Bill Text: CA SB977 | 2013-2014 | Regular Session | Chaptered
Bill Title: Juveniles.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2014-08-21 - Chaptered by Secretary of State. Chapter 219, Statutes of 2014. [SB977 Detail]
Download: California-2013-SB977-Chaptered.html
BILL NUMBER: SB 977 CHAPTERED
BILL TEXT
CHAPTER 219
FILED WITH SECRETARY OF STATE AUGUST 21, 2014
APPROVED BY GOVERNOR AUGUST 21, 2014
PASSED THE SENATE AUGUST 11, 2014
PASSED THE ASSEMBLY AUGUST 7, 2014
AMENDED IN ASSEMBLY JUNE 16, 2014
AMENDED IN SENATE MAY 13, 2014
AMENDED IN SENATE MARCH 17, 2014
INTRODUCED BY Senator Liu
FEBRUARY 11, 2014
An act to amend Sections 319, 358.1, 361, 361.2, 366.1, 366.21,
366.22, 366.25, and 16500.5 of the Welfare and Institutions Code,
relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
SB 977, Liu. Juveniles.
Existing law establishes the jurisdiction of the juvenile court,
which may adjudge certain children to be dependents of the court
under certain circumstances, including when the child suffered, or
there is a substantial risk that the child will suffer, serious
physical harm, or a parent fails to provide the child with adequate
food, clothing, shelter, or medical treatment. Existing law
establishes the grounds for removal of a dependent child from the
custody of his or her parents or guardian, and establishes procedures
to determine temporary placement of a dependent child. Existing law
prescribes various hearings, including specified review hearings, and
other procedures for these purposes.
When a court orders the removal of a child from the physical
custody of his or her parent, existing law generally requires the
court to order the return of the child to the physical custody of his
or her parent, unless the court finds that the return of the child
would create a substantial risk of detriment, or substantial danger,
to the safety, protection, or physical or emotional well-being of the
child.
This bill would specify that the fact that a parent is enrolled in
a certified substance abuse treatment facility that allows a
dependent child to reside with his or her parent is not, for that
reason alone, prima facie evidence of detriment or substantial danger
and would additionally require the court to consider at those
hearings whether the child can be returned to the custody of his or
her parent who is enrolled in a certified substance abuse treatment
facility.
Prior to disposition in a dependency proceeding, existing law
requires the court to 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 any other relevant and
material evidence. Existing law requires the social study or
evaluation to include a factual discussion of certain subjects.
Existing law also requires the status of every dependent child in
foster care to be reviewed periodically, and authorizes the court to
require a social worker or any other agency to render periodic
reports, as specified. Existing law requires each supplemental report
under those provisions to include a factual discussion of certain
subjects.
This bill would require the social study or evaluation and the
supplemental report described above to include a discussion of
whether a child may be returned to the custody of a parent who is
enrolled in a certified substance abuse treatment facility that
allows a dependent child to reside with the parent. By imposing
additional duties on county employees, the bill would impose a
state-mandated local program.
Existing law provides for the Aid to Families with Dependent
Children-Foster Care (AFDC-FC) program, under which, pursuant to a
combination of federal, state, and county funds, aid on behalf of
eligible children is paid to foster care providers. Existing law
provides that certain services may be provided under the program to
include mental health treatment and substance abuse treatment
services.
This bill would specify that those treatment services may include
treatment at a residential substance abuse treatment facility that
accepts families.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 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.
(3) In order to preserve the bond between the child and the parent
and to facilitate family reunification, the court shall consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility that allows a dependent child to reside with his
or her parent shall not be, for that reason alone, prima facie
evidence of substantial danger. The court shall specify the factual
basis for its conclusion that the return of the child to the custody
of his or her parent would pose a substantial danger or would not
pose a substantial danger to the physical health, safety, protection,
or physical or emotional well-being of the child.
(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.
A runaway and homeless youth shelter licensed by the State
Department of Social Services pursuant to Section 1502.35 of the
Health and Safety Code shall not be a placement option pursuant to
this section.
(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 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 or developmental services
decisions for the child and temporarily appoint a responsible adult
to make educational or developmental services 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 or developmental services 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
or developmental services decisionmaking.
(C) The child's educational and developmental services needs
cannot be met without the temporary appointment of a responsible
adult.
(2) If the court limits the parent's educational rights under this
subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child and who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
(3) 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 child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision must be consistent with the child's individual program plan
and pursuant to the provisions of the Lanterman Developmental
Disabilities Services Act (Division 4.5 (commencing with Section
4500)). If the court cannot identify a responsible adult to make
developmental services decisions for the child, the court may, with
the input of any interested person, make developmental services
decisions for the child. If the court makes educational or
developmental services 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 or
developmental services decisions for the child.
(4) Any temporary appointment of a responsible adult and temporary
limitation on the right of the parent or guardian to make
educational or developmental services 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 or developmental services
rights shall be addressed pursuant to Section 361.
(5) Nothing in this section in any way removes the obligation to
appoint surrogate parents for students with disabilities who are
without parental representation in special education procedures as
required by state and federal law, including Section 1415(b)(2) of
Title 20 of the United States Code, Section 56050 of the Education
Code, Section 7579.5 of the Government Code, and Rule 5.650 of the
California Rules of Court.
(6) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's information and records pursuant to subdivision
(u) of Section 4514 and subdivision (y) of Section 5328, and to act
on the child's behalf for the purposes of the individual program plan
process pursuant to Sections 4646, 4646.5, and 4648 and the fair
hearing process pursuant to Chapter 7 (commencing with Section 4700),
and as set forth in the court order.
SEC. 2. 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 either of the following:
(1) 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.
(2) Whether the child can be returned to the custody of his or her
parent who is enrolled in a certified substance abuse treatment
facility that allows a dependent child to reside with his or her
parent.
(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) 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) 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) 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) 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) Whether the caregiver desires, and is willing, to provide
legal permanency for the child if reunification is unsuccessful.
(j) For an Indian child, in consultation with the Indian child's
tribe, whether tribal customary adoption is an appropriate permanent
plan for the child if reunification is unsuccessful.
(k) On and after the date that the director executes a declaration
pursuant to Section 11217, whether the child has been placed in an
approved relative's home under a voluntary placement agreement for a
period not to exceed 180 days, the parent or guardian is not
interested in additional family maintenance or family reunification
services, and the relative desires and is willing to be appointed the
child's legal guardian.
