BILL NUMBER: AB 886 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 11, 2002
AMENDED IN SENATE MAY 28, 2002
AMENDED IN SENATE APRIL 30, 2002
AMENDED IN SENATE MARCH 11, 2002
AMENDED IN ASSEMBLY JANUARY 28, 2002
AMENDED IN ASSEMBLY JANUARY 9, 2002
INTRODUCED BY Assembly Members 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, 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
in which 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
with legal custody 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 successor guardian or
conservator, the court shall appoint a responsible adult
with legal custody to make educational decisions for the
minor until a successor 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 with legal
custody to make educational decisions for the minor until
the guardian or conservator is again authorized to make educational
decisions for the child, as specified. 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 successor
guardian or conservator, the court shall at the same time appoint a
responsible adult with legal custody to make
educational decisions for the minor until a successor 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 with legal custody 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 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 make educational decisions, including, but not limited
to, those conflicts of interest prohibited by Section 1126 of the
Government Code, and the receipt of compensation or attorneys' fees
for the provision of services pursuant to this section. A
foster parent may not be deemed to have a conflict of interest solely
because he or she receives compensation for the provision of
services pursuant to this section.
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 may 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
with legal custody to make educational decisions for the
child until one of the following occurs:
(1) The minor reaches 18 years of age, unless the child chooses
not to make educational decisions for himself or herself, or is
deemed by the court to be incompetent.
(2) Another responsible adult is appointed to make educational
decisions for the minor pursuant to this section.
(3) The right of the parent or guardian to make educational
decisions for the minor is fully restored.
(4) A successor guardian or conservator is appointed
to make educational decisions for the minor .
(5) The child is placed into long-term foster care pursuant to
paragraph (3) of subdivision (g) of Section 366.21, Section 366.22,
or Section 366.26, at which time the foster parent shall have the
right to represent the child in educational matters pursuant to
Section 56055 of the Education Code.
An individual who would have a conflict of interest in
representing the child 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 make educational
decisions, including, but not limited to, those conflicts of interest
prohibited by Section 1126 of the Government Code, and the receipt
of compensation or attorneys' fees for the provision of services
pursuant to this section. A foster parent may not be deemed to
have a conflict of interest solely because he or she receives
compensation for the provision of services pursuant to this section.
(b) Subdivision (a) may not 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) A dependent child may not 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 in which 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 in 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 while in 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) The minor reaches 18 years of age, unless the child chooses
not to make educational decisions for himself or herself, or is
deemed by the court to be incompetent.
(2) Another responsible adult is appointed to make educational
decisions for the minor pursuant to this section.
(3) The right of the parent or guardian to make educational
decisions for the minor is fully restored.
(4) A successor guardian or conservator is appointed
to make educational decisions for the minor .
(5) The child is placed into long-term foster care pursuant to
paragraph (3) of subdivision (g) of Section 366.21, Section 366.22,
or Section 366.26, at which time the foster parent shall have the
right to represent the child in educational matters pursuant to
Section 56055 of the Education Code.
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 make educational decisions, including, but not
limited to, those conflicts of interest prohibited by Section 1126 of
the Government Code, and the receipt of compensation or attorneys'
fees for the provision of services pursuant to this section. A
foster parent may not be deemed to have a conflict of interest solely
because he or she receives compensation for the provision of
services pursuant to this section.
(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.