BILL NUMBER: AB 1757 CHAPTERED
BILL TEXT
CHAPTER 638
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2012
APPROVED BY GOVERNOR SEPTEMBER 27, 2012
PASSED THE SENATE AUGUST 21, 2012
PASSED THE ASSEMBLY AUGUST 24, 2012
AMENDED IN SENATE AUGUST 15, 2012
AMENDED IN SENATE AUGUST 7, 2012
AMENDED IN SENATE JULY 3, 2012
AMENDED IN ASSEMBLY APRIL 11, 2012
AMENDED IN ASSEMBLY MARCH 29, 2012
INTRODUCED BY Assembly Member Fletcher
FEBRUARY 17, 2012
An act to amend Sections 7663, 7870, 7880, 8700, 8714, 8802, 8810,
and 8912 of, to add Sections 8609.5 and 8700.5 to, and to repeal
Sections 7828, 7829, and 9211 of, the Family Code, to amend Section
1513 of the Probate Code, and to amend Section 329 of the Welfare and
Institutions Code, relating to adoption.
LEGISLATIVE COUNSEL'S DIGEST
AB 1757, Fletcher. Family law: adoption.
(1) Existing law provides for the termination of parental rights
in adoption proceedings. In connection with those proceedings,
existing law requires a court to inquire of the mother and other
specified persons and entities in an effort to identify the natural
father of the child to be adopted.
This bill would permit a court to extend its inquiry as to the
child's parentage, in cases involving stepparent adoptions, to the
licensed clinical social worker or licensed marriage and family
therapist investigating the adoption, if applicable.
(2) Existing law provides that parental rights may be terminated
under certain circumstances, including where the child has been
abandoned, neglected, or abused by his or her parent or parents, and
if the child has been declared a dependent of the juvenile court.
This bill would eliminate superseded statutory provisions
concerning the termination of the parental rights of dependent
children.
(3) Under existing law, when a petition to declare a child free
from parental custody and control is filed, the person having custody
or control of the child must be served with a citation requiring
that person and the child to appear in court, except as specified. A
proceeding to declare a child free from parental custody and control
is required to be set for trial within 45 days of service of the
petition.
This bill would require the party or attorney responsible for
serving the citation in a proceeding to declare a child free from
parental custody and control to serve the citation promptly. The bill
would further require the hearing on the petition be held within 45
days of the filing of the petition. Additionally, this bill would
authorize a court to issue an order in that proceeding without a
trial if service has been completed and no interested person appears
to contest the petition.
(4) Existing law provides that, after a consent to an adoption is
signed by the birth parent or parents, the birth parent or parents
signing the consent have 30 days to take one of specified actions,
including signing a waiver of the right to revoke consent. Under
existing law, a waiver must be signed in the presence of a
representative of the department or the delegated county adoption
agency, the adoption service provider who advised the birth mother
and witnessed the signing of the consent to the adoption if the birth
parent or parents are represented by independent legal counsel, or
if the birth parent or parents are represented by independent legal
counsel, the waiver can also be signed in the presence of a judicial
officer of the court of record or an adoption service provider.
This bill would permit a relinquishing birth parent to sign a
waiver of the right to revoke relinquishment in the presence of a
representative of the department or delegated county adoption agency,
a public adoption agency of another state, or, if the birth parent
or parents are represented by independent legal counsel, an
authorized representative of a licensed private adoption agency in or
outside of California, or by a judicial officer of a court in or
outside of California. The bill would also set forth the role of
independent legal counsel, as specified. The bill would set forth a
specified certificate for that counsel to use in those proceedings.
To the extent that this bill would impose new duties on county
agencies, it would impose a state-mandated local program.
(5) Under existing law, a petition for adoption may be filed in
the county in which the petitioner resides, where the birth parent or
parents relinquished the child, where the placing birth parent or
parents resided when the adoption placement agreement was signed,
where the adoption agency, department, or public adoption agency is
located, or, in the case of a dependent child, in the county where
the child was freed for adoption.
