BILL NUMBER: AB 938 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 27, 2009
INTRODUCED BY Committee on Judiciary (Feuer (Chair), Brownley,
Evans, Jones, Krekorian, Lieu, and Monning)
FEBRUARY 26, 2009
An act to amend Sections 309, 315, 317, 319, and 366.21
317.5, 319, 358, 358.1, and 361.3 of the Welfare
and Institutions Code, relating to dependent children.
LEGISLATIVE COUNSEL'S DIGEST
AB 938, as amended, Committee on Judiciary. Dependent children:
relative caregivers and foster parents.
(1) Existing law authorizes a social worker to take a child who is
at risk of abuse or neglect into temporary custody under specified
circumstances. Existing law requires the social worker to investigate
the circumstances of the child and the facts surrounding the taking
of the child into custody. Existing law requires that the social
worker immediately release the child to the custody of the child's
parent or guardian, or other responsible relative, except under
certain conditions. If the child is not released to the custody of
his or her parent or guardian, the child is deemed to be detained,
and a detention hearing must be conducted before the expiration of
the next judicial day after a petition to declare the minor a
dependent child of the juvenile court has been filed.
Existing law provides for an initial petition hearing to
determine, among other things, whether a child shall remain in
detention, and, with respect to a child who is adjudged a dependent
child of the juvenile court and placed in foster care, for periodic
status review hearings to review, among other things, the continuing
necessity for and appropriateness of the placement. Prior to a status
review hearing regarding a child who is in the physical custody of a
foster parent, a relative caregiver, or a certified foster parent
who has been approved for adoption by the State Department of Social
Services or by a licensed county adoption agency, as specified, the
foster parent, relative caregiver, or certified foster parent may
file with the court a report containing his or her recommendation for
disposition.
This bill would require a social worker, when a child is
detained removed from the home , to immediately
conduct begin conducting an
investigation, as specified, in order to identify and locate all
grandparents , adult siblings, and other adult relatives
of the child, in order to provide, except in cases of
when that relative's history of family or
domestic violence makes notification inappropriate , those
persons with specified information, including that the child has been
removed from the home custody of his or her
parents or guardians and an explanation of various options to
participate in the care and placement of the child, as specified, and
to report to the court at the initial petition hearing regarding
that effort. The bill would require each social study or evalu
ation to include a factual discussion of these efforts, as
specified. The bill would require the court to inquire
, at the detention hearing, and at the initial
petition hearing , regarding those efforts.
The bill would also require the Judicial Council to develop prior
to January 1, 2011, a relative information form, as specified. The
form would provide information regarding the needs of the child, and
would include a provision whereby the relative may request the
permission of the court to address the court. The bill would require
a social worker to provide that form at the initial petition
hearing , on and after January 1, 2011, to the adult
relatives identified pursuant to the provision described above.
The bill would require , at the initial petition hearing
and at the status review hearing, the court to consider
the information provided on a relative information form, to receive
the form into evidence, and to determine whether, in
the court's discretion, to grant the request of a relative, or of a
foster parent on the report described above, to address the court
explain to a parent the importance of obtaining that
information to the child's well-being . By imposing new duties
on social workers, the bill would impose a state-mandated local
program.
(2) Existing law authorizes the juvenile court to appoint counsel
to represent a parent or guardian in dependency proceedings if that
parent or guardian cannot afford counsel.
The bill would also express the intent of the Legislature that all
parties to a juvenile court hearing
hearings have a meaningful opportunity to
participate in the hearings and, at a minimum, have the opportunity
to review reports and meet confer with
their attorneys before the detention hearing
all dependency hearings .
The bill would specifically authorize attorneys representing
children in dependency proceedings to utilize investigators or social
workers to meet with or visit child clients in order to assess the
child's well-being. The bill would require the court to inquire at
each dependency hearing as to whether the parties were able to review
reports and confer with their attorneys before the hearing, and to
continue the hearing under specified circumstances to allow a party
to review a report and confer with his or her attorney.
(3) 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 309 of the Welfare and Institutions Code is
amended to read:
309. (a) Upon delivery to the social worker of a child who has
been taken into temporary custody under this article, the social
worker shall immediately investigate the circumstances of the child
and the facts surrounding the child's being taken into custody and
attempt to maintain the child with the child's family through the
provision of services. The social worker shall immediately release
the child to the custody of the child's parent, guardian, or
responsible relative unless one or more of the following conditions
exist:
(1) The child has no parent, guardian, or responsible relative; or
the child's parent, guardian, or responsible relative is not willing
to provide care for the child.
(2) Continued detention of the child is a matter of immediate and
urgent necessity for the protection of the child and there are no
reasonable means by which the child can be protected in his or her
home or the home of a responsible relative.
(3) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(4) The child has left a placement in which he or she was placed
by the juvenile court.
(5) The parent or other person having lawful custody of the child
voluntarily surrendered physical custody of the child pursuant to
Section 1255.7 of the Health and Safety Code and did not reclaim the
child within the 14-day period specified in subdivision (e) of that
section.
(b) In any case in which there is reasonable cause for believing
that a child who is under the care of a physician or surgeon or a
hospital, clinic, or other medical facility and cannot be immediately
moved and is a person described in Section 300, the child shall be
deemed to have been taken into temporary custody and delivered to the
social worker for the purposes of this chapter while the child is at
the office of the physician or surgeon or the medical facility.
(c) If the child is not released to his or her parent or guardian,
the child shall be deemed detained for purposes of this chapter.
(d) (1) If the child is detained, the social worker shall
immediately conduct an investigation in order to identify and locate
all grandparents and other adult relatives of the child. The social
worker shall notify all adult relatives who have been located, except
in cases of domestic violence, of the following information:
(A) The child has been removed from the custody of his or her
parent or parents, or his or her guardian.
(B) An explanation of the various options to participate in the
care and placement of the child, including, the Kin-GAP Program
(Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3
of Division 9) the requirements to become a foster family home, and
other options for contact with the child.
(2) On and after January 1, 2011, the social worker shall also
provide the adult relatives notified pursuant to paragraph (1) with a
relative information form to provide information to the social
worker and the court regarding the needs of the child. The form shall
include a provision whereby the relative may request the permission
of the court to address the court. The Judicial Council shall develop
the form before January 1, 2011.
(3) The social worker shall use due diligence in investigating the
name and location of the relatives pursuant to paragraph (1),
including, but not limited to, obtaining information regarding the
location of the child's adult relatives from the California Parent
Locator Service.
(e)
(d) (1) If an able and willing relative, as defined in
Section 319, or an able and willing nonrelative extended family
member, as defined in Section 362.7, is available and requests
temporary placement of the child pending the detention hearing, the
county welfare department shall initiate an assessment of the
relative's or nonrelative extended family member's suitability, which
shall include an in-home inspection to assess the safety of the home
and the ability of the relative or nonrelative extended family
member to care for the child's needs, and a consideration of the
results of a criminal records check conducted pursuant to subdivision
(a) of Section 16504.5 and a check of allegations of prior child
abuse or neglect concerning the relative or nonrelative extended
family member and other adults in the home. Upon completion of this
assessment, the child may be placed in the assessed home. For
purposes of this paragraph, and except for the criminal records check
conducted pursuant to subdivision (a) of Section 16504.5, the
standards used to determine suitability shall be the same standards
set forth in the regulations for the licensing of foster family
homes.
