BILL NUMBER: AB 938 INTRODUCED
BILL TEXT
INTRODUCED BY Committee on Judiciary (Feuer (Chair), Brownley,
Evans, Jones, Krekorian, Lieu, and Monning)
FEBRUARY 26, 2009
An act to amend Sections 309, 315, 317, 319, and 366.21 of the
Welfare and Institutions Code, relating to dependent children.
LEGISLATIVE COUNSEL'S DIGEST
AB 938, as introduced, Committee on Judiciary. Dependent children:
relative caregivers and foster parents.
(1) Existing law authorizes a social worker to take a child who is
at risk of abuse or neglect into temporary custody under specified
circumstances. Existing law requires the social worker to investigate
the circumstances of the child and the facts surrounding the taking
of the child into custody. Existing law requires that the social
worker immediately release the child to the custody of the child's
parent or guardian, or other responsible relative, except under
certain conditions. If the child is not released to the custody of
his or her parent or guardian, the child is deemed to be detained,
and a detention hearing must be conducted before the expiration of
the next judicial day after a petition to declare the minor a
dependent child of the juvenile court has been filed.
Existing law provides for an initial petition hearing to
determine, among other things, whether a child shall remain in
detention, and, with respect to a child who is adjudged a dependent
child of the juvenile court and placed in foster care, for periodic
status review hearings to review, among other things, the continuing
necessity for and appropriateness of the placement. Prior to a status
review hearing regarding a child who is 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 or by a licensed county adoption agency, as specified, the
foster parent, relative caregiver, or certified foster parent may
file with the court a report containing his or her recommendation for
disposition.
This bill would require a social worker, when a child is detained,
to immediately conduct an investigation, as specified, in order to
identify and locate all grandparents and other adult relatives of the
child, in order to provide, except in cases of domestic violence,
those persons with specified information, including that the child
has been removed from the home and an explanation of various options
to participate in the care and placement of the child, as specified,
and to report to the court at the initial petition hearing regarding
that effort. The bill would require the court to inquire, at the
detention hearing, and at the initial petition hearing, regarding
those efforts.
The bill would also require the Judicial Council to develop prior
to January 1, 2011, a relative information form, as specified. The
form would provide information regarding the needs of the child, and
would include a provision whereby the relative may request the
permission of the court to address the court. The bill would require
a social worker to provide that form at the initial petition hearing,
on and after January 1, 2011, to the adult relatives identified
pursuant to the provision described above.
The bill would require, at the initial petition hearing and at the
status review hearing, the court to consider and to determine
whether, in the court's discretion, to grant the request of a
relative, or of a foster parent on the report described above, to
address the court. By imposing new duties on social workers, the bill
would impose a state-mandated local program.
(2) Existing law authorizes the juvenile court to appoint counsel
to represent a parent or guardian in dependency proceedings if that
parent or guardian cannot afford counsel.
The bill would also express the intent of the Legislature that all
parties to a juvenile court hearing have a meaningful opportunity to
participate in the hearings and, at a minimum, have the opportunity
to review reports and meet with their attorneys before the detention
hearing.
(3) 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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 309 of the Welfare and Institutions Code is
amended to read:
309. (a) Upon delivery to the social worker of a child who has
been taken into temporary custody under this article, the social
worker shall immediately investigate the circumstances of the child
and the facts surrounding the child's being taken into custody and
attempt to maintain the child with the child's family through the
provision of services. The social worker shall immediately release
the child to the custody of the child's parent, guardian, or
responsible relative unless one or more of the following conditions
exist:
(1) The child has no parent, guardian, or responsible relative; or
the child's parent, guardian, or responsible relative is not willing
to provide care for the child.
(2) Continued detention of the child is a matter of immediate and
urgent necessity for the protection of the child and there are no
reasonable means by which the child can be protected in his or her
home or the home of a responsible relative.
(3) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(4) The child has left a placement in which he or she was placed
by the juvenile court.
(5) The parent or other person having lawful custody of the child
voluntarily surrendered physical custody of the child pursuant to
Section 1255.7 of the Health and Safety Code and did not reclaim the
child within the 14-day period specified in subdivision (e) of that
section.
(b) In any case in which there is reasonable cause for believing
that a child who is under the care of a physician or surgeon or a
hospital, clinic, or other medical facility and cannot be immediately
moved and is a person described in Section 300, the child shall be
deemed to have been taken into temporary custody and delivered to the
social worker for the purposes of this chapter while the child is at
the office of the physician or surgeon or the medical facility.
