BILL NUMBER: AB 408 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 5, 2003
AMENDED IN ASSEMBLY APRIL 9, 2003
INTRODUCED BY Assembly Member Steinberg
FEBRUARY 14, 2003
An act to amend Sections 349, 358.1, 366, 366.1, 366.21, 366.22,
366.26, 366.3, 10609.4, 16500.1, and 16508 of, and to add Section
362.05 to, the Welfare and Institutions Code, relating to dependent
children.
LEGISLATIVE COUNSEL'S DIGEST
AB 408, as amended, Steinberg. Dependent children.
(1) Existing law provides that children may become dependent
children of the juvenile court on the basis of abuse or neglect.
Existing law requires social workers and other, specified persons or
agencies to prepare social studies, reports, evaluations,
assessments, and supplemental reports for the juvenile court
containing specified information regarding children who are, or who
may become, dependent children of the juvenile court. Existing law
also requires county welfare departments to provide or arrange for
permanent placement services for children who cannot safely live with
their parents and are not likely to return to their own homes.
Existing law requires the court to review the status of every
child in foster care at least every 6 months, to determine specified
facts concerning the child, and to consider permanency planning
options regarding a child who is in long-term foster care, as
specified. Existing law also authorizes the court to terminate
parental rights in certain cases. Existing law also requires social
workers and the clerk of the court to send notice of hearings in the
juvenile court concerning a child who is or who may become a
dependent child of the court to that child if he or she is 10 years
of age or older.
The bill would require that the social studies, reports,
evaluations and assessments, and the case plans for permanent
placement services, described above include information regarding the
child's relationships with individuals who are important to the
child, and actions taken to maintain those relationships. The bill
would require social workers and certain agencies, as specified, to
make efforts to identify those persons and to make efforts to
maintain those relationships. If a court orders a hearing to
terminate parental rights, the bill would require the court to make
any appropriate order to enable the child to maintain those
relationships. The bill would require social workers and those
agencies to ask every child who is 10 years of age or older to
identify those persons , consistent with the child's best
interest . The bill would also authorize them to ask any child
who is younger than 10 years of age to identify those persons. The
bill would require that certain assessments include a description of
efforts made to identify a prospective adoptive parent or legal
guardian. By imposing new duties on local employees, the bill would
create a state-mandated local program.
The bill would also revise the permanency planning options a court
must consider regarding a child who is in foster care.
The bill would require that the notice of a hearing in the
juvenile court that is sent to a child who is 10 years of age or
older state that the child has the right to attend the hearing. The
bill would also require the court to determine whether a minor who is
10 years of age or older and who is not present at the hearing was
properly notified of his or her right to attend the hearing and to
inquire as to the reason why the child is not present.
(2) Existing law encourages the development of approaches to child
protection to achieve certain goals, including the goal of ensuring
that children leaving the foster care system have support within
their communities.
This bill would additionally require the state to encourage the
development of approaches to child protection that ensure that no
child leaves foster care without a lifelong connection to a committed
adult. The bill would provide that every dependent child shall be
entitled to participate in age appropriate extracurricular,
enrichment, and social activities and that state regulations and
policies may not prevent or create barriers to participation in those
activities.
(3) Existing federal law establishes the Independent Living
Program for foster youth to be administered by counties with federal
and state funds.
Existing law requires each county department of social services to
include in its annual Independent Living Program report an
accounting of federal and state funds allocated for implementation of
the program. Existing law provides that expenditures must be
related to the specific purposes of the program and provides a
descriptive list of the purposes the program may include. Those
purposes include providing each participant in the program with a
written transitional independent living plan that will be
incorporated in his or her case plan.
This bill would revise the list of permissible program purposes to
include convening persons who have been identified by the
participant as important to him or her for the purpose of providing
information to be included in his or her written transitional
independent living plan.
(4) 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, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
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 349 of the Welfare and Institutions Code is
amended to read:
349. A minor who is the subject of a juvenile court hearing and
any person entitled to notice of the hearing under the provisions of
Sections 290.1 and 290.2, is entitled to be present at the hearing.
The minor and any person who is entitled to that notice has the right
to be represented at the hearing by counsel of his or her own
choice. If the minor is 10 years of age or older and he or she is
not present at the hearing, the court shall determine whether the
minor was properly notified of his or her right to attend the
hearing.
SEC. 2. Section 358.1 of the Welfare and Institutions Code is
amended to read:
358.1. Each social study or evaluation made by a social worker or
child advocate appointed by the court, required to be received in
evidence pursuant to Section 358, shall include, but not be limited
to, a factual discussion of each of the following subjects:
(a) Whether the county welfare department or social worker has
considered child protective services, as defined in Chapter 5
(commencing with Section 16500) of Part 4 of Division 9, as a
possible solution to the problems at hand, and has offered these
services to qualified parents if appropriate under the circumstances.
