:

16001.9.
 (a) All children placed in foster care, either voluntarily or after being adjudged a ward or dependent of the juvenile court pursuant to Section 300, 601, or 602, shall have the rights specified in this section. These rights also apply to nonminor dependents in foster care, except when they conflict with nonminor dependents’ retention of all their legal decisionmaking authority as an adult. The rights are as follows:
(1) To live in a safe, healthy, and comfortable home where they are treated with respect. If the child is an Indian child, to live in a home that upholds the prevailing social and cultural standards of the child’s Indian community, including, but not limited to, family, social, and political ties.
(2) To be free from physical, sexual, emotional, or other abuse, corporal punishment, and exploitation.
(3) To receive adequate and healthy food, adequate clothing, grooming and hygiene products, and an age-appropriate allowance. Clothing and grooming and hygiene products shall respect the child’s culture, ethnicity, and gender identity and expression.
(4) To be placed in the least restrictive setting possible, regardless of age, physical health, mental health, sexual orientation, and gender identity and expression, juvenile court record, or status as a pregnant or parenting youth, unless a court orders otherwise.
(5) To be placed with a relative or nonrelative extended family member if an appropriate and willing individual is available.
(6) To not be locked in any portion of their foster care placement, unless placed in a community treatment facility.
(7) To have a placement that utilizes trauma-informed and evidence-based deescalation and intervention techniques, to have law enforcement intervention requested only when there is an imminent threat to the life or safety of a child or another person or as a last resort after other diversion and deescalation techniques have been utilized, and to not have law enforcement intervention used as a threat or in retaliation against the child.
(8) To not be detained in a juvenile detention facility based on their status as a dependent of the juvenile court or the child welfare services department’s inability to provide a foster care placement. If they are detained, to have all the rights afforded under the United States Constitution, the California Constitution, and all applicable state and federal laws.
(9) To have storage space for private use.
(10) To be free from unreasonable searches of personal belongings.
(11) To be provided the names and contact information for social workers, probation officers, attorneys, service providers, foster youth advocates and supporters, Court Appointed Special Advocates (CASAs), and education rights holder if other than the parent or parents, and when applicable, representatives designated by the child’s Indian tribe to participate in the juvenile court proceeding, and to communicate with these individuals privately.
(12) To visit and contact siblings, family members, and relatives privately, unless prohibited by court order, and to ask the court for visitation with the child’s siblings.
(13) To make, send, and receive confidential telephone calls and other electronic communications, and to send and receive unopened mail, unless prohibited by court order.
(14) To have social contacts with people outside of the foster care system, including, but not limited to, teachers, coaches, religious or spiritual community members, mentors, and friends. If the child is an Indian child, to have the right to have contact with tribal members and members of their Indian community consistent with the prevailing social and cultural conditions and way of life of the Indian child’s tribe.
(15) To attend religious services, activities, and ceremonies of the child’s choice, including, but not limited to, engaging in traditional Native American religious practices.
(16) To participate in extracurricular, cultural, racial, ethnic, personal enrichment, and social activities, including, but not limited to, access to computer technology and the internet, consistent with the child’s age, maturity, developmental level, sexual orientation, and gender identity and expression.
(17) To have fair and equal access to all available services, placement, care, treatment, and benefits, and to not be subjected to discrimination or harassment on the basis of actual or perceived race, ethnic group identification, ancestry, national origin, color, religion, sex, sexual orientation, gender identity and expression, mental or physical disability, or HIV status.
(18) To have caregivers, child welfare and probation personnel, and legal counsel who have received instruction on cultural competency and sensitivity relating to sexual orientation, gender identity and expression, and best practices for providing adequate care to lesbian, gay, bisexual, and transgender children in out-of-home care.
(19) To be placed in out-of-home care according to their gender identity, regardless of the gender or sex listed in their court, child welfare, medical, or vital records, to be referred to by the child’s preferred name and gender pronoun, and to maintain privacy regarding sexual orientation and gender identity and expression, unless the child permits the information to be disclosed, or disclosure is required to protect their health and safety, or disclosure is compelled by law or a court order.