This bill would revise and consolidate these provisions by
providing that an adoption petition of a nondependent child may be
filed in any of those locations. The bill would not alter the venue
provisions for the adoption of dependent children.
(6) Existing law requires prospective adoptive parents to pay a
fee to the department or delegated county adoption agency for the
cost of investigating the adoption petition. Petitioners with valid
preplacement evaluations are charged a lesser fee for that
investigation.
Under this bill, petitioners with an agency adoption home study
less than 2 years old would also be eligible for this lesser fee. In
addition, this bill would provide that petitioners with a valid
preplacement evaluation are eligible for the lesser fee only if that
evaluation is less than one year old.
(7) Existing law permits a court investigator, probation officer,
or domestic relations investigator to investigate and file a report
containing recommendations concerning a proposed guardianship of a
person. If the investigation reveals that any party to the proposed
guardianship is alleging that the minor's parent is unfit, the court
is required to refer the case to the county agency designated to
investigate potential dependencies. Under existing law, the
guardianship proceedings cannot be completed until the dependency
investigation is completed and the probate court receives the agency'
s report.
This bill would give a court in a guardianship proceeding
involving a minor discretion to order an investigation by Child
Protective Services. Under the bill, the probate court could take any
reasonable steps the court deemed necessary to protect the child's
safety, including appointing a temporary guardian or issuing a
temporary restraining order. The bill would also provide that the
author of any guardianship investigation reports and dependency
investigation reports could be examined in probate court concerning
the report, and would authorize the court to make the final decision
regarding guardianship. Further, this bill would make all
guardianship investigation reports and dependency investigation
reports confidential.
(8) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 7663 of the Family Code is amended to read:
7663. (a) In an effort to identify the natural father, the court
shall cause inquiry to be made of the mother and any other
appropriate person by one of the following:
(1) The State Department of Social Services.
(2) A licensed county adoption agency.
(3) The licensed adoption agency to which the child is to be
relinquished.
(4) In the case of a stepparent adoption, the licensed clinical
social worker or licensed marriage and family therapist who is
performing the investigation pursuant to Section 9001, if applicable.
In the case of a stepparent adoption in which no licensed clinical
social worker or licensed marriage and family therapist is performing
the investigation pursuant to Section 9001, the board of supervisors
may assign those inquiries to a licensed county adoption agency, the
county department designated by the board of supervisors to
administer the public social services program, or the county
probation department.
(b) The inquiry shall include all of the following:
(1) Whether the mother was married at the time of conception of
the child or at any time thereafter.
(2) Whether the mother was cohabiting with a man at the time of
conception or birth of the child.
(3) Whether the mother has received support payments or promises
of support with respect to the child or in connection with her
pregnancy.
(4) Whether any man has formally or informally acknowledged or
declared his possible paternity of the child.
(5) The names and whereabouts, if known, of every man presumed or
alleged to be the father of the child, and the efforts made to give
notice of the proposed adoption to each man identified.
(c) The agency that completes the inquiry shall file a written
report of the findings with the court.
SEC. 2. Section 7828 of the Family Code is repealed.
SEC. 3. Section 7829 of the Family Code is repealed.
SEC. 4. Section 7870 of the Family Code is amended to read:
7870. (a) It is the public policy of this state that judicial
proceedings to declare a child free from parental custody and control
shall be fully determined as expeditiously as possible.
(b) Notwithstanding any other provision of law, a proceeding to
declare a child free from parental custody and control pursuant to
this part shall be set for hearing not more than 45 days after the
filing of the petition. If, at the time set for hearing, or at any
continuance thereof, service has been completed and no interested
person appears to contest, the court may issue an order based on the
verified pleadings and any other evidence as may be submitted. If any
interested person appears to contest the matter, the court shall set
the matter for trial. The matter so set has precedence over all
other civil matters on the date set for trial.
(c) The court may continue the proceeding as provided in Section
7864 or Section 7871.
