Bill Text: CA AB2309 | 2021-2022 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Guardianships.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2022-09-29 - Chaptered by Secretary of State - Chapter 780, Statutes of 2022. [AB2309 Detail]

Download: California-2021-AB2309-Amended.html

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Amended  IN  Assembly  March 14, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 2309

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Introduced by Assembly Member Friedman

February 16, 2022

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An act to amend Sections 328, 360, and 11363 328 and 360 of, and to add Section 361.9 to, the Welfare and Institutions Code, relating to guardianships.

LEGISLATIVE COUNSEL'S DIGEST

AB 2309, as amended, Friedman. Guardianships.

(1) Existing law establishes the jurisdiction of the juvenile court, under which a minor may be adjudged to be a dependent of the court if the minor has been abused or neglected, as specified. Existing law authorizes a juvenile court, if the court finds that a child is abused or neglected, and the parent has advised the court that the parent is not interested in family maintenance or family reunification services, in addition to or in lieu of adjudicating the child a dependent child of the court, to order a legal guardianship and appoint a legal guardian, as specified.

This bill would recast those provisions and would additionally authorize the court, after the court receives and considers the evidence on the proper disposition of the case, to order a legal guardianship and appoint a legal guardian, as specified, if, at any time, the parent advises the court that the parent is not interested in family maintenance or family unification services. Under the bill, if the parent designates a specific person to be the child’s guardian, and the proposed guardian agrees to the appointment of guardianship, the court would be required to appoint the proposed guardian, unless it finds by a preponderance of the evidence that there would be a clear and present threat to the child’s safety, as specified.

(2)Existing law establishes the state-funded Kinship Guardianship Assistance Payment Program (Kin-GAP), which provides aid on behalf of eligible children who are placed in the home of a relative guardian. Existing law requires aid in the form of state-funded Kin-GAP to be provided on behalf of any child under 18 years of age and to any eligible youth under 19 years of age who has had a kinship guardianship established, as described above, and who meets other requirements, including that the child or youth has been adjudicated a dependent child or ward of the juvenile court, has been residing for at least 6 consecutive months in the approved home of the prospective relative guardian, and has had the dependency jurisdiction or wardship terminated, as specified.

This bill would require the state-funded Kin-GAP aid to be provided on behalf of any child under 18 years of age and to any eligible youth under 21 years of age who has had a kinship guardianship established, as described above, and who is not otherwise determined to be eligible for federal Kin-GAP aid. The bill would, for purposes of providing this aid, eliminate the requirements that the child has also been adjudicated a dependent child or ward of the juvenile court, has been residing for at least 6 consecutive months in the approved home of the prospective relative guardian, and has had the dependency jurisdiction or wardship terminated, as specified. By imposing a higher level of service on county officials, the bill would impose a state-mandated local program.

(3)

(2) Existing law requires a social worker who has cause to believe that a child has been abused or neglected to immediately conduct an investigation to determine whether child welfare services should be offered to the family and whether proceedings in the juvenile court should be commenced.

This bill would require the State Department of Social Services to submit a report to the Legislature on or before July 1, 2025, that includes specified data regarding the number of children in the care and custody of all county placing agencies pursuant to a voluntary placement agreement and the number of child welfare agency investigations that resulted in a written plan for care of a child outside the home of the parent that is not a voluntary placement agreement.

(4)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.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

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Bill Text

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

SECTION 1.

 Section 328 of the Welfare and Institutions Code is amended to read:

328.

 (a) If the social worker has cause to believe that there was or is within the county, or residing in the county, a person described in Section 300, the social worker shall immediately make any investigation the social worker deems necessary to determine whether child welfare services should be offered to the family and whether proceedings in the juvenile court should be commenced. If the social worker determines that it is appropriate to offer child welfare services to the family, the social worker shall make a referral to these services pursuant to Chapter 5 (commencing with Section 16500) of Part 4 of Division 9. An inference regarding the credibility of the allegations or the need for child welfare services shall not be drawn from the mere existence of a child custody or visitation dispute.

(1) This subdivision does not require an investigation by the social worker with respect to a child delivered or referred to any agency pursuant to Section 307.5.

(2) The social worker shall interview any child four years of age or older who is a subject of an investigation, and who is in juvenile hall or other custodial facility, or has been removed to a foster home, to ascertain the child’s view of the home environment. If proceedings are commenced, the social worker shall include the substance of the interview in any written report submitted at an adjudicatory hearing, or if no report is then received in evidence, the social worker shall include the substance of the interview in the social study required by Section 358. A referral based on allegations of child abuse from the family court pursuant to Section 3027 of the Family Code shall be investigated to the same extent as any other child abuse allegation.

(b) (1) The State Department of Social Services shall submit a report to the Legislature on or before July 1, 2025, that includes all of the following data, which shall be collected beginning no later than January 1, 2024:

(A) The number of children in the care and custody of all county placing agencies pursuant to a voluntary placement agreement.