(c) If the child is not released to his or her parent or guardian,
the child shall be deemed detained for purposes of this chapter.
(d) (1) If the child is detained, the social worker shall
immediately conduct an investigation in order to identify and locate
all grandparents and other adult relatives of the child. The social
worker shall notify all adult relatives who have been located, except
in cases of domestic violence, of the following information:
(A) The child has been removed from the custody of his or her
parent or parents, or his or her guardian.
(B) An explanation of the various options to participate in the
care and placement of the child, including, the Kin-GAP Program
(Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3
of Division 9) the requirements to become a foster family home, and
other options for contact with the child.
(2) On and after January 1, 2011, the social worker shall also
provide the adult relatives notified pursuant to paragraph (1) with a
relative information form to provide information to the social
worker and the court regarding the needs of the child. The form shall
include a provision whereby the relative may request the permission
of the court to address the court. The Judicial Council shall develop
the form before January 1, 2011.
(3) The social worker shall use due diligence in investigating the
name and location of the relatives pursuant to paragraph (1),
including, but not limited to, obtaining information regarding the
location of the child's adult relatives from the California Parent
Locator Service.
(d)
(e) (1) If an able and willing relative, as defined in
Section 319, or an able and willing nonrelative extended family
member, as defined in Section 362.7, is available and requests
temporary placement of the child pending the detention hearing, the
county welfare department shall initiate an assessment of the
relative's or nonrelative extended family member's suitability, which
shall include an in-home inspection to assess the safety of the home
and the ability of the relative or nonrelative extended family
member to care for the child's needs, and a consideration of the
results of a criminal records check conducted pursuant to subdivision
(a) of Section 16504.5 and a check of allegations of prior child
abuse or neglect concerning the relative or nonrelative extended
family member and other adults in the home. Upon completion of this
assessment, the child may be placed in the assessed home. For
purposes of this paragraph, and except for the criminal records check
conducted pursuant to subdivision (a) of Section 16504.5, the
standards used to determine suitability shall be the same standards
set forth in the regulations for the licensing of foster family
homes.
(2) Immediately following the placement of a child in the home of
a relative or a nonrelative extended family member, the county
welfare department shall evaluate and approve or deny the home for
purposes of AFDC-FC eligibility pursuant to Section 11402. The
standards used to evaluate and grant or deny approval of the home of
the relative and of the home of a nonrelative extended family member,
as described in Section 362.7, shall be the same standards set forth
in regulations for the licensing of foster family homes which
prescribe standards of safety and sanitation for the physical plant
and standards for basic personal care, supervision, and services
provided by the caregiver.
(3) To the extent allowed by federal law, as a condition of
receiving funding under Title IV-E of the federal Social Security Act
(42 U.S.C. Sec. 670 et seq.), if a relative or nonrelative extended
family member meets all other conditions for approval, except for the
receipt of the Federal Bureau of Investigation's criminal history
information for the relative or nonrelative extended family member,
and other adults in the home, as indicated, the county welfare
department may approve the home and document that approval, if the
relative or nonrelative extended family member, and each adult in the
home, has signed and submitted a statement that he or she has never
been convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after the approval has been granted,
the department determines that the relative or nonrelative extended
family member or other adult in the home has a criminal record, the
approval may be terminated.
(4) If the criminal records check indicates that the person has
been convicted of a crime for which the Director of Social Services
cannot grant an exemption under Section 1522 of the Health and Safety
Code, the child shall not be placed in the home. If the criminal
records check indicates that the person has been convicted of a crime
for which the Director of Social Services may grant an exemption
under Section 1522 of the Health and Safety Code, the child shall not
be placed in the home unless a criminal records exemption has been
granted by the county based on substantial and convincing evidence to
support a reasonable belief that the person with the criminal
conviction is of such good character as to justify the placement and
not present a risk of harm to the child.
SEC. 2. Section 315 of the Welfare and Institutions Code is
amended to read:
315. (a) If a minor has been taken into
custody under this article and not released to a parent or guardian,
the juvenile court shall hold a hearing (which shall be referred to
as a "detention hearing") to determine whether the minor shall be
further detained. This hearing shall be held as soon as possible, but
in any event before the expiration of the next judicial day after a
petition to declare the minor a dependent child has been filed. If
the hearing is not held within the period prescribed by this section,
the minor shall be released from custody.
