BILL NUMBER: AB 886	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JANUARY 28, 2002
	AMENDED IN ASSEMBLY  JANUARY 9, 2002

INTRODUCED BY   Assembly Members  Daucher and Simitian
  Simitian and Daucher 

                        FEBRUARY 22, 2001

   An act to add Section 2662 to the Probate Code, and to amend
Sections 361 and 726 of the Welfare and Institutions Code, relating
to minors.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 886, as amended,  Daucher   Simitian 
.  Parental authority:  educational decisions.
   Existing law authorizes a court to limit the control exercised
over a minor by a parent or guardian in all cases where the minor is
adjudged a ward or dependent child of the court.  Existing law also
provides that a guardian or conservator has charge of the education
of the ward or conservatee.
   This bill would provide that whenever the court specifically
limits the right of the parent or guardian to make educational
decisions for a child, the court shall appoint a responsible adult to
make educational decisions for the child.  The bill would provide
that whenever the court grants a petition removing the guardian or
conservator of a minor or tendering the resignation of the guardian
or conservator of a minor, if the court does not immediately appoint
a temporary or successor guardian or conservator, the court shall
appoint a responsible adult to make educational decisions for the
minor until a successor or temporary guardian is appointed.  The bill
would also provide that whenever the court suspends or limits the
powers of the guardian or conservator to make educational decisions
for the minor, the court shall appoint a responsible adult to make
educational decisions for the minor until the guardian or conservator
is again authorized to make educational decisions for the child.
 The bill would further provide that an individual who would have
a conflict in representing the child, as specified, may not be
appointed to make educational decisions. 
   Vote:  majority.  Appropriation:  no.  Fiscal committee:  no.
State-mandated local program:  no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 2662 is added to the Probate Code, to read:
   2662.  Whenever the court grants a petition removing the guardian
or conservator of a minor ward or conservatee or tendering the
resignation of the guardian or conservator of a minor ward or
conservatee, if the court does not immediately appoint a temporary or
successor guardian or conservator, the court shall at the same time
appoint a responsible adult to make educational decisions for the
minor until a successor or temporary guardian or conservator is
appointed.  Whenever the court suspends or limits the powers of the
guardian or conservator to make educational decisions for a minor
ward or conservatee, the court shall at the same time appoint a
responsible adult to make educational decisions for the minor ward or
conservatee until the guardian or conservator is again authorized to
make educational decisions for the minor ward or conservatee.  
An individual who would have a conflict of interest in representing
the child, as specified under federal regulations, may not be
appointed to make educational decisions.  For purposes of this
section, "an individual who would have a conflict of interest," means
a person having any interests that might restrict or bias his or her
ability to advocate for all of the services required to ensure a
free appropriate public education for an individual with exceptional
needs, as defined in Section 56026 of the Education Code. 
  SEC. 2.  Section 361 of the Welfare and Institutions Code is
amended to read:
   361.  (a) In all cases in which a minor is adjudged a dependent
child of the court on the ground that the minor is a person described
by Section 300, the court may limit the control to be exercised over
the dependent child by any parent or guardian and shall by its order
clearly and specifically set forth all those limitations.  Any
limitation on the right of the parent or guardian to make educational
decisions for the child shall be specifically addressed in the court
order.  The limitations shall not exceed those necessary to protect
the child.  Whenever the court specifically limits the right of the
parent or guardian to make educational decisions for the child, the
court shall at the same time appoint a responsible adult to make
educational decisions for the child until one of the following
occurs: (1) a surrogate parent is appointed pursuant to Section
7579.5 of the Government Code, (2) the minor reaches 18 years of age,
(3) another responsible adult is appointed to make educational
decisions for the minor pursuant to this section, or (4) the right of
the parent or guardian to make educational decisions for the minor
is fully restored.   An individual who would have a conflict of
interest in representing the child, as specified under federal
regulations, may not be appointed to make educational decisions. For
purposes of this section, "an individual who would have a conflict of
interest," means a person having any interests that might restrict
or bias his or her ability to advocate for all of the services
required to ensure a free appropriate public education for an
individual with exceptional needs, as defined in Section 56026 of the
Education Code. 
   (b) Nothing in subdivision (a) shall be construed to limit the
ability of a parent to voluntarily relinquish his or her child to the
State Department of Social Services or to a licensed county adoption
agency at any time while the child is a dependent child of the
juvenile court if the department or agency is willing to accept the
relinquishment.
   (c) No dependent child shall be taken from the physical custody of
his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated unless the juvenile
court finds clear and convincing evidence of any of the following:
   (1) There is a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor or would
be if the minor were returned home, and there are no reasonable
means by which the minor's physical health can be protected without
removing the minor from the minor's parents' or guardians' physical
custody.  The fact that a minor has been adjudicated a dependent
child of the court pursuant to subdivision (e) of Section 300 shall
constitute prima facie evidence that the minor cannot be safely left
in the custody of the parent or guardian with whom the minor resided
at the time of injury.  The court shall consider, as a reasonable
means to protect the minor, the option of removing an offending
parent or guardian from the home.  The court shall also consider, as
a reasonable means to protect the minor, allowing a nonoffending
parent or guardian to retain custody as long as that parent or
guardian presents a plan acceptable to the court demonstrating that
he or she will be able to protect the child from future harm.
   (2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that if the minor remains out of their physical custody for
the period specified in Section 366.25 or 366.26, the minor may be
declared permanently free from their custody and control.
   (3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, and there are no reasonable means by
which the minor's emotional health may be protected without removing
the minor from the physical custody of his or her parent or guardian.