(b) What plan, if any, for return of the child to his or her
parents and for achieving legal permanence for the child if efforts
to reunify fail, is recommended to the court by the county welfare
department or probation officer.
(c) Whether the best interests of the child will be served by
granting reasonable visitation rights with the child to his or her
grandparents, in order to maintain and strengthen the child's family
relationships.
(d) (1) Whether the child has siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(C) If the siblings are not placed together in the same home, why
the siblings are not placed together and what efforts are being made
to place the siblings together, or why those efforts are not
appropriate.
(D) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
(2) The factual discussion shall include a discussion of
indicators of the nature of the child's sibling relationships,
including, but not limited to, whether the siblings were raised
together in the same home, whether the siblings have shared
significant common experiences or have existing close and strong
bonds, whether either sibling expresses a desire to visit or live
with his or her sibling, as applicable, and whether ongoing contact
is in the child's best emotional interest.
(e) Whether the child has relationships with individuals other
than the child's siblings that are important to the child and actions
taken to maintain those relationships. The social worker shall ask
every child who is 10 years of age or older to identify any
individuals who are important to the child, consistent with the
child's best interest, and may ask any child who is younger
than 10 years of age to provide that information, as appropriate.
The social worker shall make efforts to identify other individuals
who are important to the child.
(f) If the parent or guardian is unwilling or unable to
participate in making an educational decision for his or her child,
or if other circumstances exist that compromise the ability of the
parent or guardian to make educational decisions for the child, the
county welfare department or social worker shall consider whether the
right of the parent or guardian to make educational decisions for
the child should be limited. If the study or evaluation makes that
recommendation, it shall identify whether there is a responsible
adult available to make educational decisions for the child pursuant
to Section 361.
(g) Whether the child appears to be a person who is eligible to be
considered for further court action to free the child from parental
custody and control.
(h) Whether the parent has been advised of his or her option to
participate in adoption planning, including the option to enter into
a postadoption contact agreement as described in Section 8714.7 of
the Family Code, and to voluntarily relinquish the child for adoption
if an adoption agency is willing to accept the relinquishment.
(i) The appropriateness of any relative placement pursuant to
Section 361.3; however, this consideration may not be cause for
continuance of the dispositional hearing.
SEC. 3. Section 362.05 is added to the Welfare and Institutions
Code, to read:
362.05. Every child adjudged a dependent child of the juvenile
court shall be entitled to participate in age appropriate
extracurricular, enrichment, and social activities. No state
regulation or policy may prevent or create barriers to participation
in those activities. Caregivers shall use a prudent parent standard
in determining whether to give permission for a child residing in
foster care to participate in extracurricular, enrichment, and social
activities. The caretaker shall take reasonable steps to determine
the appropriateness of the activity in consideration of the child's
age, maturity, and developmental level.
SEC. 4. Section 366 of the Welfare and Institutions Code is
amended to read:
366. (a) (1) The status of every dependent child in foster care
shall be reviewed periodically as determined by the court but no less
frequently than once every six months, as calculated from the date
of the original dispositional hearing, until the hearing described in
Section 366.26 is completed. The court shall consider the safety of
the child and shall determine all of the following:
(A) The continuing necessity for and appropriateness of the
placement.
(B) The extent of the agency's compliance with the case plan in
making reasonable efforts to return the child to a safe home and to
complete any steps necessary to finalize the permanent placement of
the child, including efforts to maintain relationships between the
child and individuals who are important to the child.
(C) Whether there should be any limitation on the right of the
parent or guardian to make educational decisions for the child. That
limitation shall be specifically addressed in the court order and
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 to make educational decisions for
the child pursuant to Section 361.
(D) (i) Whether the child has other siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(I) The nature of the relationship between the child and his or
her siblings.
(II) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(III) If the siblings are not placed together in the same home,
why the siblings are not placed together and what efforts are being
made to place the siblings together, or why those efforts are not
appropriate.
(IV) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(V) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
(VI) The continuing need to suspend sibling interaction, if
applicable, pursuant to subdivision (c) of Section 16002.
(ii) The factors the court may consider in making a determination
regarding the nature of the child's sibling relationships may
include, but are not limited to, whether the siblings were raised
together in the same home, whether the siblings have shared
significant common experiences or have existing close and strong
bonds, whether either sibling expresses a desire to visit or live
with his or her sibling, as applicable, and whether ongoing contact
is in the child's best emotional interests.