(b) At the hearing, the court shall inquire regarding the efforts
made by the social worker to comply with the requirements of
subdivision (d) of Section 309, and the results of those efforts.
SEC. 3. Section 317 of the Welfare and Institutions Code is
amended to read:
317. (a) It is the intent of the Legislature that all
parties to juvenile court hearings, including children, parents, and
social workers, have a meaningful opportunity to participate in these
hearings. At a minimum, it is the intent of the Legislature that all
parties have the opportunity to review reports and meet with their
attorneys before the detention hearing, held pursuant to Section 315,
and in advance of all subsequent hearings.
(b) (1) When it appears to the court that a
parent or guardian of the child desires counsel but is presently
financially unable to afford and cannot for that reason employ
counsel, the court may appoint counsel as provided in this section.
(2) When it appears to the court that a parent or Indian custodian
in an Indian child custody proceeding desires counsel but is
presently unable to afford and cannot for that reason employ counsel,
the provisions of subsection (b) of Section 1912 of the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Section 23.13 of Title
25 of the Code of Federal Regulations are applicable.
(b)
(c) When it appears to the court that a parent or
guardian of the child is presently financially unable to afford and
cannot for that reason employ counsel, and the child has been placed
in out-of-home care, or the petitioning agency is recommending that
the child be placed in out-of-home care, the court shall appoint
counsel for the parent or guardian, unless the court finds that the
parent or guardian has made a knowing and intelligent waiver of
counsel as provided in this section.
(c)
(d) If a child is not represented by counsel, the court
shall appoint counsel for the child 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. A primary
responsibility of any counsel appointed to represent a child pursuant
to this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child. Counsel for the
child may be a district attorney, public defender, or other member of
the bar, provided that the counsel does not represent another party
or county agency whose interests conflict with the child's interests.
The fact that the district attorney represents the child in a
proceeding pursuant to Section 300 as well as conducts a criminal
investigation or files a criminal complaint or information arising
from the same or reasonably related set of facts as the proceeding
pursuant to Section 300 is not in and of itself a conflict of
interest. The court may fix the compensation for the services of
appointed counsel. The appointed counsel shall have a caseload and
training that ensures adequate representation of the child. The
Judicial Council shall promulgate rules of court that establish
caseload standards, training requirements, and guidelines for
appointed counsel for children and shall adopt rules as required by
Section 326.5 no later than July 1, 2001.
(d)
(e) The counsel appointed by the court shall represent
the parent, guardian, or child at the detention hearing and at all
subsequent proceedings before the juvenile court. Counsel shall
continue to represent the parent, guardian, or child unless relieved
by the court upon the substitution of other counsel or for cause. The
representation shall include representing the parent, guardian, or
the child in termination proceedings and in those proceedings
relating to the institution or setting aside of a legal guardianship.
(e)
(f) The counsel for the child shall be charged in
general with the representation of the child's interests. To that
end, the counsel shall make or cause to have made any further
investigations that he or she deems in good faith to be reasonably
necessary to ascertain the facts, including the interviewing of
witnesses, and he or she shall examine and cross-examine witnesses in
both the adjudicatory and dispositional hearings. He or she may also
introduce and examine his or her own witnesses, make recommendations
to the court concerning the child's welfare, and participate further
in the proceedings to the degree necessary to adequately represent
the child. In any case in which the child is four years of age or
older, counsel shall interview the child to determine the child's
wishes and to assess the child's well-being, and shall advise the
court of the child's wishes. Counsel for the child shall not advocate
for the return of the child if, to the best of his or her knowledge,
that return conflicts with the protection and safety of the child.
In addition counsel shall investigate the interests of the child
beyond the scope of the juvenile proceeding and report to the court
other interests of the child that may need to be protected by the
institution of other administrative or judicial proceedings. The
attorney representing a child in a dependency proceeding is not
required to assume the responsibilities of a social worker and is not
expected to provide nonlegal services to the child. The court shall
take whatever appropriate action is necessary to fully protect the
interests of the child.
