California Legislature—2015–16 Regular Session

Assembly Bill No. 1702

Introduced by Assembly Members Mark Stone and Maienschein

January 25, 2016

An act to amend Section 361.5 of the Welfare and Institutions Code, relating to juveniles.

LEGISLATIVE COUNSEL’S DIGEST

AB 1702, as introduced, Mark Stone. Juveniles: dependent children: reunification services.

Existing law establishes the jurisdiction of the juvenile court, which may adjudge children to be dependents of the court under certain circumstances, including when the child suffered or there is a substantial risk that the child will suffer serious physical harm, or a parent fails to provide the child with adequate food, clothing, shelter, or medical treatment. Existing law establishes the grounds for removal of a dependent child from the custody of his or her parents or guardian, and establishes procedures to determine temporary placement of a dependent child. Existing law generally requires the court to order the social worker to provide designated child welfare services, including family reunification services, to the child and the child’s mother and statutorily presumed father or guardians. Existing law provides that reunification services need not be provided to a parent or guardian when the court finds, by clear and convincing evidence, that a specified event has occurred, including that the child has been adjudicated a dependent as a result of severe sexual abuse or the infliction of severe physical harm to the child, a sibling, or a half sibling by a parent or guardian, and the court makes a factual finding that it would not benefit the child to pursue reunification services with the offending parent or guardian.

This bill would also provide that reunification services need not be provided when the court finds that the parent or guardian participated in, or consented to, the sexual exploitation or human trafficking of the child, except if the parent or guardian was also a victim of sexual exploitation or human trafficking and was coerced into consenting to, or participating in, the sexual exploitation or human trafficking of the child.

Existing law requires the court, if it does not order reunification services pursuant to specified provisions, to determine at the dispositional hearing if a hearing shall be set in order to determine the most appropriate plan for the child.

This bill would require the court to make that determine if it does not order reunification services because it found that the parent or guardian participated in, or consisted to, the sexual exploitation or human trafficking of the child.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 361.5 of the Welfare and Institutions
Code is amended to read:

361.5.  

(a) Except as provided in subdivision (b), or when the
parent has voluntarily relinquished the child and the relinquishment
has been filed with the State Department of Social Services, or
upon the establishment of an order of guardianship pursuant to
Section 360, or when a court adjudicates a petition under Section
329 to modify the court’s jurisdiction from delinquency jurisdiction
to dependency jurisdiction pursuant to subparagraph (A) of
paragraph (2) of subdivision (b) of Section 607.2 and the parents
or guardian of the ward have had reunification services terminated
under the delinquency jurisdiction, whenever a child is removed
from a parent’s or guardian’s custody, the juvenile court shall order
the social worker to provide child welfare services to the child and
the child’s mother and statutorily presumed father or guardians.
Upon a finding and declaration of paternity by the juvenile court
or proof of a prior declaration of paternity by any court of
competent jurisdiction, the juvenile court may order services for
the child and the biological father, if the court determines that the
services will benefit the child.

(1) Family reunification services, when provided, shall be
provided as follows:

(A) Except as otherwise provided in subparagraph (C), for a
child who, on the date of initial removal from the physical custody
of his or her parent or guardian, was three years of age or older,
court-ordered services shall be provided beginning with the
dispositional hearing and ending 12 months after the date the child
entered foster care as provided in Section 361.49, unless the child
is returned to the home of the parent or guardian.

(B) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under three
years of age, court-ordered services shall be provided for a period
of six months from the dispositional hearing as provided in
subdivision (e) of Section 366.21, but no longer than 12 months
from the date the child entered foster care as provided in Section
361.49 unless the child is returned to the home of the parent or
guardian.

(C) For the purpose of placing and maintaining a sibling group
together in a permanent home should reunification efforts fail, for
a child in a sibling group whose members were removed from
parental custody at the same time, and in which one member of
the sibling group was under three years of age on the date of initial
removal from the physical custody of his or her parent or guardian,
court-ordered services for some or all of the sibling group may be
limited as set forth in subparagraph (B). For the purposes of this
paragraph, “a sibling group” shall mean two or more children who
are related to each other as full or half siblings.

