Bill Text: CA AB2580 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Foster care: placements.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Failed) 2016-11-30 - From Senate committee without further action. [AB2580 Detail]
Download: California-2015-AB2580-Amended.html
Bill Title: Foster care: placements.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Failed) 2016-11-30 - From Senate committee without further action. [AB2580 Detail]
Download: California-2015-AB2580-Amended.html
BILL NUMBER: AB 2580 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 18, 2016
INTRODUCED BY Assembly Member Olsen
FEBRUARY 19, 2016
An act to amend Section 300 of Sections
366.21, 366.22, 366.25, and 366.26 of, and to add Section 398 to,
the Welfare and Institutions Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
AB 2580, as amended, Olsen. Homeless youth: dependency
Dependency proceedings.
Existing law establishes the jurisdiction of the juvenile court,
which may adjudge children to be dependents of the court under
certain circumstances, including when the child suffered or there is
a substantial risk that the child will suffer serious physical harm,
or a parent fails to provide the child with adequate food, clothing,
shelter, or medical treatment. Existing law establishes the grounds
for removal of a dependent child from the custody of his or her
parents or guardian, and establishes procedures to determine
temporary placement of a dependent child, including placement with a
licensed foster family home. Existing law prescribes various
hearings, including specified review hearings, and other procedures
for these purposes. If the court orders the removal of a minor who is
adjudged to be a dependent child of the court, existing law requires
the court to order the care, custody, control, and conduct of the
child to be under the supervision of a social worker who may place
the child in specified settings, including a foster home in which the
child has been placed before an interruption in foster care, if that
placement is in the best interest of the child and space is
available or with a foster family agency to be placed in a suitable
licensed foster family home or certified family home.
The bill would require the social worker, at the time a child is
being considered for placement in a foster home, to provide to a
foster parent or foster parents of the dependent child specified
information, including notification that the foster parent has the
right to be present at the dispositional hearing and at any hearing
thereafter at which the status of the child is at issue. By imposing
additional duties on county welfare agencies, this bill would impose
a state-mandated local program.
If a court orders the removal of a child from the physical custody
of his or her parent, existing law generally requires the court to
order the return of the child to the physical custody of his or her
parent at the review hearings held 6 months, 12 months, 18 months,
and 24 months, respectively, after the initial disposition hearing,
unless the court finds that the return of the child would create a
substantial risk of detriment, or substantial danger, to the safety,
protection, or physical or emotional well-being of the child.
Existing law requires the court to specify the factual basis for its
conclusion that the return of the child would create a substantial
risk of detriment, or substantial danger, to the safety, protection,
or physical or emotional well-being of the child.
This bill would require the court to specify in writing the
factual basis for its conclusions.
If the court determines, based on the assessments provided to the
court, by a clear and convincing standard, that it is likely the
child will be adopted, existing law requires the court to terminate
parental rights and order the child placed for adoption, unless
certain circumstances exist, including that the court finds a
compelling reason for determining that termination would be
detrimental to the child due to one or more specified circumstances.
If the court finds that termination of parental rights would be
detrimental to the child, existing law requires the court to state
its reasons in writing or on the record. Existing law authorizes a
child who has not been adopted after the passage of at least 3 years
from the date the court terminated parental rights and for whom the
court has determined that adoption is no longer the permanent plan to
petition the juvenile court to reinstate parental rights pursuant to
specified procedures. Existing law requires the court to grant the
petition if it finds by clear and convincing evidence that the child
is no longer likely to be adopted and that reinstatement of parental
rights is in the best interests of the child. If the court reinstates
parental rights over a child who is under 12 years of age, existing
law requires the court to specify the factual basis for its
conclusion that it is in the best interest of the child to reinstate
parental rights.
The bill would instead require the court to state its reasons in
writing and on the record if the court finds that termination of
parental rights would be detrimental to the child, and would require
the court to specify in writing the factual basis for its conclusion
that it is in the best interest of the child to reinstate parental
rights if the court finds by clear and convincing evidence that the
child is no longer likely to be adopted.
The bill would make other technical, nonsubstantive changes.
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.
Existing law provides that a child may come within the
jurisdiction of the juvenile court and become a dependent child of
the court in certain cases, including when the child is abused, a
parent or guardian fails to adequately supervise or protect the
child, as specified, or a parent or guardian fails to provide the
child with adequate food, clothing, shelter, or medical treatment.
This bill would make technical, nonsubstantive changes to those
provisions.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 366.21 of the
Welfare and Institutions Code is amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement for six months or longer and individuals who are important
to the child, consistent with the child's best interests; the
progress made; and, where relevant, the prognosis for return of the
child to the physical custody of his or her parent or legal guardian;
and shall make his or her recommendation for disposition. If the
child is a member of a sibling group described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, the report and
recommendation may also take into account those factors described in
subdivision (e) relating to the child's sibling group. If the
recommendation is not to return the child to a parent or legal
guardian, the report shall specify why the return of the child would
be detrimental to the child. The social worker shall provide the
parent or legal guardian, counsel for the child, and any
court-appointed child advocate with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a child removed from the
physical custody of his or her parent or legal guardian, the social
worker shall, at least 10 calendar days prior to the hearing, provide
a summary of his or her recommendation for disposition to any foster
parents, relative caregivers, and certified foster parents who have
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, community care facility, or foster family agency having the
physical custody of the child. The social worker shall include a copy
of the Judicial Council Caregiver Information Form (JV-290) with the
summary of recommendations to the child's foster parents, relative
caregivers, or foster parents approved for adoption, in the caregiver'
s primary language when available, along with information on how to
file the form with the court.
(d) Prior to any hearing involving a child in the physical custody
of a community care facility or a foster family agency that may
result in the return of the child to the physical custody of his or
her parent or legal guardian, or in adoption or the creation of a
legal guardianship, or in the case of an Indian child, in
consultation with the child's tribe, tribal customary adoption, the
facility or agency shall file with the court a report, or a Judicial
Council Caregiver Information Form (JV-290), containing its
recommendation for disposition. Prior to the hearing involving a
child in the physical custody of a foster parent, a relative
caregiver, or a certified foster parent who has been approved for
adoption by the State Department of Social Services when it is acting
as an adoption agency or by a county adoption agency, the foster
parent, relative caregiver, or the certified foster parent who has
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency or by a county adoption
agency, may file with the court a report containing his or her
recommendation for disposition. The court shall consider the report
and recommendation filed pursuant to this subdivision prior to
determining any disposition.
(e) (1) At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the
child entered foster care as determined in Section 361.49, whichever
occurs earlier, after considering the admissible and relevant
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the hearing, the court
shall consider the criminal history, obtained pursuant to paragraph
(1) of subdivision (f) of Section 16504.5, of the parent or legal
guardian subsequent to the child's removal to the extent that the
criminal record is substantially related to the welfare of the child
or the parent's or guardian's ability to exercise custody and control
regarding his or her child, provided the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history
information as part of the case plan. The court shall also consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility shall not be, for that reason alone, prima facie
evidence of detriment. The failure of the parent or legal guardian to
participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would
be detrimental. In making its determination, the court shall review
and consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5; and shall consider the efforts or progress, or
both, demonstrated by the parent or legal guardian and the extent to
which he or she availed himself or herself of services provided,
taking into account the particular barriers to a minor parent or a
nonminor dependent parent, or an incarcerated, institutionalized,
detained, or deported parent's or legal guardian's access to those
court-mandated services and ability to maintain contact with his or
her child.
(2) Regardless of whether the child is returned to a parent or
legal guardian, the court shall specify in writing the
factual basis for its conclusion that the return would be detrimental
or would not be detrimental. The court also shall make appropriate
findings pursuant to subdivision (a) of Section 366; and, where
relevant, shall order any additional services reasonably believed to
facilitate the return of the child to the custody of his or her
parent or legal guardian. The court shall also inform the parent or
legal guardian that if the child cannot be returned home by the
12-month permanency hearing, a proceeding pursuant to Section 366.26
may be instituted. This section does not apply in a case where,
pursuant to Section 361.5, the court has ordered that reunification
services shall not be provided.