SEC. 3. Section 361 of the Welfare and Institutions Code is
amended to read:
361. (a) (1) In all cases in which a minor is adjudged a
dependent child of the court on the ground that the minor is a person
described by Section 300, the court may limit the control to be
exercised over the dependent child by any parent or guardian and
shall by its order clearly and specifically set forth all those
limitations. Any limitation on the right of the parent or guardian to
make educational or developmental services decisions for the child
shall be specifically addressed in the court order. The limitations
may not exceed those necessary to protect the child. If the court
specifically limits the right of the parent or guardian to make
educational or developmental services decisions for the child, or,
for the nonminor dependent, if the court finds the appointment of a
developmental services decisionmaker to be in the best interests of
the nonminor dependent, the court shall at the same time appoint a
responsible adult to make educational or developmental services
decisions for the child or nonminor dependent until one of the
following occurs:
(A) The minor reaches 18 years of age, unless the child or
nonminor dependent chooses not to make educational or developmental
services decisions for himself or herself, or is deemed by the court
to be incompetent.
(B) Another responsible adult is appointed to make educational or
developmental services decisions for the minor pursuant to this
section.
(C) The right of the parent or guardian to make educational or
developmental services decisions for the minor is fully restored.
(D) A successor guardian or conservator is appointed.
(E) The child is placed into a planned permanent living
arrangement pursuant to paragraph (5) of subdivision (g) of Section
366.21, Section 366.22, Section 366.26, or subdivision (i) of Section
366.3, at which time, for educational decisionmaking, the foster
parent, relative caretaker, or nonrelative extended family member as
defined in Section 362.7, has the right to represent the child in
educational matters pursuant to Section 56055 of the Education Code,
and for decisions relating to developmental services, unless the
court specifies otherwise, the foster parent, relative caregiver, or
nonrelative extended family member of the planned permanent living
arrangement has the right to represent the child or nonminor
dependent in matters related to developmental services.
(2) An individual who would have a conflict of interest in
representing the child or nonminor dependent shall not be appointed
to make educational or developmental services decisions. For purposes
of this section, "an individual who would have a conflict of
interest" means a person having any interests that might restrict or
bias his or her ability to make educational or developmental services
decisions, including, but not limited to, those conflicts of
interest prohibited by Section 1126 of the Government Code, and the
receipt of compensation or attorney's fees for the provision of
services pursuant to this section. A foster parent shall not be
deemed to have a conflict of interest solely because he or she
receives compensation for the provision of services pursuant to this
section.
(3) If the court limits the parent's educational rights pursuant
to this subdivision, the court shall determine whether there is a
responsible adult who is a relative, nonrelative extended family
member, or other adult known to the child who is available and
willing to serve as the child's educational representative before
appointing an educational representative or surrogate who is not
known to the child.
If the court cannot identify a responsible adult who is known to
the child and available to make educational decisions for the child,
subparagraphs (A) to (E), inclusive, of paragraph (1) do not apply,
and the child has either been referred to the local educational
agency for special education and related services, or has a valid
individualized education program, the court shall refer the child to
the local educational agency for appointment of a surrogate parent
pursuant to Section 7579.5 of the Government Code.
If the court cannot identify a responsible adult to make
educational decisions for the child, the appointment of a surrogate
parent as defined in subdivision (a) of Section 56050 of the
Education Code is not warranted, and there is no foster parent to
exercise the authority granted by Section 56055 of the Education
Code, the court may, with the input of any interested person, make
educational decisions for the child.
(4) If the court appoints a developmental services decisionmaker
pursuant to this section, he or she shall have the authority to
access the child's or nonminor dependent's information and records
pursuant to subdivision (u) of Section 4514 and subdivision (y) of
Section 5328, and to act on the child's or nonminor dependent's
behalf for the purposes of the individual program plan process
pursuant to Sections 4646, 4646.5, and 4648 and the fair hearing
process pursuant to Chapter 7 (commencing with Section 4700) of
Division 4.5, and as set forth in the court order.
If the court cannot identify a responsible adult to make
developmental services decisions for the child or nonminor dependent,
the court may, with the input of any interested person, make
developmental services decisions for the child or nonminor dependent.
If the child is receiving services from a regional center, the
provision of any developmental services related to the court's
decision must be consistent with the child's or nonminor dependent's
individual program plan and pursuant to the provisions of the
Lanterman Developmental Disabilities Services Act (Division 4.5
(commencing with Section 4500)).
(5) All educational and school placement decisions shall seek to
ensure that the child is in the least restrictive educational
programs and has access to the academic resources, services, and
extracurricular and enrichment activities that are available to all
pupils. In all instances, educational and school placement decisions
shall be based on the best interests of the child. If an educational
representative or surrogate is appointed for the child, the
representative or surrogate shall meet with the child, shall
investigate the child's educational needs and whether those needs are
being met, and shall, prior to each review hearing held under this
article, provide information and recommendations concerning the child'
s educational needs to the child's social worker, make written
recommendations to the court, or attend the hearing and participate
in those portions of the hearing that concern the child's education.
(6) Nothing in this section in any way removes the obligation to
appoint surrogate parents for students with disabilities who are
without parental representation in special education procedures as
required by state and federal law, including Section 1415(b)(2) of
Title 20 of the United States Code, Section 56050 of the Education
Code, Section 7579.5 of the Government Code, and Rule 5.650 of the
California Rules of Court.
(b) Subdivision (a) does not limit the ability of a parent to
voluntarily relinquish his or her child to the State Department of
Social Services or to a county adoption agency at any time while the
child is a dependent child of the juvenile court, if the department
or agency is willing to accept the relinquishment.
(c) A dependent child shall not be taken from the physical custody
of his or her parents or guardian or guardians with whom the child
resides at the time the petition was initiated, unless the juvenile
court finds clear and convincing evidence of any of the following
circumstances listed in paragraphs (1) to (5), inclusive, and, in an
Indian child custody proceeding, paragraph (6):
(1) There is or would be a substantial danger to the physical
health, safety, protection, or physical or emotional well-being of
the minor if the minor were returned home, and there are no
reasonable means by which the minor's physical health can be
protected without removing the minor from the minor's parent's or
guardian's physical custody. The fact that a minor has been
adjudicated a dependent child of the court pursuant to subdivision
(e) of Section 300 shall constitute prima facie evidence that the
minor cannot be safely left in the physical custody of the parent or
guardian with whom the minor resided at the time of injury. The court
shall consider, as a reasonable means to protect the minor, each of
the following:
(A) The option of removing an offending parent or guardian from
the home.