(2) Any motion to terminate court-ordered reunification services
prior to the hearing set pursuant to subdivision (f) of Section 366.21
for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section
366.21 for a child described by subparagraph (B) or (C) of
paragraph (1), shall be made pursuant to the requirements set forth
in subdivision (c) of Section 388. A motion to terminate
court-ordered reunification services shall not be required at the
hearing set pursuant to subdivision (e) of Section 366.21 if the
court finds by clear and convincing evidence one of the following:

(A) That the child was removed initially under subdivision (g)
of Section 300 and the whereabouts of the parent are still unknown.

(B) That the parent has failed to contact and visit the child.

(C) That the parent has been convicted of a felony indicating
parental unfitness.

(3)  begin insert (A) end insert begin insert   end insert Notwithstanding subparagraphs (A), (B), and (C) of
paragraph (1), court-ordered services may be extended up to a
maximum time period not to exceed 18 months after the date the
child was originally removed from physical custody of his or her
parent or guardian if it can be shown, at the hearing held pursuant
to subdivision (f) of Section 366.21, that the permanent plan for
the child is that he or she will be returned and safely maintained
in the home within the extended time period. The court shall extend
the time period 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 guardian within the extended time period or that
reasonable services have not been provided to the parent or
guardian. In determining whether court-ordered services may be
extended, the court shall consider the special circumstances of an
incarcerated or institutionalized parent or parents, parent or parents
court-ordered to a residential substance abuse treatment program,
or a parent who has been arrested and issued an immigration hold,
detained by the United States Department of Homeland Security,
or deported to his or her country of origin, including, but not
limited to, barriers to the parent’s or guardian’s access to services
and ability to maintain contact with his or her child. The court
shall also consider, among other factors, good faith efforts that the
parent or guardian has made to maintain contact with the child. If
the court extends the time period, the court shall specify the factual
basis for its conclusion that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or guardian within the extended time period. The court also
shall make findings pursuant to subdivision (a) of Section 366 and
subdivision (e) of Section 358.1.

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When

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begin insert (B) end insert begin insert   end insert begin insert When end insert counseling or other treatment services are ordered,
the parent or guardian shall be ordered to participate in those
services, unless the parent’s or guardian’s participation is deemed
by the court to be inappropriate or potentially detrimental to the
child, or unless a parent or guardian is incarcerated of detained by
the United States Department of Homeland Security and the
corrections facility in which he or she is incarcerated does not
provide access to the treatment services ordered by the court, or
has been deported to his or her country of origin and services
ordered by the court are not accessible in that country. Physical
custody of the child by the parents or guardians during the
applicable time period under subparagraph (A), (B), or (C) of
paragraph (1) shall not serve to interrupt the running of the time
period. If at the end of the applicable time period, a child cannot
be safely returned to the care and custody of a parent or guardian
without court supervision, but the child clearly desires contact with
the parent or guardian, the court shall take the child’s desire into
account in devising a permanency plan.

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In

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begin insert (C) end insert begin insert   end insert begin insert In end insert cases where the child was under three years of age on
the date of the initial removal from the physical custody of his or
her parent or guardian or is a member of a sibling group as
described in subparagraph (C) of paragraph (1), the court shall
inform the parent or guardian that the failure of the parent or
guardian to participate regularly in any court-ordered treatment
programs or to cooperate or avail himself or herself of services
provided as part of the child welfare services case plan may result
in a termination of efforts to reunify the family after six months.
The court shall inform the parent or guardian of the factors used
in subdivision (e) of Section 366.21 to determine whether to limit
services to six months for some or all members of a sibling group
as described in subparagraph (C) of paragraph (1).

(4)  begin insert (A) end insert begin insert   end insert Notwithstanding paragraph (3), court-ordered services
may be extended up to a maximum time period not to exceed 24
months after the date the child was originally removed from
physical custody of his or her parent or guardian if it is shown, at
the hearing held pursuant to subdivision (b) of Section 366.22,
that the permanent plan for the child is that he or she will be
returned and safely maintained in the home within the extended
time period. The court shall extend the time period only if it finds
that it is in the child’s best interest to have the time period extended
and that there is a substantial probability that the child will be
returned to the physical custody of his or her parent or guardian
who is described in subdivision (b) of Section 366.22 within the
extended time period, or that reasonable services have not been
provided to the parent or guardian. If the court extends the time
period, the court shall specify the factual basis for its conclusion
that there is a substantial probability that the child will be returned
to the physical custody of his or her parent or guardian within the
extended time period. The court also shall make findings pursuant
to subdivision (a) of Section 366 and subdivision (e) of Section
358.1.

