BILL NUMBER: SB 1060 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 24, 2016
PASSED THE ASSEMBLY AUGUST 18, 2016
AMENDED IN ASSEMBLY AUGUST 1, 2016
AMENDED IN ASSEMBLY JUNE 22, 2016
AMENDED IN SENATE MAY 31, 2016
AMENDED IN SENATE APRIL 19, 2016
INTRODUCED BY Senator Leno
(Coauthors: Senators Allen and McGuire)
(Coauthors: Assembly Members Brown, Chiu, Chu, Cristina Garcia,
Linder, Lopez, McCarty, and Williams)
FEBRUARY 16, 2016
An act to amend Section 8616.5 of the Family Code, and to amend
Sections 366.3, 727.3, and 16002 of the Welfare and Institutions
Code, relating to adoption.
LEGISLATIVE COUNSEL'S DIGEST
SB 1060, Leno. Postadoption contact: siblings of dependent
children or wards.
Existing law provides that a minor may be adjudged a dependent
child or a ward of the juvenile court under specified circumstances.
Existing law authorizes the court to place a minor who has been
removed from the custody of his or her parent or guardian in foster
care, among other placements. Existing law allows, in an adoption
proceeding, for continuing contact between the birth relatives and a
child if a postadoption contact agreement is entered into voluntarily
and is in the best interests of the child at the time the adoption
petition is granted.
Existing law requires, if parental rights are terminated and the
court orders a dependent child or ward to be placed for adoption, the
county adoption agency or the State Department of Social Services to
take specified steps, with exceptions, to facilitate ongoing sibling
contact, including the encouragement of prospective adoptive parents
to make a plan for facilitating postadoptive contact, as specified.
This bill would instead require the county placing agency, as part
of the above steps, to the extent practicable, to convene a meeting
with the child, the sibling or siblings of the child, the prospective
adoptive parent or parents, and a facilitator for the purpose of
deciding whether to voluntarily execute a postadoption sibling
contact agreement. The bill would provide that the county placing
agency is not required to convene a meeting to decide whether to
voluntarily execute a postadoption sibling contact agreement if
specified circumstances occur. The bill would authorize the child to
petition the court for an order requiring the county placing agency
to convene a meeting to decide whether to voluntarily execute a
postadoption sibling contact agreement. The bill would provide that
the meeting is not required to occur if the court determines by a
preponderance of the evidence that a postadoption sibling contact
agreement or a meeting for the purpose of deciding whether to
voluntarily execute such an agreement is contrary to the safety and
well-being of the child and notes the determination in the court
order. By requiring new duties on a county placing agency relating to
meetings on postadoption sibling contact agreements, this bill would
impose a state-mandated local program.
Existing law requires the court, at least every 6 months, to
review the status of a dependent child for whom the court has ordered
parental rights terminated and who has been ordered placed for
adoption.
This bill would require the court to inquire into the status of
the development of a voluntary postadoption sibling contact agreement
at the time of the first review hearing conducted pursuant to the
above-described provision.
Existing law requires a juvenile court, in the case of a minor
declared a ward and ordered to be placed in foster care, and where
the minor has continuing involvement with his or her parents or legal
guardians, to include in its order placing the minor in a permanent
placement a specification of the nature and frequency of visiting
arrangements with the parents or legal guardians.
This bill would expand this provision to also apply to visiting
arrangements with siblings of the minor.
This bill would also make conforming changes to related
provisions.
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 no reimbursement is required by this
act for a specified reason.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8616.5 of the Family Code is amended to read:
8616.5. (a) The Legislature finds and declares that some adoptive
children may benefit from either direct or indirect contact with
birth relatives, including the birth parent or parents or any
siblings, or an Indian tribe, after being adopted. Postadoption
contact agreements are intended to ensure children of an achievable
level of continuing contact when contact is beneficial to the
children and the agreements are voluntarily executed by birth
relatives, including the birth parent or parents or any siblings, or
an Indian tribe, and adoptive parents. Nothing in this section
requires all of the listed parties to participate in the development
of a postadoption contact agreement in order for the agreement to be
executed.
(b) (1) Nothing in the adoption laws of this state shall be
construed to prevent the adopting parent or parents, the birth
relatives, including the birth parent or parents or any siblings, or
an Indian tribe, and the child from voluntarily executing a written
agreement to permit continuing contact between the birth relatives,
including the birth parent or parents or any siblings, or an Indian
tribe, and the child if the agreement is found by the court to have
been executed voluntarily and to be in the best interests of the
child at the time the adoption petition is granted.