(E) The extent of progress which has been made toward alleviating
or mitigating the causes necessitating placement in foster care.
(2) The court shall project a likely date by which the child may
be returned to and safely maintained in the home or placed for
adoption, legal guardianship, or in another planned permanent living
arrangement.
(b) Subsequent to the hearing, periodic reviews of each child in
foster care shall be conducted pursuant to the requirements of
Sections 366.3 and 16503.
(c) If the child has been placed out of state, each review
described in subdivision (a) and any reviews conducted pursuant to
Sections 366.3 and 16503 shall also address whether the out-of-state
placement continues to be the most appropriate placement selection
and in the best interests of the child.
(d) A child may not be placed in an out-of-state group home, or
remain in an out-of-state group home, unless the group home is in
compliance with Section 7911.1 of the Family Code.
SEC. 5. Section 366.1 of the Welfare and Institutions Code is
amended to read:
366.1. Each supplemental report required to be filed pursuant to
Section 366 shall include, but not be limited to, a factual
discussion of each of the following subjects:
(a) Whether the county welfare department social worker has
considered child protective services, as defined in Chapter 5
(commencing with Section 16500) of Part 4 of Division 9, as a
possible solution to the problems at hand, and has offered those
services to qualified parents if appropriate under the circumstances.
(b) What plan, if any, for the return and maintenance of the child
in a safe home is recommended to the court by the county welfare
department social worker.
(c) Whether the subject child appears to be a person who is
eligible to be considered for further court action to free the child
from parental custody and control.
(d) What actions, if any, have been taken by the parent to correct
the problems that caused the child to be made a dependent child of
the court.
(e) If the parent or guardian is unwilling or unable to
participate in making an educational decision for his or her child,
or if other circumstances exist that compromise the ability of the
parent or guardian to make educational decisions for the child, the
county welfare department or social worker shall consider whether the
right of the parent or guardian to make educational decisions for
the child should be limited. If the supplemental report makes that
recommendation, the report shall identify whether there is a
responsible adult available to make educational decisions for the
child pursuant to Section 361.
(f) (1) Whether the child has any siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(C) If the siblings are not placed together in the same home, why
the siblings are not placed together and what efforts are being made
to place the siblings together, or why those efforts are not
appropriate.
(D) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
(2) The factual discussion shall include a discussion of
indicators of the nature of the child's sibling relationships
including, but not limited to, whether the siblings were raised
together in the same home, whether the siblings have shared
significant common experiences or have existing close and strong
bonds, whether either sibling expresses a desire to visit or live
with his or her sibling, as applicable, and whether ongoing contact
is in the child's best emotional interests.
(g) Whether the child has relationships with individuals other
than the child's siblings that are important to the child and actions
taken to maintain those relationships. The social worker shall ask
every child who is 10 years of age or older to identify any
individuals who are important to the child, consistent with the
child's best interest, and may ask any child who is younger
than 10 years of age to provide that information, as appropriate.
The social worker shall make efforts to identify other individuals
who are important to the child.
SEC. 6. 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 Section 366.23 and subdivision (a) of
Section 366.3, notice of the hearing shall be mailed by the social
worker to the same persons as in the original proceeding, including
the child, to the child's parent or legal guardian, to the foster
parents, relative caregivers, community care facility, or foster
family agency having physical custody of the child in the case of a
child removed from the physical custody of his or her parent or legal
guardian, and to the counsel of record if the counsel of record was
not present at the time that the hearing was set by the court, by
first-class mail addressed to the last known address of the person to
be notified, or shall be personally served on those persons, not
earlier than 30 days nor later than 15 days preceding the date to
which the hearing was continued. Service of a copy of the notice
personally or by certified mail return receipt requested, or any
other form of actual notice, is equivalent to service by first-class
mail.
The notice shall contain a statement regarding the nature of the
hearing to be held and any change in the custody or status of the
child being recommended by the supervising agency. The notice to the
child shall state that the child has the right to attend and
participate in the hearing. The notice to the foster parent,
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 in counties that are not served
by a county adoption agency or by a licensed county adoption agency
shall indicate that the foster parent, 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 in counties that are not served by a county adoption agency or
by a licensed county adoption agency may attend all hearings or may
submit to the court in writing any information he or she deems
relevant.
(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 the
child and individuals who are important to the child, 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 paragraph (3) 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
and counsel for the child 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
court-appointed child advocate, and any foster parents, relative
caregivers, 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.
(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 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. The court
shall consider the report and recommendation filed pursuant to this
subdivision prior to determining any disposition.