   (4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by a
parent, guardian, or member of his or her household, or other person
known to his or her parent, and there are no reasonable means by
which the minor can be protected from further sexual abuse or a
substantial risk of sexual abuse without removing the minor from his
or her parent or guardian, or the minor does not wish to return to
his or her parent or guardian.
   (5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other
adult custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child and the
whereabouts of the parent is unknown and reasonable efforts to locate
him or her have been unsuccessful.
   (d) The court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home or, if the minor is removed for one of
the reasons stated in paragraph (5) of subdivision (c), whether it
was reasonable under the circumstances not to make any of those
efforts.  The court shall state the facts on which the decision to
remove the minor is based.
   (e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:
   (1) The minor has been taken from the custody of his or her parent
or guardian and has been living in an out-of-home placement pursuant
to Section 319.
   (2) The minor has been living in a voluntary out-of-home placement
pursuant to Section 16507.4.
  SEC. 3.  Section 726 of the Welfare and Institutions Code is
amended to read:
   726.  (a) In all cases wherein a minor is adjudged a ward or
dependent child of the court, the court may limit the control to be
exercised over the ward or dependent child by any parent or guardian
and shall by its order clearly and specifically set forth all those
limitations, but no ward or dependent child shall be taken from the
physical custody of a parent or guardian unless upon the hearing the
court finds one of the following facts:
   (1) That the parent or guardian is incapable of providing or has
failed or neglected to provide proper maintenance, training, and
education for the minor.
   (2) That the minor has been tried on probation in such custody and
has failed to reform.
   (3) That the welfare of the minor requires that custody be taken
from the minor's parent or guardian.
   (b) Whenever the court specifically limits the right of the parent
or guardian to make educational decisions for the minor, the court
shall at the same time appoint a responsible adult to make
educational decisions for the child until one of the following
occurs:  (1) a surrogate parent is appointed pursuant to Section
7579.5 of the Government Code, (2) the minor reaches 18 years of age,
(3) another responsible adult is appointed to make educational
decisions for the minor pursuant to this section, or (4) the right of
the parent or guardian to make educational decisions for the minor
is fully restored  .  An individual who would have a conflict of
interest in representing the child, as specified under federal
regulations, may not be appointed to make educational decisions.  For
purposes of this section, "an individual who would have a conflict
of interest," means a person having any interests that might restrict
or bias his or her ability to advocate for all of the services
required to ensure a free appropriate public education for an
individual with exceptional needs, as defined in Section 56026 of the
Education Code. 
   (c) In any case in which the minor is removed from the physical
custody of his or her parent or guardian as the result of an order of
wardship made pursuant to Section 602, the order shall specify that
the minor may not be held in physical confinement for a period in
excess of the maximum term of imprisonment which could be imposed
upon an adult convicted of the offense or offenses which brought or
continued the minor under the jurisdiction of the juvenile court.
   As used in this section and in Section 731, "maximum term of
imprisonment" means the longest of the three time periods set forth
in paragraph (2) of subdivision (a) of Section 1170 of the Penal
Code, but without the need to follow the provisions of subdivision
(b) of Section 1170 of the Penal Code or to consider time for good
behavior or participation pursuant to Sections 2930, 2931, and 2932
of the Penal Code, plus enhancements which must be proven if pled.
   If the court elects to aggregate the period of physical
confinement on multiple counts, or multiple petitions, including
previously sustained petitions adjudging the minor a ward within
Section 602, the "maximum term of imprisonment" shall be the
aggregate term of imprisonment specified in subdivision (a) of
Section 1170.1 of the Penal Code, which includes any additional term
imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the
Penal Code, and pursuant to Section 11370.2 of the Health and Safety
Code.
   If the charged offense is a misdemeanor or a felony not included
within the scope of Section 1170 of the Penal Code, the "maximum term
of imprisonment" is the longest term of imprisonment prescribed by
law.
   "Physical confinement" means placement in a juvenile hall, ranch,
camp, forestry camp or secure juvenile home pursuant to Section 730,
or in any institution operated by the Youth Authority.
   Nothing in this section shall be construed to limit the power of
the court to retain jurisdiction over a minor and to make appropriate
orders pursuant to Section 727 for the period permitted by Section
607.