(2) The terms of any postadoption contact agreement executed under
this section shall be limited to, but need not include, all of the
following:
(A) Provisions for visitation between the child and a birth parent
or parents and other birth relatives, including siblings, and the
child's Indian tribe if the case is governed by the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(B) Provisions for future contact between a birth parent or
parents or other birth relatives, including siblings, or both, and
the child or an adoptive parent, or both, and in cases governed by
the Indian Child Welfare Act, the child's Indian tribe.
(C) Provisions for the sharing of information about the child in
the future.
(3) The terms of any postadoption contact agreement with birth
relatives, including siblings, other than the child's birth parent or
parents shall be limited to the sharing of information about the
child, unless the child has a preexisting relationship with the birth
relative.
(c) At the time an adoption decree is entered pursuant to a
petition filed pursuant to Section 8714, 8714.5, 8802, 8912, or 9000,
the court entering the decree may grant postadoption privileges if
an agreement for those privileges has been executed, including
agreements executed pursuant to subdivision (f) of Section 8620. The
hearing to grant the adoption petition and issue an order of adoption
may be continued as necessary to permit parties who are in the
process of negotiating a postadoption agreement to reach a final
agreement.
(d) The child who is the subject of the adoption petition shall be
considered a party to the postadoption contact agreement. The
written consent to the terms and conditions of the postadoption
contact agreement and any subsequent modifications of the agreement
by a child who is 12 years of age or older is a necessary condition
to the granting of privileges regarding visitation, contact, or
sharing of information about the child, unless the court finds by a
preponderance of the evidence that the agreement, as written, is in
the best interests of the child. Any child who has been found to come
within Section 300 of the Welfare and Institutions Code or who is
the subject of a petition for jurisdiction of the juvenile court
under Section 300 of the Welfare and Institutions Code shall be
represented by an attorney for purposes of consent to the
postadoption contact agreement.
(e) A postadoption contact agreement shall contain the following
warnings in bold type:
(1) After the adoption petition has been granted by the court, the
adoption cannot be set aside due to the failure of an adopting
parent, a birth parent, a birth relative, including a sibling, an
Indian tribe, or the child to follow the terms of this agreement or a
later change to this agreement.
(2) A disagreement between the parties or litigation brought to
enforce or modify the agreement shall not affect the validity of the
adoption and shall not serve as a basis for orders affecting the
custody of the child.
(3) A court will not act on a petition to change or enforce this
agreement unless the petitioner has participated, or attempted to
participate, in good faith in mediation or other appropriate dispute
resolution proceedings to resolve the dispute.
(f) Upon the granting of the adoption petition and the issuing of
the order of adoption of a child who is a dependent of the juvenile
court, juvenile court dependency jurisdiction shall be terminated.
Enforcement of the postadoption contact agreement shall be under the
continuing jurisdiction of the court granting the petition of
adoption. The court may not order compliance with the agreement
absent a finding that the party seeking the enforcement participated,
or attempted to participate, in good faith in mediation or other
appropriate dispute resolution proceedings regarding the conflict,
prior to the filing of the enforcement action, and that the
enforcement is in the best interests of the child. Documentary
evidence or offers of proof may serve as the basis for the court's
decision regarding enforcement. No testimony or evidentiary hearing
shall be required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
(g) The court may not award monetary damages as a result of the
filing of the civil action pursuant to subdivision (e).
(h) A postadoption contact agreement may be modified or terminated
only if either of the following occurs:
(1) All parties, including the child if the child is 12 years of
age or older at the time of the requested termination or
modification, have signed a modified postadoption contact agreement
and the agreement is filed with the court that granted the petition
of adoption.
(2) The court finds all of the following:
(A) The termination or modification is necessary to serve the best
interests of the child.
(B) There has been a substantial change of circumstances since the
original agreement was executed and approved by the court.
(C) The party seeking the termination or modification has
participated, or attempted to participate, in good faith in mediation
or other appropriate dispute resolution proceedings prior to seeking
court approval of the proposed termination or modification.
Documentary evidence or offers of proof may serve as the basis for
the court's decision. No testimony or evidentiary hearing shall be
required. The court shall not order further investigation or
evaluation by any public or private agency or individual absent a
finding by clear and convincing evidence that the best interests of
the child may be protected or advanced only by that inquiry and that
the inquiry will not disturb the stability of the child's home to the
detriment of the child.