(2) Immediately following the placement of a child in the home of
a relative or a nonrelative extended family member, the county
welfare department shall evaluate and approve or deny the home for
purposes of AFDC-FC eligibility pursuant to Section 11402. The
standards used to evaluate and grant or deny approval of the home of
the relative and of the home of a nonrelative extended family member,
as described in Section 362.7, shall be the same standards set forth
in regulations for the licensing of foster family homes which
prescribe standards of safety and sanitation for the physical plant
and standards for basic personal care, supervision, and services
provided by the caregiver.
(3) To the extent allowed by federal law, as a condition of
receiving funding under Title IV-E of the federal Social Security Act
(42 U.S.C. Sec. 670 et seq.), if a relative or nonrelative extended
family member meets all other conditions for approval, except for the
receipt of the Federal Bureau of Investigation's criminal history
information for the relative or nonrelative extended family member,
and other adults in the home, as indicated, the county welfare
department may approve the home and document that approval, if the
relative or nonrelative extended family member, and each adult in the
home, has signed and submitted a statement that he or she has never
been convicted of a crime in the United States, other than a traffic
infraction as defined in paragraph (1) of subdivision (a) of Section
42001 of the Vehicle Code. If, after the approval has been granted,
the department determines that the relative or nonrelative extended
family member or other adult in the home has a criminal record, the
approval may be terminated.
(4) If the criminal records check indicates that the person has
been convicted of a crime for which the Director of Social Services
cannot grant an exemption under Section 1522 of the Health and Safety
Code, the child shall not be placed in the home. If the criminal
records check indicates that the person has been convicted of a crime
for which the Director of Social Services may grant an exemption
under Section 1522 of the Health and Safety Code, the child shall not
be placed in the home unless a criminal records exemption has been
granted by the county based on substantial and convincing evidence to
support a reasonable belief that the person with the criminal
conviction is of such good character as to justify the placement and
not present a risk of harm to the child.
(e) (1) If the child is removed, the social worker shall
immediately begin conducting an investigation in order to identify
and locate all grandparents, adult siblings and other adult relatives
of the child, as defined in paragraph (2) of subdivision (f) of
Section 319. For all adult relatives who are located, except when
that relative's history of family or domestic violence makes that
notification inappropriate, the social worker shall immediately
provide written notification and shall also provide oral notification
in person or by phone, whenever appropriate, of the following
information:
(A) The child has been removed from the custody of his or her
parent or parents, or his or her guardians.
(B) An explanation of the various options to participate in the
care and placement of the child and support for the child's family,
including, any options that may be lost by failing to respond. The
notice shall provide information about providing care for the child
while the family receives reunification services with the goal of
returning the child to the parent or guardian, how to become a foster
family home or approved nonrelative extended family member as
defined in Section 362.7, and additional services and support that
are available in out-of-home placements, including child care, and
shall include information regarding the Kin-GAP Program (Article 4.5
(commencing with Section 11360) of Chapter 2 of Part 3 of Division
9), the CalWORKs program for approved relative caregivers (Chapter 2
(commencing with Section 11200) of Part 3 of Division 9), adoption,
and adoption assistance (Chapter 2.1 (commencing with Section 16115)
of Part 4 of Division 9), as well as other options for contact with
the child, including, but not limited to, visitation. The State
Department of Social Services, in consultation with the County
Welfare Directors Association and other interested stakeholders,
shall develop the notice before January 1, 2011.
(2) On and after January 1, 2011, the social worker shall also
provide the adult relatives notified pursuant to paragraph (1) with a
relative information form to provide information to the social
worker and the court regarding the needs of the child. The form shall
include a provision whereby the relative may request the permission
of the court to address the court, if the relative so chooses. The
Judicial Council, in consultation with the State Department of Social
Services and the County Welfare Directors Association, shall develop
the form before January 1, 2011.
(3) The social worker shall use due diligence in investigating the
name and location of the relatives pursuant to paragraph (1),
including, but not limited to, asking the child in an age-appropriate
manner about relatives important to the child, consistent with the
child's best interest, and obtaining information regarding the
location of the child's adult relatives from the California Parent
Locator Service, in accordance with federal requirements. Each county
welfare department shall create and make public a procedure by which
relatives of a child who has been removed from his or her parents or
guardians may identify themselves to the department and be provided
with the notices required by paragraphs (1) and (2).
SEC. 2. Section 317.5 of the Welfare
and Institutions Code is amended to read:
317.5. (a) All parties who are represented by counsel at
dependency proceedings shall be entitled to competent counsel.
In order to ensure competent representation, it is the intent of the
Legislature that all parties to juvenile court hearings have a
meaningful opportunity to participate in these hearings, including
the opportunity to review reports and confer with their attorneys
before all dependency hearings. It is expected that the attorney will
counsel the client concerning the subject matter of the litigation,
the client's rights, the court system, the proceedings, the attorney'
s role, and what to expect in the legal process, and that the
attorney investigate the factual and legal issues in the case and
identify the services needed by the client. It is the
intent of the Legislature that the attorney review all reports to the
court and any other relevant information with the client including
child clients who are four years of age and older, and ensure that
the attorney has explained the substance of those reports to the
client.
(b) It is the intent of the Legislature that the attorney for a
party in a dependency case must have sufficient contact with that
party to establish and maintain an adequate and professional
attorney-client relationship. Attorneys in dependency cases are
expected to meet regularly with clients, including clients who are
children, regardless of the age of the child or the child's ability
to communicate verbally, to contact social workers and other
professionals associated with the client's case, and to work
professionally with other counsel and the court to resolve disputed
aspects of a case.
(c) Notwithstanding subdivision (b), attorneys representing
children in dependency proceedings may utilize investigators or
social workers to meet with or visit child clients in order to assess
the child's well-being. The attorney's communication with the child,
including counseling the child concerning the subject matter of the
litigation, the client's rights, the court system, the attorney's
role, and what to expect in the legal process, shall be conducted in
a manner consistent with the child's age and developmental level.
(b)
(d) Each minor who is the subject of a dependency
proceeding is a party to that proceeding.
(e) At each dependency hearing, the court shall inquire as to
whether the parties were able to review reports and confer with their
attorneys before the hearing. If a party did not receive proper
notice, did not receive the report, or was not able to confer with
his or her attorney prior to the hearing, and the party requests a
continuance in order to review the report and confer with his or her
attorney, the court shall continue the hearing to allow the party to
review reports and confer with his or her attorney, unless the court
finds that it is not in the best interest of the minor, or would
prejudice the rights of a party, to continue the hearing. The court
shall continue the hearing only for that period of time necessary to
provide the opportunity to review reports and confer with the
attorney, which may even be later the same day. The court may issue
any and all orders reasonably necessary to ensure compliance with
this subdivision.
SEC. 3. Section 319 of the Welfare and
Institutions Code is amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody, the
need, if any, for continued detention, the available services and the
referral methods to those services that could facilitate the return
of the child to the custody of the child's parents or guardians, and
whether there are any relatives who are able and willing to take
temporary physical custody of the child. The court shall order the
release of the child from custody unless a prima facie showing has
been made that the child comes within Section 300, the court finds
that continuance in the parent's or guardian's home is contrary to
the child's welfare, and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(d) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section 17000) of Part 5, and Chapter 10 (commencing
with Section 18900) of Part 6 of Division 9 would have eliminated
the need to take temporary custody of the child or would prevent the
need for further detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (d) of Section 309.