(20) To have child welfare and probation personnel and legal counsel who have received instruction on the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.) and on cultural competency and sensitivity relating to, and best practices for, providing adequate care to Indian children in out-of-home care.
(21) To have recognition of the child’s political affiliation with an Indian tribe or Alaskan village, including a determination of the child’s membership or citizenship in an Indian tribe or Alaskan village; to receive assistance in becoming a member of an Indian tribe or Alaskan village in which the child is eligible for membership or citizenship; to receive all benefits and privileges that flow from membership or citizenship in an Indian tribe or Alaskan village; and to be free from discrimination based on the child’s political affiliation with an Indian tribe or Alaskan village.
(22) (A) To access and receive medical, dental, vision, mental health, and substance use disorder services, and reproductive and sexual health care, with reasonable promptness that meets the needs of the child, to have diagnoses and services explained in an understandable manner, and to participate in decisions regarding health care treatment and services. This right includes covered gender affirming health care and gender affirming mental health care, and is subject to existing laws governing consent to health care for minors and nonminors and does not limit, add, or otherwise affect applicable laws governing consent to health care.
(B) To view and receive a copy of their medical records to the extent they have the right to consent to the treatment provided in the medical record and at no cost to the child until they are 26 years of age.
(23) Except in an emergency, to be free of the administration of medication or chemical substances, and to be free of all psychotropic medications unless prescribed by a physician, and in the case of children, authorized by a judge, without consequences or retaliation. The child has the right to consult with and be represented by counsel in opposing a request for the administration of psychotropic medication and to provide input to the court about the request to authorize medication. The child also has the right to report to the court the positive and adverse effects of the medication and to request that the court reconsider, revoke, or modify the authorization at any time.
(24) (A) To have access to age-appropriate, medically accurate information about reproductive health care, the prevention of unplanned pregnancy, and the prevention and treatment of sexually transmitted infections.
(B) At any age, to consent to or decline services regarding contraception, pregnancy care, and perinatal care, including, but not limited to, abortion services and health care services for sexual assault without the knowledge or consent of any adult.
(C) At 12 years of age or older, to consent to or decline health care services to prevent, test for, or treat sexually transmitted diseases, including HIV, and mental health services, without the consent or knowledge of any adult.
(25) At 12 years of age or older, to choose, whenever feasible and in accordance with applicable law, their own health care provider for medical, dental, vision, mental health, substance use disorder services, and sexual and reproductive health care, if payment for the service is authorized under applicable federal Medicaid law or other approved insurance, and to communicate with that health care provider regarding any treatment concerns or needs and to request a second opinion before being required to undergo invasive medical, dental, or psychiatric treatment.
(26) To confidentiality of medical and mental health records, including, but not limited to, HIV status, substance use disorder history and treatment, and sexual and reproductive health care, consistent with existing law.
(27) To attend school, to remain in the child’s school of origin, to immediate enrollment upon a change of school, to partial credits for any coursework completed, and to priority enrollment in preschool, afterschool programs, a California State University, and each community college district, and to receive all other necessary educational supports and benefits, as described in the Education Code.
(28) To have access to existing information regarding the educational options available, including, but not limited to, the coursework necessary for career, technical, and postsecondary educational programs, and information regarding financial aid for postsecondary education, and specialized programs for current and former foster children available at the University of California, the California State University, and the California Community Colleges.
(29) To attend Independent Living Program classes and activities, if the child meets the age requirements, and to not be prevented by caregivers from attending as a consequence or punishment.
(30) To maintain a bank account and manage personal income, consistent with the child’s age and developmental level, unless prohibited by the case plan.
(31) To work and develop job skills at an age-appropriate level, consistent with state law.
(32) For children 14 to 17 years of age, inclusive, to receive a consumer credit report provided to the child by the social worker or probation officer on an annual basis from each of the three major credit reporting agencies, and to receive assistance with interpreting and resolving any inaccuracies.