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When

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begin insert (B) end insert begin insert   end insert begin insert When end insert counseling or other treatment services are ordered,
the parent or guardian shall be ordered to participate in those
services, in order for substantial probability to be found. Physical
custody of the child by the parents or guardians during the
applicable time period under subparagraph (A), (B), or (C) of
paragraph (1) shall not serve to interrupt the running of the time
period. If at the end of the applicable time period, the child cannot
be safely returned to the care and custody of a parent or guardian
without court supervision, but the child clearly desires contact with
the parent or guardian, the court shall take the child’s desire into
account in devising a permanency plan.

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Except

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begin insert (C) end insert begin insert   end insert begin insert Except end insert in cases where, pursuant to subdivision (b), the court
does not order reunification services, the court shall inform the
parent or parents of Section 366.26 and shall specify that the
parent’s or parents’ parental rights may be terminated.

(b) Reunification services need not be provided to a parent or
guardian described in this subdivision when the court finds, by
clear and convincing evidence, any of the following:

(1) That the whereabouts of the parent or guardian is unknown.
A finding pursuant to this paragraph shall be supported by an
affidavit or by proof that a reasonably diligent search has failed
to locate the parent or guardian. The posting or publication of
notices is not required in that search.

(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.

(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section
300 as a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his
or her parent or guardian pursuant to Section 361, that the child
has been returned to the custody of the parent or guardian from
whom the child had been taken originally, and that the child is
being removed pursuant to Section 361, due to additional physical
or sexual abuse.

(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.

(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct
of that parent or guardian.

(6)  begin insert (A) end insert begin insert   end insert That the child has been adjudicated a dependent
pursuant to any subdivision of Section 300 as a result of severe
sexual abuse or the infliction of severe physical harm to the child,
a sibling, or a half sibling by a parent or guardian, as defined in
this subdivision, and the court makes a factual finding that it would
not benefit the child to pursue reunification services with the
offending parent or guardian.

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A

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begin insert (B) end insert begin insert   end insert begin insert A end insert finding of severe sexual abuse, for the purposes of this
subdivision, may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or
guardian and the child or a sibling or half sibling of the child, or
between the child or a sibling or half sibling of the child and
another person or animal with the actual or implied consent of the
parent or guardian; or the penetration or manipulation of the
child’s, sibling’s, or half sibling’s genital organs or rectum by any
animate or inanimate object for the sexual gratification of the
parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.

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A

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begin insert (C) end insert begin insert   end insert begin insert A end insert finding of the infliction of severe physical harm, for the
purposes of this subdivision, may be based on, but is not limited
to, deliberate and serious injury inflicted to or on a child’s body
or the body of a sibling or half sibling of the child by an act or
omission of the parent or guardian, or of another individual or
animal with the consent of the parent or guardian; deliberate and
torturous confinement of the child, sibling, or half sibling in a
closed space; or any other torturous act or omission that would be
reasonably understood to cause serious emotional damage.

(7) That the parent is not receiving reunification services for a
sibling or a half sibling of the child pursuant to paragraph (3), (5),
or (6).

(8) That the child was conceived by means of the commission
of an offense listed in Section 288 or 288.5 of the Penal Code, or
by an act committed outside of this state that, if committed in this
state, would constitute one of those offenses. This paragraph only
applies to the parent who committed the offense or act.

(9) That the child has been found to be a child described in
subdivision (g) of Section 300; that the parent or guardian of the
child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or
that the parent or other person having custody of the child
voluntarily surrendered physical custody of the child pursuant to
Section 1255.7 of the Health and Safety Code. For the purposes
of this paragraph, “serious danger” means that without the
intervention of another person or agency, the child would have
sustained severe or permanent disability, injury, illness, or death.
For purposes of this paragraph, “willful abandonment” shall not
be construed as actions taken in good faith by the parent without
the intent of placing the child in serious danger.