(e) 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. 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.
Whether or not 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 the age of three years on the date of the
initial removal, or is a member of a sibling group described in
paragraph (3) 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 the age of three years on the date of initial removal or is a
member of a sibling group described in paragraph (3) 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 paragraph (3) 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. 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) 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. 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, and shall
make appropriate findings pursuant to subdivision (a) of Section 366.
Whether or not 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.
(g) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in paragraph
(1), (2), or (3) 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 366.36 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) 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 shall not preclude a
different recommendation at a later date if the child's circumstances
change.
(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 other
individuals who are important to the child.
(i) 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:
(1) Current search efforts for an absent parent or parents or
legal guardians.
(2) Identification of individuals who are important to the child
and actions necessary to maintain the child's relationship with those
individuals. The agency shall make efforts to identify individuals
who are important to the child, including, but not limited to, all
individuals identified by the child as important. The agency shall
ask every child who is 10 years of age or older to identify any
individuals who are important to him or her , consistent with the
child's best interest, and may ask any child who is younger
than 10 years of age to provide that information as appropriate.
(3) 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
paragraph shall include, but not be limited to, the child's siblings,
grandparents, aunts, and uncles.
(4) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(5) 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.
(6) 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.
(7) 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.
(8) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(j) 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 in
Article 4.5 (commencing with Section 11360) 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.
(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. 7. Section 366.22 of the Welfare and Institutions Code is
amended to read:
366.22. (a) When a case has been continued pursuant to paragraph
(1) 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. 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. 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.
Whether or not 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 return would be detrimental.
If 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, guardianship, or long-term foster care is the most
appropriate plan for the child. 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 in counties that are
not served by a county adoption agency or by a licensed county
adoption agency, that there is a compelling reason, as described in
paragraph (2) 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
and has no one willing to accept legal guardianship, then the court
may, only under these circumstances, order that the child remain in
long-term foster care. 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:
(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.
(b) 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:
(1) Current search efforts for an absent parent or parents.
(2) 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.
(3) Identification of individuals who are important to the child
and actions necessary to maintain the child's relationship with
those individuals. The agency shall ask every child who is 10 years
of age or older to identify any individuals who are important to him
or her , consistent with the child's best interest, and
may ask any child who is 10 years of age to provide that information
as appropriate. The agency shall make efforts to identify other
individuals who are important to the child.
(4) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(5) 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, 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.
(6) 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 legal
guardianship, and a statement from the child concerning placement and
the adoption or legal 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.
(7) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(c) 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 a relative, and juvenile court
dependency is subsequently dismissed, the relative shall be eligible
for aid under the Kin-GAP program as provided in Article 4.5
(commencing with Section 11360) of Chapter 2 of Part 3 of Division 9.
(d) 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.
SEC. 8. 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 (c)
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 8714.7 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 (c) 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, that 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, or 366.22,
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) On making a finding under paragraph (3) of subdivision (c),
identify 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.
(3) Appoint a legal guardian for the child and order that letters
of guardianship issue.
(4) Order that the child be placed in long-term foster care,
subject to 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 or subdivision (b)
of Section 366.22, 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 unless 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:
(A) The parents or guardians have maintained regular visitation
and contact with the child and the child would benefit from
continuing the relationship.
(B) A child 12 years of age or older objects to termination of
parental rights.
(C) 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.
(D) The child is living with a relative or foster parent 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 relative or foster parent would be detrimental to the
emotional well-being of the child. This subparagraph does not apply
to any child who is living with a nonrelative and 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.
(E) 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.
If the court finds that termination of parental rights would be
detrimental to the child pursuant to subparagraph (A), (B), (C), (D),
or (E), it shall state its reasons in writing or on the record.
(2) The court shall not terminate parental rights if at each and
every 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.
(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 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, 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), (3), or (4) 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 the
age of seven years or more.
(4) 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 subparagraph (A), (B), (C), (D) or (E) of
paragraph (1) or in paragraph (2) applies, the court shall either
order that the present caretakers or other appropriate persons shall
become legal guardians of the child or order that the child remain in
long-term foster care. Legal guardianship shall be considered
before long-term foster care, if it is in the best interests of the
child and if a suitable guardian can be found. When the child is
living with a relative or a foster parent who is willing and capable
of providing a stable and permanent environment, but not willing to
become a legal guardian, 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 or foster parents. 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, 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 which has been certified by
the agency as meeting licensing standards. The licensed foster
family agency shall be responsible for supporting the child and for
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, and subdivision (b) of Section 366.22 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) 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.