(B) Allowing a nonoffending parent or guardian to retain physical
custody as long as that parent or guardian presents a plan acceptable
to the court demonstrating that he or she will be able to protect
the child from future harm.
(C) Whether the child can be returned to the custody of his or her
parent who is enrolled in a certified substance abuse treatment
facility that allows a dependent child to reside with his or her
parent.
(2) The parent or guardian of the minor is unwilling to have
physical custody of the minor, and the parent or guardian has been
notified that if the minor remains out of their physical custody for
the period specified in Section 366.26, the minor may be declared
permanently free from their custody and control.
(3) The minor is suffering severe emotional damage, as indicated
by extreme anxiety, depression, withdrawal, or untoward aggressive
behavior toward himself or herself or others, and there are no
reasonable means by which the minor's emotional health may be
protected without removing the minor from the physical custody of his
or her parent or guardian.
(4) The minor or a sibling of the minor has been sexually abused,
or is deemed to be at substantial risk of being sexually abused, by a
parent, guardian, or member of his or her household, or other person
known to his or her parent, and there are no reasonable means by
which the minor can be protected from further sexual abuse or a
substantial risk of sexual abuse without removing the minor from his
or her parent or guardian, or the minor does not wish to return to
his or her parent or guardian.
(5) The minor has been left without any provision for his or her
support, or a parent who has been incarcerated or institutionalized
cannot arrange for the care of the minor, or a relative or other
adult custodian with whom the child has been left by the parent is
unwilling or unable to provide care or support for the child and the
whereabouts of the parent is unknown and reasonable efforts to locate
him or her have been unsuccessful.
(6) In an Indian child custody proceeding, continued custody of
the child by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child,
and that finding is supported by testimony
of a "qualified expert witness" as described in Section 224.6.
(A) Stipulation by the parent, Indian custodian, or the Indian
child's tribe, or failure to object, may waive the requirement of
producing evidence of the likelihood of serious damage only if the
court is satisfied that the party has been fully advised of the
requirements of the federal Indian Child Welfare Act (25 U.S.C. Sec.
1901 et seq.), and has knowingly, intelligently, and voluntarily
waived them.
(B) Failure to meet non-Indian family and child-rearing community
standards, or the existence of other behavior or conditions that meet
the removal standards of this section, will not support an order for
placement in the absence of the finding in this paragraph.
(d) The court shall make a determination as to whether reasonable
efforts were made to prevent or to eliminate the need for removal of
the minor from his or her home or, if the minor is removed for one of
the reasons stated in paragraph (5) of subdivision (c), whether it
was reasonable under the circumstances not to make any of those
efforts, or, in the case of an Indian child custody proceeding,
whether active efforts as required in Section 361.7 were made and
that these efforts have proved unsuccessful. The court shall state
the facts on which the decision to remove the minor is based.
(e) The court shall make all of the findings required by
subdivision (a) of Section 366 in either of the following
circumstances:
(1) The minor has been taken from the custody of his or her parent
or guardian and has been living in an out-of-home placement pursuant
to Section 319.
(2) The minor has been living in a voluntary out-of-home placement
pursuant to Section 16507.4.
SEC. 4. Section 361.2 of the Welfare and Institutions Code is
amended to read:
361.2. (a) When a court orders removal of a child pursuant to
Section 361, the court shall first determine whether there is a
parent of the child, with whom the child was not residing at the time
that the events or conditions arose that brought the child within
the provisions of Section 300, who desires to assume custody of the
child. If that parent requests custody, the court shall place the
child with the parent unless it finds that placement with that parent
would be detrimental to the safety, protection, or physical or
emotional well-being of the child. The fact that the parent is
enrolled in a certified substance abuse treatment facility that
allows a dependent child to reside with his or her parent shall not
be, for that reason alone, prima facie evidence that placement with
that parent would be detrimental.
(b) If the court places the child with that parent it may do any
of the following:
(1) Order that the parent become legal and physical custodian of
the child. The court may also provide reasonable visitation by the
noncustodial parent. The court shall then terminate its jurisdiction
over the child. The custody order shall continue unless modified by a
subsequent order of the superior court. The order of the juvenile
court shall be filed in any domestic relation proceeding between the
parents.
(2) Order that the parent assume custody subject to the
jurisdiction of the juvenile court and require that a home visit be
conducted within three months. In determining whether to take the
action described in this paragraph, the court shall consider any
concerns that have been raised by the child's current caregiver
regarding the parent. After the social worker conducts the home visit
and files his or her report with the court, the court may then take
the action described in paragraph (1), (3), or this paragraph.
However, nothing in this paragraph shall be interpreted to imply that
the court is required to take the action described in this paragraph
as a prerequisite to the court taking the action described in either
paragraph (1) or (3).
(3) Order that the parent assume custody subject to the
supervision of the juvenile court. In that case the court may order
that reunification services be provided to the parent or guardian
from whom the child is being removed, or the court may order that
services be provided solely to the parent who is assuming physical
custody in order to allow that parent to retain later custody without
court supervision, or that services be provided to both parents, in
which case the court shall determine, at review hearings held
pursuant to Section 366, which parent, if either, shall have custody
of the child.
(c) The court shall make a finding either in writing or on the
record of the basis for its determination under subdivisions (a) and
(b).
(d) Part 6 (commencing with Section 7950) of Division 12 of the
Family Code shall apply to the placement of a child pursuant to
paragraphs (1) and (2) of subdivision (e).
(e) When the court orders removal pursuant to Section 361, the
court shall order the care, custody, control, and conduct of the
child to be under the supervision of the social worker who may place
the child in any of the following:
(1) The home of a noncustodial parent as described in subdivision
(a), regardless of the parent's immigration status.
(2) The approved home of a relative, regardless of the relative's
immigration status.
(3) The approved home of a nonrelative extended family member as
defined in Section 362.7.
(4) A foster home in which the child has been placed before an
interruption in foster care, if that placement is in the best
interest of the child and space is available.
(5) A suitable licensed community care facility, except a runaway
and homeless youth shelter licensed by the State Department of Social
Services pursuant to Section 1502.35 of the Health and Safety Code.
(6) With a foster family agency to be placed in a suitable
licensed foster family home or certified family home which has been
certified by the agency as meeting licensing standards.
(7) A home or facility in accordance with the federal Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).