(10) That the court ordered termination of reunification services
for any siblings or half siblings of the child because the parent or
guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is
the same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has
not subsequently made a reasonable effort to treat the problems
that led to removal of the sibling or half sibling of that child from
that parent or guardian.

(11) That the parental rights of a parent over any sibling or half
sibling of the child had been permanently severed, and this parent
is the same parent described in subdivision (a), and that, according
to the findings of the court, this parent has not subsequently made
a reasonable effort to treat the problems that led to removal of the
sibling or half sibling of that child from the parent.

(12) That the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5
of the Penal Code.

(13) That the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a
three-year period immediately prior to the filing of the petition
that brought that child to the court’s attention, or has failed or
refused to comply with a program of drug or alcohol treatment
described in the case plan required by Section 358.1 on at least
two prior occasions, even though the programs identified were
available and accessible.

(14)  begin insert (A) end insert begin insert   end insert That the parent or guardian of the child has advised
the court that he or she is not interested in receiving family
maintenance or family reunification services or having the child
returned to or placed in his or her custody and does not wish to
receive family maintenance or reunification services.

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The

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begin insert (B) end insert begin insert   end insert begin insert The end insert parent or guardian shall be represented by counsel and
shall execute a waiver of services form to be adopted by the
Judicial Council. The court shall advise the parent or guardian of
any right to services and of the possible consequences of a waiver
of services, including the termination of parental rights and
placement of the child for adoption. The court shall not accept the
waiver of services unless it states on the record its finding that the
parent or guardian has knowingly and intelligently waived the
right to services.

(15) That the parent or guardian has on one or more occasions
willfully abducted the child or child’s sibling or half sibling from
his or her placement and refused to disclose the child’s or child’s
sibling’s or half sibling’s whereabouts, refused to return physical
custody of the child or child’s sibling or half sibling to his or her
placement, or refused to return physical custody of the child or
child’s sibling or half sibling to the social worker.

(16) That the parent or guardian has been required by the court
to be registered on a sex offender registry under the federal Adam
Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Sec.
16913(a)), as required in Section 106(b)(2)(B)(xvi)(VI) of the
Child Abuse Prevention and Treatment Act of 2006 (42 U.S.C.
Sec. 5106a(2)(B)(xvi)(VI)).

begin insert

(17) That the parent or guardian participated in, or consented
to, the sexual exploitation, as described in Section 11165.1 of the
Penal Code, or human trafficking, as described in Section 236.1
of the Penal Code, of the child. This shall not include instances in
which the parent or guardian was also a victim of sexual
exploitation or human trafficking and was coerced into consenting
to, or participating in, the sexual exploitation or human trafficking
of the child.

end insert

(c)  begin insert (1) end insert begin insert   end insert In deciding whether to order reunification in any case
in which this section applies, the court shall hold a dispositional
hearing. The social worker shall prepare a report that discusses
whether reunification services shall be provided. When it is alleged,
pursuant to paragraph (2) of subdivision (b), that the parent is
incapable of utilizing services due to mental disability, the court
shall order reunification services unless competent evidence from
mental health professionals establishes that, even with the provision
of services, the parent is unlikely to be capable of adequately caring
for the child within the time limits specified in subdivision (a).

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The

end delete

begin insert (2) end insert begin insert   end insert begin insert The end insert court shall not order reunification for a parent or
guardian described in paragraph (3), (4), (6), (7), (8), (9), (10),
(11), (12), (13), (14), (15), begin delete or (16) end delete begin insert (16), or (17) end insert of subdivision (b)
unless the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child.

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In

end delete

begin insert (3) end insert begin insert   end insert begin insert In end insert addition, the court shall not order reunification in any
situation described in paragraph (5) of subdivision (b) unless it
finds that, based on competent testimony, those services are likely
to prevent reabuse or continued neglect of the child or that failure
to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social
worker shall investigate the circumstances leading to the removal
of the child and advise the court whether there are circumstances
that indicate that reunification is likely to be successful or
unsuccessful and whether failure to order reunification is likely to
be detrimental to the child.

begin delete

The

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begin insert (4) end insert begin insert   end insert begin insert The end insert failure of the parent to respond to previous services, the
fact that the child was abused while the parent was under the
influence of drugs or alcohol, a past history of violent behavior,
or testimony by a competent professional that the parent’s behavior
is unlikely to be changed by services are among the factors
indicating that reunification services are unlikely to be successful.
The fact that a parent or guardian is no longer living with an
individual who severely abused the child may be considered in
deciding that reunification services are likely to be successful,
provided that the court shall consider any pattern of behavior on
the part of the parent that has exposed the child to repeated abuse.

