BILL NUMBER: AB 1702 CHAPTERED
BILL TEXT
CHAPTER 124
FILED WITH SECRETARY OF STATE AUGUST 17, 2016
APPROVED BY GOVERNOR AUGUST 17, 2016
PASSED THE SENATE JUNE 30, 2016
PASSED THE ASSEMBLY AUGUST 1, 2016
AMENDED IN SENATE JUNE 16, 2016
AMENDED IN ASSEMBLY MARCH 16, 2016
AMENDED IN ASSEMBLY MARCH 7, 2016
INTRODUCED BY Assembly Members Mark Stone and Maienschein
JANUARY 25, 2016
An act to amend Section 361.5 of the Welfare and Institutions
Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
AB 1702, Mark Stone. Juveniles: dependent children: reunification
services.
Existing law establishes the jurisdiction of the juvenile court,
which may adjudge children to be dependents of the court under
certain circumstances, including when the child suffered or there is
a substantial risk that the child will suffer serious physical harm,
or a parent fails to provide the child with adequate food, clothing,
shelter, or medical treatment. Existing law establishes the grounds
for removal of a dependent child from the custody of his or her
parents or guardian, and establishes procedures to determine
temporary placement of a dependent child. Existing law generally
requires the court to order the social worker to provide designated
child welfare services, including family reunification services, to
the child and the child's mother and statutorily presumed father or
guardians. Existing law provides that reunification services need not
be provided to a parent or guardian when the court finds, by clear
and convincing evidence, that a specified event has occurred,
including that the child has been adjudicated a dependent as a result
of severe sexual abuse or the infliction of severe physical harm to
the child, a sibling, or a half sibling by a parent or guardian, and
the court makes a factual finding that it would not benefit the child
to pursue reunification services with the offending parent or
guardian.
This bill would also provide that reunification services need not
be provided when the court finds that the parent or guardian
knowingly participated in, or permitted, the sexual exploitation of
the child, as prescribed, except if the parent or guardian
demonstrated by a preponderance of the evidence that he or she was
coerced into permitting, or participating in, the sexual exploitation
of the child.
Existing law requires the court, if it does not order
reunification services pursuant to specified provisions, to determine
at the dispositional hearing if a hearing shall be set in order to
determine the most appropriate plan for the child.
This bill would require the court to make that determination if it
does not order reunification services because it found that the
parent or guardian knowingly participated in, or permitted, the
sexual exploitation of the child, as prescribed.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 361.5 of the Welfare and Institutions Code is
amended to read:
361.5. (a) Except as provided in subdivision (b), or when the
parent has voluntarily relinquished the child and the relinquishment
has been filed with the State Department of Social Services, or upon
the establishment of an order of guardianship pursuant to Section
360, or when a court adjudicates a petition under Section 329 to
modify the court's jurisdiction from delinquency jurisdiction to
dependency jurisdiction pursuant to subparagraph (A) of paragraph (2)
of subdivision (b) of Section 607.2 and the parents or guardian of
the ward have had reunification services terminated under the
delinquency jurisdiction, whenever a child is removed from a parent's
or guardian's custody, the juvenile court shall order the social
worker to provide child welfare services to the child and the child's
mother and statutorily presumed father or guardians. Upon a finding
and declaration of paternity by the juvenile court or proof of a
prior declaration of paternity by any court of competent
jurisdiction, the juvenile court may order services for the child and
the biological father, if the court determines that the services
will benefit the child.
(1) Family reunification services, when provided, shall be
provided as follows:
(A) Except as otherwise provided in subparagraph (C), for a child
who, on the date of initial removal from the physical custody of his
or her parent or guardian, was three years of age or older,
court-ordered services shall be provided beginning with the
dispositional hearing and ending 12 months after the date the child
entered foster care as provided in Section 361.49, unless the child
is returned to the home of the parent or guardian.
(B) For a child who, on the date of initial removal from the
physical custody of his or her parent or guardian, was under three
years of age, court-ordered services shall be provided for a period
of six months from the dispositional hearing as provided in
subdivision (e) of Section 366.21, but no longer than 12 months from
the date the child entered foster care, as provided in Section
361.49, unless the child is returned to the home of the parent or
guardian.