SEC. 5. Section 7880 of the Family Code is amended to read:
7880. (a) Upon the filing of the petition, a citation shall issue
requiring any person having the custody or control of the child, or
the person with whom the child is, to appear at a time and place
stated in the citation.
(b) The citation shall also require the person to appear with the
child except that, if the child is under the age of 10 years,
appearance with the child is required only upon order of the court
after necessity has been shown.
(c) Service of the citation shall be made in the manner prescribed
by law for service of civil process at least 10 days before the time
stated in the citation for the appearance. The party or attorney
responsible for serving the citation shall do so in a timely manner
in order to maximize the response time available to the party being
served.
SEC. 6. Section 8609.5 is added to the Family Code, to read:
8609.5. An adoption request for the adoption of a nondependent
minor may be filed with the court in the county in which one of the
following applies:
(a) The petitioner resides.
(b) The child was born or resides at the time of filing.
(c) An office of the agency that placed the child for adoption is
located.
(d) An office of the department or a public adoption agency that
is investigating the petition is located.
(e) The county in which a placing birth parent or parents resided
when the adoptive placement agreement, consent, or relinquishment was
signed.
(f) The county in which a placing birth parent or parents resided
when the petition was filed.
(g) The county in which the child was freed for adoption.
SEC. 7. Section 8700 of the Family Code is amended to read:
8700. (a) Either birth parent may relinquish a child to the
department, county adoption agency, or licensed adoption agency for
adoption by a written statement signed before two subscribing
witnesses and acknowledged before an authorized official of the
department, county adoption agency, or licensed adoption agency. The
relinquishment, when reciting that the person making it is entitled
to the sole custody of the child and acknowledged before the officer,
is prima facie evidence of the right of the person making it to the
sole custody of the child and the person's sole right to relinquish.
(b) A relinquishing parent who is a minor has the right to
relinquish his or her child for adoption to the department, county
adoption agency, or licensed adoption agency, and the relinquishment
is not subject to revocation by reason of the minority.
(c) If a relinquishing parent resides outside this state and the
child is being cared for and is or will be placed for adoption by the
department, county adoption agency, or a licensed adoption agency,
the relinquishing parent may relinquish the child to the department,
county adoption agency, or licensed adoption agency by a written
statement signed by the relinquishing parent before a notary on a
form prescribed by the department, and previously signed by an
authorized official of the department, county adoption agency, or
licensed adoption agency that signifies the willingness of the
department, county adoption agency, or licensed adoption agency to
accept the relinquishment.
(d) If a relinquishing parent and child reside outside this state
and the child will be cared for and will be placed for adoption by
the department, county adoption agency, or licensed adoption agency,
the relinquishing parent may relinquish the child to the department,
county adoption agency, or licensed adoption agency by a written
statement signed by the relinquishing parent, after that parent has
satisfied the following requirements:
(1) Prior to signing the relinquishment, the relinquishing parent
shall have received, from a representative of an agency licensed or
otherwise approved to provide adoption services under the laws of the
relinquishing parent's state of residence, the same counseling and
advisement services as if the relinquishing parent resided in this
state.
(2) The relinquishment shall be signed before a representative of
an agency licensed or otherwise approved to provide adoption services
under the laws of the relinquishing parent's state of residence
whenever possible or before a licensed social worker on a form
prescribed by the department, and previously signed by an authorized
official of the department, county adoption agency, or licensed
adoption agency, that signifies the willingness of the department,
county adoption agency, or licensed adoption agency to accept the
relinquishment.
(e) (1) The relinquishment authorized by this section has no
effect until a certified copy is sent to, and filed with, the
department. The county adoption agency or licensed adoption agency
shall send that copy by certified mail, return receipt requested, or
by overnight courier or messenger, with proof of delivery, to the
department no earlier than the end of the business day following the
signing thereof. The agency shall inform the birth parent that during
this time period he or she may request that the relinquishment be
withdrawn and that, if he or she makes the request, the
relinquishment shall be withdrawn. The relinquishment shall be final
10 business days after receipt of the filing by the department,
unless any of the following applies:
(A) The department sends written acknowledgment of receipt of the
relinquishment prior to the expiration of that 10-day period, at
which time the relinquishment shall be final.
