Bill Text: CA SB578 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Juvenile court: dependents: removal.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2023-10-08 - Chaptered by Secretary of State. Chapter 618, Statutes of 2023. [SB578 Detail]
Download: California-2023-SB578-Amended.html
To the extent that this act has an overall effect of increasing the costs already borne by a local agency for programs or levels of service mandated by the 2011 Realignment Legislation within the meaning of Section 36 of Article XIII of the California Constitution, it shall apply to local agencies only to the extent that the state provides annual funding for the cost increase. Any new program or higher level of service provided by a local agency pursuant to this act above the level for which funding has been provided
shall not require a subvention of funds by the state or otherwise be subject to Section 6 of Article XIII B of the California Constitution.
Bill Title: Juvenile court: dependents: removal.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2023-10-08 - Chaptered by Secretary of State. Chapter 618, Statutes of 2023. [SB578 Detail]
Download: California-2023-SB578-Amended.html
Amended
IN
Assembly
September 07, 2023 |
Amended
IN
Assembly
September 01, 2023 |
Amended
IN
Assembly
July 13, 2023 |
Amended
IN
Senate
April 13, 2023 |
Amended
IN
Senate
March 29, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Senate Bill
No. 578
Introduced by Senator Ashby (Principal coauthor: Senator Cortese) |
February 15, 2023 |
An act to amend Section 319 of the Welfare and Institutions Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
SB 578, as amended, Ashby.
Juvenile court: dependents: removal.
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 the child’s parents or guardian. Existing law requires the court, at the initial petition hearing, to examine the child’s parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence, and order the release of the child from custody unless a prima facie showing has been made that the child comes within the court’s jurisdiction, the court finds that continuance in the parent’s or guardian’s
home is contrary to the child’s welfare, and any of a number of circumstances exist. Existing law requires the social worker to report to the court on the reasons why the child has been removed from the parent’s, guardian’s, or Indian custodian’s physical custody, the need, if any, for continued detention, and 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, among other things.
This bill would require the social worker’s report to also include information regarding the short-term and long-term harms to the child that may result from their removal, including the child’s perspective on removal, the existing relationship between the child and members of the household, and the disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, the child’s
connection to their tribe, extended family members, and tribal community. The bill would also require the social worker’s report to include placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, and other measures that may be taken to alleviate disruption and minimize the harms of removal. The bill would require the court to determine whether less disruptive alternatives to removal were considered, as specified. The bill would, if the court finds that removal is necessary, require the court to set forth, in a written order or on the record, the child’s placement and the basis for its findings, whether the placement complies with specified placement preferences, and would require the court to include any orders necessary to alleviate any disruption or harm to the child resulting from removal. By imposing additional duties on counties, the bill would impose a state-mandated local program.
This bill would incorporate additional changes to Section 319 of the Welfare and Institutions Code proposed by AB 81 and AB 448 to be operative only if this bill and AB 81, this bill and AB 448, or all 3 bills are enacted and this bill is enacted last.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
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 review the report described in subdivision (b) and examine the child’s parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the child’s parents or guardians, the child’s Indian custodian, the petitioner, the Indian child’s tribe, 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, guardian’s, or Indian custodian’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, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and
measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1) A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2) The steps taken to provide notice to the child’s parents, custodians, and tribe about the hearing pursuant to this section.
(3) If the child’s parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact
with the appropriate Bureau of Indian Affairs regional director.
(4) The residence and the domicile of the Indian child.
(5) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6) The tribal affiliation of the child and of the parents or Indian custodians.
(7) A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8) If the child is believed to reside or be domiciled on a reservation in which the
tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribe’s jurisdiction.
(9) A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10) The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c) (1) 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:
(A) 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.
(B) There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(C) The child has left a placement in which the child was placed by the juvenile
court.
(D) The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2) (A) The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i) A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the child’s perspective, and the child’s response to removal and, where developmentally appropriate, their perspective on removal.
(ii) The relationship
between the child and any siblings.
(iii) The relationship between the child and other members of the household.
(iv) Any disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the child’s connection to their tribe, extended family members, and tribal community.
(B) If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i) The basis for its findings and the evidence relied
on.
(ii) Its determination regarding the child’s placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii) Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C) Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d) If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child
if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e) (1) If the hearing pursuant to this section 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.
