BILL NUMBER: SB 116 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 25, 2005
AMENDED IN SENATE MARCH 30, 2005
INTRODUCED BY Senators Dutton, Scott, and Simitian
(Coauthors: Senators Chesbro, Cox, Ducheny, Escutia, Figueroa,
Margett, and Runner)
JANUARY 25, 2005
An act to amend Section 1255.7 of the Health and Safety Code, to
amend Section 271.5 of the Penal Code, and to amend Section 14005.24
of, and to amend and repeal Sections 300 and 361.5 of, the Welfare
and Institutions Code, relating to abandonment of newborns.
LEGISLATIVE COUNSEL'S DIGEST
SB 116, as amended, Dutton Child abandonment: newborns.
Existing law makes it a crime for a parent of a minor child,
without lawful excuse, to not furnish necessary clothing, food,
shelter, or medical or remedial care for the child, or to refuse,
without lawful excuse, to accept the child in his or her home or
provide alternate shelter. Existing law also makes it a crime for a
parent of a child under the age of 14 years to desert the child with
intent to abandon, or for any person to knowingly or willfully
abandon or, having the ability to refuse to do so, fail to maintain
his or her child under the age of 14 years.
Existing law, until 2006, provides that no parent or other person
having lawful custody of a minor child 72 hours old or younger may be
prosecuted for a violation of the above crimes if he or she
voluntarily surrenders physical custody of the child to an employee
on duty at a public or private hospital emergency room, or any
additional location designated by the board of supervisors. Existing
law provides that within 48 hours of accepting the physical custody
of a child who is surrendered pursuant to these provisions, the
personnel that have custody of the child must notify child protective
services or a county agency providing child welfare services.
Existing law requires that agency to immediately notify the State
Department of Social Services of each child to whom this provision
applies upon taking temporary custody of the child.
This bill would delete that date thereby extending those
provisions indefinitely. By expanding the duties of local public
entities and employees, the bill would impose a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1255.7 of the Health and Safety Code is amended
to read:
1255.7. (a) (1) For purposes of this section, "safe-surrender
site" means either of the following:
(A) A location designated by the board of supervisors of a county
to be responsible for accepting physical custody of a minor child who
is 72 hours old or younger from a parent or individual who has
lawful custody of the child and who surrenders the child pursuant to
Section 271.5 of the Penal Code.
(B) A location within a public or private hospital that is
designated by that hospital to be responsible for accepting physical
custody of a minor child who is 72 hours old or younger from a parent
or individual who has lawful custody of the child and who surrenders
the child pursuant to Section 271.5 of the Penal Code.
(2) For purposes of this section, "parent" means a birth parent of
a minor child who is 72 hours old or younger.
(3) For purposes of this section, "personnel" means any person who
is an officer or employee of a safe-surrender site or who has staff
privileges at the site.
(4) A hospital and any safe-surrender site designated by the
county board of supervisors shall post a sign utilizing a statewide
logo that has been adopted by the State Department of Social Services
that notifies the public of the location where a minor child 72
hours old or younger may be safely surrendered pursuant to this
section.
(b) Any personnel on duty at a safe-surrender site shall accept
physical custody of a minor child 72 hours old or younger pursuant to
this section if a parent or other individual having lawful custody
of the child voluntarily surrenders physical custody of the child to
personnel who are on duty at the safe-surrender site. Safe-surrender
site personnel shall ensure that a qualified person does all of the
following:
(1) Places a coded, confidential ankle bracelet on the child.
(2) Provides, or makes a good faith effort to provide, to the
parent or other individual surrendering the child a copy of a unique,
coded, confidential ankle bracelet identification in order to
facilitate reclaiming the child pursuant to subdivision (f). However,
possession of the ankle bracelet identification, in and of itself,
does not establish parentage or a right to custody of the child.