(8) A child under the age of six years may be placed in a
community care facility licensed as a group home for children, or a
temporary shelter care facility as defined in Section 1530.8 of the
Health and Safety Code, only under any of the following
circumstances:
(A) (i) When a case plan indicates that placement is for purposes
of providing short-term, specialized, and intensive treatment to the
child, the case plan specifies the need for, nature of, and
anticipated duration of this treatment, pursuant to paragraph (2) of
subdivision (c) of Section 16501.1, the facility meets the applicable
regulations adopted under Section 1530.8 of the Health and Safety
Code and standards developed pursuant to Section 11467.1, and the
deputy director or director of the county child welfare department or
an assistant chief probation officer or chief probation officer of
the county probation department has approved the case plan.
(ii) The short term, specialized, and intensive treatment period
shall not exceed 120 days, unless the county has made progress toward
or is actively working toward implementing the case plan that
identifies the services or supports necessary to transition the child
to a family setting, circumstances beyond the county's control have
prevented the county from obtaining those services or supports within
the timeline documented in the case plan, and the need for
additional time pursuant to the case plan is documented by the
caseworker and approved by a deputy director or director of the
county child welfare department or an assistant chief probation
officer or chief probation officer of the county probation
department.
(iii) To the extent that placements pursuant to this paragraph are
extended beyond an initial 120 days, the requirements of clauses (i)
and (ii) shall apply to each extension. In addition, the deputy
director or director of the county child welfare department or an
assistant chief probation officer or chief probation officer of the
county probation department shall approve the continued placement no
less frequently than every 60 days.
(B) When a case plan indicates that placement is for purposes of
providing family reunification services. In addition, the facility
offers family reunification services that meet the needs of the
individual child and his or her family, permits parents to have
reasonable access to their children 24 hours a day, encourages
extensive parental involvement in meeting the daily needs of their
children, and employs staff trained to provide family reunification
services. In addition, one of the following conditions exists:
(i) The child's parent is also a ward of the court and resides in
the facility.
(ii) The child's parent is participating in a treatment program
affiliated with the facility and the child's placement in the
facility facilitates the coordination and provision of reunification
services.
(iii) Placement in the facility is the only alternative that
permits the parent to have daily 24-hour access to the child in
accordance with the case plan, to participate fully in meeting all of
the daily needs of the child, including feeding and personal
hygiene, and to have access to necessary reunification services.
(9) (A) A child who is 6 to 12 years of age, inclusive, may be
placed in a community care facility licensed as a group home for
children only when a case plan indicates that placement is for
purposes of providing short-term, specialized, and intensive
treatment for the child, the case plan specifies the need for, nature
of, and anticipated duration of this treatment, pursuant to
paragraph (2) of subdivision (c) of Section 16501.1, and is approved
by the deputy director or director of the county child welfare
department or an assistant chief probation officer or chief probation
officer of the county probation department.
(B) The short-term, specialized, and intensive treatment period
shall not exceed six months, unless the county has made progress or
is actively working toward implementing the case plan that identifies
the services or supports necessary to transition the child to a
family setting, circumstances beyond the county's control have
prevented the county from obtaining those services or supports within
the timeline documented in the case plan, and the need for
additional time pursuant to the case plan is documented by the
caseworker and approved by a deputy director or director of the
county child welfare department or an assistant chief probation
officer or chief probation officer of the county probation
department.
(C) To the extent that placements pursuant to this paragraph are
extended beyond an initial six months, the requirements of
subparagraph (A) and (B) shall apply to each extension. In addition,
the deputy director or director of the county child welfare
department or an assistant chief probation officer or chief probation
officer of the county probation department shall approve the
continued placement no less frequently than every 60 days.
(10) Nothing in this subdivision shall be construed to allow a
social worker to place any dependent child outside the United States,
except as specified in subdivision (f).
(f) (1) A child under the supervision of a social worker pursuant
to subdivision (e) shall not be placed outside the United States
prior to a judicial finding that the placement is in the best
interest of the child, except as required by federal law or treaty.
(2) The party or agency requesting placement of the child outside
the United States shall carry the burden of proof and shall show, by
clear and convincing evidence, that placement outside the United
States is in the best interest of the child.
(3) In determining the best interest of the child, the court shall
consider, but not be limited to, the following factors:
(A) Placement with a relative.
(B) Placement of siblings in the same home.
(C) Amount and nature of any contact between the child and the
potential guardian or caretaker.
(D) Physical and medical needs of the dependent child.
(E) Psychological and emotional needs of the dependent child.
(F) Social, cultural, and educational needs of the dependent
child.
(G) Specific desires of any dependent child who is 12 years of age
or older.
(4) If the court finds that a placement outside the United States
is, by clear and convincing evidence, in the best interest of the
child, the court may issue an order authorizing the social worker to
make a placement outside the United States. A child subject to this
subdivision shall not leave the United States prior to the issuance
of the order described in this paragraph.
(5) For purposes of this subdivision, "outside the United States"
shall not include the lands of any federally recognized American
Indian tribe or Alaskan Natives.
(6) This subdivision shall not apply to the placement of a
dependent child with a parent pursuant to subdivision (a).
(g) (1) If the child is taken from the physical custody of the
child's parent or guardian and unless the child is placed with
relatives, the child shall be placed in foster care in the county of
residence of the child's parent or guardian in order to facilitate
reunification of the family.
(2) In the event that there are no appropriate placements
available in the parent's or guardian's county of residence, a
placement may be made in an appropriate place in another county,
preferably a county located adjacent to the parent's or guardian's
community of residence.
(3) Nothing in this section shall be interpreted as requiring
multiple disruptions of the child's placement corresponding to
frequent changes of residence by the parent or guardian. In
determining whether the child should be moved, the social worker
shall take into consideration the potential harmful effects of
disrupting the placement of the child and the parent's or guardian's
reason for the move.
(4) When it has been determined that it is necessary for a child
to be placed in a county other than the child's parent's or guardian'
s county of residence, the specific reason the out-of-county
placement is necessary shall be documented in the child's case plan.
If the reason the out-of-county placement is necessary is the lack of
resources in the sending county to meet the specific needs of the
child, those specific resource needs shall be documented in the case
plan.
(5) When it has been determined that a child is to be placed out
of county either in a group home or with a foster family agency for
subsequent placement in a certified foster family home, and the
sending county is to maintain responsibility for supervision and
visitation of the child, the sending county shall develop a plan of
supervision and visitation that specifies the supervision and
visitation activities to be performed and specifies that the sending
county is responsible for performing those activities. In addition to
the plan of supervision and visitation, the sending county shall
document information regarding any known or suspected dangerous
behavior of the child that indicates the child may pose a safety
concern in the receiving county. Upon implementation of the Child
Welfare Services Case Management System, the plan of supervision and
visitation, as well as information regarding any known or suspected
dangerous behavior of the child, shall be made available to the
receiving county upon placement of the child in the receiving county.