(i) All costs and fees of mediation or other appropriate dispute
resolution proceedings shall be borne by each party, excluding the
child. All costs and fees of litigation shall be borne by the party
filing the action to modify or enforce the agreement when no party
has been found by the court as failing to comply with an existing
postadoption contact agreement. Otherwise, a party, other than the
child, found by the court as failing to comply without good cause
with an existing agreement shall bear all the costs and fees of
litigation.
(j) The Judicial Council shall adopt rules of court and forms for
motions to enforce, terminate, or modify postadoption contact
agreements.
(k) The court shall not set aside a decree of adoption, rescind a
relinquishment, or modify an order to terminate parental rights or
any other prior court order because of the failure of a birth parent,
adoptive parent, birth relative, including a sibling, an Indian
tribe, or the child to comply with any or all of the original terms
of, or subsequent modifications to, the postadoption contact
agreement, except as follows:
(1) Prior to issuing the order of adoption, in an adoption
involving an Indian child, the court may, upon a petition of the
birth parent, birth relative, including a sibling, or an Indian
tribe, order the parties to engage in family mediation services for
the purpose of reaching a postadoption contact agreement if the
prospective adoptive parent fails to negotiate in good faith to
execute a postadoption contact agreement, after having agreed to
enter into negotiations, provided that the failure of the parties to
reach an agreement is not in and of itself proof of bad faith.
(2) Prior to issuing the order of adoption, if the parties fail to
negotiate in good faith to execute a postadoption contact agreement
during the negotiations entered into pursuant to, and in accordance
with, paragraph (1), the court may modify prior orders or issue new
orders as necessary to ensure the best interest of the Indian child
is met, including, but not limited to, requiring parties to engage in
further family mediation services for the purpose of reaching a
postadoption contact agreement, initiating guardianship proceeding in
lieu of adoption, or authorizing a change of adoptive placement for
the child.
(l) As used in this section, "sibling" means a person related to
the identified child by blood, adoption, or affinity through a common
legal or biological parent.
SEC. 2. 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, tribal customary adoption, adoption of a nonminor dependent
pursuant to subdivision (f) of Section 366.31, or legal guardianship
pursuant to Section 360 or 366.26, the court shall retain
jurisdiction over the child or nonminor dependent until the child or
nonminor dependent is adopted or the legal guardianship is
established, except as provided for in Section 366.29 or, on and
after January 1, 2012, Section 366.32. The status of the child or
nonminor dependent 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 or nonminor dependent has
been granted, or in the case of a tribal customary adoption, when the
tribal customary adoption order has been afforded full faith and
credit and the petition for adoption has been granted, the court
shall terminate its jurisdiction over the child or nonminor
dependent. 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 six 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) (1) 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.
(2) 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 either in the
juvenile court that retains jurisdiction over the guardianship as
authorized by Section 366.4 or the juvenile court in the county where
the guardian and child currently reside, based on the best interests
of the child, unless the termination is due to the emancipation or
adoption of the child. The juvenile court having jurisdiction over
the guardianship shall receive notice from the court in which the
petition is filed within five calendar days of the filing. Prior to
the hearing on a petition to terminate legal guardianship pursuant to
this subdivision, the court shall order the county department of
social services or welfare department having jurisdiction or jointly
with the county department where the guardian and child currently
reside to prepare a report, for the court's consideration, that shall
include an evaluation of whether the child could safely remain in,
or be returned to, 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
family maintenance or reunification services to maintain the legal
guardianship and set forth a plan for providing those services. If
the petition to terminate legal guardianship is granted, either
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.
(3) 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 or, for an Indian child, tribal customary
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 county adoption agency, or the State
Department of Social Services if it is acting as an adoption agency,
to prepare an assessment under subdivision (b) of Section 366.22.
(d) If the child or, on and after January 1, 2012, nonminor
dependent 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 or, on and after
January 1, 2012, nonminor dependent 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 or, on and after January 1,
2012, nonminor dependent.
(3) It has been 12 months since a hearing held pursuant to Section
366.26 or an order that the child remain in foster care pursuant to
Section 366.21, 366.22, 366.25, 366.26, or subdivision (h).
(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 (g), 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) Identification of individuals other than the child's siblings
who are important to a child who is 10 years of age or older and has
been in out-of-home placement for six months or longer, and actions
necessary to maintain the child's relationship with those
individuals, provided that those relationships are in the best
interest of the child. The social worker shall ask every child who is
10 years of age or older and who has been in out-of-home placement
for six months or longer to identify individuals other than the child'
s siblings who are important to the child, and may ask any other
child to provide that information, as appropriate. The social worker
shall make efforts to identify other individuals who are important to
the child, consistent with the child's best interests.