(C) For the purpose of placing and maintaining a sibling group
together in a permanent home should reunification efforts fail, for a
child in a sibling group whose members were removed from parental
custody at the same time, and in which one member of the sibling
group was under three years of age on the date of initial removal
from the physical custody of his or her parent or guardian,
court-ordered services for some or all of the sibling group may be
limited as set forth in subparagraph (B). For the purposes of this
paragraph, "a sibling group" shall mean two or more children who are
related to each other as full or half siblings.
(2) Any motion to terminate court-ordered reunification services
prior to the hearing set pursuant to subdivision (f) of Section
366.21 for a child described by subparagraph (A) of paragraph (1), or
prior to the hearing set pursuant to subdivision (e) of Section
366.21 for a child described by subparagraph (B) or (C) of paragraph
(1), shall be made pursuant to the requirements set forth in
subdivision (c) of Section 388. A motion to terminate court-ordered
reunification services shall not be required at the hearing set
pursuant to subdivision (e) of Section 366.21 if the court finds by
clear and convincing evidence one of the following:
(A) That the child was removed initially under subdivision (g) of
Section 300 and the whereabouts of the parent are still unknown.
(B) That the parent has failed to contact and visit the child.
(C) That the parent has been convicted of a felony indicating
parental unfitness.
(3) (A) Notwithstanding subparagraphs (A), (B), and (C) of
paragraph (1), court-ordered services may be extended up to a maximum
time period not to exceed 18 months after the date the child was
originally removed from physical custody of his or her parent or
guardian if it can be shown, at the hearing held pursuant to
subdivision (f) of Section 366.21, that the permanent plan for the
child is that he or she will be returned and safely maintained in the
home within the extended time period. The court shall extend the
time period only if it finds that there is a substantial probability
that the child will be returned to the physical custody of his or her
parent or guardian within the extended time period or that
reasonable services have not been provided to the parent or guardian.
In determining whether court-ordered services may be extended, the
court shall consider the special circumstances of an incarcerated or
institutionalized parent or parents, parent or parents court-ordered
to a residential substance abuse treatment program, or a parent who
has been arrested and issued an immigration hold, detained by the
United States Department of Homeland Security, or deported to his or
her country of origin, including, but not limited to, barriers to the
parent's or guardian's access to services and ability to maintain
contact with his or her child. The court shall also consider, among
other factors, good faith efforts that the parent or guardian has
made to maintain contact with the child. If the court extends the
time period, the court shall specify the factual basis for its
conclusion that there is a substantial probability that the child
will be returned to the physical custody of his or her parent or
guardian within the extended time period. The court also shall make
findings pursuant to subdivision (a) of Section 366 and subdivision
(e) of Section 358.1.
(B) When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
unless the parent's or guardian's participation is deemed by the
court to be inappropriate or potentially detrimental to the child, or
unless a parent or guardian is incarcerated or detained by the
United States Department of Homeland Security and the corrections
facility in which he or she is incarcerated does not provide access
to the treatment services ordered by the court, or has been deported
to his or her country of origin and services ordered by the court are
not accessible in that country. Physical custody of the child by the
parents or guardians during the applicable time period under
subparagraph (A), (B), or (C) of paragraph (1) shall not serve to
interrupt the running of the time period. If at the end of the
applicable time period, a child cannot be safely returned to the care
and custody of a parent or guardian without court supervision, but
the child clearly desires contact with the parent or guardian, the
court shall take the child's desire into account in devising a
permanency plan.
(C) In cases where the child was under three years of age on the
date of the initial removal from the physical custody of his or her
parent or guardian or is a member of a sibling group as described in
subparagraph (C) of paragraph (1), the court shall inform the parent
or guardian that the failure of the parent or guardian to participate
regularly in any court-ordered treatment programs or to cooperate or
avail himself or herself of services provided as part of the child
welfare services case plan may result in a termination of efforts to
reunify the family after six months. The court shall inform the
parent or guardian of the factors used in subdivision (e) of Section
366.21 to determine whether to limit services to six months for some
or all members of a sibling group as described in subparagraph (C) of
paragraph (1).