(3) If the child was under three years of age on the date of the
initial removal, or is a member of a sibling group described in
subparagraph (C) of paragraph (1) of subdivision (a) of Section
361.5, and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress
in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under three years of age on the date of initial removal or is a
member of a sibling group described in subparagraph (C) of paragraph
(1) of subdivision (a) of Section 361.5, may be returned to his or
her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to
the 12-month permanency hearing. The court shall specify in
writing the factual basis for its conclusion that there is a
substantial probability that the child may be returned to
his or her parent or legal guardian within six months or that
reasonable services have not been provided, justifying continuance to
the 12-month permanency hearing.
(4) For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, shall review and
consider the social worker's report and recommendations. Factors the
report shall address, and the court shall consider, may include, but
need not be limited to, whether the sibling group was removed from
parental care as a group, the closeness and strength of the sibling
bond, the ages of the siblings, the appropriateness of maintaining
the sibling group together, the detriment to the child if sibling
ties are not maintained, the likelihood of finding a permanent home
for the sibling group, whether the sibling group is currently placed
together in a preadoptive home or has a concurrent plan goal of legal
permanency in the same home, the wishes of each child whose age and
physical and emotional condition permits a meaningful response, and
the best interests of each child in the sibling group. The court
shall specify in writing the factual basis for its finding
that it is in the best interests of each child to schedule a hearing
pursuant to Section 366.26 within 120 days for some or all of the
members of the sibling group.
(5) If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. The court shall
take into account any particular barriers to a parent's ability to
maintain contact with his or her child due to the parent's
incarceration, institutionalization, detention by the United States
Department of Homeland Security, or deportation. If the court finds
by clear and convincing evidence that the parent has been convicted
of a felony indicating parental unfitness, the court may schedule a
hearing pursuant to Section 366.26 within 120 days.
(6) If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
(7) In all other cases, the court shall direct that any
reunification services previously ordered shall continue to be
offered to the parent or legal guardian pursuant to the time periods
set forth in subdivision (a) of Section 361.5, provided that the
court may modify the terms and conditions of those services.
(8) If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(f) (1) The permanency hearing shall be held no later than 12
months after the date the child entered foster care, as that date is
determined pursuant to Section 361.49. At the permanency hearing, the
court shall determine the permanent plan for the child, which shall
include a determination of whether the child will be returned to the
child's home and, if so, when, within the time limits of subdivision
(a) of Section 361.5. After considering the relevant and admissible
evidence, the court shall order the return of the child to the
physical custody of his or her parent or legal guardian unless the
court finds, by a preponderance of the evidence, that the return of
the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment.
(A) At the permanency hearing, the court shall consider the
criminal history, obtained pursuant to paragraph (1) of subdivision
(f) of Section 16504.5, of the parent or legal guardian subsequent to
the child's removal to the extent that the criminal record is
substantially related to the welfare of the child or the parent's or
legal guardian's ability to exercise custody and control regarding
his or her child, provided that the parent or legal guardian agreed
to submit fingerprint images to obtain criminal history information
as part of the case plan. The court shall also determine whether
reasonable services that were designed to aid the parent or legal
guardian to overcome the problems that led to the initial removal and
continued custody of the child have been provided or offered to the
parent or legal guardian.
(B) The court shall also consider whether the child can be
returned to the custody of his or her parent who is enrolled in a
certified substance abuse treatment facility that allows a dependent
child to reside with his or her parent. The fact that the parent is
enrolled in a certified substance abuse treatment facility shall not
be, for that reason alone, prima facie evidence of detriment. The
failure of the parent or legal guardian to participate regularly and
make substantive progress in court-ordered treatment programs shall
be prima facie evidence that return would be detrimental.
(C) In making its determination, the court shall review and
consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5, shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which
he or she availed himself or herself of services provided, taking
into account the particular barriers to a minor parent or a nonminor
dependent parent, or an incarcerated, institutionalized, detained, or
deported parent's or legal guardian's access to those court-mandated
services and ability to maintain contact with his or her child, and
shall make appropriate findings pursuant to subdivision (a) of
Section 366.
(D) For each youth 16 years of age and older, the court shall also
determine whether services have been made available to assist him or
her in making the transition from foster care to successful
adulthood.
(2) Regardless of whether the child is returned to his or her
parent or legal guardian, the court shall specify the factual basis
for its decision. If the child is not returned to a parent or legal
guardian, the court shall specify in writing the factual
basis for its conclusion that the return would be detrimental. The
court also shall make a finding pursuant to subdivision (a) of
Section 366. If the child is not returned to his or her parent or
legal guardian, the court shall consider, and state for the record,
in-state and out-of-state placement options. If the child is placed
out of the state, the court shall make a determination whether the
out-of-state placement continues to be appropriate and in the best
interests of the child.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of
Section 361.5, as appropriate, and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For
(i) For purposes of this subdivision, the court's decision to
continue the case based on a finding or substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian is a compelling reason for determining that
a hearing held pursuant to Section 366.26 is not in the best
interests of the child.
(ii) The court shall inform the parent or legal guardian that if
the child cannot be returned home by the next permanency review
hearing, a proceeding pursuant to Section 366.26 may be instituted.
The court shall not order that a hearing pursuant to Section 366.26
be held unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian, if the parent has been arrested
and issued an immigration hold, detained by the United States
Department of Homeland Security, or deported to his or her country of
origin, and the court determines either that there is a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time or that reasonable services
have not been provided to the parent or legal guardian.
(3) For purposes of paragraph (2), in order to find a substantial
probability that the child will be returned to the physical custody
of his or her parent or legal guardian and safely maintained in the
home within the extended period of time, the court shall find all of
the following:
(A) The parent or legal guardian has consistently and regularly
contacted and visited with the child, taking into account any
particular barriers to a parent's ability to maintain contact with
his or her child due to the parent's arrest and receipt of an
immigration hold, detention by the United States Department of
Homeland Security, or deportation.
(B) The parent or legal guardian has made significant progress in
resolving the problems that led to the child's removal from the home.
(C) The parent or legal guardian has demonstrated the capacity or
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
(4) Order that a hearing be held within 120 days, pursuant to
Section 366.26, but only if the court does not continue the case to
the permanency planning review hearing and there is clear and
convincing evidence that reasonable services have been provided or
offered to the parents or legal guardians. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child and tribal customary adoption is recommended as the
permanent plan.
(5) Order that the child remain in foster care, but only if the
court finds by clear and convincing evidence, based upon the evidence
already presented to it, including a recommendation by the State
Department of Social Services when it is acting as an adoption agency
or by a county adoption agency, that there is a compelling reason
for determining that a hearing held pursuant to Section 366.26 is not
in the best interests of the child because the child is not a proper
subject for adoption and has no one willing to accept legal
guardianship as of the hearing date. For purposes of this section, a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency that
adoption is not in the best interests of the child shall constitute a
compelling reason for the court's determination. That recommendation
shall be based on the present circumstances of the child and shall
not preclude a different recommendation at a later date if the child'
s circumstances change. On and after January 1, 2012, the nonminor
dependent's legal status as an adult is in and of itself a compelling
reason not to hold a hearing pursuant to Section 366.26. The court
may order that a nonminor dependent who otherwise is eligible
pursuant to Section 11403 remain in a planned, permanent living
arrangement.
(A) The court shall make factual findings identifying any barriers
to achieving the permanent plan as of the hearing date. When the
child is under 16 years of age, the court shall order a permanent
plan of return home, adoption, tribal customary adoption in the case
of an Indian child, legal guardianship, or placement with a fit and
willing relative, as appropriate. When the child is 16 years of age
or older, or is a nonminor dependent, and no other permanent plan is
appropriate at the time of the hearing, the court may order another
planned permanent living arrangement, as described in paragraph (2)
of subdivision (i) of Section 16501.
(B) If the court orders that a child who is 10 years of age or
older remain in foster care, the court shall determine whether the
agency has made reasonable efforts to maintain the child's
relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained.