(B) A longer period of time is necessary due to a pending court
action or some other cause beyond control of the department.
(C) The birth parent signs a waiver of right to revoke
relinquishment pursuant to Section 8700.5, in which case the
relinquishment shall become final as provided in that section.
(2) After the relinquishment is final, it may be rescinded only by
the mutual consent of the department, county adoption agency, or
licensed adoption agency to which the child was relinquished and the
birth parent or parents relinquishing the child.
(f) The relinquishing parent may name in the relinquishment the
person or persons with whom he or she intends that placement of the
child for adoption be made by the department, county adoption agency,
or licensed adoption agency.
(g) Notwithstanding subdivision (e), if the relinquishment names
the person or persons with whom placement by the department, county
adoption agency, or licensed adoption agency is intended and the
child is not placed in the home of the named person or persons or the
child is removed from the home prior to the granting of the
adoption, the department, county adoption agency, or licensed
adoption agency shall mail a notice by certified mail, return receipt
requested, to the birth parent signing the relinquishment within 72
hours of the decision not to place the child for adoption or the
decision to remove the child from the home.
(h) The relinquishing parent has 30 days from the date on which
the notice described in subdivision (g) was mailed to rescind the
relinquishment.
(1) If the relinquishing parent requests rescission during the
30-day period, the department, county adoption agency, or licensed
adoption agency shall rescind the relinquishment.
(2) If the relinquishing parent does not request rescission during
the 30-day period, the department, county adoption agency, or
licensed adoption agency shall select adoptive parents for the child.
(3) If the relinquishing parent and the department, county
adoption agency, or licensed adoption agency wish to identify a
different person or persons during the 30-day period with whom the
child is intended to be placed, the initial relinquishment shall be
rescinded and a new relinquishment identifying the person or persons
completed.
(i) If the parent has relinquished a child, who has been found to
come within Section 300 of the Welfare and Institutions Code or is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code, to the
department, county adoption agency, or a licensed adoption agency for
the purpose of adoption, the department, county adoption agency, or
licensed adoption agency accepting the relinquishment shall provide
written notice of the relinquishment within five court days to all of
the following:
(1) The juvenile court having jurisdiction of the child.
(2) The child's attorney, if any.
(3) The relinquishing parent's attorney, if any.
(j) The filing of the relinquishment with the department
terminates all parental rights and responsibilities with regard to
the child, except as provided in subdivisions (g) and (h).
(k) The department shall adopt regulations to administer the
provisions of this section.
SEC. 8. Section 8700.5 is added to the Family Code, to read:
8700.5. (a) A relinquishing birth parent may elect to sign a
waiver of the right to revoke relinquishment in the presence of any
of the following:
(1) A representative of the department or the delegated county
adoption agency, or any public adoption agency of another state.
(2) A judicial officer of a court of record, within or outside of
California, if the birth parent is represented by independent legal
counsel.
(3) An authorized representative of a licensed private adoption
agency within or outside of California, including a representative of
the adoption agency that witnessed or accepted the relinquishment,
if the birth parent is represented by independent legal counsel.
(b) The waiver of the right to revoke relinquishment may not be
signed until the department, delegated county adoption agency, or
public adoption agency of another state has completed an interview,
unless the waiver is signed in the presence of a judicial officer of
a court of record of any state or an authorized representative of a
private adoption agency licensed within or outside of California. If
the waiver is signed in the presence of a judicial officer, the
interview and witnessing of the signing of the waiver shall be
conducted by the judicial officer. If the waiver is signed in the
presence of an authorized representative of a licensed adoption
agency, the interview shall be conducted by the independent legal
counsel for the birth parent or parents, who shall:
(1) Review the waiver with the birth parent or parents.