(f)
(g) Either the child or the counsel for the child, with
the informed consent of the child if the child is found by the court
to be of sufficient age and maturity to so consent, which shall be
presumed, subject to rebuttal by clear and convincing evidence, if
the child is over 12 years of age, may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege; and if the child invokes the privilege,
counsel may not waive it, but if counsel invokes the privilege, the
child may waive it. Counsel shall be holder of these privileges if
the child is found by the court not to be of sufficient age and
maturity to so consent. For the sole purpose of fulfilling his or her
obligation to provide legal representation of the child, counsel for
a child shall have access to all records with regard to the child
maintained by a health care facility, as defined in Section 1545 of
the Penal Code, health care providers, as defined in Section 6146 of
the Business and Professions Code, a physician and surgeon or other
health practitioner, as defined in former Section 11165.8 of the
Penal Code, as that section read on January 1, 2000, or a child care
custodian, as defined in former Section 11165.7 of the Penal Code, as
that section read on January 1, 2000. Notwithstanding any other law,
counsel shall be given access to all records relevant to the case
which are maintained by state or local public agencies. All
information requested from a child protective agency regarding a
child who is in protective custody, or from a child's guardian ad
litem, shall be provided to the child's counsel within 30 days of the
request.
(g)
(h) In a county of the third class, if counsel is to be
provided to a child at county expense other than by counsel for the
agency, the court shall first utilize the services of the public
defender prior to appointing private counsel, to provide legal
counsel. Nothing in this subdivision shall be construed to require
the appointment of the public defender in any case in which the
public defender has a conflict of interest. In the interest of
justice, a court may depart from that portion of the procedure
requiring appointment of the public defender after making a finding
of good cause and stating the reasons therefor on the record.
(h)
(i) In a county of the third class, if counsel is to be
appointed for a parent or guardian at county expense, the court
shall first utilize the services of the alternate public defender,
prior to appointing private counsel, to provide legal counsel.
Nothing in this subdivision shall be construed to require the
appointment of the alternate public defender in any case in which the
public defender has a conflict of interest. In the interest of
justice, a court may depart from that portion of the procedure
requiring appointment of the alternate public defender after making a
finding of good cause and stating the reasons therefor on the
record.
SEC. 4. Section 319 of the Welfare and Institutions Code is
amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody, the
need, if any, for continued detention, the available services and the
referral methods to those services that could facilitate the return
of the child to the custody of the child's parents or guardians, and
whether there are any relatives who are able and willing to take
temporary physical custody of the child. The court shall order the
release of the child from custody unless a prima facie showing has
been made that the child comes within Section 300, the court finds
that continuance in the parent's or guardian's home is contrary to
the child's welfare, and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) The social worker shall report to the court regarding the
efforts made by the social worker to comply with the requirements of
subdivision (d) of Section 309, and the results of those efforts. The
social worker shall also provide to the court any relative caregiver
information form, as provided for pursuant to Section 309, that has
been completed and received. The court shall consider that
information and shall determine whether, in the court's discretion,
to grant the request of a relative to address the court.
(c)
(d) If the matter is continued pursuant to Section 322
or for any other reason, the court shall find that the continuance of
the child in the parent's or guardian's home is contrary to the
child's welfare at the initial petition hearing or order the release
of the child from custody.
(d)
(e) (1) The court shall also make a determination on
the record, referencing the social worker's report or other evidence
relied upon, as to whether reasonable efforts were made to prevent or
eliminate the need for removal of the child from his or her home,
pursuant to subdivision (b) of Section 306, and whether there are
available services that would prevent the need for further detention.
Services to be considered for purposes of making this determination
are case management, counseling, emergency shelter care, emergency
in-home caretakers, out-of-home respite care, teaching and
demonstrating homemakers, parenting training, transportation, and any
other child welfare services authorized by the State Department of
Social Services pursuant to Chapter 5 (commencing with Section 16500)
of Part 4 of Division 9. The court shall also review whether the
social worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (d) (e) of Section 309.
(e)
(f) If a court orders a child detained, the court shall
state the facts on which the decision is based, specify why the
initial removal was necessary, reference the social worker's report
or other evidence relied upon to make its determination whether
continuance in the home of the parent or legal guardian is contrary
to the child's welfare, order temporary placement and care of the
child to be vested with the county child welfare department pending
the hearing held pursuant to Section 355 or further order of the
court, and order services to be provided as soon as possible to
reunify the child and his or her family if appropriate.
(f)
(g) (1) If the child is not released from custody, the
court may order that the child shall be placed in the assessed home
of a relative, in an emergency shelter or other suitable licensed
place, in a place exempt from licensure designated by the juvenile
court, or in the assessed home of a nonrelative extended family
member as defined in Section 362.7 for a period not to exceed 15
judicial days.