(4) (A) Notwithstanding paragraph (3), court-ordered services may
be extended up to a maximum time period not to exceed 24 months after
the date the child was originally removed from physical custody of
his or her parent or guardian if it is shown, at the hearing held
pursuant to subdivision (b) of Section 366.22, that the permanent
plan for the child is that he or she will be returned and safely
maintained in the home within the extended time period. The court
shall extend the time period only if it finds that it is in the child'
s best interest to have the time period extended and that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian who is described in
subdivision (b) of Section 366.22 within the extended time period,
or that reasonable services have not been provided to the parent or
guardian. If the court extends the time period, the court shall
specify the factual basis for its conclusion that there is a
substantial probability that the child will be returned to the
physical custody of his or her parent or guardian within the extended
time period. The court also shall make findings pursuant to
subdivision (a) of Section 366 and subdivision (e) of Section 358.1.
(B) When counseling or other treatment services are ordered, the
parent or guardian shall be ordered to participate in those services,
in order for substantial probability to be found. Physical custody
of the child by the parents or guardians during the applicable time
period under subparagraph (A), (B), or (C) of paragraph (1) shall not
serve to interrupt the running of the time period. If at the end of
the applicable time period, the child cannot be safely returned to
the care and custody of a parent or guardian without court
supervision, but the child clearly desires contact with the parent or
guardian, the court shall take the child's desire into account in
devising a permanency plan.
(C) Except in cases where, pursuant to subdivision (b), the court
does not order reunification services, the court shall inform the
parent or parents of Section 366.26 and shall specify that the parent'
s or parents' parental rights may be terminated.
(b) Reunification services need not be provided to a parent or
guardian described in this subdivision when the court finds, by clear
and convincing evidence, any of the following:
(1) That the whereabouts of the parent or guardian are unknown. A
finding pursuant to this paragraph shall be supported by an affidavit
or by proof that a reasonably diligent search has failed to locate
the parent or guardian. The posting or publication of notices is not
required in that search.
(2) That the parent or guardian is suffering from a mental
disability that is described in Chapter 2 (commencing with Section
7820) of Part 4 of Division 12 of the Family Code and that renders
him or her incapable of utilizing those services.
(3) That the child or a sibling of the child has been previously
adjudicated a dependent pursuant to any subdivision of Section 300 as
a result of physical or sexual abuse, that following that
adjudication the child had been removed from the custody of his or
her parent or guardian pursuant to Section 361, that the child has
been returned to the custody of the parent or guardian from whom the
child had been taken originally, and that the child is being removed
pursuant to Section 361, due to additional physical or sexual abuse.
(4) That the parent or guardian of the child has caused the death
of another child through abuse or neglect.
(5) That the child was brought within the jurisdiction of the
court under subdivision (e) of Section 300 because of the conduct of
that parent or guardian.
(6) (A) That the child has been adjudicated a dependent pursuant
to any subdivision of Section 300 as a result of severe sexual abuse
or the infliction of severe physical harm to the child, a sibling, or
a half sibling by a parent or guardian, as defined in this
subdivision, and the court makes a factual finding that it would not
benefit the child to pursue reunification services with the offending
parent or guardian.
(B) A finding of severe sexual abuse, for the purposes of this
subdivision, may be based on, but is not limited to, sexual
intercourse, or stimulation involving genital-genital, oral-genital,
anal-genital, or oral-anal contact, whether between the parent or
guardian and the child or a sibling or half sibling of the child, or
between the child or a sibling or half sibling of the child and
another person or animal with the actual or implied consent of the
parent or guardian; or the penetration or manipulation of the child'
s, sibling's, or half sibling's genital organs or rectum by any
animate or inanimate object for the sexual gratification of the
parent or guardian, or for the sexual gratification of another person
with the actual or implied consent of the parent or guardian.