(2) Counsel the birth parent or parents about the nature of the
intended waiver.
(3) Sign and deliver to the birth parent or parents and the
licensed adoption agency a certificate in substantially the following
form:
"I, (name of attorney), have counseled my client, (name of
client), about the nature and legal effect of the waiver of the right
to revoke the relinquishment for adoption. I am so disassociated
from the interest of the prospective adoptive parent(s) and the
licensed adoption agency as to be in a position to advise my client
impartially and confidentially as to the consequences of the waiver.
My client is aware that California law provides an indeterminate
period, usually 2 to 10 business days, during which a birth parent
may revoke a relinquishment for adoption. On the basis of this
counsel, I conclude that it is the intent of my client to waive the
right to revoke, and to make a permanent and irrevocable
relinquishment for adoption. My client understands that upon signing
this waiver, he or she will not be able to regain custody of the
child unless the prospective adoptive parent or parents agree to
withdraw the petition for adoption or the court denies the adoption
petition."
(c) If the placing birth parent signs the waiver in front of a
judicial officer or the department, the relinquishment shall become
final and irrevocable at the time the waiver is signed. If the waiver
is signed in the presence of an authorized representative of a
private licensed adoption agency, the relinquishment shall become
final and irrevocable at the close of the next business day.
(d) The licensed adoption agency shall submit the waiver and
certificate to the department with the relinquishment, unless the
relinquishment was submitted to the department before the waiver was
signed, in which case the waiver and certificate shall be submitted
to the department no later than two business days after signing.
SEC. 9. Section 8714 of the Family Code is amended to read:
8714. (a) A person desiring to adopt a child may for that purpose
file an adoption request in a county authorized by Section 8609.5.
If a child has been adjudged to be a dependent of the juvenile court
pursuant to Section 300 of the Welfare and Institutions Code, and has
thereafter been freed for adoption by the juvenile court, the
petition may be filed either in the county where the petitioner
resides or in the county where the child was freed for adoption.
(b) The court clerk shall immediately notify the department at
Sacramento in writing of the pendency of the proceeding and of any
subsequent action taken.
(c) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption under subdivision (a).
(d) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth. The name the child had
before adoption shall appear in the joinder signed by the licensed
adoption agency.
(e) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding shall
be consolidated with the adoption proceeding.
(f) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
SEC. 10. Section 8802 of the Family Code is amended to read:
8802. (a) (1) Any of the following persons who desire to adopt a
child may, for that purpose, file an adoption request in a county
authorized by Section 8609.5:
(A) An adult who is related to the child or the child's half
sibling by blood or affinity, including all relatives whose status is
preceded by the words "step," "great," "great-great," or "grand," or
the spouse of any of these persons, even if the marriage was
terminated by death or dissolution.
(B) A person named in the will of a deceased parent as an intended
adoptive parent where the child has no other parent.
(C) A person with whom a child has been placed for adoption.
(D) (i) A legal guardian who has been the child's legal guardian
for more than one year.
(ii) If the child is alleged to have been abandoned pursuant to
Section 7822, a legal guardian who has been the child's legal
guardian for more than six months. The legal guardian may file a
petition pursuant to Section 7822 in the same court and concurrently
with a petition under this section.
(iii) However, if the parent nominated the guardian for a purpose
other than adoption for a specified time period, or if the
guardianship was established pursuant to Section 360 of the Welfare
and Institutions Code, the guardianship shall have been in existence
for not less than three years.
(2) If the child has been placed for adoption, a copy of the
adoptive placement agreement shall be attached to the petition. The
court clerk shall immediately notify the department at Sacramento in
writing of the pendency of the proceeding and of any subsequent
action taken.
(3) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
(b) The petition shall contain an allegation that the petitioners
will file promptly with the department or delegated county adoption
agency information required by the department in the investigation of
the proposed adoption. The omission of the allegation from a
petition does not affect the jurisdiction of the court to proceed or
the validity of an adoption order or other order based on the
petition.