(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) The court shall consider whether the interests of the child
require the appointment of counsel. If the court finds that the
interests of the child do require this protection, the court shall
appoint counsel to represent the child. If the court finds that the
interests of the child require the representation of counsel, counsel
shall be appointed whether or not the child is able to afford
counsel. The child shall not be present in court unless the child or
the child's counsel so requests or the court so orders.
(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 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) 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 exist:
(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) 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 court shall have no power to
set aside, change, or modify it, but nothing in this section shall be
construed to limit the right to appeal the order.
(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, the court shall at the same
time order the child referred to the State Department of Social
Services or a licensed adoption agency for adoptive placement by the
agency. However, no petition for adoption may be granted until the
appellate rights of the natural parents have been exhausted. The
State Department of Social Services 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 is granted. 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 provision of 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 applies:
(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 they
are 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 and 366.22 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.
SEC. 9. Section 366.3 of the Welfare and Institutions Code is
amended to read:
366.3. (a) If a juvenile court orders a permanent plan of
adoption or legal guardianship pursuant to Section 360 or 366.26, the
court shall retain jurisdiction over the child until the child is
adopted or the legal guardianship is established, except as provided
for in Section 366.29. The status of the child shall be reviewed
every six months to ensure that the adoption or legal guardianship is
completed as expeditiously as possible. When the adoption of the
child has been granted, the court shall terminate its jurisdiction
over the child. Following establishment of a legal guardianship, the
court may continue jurisdiction over the child as a dependent child
of the juvenile court or may terminate its dependency jurisdiction
and retain jurisdiction over the child as a ward of the legal
guardianship, as authorized by Section 366.4. If, however, a
relative of the child is appointed the legal guardian of the child
and the child has been placed with the relative for at least 12
months, the court shall, except if the relative guardian objects, or
upon a finding of exceptional circumstances, terminate its dependency
jurisdiction and retain jurisdiction over the child as a ward of the
guardianship, as authorized by Section 366.4. Following a
termination of parental rights the parent or parents shall not be a
party to, or receive notice of, any subsequent proceedings regarding
the child.
(b) If the court has dismissed dependency jurisdiction following
the establishment of a legal guardianship, or no dependency
jurisdiction attached because of the granting of a legal guardianship
pursuant to Section 360, and the legal guardianship is subsequently
revoked or otherwise terminated, the county department of social
services or welfare department shall notify the juvenile court of
this fact. The court may vacate its previous order dismissing
dependency jurisdiction over the child.
Notwithstanding Section 1601 of the Probate Code, the proceedings
to terminate a legal guardianship that has been granted pursuant to
Section 360 or 366.26 shall be held in the juvenile court, unless the
termination is due to the emancipation or adoption of the child.
Prior to the hearing on a petition to terminate legal guardianship
pursuant to this paragraph, the court shall order the county
department of social services or welfare department to prepare a
report, for the court's consideration, that shall include an
evaluation of whether the child could safely remain in the legal
guardian's home, without terminating the legal guardianship, if
services were provided to the child or legal guardian. If
applicable, the report shall also identify recommended services to
maintain the legal guardianship and set forth a plan for providing
those services. If the petition to terminate legal guardianship is
granted, the juvenile court may resume dependency jurisdiction over
the child, and may order the county department of social services or
welfare department to develop a new permanent plan, which shall be
presented to the court within 60 days of the termination. If no
dependency jurisdiction has attached, the social worker shall make
any investigation he or she deems necessary to determine whether the
child may be within the jurisdiction of the juvenile court, as
provided in Section 328.
Unless the parental rights of the child's parent or parents have
been terminated, they shall be notified that the legal guardianship
has been revoked or terminated and shall be entitled to participate
in the new permanency planning hearing. The court shall try to place
the child in another permanent placement. At the hearing, the
parents may be considered as custodians but the child shall not be
returned to the parent or parents unless they prove, by a
preponderance of the evidence, that reunification is the best
alternative for the child. The court may, if it is in the best
interests of the child, order that reunification services again be
provided to the parent or parents.
(c) If, following the establishment of a legal guardianship, the
county welfare department becomes aware of changed circumstances that
indicate adoption may be an appropriate plan for the child, the
department shall so notify the court. The court may vacate its
previous order dismissing dependency jurisdiction over the child and
order that a hearing be held pursuant to Section 366.26 to determine
whether adoption or continued legal guardianship is the most
appropriate plan for the child. The hearing shall be held no later
than 120 days from the date of the order. If the court orders that a
hearing shall be held pursuant to Section 366.26, the court shall
direct the agency supervising the child and the licensed county
adoption agency, or the State Department of Social Services if it is
acting as an adoption agency in counties that are not served by a
county adoption agency, to prepare an assessment under subdivision
(b) of Section 366.22.