(33) To be represented by an attorney in juvenile court; to have an attorney appointed to advise the court of the child’s wishes, to advocate for the child’s protection, safety, and well-being, and to investigate and report to the court on legal interests beyond the scope of the juvenile proceeding; to speak to the attorney confidentially; and to request a hearing if the child feels their appointed counsel is not acting in their best interest or adequately representing their legal interests.
(34) To receive a notice of court hearings, to attend court hearings, to speak to the judge, to view and receive a copy of the court file, subject to existing federal and state confidentiality laws, and to object to or request the presence of interested persons during court hearings. If the child is an Indian child, to have a representative designated by the child’s Indian tribe be in attendance during hearings.
(35) To the confidentiality of all juvenile court records consistent with existing law.
(36) To view and receive a copy of their child welfare records, juvenile court records, and educational records at no cost to the child until the child is 26 years of age, subject to existing federal and state confidentiality laws.
(37) To be involved in the development of their own case plan, including placement decisions, and plan for permanency. This involvement includes, but is not limited to, the development of case plan elements related to placement and gender affirming health care, with consideration of the child’s gender identity. If the child is an Indian child, the case plan shall include protecting the essential tribal relations and best interests of the Indian child by assisting the child in establishing, developing, and maintaining political, cultural, and social relationships with the child’s Indian tribe and Indian community.
(38) To review the child’s own case plan and plan for permanent placement if the child is 10 years of age or older, and to receive information about their out-of-home placement and case plan, including being told of changes to the plan.
(39) To request and participate in a child and family team meeting, as follows:
(A) Within 60 days of entering foster care, and every 6 months thereafter.
(B) If placed in a short-term residential therapeutic program, or receiving intensive home-based services or intensive case coordination, or receiving therapeutic foster care services, to have a child and family team meeting at least every 90 days.
(C) To request additional child and family team meetings to address concerns, including, but not limited to, placement disruption, change in service needs, addressing barriers to sibling or family visits, and addressing difficulties in coordinating services.
(D) To have both informal and formal support people participate, consistent with state law.
(40) To be informed of these rights in an age and developmentally appropriate manner by the social worker or probation officer and to be provided a copy of the rights in this section at the time of placement, any placement change, and at least once every six months or at the time of a regularly scheduled contact with the social worker or probation officer.
(41) To be provided with contact information for the Community Care Licensing Division of the State Department of Social Services, the tribal authority approving a tribally approved home, and the State Foster Care Ombudsperson, at the time of each placement, and to contact any or all of these offices immediately upon request regarding violations of rights, to speak to representatives of these offices confidentially, and to be free from threats or punishment for making complaints.
(b) The rights described in this section are broad expressions of the rights of children in foster care and are not exhaustive of all rights set forth in the United States Constitution and the California Constitution, federal and California statutes, and case law.
(c) This section does not require, and shall not be interpreted to require, a foster care provider to take any action that would impair the health and safety of children in out-of-home placement.
(d) The State Department of Social Services and each county welfare department are encouraged to work with the Student Aid Commission, the University of California, the California State University, and the California Community Colleges to receive information pursuant to paragraph (28) of subdivision (a).

SEC. 4.

 Section 16164 of the Welfare and Institutions Code is amended to read:

16164.
 (a) The Office of the State Foster Care Ombudsperson shall do all of the following:
(1) (A) Disseminate information and provide training and technical assistance to foster youth, social workers, probation officers, tribes’ child welfare agencies, child welfare organizations, children’s advocacy groups, consumer and service provider organizations, and other interested parties on the rights of children and youth in foster care, reasonable and prudent parent standards, and the services provided by the office. The rights of children and youth in foster care are listed in Section 16001.9. The information shall include methods of contacting the office and notification that conversations with the office may be disclosed to other persons, as necessary to adequately investigate and resolve a complaint.