(C) If the child is not returned to his or her parent or legal
guardian, the court shall consider, and state for the record,
in-state and out-of-state options for permanent placement. If the
child is placed out of the state, the court shall make a
determination whether the out-of-state placement continues to be
appropriate and in the best interests of the child.
(h) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the child's siblings, who are important to
the child, consistent with the child's best interests. When the court
orders a termination of reunification services to the parent or
legal guardian, it shall also 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 orders a
termination of reunification services to the parent or legal
guardian, it shall order, when appropriate, that a child who is 16
years of age or older receive his or her birth certificate.
(i) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including, when, in consultation with the child's tribe,
tribal customary adoption is recommended, shall be held, 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 or
legal guardians.
(B) A review of the amount of and nature of any contact between
the child and his or her parents or legal guardians and other members
of his or her 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) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
including the 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.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, 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,
if 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 his or her
meaningful response, and if so, a description of the condition.
(F) A description of efforts to be made to identify a prospective
adoptive parent or legal guardian, including, but not limited to,
child-specific recruitment and listing on an adoption exchange within
the state or out of the state.
(G) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(H) In the case of an Indian child, in addition to subparagraphs
(A) to (G), 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 his or her 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.
(j) 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.
(k) As used in this section, "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.
(l) For purposes of this section, evidence of any of the following
circumstances shall not, in and of itself, be deemed a failure to
provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
SEC. 2. Section 366.22 of the Welfare
and Institutions Code is amended to read:
366.22. (a) (1) When If a case has
been continued pursuant to paragraph (1) or (2) of subdivision (g) of
Section 366.21, the permanency review hearing shall occur within 18
months after the date the child was originally removed from the
physical custody of his or her parent or legal guardian. After
considering the admissible and relevant evidence, the court shall
order the return of the child to the physical custody of his or her
parent or legal guardian unless the court finds, by a preponderance
of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child.
The social worker shall have the burden of establishing that
detriment. At the permanency review hearing, the court shall consider
the criminal history, obtained pursuant to paragraph (1) of
subdivision (f) of Section 16504.5, of the parent or legal guardian
subsequent to the child's removal, to the extent that the criminal
record is substantially related to the welfare of the child or the
parent's or legal guardian's ability to exercise custody and control
regarding his or her child, provided that the parent or legal
guardian agreed to submit fingerprint images to obtain criminal
history information as part of the case plan. The court shall also
consider whether the child can be returned to the custody of his or
her parent who is enrolled in a certified substance abuse treatment
facility that allows a dependent child to reside with his or her
parent. The fact that the parent is enrolled in a certified substance
abuse treatment facility shall not be, for that reason alone, prima
facie evidence of detriment. The failure of the parent or legal
guardian to participate regularly and make substantive progress in
court-ordered treatment programs shall be prima facie evidence that
return would be detrimental. In making its determination, the court
shall review and consider the social worker's report and
recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5; shall consider the
efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or herself
of services provided, taking into account the particular barriers of
a minor parent or a nonminor dependent parent, or an incarcerated or
institutionalized parent's or legal guardian's access to those
court-mandated services and ability to maintain contact with his or
her child; and shall make appropriate findings pursuant to
subdivision (a) of Section 366.
(2) Whether or not the child is returned to his or her parent or
legal guardian, the court shall specify in writing the
factual basis for its decision. If the child is not returned to a
parent or legal guardian, the court shall specify the factual basis
for its conclusion that return would be detrimental. If the child is
not returned to his or her parent or legal guardian, the court shall
consider, and state for the record, in-state and out-of-state options
for the child's permanent placement. If the child is placed out of
the state, the court shall make a determination whether the
out-of-state placement continues to be appropriate and in the best
interests of the child.
(3) Unless the conditions in subdivision (b) are met and the child
is not returned to a parent or legal guardian at the permanency
review hearing, the court shall order that a hearing be held pursuant
to Section 366.26 in order to determine whether adoption, or, in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, guardianship, or continued placement in
foster care is the most appropriate plan for the child. On and after
January 1, 2012, a hearing pursuant to Section 366.26 shall not be
ordered if the child is a nonminor dependent, unless the nonminor
dependent is an Indian child, and tribal customary adoption is
recommended as the permanent plan. However, if the court finds by
clear and convincing evidence, based on the evidence already
presented to it, including a recommendation by the State Department
of Social Services when it is acting as an adoption agency or by a
county adoption agency, that there is a compelling reason, as
described in paragraph (5) of subdivision (g) of Section 366.21, for
determining that a hearing held under Section 366.26 is not in the
best interests of the child because the child is not a proper subject
for adoption and has no one willing to accept legal guardianship as
of the hearing date, the court may, only under these circumstances,
order that the child remain in foster care with a permanent plan of
return home, adoption, tribal customary adoption in the case of an
Indian child, legal guardianship, or placement with a fit and willing
relative, as appropriate. If the child is 16 years of age or older
or is a nonminor dependent, and no other permanent plan is
appropriate at the time of the hearing, the court may order another
planned permanent living arrangement, as described in paragraph (2)
of subdivision (i) of Section 16501. The court shall make factual
findings identifying any barriers to achieving the permanent plan as
of the hearing date. On and after January 1, 2012, the nonminor
dependent's legal status as an adult is in and of itself a compelling
reason not to hold a hearing pursuant to Section 366.26. The court
may order that a nonminor dependent who otherwise is eligible
pursuant to Section 11403 remain in a planned, permanent living
arrangement. If the court orders that a child who is 10 years of age
or older remain in foster care, the court shall determine whether the
agency has made reasonable efforts to maintain the child's
relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained. The hearing shall be held no later than
120 days from the date of the permanency review hearing. The court
shall also order termination of reunification services to the parent
or legal guardian. The court shall continue to permit the parent or
legal guardian to visit the child unless it finds that visitation
would be detrimental to the child. The court shall determine whether
reasonable services have been offered or provided to the parent or
legal guardian. For purposes of this subdivision, evidence of any of
the following circumstances shall not, in and of themselves, be
deemed a failure to provide or offer reasonable services:
(A) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(B) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(C) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) (1) If the child is not returned to a
parent or legal guardian at the permanency review hearing and the
court determines by clear and convincing evidence that the best
interests of the child would be met by the provision of additional
reunification services to a parent or legal guardian who is making
significant and consistent progress in a court-ordered residential
substance abuse treatment program, a parent who was either a minor
parent or a nonminor dependent parent at the time of the initial
hearing making significant and consistent progress in establishing a
safe home for the child's return, or a parent recently discharged
from incarceration, institutionalization, or the custody of the
United States Department of Homeland Security and making significant
and consistent progress in establishing a safe home for the child's
return, the court may continue the case for up to six months for a
subsequent permanency review hearing, provided that the hearing shall
occur within 24 months of the date the child was originally taken
from the physical custody of his or her parent or legal guardian. The
court shall continue the case only if it finds that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or legal guardian and safely
maintained in the home within the extended period of time or that
reasonable services have not been provided to the parent or legal
guardian. For the purposes of this section, in order to find a
substantial probability that the child will be returned to the
physical custody of his or her parent or legal guardian and safely
maintained in the home within the extended period of time, the court
shall be required to find all of the following:
(1)
( A) That the parent or legal guardian has
consistently and regularly contacted and visited with the child.
(2)
( B) That the parent or legal guardian has
made significant and consistent progress in the prior 18 months in
resolving problems that led to the child's removal from the home.
(3)
( C) The parent or legal guardian has
demonstrated the capacity and ability both to complete the objectives
of his or her substance abuse treatment plan as evidenced by reports
from a substance abuse provider as applicable, or complete a
treatment plan postdischarge from incarceration,
institutionalization, or detention, or following deportation to his
or her country of origin and his or her return to the United States,
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For
(2) For purposes of this
subdivision, the court's decision to continue the case based on a
finding or substantial probability that the child will be returned to
the physical custody of his or her parent or legal guardian is a
compelling reason for determining that a hearing held pursuant to
Section 366.26 is not in the best interests of the child.