(e) If a court orders a child detained, the court shall state the
facts on which the decision is based, specify why the initial removal
was necessary, reference the social worker's report or other
evidence relied upon to make its determination whether continuance in
the home of the parent or legal guardian is contrary to the child's
welfare, order temporary placement and care of the child to be vested
with the county child welfare department pending the hearing held
pursuant to Section 355 or further order of the court, and order
services to be provided as soon as possible to reunify the child and
his or her family if appropriate.
(f) (1) If the child is not released from custody, the court may
order that the child shall be placed in the assessed home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court, or
in the assessed home of a nonrelative extended family member as
defined in Section 362.7 for a period not to exceed 15 judicial days.
(2) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of these persons,
even if the marriage was terminated by death or dissolution. However,
only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (d) of Section 309 of the relative's home, including the
results of a criminal records check and prior child abuse
allegations, if any, prior to ordering that the child be placed with
a relative. The court shall explain to the parent the importance
of obtaining relative information to the child's well-being and
shall order the parent to disclose to the social worker the
names, residences, and any known identifying information of any
maternal or paternal relatives of the child. The social worker shall
initiate the assessment pursuant to Section 361.3 of any relative to
be considered for continuing placement.
(g) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 5.520 of the California Rules
of Court or anytime thereafter up until the time that the minor is
adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational decisions for the child
and temporarily appoint a responsible adult to make educational
decisions for the child if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
decisionmaking.
(C) The child's educational needs cannot be met without the
temporary appointment of a responsible adult.
(2) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050 of
the Education Code, is not warranted, the court may, with the input
of any interested person, make educational decisions for the child.
If the court makes educational decisions for the child, the court
shall also issue appropriate orders to ensure that every effort is
made to identify a responsible adult to make future educational
decisions for the child.
(3) Any temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make
educational decisions for the child shall be specifically addressed
in the court order. Any order made under this section shall expire at
the conclusion of the hearing held pursuant to Section 361 or upon
dismissal of the petition. Upon the entering of disposition orders,
any additional needed limitation on the parent's or guardian's
educational rights shall be addressed pursuant to Section 361.
(h) At the hearing held pursuant to this section, the court shall
inquire regarding the efforts made by the social worker to comply
with the requirements of subdivision (e) of Section 309, and the
results of those efforts. The social worker shall also provide to the
court and to the parties any relative information form, as provided
for pursuant to Section 309, that has been completed and received.
The court shall consider that information and, if applicable, shall
decide whether to grant the request of a relative to address the
court.
SEC. 4. Section 358 of the Welfare and
Institutions Code is amended to read:
358. (a) After finding that a child is a person described in
Section 300, the court shall hear evidence on the question of the
proper disposition to be made of the child. Prior to making a finding
required by this section, the court may continue the hearing on its
own motion, the motion of the parent or guardian, or the motion of
the child, as follows:
(1) If the child is detained during the continuance, and the
social worker is not alleging that subdivision (b) of Section 361.5
is applicable, the continuance shall not exceed 10 judicial days. The
court may make an order for detention of the child or for the child'
s release from detention, during the period of continuance, as is
appropriate.
(2) If the child is not detained during the continuance, the
continuance shall not exceed 30 days after the date of the finding
pursuant to Section 356. However, the court may, for cause, continue
the hearing for an additional 15 days.
(3) If the social worker is alleging that subdivision (b) of
Section 361.5 is applicable, the court shall continue the proceedings
for a period not to exceed 30 days. The social worker shall notify
each parent of the content of subdivision (b) of Section 361.5 and
shall inform each parent that if the court does not order
reunification a permanency planning hearing will be held, and that
his or her parental rights may be terminated within the timeframes
specified by law.
(b) Before determining the appropriate disposition, the court
shall receive in evidence the social study of the child made by the
social worker, any study or evaluation made by a child advocate
appointed by the court, and other relevant and material evidence as
may be offered, including, but not limited to, the willingness of the
caregiver to provide legal permanency for the child if reunification
is unsuccessful , and any relative information form, as
provided for pursuant to Section 309. The court shall consider the
information in any relative information form and, if applicable,
shall decide whether to grant the request of a relative to address
the court . In any judgment and order of disposition, the court
shall specifically state that the social study made by the social
worker and the study or evaluation made by the child advocate
appointed by the court, if there be any, has been read and considered
by the court in arriving at its judgment and order of disposition.
Any social study or report submitted to the court by the social
worker shall include the individual child's case plan developed
pursuant to Section 16501.1.
(c) If the court finds that a child is described by subdivision
(h) of Section 300 or that subdivision (b) of Section 361.5 may be
applicable, the court shall conduct the dispositional proceeding
pursuant to subdivision (c) of Section 361.5.
SEC. 5. Section 358.1 of the Welfare
and Institutions Code is amended to read:
358.1. Each social study or evaluation made by a social worker or
child advocate appointed by the court, required to be received in
evidence pursuant to Section 358, shall include, but not be limited
to, a factual discussion of each of the following subjects:
(a) Whether the county welfare department or social worker has
considered child protective services, as defined in Chapter 5
(commencing with Section 16500) of Part 4 of Division 9, as a
possible solution to the problems at hand, and has offered these
services to qualified parents if appropriate under the circumstances.
(b) What plan, if any, for return of the child to his or her
parents and for achieving legal permanence for the child if efforts
to reunify fail, is recommended to the court by the county welfare
department or probation officer.
(c) Whether the best interests of the child will be served by
granting reasonable visitation rights with the child to his or her
grandparents, in order to maintain and strengthen the child's family
relationships.
(d) (1) Whether the child has siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(C) If the siblings are not placed together in the same home, why
the siblings are not placed together and what efforts are being made
to place the siblings together, or why those efforts are not
appropriate.
(D) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
(2) The factual discussion shall include a discussion of
indicators of the nature of the child's sibling relationships,
including, but not limited to, whether the siblings were raised
together in the same home, whether the siblings have shared
significant common experiences or have existing close and strong
bonds, whether either sibling expresses a desire to visit or live
with his or her sibling, as applicable, and whether ongoing contact
is in the child's best emotional interest.
(e) The activities undertaken by the social worker to comply with
the requirements of subdivision (e) of Section 309, and the results
of those activities. The social worker shall also provide to the
court and the parties any relative information form, as provided for
pursuant to Section 309, that has been completed and received.
(e)
(f) If the parent or guardian is unwilling or unable to
participate in making an educational decision for his or her child,
or if other circumstances exist that compromise the ability of the
parent or guardian to make educational decisions for the child, the
county welfare department or social worker shall consider whether the
right of the parent or guardian to make educational decisions for
the child should be limited. If the study or evaluation makes that
recommendation, it shall identify whether there is a responsible
adult available to make educational decisions for the child pursuant
to Section 361.
(f)
(g) Whether the child appears to be a person who is
eligible to be considered for further court action to free the child
from parental custody and control.