(3) Provides, or makes a good faith effort to provide, to the
parent or other individual surrendering the child a medical
information questionnaire, which may be declined, voluntarily filled
out and returned at the time the child is surrendered, or later
filled out and mailed in the envelope provided for this purpose. This
medical information questionnaire shall not require any identifying
information about the child or the parent or individual surrendering
the child, other than the identification code provided in the ankle
bracelet placed on the child. Every questionnaire provided pursuant
to this section shall begin with the following notice in no less than
12-point type:
NOTICE: THE BABY YOU HAVE BROUGHT IN TODAY MAY HAVE SERIOUS
MEDICAL NEEDS IN THE FUTURE THAT WE DON'T KNOW ABOUT TODAY. SOME
ILLNESSES, INCLUDING CANCER, ARE BEST TREATED WHEN WE KNOW ABOUT
FAMILY MEDICAL HISTORIES. IN ADDITION, SOMETIMES RELATIVES ARE NEEDED
FOR LIFE-SAVING TREATMENTS. TO MAKE SURE THIS BABY WILL HAVE A
HEALTHY FUTURE, YOUR ASSISTANCE IN COMPLETING THIS QUESTIONNAIRE
FULLY IS ESSENTIAL. THANK YOU.
(c) Personnel of a safe-surrender site that has physical custody
of a minor child pursuant to this section shall ensure that a medical
screening examination and any necessary medical care is provided to
the minor child. Notwithstanding any other provision of law, the
consent of the parent or other relative shall not be required to
provide that care to the minor child.
(d) (1) As soon as possible, but in no event later than 48 hours
after the physical custody of a child has been accepted pursuant to
this section, personnel of the safe-surrender site that has physical
custody of the child shall notify child protective services or a
county agency providing child welfare services pursuant to Section
16501 of the Welfare and Institutions Code, that the safe-surrender
site has physical custody of the child pursuant to this section. In
addition, any medical information pertinent to the child's health,
including, but not limited to, information obtained pursuant to the
medical information questionnaire described in paragraph (3) of
subdivision (b) that has been received by or is in the possession of
the safe-surrender site shall be provided to that child protective
services or county agency.
(2) Any personal identifying information that pertains to a parent
or individual who surrenders a child that is obtained pursuant to
the medical information questionnaire is confidential and shall be
exempt from disclosure by the child protective services or county
agency under the California Public Records Act (Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of the
Government Code). Any personal identifying information that pertains
to a parent or individual who surrenders a child shall be redacted
from any medical information provided to child protective services or
the county agency providing child welfare services.
(e) Child protective services or the county agency providing child
welfare services pursuant to Section 16501 of the Welfare and
Institutions Code shall assume temporary custody of the child
pursuant to Section 300 of the Welfare and Institutions Code
immediately upon receipt of notice under subdivision (d). Child
protective services or the county agency providing child welfare
services pursuant to Section 16501 of the Welfare and Institutions
Code shall immediately investigate the circumstances of the case and
file a petition pursuant to Section 311 of the Welfare and
Institutions Code. Child protective services or the county agency
providing child welfare services pursuant to Section 16501 of the
Welfare and Institutions Code shall immediately notify the State
Department of Social Services of each child to whom this subdivision
applies upon taking temporary custody of the child pursuant to
Section 300 of the Welfare and Institutions Code. As soon as
possible, but no later than 24 hours after temporary custody is
assumed, child protective services or the county agency providing
child welfare services pursuant to Section 16501 of the Welfare and
Institutions Code shall report all known identifying information
concerning the child, except personal identifying information
pertaining to the parent or individual who surrendered the child, to
the California Missing Children Clearinghouse and to the National
Crime Information Center.
(f) If, prior to the filing of a petition under subdivision (e), a
parent or individual who has voluntarily surrendered a child
pursuant to this section requests that the safe-surrender site that
has physical custody of the child pursuant to this section return the
child and the safe-surrender site still has custody of the child,
personnel of the safe-surrender site shall either return the child to
the parent or individual or contact a child protective agency if any
personnel at the safe-surrender site knows or reasonably suspects
that the child has been the victim of child abuse or neglect. The
voluntary surrender of a child pursuant to this section is not in and
of itself a sufficient basis for reporting child abuse or neglect.
The terms "child abuse," "child protective agency," "mandated
reporter," "neglect," and "reasonably suspects" shall be given the
same meanings as in Article 2.5 (commencing with Section 11164) of
Title 1 of Part 4 of the Penal Code.
(g) Subsequent to the filing of a petition under subdivision (e),
if within 14 days of the voluntary surrender described in this
section, the parent or individual who surrendered custody returns to
claim physical custody of the child, the child welfare agency shall
verify the identity of the parent or individual, conduct an
assessment of his or her circumstances and ability to parent, and
request that the juvenile court dismiss the petition for dependency
and order the release of the child, if the child welfare agency
determines that none of the conditions described in subdivisions (a)
to (d), inclusive, of Section 319 of the Welfare and Institutions
Code currently exist.