(2) 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 these persons,
even if the marriage was terminated by death or dissolution. However,
only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (d) (e) of Section 309 of
the relative's home, including the results of a criminal records
check and prior child abuse allegations, if any, prior to ordering
that the child be placed with a relative. The court shall order the
parent to disclose to the social worker the names, residences, and
any known identifying information of any maternal or paternal
relatives of the child. The social worker shall initiate the
assessment pursuant to Section 361.3 of any relative to be considered
for continuing placement.
(g)
(h) (1) At the initial hearing upon the petition filed
in accordance with subdivision (c) of Rule 5.520 of the California
Rules of Court or anytime thereafter up until the time that the minor
is adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational decisions for the child
and temporarily appoint a responsible adult to make educational
decisions for the child if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
decisionmaking.
(C) The child's educational needs cannot be met without the
temporary appointment of a responsible adult.
(2) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050 of
the Education Code, is not warranted, the court may, with the input
of any interested person, make educational decisions for the child.
If the court makes educational decisions for the child, the court
shall also issue appropriate orders to ensure that every effort is
made to identify a responsible adult to make future educational
decisions for the child.
(3) Any temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make
educational decisions for the child shall be specifically addressed
in the court order. Any order made under this section shall expire at
the conclusion of the hearing held pursuant to Section 361 or upon
dismissal of the petition. Upon the entering of disposition orders,
any additional needed limitation on the parent's or guardian's
educational rights shall be addressed pursuant to Section 361.
SEC. 5. 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 in counties that are not served by a county
adoption agency or by a licensed 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, 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 licensed 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 in counties
that are not served by a county adoption agency or by a licensed
county adoption agency, may file with the court a report containing
his or her recommendation for disposition and may, on and after
January 1, 2011, include in that report a request to address the
court . The court shall consider the report and recommendation
filed pursuant to this subdivision prior to determining any
disposition and shall determine whether, in the court's
discretion, to grant the request of a foster parent, relative
caregiver, or the certified foster parent to address the court
.
(e) Prior to any hearing pursuant to this section, other than a
hearing described in subdivision (d), the social worker shall file
with the court any relative caregiver information form, as provided
for pursuant to Section 309, that has been completed and received.
The court shall consider that information and shall determine
whether, in the court's discretion, to grant the request of a
relative caregiver to address the court.
(e)
(f) At the review hearing held six months after the
initial dispositional hearing, 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 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 to services provided,
taking into account the particular barriers to an incarcerated or
institutionalized parent or legal guardian's access to those
court-mandated services and ability to maintain contact with his or
her child.
Regardless of whether the child is returned to a parent or legal
guardian, the court shall specify 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.
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.
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 interest of each child in the sibling group. The court shall
specify the factual basis for its finding that it is in the best
interest of each child to schedule a hearing pursuant to Section
366.26 in 120 days for some or all of the members of the sibling
group.
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 or institutionalization. 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.
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.
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.
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)
(g) 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 subdivision (a) of Section 361.5. 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. 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 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 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. 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 independent living. 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 to
an incarcerated or institutionalized parent 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.
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 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)
(h) 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 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 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
may 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) 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.
(3) Order that the child remain in long-term 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 in counties that are not served by a county adoption agency or
by a licensed 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 interest of the child because the child is not a
proper subject for adoption and has no one willing to accept legal
guardianship. For purposes of this section, a recommendation by the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county adoption agency or
by a licensed county adoption agency that adoption is not in the
best interest 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 may not preclude a different
recommendation at a later date if the child's circumstances change.
If the court orders that a child who is 10 years of age or older
remain in long-term 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.
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)
(i) 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.
(i)
(j) (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 licensed county adoption agency, or the
State Department of Social Services when it is acting as an adoption
agency in counties that are not served by a county 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,
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, and the relative was assessed for foster care placement
of the minor prior to January 1, 1998, the assessment shall also
consider, but need not be limited to, all of the factors specified in
subdivision (a) of Section 361.3.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, 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.
(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) 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.
(j)
(k) If, at any hearing held pursuant to Section 366.26,
a guardianship is established for the minor with a relative, and
juvenile court dependency is subsequently dismissed, the relative
shall be eligible for aid under the Kin-GAP Program, as provided for
in Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3
of Division 9.
(k)
(l) 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.
(l)
(m) For purposes of this section, evidence of any of
the following circumstances may 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.
(m)
(n) The implementation and operation of the amendments
to subdivisions (c) and (g) (h) enacted
at the 2005-06 Regular Session shall be subject to appropriation
through the budget process and by phase, as provided in Section
366.35.
SEC. 6. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.