The
(3) The court shall inform the
parent or legal guardian that if the child cannot be returned home by
the subsequent permanency review hearing, a proceeding pursuant to
Section 366.26 may be instituted. The court shall not order that a
hearing pursuant to Section 366.26 be held unless there is clear and
convincing evidence that reasonable services have been provided or
offered to the parent or legal guardian.
(c) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including when a tribal customary adoption is recommended,
shall be held, 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.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
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 purposes of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
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 legal 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 Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, 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 legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if 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 his or her 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 his or her 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.
(d) This section shall become operative January 1, 1999.
If at any hearing held pursuant to Section 366.26, a legal
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.
(e) As used in this section, "relative" means an adult who is
related to the child 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.
SEC. 3. Section 366.25 of the Welfare
and Institutions Code is amended to read:
366.25. (a) (1) When If a case has
been continued pursuant to subdivision (b) of Section 366.22, the
subsequent permanency review hearing shall occur within 24 months
after the date the child was originally removed from the physical
custody of his or her parent or legal guardian. After considering the
relevant and admissible evidence, the court shall order the return
of the child to the physical custody of his or her parent or legal
guardian unless the court finds, by a preponderance of the evidence,
that the return of the child to his or her parent or legal guardian
would create a substantial risk of detriment to the safety,
protection, or physical or emotional well-being of the child. The
social worker shall have the burden of establishing that detriment.
At the subsequent permanency review hearing, the court shall consider
the criminal history, obtained pursuant to paragraph (1) of
subdivision (f) of Section 16504.5, of the parent or legal guardian
subsequent to the child's removal to the extent that the criminal
record is substantially related to the welfare of the child or parent'
s or legal guardian's ability to exercise custody and control
regarding his or her child provided that the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history
information as part of the case plan. The court shall also consider
whether the child can be returned to the custody of a parent who is
enrolled in a certified substance abuse treatment facility that
allows a dependent child to reside with his or her parent. The fact
that the parent is enrolled in a certified substance abuse treatment
facility shall not be, for that reason alone, prima facie evidence of
detriment. The failure of the parent or legal guardian to
participate regularly and make substantive progress in court-ordered
treatment programs shall be prima facie evidence that return would be
detrimental. In making its determination, the court shall review and
consider the social worker's report and recommendations and the
report and recommendations of any child advocate appointed pursuant
to Section 356.5; shall consider the efforts or progress, or both,
demonstrated by the parent or legal guardian and the extent to which
he or she availed himself or herself of services provided; and shall
make appropriate findings pursuant to subdivision (a) of Section 366.
(2) Whether or not the child is returned to his or her parent or
legal guardian, the court shall specify in writing the
factual basis for its decision. If the child is not returned to a
parent or legal guardian, the court shall specify the factual basis
for its conclusion that return would be detrimental. If the child is
not returned to his or her parent or legal guardian, the court shall
consider and state for the record, in-state and out-of-state options
for the child's permanent placement. If the child is placed out of
the state, the court shall make a determination whether the
out-of-state placement continues to be appropriate and in the best
interests of the child.
(3) If the child is not returned to a parent or legal guardian at
the subsequent permanency review hearing, the court shall order that
a hearing be held pursuant to Section 366.26 in order to determine
whether adoption, or, in the case of an Indian child, tribal
customary adoption, guardianship, or, in the case of a child 16 years
of age or older when no other permanent plan is appropriate, another
planned permanent living arrangement is the most appropriate plan
for the child. On and after January 1, 2012, a hearing pursuant to
Section 366.26 shall not be ordered if the child is a nonminor
dependent, unless the nonminor dependent is an Indian child and
tribal customary adoption is recommended as the permanent plan.
However, if the court finds by clear and convincing evidence, based
on the evidence already presented to it, including a recommendation
by the State Department of Social Services when it is acting as an
adoption agency or by a county adoption agency, that there is a
compelling reason, as described in paragraph (5) of subdivision (g)
of Section 366.21, for determining that a hearing held under Section
366.26 is not in the best interest of the child because the child is
not a proper subject for adoption or, in the case of an Indian child,
tribal customary adoption, and has no one willing to accept legal
guardianship as of the hearing date, then the court may, only under
these circumstances, order that the child remain in foster care with
a permanent plan of return home, adoption, tribal customary adoption
in the case of an Indian child, legal guardianship, or placement with
a fit and willing relative, as appropriate. If the child is 16 years
of age or older or is a nonminor dependent, and no other permanent
plan is appropriate at the time of the hearing, the court may order
another planned permanent living arrangement, as described in
paragraph (2) of subdivision (i) of Section 16501. The court shall
make factual findings identifying any barriers to achieving the
permanent plan as of the hearing date. On and after January 1, 2012,
the nonminor dependent's legal status as an adult is in and of itself
a compelling reason not to hold a hearing pursuant to Section
366.26. The court may order that a nonminor dependent who otherwise
is eligible pursuant to Section 11403 remain in a planned, permanent
living arrangement. If the court orders that a child who is 10 years
of age or older remain in foster care, the court shall determine
whether the agency has made reasonable efforts to maintain the child'
s relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained. The hearing shall be held no later than
120 days from the date of the subsequent permanency review hearing.
The court shall also order termination of reunification services to
the parent or legal guardian. The court shall continue to permit the
parent or legal guardian to visit the child unless it finds that
visitation would be detrimental to the child. The court shall
determine whether reasonable services have been offered or provided
to the parent or legal guardian. For purposes of this paragraph,
evidence of any of the following circumstances shall not, in and of
themselves, be deemed a failure to provide or offer reasonable
services:
(A) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(B) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(C) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(b) (1) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, 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.
(B) A review of the amount of, and nature of, any contact between
the child and his or her parents and other members of his or her
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 purposes of this paragraph shall include,
but not be limited to, the child's siblings, grandparents, aunts, and
uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal 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 legal 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.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, including a prospective tribal
customary adoptive 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 legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if 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 his or her 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 his or her 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.
(c) 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.
(d) As used in this section, "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 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.
SEC. 4. Section 366.26 of the Welfare
and Institutions Code is amended to read:
366.26. (a) This section applies to children who are adjudged
dependent children of the juvenile court pursuant to subdivision (d)
of Section 360. The procedures specified herein are the exclusive
procedures for conducting these hearings; Part 2 (commencing with
Section 3020) of Division 8 of the Family Code is not applicable to
these proceedings. Section 8616.5 of the Family Code is applicable
and available to all dependent children meeting the requirements of
that section, if the postadoption contact agreement has been entered
into voluntarily. For children who are adjudged dependent children of
the juvenile court pursuant to subdivision (d) of Section 360, this
section and Sections 8604, 8605, 8606, and 8700 of the Family Code
and Chapter 5 (commencing with Section 7660) of Part 3 of Division 12
of the Family Code specify the exclusive procedures for permanently
terminating parental rights with regard to, or establishing legal
guardianship of, the child while the child is a dependent child of
the juvenile court.
(b) At the hearing, which shall be held in juvenile court for all
children who are dependents of the juvenile court, the court, in
order to provide stable, permanent homes for these children, shall
review the report as specified in Section 361.5, 366.21, 366.22, or
366.25, shall indicate that the court has read and considered it,
shall receive other evidence that the parties may present, and then
shall make findings and orders in the following order of preference:
(1) Terminate the rights of the parent or parents and order that
the child be placed for adoption and, upon the filing of a petition
for adoption in the juvenile court, order that a hearing be set. The
court shall proceed with the adoption after the appellate rights of
the natural parents have been exhausted.
(2) Order, without termination of parental rights, the plan of
tribal customary adoption, as described in Section 366.24, through
tribal custom, traditions, or law of the Indian child's tribe, and
upon the court affording the tribal customary adoption order full
faith and credit at the continued selection and implementation
hearing, order that a hearing be set pursuant to paragraph (2) of
subdivision (e).
(3) Appoint a relative or relatives with whom the child is
currently residing as legal guardian or guardians for the child, and
order that letters of guardianship issue.