(2) If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A) Restoring the child to the
parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B) The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C) It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f) (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 their 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 of, Chapter 1 (commencing with Section 17000) of Part 5 of, 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. This determination
shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2) If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3) If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If
the child cannot be returned to the physical custody of their 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 Section 361.4.
(4) 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 their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment
facility that allows a dependent child to reside with their 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 their 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.
(g) 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 their family, if appropriate.
(h) (1) (A) If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i) The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child
Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii) The approved home of a resource family, as described in Section 16519.5, or a home licensed or approved by the Indian child’s tribe.
(iii) An emergency shelter or other suitable licensed place.
(iv) A place exempt from licensure designated by the juvenile court.
(B) A youth homelessness prevention center 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.
(C) If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2) Relatives shall be given preferential consideration for placement of the child. 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.
(3) When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative
extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. 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.
(i) In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the child’s tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to
Section 361 or 361.2.
(j) (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 shall be consistent with the child’s individual program plan and pursuant to 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) A 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. An 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, additional needed limitation on the parent’s or guardian’s educational or developmental services rights shall be addressed pursuant to Section 361.
(5) This section does not remove 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, the developmental services decisionmaker shall have the authority to access the child’s information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) 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) of Division 4.5, and as set forth in the court order.
(k) For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l) For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.1.
Section 319 of the Welfare and Institutions Code is amended to read:319.
(a) At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the child’s parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the child’s parents or guardians, the child’s Indian custodian, the petitioner, the Indian child’s tribe, 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, guardian’s, or Indian custodian’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, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures
that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1) A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2) The steps taken to provide notice to the child’s parents, custodians, and tribe about the hearing pursuant to this section.
(3) If the child’s parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4) The residence and the domicile of the Indian child.
(5) If either the residence or the domicile of the Indian child is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6) The tribal affiliation of the child and of the parents or Indian custodians.
(7) A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8) If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and
transfer the child to the tribe’s jurisdiction.
(9) A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be returned to their custody.
(10) The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c) (1) 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)
(A) 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)
(B) There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the child at risk of imminent physical damage or harm.
(3)
(C) The child has left a placement in which the child was placed by the juvenile court.
(4)
(D) The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2) (A) The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i) A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the child’s perspective, and the child’s response to removal and, where developmentally appropriate, their perspective on removal.
(ii) The relationship between the child and any siblings.
(iii) The relationship between the child and other members of the household.
(iv) Any disruption to the child’s schooling, social relationships, and physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the child’s connection to their tribe, extended family members, and tribal community.
(B) If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i) The basis for its findings and the evidence relied on.
(ii) Its determination regarding the child’s placement, including whether it complies with the placement preferences set
forth in Section 361.31 and less disruptive alternatives.
(iii) Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C) Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d) If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e) (1) If the hearing
pursuant to this section 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.
(2) If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A) Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B) The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C) It is not possible to initiate an Indian
child custody proceeding as defined in Section 224.1.
(f) (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 their 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 of, Chapter 1 (commencing with Section 17000) of Part 5 of, 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. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2) If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the
county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3) If the child can be returned to the custody of their parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their 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 Section 361.4.
(4) 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 their parent who is enrolled in a certified substance abuse treatment facility that allows a
dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their 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 their 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.
(g) 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 their family, if appropriate.
(h) (1) (A) If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i) The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii) The approved home of a resource family, as defined
described in Section 16519.5, or a home licensed or approved by the Indian child’s tribe.
(iii) An emergency shelter or other suitable licensed place.
(iv) A place exempt from licensure designated by the juvenile court.
(B) A youth homelessness prevention center 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.
(C) If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless
the court finds good cause exists pursuant to Section 361.31 not to follow the placement preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2) Relatives shall be given preferential consideration for placement of the child. 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.
(3) When placing in the home of a relative, an extended family member, as defined in Section 224.1 and
Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. 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.
(i) In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the child’s tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian
pursuant to Section 361 or 361.2.
(j) (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 shall be consistent with the child’s individual program plan and pursuant to 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) A 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. An 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, additional needed limitation on the parent’s or guardian’s educational or developmental services rights shall be addressed pursuant to Section 361.
(5) This section does not remove 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, the developmental services decisionmaker shall have the authority to access the child’s information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) 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) of Division 4.5, and as set forth in the court order.
(k) For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)
(l) For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.2.
Section 319 of the Welfare and Institutions Code is amended to read:319.