(3) The continuing appropriateness and extent of compliance with
the permanent plan for the child, including efforts to maintain
relationships between a child who is 10 years of age or older and who
has been in out-of-home placement for six months or longer 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.
(4) The extent of the agency's compliance with the child welfare
services case plan in making reasonable efforts either to return the
child to the safe home of the parent or to complete whatever steps
are necessary to finalize the permanent placement of the child. If
the reviewing body determines that a second period of reunification
services is in the child's best interests, and that there is a
significant likelihood of the child's return to a safe home due to
changed circumstances of the parent, pursuant to subdivision (f), the
specific reunification services required to effect the child's
return to a safe home shall be described.
(5) Whether there should be any limitation on the right of the
parent or guardian to make educational decisions or developmental
services 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 or
developmental services decisions for the child, the court shall at
the same time appoint a responsible adult to make educational
decisions or developmental services decisions for the child pursuant
to Section 361.
(6) 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 Section 391.
(7) The extent of progress the parents or legal guardians have
made toward alleviating or mitigating the causes necessitating
placement in foster care.
(8) The likely date by which the child may be returned to, and
safely maintained in, the home, placed for adoption, legal
guardianship, placed with a fit and willing relative, or, for an
Indian child, in consultation with the child's tribe, placed for
tribal customary adoption, or, if the child is 16 years of age or
older, and no other permanent plan is appropriate at the time of the
hearing, in another planned permanent living arrangement.
(9) 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. At the first review
conducted for a child for whom the court has ordered parental rights
terminated and who has been ordered placed for adoption, the court
shall inquire into the status of the development of a voluntary
postadoption sibling contact agreement pursuant to subdivision (e) of
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, all of the following:
(i) The frequency and nature of the visits between the siblings.
(ii) If there are visits between the siblings, whether the visits
are supervised or unsupervised. If the visits are supervised, a
discussion of the reasons why the visits are supervised, and what
needs to be accomplished in order for the visits to be unsupervised.
(iii) If there are visits between the siblings, a description of
the location and length of the visits.
(iv) Any plan to increase visitation between the 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.
(10) For a child who is 14 years of age or older, and, effective
January 1, 2012, for a nonminor dependent, the services needed to
assist the child or nonminor dependent to make the transition from
foster care to successful adulthood.
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.
(f) 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 up to a period of six months, and family
maintenance services, as needed for an additional six months in order
to return the child to a safe home environment. On and after January
1, 2012, this subdivision shall not apply to the parents of a
nonminor dependent.
(g) 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, or,
for an Indian child for whom parental rights are not being terminated
and a tribal customary adoption is being considered, 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) If the child has not been placed with a prospective adoptive
parent or guardian, identification of individuals, other than the
child's siblings, who are important to the child and actions
necessary to maintain the child's relationship with those
individuals, provided that those relationships are in the best
interest of the child. 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. 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 efforts 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.
(h) (1) At the review held pursuant to subdivision (d) for a child
in 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, for an Indian
child, in consultation with the child's tribe, placed for tribal
customary adoption, or appointed a legal guardian, placed with a fit
and willing relative, or, if compelling reasons exist for finding
that none of the foregoing options are in the best interest of the
child and the child is 16 years of age or older, 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 as of the hearing date. If the county adoption agency,
or the department when it is acting as an 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. The court shall make
factual findings identifying any barriers to achieving the permanent
plan as of the hearing date. On and after January 1, 2012, the
nonminor dependent's legal status as an adult is in and of itself a
compelling reason not to hold a hearing pursuant to Section 366.26.
(2) When the child is 16 years of age or older and in another
planned permanent living arrangement, the court shall do all of the
following:
(A) Ask the child about his or her desired permanency outcome.
(B) Make a judicial determination explaining why, as of the
hearing date, another planned permanent living arrangement is the
best permanency plan for the child.
(C) State for the record the compelling reason or reasons why it
continues not to be in the best interest of the child to return home,
be placed for adoption, be placed for tribal customary adoption in
the case of an Indian child, be placed with a legal guardian, or be
placed with a fit and willing relative.
(3) When the child is 16 years of age or older and is in another
planned permanent living arrangement, the social study prepared for
the hearing shall include a description of all of the following:
(A) The intensive and ongoing efforts to return the child to the
home of the parent, place the child for adoption, or establish a
legal guardianship, as appropriate.