(4) On making a finding under paragraph (3) of subdivision (c),
identify adoption or tribal customary adoption as the permanent
placement goal and order that efforts be made to locate an
appropriate adoptive family for the child within a period not to
exceed 180 days.
(5) Appoint a nonrelative legal guardian for the child and order
that letters of guardianship issue.
(6) Order that the child be permanently placed with a fit and
willing relative, subject to the periodic review of the juvenile
court under Section 366.3.
(7) Order that the child remain in foster care, subject to the
conditions described in paragraph (4) of subdivision (c) and the
periodic review of the juvenile court under Section 366.3.
In choosing among the above alternatives the court shall proceed
pursuant to subdivision (c).
(c) (1) If the court determines, based on the assessment provided
as ordered under subdivision (i) of Section 366.21, subdivision (b)
of Section 366.22, or subdivision (b) of Section 366.25, and any
other relevant evidence, by a clear and convincing standard, that it
is likely the child will be adopted, the court shall terminate
parental rights and order the child placed for adoption. The fact
that the child is not yet placed in a preadoptive home nor with a
relative or foster family who is prepared to adopt the child, shall
not constitute a basis for the court to conclude that it is not
likely the child will be adopted. A finding under subdivision (b) or
paragraph (1) of subdivision (e) of Section 361.5 that reunification
services shall not be offered, under subdivision (e) of Section
366.21 that the whereabouts of a parent have been unknown for six
months or that the parent has failed to visit or contact the child
for six months, or that the parent has been convicted of a felony
indicating parental unfitness, or, under Section 366.21 or 366.22,
that the court has continued to remove the child from the custody of
the parent or guardian and has terminated reunification services,
shall constitute a sufficient basis for termination of parental
rights. Under these circumstances, the court shall terminate parental
rights unless either of the following applies:
(A) The child is living with a relative who is unable or unwilling
to adopt the child because of circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, but who is willing and capable of providing the child with a
stable and permanent environment through legal guardianship, and the
removal of the child from the custody of his or her relative would be
detrimental to the emotional well-being of the child. For purposes
of an Indian child, "relative" shall include an "extended family
member," as defined in the federal Indian Child Welfare Act of 1978
(25 U.S.C. Sec. 1903(2)).
(B) The court finds a compelling reason for determining that
termination would be detrimental to the child due to one or more of
the following circumstances:
(i) The parents have maintained regular visitation and contact
with the child and the child would benefit from continuing the
relationship.
(ii) A child 12 years of age or older objects to termination of
parental rights.
(iii) The child is placed in a residential treatment facility,
adoption is unlikely or undesirable, and continuation of parental
rights will not prevent finding the child a permanent family
placement if the parents cannot resume custody when residential care
is no longer needed.
(iv) The child is living with a foster parent or Indian custodian
who is unable or unwilling to adopt the child because of exceptional
circumstances, that do not include an unwillingness to accept legal
or financial responsibility for the child, but who is willing and
capable of providing the child with a stable and permanent
environment and the removal of the child from the physical custody of
his or her foster parent or Indian custodian would be detrimental to
the emotional well-being of the child. This clause does not apply to
any child who is either (I) under six years of age or (II) a member
of a sibling group where at least one child is under six years of age
and the siblings are, or should be, permanently placed together.
(v) There would be substantial interference with a child's sibling
relationship, taking into consideration the nature and extent of the
relationship, including, but not limited to, whether the child was
raised with a sibling in the same home, whether the child shared
significant common experiences or has existing close and strong bonds
with a sibling, and whether ongoing contact is in the child's best
interest, including the child's long-term emotional interest, as
compared to the benefit of legal permanence through adoption.
(vi) The child is an Indian child and there is a compelling reason
for determining that termination of parental rights would not be in
the best interest of the child, including, but not limited to:
(I) Termination of parental rights would substantially interfere
with the child's connection to his or her tribal community or the
child's tribal membership rights.
(II) The child's tribe has identified guardianship, foster care
with a fit and willing relative, tribal customary adoption, or
another planned permanent living arrangement for the child.
(III) The child is a nonminor dependent, and the nonminor and the
nonminor's tribe have identified tribal customary adoption for the
nonminor.
(C) For purposes of subparagraph (B), in the case of tribal
customary adoptions, Section 366.24 shall apply.
(D) If the court finds that termination of parental rights would
be detrimental to the child pursuant to clause (i), (ii), (iii),
(iv), (v), or (vi), it shall state its reasons in writing or
and on the record.
(2) The court shall not terminate parental rights if:
(A) At each hearing at which the court was required to consider
reasonable efforts or services, the court has found that reasonable
efforts were not made or that reasonable services were not offered or
provided.
(B) In the case of an Indian child:
(i) At the hearing terminating parental rights, the court has
found that active efforts were not made as required in Section 361.7.
(ii) The court does not make a determination at the hearing
terminating parental rights, supported by evidence beyond a
reasonable doubt, including testimony of one or more "qualified
expert witnesses" as defined in Section 224.6, that the continued
custody of the child by the parent is likely to result in serious
emotional or physical damage to the child.
(iii) The court has ordered tribal customary adoption pursuant to
Section 366.24.
(3) If the court finds that termination of parental rights would
not be detrimental to the child pursuant to paragraph (1) and that
the child has a probability for adoption but is difficult to place
for adoption and there is no identified or available prospective
adoptive parent, the court may identify adoption as the permanent
placement goal and without terminating parental rights, order that
efforts be made to locate an appropriate adoptive family for the
child, within the state or out of the state, within a period not to
exceed 180 days. During this 180-day period, the public agency
responsible for seeking adoptive parents for each child shall, to the
extent possible, ask each child who is 10 years of age or older, to
identify any individuals, other than the child's siblings, who are
important to the child, in order to identify potential adoptive
parents. The public agency may ask any other child to provide that
information, as appropriate. During the 180-day period, the public
agency shall, to the extent possible, contact other private and
public adoption agencies regarding the availability of the child for
adoption. During the 180-day period, the public agency shall conduct
the search for adoptive parents in the same manner as prescribed for
children in Sections 8708 and 8709 of the Family Code. At the
expiration of this period, another hearing shall be held and the
court shall proceed pursuant to paragraph (1), (2), (3), (5), or (6)
of subdivision (b). For purposes of this section, a child may only be
found to be difficult to place for adoption if there is no
identified or available prospective adoptive parent for the child
because of the child's membership in a sibling group, or the presence
of a diagnosed medical, physical, or mental handicap, or the child
is seven years of age or more.
(4) (A) If the court finds that adoption of the child or
termination of parental rights is not in the best interest of the
child, because one of the conditions in clause (i), (ii), (iii),
(iv), (v), or (vi) of subparagraph (B) of paragraph (1) or in
paragraph (2) applies, the court shall order that the present
caretakers or other appropriate persons shall become legal guardians
of the child, or, in the case of an Indian child, consider a tribal
customary adoption pursuant to Section 366.24. Legal guardianship
shall be considered before continuing the child in foster care under
any other permanent plan, if it is in the best interests of the child
and if a suitable guardian can be found. If the child continues in
foster care, the court shall make factual findings identifying any
barriers to achieving adoption, tribal customary adoption in the case
of an Indian child, legal guardianship, or placement with a fit and
willing relative as of the date of the hearing. A child who is 10
years of age or older, shall be asked to identify any individuals,
other than the child's siblings, who are important to the child, in
order to identify potential guardians or, in the case of an Indian
child, prospective tribal customary adoptive parents. The agency may
ask any other child to provide that information, as appropriate.
(B) (i) If the child is living with an approved relative who is
willing and capable of providing a stable and permanent environment,
but not willing to become a legal guardian as of the hearing date,
the court shall order a permanent plan of placement with a fit and
willing relative, and the child shall not be removed from the home if
the court finds the removal would be seriously detrimental to the
emotional well-being of the child because the child has substantial
psychological ties to the relative caretaker.