(a) At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the child’s parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the child’s parents or guardians, the child’s Indian custodian, the petitioner, the Indian child’s tribe, 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, guardian’s, or Indian custodian’s physical custody,
custody; the need, if any, for continued detention, detention; and 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, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support
or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1) A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2) The steps taken to provide notice to the child’s parents, custodians, and tribe about the hearing pursuant to this section.
(3) If the child’s parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4) The residence and the domicile of the Indian child.
(5) If either the residence or the domicile of the Indian child
is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6) The tribal affiliation of the child and of the parents or Indian custodians.
(7) A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8) If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribe’s jurisdiction.
(9) A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be
returned to their custody.
(10) The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c) (1) 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)
(A) 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)
(B) There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the
child at risk of imminent physical damage or harm.
(3)
(C) The child has left a placement in which the child was placed by the juvenile court.
(4)
(D) The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2) (A) The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i) A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the child’s perspective, and the child’s response to removal and, where developmentally appropriate, their perspective on removal.
(ii) The relationship between the child and any siblings.
(iii) The relationship between the child and other members of the household.
(iv) Any disruption to the child’s schooling, social relationships, and
physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the child’s connection to their tribe, extended family members, and tribal community.
(B) If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i) The basis for its findings and the evidence relied on.
(ii) Its determination regarding the child’s placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii) Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C) Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d) If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e) (1) If the hearing pursuant to this section 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.
(2) If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A) Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B) The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C) It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f) (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 their 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 of, Chapter 1 (commencing with Section 17000) of Part 5 of, 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. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2) If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3) If the child can be returned to the custody of their
parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their 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 Section 361.4.
(4) 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 their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their 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 their 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.
(g) 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 their family, if appropriate.
(h) (1) (A) If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i) The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii) The approved home of a resource family, as defined described in Section 16519.5, or a home licensed or
approved by the Indian child’s tribe.
(iii) An emergency shelter or other suitable licensed place.
(iv) A place exempt from licensure designated by the juvenile court.
(B) A youth homelessness prevention center 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.
(C) If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement
preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2) Relatives shall be given preferential consideration for placement of the child. 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.
(3) When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family
member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. 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.
(i) In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the child’s tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j) (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 shall be consistent with the child’s individual program plan and pursuant to 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) A 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. An 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, additional needed limitation on the parent’s or guardian’s educational or developmental services rights shall be addressed pursuant to Section 361.
(5) This section does not remove 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, the developmental services decisionmaker shall have the authority to access the child’s
information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) 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) of Division 4.5, and as set forth in the court order.
(k) For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)
(l) For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 1.3.
Section 319 of the Welfare and Institutions Code is amended to read:319.
(a) At the initial petition hearing, the court shall review the report described in subdivision (b) and examine the child’s parents, guardians, Indian custodian, or other persons having relevant knowledge and hear the relevant evidence as the child, the child’s parents or guardians, the child’s Indian custodian, the petitioner, the Indian child’s tribe, 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, guardian’s, or Indian custodian’s physical custody,
custody; the need, if any, for continued detention, detention; and 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, guardians, or Indian custodian, and whether there are any relatives who are able and willing to take temporary physical custody of the child. custodian; and shall document their efforts, and in the case of an Indian child, the active efforts as defined in subdivision (f) of Section 224.1, and results of those efforts by the social worker to locate any relatives or kin who could provide family support
or possible placement of the child or nonminor dependent and the names of those relatives or kin. The report shall also include information regarding any short-term or long-term harms, or both short-term and long-term harms, to the child that may result from their removal from the custody of their parent, guardian, or Indian custodian, including, but not limited to, the information specified in subparagraph (A) of paragraph (2) of subdivision (c), the placement options, including an assessment of the least disruptive alternatives to returning the child to the custody of their parent, guardian, or Indian custodian, including compliance with the placement preferences set forth in Section 361.31 in the case of an Indian child, and measures that may be available to alleviate disruption and minimize the harms of removal. If it is known or there is reason to know the child is an Indian child, the report shall also include all of the following:
(1) A statement of the risk of imminent physical damage or harm to the Indian child and any evidence that the emergency removal or placement continues to be necessary to prevent the imminent physical damage or harm to the child.
(2) The steps taken to provide notice to the child’s parents, custodians, and tribe about the hearing pursuant to this section.