If placement occurs on a weekend or holiday, the information shall
be made available to the receiving county on or before the end of the
next business day.
(6) When it has been determined that a child is to be placed out
of county and the sending county plans that the receiving county
shall be responsible for the supervision and visitation of the child,
the sending county shall develop a formal agreement between the
sending and receiving counties. The formal agreement shall specify
the supervision and visitation to be provided the child, and shall
specify that the receiving county is responsible for providing the
supervision and visitation. The formal agreement shall be approved
and signed by the sending and receiving counties prior to placement
of the child in the receiving county. In addition, upon completion of
the case plan, the sending county shall provide a copy of the
completed case plan to the receiving county. The case plan shall
include information regarding any known or suspected dangerous
behavior of the child that indicates the child may pose a safety
concern to the receiving county.
(h) Whenever the social worker must change the placement of the
child and is unable to find a suitable placement within the county
and must place the child outside the county, the placement shall not
be made until he or she has served written notice on the parent or
guardian at least 14 days prior to the placement, unless the child's
health or well-being is endangered by delaying the action or would be
endangered if prior notice were given. The notice shall state the
reasons which require placement outside the county. The parent or
guardian may object to the placement not later than seven days after
receipt of the notice and, upon objection, the court shall hold a
hearing not later than five days after the objection and prior to the
placement. The court shall order out-of-county placement if it finds
that the child's particular needs require placement outside the
county.
(i) Where the court has ordered removal of the child from the
physical custody of his or her parents pursuant to Section 361, the
court shall consider whether the family ties and best interest of the
child will be served by granting visitation rights to the child's
grandparents. The court shall clearly specify those rights to the
social worker.
(j) Where the court has ordered removal of the child from the
physical custody of his or her parents pursuant to Section 361, the
court shall consider whether there are any siblings under the court's
jurisdiction, the nature of the relationship between the child and
his or her siblings, the appropriateness of developing or maintaining
the sibling relationships pursuant to Section 16002, and the impact
of the sibling relationships on the child's placement and planning
for legal permanence.
(k) (1) When an agency has placed a child with a relative
caregiver, a nonrelative extended family member, a licensed foster
family home, or a group home, the agency shall ensure placement of
the child in a home that, to the fullest extent possible, best meets
the day-to-day needs of the child. A home that best meets the
day-to-day needs of the child shall satisfy all of the following
criteria:
(A) The child's caregiver is able to meet the day-to-day health,
safety, and well-being needs of the child.
(B) The child's caregiver is permitted to maintain the least
restrictive and most family-like environment that serves the
day-to-day needs of the child.
(C) The child is permitted to engage in reasonable,
age-appropriate day-to-day activities that promote the most
family-like environment for the foster child.
(2) The foster child's caregiver shall use a reasonable and
prudent parent standard, as defined in paragraph (2) of subdivision
(a) of Section 362.04, to determine day-to-day activities that are
age-appropriate to meet the needs of the child. Nothing in this
section shall be construed to permit a child's caregiver to permit
the child to engage in day-to-day activities that carry an
unreasonable risk of harm, or subject the child to abuse or neglect.
SEC. 5. Section 366.1 of the Welfare and Institutions Code is
amended to read:
366.1. Each supplemental report required to be filed pursuant to
Section 366 shall include, but not be limited to, a factual
discussion of each of the following subjects:
(a) Whether the county welfare department social worker has
considered either of the following:
(1) 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 those services to qualified
parents, if appropriate under the circumstances.
(2) Whether the child can be returned to the custody of his or her
parent who is enrolled in a certified substance abuse treatment
facility that allows a dependent child to reside with his or her
parent.
(b) What plan, if any, for the return and maintenance of the child
in a safe home is recommended to the court by the county welfare
department social worker.
(c) Whether the subject 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.
(d) What actions, if any, have been taken by the parent to correct
the problems that caused the child to be made a dependent child of
the court.
(e) 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 supplemental report makes that
recommendation, the report shall identify whether there is a
responsible adult available to make educational decisions for the
child pursuant to Section 361.
(f) (1) Whether the child has any siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(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 interests.
(g) Whether a child who is 10 years of age or older and who has
been in an out-of-home placement for six months or longer has
relationships with individuals other than the child's siblings that
are important to the child, consistent with the child's best
interests, and actions taken to maintain those relationships. The
social worker shall ask every child who is 10 years of age or older
and who has been in an out-of-home placement for six months or longer
to identify any individuals other than the child's siblings who are
important to the child, consistent with the child's best interest.
The social worker may ask any other child to provide that
information, as appropriate.
(h) The implementation and operation of the amendments to
subdivision (g) 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. 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 or by a 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, or in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, 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 county 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
or by a county adoption agency, may file with the court a report
containing his or her recommendation for disposition. The court shall
consider the report and recommendation filed pursuant to this
subdivision prior to determining any disposition.
(e) At the review hearing held six months after the initial
dispositional hearing, but no later than 12 months after the date the
child entered foster care as determined in Section 361.49, whichever
occurs earlier, after considering the admissible and relevant
evidence, 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 court shall also consider
whether the child can be returned to the custody of his or her parent
who is enrolled in a certified substance abuse treatment facility
that allows a dependent child to reside with his or her parent. The
fact that the parent is enrolled in a certified substance abuse
treatment facility shall not be, for that reason alone, prima facie
evidence of detriment. 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,
institutionalized, detained, or deported parent's 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 interests of each child in the sibling group. The court
shall specify the factual basis for its finding that it is in the
best interests of each child to schedule a hearing pursuant to
Section 366.26 within 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, institutionalization, detention by the United States
Department of Homeland Security, or deportation. 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.
(f) 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 Section 361.49. 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. After considering the relevant and admissible
evidence, 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's 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 court shall
also consider whether the child can be returned to the custody of his
or her parent who is enrolled in a certified substance abuse
treatment facility that allows a dependent child to reside with his
or her parent. The fact that the parent is enrolled in a certified
substance abuse treatment facility shall not be, for that reason
alone, prima facie evidence of detriment. 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, institutionalized, detained, or deported
parent's 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.