(d) If the child is in a placement other than the home of a legal
guardian and jurisdiction has not been dismissed, the status of the
child shall be reviewed at least every six months. The review of the
status of a child for whom the court has ordered parental rights
terminated and who has been ordered placed for adoption shall be
conducted by the court. The review of the status of a child for whom
the court has not ordered parental rights terminated and who has not
been ordered placed for adoption may be conducted by the court or an
appropriate local agency. The court shall conduct the review under
the following circumstances:
(1) Upon the request of the child's parents or legal guardians.
(2) Upon the request of the child.
(3) It has been 12 months since a hearing held pursuant to Section
366.26 or an order that the child remain in long-term foster care
pursuant to Section 366.21, 366.22, 366.26, or subdivision (g).
(4) It has been 12 months since a review was conducted by the
court.
The court shall determine whether or not reasonable efforts to
make and finalize a permanent placement for the child have been made.
(e) Except as provided in subdivision (f), at the review held
every six months pursuant to subdivision (d), the reviewing body
shall inquire about the progress being made to provide a permanent
home for the child, shall consider the safety of the child, and shall
determine all of the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) The continuing appropriateness and extent of compliance with
the permanent plan for the child, including efforts to maintain
relationships between the child and individuals who are important to
the child and efforts to identify a prospective adoptive parent or
legal guardian, including, but not limited to, child specific
recruitment efforts and listing on an adoption exchange.
(3) The extent of the agency's compliance with the child welfare
services case plan in making reasonable efforts to return the child
to a safe home and to complete whatever steps are necessary to
finalize the permanent placement of the child.
(4) Whether there should be any limitation on the right of the
parent or guardian to make educational decisions for the child. That
limitation shall be specifically addressed in the court order and
may not exceed what is necessary to protect the child. If 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 pursuant to Section 361.
(5) The adequacy of services provided to the child. The court
shall consider the progress in providing the information and
documents to the child, as described in Section 391. The court shall
also consider the need for, and progress in providing, the
assistance and services described in paragraphs (3) and (4) of
subdivision (b) of Section 391.
(6) The extent of progress the parents or legal guardians have
made toward alleviating or mitigating the causes necessitating
placement in foster care.
(7) The likely date by which the child may be returned to and
safely maintained in the home, placed for adoption, legal
guardianship, or in another planned permanent living arrangement.
(8) Whether the child has any siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(C) If the siblings are not placed together in the same home, why
the siblings are not placed together and what efforts are being made
to place the siblings together, or why those efforts are not
appropriate.
(D) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
The factors the court may consider as indicators of the nature of
the child's sibling relationships include, but are not limited to,
whether the siblings were raised together in the same home, whether
the siblings have shared significant common experiences or have
existing close and strong bonds, whether either sibling expresses a
desire to visit or live with his or her sibling, as applicable, and
whether ongoing contact is in the child's best emotional interests.
(9) For a child who is 16 years of age or older, the services
needed to assist the child to make the transition from foster care to
independent living.
The reviewing body shall determine whether or not reasonable
efforts to make and finalize a permanent placement for the child have
been made.
Each licensed foster family agency shall submit reports for each
child in its care, custody, and control to the court concerning the
continuing appropriateness and extent of compliance with the child's
permanent plan, the extent of compliance with the case plan, and the
type and adequacy of services provided to the child.
Unless their parental rights have been permanently terminated, the
parent or parents of the child are entitled to receive notice of,
and participate in, those hearings. It shall be presumed that
continued care is in the best interests of the child, unless the
parent or parents prove, by a preponderance of the evidence, that
further efforts at reunification are the best alternative for the
child. In those cases, the court may order that further
reunification services to return the child to a safe home environment
be provided to the parent or parents for a period not to exceed six
months.
(f) At the review conducted by the court and held at least every
six months, regarding a child for whom the court has ordered parental
rights terminated and who has been ordered placed for adoption, the
county welfare department shall prepare and present to the court a
report describing the following:
(1) The child's present placement.
(2) The child's current physical, mental, emotional, and
educational status.
(3) Identification of individuals who are important to the child
and actions necessary to maintain the child's relationship with
those individuals. The agency shall ask every child who is 10 years
of age or older to identify any individuals who are important to him
or her , consistent with the child's best interest, and
may ask any child who is 10 years of age to provide that information
as appropriate. The agency shall make efforts to identify other
individuals who are important to the child.
(4) Whether the child has been placed with a prospective adoptive
parent or parents.