(3) If the child’s parents and Indian custodians are unknown, a detailed explanation of what efforts have been made to locate and contact them, including contact with the appropriate Bureau of Indian Affairs regional director.
(4) The residence and the domicile of the Indian child.
(5) If either the residence or the domicile of the Indian child
is believed to be on a reservation or in an Alaska Native village, the name of the tribe affiliated with that reservation or village.
(6) The tribal affiliation of the child and of the parents or Indian custodians.
(7) A specific and detailed account of the circumstances that caused the Indian child to be taken into temporary custody.
(8) If the child is believed to reside or be domiciled on a reservation in which the tribe exercises exclusive jurisdiction over child custody matters, a statement of efforts that have been made and that are being made to contact the tribe and transfer the child to the tribe’s jurisdiction.
(9) A statement of the efforts that have been taken to assist the parents or Indian custodians so the Indian child may safely be
returned to their custody.
(10) The steps taken to consult and collaborate with the tribe and the outcome of that consultation and collaboration.
(c) (1) 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)
(A) 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)
(B) There is substantial evidence that a parent, guardian, or custodian of the child is likely to flee the jurisdiction of the court, and, in the case of an Indian child, fleeing the jurisdiction will place the
child at risk of imminent physical damage or harm.
(3)
(C) The child has left a placement in which the child was placed by the juvenile court.
(4)
(D) The child indicates an unwillingness to return home, if the child has been physically or sexually abused by a person residing in the home.
(2) (A) The court shall determine whether less disruptive alternatives to removal were considered by the agency, such as factors related to the impact of removal on the child, including, but not limited to, the following:
(i) A description of the relationship between the child and their parents, guardians, or Indian custodians, based on the child’s perspective, and the child’s response to removal and, where developmentally appropriate, their perspective on removal.
(ii) The relationship between the child and any siblings.
(iii) The relationship between the child and other members of the household.
(iv) Any disruption to the child’s schooling, social relationships, and
physical or emotional health that may result from placement out of the home, and in the case of an Indian child, any impact on the child’s connection to their tribe, extended family members, and tribal community.
(B) If the court finds that removal is necessary under paragraph (1), the court shall, in a written order or on the record, set forth all of the following:
(i) The basis for its findings and the evidence relied on.
(ii) Its determination regarding the child’s placement, including whether it complies with the placement preferences set forth in Section 361.31 and less disruptive alternatives.
(iii) Include any orders necessary to alleviate any disruption or harm to the child resulting from removal.
(C) Nothing in this paragraph permits a child to be released to a parent, legal guardian, or Indian custodian, or to be placed in an unsafe placement, due solely to the court determining the child was not offered less disruptive alternatives.
(d) If the court knows or there is reason to know the child is an Indian child, the court may only detain the Indian child if it also finds that detention is necessary to prevent imminent physical damage or harm. The court shall state on the record the facts supporting this finding.
(e) (1) If the hearing pursuant to this section 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.
(2) If the court knows or has reason to know the child is an Indian child, the hearing pursuant to this section may not be continued beyond 30 days unless the court finds all of the following:
(A) Restoring the child to the parent, parents, or Indian custodian would subject the child to imminent physical damage or harm.
(B) The court is unable to transfer the proceeding to the jurisdiction of the appropriate Indian tribe.
(C) It is not possible to initiate an Indian child custody proceeding as defined in Section 224.1.
(f) (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 their 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 of, Chapter 1 (commencing with Section 17000) of Part 5 of, 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. This determination shall apply to each child individually, and the considerations shall be tailored to the individual child.
(2) If the court knows or has reason to know the child is an Indian child, the court shall also determine whether the county welfare department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. The court shall order the county welfare department to initiate or continue services or programs pending disposition pursuant to Section 358.
(3) If the child can be returned to the custody of their
parent, guardian, or Indian custodian through the provision of those services, the court shall place the child with their parent, guardian, or Indian custodian and order that the services shall be provided. If the child cannot be returned to the physical custody of their 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 Section 361.4.
(4) 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 their parent who is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their parent. The fact that the parent is enrolled in a certified substance abuse treatment facility that allows a dependent child to reside with their 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 their 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.
(g) 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 their family, if appropriate.
(h) (1) (A) If the child is not released from custody, the court may order the temporary placement of the child in any of the following for a period not to exceed 15 judicial days:
(i) The home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), or a nonrelative extended family member, as defined in Section 362.7, that has been assessed pursuant to Section 361.4.