(g)
(h) Whether the parent has been advised of his or her
option to participate in adoption planning, including the option to
enter into a postadoption contact agreement as described in Section
8714.7 of the Family Code, and to voluntarily relinquish the child
for adoption if an adoption agency is willing to accept the
relinquishment.
(h)
(i) The appropriateness of any relative placement
pursuant to Section 361.3. However, this consideration may not be
cause for continuance of the dispositional hearing.
(i)
(j) Whether the caregiver desires, and is willing, to
provide legal permanency for the child if reunification is
unsuccessful.
SEC. 6. Section 361.3 of the Welfare
and Institutions Code is amended to read:
361.3. (a) In any case in which a child is removed from the
physical custody of his or her parents pursuant to Section 361,
preferential consideration shall be given to a request by a relative
of the child for placement of the child with the relative. In
determining whether placement with a relative is appropriate, the
county social worker and court shall consider, but shall not be
limited to, consideration of all the following factors:
(1) The best interest of the child, including special physical,
psychological, educational, medical, or emotional needs.
(2) The wishes of the parent, the relative, and child, if
appropriate.
(3) The provisions of Part 6 (commencing with Section 7950) of
Division 12 of the Family Code regarding relative placement.
(4) Placement of siblings and half siblings in the same home, if
that placement is found to be in the best interest of each of the
children as provided in Section 16002.
(5) The good moral character of the relative and any other adult
living in the home, including whether any individual residing in the
home has a prior history of violent criminal acts or has been
responsible for acts of child abuse or neglect.
(6) The nature and duration of the relationship between the child
and the relative, and the relative's desire to care for, and to
provide legal permanency for, the child if reunification is
unsuccessful.
(7) The ability of the relative to do the following:
(A) Provide a safe, secure, and stable environment for the child.
(B) Exercise proper and effective care and control of the child.
(C) Provide a home and the necessities of life for the child.
(D) Protect the child from his or her parents.
(E) Facilitate court-ordered reunification efforts with the
parents.
(F) Facilitate visitation with the child's other relatives.
(G) Facilitate implementation of all elements of the case plan.
(H) Provide legal permanence for the child if reunification fails.
However, any finding made with respect to the factor considered
pursuant to this subparagraph and pursuant to subparagraph (G) shall
not be the sole basis for precluding preferential placement with a
relative.
(I) Arrange for appropriate and safe child care, as necessary.
(8) The safety of the relative's home. For a relative to be
considered appropriate to receive placement of a child under this
section, the relative's home shall first be approved pursuant to the
process and standards described in subdivision (d) of Section 309.
In this regard, the Legislature declares that a physical
disability, such as blindness or deafness, is no bar to the raising
of children, and a county social worker's determination as to the
ability of a disabled relative to exercise care and control should
center upon whether the relative's disability prevents him or her
from exercising care and control. The court shall explain to the
parent the importance of obtaining relative information to the child'
s well-being and shall order the parent to disclose to the
county social worker the names, residences, and any other known
identifying information of any maternal or paternal relatives of the
child. This inquiry shall not be construed, however, to guarantee
that the child will be placed with any person so identified. The
county social worker shall initially contact the relatives given
preferential consideration for placement to determine if they desire
the child to be placed with them. Those desiring placement shall be
assessed according to the factors enumerated in this subdivision. The
county social worker shall document these efforts in the social
study prepared pursuant to Section 358.1. The court shall authorize
the county social worker, while assessing these relatives for the
possibility of placement, to disclose to the relative, as
appropriate, the fact that the child is in custody, the alleged
reasons for the custody, and the projected likely date for the child'
s return home or placement for adoption or legal guardianship.
However, this investigation shall not be construed as good cause for
continuance of the dispositional hearing conducted pursuant to
Section 358.
(b) In any case in which more than one appropriate relative
requests preferential consideration pursuant to this section, each
relative shall be considered under the factors enumerated in
subdivision (a).
(c) For purposes of this section:
(1) "Preferential consideration" means that the relative seeking
placement shall be the first placement to be considered and
investigated.
(2) "Relative" means an adult who is related to the child by
blood, adoption, or affinity within the fifth degree of kinship,
including stepparents, stepsiblings, and all relatives whose status
is preceded by the words "great," "great-great" or "grand" or the
spouse of any of these persons even if the marriage was terminated by
death or dissolution. However, only the following relatives shall be
given preferential consideration for the placement of the child: an
adult who is a grandparent, aunt, uncle, or sibling.
(d) Subsequent to the hearing conducted pursuant to Section 358,
whenever a new placement of the child must be made, consideration for
placement shall again be given as described in this section to
relatives who have not been found to be unsuitable and who will
fulfill the child's reunification or permanent plan requirements. In
addition to the factors described in subdivision (a), the county
social worker shall consider whether the relative has established and
maintained a relationship with the child.
(e) If the court does not place the child with a relative who has
been considered for placement pursuant to this section, the court
shall state for the record the reasons placement with that relative
was denied.
(f) (1) With respect to a child who satisfies the criteria set
forth in paragraph (2), the department and any licensed adoption
agency may search for a relative and furnish identifying information
relating to the child to that relative if it is believed the child's
welfare will be promoted thereby.
(2) Paragraph (1) shall apply if both of the following conditions
are satisfied:
(A) The child was previously a dependent of the court.
(B) The child was previously adopted and the adoption has been
disrupted, set aside pursuant to Section 9100 or 9102 of the Family
Code, or the child has been released into the custody of the
department or a licensed adoption agency by the adoptive parent or
parents.
(3) As used in this subdivision, "relative" includes a member of
the child's birth family and nonrelated extended family members,
regardless of whether the parental rights were terminated, provided
that both of the following are true:
(A) No appropriate potential caretaker is known to exist from the
child's adoptive family, including nonrelated extended family members
of the adoptive family.
(B) The child was not the subject of a voluntary relinquishment by
the birth parents pursuant to Section 8700 of the Family Code or
Section 1255.7 of the Health and Safety Code.
SEC. 7. 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.
SEC. 2. Section 315 of the Welfare and
Institutions Code is amended to read:
315. (a) If a minor has been taken into custody under this
article and not released to a parent or guardian, the juvenile court
shall hold a hearing (which shall be referred to as a "detention
hearing") to determine whether the minor shall be further detained.
This hearing shall be held as soon as possible, but in any event
before the expiration of the next judicial day after a petition to
declare the minor a dependent child has been filed. If the hearing is
not held within the period prescribed by this section, the minor
shall be released from custody.
(b) At the hearing, the court shall inquire regarding the efforts
made by the social worker to comply with the requirements of
subdivision (d) of Section 309, and the results of those efforts.
SEC. 3. Section 317 of the Welfare and
Institutions Code is amended to read:
317. (a) It is the intent of the Legislature that all parties to
juvenile court hearings, including children, parents, and social
workers, have a meaningful opportunity to participate in these
hearings. At a minimum, it is the intent of the Legislature that all
parties have the opportunity to review reports and meet with their
attorneys before the detention hearing, held pursuant to Section 315,
and in advance of all subsequent hearings.
(b) (1) When it appears to the court that a parent or guardian of
the child desires counsel but is presently financially unable to
afford and cannot for that reason employ counsel, the court may
appoint counsel as provided in this section.