(d) If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placement
of the child, the court shall order the social worker to provide
family reunification services in accordance with this subdivision.

(e) (1) If the parent or guardian is incarcerated, institutionalized,
or detained by the United States Department of Homeland Security,
or has been deported to his or her country of origin, the court shall
order reasonable services unless the court determines, by clear and
convincing evidence, those services would be detrimental to the
child. In determining detriment, the court shall consider the age
of the child, the degree of parent-child bonding, the length of the
sentence, the length and nature of the treatment, the nature of the
crime or illness, the degree of detriment to the child if services are
not offered and, for children 10 years of age or older, the child’s
attitude toward the implementation of family reunification services,
the likelihood of the parent’s discharge from incarceration,
institutionalization, or detention within the reunification time
limitations described in subdivision (a), and any other appropriate
factors. In determining the content of reasonable services, the court
shall consider the particular barriers to an incarcerated,
institutionalized, detained, or deported parent’s access to those
court-mandated services and ability to maintain contact with his
or her child, and shall document this information in the child’s
case plan. Reunification services are subject to the applicable time
limitations imposed in subdivision (a). Services may include, but
shall not be limited to, all of the following:

(A) Maintaining contact between the parent and child through
collect telephone calls.

(B) Transportation services, where appropriate.

(C) Visitation services, where appropriate.

(D)  begin insert (i) end insert begin insert   end insert Reasonable services to extended family members or
foster parents providing care for the child if the services are not
detrimental to the child.

begin delete

An

end delete

begin insert (ii) end insert begin insert   end insert begin insert An end insert incarcerated or detained parent may be required to attend
counseling, parenting classes, or vocational training programs as
part of the reunification service plan if actual access to these
services is provided. The social worker shall document in the
child’s case plan the particular barriers to an incarcerated,
institutionalized, or detained parent’s access to those
court-mandated services and ability to maintain contact with his
or her child.

(E) Reasonable efforts to assist parents who have been deported
to contact child welfare authorities in their country of origin, to
identify any available services that would substantially comply
with case plan requirements, to document the parents’ participation
in those services, and to accept reports from local child welfare
authorities as to the parents’ living situation, progress, and
participation in services.

(2) The presiding judge of the juvenile court of each county
may convene representatives of the county welfare department,
the sheriff’s department, and other appropriate entities for the
purpose of developing and entering into protocols for ensuring the
notification, transportation, and presence of an incarcerated or
institutionalized parent at all court hearings involving proceedings
affecting the child pursuant to Section 2625 of the Penal Code.
The county welfare department shall utilize the prisoner locator
system developed by the Department of Corrections and
Rehabilitation to facilitate timely and effective notice of hearings
for incarcerated parents.

(3) Notwithstanding any other begin delete provision of end delete law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of
Corrections and Rehabilitation pursuant to Chapter 4.8
(commencing with Section 1174) of Title 7 of Part 2 of, Chapter
4 (commencing with Section 3410) of Title 2 of Part 3 of, the Penal
Code, the court shall determine whether the parent’s participation
in a program is in the child’s best interest and whether it is suitable
to meet the needs of the parent and child.

(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6), (7),
(8), (9), (10), (11), (12), (13), (14), (15), begin delete or (16) end delete begin insert (16), or (17) end insert of
subdivision (b) or paragraph (1) of subdivision (e), does not order
reunification services, it shall, at the dispositional hearing, that
shall include a permanency hearing, determine if a hearing under
Section 366.26 shall be set in order to determine whether adoption,
guardianship, or long-term foster care, or in the case of an Indian
child, in consultation with the child’s tribe, tribal customary
adoption, is the most appropriate plan for the child, and shall
consider in-state and out-of-state placement options. If the court
so determines, it shall conduct the hearing pursuant to Section
366.26 within 120 days after the dispositional hearing. However,
the court shall not schedule a hearing so long as the other parent
is being provided reunification services pursuant to subdivision
(a). The court may continue to permit the parent to visit the child
unless it finds that visitation would be detrimental to the child.