(B) The steps taken to do both of the following:
(i) Ensure that the child's care provider is following the
reasonable and prudent parent standard.
(ii) Determine whether the child has regular, ongoing
opportunities to engage in age or developmentally appropriate
activities, including consulting with the child about opportunities
for the child to participate in those activities.
(4) When the child is under 16 years of age and has a permanent
plan of return home, adoption, legal guardianship, or placement with
a fit and willing relative, any barriers to achieving the permanent
plan and the efforts made by the agency address those barriers.
(i) If, as authorized by subdivision (h), the court orders a
hearing pursuant to Section 366.26, the court 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 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, tribal
customary adoption, legal guardianship, placement with a fit and
willing relative, or, for a child 16 years of age or older, another
planned permanent living arrangement is the most appropriate plan for
the child. On and after January 1, 2012, a hearing pursuant to
Section 366.26 shall not be ordered if the child is a nonminor
dependent, unless the nonminor dependent is an Indian child and
tribal customary adoption is recommended as the permanent plan. The
court may order that a nonminor dependent who otherwise is eligible
pursuant to Section 11403 remain in a planned, permanent living
arrangement. At the request of the nonminor dependent who has an
established relationship with an adult determined to be the nonminor
dependent's permanent connection, the court may order adoption of the
nonminor dependent pursuant to subdivision (f) of Section 366.31.
(j) The reviews conducted pursuant to subdivision (a) or (d) may
be conducted earlier than every six months if the court determines
that an earlier review is in the best interests of the child or as
court rules prescribe.
SEC. 3. Section 727.3 of the Welfare and Institutions Code is
amended to read:
727.3. The purpose of this section is to provide a means to
monitor the safety and well-being of every minor in foster care who
has been declared a ward of the juvenile court pursuant to Section
601 or 602 and to ensure that everything reasonably possible is done
to facilitate the safe and early return of the minor to his or her
own home or to establish an alternative permanent plan for the minor.
(a) (1) For every minor declared a ward and ordered to be placed
in foster care, a permanency planning hearing shall be conducted
within 12 months of the date the minor entered foster care, as
defined in paragraph (4) of subdivision (d) of Section 727.4.
Subsequent permanency planning hearings shall be conducted
periodically, but no less frequently than once every 12 months
thereafter during the period of placement. It shall be the duty of
the probation officer to prepare a written social study report
including an updated case plan and a recommendation for a permanent
plan, pursuant to subdivision (c) of Section 706.5, and submit the
report to the court prior to each permanency planning hearing,
pursuant to subdivision (b) of Section 727.4.
(2) Prior to any permanency planning hearing involving a minor in
the physical custody of a community care facility or foster family
agency, the facility or agency may file with the court a report
containing its recommendations, in addition to the probation officer'
s social study. Prior to any permanency planning hearing involving
the physical custody of a foster parent, relative caregiver,
preadoptive parent, or legal guardian, that person may present to the
court a report containing his or her recommendations. The court
shall consider all reports and recommendations filed pursuant to this
subdivision.
(3) If the minor has a continuing involvement with his or her
parents or legal guardians, the parents or legal guardians shall be
involved in the planning for a permanent placement. The court order
placing the minor in a permanent placement shall include a
specification of the nature and frequency of visiting arrangements
with the parents or legal guardians and, if any, the siblings.
(4) At each permanency planning hearing, the court shall order a
permanent plan for the minor, as described in subdivision (b). The
court shall also make findings, as described in subdivision (e) of
Section 727.2. In the case of a minor who has reached 16 years of age
or older, the court shall, in addition, determine the services
needed to assist the minor to make the transition from foster care to
successful adulthood. The court shall make all of these
determinations on a case-by-case basis and make reference to the
probation officer's report, the case plan, or other evidence relied
upon in making its decisions.
(5) When the minor is 16 years of age or older, and is in another
planned permanent living arrangement, the court, at each permanency
planning hearing, shall do all of the following:
(A) Ask the minor about his or her desired permanency outcome.
(B) Make a judicial determination explaining why, as of the
hearing date, another planned permanent living arrangement is the
best permanency plan for the minor.
(C) State for the record the compelling reason or reasons why it
continues not to be in the best interest of the minor to return home,
be placed for adoption, be placed with a legal guardian, or be
placed with a fit and willing relative.