(h) A safe-surrender site, or personnel of the safe-surrender
site, that accepts custody of a surrendered child pursuant to this
section shall not be subject to civil, criminal, or administrative
liability for accepting the child and caring for the child in the
good faith belief that action is required or authorized by this
section, including, but not limited to, instances where the child is
older than 72 hours or the parent or individual surrendering the
child did not have lawful physical custody of the child. This
subdivision does not confer immunity from liability for personal
injury or wrongful death, including, but not limited to, injury
resulting from medical malpractice.
(i) (1) In order to encourage assistance to persons who
voluntarily surrender physical custody of a child pursuant to this
section or Section 271.5 of the Penal Code, no person who, without
compensation and in good faith, provides assistance for the purpose
of effecting the safe surrender of a minor 72 hours old or younger
shall be civilly liable for injury to or death of the minor child as
a result of any of his or her acts or omissions. This immunity does
not apply to any act or omission constituting gross negligence,
recklessness, or willful misconduct.
(2) For purposes of this section, "assistance" means transporting
the minor child to the safe-surrender site as a person with lawful
custody, or transporting or accompanying the parent or person with
lawful custody at the request of that parent or person to effect the
safe surrender, or performing any other act in good faith for the
purpose of effecting the safe surrender of the minor.
(j) For purposes of this section, "lawful custody" means physical
custody of a minor 72 hours old or younger accepted by a person from
a parent of the minor, who the person believes in good faith is the
parent of the minor, with the specific intent and promise of
effecting the safe surrender of the minor.
(k) Any identifying information that pertains to a parent or
individual who surrenders a child pursuant to this section, that is
obtained as a result of the questionnaire described in paragraph (3)
of subdivision (b) or in any other manner, is confidential, shall be
exempt from disclosure under the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code), and shall not be disclosed by any personnel
of a safe-surrender site that accepts custody of a child pursuant to
this section.
SEC. 2. Section 271.5 of the Penal Code is amended to read:
271.5. (a) No parent or other individual having lawful custody of
a minor child 72 hours old or younger may be prosecuted for a
violation of Section 270, 270.5, 271, or 271a if he or she
voluntarily surrenders physical custody of the child to personnel on
duty at a safe-surrender site.
(b) For purposes of this section, "safe-surrender site" has the
same meaning as defined in paragraph (1) of subdivision (a) of
Section 1255.7 of the Health and Safety Code.
(c) (1) For purposes of this section, "lawful custody" has the
same meaning as defined in subdivision (k)
(j) of Section 1255.7 of the Health and Safety Code.
(2) For purposes of this section, "personnel" has the same meaning
as defined in paragraph (2) of subdivision (a) of Section 1255.7 of
the Health and Safety Code.
SEC. 3. Section 300 of the Welfare and Institutions Code, as
amended by Section 3 of Chapter 824 of the Statutes of 2000, is
amended to read:
300. Any child who comes within any of the following descriptions
is within the jurisdiction of the juvenile court which may adjudge
that person to be a dependent child of the court:
(a) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm inflicted
nonaccidentally upon the child by the child's parent or guardian. For
the purposes of this subdivision, a court may find there is a
substantial risk of serious future injury based on the manner in
which a less serious injury was inflicted, a history of repeated
inflictions of injuries on the child or the child's siblings, or a
combination of these and other actions by the parent or guardian
which indicate the child is at risk of serious physical harm. For
purposes of this subdivision, "serious physical harm" does not
include reasonable and age-appropriate spanking to the buttocks where
there is no evidence of serious physical injury.