(B) The number of child welfare agency investigations that resulted in a written plan for care of a child outside the home of the parent that is not a voluntary placement agreement.

(C) The number of children identified in subparagraphs (A) and (B) for whom a subsequent report is made by child protective services within one year of initial contact with the county agency, including whether the reports were substantiated, unsubstantiated, or inconclusive.

(D) The number of children identified in subparagraphs (A) and (B) for whom a dependency court petition is filed within one year of the initial contact with the county agency.

(2) The department shall stratify the data required pursuant to paragraph (1) by a variety of demographic characteristics, including, at a minimum, by race and income level to the extent allowable to protect confidentiality.

(3) The report shall be submitted to the Legislature in compliance with Section 9795 of the Government Code.

SEC. 2.

 Section 360 of the Welfare and Institutions Code is amended to read:

360.

 After receiving and considering the evidence on the proper disposition of the case, the juvenile court may enter judgment as follows:

(a) (1) Notwithstanding any other law, if, at any time, the parent has advised the court that the parent is not interested in family maintenance or family reunification services, it may, in addition to or in lieu of adjudicating the child a dependent child of the court, order a legal guardianship, appoint a legal guardian, and issue letters of guardianship, if the court determines that a guardianship is in the best interest of the child, provided the parent and the child agree to the guardianship, unless the child’s age or physical, emotional, or mental condition prevents the child’s meaningful response. The court shall advise the parent and the child that reunification services will not be provided as a result of the establishment of a guardianship. The proceeding for the appointment of a guardian shall be in the juvenile court.

(2) If the parent designates a specific person to be the child’s guardian, and the proposed guardian agrees to the appointment of guardianship, the court shall appoint the proposed guardian, unless it finds by a preponderance of the evidence that there would be a clear and present threat to the child’s safety in the guardian’s home.

(3) Any application for termination of guardianship shall be filed in juvenile court in a form as may be developed by the Judicial Council pursuant to Section 68511 of the Government Code. Sections 366.4 and 388 shall apply to this order of guardianship.

(4) A person shall not be appointed a legal guardian under this section until an assessment as specified in subdivision (g) of Section 361.5 is read and considered by the court and reflected in the minutes of the court.

(5) On and after the date that the director executes a declaration pursuant to Section 11217, if the court appoints an approved relative caregiver as the child’s legal guardian, the child has been in the care of that approved relative for a period of six consecutive months under a voluntary placement agreement, and the child otherwise meets the conditions for federal financial participation, the child shall be eligible for aid under the Kin-GAP Program as provided in Article 4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of Division 9. If the court appoints a relative caregiver as the child’s legal guardian and the child is not otherwise determined to be eligible for federal Kin-GAP aid, the child The nonfederally eligible child placed with an approved relative caregiver who is appointed as the child’s legal guardian shall be eligible for aid under the state-funded Kin-GAP Program, as provided for in Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3 of Division 9.

(6) The person responsible for preparing the assessment may be called and examined by any party to the guardianship proceeding.

(b) If the court finds that the child is a person described by Section 300, it may, without adjudicating the child a dependent child of the court, order that services be provided to keep the family together and place the child and the child’s parent or guardian under the supervision of the social worker for a time period consistent with Section 301.

(c) If the family subsequently is unable or unwilling to cooperate with the services being provided, the social worker may file a petition with the juvenile court pursuant to Section 332 alleging that a previous petition has been sustained and that disposition pursuant to subdivision (b) has been ineffective in ameliorating the situation requiring the child welfare services. Upon hearing the petition, the court shall order either that the petition shall be dismissed or that a new disposition hearing shall be held pursuant to subdivision (d).

(d) If the court finds that the child is a person described by Section 300, it may order and adjudge the child to be a dependent child of the court.

SEC. 3.

 Section 361.9 is added to the Welfare and Institutions Code, to read:

361.9.

 (a) The juvenile court may establish a guardianship of the person of any minor who is the subject of a petition filed under Section 300 if the parent has advised the court that the parent is not interested in family maintenance or family reunification services. The hearing on the motion may be held simultaneously with any regularly scheduled hearing held in proceedings to declare the minor a dependent child of the court on the motion of the minor’s attorney or the parent’s attorney. The moving party shall give notice to all of the persons listed in subdivision (a) of Section 294.

(b) The procedures for appointment of a guardian shall be conducted exclusively pursuant to subdivision (a) of Section 360.

(c) The Judicial Council shall develop rules of court and adopt appropriate forms for the findings and orders under this section.

SEC. 4.Section 11363 of the Welfare and Institutions Code is amended to read:

11363.

(a)Aid in the form of state-funded Kin-GAP shall be provided under this article on behalf of any child under 18 years of age and to any eligible youth under 19 years of age, as provided in Section 11403, who satisfies all of the following conditions:

(1)Has been adjudged a dependent child of the juvenile court pursuant to Section 300, or, effective October 1, 2006, a ward of the juvenile court pursuant to Section 601 or 602.