(c) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth and the name the child had
before adoption.
(d) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding shall
be consolidated with the adoption proceeding, and the consolidated
case shall be heard and decided in the court in which the adoption is
pending.
(e) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
SEC. 11. Section 8810 of the Family Code is amended to read:
8810. (a) Except as otherwise provided in this section, whenever
a petition is filed under this chapter for the adoption of a child,
the petitioner shall pay a nonrefundable fee to the department or to
the delegated county adoption agency for the cost of investigating
the adoption petition. Fifty percent of the payment shall be made to
the department or delegated county adoption agency at the time the
adoption petition is filed, and the remaining balance shall be paid
no later than the date determined by the department or the delegated
county adoption agency in an amount as follows:
(1) For petitions filed on and after October 1, 2008, four
thousand five hundred dollars ($4,500).
(2) For petitioners who have a valid preplacement evaluation less
than one year old pursuant to Section 8811.5, or a valid private
agency adoption home study less than two years old at the time of
filing a petition, one thousand five hundred fifty dollars ($1,550)
for a postplacement evaluation pursuant to Sections 8806 and 8807.
(b) Revenues produced by fees collected by the department pursuant
to subdivision (a) shall be used, when appropriated by the
Legislature, to fund only the direct costs associated with the state
program for independent adoptions. Revenues produced by fees
collected by the delegated county adoption agency pursuant to
subdivision (a) shall be used by the county to fund the county
program for independent adoptions.
(c) The department or delegated county adoption agency may reduce
the fee to no less than five hundred dollars ($500) when the
prospective adoptive parents are very low income, according to the
income limits published by the Department of Housing and Community
Development, and when making the required payment would be
detrimental to the welfare of an adopted child. The department shall
develop additional guidelines regarding income and assets to
determine the financial criteria for reduction of the fee under this
subdivision.
(d) This section shall become operative on October 1, 2008.
SEC. 12. Section 8912 of the Family Code is amended to read:
8912. (a) An international adoption or readoption request may be
filed by a resident of this state in a county authorized by Section
8609.5. The court clerk shall immediately notify the department at
Sacramento in writing of the pendency of the proceeding and of any
subsequent action taken.
(b) The caption of the adoption petition shall contain the names
of the petitioners, but not the child's name. The petition shall
state the child's sex and date of birth. The name the child had
before adoption shall appear in the joinder signed by the licensed
adoption agency.
(c) If the child is the subject of a guardianship petition, the
adoption petition shall so state and shall include the caption and
docket number or have attached a copy of the letters of the
guardianship or temporary guardianship. The petitioners shall notify
the court of any petition for guardianship or temporary guardianship
filed after the adoption petition. The guardianship proceeding shall
be consolidated with the adoption proceeding.
(d) The order of adoption shall contain the child's adopted name,
but not the name the child had before adoption.
(e) If the petitioner has entered into a postadoption contact
agreement with the birth parent as set forth in Section 8616.5, the
agreement, signed by the participating parties, shall be attached to
and filed with the petition for adoption.
SEC. 13. Section 9211 of the Family Code is repealed.
SEC. 14. Section 1513 of the Probate Code is amended to read:
1513. (a) Unless waived by the court, a court investigator,
probation officer, or domestic relations investigator shall make an
investigation and file with the court a report and recommendation
concerning each proposed guardianship of the person or guardianship
of the estate. Investigations where the proposed guardian is a
relative shall be made by a court investigator. Investigations where
the proposed guardian is a nonrelative shall be made by the county
agency designated to investigate potential dependency. The report for
the guardianship of the person shall include, but need not be
limited to, an investigation and discussion of all of the following:
(1) A social history of the guardian.
(2) A social history of the proposed ward, including, to the
extent feasible, an assessment of any identified developmental,
emotional, psychological, or educational needs of the proposed ward
and the capability of the petitioner to meet those needs.