(2) When it appears to the court that a parent or Indian custodian
in an Indian child custody proceeding desires counsel but is
presently unable to afford and cannot for that reason employ counsel,
the provisions of subsection (b) of Section 1912 of the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Section 23.13 of Title
25 of the Code of Federal Regulations are applicable.
(c) When it appears to the court that a parent or guardian of the
child is presently financially unable to afford and cannot for that
reason employ counsel, and the child has been placed in out-of-home
care, or the petitioning agency is recommending that the child be
placed in out-of-home care, the court shall appoint counsel for the
parent or guardian, unless the court finds that the parent or
guardian has made a knowing and intelligent waiver of counsel as
provided in this section.
(d) If a child is not represented by counsel, the court shall
appoint counsel for the child unless the court finds that the child
would not benefit from the appointment of counsel. The court shall
state on the record its reasons for that finding. A primary
responsibility of any counsel appointed to represent a child pursuant
to this section shall be to advocate for the protection, safety, and
physical and emotional well-being of the child. Counsel for the
child may be a district attorney, public defender, or other member of
the bar, provided that the counsel does not represent another party
or county agency whose interests conflict with the child's interests.
The fact that the district attorney represents the child in a
proceeding pursuant to Section 300 as well as conducts a criminal
investigation or files a criminal complaint or information arising
from the same or reasonably related set of facts as the proceeding
pursuant to Section 300 is not in and of itself a conflict of
interest. The court may fix the compensation for the services of
appointed counsel. The appointed counsel shall have a caseload and
training that ensures adequate representation of the child. The
Judicial Council shall promulgate rules of court that establish
caseload standards, training requirements, and guidelines for
appointed counsel for children and shall adopt rules as required by
Section 326.5 no later than July 1, 2001.
(e) The counsel appointed by the court shall represent the parent,
guardian, or child at the detention hearing and at all subsequent
proceedings before the juvenile court. Counsel shall continue to
represent the parent, guardian, or child unless relieved by the court
upon the substitution of other counsel or for cause. The
representation shall include representing the parent, guardian, or
the child in termination proceedings and in those proceedings
relating to the institution or setting aside of a legal guardianship.
(f) The counsel for the child shall be charged in general with the
representation of the child's interests. To that end, the counsel
shall make or cause to have made any further investigations that he
or she deems in good faith to be reasonably necessary to ascertain
the facts, including the interviewing of witnesses, and he or she
shall examine and cross-examine witnesses in both the adjudicatory
and dispositional hearings. He or she may also introduce and examine
his or her own witnesses, make recommendations to the court
concerning the child's welfare, and participate further in the
proceedings to the degree necessary to adequately represent the
child. In any case in which the child is four years of age or older,
counsel shall interview the child to determine the child's wishes and
to assess the child's well-being, and shall advise the court of the
child's wishes. Counsel for the child shall not advocate for the
return of the child if, to the best of his or her knowledge, that
return conflicts with the protection and safety of the child. In
addition counsel shall investigate the interests of the child beyond
the scope of the juvenile proceeding and report to the court other
interests of the child that may need to be protected by the
institution of other administrative or judicial proceedings. The
attorney representing a child in a dependency proceeding is not
required to assume the responsibilities of a social worker and is not
expected to provide nonlegal services to the child. The court shall
take whatever appropriate action is necessary to fully protect the
interests of the child.
(g) Either the child or the counsel for the child, with the
informed consent of the child if the child is found by the court to
be of sufficient age and maturity to so consent, which shall be
presumed, subject to rebuttal by clear and convincing evidence, if
the child is over 12 years of age, may invoke the
psychotherapist-client privilege, physician-patient privilege, and
clergyman-penitent privilege; and if the child invokes the privilege,
counsel may not waive it, but if counsel invokes the privilege, the
child may waive it. Counsel shall be holder of these privileges if
the child is found by the court not to be of sufficient age and
maturity to so consent. For the sole purpose of fulfilling his or her
obligation to provide legal representation of the child, counsel for
a child shall have access to all records with regard to the child
maintained by a health care facility, as defined in Section 1545 of
the Penal Code, health care providers, as defined in Section 6146 of
the Business and Professions Code, a physician and surgeon or other
health practitioner, as defined in former Section 11165.8 of the
Penal Code, as that section read on January 1, 2000, or a child care
custodian, as defined in former Section 11165.7 of the Penal Code, as
that section read on January 1, 2000. Notwithstanding any other law,
counsel shall be given access to all records relevant to the case
which are maintained by state or local public agencies. All
information requested from a child protective agency regarding a
child who is in protective custody, or from a child's guardian ad
litem, shall be provided to the child's counsel within 30 days of the
request.
(h) In a county of the third class, if counsel is to be provided
to a child at county expense other than by counsel for the agency,
the court shall first utilize the services of the public defender
prior to appointing private counsel, to provide legal counsel.
Nothing in this subdivision shall be construed to require the
appointment of the public defender in any case in which the public
defender has a conflict of interest. In the interest of justice, a
court may depart from that portion of the procedure requiring
appointment of the public defender after making a finding of good
cause and stating the reasons therefor on the record.
(i) In a county of the third class, if counsel is to be appointed
for a parent or guardian at county expense, the court shall first
utilize the services of the alternate public defender, prior to
appointing private counsel, to provide legal counsel. Nothing in this
subdivision shall be construed to require the appointment of the
alternate public defender in any case in which the public defender
has a conflict of interest. In the interest of justice, a court may
depart from that portion of the procedure requiring appointment of
the alternate public defender after making a finding of good cause
and stating the reasons therefor on the record.
SEC. 4. Section 319 of the Welfare and
Institutions Code is amended to read:
319. (a) At the initial petition hearing, the court shall examine
the child's parents, guardians, or other persons having relevant
knowledge and hear the relevant evidence as the child, the child's
parents or guardians, the petitioner, or their counsel desires to
present. The court may examine the child, as provided in Section 350.
(b) The social worker shall report to the court on the reasons why
the child has been removed from the parent's physical custody, the
need, if any, for continued detention, the available services and the
referral methods to those services that could facilitate the return
of the child to the custody of the child's parents or guardians, and
whether there are any relatives who are able and willing to take
temporary physical custody of the child. The court shall order the
release of the child from custody unless a prima facie showing has
been made that the child comes within Section 300, the court finds
that continuance in the parent's or guardian's home is contrary to
the child's welfare, and any of the following circumstances exist:
(1) There is a substantial danger to the physical health of the
child or the child is suffering severe emotional damage, and there
are no reasonable means by which the child's physical or emotional
health may be protected without removing the child from the parent's
or guardian's physical custody.
(2) There is substantial evidence that a parent, guardian, or
custodian of the child is likely to flee the jurisdiction of the
court.
(3) The child has left a placement in which he or she was placed
by the juvenile court.
(4) The child indicates an unwillingness to return home, if the
child has been physically or sexually abused by a person residing in
the home.
(c) The social worker shall report to the court regarding the
efforts made by the social worker to comply with the requirements of
subdivision (d) of Section 309, and the results of those efforts. The
social worker shall also provide to the court any relative caregiver
information form, as provided for pursuant to Section 309, that has
been completed and received. The court shall consider that
information and shall determine whether, in the court's discretion,
to grant the request of a relative to address the court.