(b) The child has suffered, or there is a substantial risk that
the child will suffer, serious physical harm or illness, as a result
of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child, or the willful or
negligent failure of the child's parent or guardian to adequately
supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure
of the parent or guardian to provide the child with adequate food,
clothing, shelter, or medical treatment, or by the inability of the
parent or guardian to provide regular care for the child due to the
parent's or guardian's mental illness, developmental disability, or
substance abuse. No child shall be found to be a person described by
this subdivision solely due to the lack of an emergency shelter for
the family. Whenever it is alleged that a child comes within the
jurisdiction of the court on the basis of the parent's or guardian's
willful failure to provide adequate medical treatment or specific
decision to provide spiritual treatment through prayer, the court
shall give deference to the parent's or guardian's medical treatment,
nontreatment, or spiritual treatment through prayer alone in
accordance with the tenets and practices of a recognized church or
religious denomination, by an accredited practitioner thereof, and
shall not assume jurisdiction unless necessary to protect the child
from suffering serious physical harm or illness. In making its
determination, the court shall consider (1) the nature of the
treatment proposed by the parent or guardian, (2) the risks to the
child posed by the course of treatment or nontreatment proposed by
the parent or guardian, (3) the risk, if any, of the course of
treatment being proposed by the petitioning agency, and (4) the
likely success of the courses of treatment or nontreatment proposed
by the parent or guardian and agency. The child shall continue to be
a dependent child pursuant to this subdivision only so long as is
necessary to protect the child from risk of suffering serious
physical harm or illness.
(c) The child is suffering serious emotional damage, or is at
substantial risk of suffering serious emotional damage, evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive
behavior toward self or others, as a result of the conduct of the
parent or guardian or who has no parent or guardian capable of
providing appropriate care. No child shall be found to be a person
described by this subdivision if the willful failure of the parent or
guardian to provide adequate mental health treatment is based on a
sincerely held religious belief and if a less intrusive judicial
intervention is available.
(d) The child has been sexually abused, or there is a substantial
risk that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed
to adequately protect the child from sexual abuse when the parent or
guardian knew or reasonably should have known that the child was in
danger of sexual abuse.
(e) The child is under the age of five years and has suffered
severe physical abuse by a parent, or by any person known by the
parent, if the parent knew or reasonably should have known that the
person was physically abusing the child. For the purposes of this
subdivision, "severe physical abuse" means any of the following: any
single act of abuse which causes physical trauma of sufficient
severity that, if left untreated, would cause permanent physical
disfigurement, permanent physical disability, or death; any single
act of sexual abuse which causes significant bleeding, deep bruising,
or significant external or internal swelling; or more than one act
of physical abuse, each of which causes bleeding, deep bruising,
significant external or internal swelling, bone fracture, or
unconsciousness; or the willful, prolonged failure to provide
adequate food. A child may not be removed from the physical custody
of his or her parent or guardian on the basis of a finding of severe
physical abuse unless the social worker has made an allegation of
severe physical abuse pursuant to Section 332.
(f) The child's parent or guardian caused the death of another
child through abuse or neglect.
(g) The child has been left without any provision for support;
physical custody of the child has been voluntarily surrendered
pursuant to Section 1255.7 of the Health and Safety Code and the
child has not been reclaimed within the 14-day period specified in
subdivision (e) of that section; the child's parent has been
incarcerated or institutionalized and cannot arrange for the care of
the child; or a relative or other adult custodian with whom the child
resides or has been left is unwilling or unable to provide care or
support for the child, the whereabouts of the parent are unknown, and
reasonable efforts to locate the parent have been unsuccessful.
(h) The child has been freed for adoption by one or both parents
for 12 months by either relinquishment or termination of parental
rights or an adoption petition has not been granted.
(i) The child has been subjected to an act or acts of cruelty by
the parent or guardian or a member of his or her household, or the
parent or guardian has failed to adequately protect the child from an
act or acts of cruelty when the parent or guardian knew or
reasonably should have known that the child was in danger of being
subjected to an act or acts of cruelty.
(j) The child's sibling has been abused or neglected, as defined
in subdivision (a), (b), (d), (e), or (i), and there is a substantial
risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding
the abuse or neglect of the sibling, the age and gender of each
child, the nature of the abuse or neglect of the sibling, the mental
condition of the parent or guardian, and any other factors the court
considers probative in determining whether there is a substantial
risk to the child.
