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

California Assembly Bill 2309 (Prior Session Legislation)

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

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

Amended IN Senate June 16, 2022

Amended IN Senate June 02, 2022

Amended IN Assembly March 14, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill

No. 2309

Introduced by Assembly Member Friedman

February 16, 2022

An act to amend Sections 328, 358, and 360 of 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 instead would authorize the court, after the court receives and considers the evidence on the proper disposition of the case, and without making a finding that the child is abused or neglected, to order a legal guardianship and appoint a legal guardian, as specified, if the parent advises the court that the parent is not interested in family maintenance or family unification services. would require the parent to execute a written waiver of family maintenance or family reunification services prior to the court ordering a legal guardianship and appointing a legal guardian under the circumstances described above. Under the bill, if the parent designates a specific person to be the child’s guardian, the ~~child~~ child, or the child’s legal counsel, as specified, does not object to that person’s appointment, and the court finds that the proposed guardian agrees to the appointment as the child’s guardian, as well as all rights and responsibilities of being a legal guardian, the court would be required to appoint the proposed guardian, unless it finds by a preponderance of the evidence that the person’s appointment would be contrary to the best interests of the child.

(2) Existing law requires a court, after finding that a child is abused or neglected, as specified, to hear evidence on the question of the proper disposition to be made of the child. Existing law authorizes the court, prior to making that determination, to continue the hearing on its own motion, the motion of the parent or guardian, or the motion of the child, in accordance with specified time limits depending on the circumstances of the parent or guardian and the child.

This bill would prohibit the court from ordering a continuance, except for the limited purpose of preparing a specified assessment, if the parent has advised the court that ~~the parent is not interested in family maintenance or family reunification services and~~ they wish to proceed with an appointment of a guardian through the process described above, the parent has completed a written waiver of any family maintenance or family reunification services, and the parent wishes to designate a guardian, and if the minor has been placed with the prospective guardian pending disposition. The bill would limit the continuance to 10 20 days.

(3) 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.

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

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, as defined in subdivision (p) of Section 11400.

(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, as described in subparagraph (A).

(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 date of the voluntary placement agreement or written plan for care.

(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 358 of the Welfare and Institutions Code is amended to read:

358.

(a) After finding that a child is a person described in Section 300, the court shall hear evidence on the question of the proper disposition to be made of the child. Prior to making a finding required by this section, the court may continue the hearing on its own motion, the motion of the parent or guardian, or the motion of the child, as follows:

(1) If the child is detained during the continuance, and the social worker is not alleging that subdivision (b) of Section 361.5 is applicable, the continuance shall not exceed 10 judicial days. The court may make an order for detention of the child or for the child’s release from detention, during the period of continuance, as is appropriate.

(2) If the child is not detained during the continuance, the continuance shall not exceed 30 days after the date of the finding pursuant to Section 356. However, the court may, for cause, continue the hearing for an additional 15 days.

(3) If the social worker is alleging that subdivision (b) of Section 361.5 is applicable, the court shall continue the proceedings for a period not to exceed 30 days. The social worker shall notify each parent of the content of subdivision (b) of Section 361.5 and shall inform each parent that if the court does not order reunification a permanency planning hearing will be held, and that their parental rights may be terminated within the timeframes specified by law.

(4) If the parent has advised the court through counsel that ~~the parent is not interested in family maintenance or family reunification services and~~ they will proceed pursuant to subdivision (a) of Section 360, the parent has completed a written waiver of any family maintenance or reunification services, and the parent wishes to designate a guardian pursuant to subdivision (a) of Section 360, and if the minor has been placed with the prospective guardian pending disposition, the court shall not order a continuance except for the limited purpose of preparing an assessment pursuant to subdivision (g) of Section 361.5. A continuance ordered under this paragraph shall not exceed 10 20 days.