(b) At all permanency planning hearings, the court shall determine
the permanent plan for the minor. The court shall order one of the
following permanent plans, in order of priority:
(1) Return of the minor to the physical custody of the parent or
legal guardian. After considering the admissible and relevant
evidence, the court shall order the return of the minor to the
physical custody of his or her parent or legal guardian unless:
(A) Reunification services were not offered, pursuant to
subdivision (b) of Section 727.2.
(B) The court finds, by a preponderance of the evidence, that the
return of the minor 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 minor. The probation
department shall have the burden of establishing that detriment. In
making its determination, the court shall review and consider the
social study report and recommendations pursuant to Section 706.5,
the report and recommendations of any child advocate appointed for
the minor in the case, and any other reports submitted pursuant to
paragraph (2) of subdivision (a), and shall consider the efforts or
progress, or both, demonstrated by the minor and family and the
extent to which the minor availed himself or herself of the services
provided.
(2) Order that the permanent plan for the minor will be to return
the minor to the physical custody of the parent or legal guardian,
order further reunification services to be provided to the minor and
his or her parent or legal guardian for a period not to exceed six
months and continue the case for up to six months for a subsequent
permanency planning hearing, provided that the subsequent hearing
shall occur within 18 months of the date the minor 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 minor 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
guardian. For purposes of this section, in order to find that there
is a substantial probability that the minor will be returned to the
physical custody of his or her parent or legal guardian, the court
shall be required to find that the minor and his or her parent or
legal guardian have demonstrated the capacity and ability to complete
the objectives of the case plan.
The court shall inform the parent or legal guardian that if the
minor cannot be returned home by the next permanency planning
hearing, a proceeding pursuant to Section 727.31 may be initiated.
The court shall not continue the case for further reunification
services if it has been 18 months or more since the date the minor
was originally taken from the physical custody of his or her parent
or legal guardian.
(3) Identify adoption as the permanent plan and order that a
hearing be held within 120 days, pursuant to the procedures described
in Section 727.31. The court shall only set a hearing pursuant to
Section 727.31 if there is clear and convincing evidence that
reasonable services have been provided or offered to the parents.
When the court sets a hearing pursuant to Section 727.31, it shall
order that an adoption assessment report be prepared, pursuant to
subdivision (b) of Section 727.31.
(4) Order a legal guardianship, pursuant to procedures described
in subdivisions (c) to (f), inclusive, of Section 728.
(5) Place the minor with a fit and willing relative. "Placement
with a fit and willing relative" means placing the minor with an
appropriate approved relative who is willing to provide a permanent
and stable home for the minor, but is unable or unwilling to become
the legal guardian. When a minor is placed with a fit and willing
relative, the court may authorize the relative to provide the same
legal consent for the minor's medical, surgical, and dental care, and
education as the custodial parent of the minor.
(6) (A) If he or she is 16 years of age or older, place the minor
in another planned permanent living arrangement. For purposes of this
section, "planned permanent living arrangement" means any permanent
living arrangement described in Section 11402 that is ordered by the
court for a minor 16 years of age or older when there is a compelling
reason or reasons to determine that it is not in the best interest
of the minor to have any permanent plan listed in paragraphs (1) to
(5), inclusive. These plans include, but are not limited to,
placement in a specific, identified foster family home, program, or
facility on a permanent basis, or placement in a transitional housing
placement facility. When the court places a minor in a planned
permanent living arrangement, the court shall specify the goal of the
placement, which may include, but shall not be limited to, return
home, emancipation, guardianship, or permanent placement with a
relative.
The court shall only order that the minor remain in a planned
permanent living arrangement if the court finds by clear and
convincing evidence, based upon the evidence already presented to it,
that there is a compelling reason, as defined in subdivision (c),
for determining that a plan of termination of parental rights and
adoption is not in the best interest of the minor.
(B) If the minor is under 16 years of age and the court finds by
clear and convincing evidence, based upon the evidence already
presented to it, that there is a compelling reason, as defined in
subdivision (c), for determining that a plan of termination of
parental rights and adoption is not in the best interest of the minor
as of the hearing date, the court shall order the minor to remain in
a foster care placement with a permanent plan of return home,
adoption, legal guardianship, or placement with a fit and willing
relative, as appropriate. The court shall make factual findings
identifying any barriers to achieving the permanent plan as of the
hearing date.
(c) A compelling reason for determining that a plan of termination
of parental rights and adoption is not in the best interest of the
minor is any of the following:
(1) Documentation by the probation department that adoption is not
in the best interest of the minor and is not an appropriate
permanency goal. That documentation may include, but is not limited
to, documentation that:
(A) The minor is 12 years of age or older and objects to
termination of parental rights.