It is the intent of the Legislature that nothing in this section
disrupt the family unnecessarily or intrude inappropriately into
family life, prohibit the use of reasonable methods of parental
discipline, or prescribe a particular method of parenting. Further,
nothing in this section is intended to limit the offering of
voluntary services to those families in need of assistance but who do
not come within the descriptions of this section. To the extent that
savings accrue to the state from child welfare services funding
obtained as a result of the enactment of the act that enacted this
section, those savings shall be used to promote services which
support family maintenance and family reunification plans, such as
client transportation, out-of-home respite care, parenting training,
and the provision of temporary or emergency in-home caretakers and
persons teaching and demonstrating homemaking skills. The Legislature
further declares that a physical disability, such as blindness or
deafness, is no bar to the raising of happy and well-adjusted
children and that a court's determination pursuant to this section
shall center upon whether a parent's disability prevents him or her
from exercising care and control.
As used in this section, "guardian" means the legal guardian of
the child.
SEC. 4. Section 300 of the Welfare and Institutions Code, as added
by Section 3.5 of Chapter 824 of the Statutes of 2000, is repealed.
SEC. 5. Section 361.5 of the Welfare and Institutions Code, as
amended by Section 7 of Chapter 918 of the Statutes of 2002, 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, 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. Child welfare services, when provided, shall be provided as
follows:
(1) 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 not exceed a period of 12
months from the date the child entered foster care, except as
otherwise provided in paragraph (3).
(2) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under the age
of three years, court-ordered services shall not exceed a period of
six months from the date the child entered foster care.
(3) 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 the age of three years on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services to some or all of the sibling group may be
limited to a period of six months from the date the child entered
foster care. 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.
Regardless of the age of the child, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.
Notwithstanding paragraphs (1), (2), and (3), 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. 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.
When 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.
Physical custody of the child by the parents or guardians during the
applicable time period under paragraph (1), (2), or (3) shall not
serve to interrupt the running of the 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.
In cases where the child was under the age of three years 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
paragraph (3), 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 paragraph (3).
Except 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) 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.
A 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.
A 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) 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.
The 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.
(c) 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).
The court shall not order reunification for a parent or guardian
described in paragraph (3), (4), (6), (7), (8), (9), (10), (11),
(12), (13), (14), or (15) of subdivision (b) unless the court finds,
by clear and convincing evidence, that reunification is in the best
interest of the child.
In 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.
The 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 or
institutionalized, 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 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, and any other
appropriate factors. 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) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
An incarcerated parent may be required to attend counseling,
parenting classes, or vocational training programs as part of the
service plan if these programs are available.
(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.
(3) Notwithstanding any other provision of law, if the
incarcerated parent is a woman seeking to participate in the
community treatment program operated by the Department of Corrections
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), or (15) 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 is the most appropriate plan for the child. 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) Whenever a court orders that a hearing shall be held pursuant
to Section 366.26, it shall direct the agency supervising the child
and the licensed county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency, to prepare an
assessment that shall include:
(1) Current search efforts for an absent parent or parents.
(2) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purpose of this paragraph shall include,
but not be limited to, the child's siblings, grandparents, aunts, and
uncles.
(3) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(4) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, particularly
the caretaker, to include a social history including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the child's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship. If a proposed guardian is a relative of the minor, and
the relative was assessed for foster care placement of the minor
prior to January 1, 1998, the assessment shall also consider, but
need not be limited to, all of the factors specified in subdivision
(a) of Section 361.3. As used in this paragraph, "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.
(5) The relationship of the child to any identified prospective
adoptive parent or guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, unless the child's age or physical, emotional, or
other condition precludes his or her meaningful response, and if so,
a description of the condition.
(6) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(h) 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.
(i) 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.
SEC. 6. Section 361.5 of the Welfare and Institutions Code, as
amended by Section 8 of Chapter 918 of the Statutes of 2002, is
repealed.
SEC. 7. Section 14005.24 of the Welfare and Institutions Code is
amended to read:
14005.24. The department shall instruct counties, by means of an
all county letter or similar instruction, as to the process that is
to be used to ensure that each child, physical custody of whom has
been voluntarily surrendered pursuant to Section 1255.7 of the Health
and Safety Code, shall be determined eligible for benefits under
this chapter for, at a minimum, a period of time commencing on the
date physical custody is surrendered and ending on the earliest of
the following dates:
(a) The last day of the month following the month in which the
child was voluntarily surrendered under Section 1255.7 of the Health
and Safety Code.
(b) The date the child is reclaimed under Section 1255.7 of the
Health and Safety Code.
(c) The date the child ceases to reside in California.
SEC. 8. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.