(2)Has been residing for at least six consecutive months in the approved home of the prospective relative guardian while under the jurisdiction of the juvenile court or a voluntary placement agreement.

(3)Has had a kinship guardianship established pursuant to Section 366.26.

(4)Has had their dependency jurisdiction terminated after January 1, 2000, pursuant to Section 366.3, or their wardship terminated pursuant to subdivision (e) of Section 728, concurrently or subsequently to the establishment of the kinship guardianship.

(b)Aid in the form of state-funded Kin-GAP shall be provided under this article on behalf of any child under 18 years of age and to any eligible youth under 21 years of age, as provided in Sections 11403 and 11403.01, who has had a kinship guardianship established pursuant to Section 360, who is not otherwise determined to be eligible for federal Kin-GAP aid.

(c)If the conditions specified in subdivision (a) or (b) are met and, subsequent to the termination of dependency jurisdiction, a parent or person having an interest files with the juvenile court a petition pursuant to Section 388 to change, modify, or set aside an order of the court, Kin-GAP payments shall continue unless and until the juvenile court, after holding a hearing, orders the child removed from the home of the guardian, terminates the guardianship, or maintains dependency jurisdiction after the court concludes the hearing on the petition filed under Section 388.

(d)A child or nonminor former dependent or ward shall be eligible for Kin-GAP payments if the child or nonminor meets one of the following age criteria:

(1)The child is under 18 years of age.

(2)The nonminor is under 21 years of age and has a physical or mental disability that warrants the continuation of assistance.

(3)The child or nonminor satisfies the conditions of Section 11403.01.

(4)The child or nonminor satisfies the conditions as described in subdivision (e).

(e)Commencing January 1, 2012, state-funded Kin-GAP payments shall continue for youths who have attained 18 years of age and who are under 19 years of age, if they reached 16 years of age before the Kin-GAP negotiated agreement payments commenced, and as described in Section 10103.5. Effective January 1, 2013, Kin-GAP payments shall continue for youths who have attained 18 years of age and are under 20 years of age, if they reached 16 years of age before the Kin-GAP negotiated agreement payments commenced, and as described in Section 10103.5. Effective January 1, 2014, Kin-GAP payments shall continue for youths who have attained 18 years of age and are under 21 years of age, if they reached 16 years of age before the Kin-GAP negotiated agreement payments commenced. To be eligible for continued payments, the youth shall satisfy one or more of the conditions specified in paragraphs (1) to (5), inclusive, of subdivision (b) of Section 11403.

(f)(1)Termination of the guardianship with a kinship guardian shall terminate eligibility for Kin-GAP unless the conditions in Section 11403 apply. However, if an alternate guardian or coguardian is appointed pursuant to Section 366.3 who is also a kinship guardian, the alternate or coguardian shall be entitled to receive Kin-GAP on behalf of the child pursuant to this article. A new period of six months of placement with the alternate guardian or coguardian shall not be required if that alternate guardian or coguardian has been assessed pursuant to Section 361.3, subdivision (a) of Section 361.4, and paragraph (2), and the court terminates dependency jurisdiction. If a nonminor former dependent is receiving Kin-GAP after 18 years of age and the nonminor former dependent’s former guardian dies, the nonminor former dependent may petition the court for a hearing pursuant to Section 388.1.

(2)(A)In addition to the state-level criminal records check described in paragraph (2) of subdivision (a) of Section 361.4, the county welfare department shall require each prospective alternate guardian or coguardian, and any other person over 18 years of age living in the home, to be fingerprinted, and shall secure from an appropriate law enforcement agency any criminal record of that person to determine whether the person has ever been convicted of a crime other than a minor traffic violation.

(B)If the criminal records check indicates that the prospective alternate guardian or coguardian has been convicted of an offense described in subparagraph (A) of paragraph (2) of subdivision (g) of Section 1522 of the Health and Safety Code, the case shall not be eligible for Kin-GAP funding.

(C)If the prospective alternate guardian or coguardian has been convicted of a crime other than a minor traffic violation or arrested for an offense specified in subdivision (e) of Section 1522 of the Health and Safety Code, except for the civil penalty language, the criminal background check provisions specified in subdivisions (d) to (g), inclusive, of Section 1522 of the Health and Safety Code shall apply, and an exemption shall be issued prior to issuance of any Kin-GAP funding. Exemptions from the criminal records clearance requirements set forth in this section may be granted by the county using the exemption criteria specified in subdivision (g) of Section 1522 of the Health and Safety Code and any applicable written directives or regulations adopted by the department.

(3)A prospective alternate guardian or coguardian shall not be required to be approved as a resource family pursuant to Section 16519.5 for the sole purpose of receiving Kin-GAP funding on behalf of an eligible child in the care of the prospective alternate guardian or coguardian.

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.