(C) A finding of the infliction of severe physical harm, for the
purposes of this subdivision, may be based on, but is not limited to,
deliberate and serious injury inflicted to or on a child's body or
the body of a sibling or half sibling of the child by an act or
omission of the parent or guardian, or of another individual or
animal with the consent of the parent or guardian; deliberate and
torturous confinement of the child, sibling, or half sibling in a
closed space; or any other torturous act or omission that would be
reasonably understood to cause serious emotional damage.
(7) That the parent is not receiving reunification services for a
sibling or a half sibling of the child pursuant to paragraph (3),
(5), or (6).
(8) That the child was conceived by means of the commission of an
offense listed in Section 288 or 288.5 of the Penal Code, or by an
act committed outside of this state that, if committed in this state,
would constitute one of those offenses. This paragraph only applies
to the parent who committed the offense or act.
(9) That the child has been found to be a child described in
subdivision (g) of Section 300; that the parent or guardian of the
child willfully abandoned the child, and the court finds that the
abandonment itself constituted a serious danger to the child; or that
the parent or other person having custody of the child voluntarily
surrendered physical custody of the child pursuant to Section 1255.7
of the Health and Safety Code. For the purposes of this paragraph,
"serious danger" means that without the intervention of another
person or agency, the child would have sustained severe or permanent
disability, injury, illness, or death. For purposes of this
paragraph, "willful abandonment" shall not be construed as actions
taken in good faith by the parent without the intent of placing the
child in serious danger.
(10) That the court ordered termination of reunification services
for any siblings or half siblings of the child because the parent or
guardian failed to reunify with the sibling or half sibling after the
sibling or half sibling had been removed from that parent or
guardian pursuant to Section 361 and that parent or guardian is the
same parent or guardian described in subdivision (a) and that,
according to the findings of the court, this parent or guardian has
not subsequently made a reasonable effort to treat the problems that
led to removal of the sibling or half sibling of that child from that
parent or guardian.
(11) That the parental rights of a parent over any sibling or half
sibling of the child had been permanently severed, and this parent
is the same parent described in subdivision (a), and that, according
to the findings of the court, this parent has not subsequently made a
reasonable effort to treat the problems that led to removal of the
sibling or half sibling of that child from the parent.
(12) That the parent or guardian of the child has been convicted
of a violent felony, as defined in subdivision (c) of Section 667.5
of the Penal Code.
(13) That the parent or guardian of the child has a history of
extensive, abusive, and chronic use of drugs or alcohol and has
resisted prior court-ordered treatment for this problem during a
three-year period immediately prior to the filing of the petition
that brought that child to the court's attention, or has failed or
refused to comply with a program of drug or alcohol treatment
described in the case plan required by Section 358.1 on at least two
prior occasions, even though the programs identified were available
and accessible.
(14) (A) That the parent or guardian of the child has advised the
court that he or she is not interested in receiving family
maintenance or family reunification services or having the child
returned to or placed in his or her custody and does not wish to
receive family maintenance or reunification services.
(B) The parent or guardian shall be represented by counsel and
shall execute a waiver of services form to be adopted by the Judicial
Council. The court shall advise the parent or guardian of any right
to services and of the possible consequences of a waiver of services,
including the termination of parental rights and placement of the
child for adoption. The court shall not accept the waiver of services
unless it states on the record its finding that the parent or
guardian has knowingly and intelligently waived the right to
services.
(15) That the parent or guardian has on one or more occasions
willfully abducted the child or child's sibling or half sibling from
his or her placement and refused to disclose the child's or child's
sibling's or half sibling's whereabouts, refused to return physical
custody of the child or child's sibling or half sibling to his or her
placement, or refused to return physical custody of the child or
child's sibling or half sibling to the social worker.
(16) That the parent or guardian has been required by the court to
be registered on a sex offender registry under the federal Adam
Walsh Child Protection and Safety Act of 2006 (42 U.S.C. Sec. 16913
(a)), as required in Section 106(b)(2)(B)(xvi)(VI) of the Child Abuse
Prevention and Treatment Act of 2006 (42 U.S.C. Sec. 5106a(2)(B)
(xvi)(VI)).