(ii) If the child is living with a nonrelative caregiver who is
willing and capable of providing a stable and permanent environment,
but not willing to become a legal guardian as of the hearing date,
the court shall order that the child remain in foster care with a
permanent plan of return home, adoption, legal guardianship, or
placement with a fit and willing relative, as appropriate. If the
child is 16 years of age or older, or a nonminor dependent, and no
other permanent plan is appropriate at the time of the hearing, the
court may order another planned permanent living arrangement, as
described in paragraph (2) of subdivision (i) of Section 16501.
Regardless of the age of the child, the child shall not be removed
from the home if the court finds the removal would be seriously
detrimental to the emotional well-being of the child because the
child has substantial psychological ties to the caregiver.
(iii) If the child is living in a group home or, on or after
January 1, 2017, a short-term residential treatment center, the court
shall order that the child remain in foster care with a permanent
plan of return home, adoption, tribal customary adoption in the case
of an Indian child, legal guardianship, or placement with a fit and
willing relative, as appropriate. If the child is 16 years of age or
older, or a nonminor dependent, and no other permanent plan is
appropriate at the time of the hearing, the court may order another
planned permanent living arrangement, as described in paragraph (2)
of subdivision (i) of Section 16501.
(C) The court shall also make an order for visitation with the
parents or guardians unless the court finds by a preponderance of the
evidence that the visitation would be detrimental to the physical or
emotional well-being of the child.
(5) If the court finds that the child should not be placed for
adoption, that legal guardianship shall not be established, that
placement with a fit and willing relative is not appropriate as of
the hearing date, and that there are no suitable foster parents
except exclusive-use homes available to provide the child with a
stable and permanent environment, the court may order the care,
custody, and control of the child transferred from the county welfare
department to a licensed foster family agency. The court shall
consider the written recommendation of the county welfare director
regarding the suitability of the transfer. The transfer shall be
subject to further court orders.
The licensed foster family agency shall place the child in a
suitable licensed or exclusive-use home that has been certified by
the agency as meeting licensing standards. The licensed foster family
agency shall be responsible for supporting the child and providing
appropriate services to the child, including those services ordered
by the court. Responsibility for the support of the child shall not,
in and of itself, create liability on the part of the foster family
agency to third persons injured by the child. Those children whose
care, custody, and control are transferred to a foster family agency
shall not be eligible for foster care maintenance payments or child
welfare services, except for emergency response services pursuant to
Section 16504.
(d) The proceeding for the appointment of a guardian for a child
who is a dependent of the juvenile court shall be in the juvenile
court. If the court finds pursuant to this section that legal
guardianship is the appropriate permanent plan, it shall appoint the
legal guardian and issue letters of guardianship. The assessment
prepared pursuant to subdivision (g) of Section 361.5, subdivision
(i) of Section 366.21, subdivision (b) of Section 366.22, and
subdivision (b) of Section 366.25 shall be read and considered by the
court prior to the appointment, and this shall be reflected in the
minutes of the court. The person preparing the assessment may be
called and examined by any party to the proceeding.
(e) (1) The proceeding for the adoption of a child who is a
dependent of the juvenile court shall be in the juvenile court if the
court finds pursuant to this section that adoption is the
appropriate permanent plan and the petition for adoption is filed in
the juvenile court. Upon the filing of a petition for adoption, the
juvenile court shall order that an adoption hearing be set. The court
shall proceed with the adoption after the appellate rights of the
natural parents have been exhausted. The full report required by
Section 8715 of the Family Code shall be read and considered by the
court prior to the adoption and this shall be reflected in the
minutes of the court. The person preparing the report may be called
and examined by any party to the proceeding. It is the intent of the
Legislature, pursuant to this subdivision, to give potential adoptive
parents the option of filing in the juvenile court the petition for
the adoption of a child who is a dependent of the juvenile court.
Nothing in this section is intended to prevent the filing of a
petition for adoption in any other court as permitted by law, instead
of in the juvenile court.
(2) In the case of an Indian child, if the Indian child's tribe
has elected a permanent plan of tribal customary adoption, the court,
upon receiving the tribal customary adoption order will afford the
tribal customary adoption order full faith and credit to the same
extent that the court would afford full faith and credit to the
public acts, records, judicial proceedings, and judgments of any
other entity. Upon a determination that the tribal customary adoption
order may be afforded full faith and credit, consistent with Section
224.5, the court shall thereafter order a hearing to finalize the
adoption be set upon the filing of the adoption petition. The
prospective tribal customary adoptive parents and the child who is
the subject of the tribal customary adoption petition shall appear
before the court for the finalization hearing. The court shall
thereafter issue an order of adoption pursuant to Section 366.24.
(3) If a child who is the subject of a finalized tribal customary
adoption shows evidence of a developmental disability or mental
illness as a result of conditions existing before the tribal
customary adoption to the extent that the child cannot be
relinquished to a licensed adoption agency on the grounds that the
child is considered unadoptable, and of which condition the tribal
customary adoptive parent or parents had no knowledge or notice
before the entry of the tribal customary adoption order, a petition
setting forth those facts may be filed by the tribal customary
adoptive parent or parents with the juvenile court that granted the
tribal customary adoption petition. If these facts are proved to the
satisfaction of the juvenile court, it may make an order setting
aside the tribal customary adoption order. The set-aside petition
shall be filed within five years of the issuance of the tribal
customary adoption order. The court clerk shall immediately notify
the child's tribe and the department in Sacramento of the petition
within 60 days after the notice of filing of the petition. The
department shall file a full report with the court and shall appear
before the court for the purpose of representing the child. Whenever
a final decree of tribal customary adoption has been vacated or set
aside, the child shall be returned to the custody of the county in
which the proceeding for tribal customary adoption was finalized. The
biological parent or parents of the child may petition for return of
custody. The disposition of the child after the court has entered an
order to set aside a tribal customary adoption shall include
consultation with the child's tribe.
(f) At the beginning of any proceeding pursuant to this section,
if the child or the parents are not being represented by previously
retained or appointed counsel, the court shall proceed as follows:
(1) In accordance with subdivision (c) of Section 317, if a child
before the court is without counsel, the court shall appoint counsel
unless the court finds
that the child would not benefit from the appointment of counsel. The
court shall state on the record its reasons for that finding.
(2) If a parent appears without counsel and is unable to afford
counsel, the court shall appoint counsel for the parent, unless this
representation is knowingly and intelligently waived. The same
counsel shall not be appointed to represent both the child and his or
her parent. The public defender or private counsel may be appointed
as counsel for the parent.
(3) Private counsel appointed under this section shall receive a
reasonable sum for compensation and expenses, the amount of which
shall be determined by the court. The amount shall be paid by the
real parties in interest, other than the child, in any proportions
the court deems just. However, if the court finds that any of the
real parties in interest are unable to afford counsel, the amount
shall be paid out of the general fund of the county.
(g) The court may continue the proceeding for a period of time not
to exceed 30 days as necessary to appoint counsel, and to enable
counsel to become acquainted with the case.
(h) (1) At all proceedings under this section, the court shall
consider the wishes of the child and shall act in the best interests
of the child.
(2) In accordance with Section 349, the child shall be present in
court if the child or the child's counsel so requests or the court so
orders. If the child is 10 years of age or older and is not present
at a hearing held pursuant to this section, the court shall determine
whether the minor was properly notified of his or her right to
attend the hearing and inquire as to the reason why the child is not
present.
(3) (A) The testimony of the child may be taken in chambers and
outside the presence of the child's parent or parents, if the child's
parent or parents are represented by counsel, the counsel is
present, and any of the following circumstances exists:
(i) The court determines that testimony in chambers is necessary
to ensure truthful testimony.
(ii) The child is likely to be intimidated by a formal courtroom
setting.
(iii) The child is afraid to testify in front of his or her parent
or parents.
(B) After testimony in chambers, the parent or parents of the
child may elect to have the court reporter read back the testimony or
have the testimony summarized by counsel for the parent or parents.
(C) The testimony of a child also may be taken in chambers and
outside the presence of the guardian or guardians of a child under
the circumstances specified in this subdivision.