(5) Whether an adoptive placement agreement has been signed and
filed.
(6) If the child has not been placed with a prospective adoptive
parent or parents, the efforts made to identify an appropriate
prospective adoptive parent or legal guardian including, but not
limited to, child specific recruitment and listing on an adoption
exchange.
(7) Whether the final adoption order should include provisions for
postadoptive sibling contact pursuant to Section 366.29.
(8) The progress of the search for an adoptive placement if one
has not been identified.
(9) Any impediments to the adoption or the adoptive placement.
(10) The anticipated date by which the child will be adopted, or
placed in an adoptive home.
(11) The anticipated date by which an adoptive placement agreement
will be signed.
(12) Recommendations for court orders that will assist in the
placement of the child for adoption or in the finalization of the
adoption.
The court shall determine whether or not reasonable efforts to
make and finalize a permanent placement for the child have been made.
The court shall make appropriate orders to protect the stability
of the child and to facilitate and expedite the permanent placement
and adoption of the child.
(g) At the review held pursuant to subdivision (d) for a child in
long-term foster care, the court shall consider all permanency
planning options for the child including whether the child should be
returned to the home of the parent, placed for adoption, or appointed
a legal guardian, or, if compelling reasons exist for finding that
none of the foregoing options are in the best interest of the child,
whether the child should be placed in another planned permanent
living arrangement. The court shall order that a hearing be held
pursuant to Section 366.26 unless it determines by clear and
convincing evidence, 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 being returned to
the home of the parent, the child is not a proper subject for
adoption, or no one is willing to accept legal guardianship. If the
licensed county adoption agency, or the department when it is acting
as an adoption agency in counties that are not served by a county
adoption agency, has determined it is unlikely that the child will be
adopted or one of the conditions described in paragraph (1) of
subdivision (c) of Section 366.26 applies, that fact shall constitute
a compelling reason for purposes of this subdivision. Only upon
that determination may the court order that the child remain in
foster care, without holding a hearing pursuant to Section 366.26.
(h) If, as authorized by subdivision (g), the court orders a
hearing pursuant to Section 366.26, the court 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 as provided for in subdivision (i)
of Section 366.21 or subdivision (b) of Section 366.22. A hearing
held pursuant to Section 366.26 shall be held no later than 120 days
from the date of the 12-month review at which it is ordered, and at
that hearing the court shall determine whether adoption, legal
guardianship, or long-term foster care is the most appropriate plan
for the child.
SEC. 10. Section 10609.4 of the Welfare and Institutions Code is
amended to read:
10609.4. (a) On or before July 1, 2000, the State Department of
Social Services, in consultation with county and state
representatives, foster youth, and advocates, shall do both of the
following:
(1) Develop statewide standards for the implementation and
administration of the Independent Living Program established pursuant
to the federal Consolidated Omnibus Budget Reconciliation Act of
1985 (Public Law 99-272).
(2) Define the outcomes for the Independent Living Program and the
characteristics of foster youth enrolled in the program for data
collection purposes.
(b) Each county department of social services shall include in its
annual Independent Living Program report both of the following:
(1) An accounting of federal and state funds allocated for
implementation of the program. Expenditures shall be related to the
specific purposes of the program. Program purposes may include, but
are not limited to, all of the following:
(A) Enabling participants to seek a high school diploma or its
equivalent or to take part in appropriate vocational training, and
providing job readiness training and placement services, or building
work experience and marketable skills, or both.
(B) Providing training in daily living skills, budgeting, locating
and maintaining housing, and career planning.
(C) Providing for individual and group counseling.
(D) Integrating and coordinating services otherwise available to
participants.
(E) Providing each participant with a written transitional
independent living plan that will be based on an assessment of his or
her needs, that includes information provided by persons who have
been identified by the participant as important to the participant,
and that will be incorporated into his or her case plan.
(F) Providing participants with other services and assistance
designed to improve independent living.
(G) Convening persons who have been identified by the participant
as important to him or her for the purpose of providing information
to be included in his or her written transitional independent living
plan.
(2) A detail of the characteristics of foster youth enrolled in
their independent living programs and the outcomes achieved based on
the information developed by the department pursuant to subdivision
(a).
(c) In consultation with the department, a county may use
different methods and strategies to achieve the standards and
outcomes of the Independent Living Program developed pursuant to
subdivision (a).