(17) That the parent or guardian knowingly participated in, or
permitted, the sexual exploitation, as described in subdivision (c)
or (d) of Section 11165.1 of, or subdivision (c) of Section 236.1 of,
the Penal Code, of the child. This shall not include instances in
which the parent or guardian demonstrated by a preponderance of the
evidence that he or she was coerced into permitting, or participating
in, the sexual exploitation of the child.
(c) (1) In deciding whether to order reunification in any case in
which this section applies, the court shall hold a dispositional
hearing. The social worker shall prepare a report that discusses
whether reunification services shall be provided. When it is alleged,
pursuant to paragraph (2) of subdivision (b), that the parent is
incapable of utilizing services due to mental disability, the court
shall order reunification services unless competent evidence from
mental health professionals establishes that, even with the provision
of services, the parent is unlikely to be capable of adequately
caring for the child within the time limits specified in subdivision
(a).
(2) The court shall not order reunification for a parent or
guardian described in paragraph (3), (4), (6), (7), (8), (9), (10),
(11), (12), (13), (14), (15), (16), or (17) of subdivision (b) unless
the court finds, by clear and convincing evidence, that
reunification is in the best interest of the child.
(3) In addition, the court shall not order reunification in any
situation described in paragraph (5) of subdivision (b) unless it
finds that, based on competent testimony, those services are likely
to prevent reabuse or continued neglect of the child or that failure
to try reunification will be detrimental to the child because the
child is closely and positively attached to that parent. The social
worker shall investigate the circumstances leading to the removal of
the child and advise the court whether there are circumstances that
indicate that reunification is likely to be successful or
unsuccessful and whether failure to order reunification is likely to
be detrimental to the child.
(4) The failure of the parent to respond to previous services, the
fact that the child was abused while the parent was under the
influence of drugs or alcohol, a past history of violent behavior, or
testimony by a competent professional that the parent's behavior is
unlikely to be changed by services are among the factors indicating
that reunification services are unlikely to be successful. The fact
that a parent or guardian is no longer living with an individual who
severely abused the child may be considered in deciding that
reunification services are likely to be successful, provided that the
court shall consider any pattern of behavior on the part of the
parent that has exposed the child to repeated abuse.
(d) If reunification services are not ordered pursuant to
paragraph (1) of subdivision (b) and the whereabouts of a parent
become known within six months of the out-of-home placement of the
child, the court shall order the social worker to provide family
reunification services in accordance with this subdivision.
(e) (1) If the parent or guardian is incarcerated,
institutionalized, or detained by the United States Department of
Homeland Security, or has been deported to his or her country of
origin, the court shall order reasonable services unless the court
determines, by clear and convincing evidence, those services would be
detrimental to the child. In determining detriment, the court shall
consider the age of the child, the degree of parent-child bonding,
the length of the sentence, the length and nature of the treatment,
the nature of the crime or illness, the degree of detriment to the
child if services are not offered and, for children 10 years of age
or older, the child's attitude toward the implementation of family
reunification services, the likelihood of the parent's discharge from
incarceration, institutionalization, or detention within the
reunification time limitations described in subdivision (a), and any
other appropriate factors. In determining the content of reasonable
services, the court shall consider the particular barriers to an
incarcerated, institutionalized, detained, or deported parent's
access to those court-mandated services and ability to maintain
contact with his or her child, and shall document this information in
the child's case plan. Reunification services are subject to the
applicable time limitations imposed in subdivision (a). Services may
include, but shall not be limited to, all of the following:
(A) Maintaining contact between the parent and child through
collect telephone calls.
(B) Transportation services, where appropriate.
(C) Visitation services, where appropriate.
(D) (i) Reasonable services to extended family members or foster
parents providing care for the child if the services are not
detrimental to the child.
(ii) An incarcerated or detained parent may be required to attend
counseling, parenting classes, or vocational training programs as
part of the reunification service plan if actual access to these
services is provided. The social worker shall document in the child's
case plan the particular barriers to an incarcerated,
institutionalized, or detained parent's access to those
court-mandated services and ability to maintain contact with his or
her child.