(b) (1) Before determining the appropriate disposition, the court shall receive in evidence the social study of the child made by the social worker, any study or evaluation made by a child advocate appointed by the court, and other relevant and material evidence as may be offered, including, but not limited to, the willingness of the caregiver to provide legal permanency for the child if reunification is unsuccessful. In any judgment and order of disposition, the court shall specifically state that the social study made by the social worker and the study or evaluation made by the child advocate appointed by the court, if there be any, has been read and considered by the court in arriving at its judgment and order of disposition. Any social study or report submitted to the court by the social worker shall include the individual child’s case plan developed pursuant to Section 16501.1.

(2) Whenever a child is removed from a parent’s or guardian’s custody, the court shall make a finding as to whether the social worker has exercised due diligence in conducting the investigation, as required pursuant to paragraph (1) of subdivision (e) of Section 309, to identify, locate, and notify the child’s relatives, including both maternal and paternal relatives.

(3) When making the determination required pursuant to paragraph (2), the court may consider, among other examples of due diligence, the extent to which the social worker has complied with paragraph (1) of subdivision (e) of Section 309, and has done any of the following:

(A) Asked the child, in an age-appropriate manner and consistent with the child’s best interest, about their relatives.

(B) Obtained information regarding the location of the child’s relatives.

(D) Telephoned, emailed, or visited all identified relatives.

(E) Asked located relatives for the names and locations of other relatives.

(F) Used internet search tools to locate relatives identified as supports.

(c) If the court finds that a child is described by subdivision (h) of Section 300 or that subdivision (b) of Section 361.5 may be applicable, the court shall conduct the dispositional proceeding pursuant to subdivision (c) of Section 361.5.

(d) (1) The court shall hold a dispositional proceeding for a youth 18 years of age if both of the following requirements are met:

(A) The youth was found to be a minor described in Section 300 at a hearing pursuant to Section 355 prior to the youth attaining 18 years of age, and was continuously detained pursuant to subdivision (c) of Section 319.

(B) The youth has provided informed consent to the dispositional proceeding.

(2) For purposes of this subdivision, the fact that a youth has attained 18 years of age shall not be cause to relieve counsel appointed pursuant to Section 317.

(3) A dispositional proceeding for a youth as described in paragraph (1) shall be held within 30 days of the date of the finding pursuant to Section 355.

(4) At the dispositional proceeding, the court shall determine by clear and convincing evidence if at least one of the conditions described in subdivision (c) of Section 361 existed immediately prior to the youth attaining 18 years of age.

(5) (A) If the youth does not provide informed consent to the dispositional proceeding, or the court does not find the criteria described in paragraph (4), the court shall vacate the temporary orders made under Section 319 and dependency or general jurisdiction shall not be retained.

(B) If the court finds that the youth meets the criteria described in paragraph (4) but chooses not to remain in foster care, the court shall set a hearing for termination of jurisdiction pursuant to Section 391 within 30 days.

(6) For purposes of the definition of “nonminor dependent” pursuant to subdivision (v) of Section 11400, an order for foster care placement made at disposition pursuant to this subdivision shall be treated as though the nonminor attained 18 years of age while under an order of foster care placement by the juvenile court.

(7) Implementation of this subdivision is subject to federal approval of the state plan amendment made under Title IV-E of the federal Social Security Act (42 U.S.C. Sec. 670 et seq.), and shall be operative as of the date of federal approval.

(8) On or before July 1, 2020, the Judicial Council shall amend or adopt rules of court, and shall develop or amend appropriate forms, as necessary to implement this subdivision.

SEC. 3.

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 the court finds that the child is a person described by Section 300 and the parent has advised the court that the parent is not interested in family maintenance or family reunification ~~services, it~~ services and has executed a written waiver of any of those services, the court 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, the child~~ guardian, and the child, or the child’s legal counsel if the child is under 12 years of age, does not object to that person’s appointment, and if the court finds that the proposed guardian agrees to the appointment as the child’s guardian, as well as all the rights and responsibilities of being a legal guardian, the court shall appoint the proposed guardian, unless it finds by a preponderance of the evidence that the person’s appointment would be contrary to the best interests of the child. The assessment under subdivision (g) of Section 361.5 shall be considered in determining the best interest of the child. If the child is an Indian child, as defined in Section 224.1, placement preferences shall be applied according to Section 361.31.

(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. 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.