(g) 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
shall 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) 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, if the parent has been arrested
and issued an immigration hold, detained by the United States
Department of Homeland Security, or deported to his or her country of
origin, and the court determines either 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.
(3) For purposes of paragraph (2), 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 find all of
the following:
(A) The parent or legal guardian has consistently and regularly
contacted and visited with the child, taking into account any
particular barriers to a parent's ability to maintain contact with
his or her child due to the parent's arrest and receipt of an
immigration hold, detention by the United States Department of
Homeland Security, or deportation.
(B) The parent or legal guardian has made significant progress in
resolving the problems that led to the child's removal from the home.
(C) The parent or legal guardian has demonstrated the capacity or
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.
(4) 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. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child and tribal customary adoption is recommended as the
permanent plan.
(5) 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 or by a 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 interests 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 or by a county adoption agency that adoption is not in the
best interests 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 shall not preclude a different
recommendation at a later date if the child's circumstances change.
On and after January 1, 2012, the nonminor dependent's legal status
as an adult is in and of itself a compelling reason not to hold a
hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement.
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.
(h) 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. When the court
orders a termination of reunification services to the parent or
legal guardian, it shall also order that the child's caregiver
receive the child's birth certificate in accordance with Sections
16010.4 and 16010.5. Additionally, when the court orders a
termination of reunification services to the parent or legal
guardian, it shall order, when appropriate, that a child who is 16
years of age or older receive his or her birth certificate.
(i) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including, when, in consultation with the child's tribe,
tribal customary adoption is recommended, shall be held, it shall
direct the agency supervising the child and the county adoption
agency, or the State Department of Social Services when it is acting
as an adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents 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,
including the prospective tribal customary adoptive parent,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed guardian is a relative of
the minor, the assessment shall also consider, but need not be
limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or guardianship, a
statement from the child concerning placement and the adoption or
guardianship, and whether the child, if over 12 years of age, has
been consulted about the proposed relative guardianship arrangements,
unless the child's age or physical, emotional, or other condition
precludes his or her meaningful response, and if so, a description of
the condition.
(F) 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.
(H) In the case of an Indian child, in addition to subparagraphs
(A) to (G), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(j) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(k) 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. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(l) 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.
(m) The implementation and operation of the amendments to
subdivisions (c) and (g) 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. 7. Section 366.22 of the Welfare and Institutions Code is
amended to read:
366.22. (a) When a case has been continued pursuant to paragraph
(1) or (2) of subdivision (g) of Section 366.21, the permanency
review hearing shall occur within 18 months after the date the child
was originally removed from the physical custody of his or her parent
or legal guardian. After considering the admissible and relevant
evidence, 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 review
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 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 consider whether the child can be returned to the
custody of his or her parent who is enrolled in a certified substance
abuse treatment facility that allows a dependent child to reside
with his or her parent. The fact that the parent is enrolled in a
certified substance abuse treatment facility shall not be, for that
reason alone, prima facie evidence of detriment. 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 of an incarcerated or institutionalized parent's 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.
Whether or not 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
return would be detrimental. 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 the child's
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.
Unless the conditions in subdivision (b) are met and the child is
not returned to a parent or legal guardian at the permanency review
hearing, the court shall order that a hearing be held pursuant to
Section 366.26 in order to determine whether adoption, or, in the
case of an Indian child, in consultation with the child's tribe,
tribal customary adoption, guardianship, or long-term foster care is
the most appropriate plan for the child. On and after January 1,
2012, a hearing pursuant to Section 366.26 shall not be ordered if
the child is a nonminor dependent, unless the nonminor dependent is
an Indian child, and tribal customary adoption is recommended as the
permanent plan. However, if the court finds by clear and convincing
evidence, based on the evidence already presented to it, including a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency, that
there is a compelling reason, as described in paragraph (5) of
subdivision (g) of Section 366.21, for determining that a hearing
held under Section 366.26 is not in the best interests of the child
because the child is not a proper subject for adoption and has no one
willing to accept legal guardianship, the court may, only under
these circumstances, order that the child remain in long-term foster
care. On and after January 1, 2012, the nonminor dependent's legal
status as an adult is in and of itself a compelling reason not to
hold a hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement. 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. The hearing shall be held no later than 120 days from the
date of the permanency review hearing. The court shall also order
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 unless it finds that visitation would be
detrimental to the child. The court shall determine whether
reasonable services have been offered or provided to the parent or
legal guardian. For purposes of this subdivision, evidence of any of
the following circumstances shall not, in and of themselves, 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.
(b) If the child is not returned to a parent or legal guardian at
the permanency review hearing and the court determines by clear and
convincing evidence that the best interests of the child would be met
by the provision of additional reunification services to a parent or
legal guardian who is making significant and consistent progress in
a court-ordered residential substance abuse treatment program, or a
parent recently discharged from incarceration, institutionalization,
or the custody of the United States Department of Homeland Security
and making significant and consistent progress in establishing a safe
home for the child's return, the court may continue the case for up
to six months for a subsequent permanency review hearing, provided
that the hearing shall occur within 24 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:
(1) That the parent or legal guardian has consistently and
regularly contacted and visited with the child.
(2) That the parent or legal guardian has made significant and
consistent progress in the prior 18 months in resolving problems that
led to the child's removal from the home.
(3) The parent or legal guardian has demonstrated the capacity and
ability both to complete the objectives of his or her substance
abuse treatment plan as evidenced by reports from a substance abuse
provider as applicable, or complete a treatment plan postdischarge
from incarceration, institutionalization, or detention, or following
deportation to his or her country of origin and his or her return to
the United States, 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 subsequent 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.
(c) (1) Whenever a court orders that a hearing pursuant to Section
366.26, including when a tribal customary adoption is recommended,
shall be held, it shall direct the agency supervising the child and
the county adoption agency, or the State Department of Social
Services when it is acting as an adoption agency, to prepare an
assessment that shall include:
(A) Current search efforts for an absent parent or parents.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes 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 legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if over 12 years of age,
has been consulted about the proposed relative guardianship
arrangements, unless the child's age or physical, emotional, or other
condition precludes his or her meaningful response, and if so, a
description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(d) This section shall become operative January 1, 1999. If at any
hearing held pursuant to Section 366.26, a legal guardianship is
established for the minor with an approved relative caregiver, and
juvenile court dependency is subsequently dismissed, the minor shall
be eligible for aid under the Kin-GAP Program, as provided for in
Article 4.5 (commencing with Section 11360) or Article 4.7
(commencing with Section 11385), as applicable, of Chapter 2 of Part
3 of Division 9.