(ii) The approved home of a resource family, as defined described in Section 16519.5, or a home licensed or
approved by the Indian child’s tribe.
(iii) An emergency shelter or other suitable licensed place.
(iv) A place exempt from licensure designated by the juvenile court.
(B) A youth homelessness prevention center 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.
(C) If the court knows or has reason to know that the child is an Indian child, the Indian child shall be detained in a home that complies with the placement preferences set forth in Section 361.31 and in the federal Indian Child Welfare Act of 1978 (25 U.S.C. Sec. 1901 et seq.), unless the court finds good cause exists pursuant to Section 361.31 not to follow the placement
preferences. If the court finds good cause not to follow the placement preferences for detention, this finding does not affect the requirement that a diligent search be made for a subsequent placement within the placement preferences.
(2) Relatives shall be given preferential consideration for placement of the child. 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.
(3) When placing in the home of a relative, an extended family member, as defined in Section 224.1 and Section 1903 of the federal Indian Child Welfare Act of 1978, or nonrelative extended family
member, the court shall consider the recommendations of the social worker based on the assessment pursuant to Section 361.4 of the home of the relative, extended family member, or nonrelative extended family member, including the results of a criminal records check and prior child abuse allegations, if any, before ordering that the child be placed with a relative or nonrelative extended family member. The court may authorize the placement of a child on a temporary basis in the home of a relative, regardless of the status of any criminal record exemption or resource family approval, if the court finds that the placement does not pose a risk to the health and safety of the child. 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.
(i) In the case of an Indian child, any order detaining the child pursuant to this section shall be considered an emergency removal within the meaning of Section
224.1 of this code, and as described in subdivision (g) of Section 305.5, and Section 1922 of the federal Indian Child Welfare Act of 1978. The emergency proceeding shall terminate if the child is returned to the custody of the parent, parents, or Indian custodian, the child has been transferred to the custody and jurisdiction of the child’s tribe, or the agency or another party to the proceeding recommends that the child be removed from the physical custody of their parent or parents or Indian custodian pursuant to Section 361 or 361.2.
(j) (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 shall be consistent with the child’s individual program plan and pursuant to 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) A 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. An 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, additional needed limitation on the
parent’s or guardian’s educational or developmental services rights shall be addressed pursuant to Section 361.
(5) This section does not remove 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, the developmental services decisionmaker shall have the authority to access the child’s information and records pursuant to subdivision (u) of Section 4514 and paragraph (23) of subdivision (a) 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) of Division 4.5, and as set forth in the court order.
(k) For a placement made on or after October 1, 2021, each temporary placement of the child pursuant to subdivision (h) in a short-term residential therapeutic program shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
(l)
(l) For a placement made on or after July 1, 2022, each temporary placement of the child pursuant to subdivision (h) in a
community treatment facility shall comply with the requirements of Section 4096 and be reviewed by the court pursuant to Section 361.22.
SEC. 2.
(a) Section 1.1 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by this bill and Assembly Bill 81. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 448 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 81, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.1 of this bill shall become operative, and Sections 1, 1.2, and 1.3 of this bill shall not become operative.(b) Section 1.2 of this bill incorporates amendments to Section 319 of the Welfare and Institutions Code proposed by both this bill and Assembly Bill 448. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2024, (2) each bill amends Section 319 of the Welfare and Institutions Code, (3) Assembly Bill 81 is not enacted or as enacted does not amend that section, and (4) this bill is enacted after Assembly Bill 448, in which case Sections 1, 1.1, and 1.3 of this bill shall not become operative.
(c) Section 1.3 of this bill incorporates amendments to Section 319 of the Welfare
and Institutions Code proposed by this bill, Assembly Bill 81, and Assembly Bill 448. That section of this bill shall only become operative if (1) all three bills are enacted and become effective on or before January 1, 2024, (2) all three bills amend Section 319 of the Welfare and Institutions Code, and (3) this bill is enacted after Assembly Bill 81 and Assembly Bill 448, in which case Section 319 of the Welfare and Institutions Code, as amended by Assembly Bill 81, shall remain operative only until the operative date of this bill, at which time Section 1.3 of this bill shall become operative, and Sections 1, 1.1, and 1.2 of this bill shall not become operative.