(d) In consultation with the County Welfare Directors Association,
the California Youth Connection, and other stakeholders, the
department shall develop and
adopt emergency regulations in accordance with Section 11346.1 of
the Government Code that counties shall be required to meet when
administering the Independent Living Program and that are achievable
within existing program resources. The initial adoption of emergency
regulations and one readoption of the initial regulations shall be
deemed to be an emergency and necessary for the immediate
preservation of the public peace, health and safety, or general
welfare. Initial emergency regulations and the first readoption of
those regulations shall be exempt from review by the Office of
Administrative Law. The initial emergency regulations and the first
readoption of those regulations authorized by this subdivision shall
be submitted to the Office of Administrative Law for filing with the
Secretary of State and each shall remain in effect for no more than
180 days.
SEC. 11. Section 16500.1 of the Welfare and Institutions Code is
amended to read:
16500.1. (a) It is the intent of the Legislature to use the
strengths of families and communities to serve the needs of children
who are alleged to be abused or neglected, as described in Section
300, to reduce the necessity for removing these children from their
home, to encourage speedy reunification of families when it can be
safely accomplished, to locate permanent homes and families for
children who cannot return to their biological families, to reduce
the number of placements experienced by these children, to ensure
that children leaving the foster care system have support within
their communities, to improve the quality and homelike nature of
out-of-home care, and to foster the educational progress of children
in out-of-home care.
(b) In order to achieve the goals specified in subdivision (a),
the state shall encourage the development of approaches to child
protection that do all of the following:
(1) Allow children to remain in their own schools, in close
proximity to their families.
(2) Increase the number and quality of foster families available
to serve these children.
(3) Use a team approach to foster care that permits the biological
and foster family to be part of that team.
(4) Use team decisionmaking in case planning.
(5) Provide support to foster children and foster families.
(6) Ensure that licensing requirements do not create barriers to
recruitment of qualified, high quality foster homes.
(7) Provide training for foster parents and professional staff on
working effectively with families and communities.
(8) Encourage foster parents to serve as mentors and role models
for biological parents.
(9) Use community resources, including community-based agencies
and volunteer organizations, to assist in developing placements for
children and to provide support for children and their families.
(10) Ensure an appropriate array of placement resources for
children in need of out-of-home care.
(11) Ensure that no child leaves foster care without a life-long
connection to a committed adult.
(c) In carrying out the requirements of subdivision (b), the
department shall do all of the following:
(1) Consider the existing array of program models provided in
statute and in practice, including, but not limited to, wraparound
services, as defined in Section 18251, children's systems of care, as
provided for in Section 5852, the Oregon Family Unity or Santa Clara
County Family Conference models, which include family conferences at
key points in the casework process, such as when out-of-home
placement or return home are considered, and the Annie E. Casey
Foundation Family to Family initiative, which uses team
decisionmaking in case planning, community-based placement practices
requiring that children be placed in foster care in the communities
where they resided prior to placement, and involve foster families as
team members in family reunification efforts.
(2) Ensure that emergency response services, family maintenance
services, family reunification services, and permanent placement
services are coordinated with the implementation of the models
described in paragraph (1).
(3) Ensure consistency between child welfare services program
regulations and the program models described in paragraph (1).
(d) The department, in conjunction with stakeholders, including,
but not limited to, county child welfare services agencies, foster
parent and group home associations, the California Youth Connection,
and other child advocacy groups, shall review the existing child
welfare services program regulations to ensure that these regulations
are consistent with the legislative intent specified in subdivision
(a). This review shall also determine how to incorporate the best
practice guidelines for assessment of children and families receiving
child welfare and foster care services, as required by Section
16501.2.
(e) The department shall report to the Legislature on the results
of the actions taken under this section on or before January 1, 2002.
SEC. 12. Section 16508 of the Welfare and Institutions Code is
amended to read:
16508. (a) Permanent placement services shall be provided or
arranged for by county welfare department staff for children who
cannot safely live with their parents and are not likely to return to
their own homes. Permanent placement services shall be available
without regard to income to the following children:
(1) Children judged dependent under Section 300 where a review has
determined that reunification, adoption, or guardianship is
inappropriate.
(2) Recipients of public assistance under nonfederally funded Aid
to Families with Dependent Children programs who are wards of a legal
guardian where a review has determined that reunification or
adoption is inappropriate.
(b) The social worker shall include in every case plan for
permanent placement services a discussion of individuals who are
important to the child and a plan for maintaining the child's
relationship with those individuals. The social worker shall ask
every child who is 10 years of age or older to identify any
individuals who are important to him or her , consistent with
the child's best interest, and may ask any child who is younger
than 10 years of age to provide that information as appropriate.
The social worker shall make efforts to identify other individuals
who are important to the child.
SEC. 13. Notwithstanding Section 17610 of the Government Code, 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. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.