(B) The minor is 17 years of age or older and specifically
requests that transition to independent living with the
identification of a caring adult to serve as a lifelong connection be
established as his or her permanent plan. On and after January 1,
2012, this includes a minor who requests that his or her transitional
independent living case plan include modification of his or her
jurisdiction to that of dependency jurisdiction pursuant to
subdivision (b) of Section 607.2 or subdivision (i) of Section 727.2,
or to that of transition jurisdiction pursuant to Section 450, in
order to be eligible as a nonminor dependent for the extended
benefits pursuant to Section 11403.
(C) The parent or guardian and the minor have a significant bond,
but the parent or guardian is unable to care for the minor because of
an emotional or physical disability, and the minor's caregiver has
committed to raising the minor to the age of majority and
facilitating visitation with the disabled parent or guardian.
(D) The minor agrees to continued placement in a residential
treatment facility that provides services specifically designed to
address the minor's treatment needs, and the minor's needs could not
be served by a less restrictive placement.
The probation department's recommendation that adoption is not in
the best interest of the minor shall be based on the present family
circumstances of the minor and shall not preclude a different
recommendation at a later date if the minor's family circumstances
change.
(2) Documentation by the probation department that no grounds
exist to file for termination of parental rights.
(3) Documentation by the probation department that the minor is an
unaccompanied refugee minor, or there are international legal
obligations or foreign policy reasons that would preclude terminating
parental rights.
(4) A finding by the court that the probation department was
required to make reasonable efforts to reunify the minor with the
family pursuant to subdivision (a) of Section 727.2, and did not make
those efforts.
(5) Documentation by the probation department that the minor is
living with a relative who is unable or unwilling to adopt the minor
because of exceptional circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
minor, but who is willing to provide, and capable of providing, the
minor with a stable and permanent home environment, and the removal
of the minor from the physical custody of his or her relative would
be detrimental to the minor's emotional well-being.
(d) Nothing in this section shall be construed to limit the
ability of a parent to voluntarily relinquish his or her child to the
State Department of Social Services when it is acting as an adoption
agency or to a county adoption agency at any time while the minor is
a ward of the juvenile court if the department or county adoption
agency is willing to accept the relinquishment.
(e) Any change in the permanent plan of a minor placed with a fit
and willing relative or in a planned permanent living arrangement
shall be made only by order of the court pursuant to a petition filed
in accordance with Section 778 or at a regularly scheduled and
noticed status review hearing or permanency planning hearing. Any
change in the permanent plan of a minor placed in a guardianship
shall be made only by order of the court pursuant to a motion filed
in accordance with Section 728.
SEC. 4. Section 16002 of the Welfare and Institutions Code is
amended to read:
16002. (a) (1) It is the intent of the Legislature to maintain
the continuity of the family unit, and ensure the preservation and
strengthening of the child's family ties by ensuring that when
siblings have been removed from their home, either as a group on one
occurrence or individually on separate occurrences, the siblings will
be placed in foster care together, unless it has been determined
that placement together is contrary to the safety or well-being of
any sibling. The Legislature recognizes that in order to ensure the
placement of a sibling group in the same foster care placement,
placement resources need to be expanded.
(2) It is also the intent of the Legislature to preserve and
strengthen a child's sibling relationship so that when a child has
been removed from his or her home and he or she has a sibling or
siblings who remain in the custody of a mutual parent subject to the
court's jurisdiction, the court has the authority to develop a
visitation plan for the siblings, unless it has been determined that
visitation is contrary to the safety or well-being of any sibling.
(b) The responsible local agency shall make a diligent effort in
all out-of-home placements of dependent children and wards in foster
care, including those with relatives, to place siblings together in
the same placement, and to develop and maintain sibling
relationships. If siblings are not placed together in the same home,
the social worker or probation officer shall explain why the siblings
are not placed together and what efforts he or she is making to
place the siblings together or why making those efforts would be
contrary to the safety and well-being of any of the siblings. When
placement of siblings together in the same home is not possible, a
diligent effort shall be made, and a case plan prepared, to provide
for ongoing and frequent interaction among siblings until family
reunification is achieved, or, if parental rights are terminated, as
part of developing the permanent plan for the child. If the court
determines by clear and convincing evidence that sibling interaction
is contrary to the safety and well-being of any of the siblings, the
reasons for the determination shall be noted in the court order, and
interaction shall be suspended.