(E) Reasonable efforts to assist parents who have been deported to
contact child welfare authorities in their country of origin, to
identify any available services that would substantially comply with
case plan requirements, to document the parents' participation in
those services, and to accept reports from local child welfare
authorities as to the parents' living situation, progress, and
participation in services.
(2) The presiding judge of the juvenile court of each county may
convene representatives of the county welfare department, the sheriff'
s department, and other appropriate entities for the purpose of
developing and entering into protocols for ensuring the notification,
transportation, and presence of an incarcerated or institutionalized
parent at all court hearings involving proceedings affecting the
child pursuant to Section 2625 of the Penal Code. The county welfare
department shall utilize the prisoner locator system developed by the
Department of Corrections and Rehabilitation to facilitate timely
and effective notice of hearings for incarcerated parents.
(3) Notwithstanding any other law, if the incarcerated parent is a
woman seeking to participate in the community treatment program
operated by the Department of Corrections and Rehabilitation pursuant
to Chapter 4.8 (commencing with Section 1174) of Title 7 of Part 2
of, or Chapter 4 (commencing with Section 3410) of Title 2 of Part 3
of, the Penal Code, the court shall determine whether the parent's
participation in a program is in the child's best interest and
whether it is suitable to meet the needs of the parent and child.
(f) If the court, pursuant to paragraph (2), (3), (4), (5), (6),
(7), (8), (9), (10), (11), (12), (13), (14), (15), (16), or (17) of
subdivision (b) or paragraph (1) of subdivision (e), does not order
reunification services, it shall, at the dispositional hearing, that
shall include a permanency hearing, determine if a hearing under
Section 366.26 shall be set in order to determine whether adoption,
guardianship, or long-term foster care, or, in the case of an Indian
child, in consultation with the child's tribe, tribal customary
adoption, is the most appropriate plan for the child, and shall
consider in-state and out-of-state placement options. If the court so
determines, it shall conduct the hearing pursuant to Section 366.26
within 120 days after the dispositional hearing. However, the court
shall not schedule a hearing so long as the other parent is being
provided reunification services pursuant to subdivision (a). The
court may continue to permit the parent to visit the child unless it
finds that visitation would be detrimental to the child.
(g) (1) Whenever a court orders that a hearing shall be held
pursuant to Section 366.26, including, when, in consultation with the
child's tribe, tribal customary adoption is recommended, it shall
direct the agency supervising the child and the county adoption
agency, or the State Department of Social Services when it is acting
as an adoption agency, to prepare an assessment that shall include:
(A) Current search efforts for an absent parent or parents and
notification of a noncustodial parent in the manner provided for in
Section 291.
(B) A review of the amount of and nature of any contact between
the child and his or her parents and other members of his or her
extended family since the time of placement. Although the extended
family of each child shall be reviewed on a case-by-case basis,
"extended family" for the purpose of this subparagraph shall include,
but not be
limited to, the child's siblings, grandparents, aunts, and uncles.
(C) An evaluation of the child's medical, developmental,
scholastic, mental, and emotional status.
(D) A preliminary assessment of the eligibility and commitment of
any identified prospective adoptive parent or guardian, including a
prospective tribal customary adoptive parent, particularly the
caretaker, to include a social history, including screening for
criminal records and prior referrals for child abuse or neglect, the
capability to meet the child's needs, and the understanding of the
legal and financial rights and responsibilities of adoption and
guardianship. If a proposed guardian is a relative of the minor, the
assessment shall also consider, but need not be limited to, all of
the factors specified in subdivision (a) of Section 361.3 and in
Section 361.4. As used in this subparagraph, "relative" means an
adult who is related to the minor by blood, adoption, or affinity
within the fifth degree of kinship, including stepparents,
stepsiblings, and all relatives whose status is preceded by the words
"great," "great-great," or "grand," or the spouse of any of those
persons even if the marriage was terminated by death or dissolution.
If the proposed permanent plan is guardianship with an approved
relative caregiver for a minor eligible for aid under the Kin-GAP
Program, as provided for in Article 4.7 (commencing with Section
11385) of Chapter 2 of Part 3 of Division 9, "relative" as used in
this section has the same meaning as "relative" as defined in
subdivision (c) of Section 11391.