(d) If the matter is continued pursuant to Section 322 or for any
other reason, the court shall find that the continuance of the child
in the parent's or guardian's home is contrary to the child's welfare
at the initial petition hearing or order the release of the child
from custody.
(e) (1) The court shall also make a determination on the record,
referencing the social worker's report or other evidence relied upon,
as to whether reasonable efforts were made to prevent or eliminate
the need for removal of the child from his or her home, pursuant to
subdivision (b) of Section 306, and whether there are available
services that would prevent the need for further detention. Services
to be considered for purposes of making this determination are case
management, counseling, emergency shelter care, emergency in-home
caretakers, out-of-home respite care, teaching and demonstrating
homemakers, parenting training, transportation, and any other child
welfare services authorized by the State Department of Social
Services pursuant to Chapter 5 (commencing with Section 16500) of
Part 4 of Division 9. The court shall also review whether the social
worker has considered whether a referral to public assistance
services pursuant to Chapter 2 (commencing with Section 11200) and
Chapter 7 (commencing with Section 14000) of Part 3, Chapter 1
(commencing with Section
17000) of Part 5, and Chapter 10 (commencing with Section 18900) of
Part 6 of Division 9 would have eliminated the need to take temporary
custody of the child or would prevent the need for further
detention.
(2) If the child can be returned to the custody of his or her
parent or guardian through the provision of those services, the court
shall place the child with his or her parent or guardian and order
that the services shall be provided. If the child cannot be returned
to the physical custody of his or her parent or guardian, the court
shall determine if there is a relative who is able and willing to
care for the child, and has been assessed pursuant to paragraph (1)
of subdivision (e) of Section 309.
(f) If a court orders a child detained, the court shall state the
facts on which the decision is based, specify why the initial removal
was necessary, reference the social worker's report or other
evidence relied upon to make its determination whether continuance in
the home of the parent or legal guardian is contrary to the child's
welfare, order temporary placement and care of the child to be vested
with the county child welfare department pending the hearing held
pursuant to Section 355 or further order of the court, and order
services to be provided as soon as possible to reunify the child and
his or her family if appropriate.
(g) (1) If the child is not released from custody, the court may
order that the child shall be placed in the assessed home of a
relative, in an emergency shelter or other suitable licensed place,
in a place exempt from licensure designated by the juvenile court, or
in the assessed home of a nonrelative extended family member as
defined in Section 362.7 for a period not to exceed 15 judicial days.
(2) As used in this section, "relative" means an adult who is
related to the child by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of these persons,
even if the marriage was terminated by death or dissolution. However,
only the following relatives shall be given preferential
consideration for placement of the child: an adult who is a
grandparent, aunt, uncle, or sibling of the child.
(3) The court shall consider the recommendations of the social
worker based on the assessment pursuant to paragraph (1) of
subdivision (e) of Section 309 of the relative's home, including the
results of a criminal records check and prior child abuse
allegations, if any, prior to ordering that the child be placed with
a relative. The court shall order the parent to disclose to the
social worker the names, residences, and any known identifying
information of any maternal or paternal relatives of the child. The
social worker shall initiate the assessment pursuant to Section 361.3
of any relative to be considered for continuing placement.
(h) (1) At the initial hearing upon the petition filed in
accordance with subdivision (c) of Rule 5.520 of the California Rules
of Court or anytime thereafter up until the time that the minor is
adjudged a dependent child of the court or a finding is made
dismissing the petition, the court may temporarily limit the right of
the parent or guardian to make educational decisions for the child
and temporarily appoint a responsible adult to make educational
decisions for the child if all of the following conditions are found:
(A) The parent or guardian is unavailable, unable, or unwilling to
exercise educational rights for the child.
(B) The county placing agency has made diligent efforts to locate
and secure the participation of the parent or guardian in educational
decisionmaking.
(C) The child's educational needs cannot be met without the
temporary appointment of a responsible adult.
(2) If the court cannot identify a responsible adult to make
educational decisions for the child and the appointment of a
surrogate parent, as defined in subdivision (a) of Section 56050 of
the Education Code, is not warranted, the court may, with the input
of any interested person, make educational decisions for the child.
If the court makes educational decisions for the child, the court
shall also issue appropriate orders to ensure that every effort is
made to identify a responsible adult to make future educational
decisions for the child.
(3) Any temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make
educational decisions for the child shall be specifically addressed
in the court order. Any order made under this section shall expire at
the conclusion of the hearing held pursuant to Section 361 or upon
dismissal of the petition. Upon the entering of disposition orders,
any additional needed limitation on the parent's or guardian's
educational rights shall be addressed pursuant to Section 361.
SEC. 5. Section 366.21 of the Welfare and
Institutions Code is amended to read:
366.21. (a) Every hearing conducted by the juvenile court
reviewing the status of a dependent child shall be placed on the
appearance calendar. The court shall advise all persons present at
the hearing of the date of the future hearing and of their right to
be present and represented by counsel.
(b) Except as provided in Sections 294 and 295, notice of the
hearing shall be provided pursuant to Section 293.
(c) At least 10 calendar days prior to the hearing, the social
worker shall file a supplemental report with the court regarding the
services provided or offered to the parent or legal guardian to
enable him or her to assume custody and the efforts made to achieve
legal permanence for the child if efforts to reunify fail, including,
but not limited to, efforts to maintain relationships between a
child who is 10 years of age or older and has been in out-of-home
placement for six months or longer and individuals who are important
to the child, consistent with the child's best interests; the
progress made; and, where relevant, the prognosis for return of the
child to the physical custody of his or her parent or legal guardian;
and shall make his or her recommendation for disposition. If the
child is a member of a sibling group described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, the report and
recommendation may also take into account those factors described in
subdivision (e) relating to the child's sibling group. If the
recommendation is not to return the child to a parent or legal
guardian, the report shall specify why the return of the child would
be detrimental to the child. The social worker shall provide the
parent or legal guardian, counsel for the child, and any
court-appointed child advocate with a copy of the report, including
his or her recommendation for disposition, at least 10 calendar days
prior to the hearing. In the case of a child removed from the
physical custody of his or her parent or legal guardian, the social
worker shall, at least 10 calendar days prior to the hearing, provide
a summary of his or her recommendation for disposition to any foster
parents, relative caregivers, and certified foster parents who have
been approved for adoption by the State Department of Social Services
when it is acting as an adoption agency in counties that are not
served by a county adoption agency or by a licensed county adoption
agency, community care facility, or foster family agency having the
physical custody of the child. The social worker shall include a copy
of the Judicial Council Caregiver Information Form (JV-290) with the
summary of recommendations to the child's foster parents, relative
caregivers, or foster parents approved for adoption, in the caregiver'
s primary language when available, along with information on how to
file the form with the court.
(d) Prior to any hearing involving a child in the physical custody
of a community care facility or a foster family agency that may
result in the return of the child to the physical custody of his or
her parent or legal guardian, or in adoption or the creation of a
legal guardianship, the facility or agency shall file with the court
a report, or a Judicial Council Caregiver Information Form (JV-290),
containing its recommendation for disposition. Prior to the hearing
involving a child in the physical custody of a foster parent, a
relative caregiver, or a certified foster parent who has been
approved for adoption by the State Department of Social Services when
it is acting as an adoption agency or by a licensed adoption agency,
the foster parent, relative caregiver, or the certified foster
parent who has been approved for adoption by the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency or by a licensed
county adoption agency, may file with the court a report containing
his or her recommendation for disposition and may, on and after
January 1, 2011, include in that report a request to address the
court. The court shall consider the report and recommendation filed
pursuant to this subdivision prior to determining any disposition and
shall determine whether, in the court's discretion, to grant the
request of a foster parent, relative caregiver, or the certified
foster parent to address the court.