(i) (1) Any order of the court permanently terminating parental
rights under this section shall be conclusive and binding upon the
child, upon the parent or parents and upon all other persons who have
been served with citation by publication or otherwise as provided in
this chapter. After making the order, the juvenile court shall have
no power to set aside, change, or modify it, except as provided in
paragraph (2), but nothing in this section shall be construed to
limit the right to appeal the order.
(2) A tribal customary adoption order evidencing that the Indian
child has been the subject of a tribal customary adoption shall be
afforded full faith and credit and shall have the same force and
effect as an order of adoption authorized by this section. The rights
and obligations of the parties as to the matters determined by the
Indian child's tribe shall be binding on all parties. A court shall
not order compliance with the order absent a finding that the party
seeking the enforcement participated, or attempted to participate, in
good faith, in family mediation services of the court or dispute
resolution through the tribe regarding the conflict, prior to the
filing of the enforcement action.
(3) A child who has not been adopted after the passage of at least
three years from the date the court terminated parental rights and
for whom the court has determined that adoption is no longer the
permanent plan may petition the juvenile court to reinstate parental
rights pursuant to the procedure prescribed by Section 388. The child
may file the petition prior to the expiration of this three-year
period if the State Department of Social Services, county adoption
agency, or licensed adoption agency that is responsible for custody
and supervision of the child as described in subdivision (j) and the
child stipulate that the child is no longer likely to be adopted. A
child over 12 years of age shall sign the petition in the absence of
a showing of good cause as to why the child could not do so. If it
appears that the best interests of the child may be promoted by
reinstatement of parental rights, the court shall order that a
hearing be held and shall give prior notice, or cause prior notice to
be given, to the social worker or probation officer and to the child'
s attorney of record, or, if there is no attorney of record for the
child, to the child, and the child's tribe, if applicable, by means
prescribed by subdivision (c) of Section 297. The court shall order
the child or the social worker or probation officer to give prior
notice of the hearing to the child's former parent or parents whose
parental rights were terminated in the manner prescribed by
subdivision (f) of Section 294 where the recommendation is adoption.
The juvenile court shall grant the petition if it finds by clear and
convincing evidence that the child is no longer likely to be adopted
and that reinstatement of parental rights is in the child's best
interest. If the court reinstates parental rights over a child who is
under 12 years of age and for whom the new permanent plan
will not be reunification with a parent or legal guardian,
age, the court shall specify in writing the
factual basis for its findings that it is in the best interest of the
child to reinstate parental rights. This subdivision is intended to
be retroactive and applies to any child who is under the jurisdiction
of the juvenile court at the time of the hearing regardless of the
date parental rights were terminated.
(j) If the court, by order or judgment, declares the child free
from the custody and control of both parents, or one parent if the
other does not have custody and control, or declares the child
eligible for tribal customary adoption, the court shall at the same
time order the child referred to the State Department of Social
Services, county adoption agency, or licensed adoption agency for
adoptive placement by the agency. However, except in the case of a
tribal customary adoption where there is no termination of parental
rights, a petition for adoption may not be granted until the
appellate rights of the natural parents have been exhausted. The
State Department of Social Services, county adoption agency, or
licensed adoption agency shall be responsible for the custody and
supervision of the child and shall be entitled to the exclusive care
and control of the child at all times until a petition for adoption
or tribal customary adoption is granted, except as specified in
subdivision (n). With the consent of the agency, the court may
appoint a guardian of the child, who shall serve until the child is
adopted.
(k) Notwithstanding any other law, the application of any person
who, as a relative caretaker or foster parent, has cared for a
dependent child for whom the court has approved a permanent plan for
adoption, or who has been freed for adoption, shall be given
preference with respect to that child over all other applications for
adoptive placement if the agency making the placement determines
that the child has substantial emotional ties to the relative
caretaker or foster parent and removal from the relative caretaker or
foster parent would be seriously detrimental to the child's
emotional well-being.
As used in this subdivision, "preference" means that the
application shall be processed and, if satisfactory, the family study
shall be completed before the processing of the application of any
other person for the adoptive placement of the child.
(l) (1) An order by the court that a hearing pursuant to this
section be held is not appealable at any time unless all of the
following apply:
(A) A petition for extraordinary writ review was filed in a timely
manner.
(B) The petition substantively addressed the specific issues to be
challenged and supported that challenge by an adequate record.
(C) The petition for extraordinary writ review was summarily
denied or otherwise not decided on the merits.
(2) Failure to file a petition for extraordinary writ review
within the period specified by rule, to substantively address the
specific issues challenged, or to support that challenge by an
adequate record shall preclude subsequent review by appeal of the
findings and orders made pursuant to this section.
(3) The Judicial Council shall adopt rules of court, effective
January 1, 1995, to ensure all of the following:
(A) A trial court, after issuance of an order directing a hearing
pursuant to this section be held, shall advise all parties of the
requirement of filing a petition for extraordinary writ review as set
forth in this subdivision in order to preserve any right to appeal
in these issues. This notice shall be made orally to a party if the
party is present at the time of the making of the order or by
first-class mail by the clerk of the court to the last known address
of a party not present at the time of the making of the order.
(B) The prompt transmittal of the records from the trial court to
the appellate court.
(C) That adequate time requirements for counsel and court
personnel exist to implement the objective of this subdivision.
(D) That the parent or guardian, or their trial counsel or other
counsel, is charged with the responsibility of filing a petition for
extraordinary writ relief pursuant to this subdivision.
(4) The intent of this subdivision is to do both of the following:
(A) Make every reasonable attempt to achieve a substantive and
meritorious review by the appellate court within the time specified
in Sections 366.21, 366.22, and 366.25 for holding a hearing pursuant
to this section.
(B) Encourage the appellate court to determine all writ petitions
filed pursuant to this subdivision on their merits.
(5) This subdivision shall only apply to cases in which an order
to set a hearing pursuant to this section is issued on or after
January 1, 1995.
(m) Except for subdivision (j), this section shall also apply to
minors adjudged wards pursuant to Section 727.31.
(n) (1) Notwithstanding Section 8704 of the Family Code or any
other law, the court, at a hearing held pursuant to this section or
anytime thereafter, may designate a current caretaker as a
prospective adoptive parent if the child has lived with the caretaker
for at least six months, the caretaker currently expresses a
commitment to adopt the child, and the caretaker has taken at least
one step to facilitate the adoption process. In determining whether
to make that designation, the court may take into consideration
whether the caretaker is listed in the preliminary assessment
prepared by the county department in accordance with subdivision (i)
of Section 366.21 as an appropriate person to be considered as an
adoptive parent for the child and the recommendation of the State
Department of Social Services, county adoption agency, or licensed
adoption agency.
(2) For purposes of this subdivision, steps to facilitate the
adoption process include, but are not limited to, the following:
(A) Applying for an adoption home study.
(B) Cooperating with an adoption home study.
(C) Being designated by the court or the adoption agency as the
adoptive family.
(D) Requesting de facto parent status.
(E) Signing an adoptive placement agreement.
(F) Engaging in discussions regarding a postadoption contact
agreement.
(G) Working to overcome any impediments that have been identified
by the State Department of Social Services, county adoption agency,
or licensed adoption agency.
(H) Attending classes required of prospective adoptive parents.
(3) Prior to a change in placement and as soon as possible after a
decision is made to remove a child from the home of a designated
prospective adoptive parent, the agency shall notify the court, the
designated prospective adoptive parent or the current caretaker, if
that caretaker would have met the threshold criteria to be designated
as a prospective adoptive parent pursuant to paragraph (1) on the
date of service of this notice, the child's attorney, and the child,
if the child is 10 years of age or older, of the proposal in the
manner described in Section 16010.6.
(A) Within five court days or seven calendar days, whichever is
longer, of the date of notification, the child, the child's attorney,
or the designated prospective adoptive parent may file a petition
with the court objecting to the proposal to remove the child, or the
court, upon its own motion, may set a hearing regarding the proposal.
The court may, for good cause, extend the filing period. A caretaker
who would have met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1) on the date of
service of the notice of proposed removal of the child may file,
together with the petition under this subparagraph, a petition for an
order designating the caretaker as a prospective adoptive parent for
purposes of this subdivision.