(g) (1) Whenever a court orders that a hearing shall be held
pursuant to Section 366.26, including, when, in consultation with
the child’s tribe, tribal customary adoption is recommended, it
shall direct the agency supervising the child and the county
adoption agency, or the State Department of Social Services when
it is acting as an adoption agency, to prepare an assessment that
shall include:

(A) Current search efforts for an absent parent or parents and
notification of a noncustodial parent in the manner provided for
in Section 291.

(B) 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 purpose of this subparagraph shall
include, but not be limited to, the child’s siblings, grandparents,
aunts, and uncles.

(C) An evaluation of the child’s medical, developmental,
scholastic, mental, and emotional status.

(D) A preliminary assessment of the eligibility and commitment
of any identified prospective adoptive parent or guardian, including
a prospective tribal customary adoptive parent, 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, the
assessment shall also consider, but need not be limited to, all of
the factors specified in subdivision (a) of Section 361.3 and in
Section 361.4. As used in this subparagraph, “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. If the proposed permanent plan is guardianship with
an approved relative caregiver for a minor eligible for aid under
the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, “relative”
as used in this section has the same meaning as “relative” as
defined in subdivision (c) of Section 11391.

(E) The relationship of the child to any identified prospective
adoptive parent or guardian, including a prospective tribal
customary parent, the duration and character of the relationship,
the degree of attachment of the child to the prospective relative
guardian or adoptive parent, the relative’s or adoptive parent’s
strong commitment to caring permanently for the child, the
motivation for seeking adoption or guardianship, a statement from
the child concerning placement and the adoption or guardianship,
and whether the child over 12 years of age has been consulted
about the proposed relative guardianship arrangements, unless the
child’s age or physical, emotional, or other condition precludes
his or her meaningful response, and if so, a description of the
condition.

(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.

(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child’s tribe, a
customary adoption, as defined in Section 366.24, is recommended.
If tribal customary adoption is recommended, the assessment shall
include an analysis of both of the following:

(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.

(ii) Whether the Indian child cannot or should not be returned
to the home of the Indian parent or Indian custodian and the reasons
for reaching that conclusion.

(2) (A) A relative caregiver’s preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.

(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency
options of guardianship and adoption, including the long-term
benefits and consequences of each option, prior to establishing
legal guardianship or pursuing adoption. If the proposed permanent
plan is guardianship with an approved relative caregiver for a
minor eligible for aid under the Kin-GAP Program, as provided
for in Article 4.7 (commencing with Section 11385) of Chapter 2
of Part 3 of Division 9, the relative caregiver shall be informed
about the terms and conditions of the negotiated agreement
pursuant to Section 11387 and shall agree to its execution prior to
the hearing held pursuant to Section 366.26. A copy of the executed
negotiated agreement shall be attached to the assessment.

(h) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385) begin insert , as applicable, end insert of
Chapter 2 of Part 3 of Division begin delete 9, as applicable. end delete begin insert 9. end insert

(i) In determining whether reunification services will benefit
the child pursuant to paragraph (6) or (7) of subdivision (b), the
court shall consider any information it deems relevant, including
the following factors:

(1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the
child’s sibling or half sibling.

(2) The circumstances under which the abuse or harm was
inflicted on the child or the child’s sibling or half sibling.

(3) The severity of the emotional trauma suffered by the child
or the child’s sibling or half sibling.

(4) Any history of abuse of other children by the offending
parent or guardian.

(5) The likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no
continuing supervision.

(6) Whether or not the child desires to be reunified with the
offending parent or guardian.

(j) When the court determines that reunification services will
not be ordered, it shall order that the child’s caregiver receive the
child’s birth certificate in accordance with Sections 16010.4 and
16010.5. Additionally, when the court determines that reunification
services will not be ordered, it shall order, when appropriate, that
a child who is 16 years of age or older receive his or her birth
certificate.

(k) The court shall read into the record the basis for a finding
of severe sexual abuse or the infliction of severe physical harm
under paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of
reunification services to the offending parent or guardian would
not benefit the child.