(e) Prior to any hearing pursuant to this section, other than a
hearing described in subdivision (d), the social worker shall file
with the court any relative caregiver information form, as provided
for pursuant to Section 309, that has been completed and received.
The court shall consider that information and shall determine
whether, in the court's discretion, to grant the request of a
relative caregiver to address the court.
(f) At the review hearing held six months after the initial
dispositional hearing, the court shall order the return of the child
to the physical custody of his or her parent or legal guardian unless
the court finds, by a preponderance of the evidence, that the return
of the child to his or her parent or legal guardian would create a
substantial risk of detriment to the safety, protection, or physical
or emotional well-being of the child. The social worker shall have
the burden of establishing that detriment. At the hearing, the court
shall consider the criminal history, obtained pursuant to paragraph
(1) of subdivision (f) of Section 16504.5, of the parent or legal
guardian subsequent to the child's removal to the extent that the
criminal record is substantially related to the welfare of the child
or the parent's or guardian's ability to exercise custody and control
regarding his or her child, provided the parent or legal guardian
agreed to submit fingerprint images to obtain criminal history
information as part of the case plan. The failure of the parent or
legal guardian to participate regularly and make substantive progress
in court-ordered treatment programs shall be prima facie evidence
that return would be detrimental. In making its determination, the
court shall review and consider the social worker's report and
recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5; and shall consider the
efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or herself
to services provided, taking into account the particular barriers to
an incarcerated or institutionalized parent or legal guardian's
access to those court-mandated services and ability to maintain
contact with his or her child.
Regardless of whether the child is returned to a parent or legal
guardian, the court shall specify the factual basis for its
conclusion that the return would be detrimental or would not be
detrimental. The court also shall make appropriate findings pursuant
to subdivision (a) of Section 366; and, where relevant, shall order
any additional services reasonably believed to facilitate the return
of the child to the custody of his or her parent or legal guardian.
The court shall also inform the parent or legal guardian that if the
child cannot be returned home by the 12-month permanency hearing, a
proceeding pursuant to Section 366.26 may be instituted. This section
does not apply in a case where, pursuant to Section 361.5, the court
has ordered that reunification services shall not be provided.
If the child was under three years of age on the date of the
initial removal, or is a member of a sibling group described in
subparagraph (C) of paragraph (1) of subdivision (a) of Section
361.5, and the court finds by clear and convincing evidence that the
parent failed to participate regularly and make substantive progress
in a court-ordered treatment plan, the court may schedule a hearing
pursuant to Section 366.26 within 120 days. If, however, the court
finds there is a substantial probability that the child, who was
under three years of age on the date of initial removal or is a
member of a sibling group described in subparagraph (C) of paragraph
(1) of subdivision (a) of Section 361.5, may be returned to his or
her parent or legal guardian within six months or that reasonable
services have not been provided, the court shall continue the case to
the 12-month permanency hearing.
For the purpose of placing and maintaining a sibling group
together in a permanent home, the court, in making its determination
to schedule a hearing pursuant to Section 366.26 for some or all
members of a sibling group, as described in subparagraph (C) of
paragraph (1) of subdivision (a) of Section 361.5, shall review and
consider the social worker's report and recommendations. Factors the
report shall address, and the court shall consider, may include, but
need not be limited to, whether the sibling group was removed from
parental care as a group, the closeness and strength of the sibling
bond, the ages of the siblings, the appropriateness of maintaining
the sibling group together, the detriment to the child if sibling
ties are not maintained, the likelihood of finding a permanent home
for the sibling group, whether the sibling group is currently placed
together in a preadoptive home or has a concurrent plan goal of legal
permanency in the same home, the wishes of each child whose age and
physical and emotional condition permits a meaningful response, and
the best interest of each child in the sibling group. The court shall
specify the factual basis for its finding that it is in the best
interest of each child to schedule a hearing pursuant to Section
366.26 in 120 days for some or all of the members of the sibling
group.
If the child was removed initially under subdivision (g) of
Section 300 and the court finds by clear and convincing evidence that
the whereabouts of the parent are still unknown, or the parent has
failed to contact and visit the child, the court may schedule a
hearing pursuant to Section 366.26 within 120 days. The court shall
take into account any particular barriers to a parent's ability to
maintain contact with his or her child due to the parent's
incarceration or institutionalization. If the court finds by clear
and convincing evidence that the parent has been convicted of a
felony indicating parental unfitness, the court may schedule a
hearing pursuant to Section 366.26 within 120 days.
If the child had been placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2, the court
shall determine whether supervision is still necessary. The court may
terminate supervision and transfer permanent custody to that parent,
as provided for by paragraph (1) of subdivision (b) of Section
361.2.
In all other cases, the court shall direct that any reunification
services previously ordered shall continue to be offered to the
parent or legal guardian pursuant to the time periods set forth in
subdivision (a) of Section 361.5, provided that the court may modify
the terms and conditions of those services.
If the child is not returned to his or her parent or legal
guardian, the court shall determine whether reasonable services that
were designed to aid the parent or legal guardian in overcoming the
problems that led to the initial removal and the continued custody of
the child have been provided or offered to the parent or legal
guardian. The court shall order that those services be initiated,
continued, or terminated.
(g) The permanency hearing shall be held no later than 12 months
after the date the child entered foster care, as that date is
determined pursuant to subdivision (a) of Section 361.5. At the
permanency hearing, the court shall determine the permanent plan for
the child, which shall include a determination of whether the child
will be returned to the child's home and, if so, when, within the
time limits of subdivision (a) of Section 361.5. The court shall
order the return of the child to the physical custody of his or her
parent or legal guardian unless the court finds, by a preponderance
of the evidence, that the return of the child to his or her parent or
legal guardian would create a substantial risk of detriment to the
safety, protection, or physical or emotional well-being of the child.
The social worker shall have the burden of establishing that
detriment. At the permanency hearing, the court shall consider the
criminal history, obtained pursuant to paragraph (1) of subdivision
(f) of Section 16504.5, of the parent or legal guardian subsequent to
the child's removal to the extent that the criminal record is
substantially related to the welfare of the child or the parent or
legal guardian's ability to exercise custody and control regarding
his or her child, provided that the parent or legal guardian agreed
to submit fingerprint images to obtain criminal history information
as part of the case plan. The court shall also determine whether
reasonable services that were designed to aid the parent or legal
guardian to overcome the problems that led to the initial removal and
continued custody of the child have been provided or offered to the
parent or legal guardian. For each youth 16 years of age and older,
the court shall also determine whether services have been made
available to assist him or her in making the transition from foster
care to independent living. The failure of the parent or legal
guardian to participate regularly and make substantive progress in
court-ordered treatment programs shall be prima facie evidence that
return would be detrimental. In making its determination, the court
shall review and consider the social worker's report and
recommendations and the report and recommendations of any child
advocate appointed pursuant to Section 356.5, shall consider the
efforts or progress, or both, demonstrated by the parent or legal
guardian and the extent to which he or she availed himself or herself
of services provided, taking into account the particular barriers to
an incarcerated or institutionalized parent or legal guardian's
access to those court-mandated services and ability to maintain
contact with his or her child and shall make appropriate findings
pursuant to subdivision (a) of Section 366.