(e) 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 those persons even
if the marriage was terminated by death or dissolution. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under the Kin-GAP Program, as
provided for in Article 4.7 (commencing with Section 11385) of
Chapter 2 of Part 3 of Division 9, "relative" as used in this section
has the same meaning as "relative" as defined in subdivision (c) of
Section 11391.
(f) The implementation and operation of the amendments to
subdivision (a) 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. 8. Section 366.25 of the Welfare and Institutions Code is
amended to read:
366.25. (a) (1) When a case has been continued pursuant to
subdivision (b) of Section 366.22, the subsequent permanency review
hearing shall occur within 24 months after the date the child was
originally removed from the physical custody of his or her parent or
legal guardian. After considering the relevant and admissible
evidence, 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 subsequent
permanency review 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 parent's 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 consider whether the
child can be returned to the custody of a parent who is enrolled in a
certified substance abuse treatment facility that allows a dependent
child to reside with his or her parent. The fact that the parent is
enrolled in a certified substance abuse treatment facility shall not
be, for that reason alone, prima facie evidence of detriment. 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; and shall make
appropriate findings pursuant to subdivision (a) of Section 366.
(2) Whether or not 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
return would be detrimental. 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 the child's
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.
(3) If the child is not returned to a parent or legal guardian at
the subsequent permanency review hearing, the court shall order that
a hearing be held pursuant to Section 366.26 in order to determine
whether adoption, or, in the case of an Indian child, tribal
customary adoption, guardianship, or long-term foster care is the
most appropriate plan for the child. On and after January 1, 2012, a
hearing pursuant to Section 366.26 shall not be ordered if the child
is a nonminor dependent, unless the nonminor dependent is an Indian
child and tribal customary adoption is recommended as the permanent
plan. However, if the court finds by clear and convincing evidence,
based on the evidence already presented to it, including a
recommendation by the State Department of Social Services when it is
acting as an adoption agency or by a county adoption agency, that
there is a compelling reason, as described in paragraph (5) of
subdivision (g) of Section 366.21, for determining that a hearing
held under Section 366.26 is not in the best interest of the child
because the child is not a proper subject for adoption or, in the
case of an Indian child, tribal customary adoption, and has no one
willing to accept legal guardianship, then the court may, only under
these circumstances, order that the child remain in long-term foster
care. On and after January 1, 2012, the nonminor dependent's legal
status as an adult is in and of itself a compelling reason not to
hold a hearing pursuant to Section 366.26. The court may order that a
nonminor dependent who otherwise is eligible pursuant to Section
11403 remain in a planned, permanent living arrangement. 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. The hearing shall be held no later than 120 days from the
date of the subsequent permanency review hearing. The court shall
also order 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 unless it finds that visitation
would be detrimental to the child. The court shall determine whether
reasonable services have been offered or provided to the parent or
legal guardian. For purposes of this paragraph, evidence of any of
the following circumstances shall not, in and of themselves, be
deemed a failure to provide or offer reasonable services:
(A) The child has been placed with a foster family that is
eligible to adopt a child, or has been placed in a preadoptive home.
(B) The case plan includes services to make and finalize a
permanent placement for the child if efforts to reunify fail.
(C) 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.
(b) (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 county adoption agency, or the State Department of
Social Services when it is acting as an adoption agency, to prepare
an assessment that shall include:
(A) Current search efforts for an absent parent or parents.
(B) A review of the amount of, and nature of, any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purposes of this paragraph 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,
including a prospective tribal customary adoptive parent,
particularly the caretaker, to include a social history including
screening for criminal records and prior referrals for child abuse or
neglect, the capability to meet the child's needs, and the
understanding of the legal and financial rights and responsibilities
of adoption and guardianship. If a proposed legal guardian is a
relative of the minor, the assessment shall also consider, but need
not be limited to, all of the factors specified in subdivision (a) of
Section 361.3 and in Section 361.4.
(E) The relationship of the child to any identified prospective
adoptive parent or legal guardian, including a prospective tribal
customary adoptive parent, the duration and character of the
relationship, the degree of attachment of the child to the
prospective relative guardian or adoptive parent, the relative's or
adoptive parent's strong commitment to caring permanently for the
child, the motivation for seeking adoption or legal guardianship, a
statement from the child concerning placement and the adoption or
legal guardianship, and whether the child, if over 12 years of age,
has been consulted about the proposed relative guardianship
arrangements, unless the child's age or physical, emotional, or other
condition precludes his or her meaningful response, and if so, a
description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
tribal customary adoption, as defined in Section 366.24, is
recommended. If tribal customary adoption is recommended, the
assessment shall include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(c) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver, and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program, as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(d) 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. If the
proposed permanent plan is guardianship with an approved relative
caregiver for a minor eligible for aid under
the Kin-GAP Program, as provided in Article
4.7 (commencing with Section 11385) of Chapter 2 of Part 3 of
Division 9, "relative" as used in this section has the same meaning
as "relative" as defined in subdivision (c) of Section 11391.
(e) The implementation and operation of subdivision (a) 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. 9. Section 16500.5 of the Welfare and Institutions Code is
amended to read:
16500.5. (a) (1) The Legislature hereby declares its intent to
encourage the continuity of the family unit by:
(A) (i) Providing family preservation services.
(ii) For purposes of this subdivision, "family preservation
services" means intensive services for families whose children,
without these services, would be subject to any of the following:
(I) Be at imminent risk of out-of-home placement.
(II) Remain in existing out-of-home placement for longer periods
of time.
(III) Be placed in a more restrictive out-of-home placement.
(B) Providing supportive services for those children within the
meaning of Sections 360, 361, and 364 when they are returned to the
family unit or when a minor will probably soon be within the
jurisdiction of the juvenile court pursuant to Section 301.
(C) Providing counseling and family support services designed to
eradicate the situation that necessitated intervention.
(2) The Legislature finds that maintaining abused and neglected
children in foster care grows increasingly costly each year, and that
adequate funding for family services that might enable these
children to remain in their homes is not as readily available as
funding for foster care placement.
(3) The Legislature further finds that other state bodies have
addressed this problem through various systems of flexible
reimbursement in child welfare programs that provide for more
intensive and appropriate services to prevent foster care placement
or significantly reduce the length of stay in foster care.