(3) The relationship of the proposed ward to the guardian,
including the duration and character of the relationship, where
applicable, the circumstances whereby physical custody of the
proposed ward was acquired by the guardian, and a statement of the
proposed ward's attitude concerning the proposed guardianship, unless
the statement of the attitude is affected by the proposed ward's
developmental, physical, or emotional condition.
(4) The anticipated duration of the guardianship and the plans of
both natural parents and the proposed guardian for the stable and
permanent home for the child. The court may waive this requirement
for cases involving relative guardians.
(b) If the proposed ward is or may be described by Section 300 of
the Welfare and Institutions Code, the court may refer the matter to
the local child welfare services agency to initiate an investigation
of the referral pursuant to Sections 328 and 329 of the Welfare and
Institutions Code and to report the findings of that investigation to
the court. Pending completion of the investigation, the court may
take any reasonable steps it deems appropriate to protect the child's
safety, including, but not limited to, appointment of a temporary
guardian or issuance of a temporary restraining order. If dependency
proceedings are initiated, the guardianship proceedings shall be
stayed in accordance with Section 304 of the Welfare and Institutions
Code. Nothing in this section shall affect the applicability of
Section 16504 or 16506 of the Welfare and Institutions Code. If a
dependency proceeding is not initiated, the probate court shall
retain jurisdiction to hear the guardianship matter.
(c) Prior to ruling on the petition for guardianship, the court
shall read and consider all reports submitted pursuant to this
section, which shall be reflected in the minutes or stated on the
record. Any person who
reports to the court pursuant to this section may be called and
examined by any party to the proceeding.
(d) All reports authorized by this section are confidential and
shall only be made available to persons who have been served in the
proceedings or their attorneys. The clerk of the court shall make
provisions to limit access to the reports exclusively to persons
entitled to receipt. The reports shall be made available to all
parties entitled to receipt no less than three court days before the
hearing on the guardianship petition.
(e) For the purpose of writing either report authorized by this
section, the person making the investigation and report shall have
access to the proposed ward's school records, probation records, and
public and private social services records, and to an oral or written
summary of the proposed ward's medical records and psychological
records prepared by any physician, psychologist, or psychiatrist who
made or who is maintaining those records. The physician,
psychologist, or psychiatrist shall be available to clarify
information regarding these records pursuant to the investigator's
responsibility to gather and provide information for the court.
(f) This section does not apply to guardianships resulting from a
permanency plan for a dependent child pursuant to Section 366.26 of
the Welfare and Institutions Code.
(g) For purposes of this section, a "relative" means a person who
is a spouse, parent, stepparent, brother, sister, stepbrother,
stepsister, half-brother, half-sister, uncle, aunt, niece, nephew,
first cousin, or any person denoted by the prefix "grand" or "great,"
or the spouse of any of these persons, even after the marriage has
been terminated by death or dissolution.
(h) In an Indian child custody proceeding, any person making an
investigation and report shall consult with the Indian child's tribe
and include in the report information provided by the tribe.
SEC. 15. Section 329 of the Welfare and Institutions Code is
amended to read:
329. Whenever any person applies to the social worker to commence
proceedings in the juvenile court, the application shall be in the
form of an affidavit alleging that there was or is within the county,
or residing therein, a child within the provisions of Section 300,
and setting forth facts in support thereof. The social worker shall
immediately investigate as he or she deems necessary to determine
whether proceedings in the juvenile court should be commenced. If the
social worker does not take action under Section 301 and does not
file a petition in the juvenile court within three weeks after the
application, he or she shall endorse upon the affidavit of the
applicant his or her decision not to proceed further, including any
recommendation made to the applicant, if one is made, to consider
commencing a probate guardianship for the child, and his or her
reasons therefor and shall immediately notify the applicant of the
action taken or the decision rendered by him or her under this
section. The social worker shall retain the affidavit and his or her
endorsement thereon for a period of 30 days after notifying the
applicant.
SEC. 16. 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.