(E) The relationship of the child to any identified prospective
adoptive parent or guardian, including a prospective tribal customary
parent, the duration and character of the relationship, the degree
of attachment of the child to the prospective relative guardian or
adoptive parent, the relative's or adoptive parent's strong
commitment to caring permanently for the child, the motivation for
seeking adoption or guardianship, a statement from the child
concerning placement and the adoption or guardianship, and whether
the child over 12 years of age has been consulted about the proposed
relative guardianship arrangements, unless the child's age or
physical, emotional, or other condition precludes his or her
meaningful response, and if so, a description of the condition.
(F) An analysis of the likelihood that the child will be adopted
if parental rights are terminated.
(G) In the case of an Indian child, in addition to subparagraphs
(A) to (F), inclusive, an assessment of the likelihood that the child
will be adopted, when, in consultation with the child's tribe, a
customary adoption, as defined in Section 366.24, is recommended. If
tribal customary adoption is recommended, the assessment shall
include an analysis of both of the following:
(i) Whether tribal customary adoption would or would not be
detrimental to the Indian child and the reasons for reaching that
conclusion.
(ii) Whether the Indian child cannot or should not be returned to
the home of the Indian parent or Indian custodian and the reasons for
reaching that conclusion.
(2) (A) A relative caregiver's preference for legal guardianship
over adoption, if it is due to circumstances that do not include an
unwillingness to accept legal or financial responsibility for the
child, shall not constitute the sole basis for recommending removal
of the child from the relative caregiver for purposes of adoptive
placement.
(B) Regardless of his or her immigration status, a relative
caregiver shall be given information regarding the permanency options
of guardianship and adoption, including the long-term benefits and
consequences of each option, prior to establishing legal guardianship
or pursuing adoption. If the proposed permanent plan is guardianship
with an approved relative caregiver for a minor eligible for aid
under the Kin-GAP Program, as provided for in Article 4.7 (commencing
with Section 11385) of Chapter 2 of Part 3 of Division 9, the
relative caregiver shall be informed about the terms and conditions
of the negotiated agreement pursuant to Section 11387 and shall agree
to its execution prior to the hearing held pursuant to Section
366.26. A copy of the executed negotiated agreement shall be attached
to the assessment.
(h) If, at any hearing held pursuant to Section 366.26, a
guardianship is established for the minor with an approved relative
caregiver and juvenile court dependency is subsequently dismissed,
the minor shall be eligible for aid under the Kin-GAP Program as
provided for in Article 4.5 (commencing with Section 11360) or
Article 4.7 (commencing with Section 11385), as applicable, of
Chapter 2 of Part 3 of Division 9.
(i) In determining whether reunification services will benefit the
child pursuant to paragraph (6) or (7) of subdivision (b), the court
shall consider any information it deems relevant, including the
following factors:
(1) The specific act or omission comprising the severe sexual
abuse or the severe physical harm inflicted on the child or the child'
s sibling or half sibling.
(2) The circumstances under which the abuse or harm was inflicted
on the child or the child's sibling or half sibling.
(3) The severity of the emotional trauma suffered by the child or
the child's sibling or half sibling.
(4) Any history of abuse of other children by the offending parent
or guardian.
(5) The likelihood that the child may be safely returned to the
care of the offending parent or guardian within 12 months with no
continuing supervision.
(6) Whether or not the child desires to be reunified with the
offending parent or guardian.
(j) When the court determines that reunification services will not
be ordered, it shall order that the child's caregiver receive the
child's birth certificate in accordance with Sections 16010.4 and
16010.5. Additionally, when the court determines that reunification
services will not be ordered, it shall order, when appropriate, that
a child who is 16 years of age or older receive his or her birth
certificate.
(k) The court shall read into the record the basis for a finding
of severe sexual abuse or the infliction of severe physical harm
under paragraph (6) of subdivision (b), and shall also specify the
factual findings used to determine that the provision of
reunification services to the offending parent or guardian would not
benefit the child.