(b) It is the intent of the Legislature that family preservation
and support services in California conform to the federal definitions
contained in Section 431 of the Social Security Act as contained in
Public Law 103-66, the Omnibus Budget Reconciliation Act of 1987. The
Legislature finds and declares that California's existing family
preservation programs meet the intent of the federal Promoting Safe
and Stable Families program.
(c) (1) Services that may be provided under this program may
include, but are not limited to, counseling, mental health treatment
and substance abuse treatment services, including treatment at a
residential substance abuse treatment facility that accepts families,
parenting, respite, day treatment, transportation, homemaking, and
family support services. Each county that chooses to provide mental
health treatment and substance abuse treatment shall identify and
develop these services in consultation with county mental health
treatment and substance abuse treatment agencies. Additional services
may include those enumerated in Sections 16506 and 16507. The
services to be provided pursuant to this section may be determined by
each participating county. Each county may contract with individuals
and organizations for services to be provided pursuant to this
section. Each county shall utilize available private nonprofit
resources in the county prior to developing new county-operated
resources when these private nonprofit resources are of at least
equal quality and costs as county-operated resources and shall
utilize available county resources of at least equal quality and cost
prior to new private nonprofit resources.
(2) Participating counties authorized by this subdivision shall
provide specific programs of direct services based on individual
family needs as reflected in the service plans to families of the
following:
(A) Children who are dependent children not taken from physical
custody of their parents or guardians pursuant to Section 364.
(B) Children who are dependent children removed from the physical
custody of their parents or guardian pursuant to Section 361.
(C) Children who it is determined will probably soon be within the
jurisdiction of the juvenile court pursuant to Section 301.
(D) Upon approval of the department, children who have been
adjudged wards of the court pursuant to Sections 601 and 602.
(E) Upon approval of the department, families of children subject
to Sections 726 and 727.
(F) Upon approval of the department, children who are determined
to require out-of-home placement pursuant to Section 7572.5 of the
Government Code.
(3) The services shall only be provided to families whose children
will be placed in out-of-home care without the provision of services
or to children who can be returned to their families with the
provision of services.
(4) The services selected by any participating county shall be
reasonable and meritorious and shall demonstrate cost-effectiveness
and success at avoiding out-of-home placement, or reducing the length
of stay in out-of-home placement. A county shall not expend more
funds for services under this subdivision than that amount which
would be expended for placement in out-of-home care.
(5) The program in each county shall be deemed successful if it
meets the following standards:
(A) Enables families to resolve their own problems, effectively
utilize service systems, and advocate for their children in
educational and social agencies.
(B) Enhancing family functioning by building on family strengths.
(C) At least 75 percent of the children receiving services remain
in their own home for six months after termination of services.
(D) During the first year after services are terminated:
(i) At least 60 percent of the children receiving services remain
at home one year after services are terminated.
(ii) The average length of stay in out-of-home care of children
selected to receive services who have already been removed from their
home and placed in out-of-home care is 50 percent less than the
average length of stay in out-of-home care of children who do not
receive program services.
(E) Two years after the termination of family preservation
services:
(i) The average length of out-of-home stay of children selected to
receive services under this section who, at the time of selection,
are in out-of-home care, is 50 percent less than the average length
of stay in out-of-home care for children in out-of-home care who do
not receive services pursuant to this section.
(ii) At least 60 percent of the children who were returned home
pursuant to this section remain at home.
(6) Funds used for services provided under this section shall
supplement, not supplant, child welfare services funds available for
services pursuant to Sections 16506 and 16507.
(7) Programs authorized after the original pilot projects shall
submit data to the department upon the department's request.
(d) (1) A county welfare department social worker or probation
officer may, pursuant to an appropriate court order, return a
dependent minor or ward of the court removed from the home pursuant
to Section 361 to his or her home, with appropriate interagency
family preservation program services.
(2) The county probation department may, with the approval of the
State Department of Social Services, through an interagency agreement
with the county welfare department, refer cases to the county
welfare department for the direct provision of services under this
subdivision.
(e) Foster care funds shall remain within the administrative
authority of the county welfare department and shall be used only for
placement services or placement prevention services or county
welfare department administrative cost related to the interagency
family preservation program.
(f) To the extent permitted by federal law, any federal funds
provided for services to families and children may be utilized for
the purposes of this section.
(g) A county may establish family preservation programs that serve
one or more geographic areas of the county, subject to the approval
of the State Department of Social Services.
(1) All funds expended by a county for activities under this
section shall be expended by the county in a manner that will
maximize eligibility for federal financial participation.
(2) Any county, subject to the approval of the State Department of
Social Services, may claim federal financial participation, if
allowable and available, as provided by the State Department of
Social Services in the federal Promoting Safe and Stable Families
program in accordance with the federal guidelines and regulations for
that county's AFDC-FC expenditures pursuant to subdivision (d) of
Section 11450, for children subject to Sections 300, 301, 360, and
364, in advance, provided that the county conducts a program of
family reunification and family maintenance services for families
receiving these services pursuant to Sections 300, 301, 360, and 364,
and as permitted by the department, children subject to Sections
601, 602, 726, and 727, and Section 7572.5 of the Government Code.
(h) In order to maintain federal funding and meet federal
requirements, the State Department of Social Services and the Office
of Child Abuse Prevention shall provide administrative oversight,
monitoring, and consultation to ensure both of the following:
(1) Each county includes in its county plan information that
details what services are to be funded under this section and who
will be served, and how the services are coordinated with the array
of services available in the county. In order to maintain federal
funding to meet federal requirements, the State Department of Social
Services shall review these plans and provide technical assistance as
needed, as provided in Section 10601.2. In order to meet federal
requirements, the Office of Child Abuse Prevention shall require
counties to submit annual reports, as part of the current reporting
process, on program services and children and families served. The
annual reporting process shall be developed jointly by the department
and county agencies for the purpose of meeting federal reporting
requirements.
(2) In order to maximize federal financial participation for the
federal Promoting Safe and Stable Families grant, funds expended from
this program are in compliance with data-reporting requirements in
order to meet federal nonsupplantation requirements in accordance
with Section 1357.32(f) of Title 45 of the Code of Federal
Regulations, and the 25 percent state match requirement in accordance
with Section 1357.32(d) of Title 45 of the Code of Federal
Regulations.
(i) Beginning in the 2011-12 fiscal year, and for each fiscal year
thereafter, funding and expenditures for programs and activities
under this section shall be made with moneys allocated pursuant to
Sections 30025 and 30029.2 of the Government Code.
SEC. 10. 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.