(c) When there has been a judicial suspension of sibling
interaction, the reasons for the suspension shall be reviewed at each
periodic review hearing pursuant to Section 366 or 727.3. In order
for the suspension to continue, the court shall make a renewed
finding that sibling interaction is contrary to the safety or
well-being of either child. When the court determines that sibling
interaction can be safely resumed, that determination shall be noted
in the court order and the case plan shall be revised to provide for
sibling interaction.
(d) If the case plan for the child has provisions for sibling
interaction, the child, or his or her parent or legal guardian, shall
have the right to comment on those provisions. If a person wishes to
assert a sibling relationship with a dependent child or ward, he or
she may file a petition in the juvenile court having jurisdiction
over the dependent child pursuant to subdivision (b) of Section 388
or the ward in foster care pursuant to Section 778.
(e) If parental rights are terminated and the court orders a
dependent child or ward to be placed for adoption, the county
adoption agency or the State Department of Social Services shall take
all of the following steps to facilitate ongoing sibling contact,
except in those cases provided in subdivision (b) where the court
determines by clear and convincing evidence that sibling interaction
is contrary to the safety or well-being of the child:
(1) Include in training provided to prospective adoptive parents
information about the importance of sibling relationships to the
adopted child and counseling on methods for maintaining sibling
relationships.
(2) Provide prospective adoptive parents with information about
siblings of the child, except the address where the siblings of the
children reside. However, this address may be disclosed by court
order for good cause shown.
(3) (A) To the extent practicable, the county placing agency shall
convene a meeting with the child, the sibling or siblings of the
child, the prospective adoptive parent or parents, and a facilitator
for the purpose of deciding whether to voluntarily execute a
postadoption sibling contact agreement pursuant to Section 8616.5 of
the Family Code on a date after termination of parental rights and
prior to finalization of the adoption. The county placing agency may
comply with the requirements of this paragraph by allowing a
nonprofit organization authorized to provide permanency placement and
postadoption mediation for adoptive and birth families to facilitate
the meeting and develop the agreement.
(B) The county placing agency is not required to convene a meeting
to decide whether to voluntarily execute a postadoption sibling
contact agreement pursuant to Section 8616.5 of the Family Code in
either of the following circumstances:
(i) The county placing agency determines that such a meeting or
postadoption sibling contact agreement would be contrary to the
safety and well-being of the child.
(ii) The child requests that a meeting shall not occur.
(C) The child may petition the court for an order requiring the
county placing agency to convene a meeting to decide whether to
voluntarily execute a postadoption sibling contact agreement pursuant
to Section 8616.5 of the Family Code. If the court determines by a
preponderance of the evidence that a postadoption sibling contact
agreement or a meeting for the purpose of deciding whether to
voluntarily execute such an agreement is contrary to the safety and
well-being of the child, the reasons for the determination shall be
noted in the court order, and the meeting is not required to occur.
(D) Counsel to the child and counsel to the siblings who are
dependents of the court shall be notified of, and may attend, both
the meeting and the hearing described in this paragraph.
(E) This paragraph shall not require attendance by a child,
sibling, or other party at a meeting to decide whether to voluntarily
execute a postadoption sibling contact agreement pursuant to Section
8616.5 of the Family Code if the child, sibling, or other party
cannot be located or does not wish to attend the meeting. This
paragraph shall not prohibit a county placing agency from convening a
meeting if not all of the parties are secured to attend.
(f) Information regarding sibling interaction, contact, or
visitation that has been authorized or ordered by the court shall be
provided to the foster parent, relative caretaker, or legal guardian
of the child as soon as possible after the court order is made, in
order to facilitate the interaction, contact, or visitation.
(g) As used in this section, "sibling" means a person related to
the identified child by blood, adoption, or affinity through a common
legal or biological parent.
(h) The court documentation on sibling placements required under
this section shall not require the modification of existing court
order forms until the Child Welfare Services/Case Management System
(CWS/CMS) is implemented on a statewide basis.
SEC. 5. To the extent that this act has an overall effect of
increasing the costs already borne by a local agency for programs or
levels of service mandated by the 2011 Realignment Legislation within
the meaning of Section 36 of Article XIII of the California
Constitution, it shall apply to local
agencies only to the extent that the state provides annual
funding for the cost increase. Any new program or higher level of
service provided by a local agency pursuant to this act above the
level for which funding has been provided shall not require a
subvention of funds by the state nor otherwise be subject to Section
6 of Article XIII B of the California Constitution.