(B) At the end of every two-year legislative session, review amendments to the laws applicable to foster youth and determine whether updates to the rights listed in Section 16001.9 should be recommended in the compilation prepared pursuant to paragraph (8). The office shall update the standardized information prepared pursuant to paragraph (1) of subdivision (e), and any training materials prepared pursuant to subparagraph (A), in accordance with the legislative review.
(2) Investigate and attempt to resolve complaints made by or on behalf of children placed in foster care, related to their care, placement, or services.
(3) Decide, in its discretion, whether to investigate a complaint, or refer complaints to another agency for investigation.
(4) Upon rendering a decision to investigate a complaint from a complainant, notify the complainant of the intention to investigate. If the office declines to investigate a complaint or continue an investigation, the office shall notify the complainant of the reason for the action of the office.
(5) Update the complainant on the progress of the investigation and notify the complainant of the final outcome.
(6) Document the number, source, origin, location, and nature of complaints.
(7) Receive data from the State Department of Education regarding complaints about foster youth education rights made through the uniform complaint process.
(8) (A) Compile and make available to the Legislature all data collected over the course of the year, including, but not limited to, the number of contacts to the office, the number of complaints made, including the type and source of those complaints, the number of investigations performed by the office, the trends and issues that arose in the course of investigating complaints, the number of referrals made, the number of pending complaints, and a summary of the data received from the State Department of Education pursuant to paragraph (7). The office shall include recommendations consistent with this data for improving the child welfare system.
(B) Present this compiled data, on an annual basis, at appropriate child welfare conferences, forums, and other events, as determined by the department, that may include presentations to, but are not limited to, representatives of the Legislature, the County Welfare Directors Association of California, Chief Probation Officers of California, Indian tribes, child welfare agencies, child welfare organizations, children’s advocacy groups, consumer and service provider organizations, and other interested parties.
(C) It is the intent of the Legislature that representatives of the organizations described in subparagraph (B) consider this data in the development of any recommendations offered toward improving the child welfare system.
(D) The compiled data shall be posted so that it is available to the public on the existing internet website of the office.
(E) Nothing shall preclude the office from issuing data, findings, or reports other than the annual compilation of data described in this paragraph.
(9) Have access to copies of any record of a state or local agency, and contractors with state and local agencies, that is necessary to carry out their responsibilities, and may meet or communicate with any foster child in their placement or elsewhere.
(b) The office may establish, in consultation with a committee of interested individuals, regional or local foster care ombudsperson offices for the purposes of expediting investigations and resolving complaints, subject to appropriations in the annual Budget Act.
(c) Information obtained by the office from a complaint, regardless of whether it is investigated by the office, referred to another entity for investigation, or determined not to be the proper subject of an investigation, shall remain confidential under relevant state and federal confidentiality laws. Disclosure of information shall occur only as necessary to carry out the mission of the office and as permitted by law.
(d) The office shall provide administrative and technical assistance to county, regional, or local foster care ombudsperson’s offices, including, but not limited to, assistance in developing policies and procedures consistent with the policies and procedures used by the office.
(e) (1) The office, in consultation with the County Welfare Directors Association of California, Chief Probation Officers of California, Indian tribes located in the state, foster youth advocate and support groups, groups representing children, families, foster parents, children’s facilities, and other interested parties, shall develop standardized information explaining the rights specified in Section 16001.9. The information shall be developed in an age-appropriate manner, and shall reflect any relevant licensing requirements with respect to foster care providers’ responsibilities to adequately supervise children in care.
(2) The office, counties, foster care providers, and others shall use the information developed in paragraph (1) in carrying out their responsibilities to inform foster children and youth of their rights pursuant to Section 1530.91 of the Health and Safety Code, Sections 27 and 16501.1, and this section.
(3) The office shall measure the distribution of the standardized materials for purposes of evaluating and improving the degree to which foster youth are adequately informed of their rights. This data shall be included in the compilation prepared pursuant to paragraph (8) of subdivision (a).

SEC. 5.

 To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.