Regardless of whether the child is returned to his or her parent
or legal guardian, the court shall specify the factual basis for its
decision. If the child is not returned to a parent or legal guardian,
the court shall specify the factual basis for its conclusion that
the return would be detrimental. The court also shall make a finding
pursuant to subdivision (a) of Section 366. If the child is not
returned to his or her parent or legal guardian, the court shall
consider, and state for the record, in-state and out-of-state
placement options. If the child is placed out of the state, the court
shall make a determination whether the out-of-state placement
continues to be appropriate and in the best interests of the child.
(h) If the time period in which the court-ordered services were
provided has met or exceeded the time period set forth in
subparagraph (A), (B), or (C) of paragraph (1) of subdivision (a) of
Section 361.5, as appropriate, and a child is not returned to the
custody of a parent or legal guardian at the permanency hearing held
pursuant to subdivision (f), the court shall do one of the following:
(1) Continue the case for up to six months for a permanency review
hearing, provided that the hearing shall occur within 18 months of
the date the child was originally taken from the physical custody of
his or her parent or legal guardian. The court shall continue the
case only if it finds that there is a substantial probability that
the child will be returned to the physical custody of his or her
parent or legal guardian and safely maintained in the home within the
extended period of time or that reasonable services have not been
provided to the parent or legal guardian. For the purposes of this
section, in order to find a substantial probability that the child
will be returned to the physical custody of his or her parent or
legal guardian and safely maintained in the home within the extended
period of time, the court shall be required to find all of the
following:
(A) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(B) That the parent or legal guardian has made significant
progress in resolving problems that led to the child's removal from
the home.
(C) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her treatment plan
and to provide for the child's safety, protection, physical and
emotional well-being, and special needs.
For purposes of this subdivision, the court's decision to continue
the case based on a finding or substantial probability that the
child will be returned to the physical custody of his or her parent
or legal guardian is a compelling reason for determining that a
hearing held pursuant to Section 366.26 is not in the best interests
of the child.
The court shall inform the parent or legal guardian that if the
child cannot be returned home by the next permanency review hearing,
a proceeding pursuant to Section 366.26 may be instituted. The court
may not order that a hearing pursuant to Section 366.26 be held
unless there is clear and convincing evidence that reasonable
services have been provided or offered to the parent or legal
guardian.
(2) Order that a hearing be held within 120 days, pursuant to
Section 366.26, but only if the court does not continue the case to
the permanency planning review hearing and there is clear and
convincing evidence that reasonable services have been provided or
offered to the parents or legal guardians.
(3) Order that the child remain in long-term foster care, but only
if the court finds by clear and convincing evidence, based upon the
evidence already presented to it, including a recommendation by the
State Department of Social Services when it
is acting as an adoption agency in counties that are
not served by a county adoption agency or by a licensed county
adoption agency, that there is a compelling reason for determining
that a hearing held pursuant to Section 366.26 is not in the best
interest of the child because the child is not a proper subject for
adoption and has no one willing to accept legal guardianship. For
purposes of this section, a recommendation by the State Department of
Social Services when it is acting as an adoption agency in counties
that are not served by a county adoption agency or by a licensed
county adoption agency that adoption is not in the best interest of
the child shall constitute a compelling reason for the court's
determination. That recommendation shall be based on the present
circumstances of the child and may not preclude a different
recommendation at a later date if the child's circumstances change.
If the court orders that a child who is 10 years of age or older
remain in long-term foster care, the court shall determine whether
the agency has made reasonable efforts to maintain the child's
relationships with individuals other than the child's siblings who
are important to the child, consistent with the child's best
interests, and may make any appropriate order to ensure that those
relationships are maintained.
If the child is not returned to his or her parent or legal
guardian, the court shall consider, and state for the record,
in-state and out-of-state options for permanent placement. If the
child is placed out of the state, the court shall make a
determination whether the out-of-state placement continues to be
appropriate and in the best interests of the child.
(i) In any case in which the court orders that a hearing pursuant
to Section 366.26 shall be held, it shall also order the termination
of reunification services to the parent or legal guardian. The court
shall continue to permit the parent or legal guardian to visit the
child pending the hearing unless it finds that visitation would be
detrimental to the child. The court shall make any other appropriate
orders to enable the child to maintain relationships with
individuals, other than the child's siblings, who are important to
the child, consistent with the child's best interests.
(j) (1) Whenever a court orders that a hearing pursuant to Section
366.26 shall be held, it shall direct the agency supervising the
child and the licensed county adoption agency, or the State
Department of Social Services when it is acting as an adoption agency
in counties that are not served by a county adoption agency, to
prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents or
legal guardians.
(B) A review of the amount of and nature of any contact between
the child and his or her parents or legal guardians and other members
of his or her extended family since the time of placement. Although
the extended family of each child shall be reviewed on a case-by-case
basis, "extended family" for the purpose of this subparagraph shall
include, but not be limited to, the child's siblings, grandparents,
aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or legal guardian,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed guardian is a relative of
the minor, and the relative was assessed for foster care placement
of the minor prior to January 1, 1998, the assessment shall also
consider, but need not be limited to, all of the factors specified in
subdivision (a) of Section 361.3.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the motivation for seeking adoption or guardianship,
and a statement from the child concerning placement and the adoption
or guardianship, unless the child's age or physical, emotional, or
other condition precludes his or her meaningful response, and if so,
a description of the condition.
(F) A description of efforts to be made to identify a prospective
adoptive parent or legal guardian, including, but not limited to,
child-specific recruitment and listing on an adoption exchange within
the state or out of the state.
(G) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) A relative caregiver shall be given information regarding the
permanency options of guardianship and adoption, including the
long-term benefits and consequences of each option, prior to
establishing legal guardianship or pursuing adoption.
(k) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with a relative, and
juvenile court dependency is subsequently dismissed, the relative
shall be eligible for aid under the Kin-GAP Program, as provided for
in Article 4.5 (commencing with Section 11360) of Chapter 2 of Part 3
of Division 9.
(l) As used in this section, "relative" means an adult who is
related to the minor by blood, adoption, or affinity within the fifth
degree of kinship, including stepparents, stepsiblings, and all
relatives whose status is preceded by the words "great,"
"great-great," or "grand," or the spouse of any of those persons even
if the marriage was terminated by death or dissolution.
(m) For purposes of this section, evidence of any of the following
circumstances may not, in and of itself, be deemed a failure to
provide or offer reasonable services:
(1) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(2) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(3) Services to make and finalize a permanent placement for the
child, if efforts to reunify fail, are provided concurrently with
services to reunify the family.
(n) The implementation and operation of the amendments to
subdivisions (c) and (h) enacted at the 2005-06 Regular Session shall
be subject to appropriation through the budget process and by phase,
as provided in Section 366.35.
SEC. 6. 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.