(B) A hearing ordered pursuant to this paragraph shall be held as
soon as possible and not later than five court days after the
petition is filed with the court or the court sets a hearing upon its
own motion, unless the court for good cause is unable to set the
matter for hearing five court days after the petition is filed, in
which case the court shall set the matter for hearing as soon as
possible. At the hearing, the court shall determine whether the
caretaker has met the threshold criteria to be designated as a
prospective adoptive parent pursuant to paragraph (1), and whether
the proposed removal of the child from the home of the designated
prospective adoptive parent is in the child's best interest, and the
child may not be removed from the home of the designated prospective
adoptive parent unless the court finds that removal is in the child's
best interest. If the court determines that the caretaker did not
meet the threshold criteria to be designated as a prospective
adoptive parent on the date of service of the notice of proposed
removal of the child, the petition objecting to the proposed removal
filed by the caretaker shall be dismissed. If the caretaker was
designated as a prospective adoptive parent prior to this hearing,
the court shall inquire into any progress made by the caretaker
towards the adoption of the child since the caretaker was designated
as a prospective adoptive parent.
(C) A determination by the court that the caretaker is a
designated prospective adoptive parent pursuant to paragraph (1) or
subparagraph (B) does not make the caretaker a party to the
dependency proceeding nor does it confer on the caretaker any
standing to object to any other action of the department, county
adoption agency, or licensed adoption agency, unless the caretaker
has been declared a de facto parent by the court prior to the notice
of removal served pursuant to paragraph (3).
(D) If a petition objecting to the proposal to remove the child is
not filed, and the court, upon its own motion, does not set a
hearing, the child may be removed from the home of the designated
prospective adoptive parent without a hearing.
(4) Notwithstanding paragraph (3), if the State Department of
Social Services, county adoption agency, or licensed adoption agency
determines that the child must be removed from the home of the
caretaker who is or may be a designated prospective adoptive parent
immediately, due to a risk of physical or emotional harm, the agency
may remove the child from that home and is not required to provide
notice prior to the removal. However, as soon as possible and not
longer than two court days after the removal, the agency shall notify
the court, the caretaker who is or may be a designated prospective
adoptive parent, the child's attorney, and the child, if the child is
10 years of age or older, of the removal. Within five court days or
seven calendar days, whichever is longer, of the date of notification
of the removal, the child, the child's attorney, or the caretaker
who is or may be a designated prospective adoptive parent may
petition for, or the court on its own motion may set, a noticed
hearing pursuant to paragraph (3). The court may, for good cause,
extend the filing period.
(5) Except as provided in subdivision (b) of Section 366.28, an
order by the court issued after a hearing pursuant to this
subdivision shall not be appealable.
(6) Nothing in this section shall preclude a county child
protective services agency from fully investigating and responding to
alleged abuse or neglect of a child pursuant to Section 11165.5 of
the Penal Code.
(7) The Judicial Council shall prepare forms to facilitate the
filing of the petitions described in this subdivision, which shall
become effective on January 1, 2006.
SEC. 5. Section 398 is added to the
Welfare and Institutions Code , to read:
398. At the time a child is being considered for placement in a
foster home, the social worker shall provide to the foster parents
all of the following:
(a) Notification that he or she has the right to be present at the
dispositional hearing and at any hearing thereafter at which the
status of the child is at issue.
(b) Information regarding de facto parent status and the manner in
which a foster parent can apply to the juvenile court to become a de
facto parent.
(c) Notification that if the child reenters foster care, the
foster parents of the child have the right to be provided written
notice from the court if the child, after being reunified with his or
her parents, is returned to the court for further dependency
proceedings.
SEC. 6. 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
nor otherwise be subject to Section 6 of Article XIII B of
the California Constitution.
SECTION 1. Section 300 of the Welfare and
Institutions Code is amended to read:
300. A child who comes within any of the following descriptions
is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian. For
purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent or guardian that
indicate the child is at risk of serious physical harm. For purposes
of this subdivision, "serious physical harm" does not include
reasonable and age-appropriate spanking to the buttocks if there is
no evidence of serious physical injury.
(b) (1) The child has suffered, or there is a substantial risk
that the child will suffer, serious physical harm or illness, as a
result of the failure or inability of his or her parent or guardian
to adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. A child shall not be found to be a person described
by this subdivision solely due to the lack of an emergency shelter
for the family. Whenever it is alleged that a child comes within the
jurisdiction of the court on the basis of the parent's or guardian's
willful failure to provide adequate medical treatment or specific
decision to provide spiritual treatment through prayer, the court
shall give deference to the parent's or guardian's medical treatment,
nontreatment, or spiritual treatment through prayer alone in
accordance with the tenets and practices of a recognized church or
religious denomination, by an accredited practitioner thereof, and
shall not assume jurisdiction unless necessary to protect the child
from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(2) The Legislature finds and declares that a child who is
sexually trafficked, as described in Section 236.1 of the Penal Code,
or who receives food or shelter in exchange for, or who is paid to
perform, sexual acts described in Section 236.1 or 11165.1 of the
Penal Code, and whose parent or guardian failed to, or was unable to,
protect the child, is within the description of this subdivision,
and that this finding is declaratory of existing law. These children
shall be known as commercially sexually exploited children.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of
providing appropriate care. A child shall not be found to be a person
described by this subdivision if the willful failure of the parent
or guardian to provide adequate mental health treatment is based on a
sincerely held religious belief and if a less intrusive judicial
intervention is available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) (1) The child is under the age of five years and has suffered
severe physical abuse by a parent, or by a person known by the
parent, if the parent knew or reasonably should have known that the
person was physically abusing the child. For the purposes of this
subdivision, "severe physical abuse" means any of the following:
(A) A single act of abuse which causes physical trauma of
sufficient severity that, if left untreated, would cause permanent
physical disfigurement, permanent physical disability, or death.
(B) A single act of sexual abuse which causes significant
bleeding, deep bruising, or significant external or internal
swelling.
(C) More than one act of physical abuse, each of which causes
bleeding, deep bruising, significant external or internal swelling,
bone fracture, or unconsciousness.
(D) The willful, prolonged failure to provide adequate food.
(2) A child shall not be removed from the physical custody of his
or her parent or guardian on the basis of a finding of severe
physical abuse unless the social worker has made an allegation of
severe physical abuse pursuant to Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support;
physical custody of the child has been voluntarily surrendered
pursuant to Section 1255.7 of the Health and Safety Code and the
child has not been reclaimed within the 14-day period specified in
subdivision (g) of that section; the child's parent has been
incarcerated or institutionalized and cannot arrange for the care of
the child; or a relative or other adult custodian with whom the child
resides or has been left is unwilling or unable to provide care or
support for the child, the whereabouts of the parent are unknown, and
reasonable efforts to locate the parent have been
unsuccessful.
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty when the parent or guardian knew or
reasonably should have known that the child was in danger of being
subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the court
considers probative in determining whether there is a substantial
risk to the child.
It is the intent of the Legislature that this section not disrupt
the family unnecessarily or intrude inappropriately into family life,
prohibit the use of reasonable methods of parental discipline, or
prescribe a particular method of parenting. Further, this section is
not intended to limit the offering of voluntary services to those
families in need of assistance but who do not come within the
descriptions of this section. To the extent that savings accrue to
the state from child welfare services funding obtained as a result of
the enactment of the act that enacted this section, those savings
shall be used to promote services which support family maintenance
and family reunification plans, such as client transportation,
out-of-home respite care, parenting training, and the provision of
temporary or emergency in-home caretakers and persons teaching and
demonstrating homemaking skills. The Legislature further declares
that a physical disability, such as blindness or deafness, is no bar
to the raising of happy and well-adjusted children and that a court's
determination pursuant to this section shall center upon whether a
parent's disability prevents him or her from exercising care and
control. The Legislature further declares that a child whose parent
has been adjudged a dependent child of the court pursuant to this
section shall not be considered to be at risk of abuse or neglect
solely because of the age, dependent status, or foster care status of
the parent.
As used in this section, "guardian" means the legal guardian of
the child.
